COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

McIntosh v. Kaulbach,

 

2014 BCCA 299

Date: 20140718

Docket: CA041627

Between:

Heather Nicole McIntosh

Appellant

(Claimant)

And

Stephen Craig James Kaulbach

Respondent

(Respondent)

Before:

The Honourable Madam Justice Bennett

The Honourable Mr. Justice Harris

The Honourable Mr. Justice Goepel

On appeal from:  An order of the Supreme Court of British Columbia, dated
February 14, 2014 (H.N.M. v. S.C.J.K., 2014 BCSC 231, Penticton Registry 36287).

Oral Reasons for Judgment

Counsel for the Appellant:

D.M. King

Counsel for the Respondent:

M.A. Koochin

Place and Date of Hearing:

Vancouver, British Columbia

July 18, 2014

Place and Date of Judgment:

Vancouver, British Columbia

July 18, 2014


 

Summary:

A trial judge made an order under the Divorce Act ordering a mother to relocate with the child of the marriage from Kelowna to Chetwynd where she had lived during a short marriage and where her ex-husband continued to reside. Appeal allowed. Having concluded that the child’s best interests were for the mother to have custody of the child and the father was not in a position to have custody, the judge erred in principle in ordering the mother to relocate.

Overview

[1]           HARRIS J.A.:  Ms. McIntosh appeals a custody order requiring her to relocate to Chetwynd, B.C. where she had lived with the respondent, Mr. Kaulbach. The material parts of the order read:

2.         The child of the marriage [K.K.] … shall be primarily in the Claimant’s care.

3.         [K.K.] will take up residence in Chetwynd, B.C., and the Claimant and [K.K.] shall both relocate to Chetwynd, B.C.

5.         The relocation Order is suspended until September 1, 2014.

6.         While [K.K.]’s relocation is suspended,

(a)        the Respondent shall have parenting time with [K.K.] for five consecutive nights during each of his 14 day rest periods from work. If the Respondent chooses to exercise parenting time in Chetwynd, B.C. at the Claimant’s option she may travel by air with [K.K.] to Prince George, Grand Prairie or Dawson Creek where the Respondent shall collect [K.K.] from the Claimant and take her to Chetwynd. If the Claimant elects not to fly to those locations it will be for the Respondent to fly to Kelowna to pick up [K.K.]. The Respondent shall not be at liberty to take [K.K.] to Chetwynd from Kelowna or return by road. In the event that the Respondent elects not to exercise parenting time during one of his rest periods, he shall not seek to make up time for that missed visit.

(b)        The Respondent shall provide the claimant with not less than seven days’ notice of whether he elects to exercise parenting time during a work rest period. The Respondent may elect to exercise parenting time in a location other than Chetwynd and in that case the Respondent shall arrange to fly with [K.K.] from Kelowna to any destination that is further than four hours  by highway travel from Kelowna.

(c)        The cost of all travel for the Respondent’s parenting time shall be on the Respondent’s account.

7.         The parties will be at liberty to apply for an Order fixing the parties’ parenting time after the Claimant and [K.K.] relocate to Chetwynd.

[2]           Ms. McIntosh contends that the trial judge erred in principle in making an order requiring her to relocate, particularly since he had made findings that it was in the daughter’s best interests that she should be primarily in her mother’s care. This finding it is said foreclosed the possibility of ordering that the child be returned to Chetwynd because such an order required in consequence an order compelling the mother to relocate from Kelowna. Such an order is, Ms. McIntosh contends available, if at all, only in the rarest of cases.

[3]           Mr. Kaulbach, for his part, argues that the order resulted from a careful analysis of the daughter’s best interests, the only relevant consideration, and the Court should defer to the conclusions of the trial judge since his order is not based on any reversible error in principle. He argues that in substance, if not in form, the decision is no different from others which have the effect, in practice, of restricting the mobility of parents and that the court should view the case as really about returning the daughter to the community in which she was born and which the mother left when the marriage failed.

[4]           At the outset, I observe that the order under appeal was made under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). The relevant section, accordingly, is s. 16 which deals with custody and access, although the order under appeal does not use the language of the section. Given that the order was made under the Divorce Act, I view the order as awarding custody to Ms. McIntosh with access to Mr. Kaulbach and will refer to the order in those terms.

