Judge erred in ordering mother who moved with child following marriage break up to move back, B.C. Court of Appeal decides

In a case decided in July, 2014, McIntosh v. Kaulbach, 2014 BCCA 299, the B.C. Court of Appeal overturned the decision of a trial judge who had ordered a mother who had moved to another town in B.C with her child following the breakdown of the relationship to move back.

During the relationship the parties lived together in Chetwynd. The mother was the child’s primary caregiver. At the time of the separation the mother moved with the child to live with her mother in Penticton. At that time the child was a few months old. By the time the case came on for trial the mother was living with the child in Kelowna.

The trial judge concluded that the mother should have sole custody of the child but also decided that the mother must move back to Chetwynd so that the both parents could have substantial contact with the child. The Court of Appeal, in a unanimous decision, found that the trial judge had erred in ordering that the mother must move back to Chetwynd. The Court stated that, having found that the mother should have sole custody, and no improper motive having been shown for her move from Chetwynd to the Okanagan at the time of the marriage breakdown, it was not open to the trial judge to order her to move back to Chetwynd. In the absence of an improper motive, the decision of the mother to move with the child was entitled to respect.

It should be noted that this case was decided under the Divorce Act, not the Family Law Act, and that different statutory criteria apply depending on which Act is utilized.

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