2013 NBCA 52, 2013 NBCA 52

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 145-12-CA S.L.B. (Respondent) APPELLANT - and - P.J.O. (Petitioner) RESPONDENT S.L.B. (Intimé

e) APPELANTE - et - P.J.O. (Requérant) INTIMÉ S.L.B. v. P.J.O., 2013 NBCA 52 S.L.B. c.

P.J.O., 2013 NBCA 52 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge Richard L’honorable juge Bell L’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: October 3, 2012 Appel d’une décision de la Cour du Banc de la Reine : Le 3 octobre 2012 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: June 25, 2013 Appel entendu : Le 25 juin 2013 Judgment rendered : September 5, 2013 Jugement rendu : Le 5 septembre 2013

Reasons for judgment by: The Honourable Justice Quigg Motifs de jugement : L’honorable juge Quigg Concurred in by: The Honourable Justice Richard The Honourable Justice Bell Souscrivent aux motifs : L’honorable juge Richard L’honorable juge Bell Counsel at the hearing: For the appellant: Tracy Peters and Stéphanie M. Cormier For the respondent: David M. Lutz, Q.C. and Shanna M. Wicks Avocats à l’audience : Pour l’appelante : Tracy Peters et Stéphanie M. Cormier Pour l’intimé : David M. Lutz, c.r., et Shanna M.

Wicks THE COURT The appeal is allowed, the order is set aside and the matter is remitted to the Court of Queen’s Bench, Family Division, for a new hearing before a different judge. LA COUR L’appel est accueilli, l’ordonnance est annulée et l’affaire est renvoyée à la Cour du Banc de la Reine, Division de la famille, pour une nouvelle audience devant un autre juge. The judgment of the Court was delivered by QUIGG J.A. I.

Introduction [ 1 ] This is an appeal by the mother, S.L.B., 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 respecting legal custody, access and child support. The mother alleges that the motion judge erred in fact and law in concluding there had been no

material change in circumstances that would allow him to vary the existing order respecting custody, access and child support as well as various findings of fact. II. Factual and Procedural Background [ 2 ] The parties married on October 12, 1991. There is one child of the marriage, born in August 2000. The parties separated in June 2007. Following their separation, they negotiated a Separation Agreement, wherein the issues of custody, access and support were agreed upon. Paragraphs 6(

a) and 7(

a) of the separation agreement state: 6. CUSTODY The Mother and the Father shall continue to have joint legal and joint physical custody of the child of the marriage as follows: (

a) The Mother and the Father shall have equal time with the child alternating on a weekly basis every seven days. The changeover shall occur each Friday after school or after camp. […] 7. CHILD SUPPORT (

a) There shall be no monthly child support paid from one parent to the other. In lieu of same, the Father shall contribute $200 per month to an RESP for [S.]. The RESP shall be held in the joint names of the parties and utilized for [S’s] post-secondary education. In the event that this money is not used by [S.] or that there is a surplus, the balance remaining shall be equally divided between the parties. [ 3 ] The custody, access and support arrangements were subsequently incorporated into and formed part of the Order for Corollary Relief to a Divorce Judgment , dated August 11, 2008.

The parties followed these provisions of the agreement and alternated custody of the child every seven days from the date of separation until December 2010. In July 2010, the child advised he did not wish to proceed with the scheduled summer access with his father. By the fall of 2010, the child attempted to decrease his access with his father by resisting his parents’ efforts, both verbally and physically, to follow the agreement.

Between December 2010 and May 2011, the periods the child spent with his father decreased significantly due to the child’s refusal to have access to his father. [ 4 ] In January 2011, the parents met with the child and they all agreed to attempt to reconcile the difficulties they were experiencing regarding custody and access by participating in counselling. In February 2011, as a result of the counselling, the parties modified the existing custody and access arrangements and undertook a different

schedule whereby the child spent nine consecutive days with his mother and then five consecutive days with his father. Irrespective of this change, the child continued to express his unhappiness with extended periods of access spent with his father. The father testified that when the child refused to have access with him, he had no choice but to acquiesce to the child’s wishes, and it was his view that attempting to force the child to abide by the access agreement would only “make things worse”. According to the mother, she continued to encourage the child to have access with his father.

From May 2011 on, the child has primarily resided with the mother and has access with his father when he wishes to do so. [ 5 ] On February 17, 2012, the mother filed a Notice of Motion to Change (Form 81F) and Change Information Form (Form 81G) with the Court of Queen’s Bench, Family Division, pursuant to s. 17 of the Divorce Act requesting a variation of custody and child support retroactive to May 2011. On September 26, 2012, the father filed an affidavit in response to the Notice of Motion to Change. On September 27, 2012, the mother filed a Supplementary Affidavit.

[ 6 ] On October 3, 2012, the motion was heard. The judge dismissed the motion and on November 15, 2012, ordered the following: IT IS HEREBY ORDERED AS FOLLOWS: 1. The Applicant’s motion is dismissed. 2. The parties shall attend counseling with the Child with a counselor to be selected by the Respondent. Attendance at counseling shall not be voluntary. 3. The cost of counseling for the first 3 months shall be paid by the Applicant. The cost of any counseling thereafter shall be borne equally by the parties. 4.

Should the parties fail to attend and participate in counseling, this matter may return to court on short notice and any claims made to the Court by the parties at that time shall not be limited to claims of contempt. 5. The Applicant shall pay costs to the Respondent in the amount of $750.00 inclusive of HST and disbursements. These costs shall be set-off against the costs of $750.00 inclusive of HST and disbursements which the Court ordered the Respondent to pay to the Applicant at the Status Hearing which was held on September 26, 2012. 6. This Order is effective October 3, 2012. III.

