Moving or Staying, It’s About Children and Custody

Family Law

In McIntosh v. Kaulbach, 2014 BCCA 299, the Court of Appeal heard a case where a mother had been awarded sole custody, a rare award these days, and yet had been ordered to return to the community where the father resided. This last part is important—mobility, like any other child centered decision, is not supposed to be about the parents. It is about the child.

The court can order that a child live somewhere. The court cannot order a functioning adult, as it appears this mother was, to live somewhere. That creates constitutional issues and is a serious breach of a person’s individual liberty and is in contrast with the established norm of not requiring an adult to move or live in a specific region for child custody purposes.

In line with this, the Court of Appeal’s reasoning was that, having found that the father could not practically look after the child, the only option was, essentially, to accede to the move. The alternative is to have the child in the care of someone the judge found unsuitable to have primary care, while the mother moved to Kelowna without the child anyway, leaving the child in the care of a parent with dubious parenting ability, which is hardly in the child’s best interests.

Citing Falvai v. Falvai, 2008 BCCA 503, the Court of Appeal noted that “a court cannot indenture an individual to a community.” This lack of middle ground is why compromise and settlement is so difficult in mobility cases—either there is a move or there isn’t, at the end of the day. People are often prepared to be flexible about timing, parenting arrangements, even support arrangements if the other party will agree to a move but it is extremely difficult to convince one side or the other to agree to it, and almost never without an expert’s report which can frequently add more predictability to the outcome of a trial.

On the subject of being child centered, it’s important that both parties tailor their evidence to the child—what opportunities will the child have because of the move, or because they stay? Where will they live? Where will they go to school? Who will their friends be? What extended family lives nearby? What resources are there in the community for them? Secondarily, both parties might focus on what the other party could do in the community, and how easy it would be for them to move, but only secondarily.

Mobility is essentially a kind of custody or parenting arrangement order, and under either legislation, the court will be concerned with the best interests of the child and everything else will flow from that.

Contact one of our Family Law lawyers if you have any questions relating to mobility and child custody situations.