R. v. J.D.M., 2011 NBCA 57

COURT OF APPEAL OF NEW BRUNSWICK 172-10-CA N.E.R. (Respondent) APPELLANT - and - J.D.M. (Applicant) RESPONDENT N.E.R. (Intimé

e) APPELANTE - et - J.D.M. (Requérant) INTIMÉ N.E.R. v. J.D.M., 2011 NBCA 57 N.E.R. c.

J.D.M., 2011 NBCA 57 CORAM: The Honourable Justice Richard The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Richard L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: November 29, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 29 novembre 2010 History of the Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard and judgment rendered: June 22, 2011 Appel entendu et jugement rendu : Le 22 juin 2011 Reasons delivered: September 22, 2011 Motifs déposés : Le 22 septembre 2011

Reasons for judgment: The Honourable Justice Quigg Motifs de jugement : L’honorable juge Quigg Concurred in by: The Honourable Justice Richard The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Richard L’honorable juge Green Counsel at hearing: For the appellant: Patrick E. Hurley, Q.C. For the respondent: David A. Estey Avocats à l’audience : Pour l’appelante : Patrick E. Hurley, c.r. Pour l’intimé : David A. Estey THE COURT The appeal is allowed with costs of $2,500 payable by the respondent to the appellant.

The motion judge’s decision is set aside and the matter is remitted to a different judge of the Court of Queen’s Bench, Family Division, for a new hearing. LA COUR Accueille l’appel avec dépens de 2 500 $ que l’intimé devra verser à l’appelante. La décision du juge saisi de la motion est annulée et l’affaire est renvoyée en vue d’une audience devant un autre juge de la Cour du Banc de la Reine, Division de la famille. The judgment of the Court was delivered by QUIGG J.A. I.

Introduction [ 1 ] This is an appeal by the mother, N.E.R., from an unreported decision made pursuant to s. 17 of the Divorce Act , R.S.C. 1985, c. 3 (2 nd Supp.) and ss. 7 and 8 of the Federal Child Support Guidelines , SOR/97-175 varying legal custody, access and child support. The mother alleges that the motion judge erred in law: (1) by concluding there had been a material change in circumstances allowing him to vary the existing custody, access and child support; and (2) by varying the existing custody and access arrangement and child support payment solely on the basis of affidavit evidence.

On June 30, 2011, we allowed the appeal, set aside the motion judge’s decision and ordered a new hearing. We stated reasons for this decision would follow in due course. These are our reasons. II. Factual and Procedural Background

[ 2 ] The parties married in August 2003. There was one child of the marriage, born in April 2005. The parties separated in August 2005. Following their separation, the parties negotiated a Domestic Contract, wherein the issues of custody and access were agreed upon. Paragraphs 6(

a) and (

b) of the domestic contract state: 6. Custody and Access (

a) The parties shall have joint custody of the child of the marriage, R.J.M., born April 5, 2005, with the primary day to day care and control with the wife. The [father] shall have reasonable access to the child at all reasonable times upon prior reasonable notice with such times to be agreed upon between the parties. The parties agree that the access exercised by the [father] shall be in the wife’s home until further agreement. (

b) Once the wife returns to work, the parties have agreed that the [father] shall care for the child, R.J.M. in the wife’s home when the wife is working night shifts or weekends. [ 3 ] The custody and access arrangement was subsequently incorporated into and formed part of the Order for Corollary Relief to a divorce dated October 18, 2006. [ 4 ] By Notice of Motion, the father applied to the Court of Queen’s Bench, Family Division, citing s. 17 of the Divorce Act and ss. 7 and 8 of the Federal Child Support Guidelines for interim relief including, among other things: 2.

That access to the child of the marriage, namely R.J.M., born April 5, 2005, aged 5 be varied to be split custody [sic] or shared custody, pursuant to the Divorce Act ,

section 17; [ 5 ] The motion was heard by a judge of the Court of Queen’s Bench, Family Division, on November 23, 2010. The hearing proceeded strictly on the basis of affidavits filed with the court. There was no viva voce evidence nor cross examination of any witnesses with respect to the contents of the affidavits. Counsel for the parties filed pre-hearing briefs and presented oral arguments at the hearing of the motion. III.