[5]           The trial judge described the background to the relationship between the parties:

[2]        Ms. M is 33 years old. She holds a bachelor of science and a master’s degree in mathematics. She also holds a teaching certificate. She obtained her teaching qualification in 2007. By then her parents had settled in Penticton. She wanted to get a teaching job in the Okanagan, but none were to be had there. An advisor recommended that Ms. M take a full-time teaching job in some other district. His idea was for Ms. M to acquire some teaching experience which could perhaps enhance her chance of getting a job later in the Okanagan. Ms. M acted on that advice. She took a job teaching mathematics at the Chetwynd high school. She arrived in Chetwynd in September 2008.

[3]        Ms. M was no stranger to the central and northern interior of B.C.: while she was growing up her family had lived in Golden, Kitimat, Tumbler Ridge, and Prince George.

[4]        Mr. K is 37 years old. He grew up in Inuvik, N.W.T. By 2008, Mr. K had earned a trade certificate as a journeyman commercial electrician. He lived in Campbell River and commuted to his job in Fort St. John. Mr. K parents and younger sister lived in Chetwynd. Mr. K and Ms. M met at a Halloween party in 2008. By January 2009 they were dating. By September 2009 they had moved in together in Chetwynd. Ms. M worked at her job as a teacher at the Chetwynd high school and Mr. K commuted to his electrician’s job in Ft. St. John.

[5]        The partied decided to marry. After a year of planning, they married one another on July 21, 2011. They planned to have a child together. They did not, however, wish to remain in Chetwynd forever. They had a mutual desire to raise their child elsewhere. Mr. K favoured Vancouver Island while Ms. M preferred the Okanagan.

[6]           In the spring of 2012, their daughter was born. At the time of her birth, the parties’ relationship was already strained. The trial judge found that Mr. Kaulbach “has had a temper since childhood and he knows it”: para. 20. Mr. Kaulbach is opinionated and does not like to be disagreed with or interrupted. He has temper tantrums and loses control over his emotions. On several occasions he “stormed out of the house in a rage and disappeared for a day or so”: para. 21.

[7]           Ms. McIntosh had a difficult pregnancy and birth, followed by problems with breastfeeding her daughter. At the same time, Mr. Kaulbach’s angry outbursts increased in frequency and severity. Ms. McIntosh began to worry for her safety. On July 1, 2012, she left the family home and moved in with her mother in Penticton, taking their daughter with her.

[8]           Prior to the parties’ separation, Mr. Kaulbach worked as a planner and earned roughly $90,000 per year. He quit his job following the parties’ separation and was unemployed for four to five months. At the time of trial, he had secured employment as an electrician at a mine an hour outside of Chetwynd, earning approximately $95,000 per year. He worked long hours, 14 days on then 14 days off.

[9]           Ms. McIntosh had taught mathematics in Chetwynd, earning roughly $69,000 per year. After moving to Penticton, she was hired by an institute of higher education in Kelowna, where she now lives, as a coordinator of teaching assistant services. This position pays roughly $40,000 per year but Ms. McIntosh hopes to secure a teaching position at the college. Her earnings as an instructor would be comparable to what she would have made as a teacher in Chetwynd.

[10]        In August 2013, Ms. McIntosh filed for divorce. At this point, she was living in Kelowna with the couple’s daughter, who was just over a year old. Mr. Kaulbach filed a counterclaim alleging that Ms. McIntosh “left the matrimonial home under false pretenses”. He sought to have Ms. McIntosh “ordered to return to reside in Chetwynd” where the parties could have joint custody and guardianship over their daughter. The matter went to trial in January 2014.

[11]        The trial judge correctly identified his task as being to determine a custody arrangement that would be in the daughter’s best interests. At the outset of his analysis he stated:

[38]      I have rejected the concept of KK being in Mr. K’s day-to-day care in Chetwynd. I have come to that conclusion because Mr. K’s schedule completely forecloses his capacity to attend to KK’s needs on the days that he works at his mine.

[12]        The judge considered there to be only three “realistic” parenting regimes and in all of them Ms. McIntosh would have custody of the daughter. The first option would be to maintain the status quo, with the daughter and Ms. McIntosh remaining in Kelowna. The second option would be to have Mr. Kaulbach move to Kelowna, and the third would be to order that Ms. McIntosh relocate to Chetwynd. His decision that Ms. McIntosh should have custody of the daughter was based on the following findings of fact:

[51]      I find that of the two parties, Ms. M is the one that is better able to deal with setbacks, challenging behavior or situations, and the vicissitudes of life. For that reason I find that KK is less likely to be subjected to temper tantrums, yelling, shouting, door slamming, and stomping out of the house if she is primarily in the care of her mother.

