2014 NBCA 52, 2014 NBCA 52

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 55-14-CA J.H. APPELLANT J.H. APPELANT - and - - et - T.H. RESPONDENT T.H. INTIMÉE J.H. v. T.H., 2014 NBCA 52 J.H. c.

T.H., 2014 NBCA 52 CORAM: The Honourable Justice Larlee The Honourable Justice Deschênes The Honourable Justice Richard CORAM : l’honorable juge Larlee l’honorable juge Deschênes l’honorable juge Richard Appeal from a decision of the Court of Queen’s Bench: April 14, 2014 Appel d’une décision de la Cour du Banc de la Reine : le 14 avril 2014 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: Court of Appeal: [2014] N.B.J.

No. 142 Procédures préliminaires ou accessoires : Cour d’appel : [2014] A.N.-B. n o 142 Appeal heard: June 23, 2014 Appel entendu : le 23 juin 2014 Judgment rendered: June 23, 2014 Jugement rendu : le 23 juin 2014

Reasons for judgment by: The Honourable Justice Larlee Motifs de jugement : l’honorable juge Larlee Concurred in by: The Honourable Justice Deschênes The Honourable Justice Richard Souscrivent aux motifs : l’honorable juge Deschênes l’honorable juge Richard Counsel at hearing: For the appellant: Terence R. Connelly For the respondent: Martin J. Siscoe Avocats à l’audience : Pour l’appelant : Terence R. Connelly Pour l’intimée : Martin J. Siscoe THE COURT The appeal is allowed and the order of the motion judge dated April 14, 2014, is varied, all without costs.

The judgment of the Court was delivered by LARLEE, J.A. (Orally) [ 1 ] The parties married on October 9, 2004, and separated on October 13, 2013. There are three children of the marriage: L.H., born March 2008, A.H., born April 2010, and J.R.H., the respondent mother’s daughter from a previous relationship, born September 1998, and adopted by the appellant father in 2005. On three occasions, a judge of the Court of Queen’s Bench has heard an interim motion pursuant to the Family Services Act , S.N.B. 1980, c. F-2.2, with respect to custody and access of the two younger children.

When the matter was first heard, on December 3, 2013, the father was not present at the hearing. Despite this, on the basis of the evidence, the judge granted the father liberal and generous access. On January 13, 2014, the judge issued a second interim order granting the parties interim joint custody of the children. The mother was awarded primary care and residence of the children but the father was granted liberal and generous access to them between the hours of 10:00 a.m. and 8:00 p.m. each day. On April 3, 2014, the judge heard the third motion and rendered an order on April, 14, 2014.

In this last order, the parties were granted joint custody of the two younger children. However, the mother was awarded primary care and residence of the children and the father was granted access every second weekend.

[2] With leave, the father appeals that order. He relies on five grounds, stating the motion judgeerred in law: (1) by giving insufficient reasons for his decision to reduce the access of the appellant to every second weekend; (2) by misapplying the principles established by the Supreme Court of Canada in Young v. Young, (SCC), [1993] 4S.C.R. 3, [1993] S.C.J. No. 112 (QL) pertaining to the Law and to his

interpretation of the evidence, in reducing the access of theAppellant to every second weekend; (3) by reducing the access of the Appellant to every second weekend on the basis of affidavit evidence which contained a substantialdispute of facts; (4) by not considering evidence which was relevant and admissible; in particular the text messages that were attached to the affidavitof the Appellant sworn to on March 26, 2014; and (5) by not considering evidence which was relevant and admissible, in particular, examples of the Respondent denying access to thechildren, disrespecting Court Orders in regard to access, and abusing her primary caregiver status. [3] The applicable standard of review in a custody case is set out in P.R.H. v.

M.E.L., 2009 NBCA18, 343 N.B.R. (2d) 100, at para. 8: intervention by this Court requires that there has been a material error, a serious misapprehension ofthe evidence, or an error of law. [4] In my view, the first ground of appeal has merit and by itself would be sufficient for this Courtto interfere. It alleges the motion judge gave insufficient reasons for his decision. The law with respect to the sufficiency of reasons in adecision from the Family Division of the Court of Queen’s Bench is examined in P.R.H. v.