Motion Judge’s Decision [ 6 ] On November 29, 2010 the motion judge issued an order which resulted in a de facto change of custody of R.J.M. from the above-described arrangement to the following: 1. The father will have the child with him during the 4 days that the mother is working. The mother will bring the child to the father the night before she starts day 1 of her

schedule and the child shall continue to stay with her father until the mother completes day 4 of her schedule. 2. Each parent will have the child during summer vacations for a minimum of three weeks. 3. Each parent will have the child during March Break alternating year to year. For 2011, the mother will have the Child. 4. The child will share equal time with her parents on her birthday, Easter and Thanksgiving. 5. At Christmas, the child shall be with her mother Christmas Eve, until 4 p.m. Christmas day; with her father, from 4 p.m. Christmas day and will spend Boxing Day with him.

6. The respondent will no longer pay child support; each parent shall pay special expenses on a 50/50 basis. […] IV.

Issues [7] The mother submits that in the decision of November 23, 2010, the motion judge erred in law in the followingrespects: • In concluding that the Respondent had proven that there had been a material change in circumstances requiring a variation of theexisting custody, access and child support; and • By varying the existing order for custody, access and child support on the basis of affidavit evidence only. [8] An added complication in this case is that the motion judge failed to give sufficient reasons for his decision.This failure makes it impossible to determine what factors the motion judge considered in making his determination and whether he evenconsidered the two-part test set out in Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27, [1996] S.C.J. No. 52 (QL).Furthermore, the motion judge failed to provide any analysis whatsoever as to how he came to the conclusion that a change in thecustody arrangement was in the best interests of the child. V. Standard of Review [9] The standard of review for varying a motion judge’s decision on custody is discussed in P.R.H. v. M.E.L,2009 NBCA 18, 343 N.B.R. (2d) 100: The appropriate standard of review to be applied in an appeal of this nature is discussed in Van de Perre v. Edwards, [2001] 2 S.C.R.1014, [2001] S.C.J. No. 60 (QL), 2001 SCC 60.

The Supreme Court of Canada set out a standard of considerable deference for thedecisions of trial courts in cases of family law. Intervention on appeal requires that there have been a material error, a seriousmisapprehension of the evidence, or an error of law. A material error is further explained: As indicated in both Gordon and Hickey, (SCC), [1999] 2 S.C.R. 518, the approach to appellate review requires anindication of a material error. If there is an indication that the trial judge did not consider relevant factors or evidence, this might indicatethat he did not properly weigh all of the factors.

In such a case, an appellate court may review the evidence proffered at trial to determineif the trial judge ignored or misdirected himself with respect to relevant evidence. This being said, I repeat that omissions in the reasonswill not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. (para. 15) Speaking for the Court, Bastarache J. further clarified that "an omission is only a material error if it gives rise to the reasoned belief thatthe trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion" (para. 15).

See thisCourt's decisions on the application of the deferential standard: MacLean v. MacLean (2004), 274 N.B.R. (2d) 90, [2004] N.B.J. No. 363(QL), 2004 NBCA 75 at para. 18; J.P. v. R.R. (2004), 278 N.B.R. (2d) 351, [2004] N.B.J. No. 467 (QL), 2004 NBCA 98 at para. 27;Scott v. Scott (2004), 278 N.B.R. (2d) 61, [2004] N.B.J. No. 468 (QL), 2004 NBCA 99 at para. 32 and Boudreau v. Brun (2005), 293N.B.R. (2d) 126, [2005] N.B.J. No. 501 (QL), 2005 NBCA 106 at para. 5. [paras. 8-9] [10] Therefore, deference is owed to a motion judge’s assessment of the evidence, determination of custody and allincidental terms.