[13]        He went on to state:

[52]      The real conundrum in this case is not, therefore, with whom KK should primarily reside. Her mother is best able to carry out parenting responsibilities and is less likely to expose KK to negative acting out behaviors. KK should be primarily in Ms. M’s care. The difficultly in this case is whether KK, and by necessary extension Ms. M, should be ordered to live in Chetwynd. [Emphasis added.]

[14]        The judge assessed the three parenting options from the perspective of the daughter’s best interests. He concluded that it would be in her best interests if both her parents lived in Chetwynd. This decision was based on the trial judge’s view that Mr. Kaulbach would have a more meaningful relationship with his daughter if they lived in closer proximity, and that the parties would be able to maximize their earning potential in Chetwynd: para. 60. He granted Ms. McIntosh custody but ordered that the daughter “will take up residence in Chetwynd, B.C. and the Claimant [Ms. McIntosh] and [K.K.] shall both relocate to Chetwynd”. The order is to take effect on September 1, 2014.

Issues on Appeal

[15]        Ms. McIntosh appeals the order requiring her to move. She argues that once the trial judge concluded that she should have custody, it was not open to him to order her to relocate. In the alternative, she seeks to adduce new evidence to demonstrate that the economic rationale for requiring her to move no longer exists.

[16]        I agree that the trial judge erred in ordering Ms. McIntosh to relocate to Chetwynd. The order is inconsistent with the principles elaborated in Gordon v. Goertz, [1996] 2 S.C.R. 27, and with authority from this Court. Respectfully, I must agree with Ms. McIntosh that the trial judge’s order rested on an error in principle. While a court may prohibit a parent from relocating a child, or a court may make a custody order that indirectly limits a parent’s mobility, “a court cannot indenture an individual to a community”: Falvai v. Falvai, 2008 BCCA 503 at para. 40. Moreover, the correct starting point, according to Gordon v. Goertz, is that Ms. McIntosh’s decision to reside in Kelowna is entitled to respect.

[17]        As stated by this Court in Nunweiler v. Nunweiler, 2000 BCCA 300 at para. 28, the framework provided in Gordon requires the courts to approach “the issue of a relocation of residence from a perspective of respect for a parent’s decision to live and work where he or she chooses, barring an improper motive.” In that case custody had been awarded to a father unless the mother returned to the Fort St. John area from McBride. Madam Justice Saunders had this to say about the order and the error underlying it:

[40]      On its face, the order prefers Mr. Nunweiler as custodial parent; it awards sole custody to him unless Ms. Charlton returns to the Fort St. John area, and then she only shares custody of Chelsea. Yet the order, while apparently preferring Mr. Nunweiler as custodial parent, establishes Ms. Charlton’s home as Chelsea’s primary residence in the event Ms. Charlton moves back to Fort St. John, and provides only an average amount of access for the respondent. In this provision, the decision appears to recognize that it is in Chelsea’s best interest to spend most of her time under the care of Ms. Charlton.

[41]      I conclude that the order, while acknowledging that Chelsea should reside with her mother, seeks to determine the appellant’s residence through the device of the alternate order, thus facilitating contact with both parents. In saying this, I note the trial judge made the order with foreknowledge acquired from the question he posed to Ms. Charlton at the end of her testimony.

[42]      Did the trial judge, in this order, apply the correct considerations to his custody determination? In my view, he did not. While he found an improper motive for the move, that conclusion was not supported by either the evidence or the thrust of the examinations. In the absence of an improper motive, the discussion should have started, according to Gordon v. Goertz, from a point of view respectful of Ms. Charlton’s decision to make a new home in McBride. As logical as it may be to many people that she should wish to reside in the Fort St. John area where she had roots, her choice to live elsewhere was entitled to respect in the absence of an improper motive, in the same manner as would the respondent’s decision to move should he choose to do so.

[18]        In S.S.L. v. J.W.W., 2010 BCCA 55 at para. 24, this Court set out four possible scenarios for a court to consider when one parent wishes to move with a child. S.S.L. differs from the facts at hand because, in that case, both parties had agreed they should have joint guardianship and joint custody: the dispute was over the children’s the primary residence. Both parents had been living in the Victoria area, but the mother wished to move to London, Ontario. This Court held that the decision before it should be approached as follows:

[24]      In my view, the court’s task in these joint parenting cases is to analyze the evidence in four possible scenarios, in this case, (i) primary residence with mother (London, Ontario); (ii) primary residence with father (Victoria, B.C.); (iii) shared parenting in Victoria; and (iv) shared parenting in London, but to do so knowing the court’s first task will be to determine which parent is to have primary residence. When the question of primary residence is evenly balanced and the court finds the best interests of the children require both parents to be in the same locale, then the court will need to choose between the shared parenting options offered by the parents, without presuming the current care-giving and residential arrangement is to be the preferred one.
[Emphasis added.]

