B.C. Court of Appeal overturns divorce ruling that forced mother to move

A 33-year-old Kelowna teacher will not have to return to Chetwynd, where she had lived during a short marriage, to ensure her ex-husband has access to the couple’s daughter, the B.C. Court of Appeal has ruled.

The decision overturns a B.C. Supreme Court ruling that gave Heather McIntosh custody of the child, but ruled it was in the child’s best interest for her to return to Chetwynd — where her ex-husband Stephen Kaulbach resides — so he could have easier access to their child. The girl is now two years old.

The B.C. Supreme Court judge had also noted that both parents could maximize their earnings working in Chetwynd.

The woman had been earning $69,000 a year working as a math teacher in Chetwynd, a figure that dropped to $40,000 a year when she moved to the Okanagan.

The ex-husband was working as a mine electrician at the time of the earlier trial, earning $95,000 a year working two weeks on and two weeks off.

McIntosh had argued that since the judge initially ruled she should have custody, it was not open to him to order her to relocate.

The Court of Appeal agreed. “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.’ ”

The Court of Appeal also ruled the father can still have parenting time with his daughter for five consecutive nights during each of his 14-day rest periods from work. But he must travel by air and is not at liberty to take her to Chetwynd from Kelowna, or return by road.

In addition, if he fails to take up his parenting time during one of his rest periods from work, he cannot make up for that missed visit.

He must also give the mother seven days notice on whether he plans to exercise his parenting time during one of his work rest periods.

The cost of all travel to see his daughter is his responsibility, the B.C. Court of Appeal ruled.

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