M.E.L.: In Van de Perre, Bastarache J. noted that in preparing reasons in custody cases, a trial judge is expected to consider each of the factorsoutlined in Gordon v. Goertz. However, he went on to state it would be unreasonable to require a judge to discuss every piece ofevidence when explaining his or her reasons. Thus, while a trial judge is not compelled by Van de Perre to discuss each of the factorsenumerated in Gordon v. Goertz when evaluating the best interests of the child in a custody or mobility case, it nevertheless remainsprudent to refer to the relevant criteria. In Karpodinis v.

Kantas (2006) 227 B.C.A.C. 192, [2006] B.C.J. No. 1209 (QL), 2006 BCCA272 at para. 26, the Court observed that mobility cases vary infinitely in their fact patterns and no case can provide a complete templatefor another. Furthermore, in custody cases, wherein the governing consideration is the best interests of the child, the judicial inquiry isheavily fact-dependent and the decision is ultimately discretionary, the scope of appellate review is strictly limited. An appellate courtwill only interfere if the trial judge acted on some wrong principle or significantly misapprehended the evidence. In Young v.

Young (2003), (ON CA), 63 O.R. (3d) 112 (C.A.), [2003] O.J. No. 67 (QL), Laskin J.A. cautioned againstthe use of conclusory reasons in family law cases. He held that the three main rationales for reasoned decisions from R. v. Sheppard,[2002] 1 S.C.R. 869, [2002] S.C.J. No. 30 (QL), 2002 SCC 26, were also applicable in the family law context. These three rationales are:(1) public confidence in the administration of the justice system; (2) the importance of telling the losing party the reasons for havinglost; and (3) making the right of appeal meaningful.

The importance of sufficient reasons has similarly been affirmed by this Court ofAppeal in A.M.K.H. v. K.A.M. (2003), 259 N.B.R. (2d) 291, [2003] N.B.J. No. 171 (QL), 2003 NBCA 33 and Blanchard v. Légère[2009] N.B.J. No. 2 (QL), 2009 NBCA 2. See also Petrowski v. Waskul (2003), 173 Man.R. (2d) 237, [2003] M.J. No. 151 (QL), 2003MBCA 65 at para. 13. In R. v. Walker, [2008] S.C.J. No. 34 (QL), 2008 SCC 34, the Court emphasized that the parties are entitled to know why the judgereached his or her decision, and that reasons must be sufficient to allow for appellate review.

However, an appellate court is not tointervene merely because a trial court did a poor job in expressing itself. The Court held that reasons are sufficient if they are responsiveto the live issues of the case and the parties' key arguments. Sufficiency of reasons must be measured by the degree to which theyrespond to the substance of what was in issue. The live issues of the case must be dealt with, and the basis for the ruling must be clear. The Supreme Court's most recent pronouncement concerning the issue of adequate reasons for judgment is found in the decision of R. v.R.E.M., [2008] 3 S.C.R. 3, [2008] S.C.J.

No. 52 (QL), 2008 SCC 51, in which McLachlin C.J.C. advocates a functional context-specificapproach to the consideration of adequacy of reasons. Courts of Appeal which are considering the sufficiency of reasons should readthem as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which

they are delivered. The function of the reasons is to tell the affected parties why the decision was made, to provide public accountability and to permit effective appellate review. The reasons need to show the path the judge followed from the evidence to the factual findings to the legal conclusions . This approach was followed by this Court in New Brunswick (Minister of Family and Community Services) v. T.L.M. (Litigation guardian of) , [2009] N.B.J.

No. 19 (QL) , 2009 NBCA 8 , in which Richard J.A. discusses the question of sufficiency of reasons to be applied in child protection matters. [paras. 10-13] [Emphasis Added] [ 5 ] In the present case, the reasons are insufficient by their total absence. There is no discernable path leading from the evidence to factual findings and then to legal conclusions. There is no indication the judge applied the proper criteria and decided the matter on the basis of the “best interests of the children”.