Issues [ 7 ] The mother submits that the motion judge erred in fact and law in finding: 1) There had not been a material change in the condition, means, needs, or other circumstances of the child of the marriage since the order of August 11, 2008, and by failing to give sufficient reasons for this finding; 2) The mother acted unilaterally to vary the custody and access arrangements under the guise of acquiescing to the child’s wishes without the father’s consent; 3) The mother implicitly and explicitly guided the child in his refusal to abide by the arrangements under the existing order; and 4) The child did not have sufficient maturity to make decisions with respect to access arrangements with his father.

IV. Standard of Review [ 8 ] 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] [9] In N.E.R. v.

J.D.M., 2011 NBCA 57, 377 N.B.R. (2d) 147, this Court states: Therefore “deference is owed to a motion judge's assessment of the evidence, determination of custody and all incidental terms.However, deference is not owed when reviewing a decision on a question of law, including what the proper criteria should be whendetermining whether a material change of circumstances has occurred, what the best interests of the child are or when the motion judgefails to give sufficient reasons for his or her decision”. [para. 10] Accordingly, we may intervene when there is a material error, a serious misapprehension of the evidence, or an error in law.

In my viewthis is such a case. V. Analysis [10] In the present case, the motion for a variation of a custody and support order was broughtpursuant to provisions of the Divorce Act. 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 inrespect of a custody order, the court shallsatisfy itself that there has been a change in thecondition, means, needs or othercircumstances of the child of the marriageoccurring since the making of the custodyorder or the last variation order made inrespect of that order, as the case may be, and,in making the variation order, the court shalltake into consideration only the best interestsof the child as determined by reference to thatchange. Facteurs considérés pour l’ordonnance degarde

(5) Avant de rendre une ordonnancemodificative de l’ordonnance de garde, letribunal doit s’assurer qu’il est survenu unchangement dans les ressources, les besoinsou, d’une façon générale, dans la situation del’enfant à charge depuis le prononcé del’ordonnance de garde ou de la dernièreordonnance modificative de celle-ci et, lecas échéant, ne tient compte que de l’intérêtde l’enfant, défini en fonction de cechangement, en rendant l’ordonnancemodificative.

This 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;

VI. Material Change in Circumstances [11] As this Court states in N.E.R.: 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. InK.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] [Emphasis added.]

[12] In the case before us, the motion judge concluded there had not been a material change incircumstances since the previous order, but he failed to provide any cogent reasons for this finding. The record reveals the sharedcustody arrangement agreed to in 2008 had not been in practice since May 2011. This was uncontested by the father. In February 2011,upon the recommendation of a counselor, the family decided to vary the custody and access arrangement. A new

schedule wasimplemented wherein the child spent nine consecutive days with his mother and five consecutive days with his father. According to theparties, this

schedule has been whittled down to even less time spent with the father. Therefore, there was a change in the custody andaccess arrangement that had been agreed to in 2008, a change that could not have been contemplated at the time the separation agreementwas executed. This is clearly a change in circumstances. As a result, the judge should have proceeded to the second part of the test andcommenced a fresh inquiry into the child’s best interests. VII.

Best Interests of the Child [13] As explained above, the motion judge determined there had not been a change in circumstances.Because of this conclusion, he did not proceed to the second step of the two-part test established by McLachlin J. in Gordon v. Goertz,that is, a “fresh inquiry” into the best interests of the child. The analysis to be undertaken by a motion judge when determining the “bestinterests of the child” in custody 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 andaccess is so diverse that predetermined rules, designed to resolve certain types of disputes in advance, may not be useful.

Rather, it hasbeen left to the judge to decide what is in the "best interests of the child", by reference to the "condition, means, needs and othercircumstances" of the child. Nevertheless, the judicial task is not one of pure discretion. By embodying the "best interests" test inlegislation and by setting out general factors to be considered, Parliament has established a legal test, albeit a flexible one. Like all legaltests, it is to be applied according to the evidence in the case, viewed objectively. There is no room for the judge's personal predilectionsand 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 asmuch contact with each spouse as is consistent with the best interests of the child." This is significant. It stands as the only specific factorwhich Parliament has seen fit to single out as being something which the judge must consider.

By mentioning this factor, Parliament hasexpressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. Themodifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with thechild 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, whichsuggests 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., FosteringParental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families (1982). [paras. 202-204] In my view, the judge erred when he failed to determine there had been a material change in circumstances in the child’s life.

As a result,there was no fresh inquiry respecting the “best interests” of the child. I would allow the appeal and remit the matter to the Court ofQueen’s Bench, Family Division, as we are not equipped to make the findings required to be made during the fresh inquiry into the bestinterests of the child. VIII. Findings [14] The mother further submits the judge erred in fact and law in making the following findings:

(1) The mother acted unilaterally to vary the custody and access agreement under the guise of “giving–in” to the child’s wishes;

(2) The mother implicitly and explicitly guided the child in his refusal to abide by the existing custody and access agreement; and

(3) The child did not have sufficient maturity to make decisions with respect to custody and access arrangements. As I would allow the mother’s appeal and remit the matter to the Court of Queen’s Bench, Family Division, for a new hearing, it is not necessary to address the reasonableness of these findings. A new judge will make his or her own findings of fact and credibility during the fresh inquiry. IX. Disposition [ 15 ] I would allow the appeal with costs of $ 2,500, payable by the father to the mother.

I would set aside the decision of the Court of Queen’s Bench, Family Division, and remit the matter to a different judge of the Court of Queen’s Bench, Family Division, for a determination of the issues raised on the motion and responding documents. ______________________________ KATHLEEN A. QUIGG, J.A. WE CONCUR: ______________________________ J.C. MARC RICHARD, J.A. ______________________________ B. RICHARD BELL, J.A.