[19]        The Court noted that, by approaching the question as to the best interest of the children by incorporating a parent’s decision to move, the framework “takes into account the court’s inability to order a parent to stay or move and the unfairness of preferring the obstinate over the more flexible”: para. 30.

[20]        Returning to the case at hand, in my opinion, the judge made an order that is inconsistent with the principles articulated in both S.S.L. and Falvai. More particularly, he committed the same error in principle as the judge had made in Nunweiler.

[21]        It is important to remember that the trial judge here dealt with the circumstances as they existed at the time of trial. The issue for the trial judge was first to determine, from the point of view of the child’s best interests, which parent should have custody of the daughter: Ms. McIntosh in Kelowna or Mr. Kaulbach in Chetwynd. If he had found that the daughter’s interests would be best served by a joint custody arrangement, then he would have had to decide the city in which that should take place. Moreover, he expressly rejected granting Mr. Kaulbach custody. This was due to the impracticalities of his work schedule as well as his temperament. Once he decided Ms. McIntosh should have sole custody, he erred in failing to respect Ms. McIntosh’s decision to choose to live in Kelowna or, in the words of S.S.L. his inability to order a parent to move or stay.

[22]        Having made the decision that it was in the daughter’s best interests that the mother have custody and that the father would not have custody, it was not open to the judge to order the mother to relocate to Chetwynd. In my view, such an order is substantively different from orders, for example, about where a child will live which may indirectly affect the mobility rights of a parent who may have to choose whether to give up a possible move in order to remain close to a child.

[23]        As I have said, the judge dealt with the circumstances as they existed at the time of trial. By that time mother and daughter lived in Kelowna. The trial judgment did not deal with the case on the basis that the real issue was whether the daughter should be ordered to be returned to Chetwynd. The judge did not deal with the case on the basis that the daughter’s removal from Chetwynd was improper or driven by improper motives on the part of the mother. In other words, the judge’s decision did not turn on the proposition that the mother ought not to have left Chetwynd. There are no findings of fact that would allow us to view the case as one that in substance involved remedying an improper removal of a child from a community.

[24]        I note that the trial judge’s decision to order Ms. McIntosh to move was based in part on a desire for Mr. Kaulbach to live in the same community as his daughter. While ss. 16(10) and 17(9) of the Divorce Act stipulate that a child should have maximum contact with both parents, this is an important but not an absolute requirement. As the Court stated in Gordon:

[25]      The reduction of beneficial contact between the child and the access parent does not always dictate a change of custody or an order which restricts moving the child. If the child’s needs are likely to be best served by remaining with the custodial parent, and this consideration offsets the loss or reduction in contact with the access parent, then the judge should not vary custody and permit the move. This said, the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child.

[25]        It is clear the trial judge found that the daughter’s interests would be best served if she continued to be in her mother’s custody. Ms. McIntosh’s decision to live in Kelowna is entitled to respect, as there is no evidence of an improper motive.

[26]        Given how I would dispose of this appeal, it is unnecessary for me to consider the motion to admit new evidence on appeal. I observe, however, that that evidence, which in large measure goes to factual assumptions or predictions about employment in the Chetwynd area, is the kind of evidence that would more appropriately form the basis for a variation application in the Supreme Court.

Conclusion

[27]        I would allow the appeal. I would set aside paragraphs 3 and 5 of the order. I would amend paragraph 2 of the order to read “The Claimant is awarded custody of the child of the marriage, …, born May 18, 2012 (“…”) with access to the Respondent”. I would amend paragraph 6 of the order to delete the phrase “While K’s relocation is suspended” and substitute the phrase, “Pending further application to the Court, access shall be as follows:”

[28]        The appellant seeks in addition to the costs in this Court that would follow a successful appeal, her costs of trial in the court below. I would not accede to that relief.

[29]        BENNETT J.A.:  I agree.

[30]        GOEPEL J.A.:  I agree.

[31]        BENNETT J.A.:  The appeal is allowed in the terms framed by Mr. Justice Harris. The application to adduce fresh evidence is dismissed. The appellant will have her costs in this Court but there will be no interference with the costs of the trial court.

“The Honourable Mr. Justice Harris”