However, deference is not owed when reviewing a decision on a question of law, including what the proper criteriashould be when determining whether a material change of circumstances has occurred, what the best interests of the child are or whenthe motion judge fails to give sufficient reasons for his or her decision. VI. Analysis

[ 11 ] In the present case, the motion was brought pursuant to provisions of the Divorce Act for a variation of a custody order. The governing principles are set out in s. 17(5) of the Divorce Act : Factors for custody order

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change. Facteurs considérés pour l’ordonnance de garde

(5) Avant de rendre une ordonnance modificative de l’ordonnance de garde, le tribunal doit s’assurer qu’il est survenu un changement dans les ressources, les besoins ou, d’une façon générale, dans la situation de l’enfant à charge depuis le prononcé de l’ordonnance de garde ou de la dernière ordonnance modificative de celle-ci et, le cas échéant, ne tient compte que de l’intérêt de l’enfant, défini en fonction de ce changement, en rendant l’ordonnance modificative. [ 12 ] That provision instructs the motion judge to “take into consideration only the best interests of the child” when varying an existing order.

As the Divorce Act does not provide a definition of “the best interests of the child”, one may look to

section 1 of the Family Services Act , S.N.B. 1980, c. F-2.2 for guidance.

1 In this Act […] “best interests of the child” means the best interests of the child under the circumstances taking into consideration (

a) the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both; (

b) the views and preferences of the child, where such views and preferences can be reasonably ascertained; (

c) the effect upon the child of any disruption of the child’s sense of continuity; (

d) the love, affection and ties that exist between the child and each person to whom the child’s custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of the child; (

e) the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of the child returning to or remaining with his parents; (

f) the need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of his full potential according to his individual capacity; and (

g) the child’s cultural and religious heritage; 1 Dans la présente loi […] « intérêt supérieur de l’enfant » désigne l’intérêt supérieur de l’enfant dans les circonstances, compte tenu

a) de l’état de santé mentale, affective et physique de l’enfant et du besoin qu’il a de soins ou de traitements convenables, ou des deux;

b) des vues et préférences de l’enfant lorsqu’il est raisonnablement possible de les connaître;

c) de l’effet sur l’enfant de toute atteinte à la stabilité dont un enfant éprouve le besoin;

d) de l’amour, de l’affection et des liens qui existent entre l’enfant et chaque personne à la garde de qui il a été confié, chaque personne qui a obtenu le droit de lui rendre visite et, le cas échéant, chaque frère ou soeur de l’enfant et, le cas échéant, chaque grand-parent de l’enfant;

e) des avantages de tout projet de prise en charge de l’enfant par le Ministre comparés à l’avantage pour l’enfant de retourner ou de rester auprès de ses parents;

f) du besoin pour l’enfant d’être en sécurité, dans un milieu qui lui permette de réaliser pleinement son potentiel, selon ses aptitudes personnelles et, ce faisant, de devenir membre utile et productif de la société; et

g) du patrimoine culturel et religieux de l’enfant; VII. Material Change in Circumstances [ 13 ] In Gordon v. Goertz , McLachlin J., as she then was, set out a two-part test to be applied when faced with a request to vary custody. In K.C.W.V. v. K.L.P. , 2010 NBCA 70 , 363 N.B.R. (2d) 351, this Court stated: The first step is establishing a material change of circumstances of the child since the last custody order was made:

Before the court can consider the merits of the application for variation, it must be satisfied there has been a material change in thecircumstances of the child since the last custody order was made. Section 17(5) provides that the court shall not vary a custody or accessorder absent a change in the "condition, means, needs or other circumstances of the child". Accordingly, if the applicant is unable toshow the existence of a material change, the inquiry can go no farther: Wilson v. Grassick, (1994), (SK CA), 2 R.F.L.(4th) 291 (Sask.

C.A.). [para. 10] Next, McLachlin J. touches upon the factual foundation required to establish a material change: What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have alteredthe child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), (BCSC), 35 R.F.L. (3d) 169 (B.C.S.C.). The question is whether the previous order might have been different had the circumstances nowexisting prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.).

Moreover, the change should represent a distinctdeparture from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate arethose factors which were not likely to occur at the time the proceedings took place": J.G. McLeod, Child Custody Law and Practice(1992), at p. 11-5.

It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in thecondition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materiallyaffects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made theinitial order. [paras. 12-13] The second step of McLachlin J.'s test is that of the best interests of the child. In C.M.B.E. v.

