Melnychuk v. Balfour

Melnychuk v. Balfour

The court set aside the June 8, 2015 final order except as to the divorce because the Notice of Family Claim did not give formal notice of the relocation claim and the respondent had not been heard; applying the Miracle Feeds factors the respondent established sufficient grounds to set aside for a substantive...

Source-derived case information.

Citation
2016 BCSC 330
Parties
Claimant: Maggie Melnychuk; Respondent: Michael Herbert Balfour
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
25 February 2016
Procedural Posture
Divorce and Family Law (custody/relocation) / Application to Set Aside R.10 10 Final Order; Trial on Affidavits and Testimony on Merits
Outcome
June 8, 2015 order set aside except as to divorce; after hearing, claimant permitted to relocate to Cranbrook and child to remain in joint custody with day-to-day care to claimant in Cranbrook; respondent's application to return child to Golden dismissed; no costs ordered.
Legal Topics
Setting Aside Default/final Order, Relocation/mobility of Child, Best Interests of the Child, Rule 4 3/rule 10 10 Procedure
Source Language
english
Family Law Divorce Law Procedure Setting Aside Default/final Order Relocation/mobility of Child Best Interests of the Child Rule 4 3/rule 10 10 Procedure

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Parties

Maggie Melnychuk

Claimant

Michael Herbert Balfour

Respondent

Procedural Posture

Divorce and Family Law (custody/relocation) / Application to Set Aside R.10 10 Final Order; Trial on Affidavits and Testimony on Merits

Legal Issues

  1. 1 Whether a R.10-10 final order made effectively without notice can be set aside
  2. 2 Whether the Notice of Family Claim provided adequate notice of a mobility/relocation claim
  3. 3 Whether the proposed relocation to Cranbrook is in the child's best interests under the Divorce Act and Gordon v. Goertz

Ratio Decidendi

The court set aside the June 8, 2015 final order except as to the divorce because the Notice of Family Claim did not give formal notice of the relocation claim and the respondent had not been heard; applying the Miracle Feeds factors the respondent established sufficient grounds to set aside for a substantive hearing; on the merits, applying Divorce Act s.16 and Gordon v. Goertz, the relocation to Cranbrook was found to be in the child's best interests due to substantially improved earning capacity for the claimant and the respondent's ability to maintain generous contact, therefore the child remains in joint custody with day-to-day care to the claimant in Cranbrook and the respondent's...

Court Disposition

June 8, 2015 order set aside except as to divorce; after hearing, claimant permitted to relocate to Cranbrook and child to remain in joint custody with day-to-day care to claimant in Cranbrook; respondent's application to return child to Golden dismissed; no costs ordered.

Orders

  • Set aside the June 8, 2015 final order except as to the divorce decree
  • Child to remain in joint custody of parents with day-to-day care to the claimant in Cranbrook