There is no explanation as to why the father, who, before the separation, had for some time been the children’s primary caregiver, is now relegated to seeing his children only every second weekend. [ 6 ] The motion judge was required to review the evidence and then make a determination with respect to the “best interests of the children” regarding their custody and access in accordance with the criteria set out in the Act .

Instead of doing that, he asked the lawyers for the parties to file draft orders which represented their positions and then he fashioned an interim custody and access order, giving no reasons for why the father’s access to the children was drastically reduced from daily access to access every second weekend. Since we have no means to determine the path that led from this motion to the conclusion, we cannot assess the judge’s “decision” on the proper standard of review.

We cannot discern whether his findings of fact might have been the result of any palpable and overriding error or whether he applied the correct legal test. Considering the drastic change in the access provision between the judge’s second and third orders, the context of the entire case (including the arguments) does not provide us sufficient basis to discern the path followed. In other words, the total absence of reasons does not allow for meaningful appellate review. [ 7 ] Thus, the appeal would have to be allowed because the motion judge did not give reasons for his decision.

The same result was reached due to insufficiency of reasons in Chiasson v. Doucet , 2014 NBCA 49 , [2014] N.B.J. No. 198 (QL) . [ 8 ] In my view, the fourth ground of appeal also has merit. During the hearing on April 3, 2014, the motion judge openly informed the parties that he had not read some of the evidence. In particular, there were text messages attached to the father’s affidavit that the father claimed demonstrated the mother’s open disobedience of the Court’s second order.

The judge stated “Oh, I don’t even read the text messages”, explaining that they often do not make any sense or may not be written in proper English, and adding “I have no time for text messages”. This is an error of law. While a motion judge may, for valid reasons, not place much weight on certain evidence that is properly before him, he cannot refuse to even look at the evidence, especially when counsel is drawing his attention to it. [ 9 ] On the basis of these two grounds alone, I would allow the appeal and set aside the order of the motion judge dated April 14, 2014. This raises the matter of the relief.

Normally, I would return the matter to the Court of Queen’s Bench for a judge to properly assess the evidence and make a proper determination of the matter on application of the correct legal criteria. However, the parties have now been three times before the Court of Queen’s Bench and twice before this Court: once for the leave application and once for the hearing of the appeal. They inform us that the trial of the main application will only commence on March 31, 2015. [ 10 ] In 2013 the New Brunswick Rules of Court were amended to incorporate the principle of proportionality.

Rule 1.02.1 provides: 1.02.1 Proportionality In applying these rules, the court shall make orders and give directions that are proportionate to what is at stake in the proceeding and the importance and complexity of the issues. 1.02.1 Proportionnalité Lorsqu’elle applique les présentes règles, la cour rend des ordonnances et donne des directives qui sont proportionnées aux enjeux de l’instance ainsi qu’à l’importance et à la complexité des questions en litige.

See Kovachis v. Kovachis, 2013 ONCA 663, [2013] O.J. No. 4954 (QL), at para. 34. [11] Because of the parties’ numerous appearances before the Court of Queen’s Bench and this Courtresulting in cost and delay, and relying on the proportionality rule, I consider myself able, on the basis of the evidence adduced in theCourt of Queen’s Bench, which is now all before us, to make the determination that should have been made in the first instance. [12] I note that it is generally unusual for a single judge of this Court to grant leave to appeal from aninterim custody and access order. In Legault v.

Rattray, (NB CA), [2003] N.B.J. No. 442 (C.A.) (QL), Richard J.Aexplained the purpose of an interim order: The purpose of an interim order is to cover a short period of time between the making of the order and trial. By necessity, the order ismade on limited evidence: usually by affidavit. It is designed to "provide a reasonably acceptable solution to a difficult problem untiltrial," to use the words of Zuber J.A. in Sypher v. Sypher, (ON CA), [1986] O.J. No. 536, online: QL (OJ) (Ont. C.A.),adopted by Rice J.A. of this Court in Wentzell v. Wentzell, [1999] N.B.J.

