Orring v. Orring, 2006 BCCA 523

• Judge: Finch, C.J.B.C., Rowles and Thackray, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 22, 2006
• Jurisdiction: British Columbia
• Citations: 2006 BCCA 523;(2006), 232 B.C.A.C. 232 (CA)

Orring v. Orring (2006), 232 B.C.A.C. 232 (CA);

    385 W.A.C. 232

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. DE.001

Audra Elvira Orring, also known as Audrey Elvira Orring (appellant/plaintiff) v. Kai Orring (respondent/defendant)

(CA34270; 2006 BCCA 523)

Indexed As: Orring v. Orring

British Columbia Court of Appeal

Finch, C.J.B.C., Rowles and Thackray, JJ.A.

November 22, 2006.

Summary:

The British Columbia Supreme Court, in a judgment reported 2006 BCSC 990, allowed a father's request for an order that the mother, who had custody of their 12 and eight year old sons, be restrained from moving from Kelowna to Bowen Island or any other location in British Columbia. The mother appealed.

The British Columbia Court of Appeal allowed the appeal and substituted an order permitting the mother to relocate to Bowen Island with the children.

Family Law - Topic 1865

Custody and access - Duties and rights of custodian - To remove child from jurisdiction - The trial judge granted an order restraining the custodial parent (mother) of two boys from moving from Kelowna to Bowen Island with the children, finding that she failed to show with certainty that the move was in the best interests of the children - The father, a financially secure businessman, lived in his native Norway, but rented a residence in Kelowna from which to exercise his access - The mother's income was limited to $3,500 per month child support, plus her share of matrimonial property - The mother remarried (after the order) and wished to relocate to Bowen Island with her new husband - The British Columbia Court of Appeal set aside the order and substituted an order permitting the relocation - Although the mother conceded a material change in circumstances, that concession was questionable where there was no basis to vary the custody order and the move would not materially alter the father's access - The decision to relocate was not motivated by anything other than for reasonable family and economic reasons - Since the father's access would be unaffected, there was no reason for the trial judge to question the mother's wish to "get on with her life" and place an onus on her to show with certainty that the relocation would be in the best interests of the children - The trial judge failed to give sufficient weight to the mother's views on the potential beneficial effect of the move on the children.

Cases Noticed:

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 4].

Karpodinis v. Kantas (2006), 227 B.C.A.C. 192; 374 W.A.C. 192; 55 B.C.L.R.(4th) 90; 2006 BCCA 272, refd to. [para. 41].

Lowcay v. Lowcay (2000), 142 B.C.A.C. 202; 233 W.A.C. 202; 8 R.F.L.(5th) 313; 2000 BCCA 447, refd to. [para. 41].

Barnetson v. Cook, [2005] B.C.T.C. 913; 18 R.F.L.(6th) 254; 2005 BCSC 913, refd to. [para. 51].

Ganson v. Ganson, [2003] B.C.T.C. Uned. 205; 121 A.C.W.S.(3d) 1097; 2003 BCSC 544, refd to. [para. 55].

Counsel:

L.A. Kahn, for the appellant;

B.M. Young, Q.C., and T. Brice-Nicolson, for the respondent.

This appeal was heard on November 8, 2006, at Vancouver, B.C., before Finch, C.J.B.C., Rowles and Thackray, JJ.A., of the British Columbia Court of Appeal.

On November 22, 2006, Rowles, J.A., delivered the following judgment for the Court of Appeal.