D.J.E., 2006 NBCA 88, 304 N.B.R. (2d)191, this Court made the following related observations: Pursuant to s. 17(5) of the Act a party seeking variation of a custody or access order must establish that "there has been a change in thecondition, means, needs or other circumstances of the child [...]" since the last custody or access order was made and that the variation isin the best interests of the children. In determining whether a change in circumstance has occurred a Court is not "precluded fromconsidering events which occurred prior to the last order". See Fullarton v.

Fullarton (1994), (NB KB), 152 N.B.R.(2d) 321, [1994] N.B.J. No. 323 (Athey J.) (QL). As we pointed out in D.G. v. H.F., [2006] N.B.J. No. 158 (QL), 2006 NBCA 36, the Supreme Court has instructed in Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, [1996] S.C.J.

No. 52 (QL), that once the threshold of a material change in circumstances isfound on a variation application, then a fresh inquiry must be made into the best interests of the child and the focus of that inquiry is notthe interests or rights of the parents. [paras. 7-8] [paras. 13-15] [14] In this case, the motion judge concluded there had been a material change in circumstances since the making ofthe previous order but he failed to provide any cogent reasons for this finding. The motion judge erred in law by failing to illustrate thathe undertook the first step of the necessary two-part analysis. VIII.

Best Interests of the Child [15] As stated earlier, McLachlin J. also establishes the “best interests of the child test” in Gordon v. Goertz as thesecond step of the two-part test. The analysis to be undertaken by a motion judge when determining the “best interests of the child” incustody and access matters is addressed by McLachlin J., as she then was, in Young v. Young, (SCC), [1993] 4 S.C.R. 3,[1993] S.C.J. No. 112 (QL): First, the "best interests of the child" test is the only test.

The express wording of s. 16(8) of the Divorce Act requires the court to lookonly at the best interests of the child in making orders of custody and access. This means that parental preferences and "rights" play norole.

Second, the test is broad. Parliament has recognized that the variety of circumstances which may arise in disputes over custody and access is so diverse that predetermined rules, designed to resolve certain types of disputes in advance, may not be useful. Rather, it has been left to the judge to decide what is in the "best interests of the child", by reference to the "condition, means, needs and other circumstances" of the child. Nevertheless, the judicial task is not one of pure discretion.

By embodying the "best interests" test in legislation and by setting out general factors to be considered, Parliament has established a legal test, albeit a flexible one. Like all legal tests, it is to be applied according to the evidence in the case, viewed objectively. There is no room for the judge's personal predilections and prejudices. The judge's duty is to apply the law. He or she must not do what he or she wants to do but what he or she ought to do.

Third, s. 16(10) provides that in making an order, the court shall give effect "to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child." This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized.

The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent.

Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal Deprivation Reassessed (1981), Robin Benians, "Preserving Parental Contact: a Factor in Promoting Healthy Growth and Development in Children", in Jo Tunnard, ed., Fostering Parental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families (1982). [paras. 202-204] In the case before us, once the motion judge had determined that there had been a change in circumstances, he should have undertaken a “fresh inquiry” into the best interests of the child in determining that a variation of custody was in the child’s best interests. [ 16 ] He did not discuss what factors he considered when deciding what was in the child’s best interests, nor did he appear to utilize the definition of best interests of the child as delineated in the Family Services Act .

As a result, the motion judge erred in law, thus allowing appellate intervention. IX. Varying the Existing Order on the Basis of Affidavit Evidence Only [ 17 ] The mother submits that the motion judge erred in law by varying the existing order regarding custody, access and child support on the basis of affidavit evidence only. The father says that access was varied by the judge after considering affidavit evidence and upon hearing submissions by counsel for both parties.

The father submits counsel for both parties were given the opportunity by the judge to request viva voce evidence and to cross examine the deponents to the various affidavits. He also states the parties were represented by “very experienced counsel” who advised the judge they did not require viva voce evidence or cross- examination of the deponents. [ 18 ] In her written submission, the mother refers to Circelli v. Circelli , [1999] O.J. No.1724 (C.A.) (QL) , an appeal by a mother from an order awarding custody of two children to their father based solely on affidavit evidence.