No. 25, online: QL (NBJ), which case was in turn relied upon byRobertson J.A. in Piercy v. Foreman, [2003] N.B.J. No. 76, online: QL (NBJ). In the Sypher case, Zuber J.A. reasoned that "an appellatecourt should not interfere with an interim order unless it is demonstrated that the interim order is clearly wrong and exceeds the wideambit of reasonable solutions that are available on a

summary interim proceeding." I agree. [para. 4] [13] This Court adopted that passage in D.A. v. J.R., 2012 NBCA 38, 387 N.B.R. (2d) 203, at para. 7.However, in this case, leave to appeal was justified. In my view, the father has demonstrated that the interim order exceeds the wideambit of reasonable solutions available on the evidence. The evidence demonstrated two loving parents, both capable of caring for theirchildren. This is why the father was given liberal and generous access the first time.

The second order resulted from the parties not beingable to agree to the access periods; thus, the motion judge felt an obligation to define them. Still, he gave the father very liberal andgenerous access.

In some instances, I might have simply allowed the appeal and reverted to the previous order, but in this case bothparties agree that the order of January 13, 2014, is illogical for it provides that the access parent will have the physical custody of thechildren more than the primary caregiver, and relegates the primary caregiver to having access to the children generally only when theyare asleep. [14] Considering all the evidence that was before the motion judge and that is now before us, and thecriteria pursuant to which a Court is to assess the “best interests of the children”, as set out in s. 1 of the Act, I find there is no reason whyat this stage the parents cannot equally share custody of and access to the children.

In my view, such an order would benefit the mental,emotional and physical health of the children; it would be less disruptive of the children’s sense of continuity since they are used tospending time with both parents and would respect the love, affection and ties that exist between the children and both their parents.These factors weigh heavily toward an order that would maximize access to both parents. No other factor of relevance militates againstsuch an outcome. [15] Both parents have demonstrated an inability to set their own differences aside and cooperate forthe execution of Court orders.

But for this, I might have crafted an order that would have allowed them to cooperate in determining thedates and times each would have access to the children. In the circumstances, I think it best to make the determination myself and leavethem an opportunity to vary it by mutual consent, failing which the letter of the order will have to be followed. [16] For these reasons, I would allow the appeal and vary the motion judge’s order of January 13,2014, by deleting paragraphs 1 (

a) and (

b) and, in their stead, order as follows: 1. Under the Family Services Act, S.N.B. 1980, ch. F-2.2, until further order: (

a) Pursuant to Section 129(2), the mother, T.H., and the father, J.H., shall have joint custody of the children of the marriage;namely L.H., born March 20th, 2008, and A.H., born April 3rd , 2010; (

b) Pursuant to Section 129(3), the father, J.H., shall have the care of the children of the marriage every second week, beginningon Friday, June 27, 2014, at 6 PM and ending Friday, July 4, 2014, at 6 PM, and every second week thereafter commencing at 6 PM theFriday of that week and ending at 6 PM the following Friday, and the mother, T.H., shall have the care of the children at all other times.The following conditions shall be observed during the access periods: (

i) the father will pick up and return the children at the mother’s residence at the scheduled times; (ii) during the week when the children are in the care of the other parent, the father or mother, as the case may be, can havereasonable telephone access to the children; and

(iii) each parent will take the children to their scheduled extracurricular activities during the week they have care of the children; (a.1) the access provisions of this order can be varied by mutual consent of the parties; (a.2) in the event of a material change of circumstances, either party may on motion apply to the Court of Queen’s Bench, Family Division, for a variation, in which case the Court will apply the governing legal principles and determine the motion as if this order had been an interim order of the Court of Queen’s Bench. [ 17 ] No costs were requested on this appeal and therefore I would not award any. ____________________________________ M.E.L.

LARLEE, J.A. WE CONCUR: ____________________________________ ALEXANDRE DESCHÊNES, J.A. _____________________________________ J.C. MARC RICHARD, J.A.