The father had brought a motion for custody in the action for divorce and corollary relief. The parties proceeded on the basis that the father sought only interim custody, although that was not specified in the notice of motion. The motion judge found that the matter could be decided without a trial since the issues were not in dispute. The parties assumed that the award of custody to the father was a permanent order. The appeal was allowed and the custody order was set aside.

The court found that while it was appropriate to grant interim custody to the father, permanent custody was best determined in the normal course after a trial: The appellant's primary argument is that the motions judge erred in granting an order of permanent custody on affidavit evidence, that is without having conducted a trial of that issue. We agree with this submission.

In the normal course, the issue of permanent custody is best determined after a trial at which the court has an opportunity of observing and assessing the parties by hearing their evidence in-chief and hearing that evidence tested on cross-examination. Having said this, we recognize that there will be unusual cases where the circumstances are such that nothing will be added to the decision-making process by requiring a trial.

In this case, the respondent correctly points out that neither party asked the motions judge for a trial of the custody issue. However, thatfailure is understandable given that the parties were proceeding on the premise that the order being sought was for interim not permanentcustody. A determination to grant permanent custody will often involve different legal and factual issues than those that are addressed on a motionfor interim custody.

Because of this, it was important for the motions judge to have made it clear to the parties, during the course of themotion, that he was considering making an order for permanent custody in order that they might address specific issues applicable to thatrelief and also to give them an opportunity to ask for a trial of the issue if they thought that to be necessary. We are advised that this wasnot done.

For that reason alone, the order of the motions judge must be set aside. [paras. 6-10] [19] In this case, a review of the affidavits put before the motion judge reveals a substantial dispute of the evidencethat specifically related to the issues of material change in circumstances and the best interests of the child, the exact questions he wascalled upon to adjudicate. [20] It is my view that in a situation such as the one before us, where the judge was confronted with completelyconflicting affidavits and a highly visible level of animosity between the parties, he should have disregarded the agreement by counselnot to call viva voce evidence nor to conduct cross examination of the deponents and set the matter down for a full hearing.

He shouldnot have made an order which altered custody and access on the basis of the obviously conflicting affidavits before him. [21] Therefore, the motion judge erred in law by varying the custody, access and child support order on the basis ofaffidavit evidence which contained a substantial dispute of facts. X. Sufficiency of Reasons [22] In P.R.H. v. M.E.L. , Larlee J.A. states: 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. cautionedagainst the 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 threerationales are: (1) public confidence in the administration of the justice system; (2) the importance of telling the losing party the reasonsfor having lost; and (3) making the right of appeal meaningful.

The importance of sufficient reasons has similarly been affirmed by thisCourt of Appeal 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),2003 MBCA 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-specific

approach to the consideration of adequacy of reasons. Courts of Appeal which are considering the sufficiency of reasons should read them 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] [ 23 ] In this case, it is not possible to determine the extent to which the motion judge considered the criteria delineated in Gordon v. Goertz , or what weight he gave, if any, to these factors in reaching his determination that there was a material change in circumstances.

The motion judge’s analysis is found in two places in the decision: After analyzing all sides of the issue before me, I have come to the conclusion that the respondent has made unilateral decisions without meaningful consultation or rational discussion with the child’s father.

It is clear that the respondent intends to control the agenda on the basis that the Domestic Contract reads “that the Wife shall have the right to make the final decision”. […] In my view, the applicant’s request is most reasonable and, in my view, in the best interests of the child. [Judgment – 29 November 2010, p. 7] These conclusory reasons are not sufficient to ensure the best interests of the child have been adequately considered, nor do they allow for meaningful appellate review of the correctness of the decision. XI.

Dispostion [ 24 ] The appeal is allowed with costs of $2,500 payable by the respondent to the appellant. The decision of the Court of Queen`s Bench, Family Division, dated November 29, 2010, is set aside. The matter is remitted to a different judge of the Court of Queen`s Bench, Family Division, for a determination of the issues raised in the motion and responding documents. _____________________________ KATHLEEN A. QUIGG, J.A. WE CONCUR: ________________________________ J.C. MARC RICHARD, J.A. ________________________________ BRADLEY V. GREEN, J.A.