2015 NBCA 46, 2015 NBCA 46

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 71-14-CA B.C. APPELLANT B.C. APPELANTE - and - - et - M.S. RESPONDENT M.S. INTIMÉ B.C. v. M.S., 2015 NBCA 46 CORAM: The Honourable Justice Quigg The Honourable Justice Green The Honourable Justice Baird B.C. c. M.S., 2015 NBCA 46 CORAM : l’honorable juge Quigg l’honorable juge Green l’honorable juge Baird Appeal from a decision of the Court of Queen’s Bench: June 4, 2014 Appel d’une décision de la Cour du Banc de la Reine: le 4 juin 2014 History of Case: Historique de la cause : Decision under appeal: N/A Décision frappée d’appel : s.o.

Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o. Appeal heard: February 10, 2015 Appel entendu : le 10 février 2015 Judgment rendered: July 23, 2015 Jugement rendu : le 23 juillet 2015

Reasons for judgment: The Honourable Justice Quigg Concurred in by: The Honourable Justice Green The Honourable Justice Baird Counsel at hearing: For the appellant: David H. Dunsmuir For the respondent: Richard A. Northrup Motifs de jugement : l’honorable juge Quigg Souscrivent aux motifs : l’honorable juge Green l’honorable juge Baird Avocats à l'audience : Pour l’appelante : David H. Dunsmuir Pour l’intimé : Richard A. Northrup THE COURT The appeal is dismissed with costs of $1,500. LA COUR Rejette l’appel et condamne l’appelante à des dépens de 1 500 $. The judgment of the Court was delivered by QUIGG, J.A. I.

Introduction [ 1 ] This is an appeal by a mother, B.C., from the decision of a judge of the Court of Queen’s Bench, Family Division, granting relief pursuant to the Family Services Act , S.N.B. 1980, c. F-2.2, in respect of custody and access. B.C. contends the motion judge erred in fact and law in concluding there had been a material change in circumstances that would allow a variation of the existing order regarding those issues. She also contests various findings of fact. Contrary to B.C.’s position, I find no basis upon which to interfere with the motion judge’s decision. II.

Factual and Procedural Background [ 2 ] The parties, who were not married, have two children: A, born February 3, 2006, and B, born December 20, 2007. By consent order dated April 29, 2010, the parties were granted joint and shared custody of the children. The order also specified a residency

schedule for the shared custody and support obligations. At the time, both parties lived in Saint John. Subsequently, the mother and the children moved to Fredericton, and a further consent order dated June 29, 2011, varied the access

schedule for the respondent. That order followed two other orders in 2011 that also dealt with access. On December 13, 2011, the father filed a motion seeking to terminate ongoing child support as well as arrears due to his not having worked since August 2011. He had not been able to work due to injuries from a woodstove explosion earlier that year. Following a hearing on April 3, 2012, a judge suspended the ongoing payments as well as the enforcement of arrears, and ordered that the father notify the mother when he returned to work or when he received insurance funds related to his lost income.

[ 3 ] On December 5, 2012, the father filed a Motion to Change seeking: (1) sole custody of the children; (2) supervised access for the mother; (3) the cancellation of support obligations from the consent orders dated April 29, 2010, and June 29, 2011; and (4) payments of child support from the mother. In the mother’s Response, she requested child support be varied from the time of her move to Fredericton, and financial disclosure from the father.

The father’s basis for alleging a material change in circumstances included concerns related to denials of access, the children’s safety and medical needs, poor academic performance, and potential sexual abuse by a neighbour. The motion judge, in a decision dated June 4, 2014, agreed there had been a material change and found it was in the children’s best interests to reside with the father, to whom he granted sole custody.

The judge directed that the parties could seek further guidance from the court, if necessary, to resolve the access schedule, which the parties did on August 14, 2014, resulting in a detailed order in this regard. He did not rule on support obligations as the parties agreed this issue would be dealt with later. The mother asks that the motion judge’s decision be set aside or varied. III.

Grounds of Appeal [ 4 ] The mother raises nine grounds of appeal which may be summarized as follows: 1. there should not have been a fresh inquiry into custody, as there was insufficient evidence to support a material change in circumstances; 2. the motion judge did not properly apply the best interests of the child test in his analysis, and also erred in his assessment of the evidence; 3. there were insufficient reasons provided to support the decision to grant custody to the father; 4. the motion judge erred when he refused to consider evidence with respect to child support; 5. the motion judge’s conduct, during the hearing, created a reasonable apprehension of bias; 6. the access

schedule was “unreasonable”. IV. Standard of Review [ 5 ] The standard of review applicable to a motion judge's decision on custody is discussed in B.P. v. A.T. , 2014 NBCA 51 , 423 N.B.R. (2d) 99 : In A.F.G. v. D.A.B. , 2011 NBCA 100 , [2011] N.B.J. No. 401 (QL) , this Court reiterated the standard of review to be employed in custody cases such as this one: deference is required. Intervention on appeal is unjustified absent a material error: P.R.H. v. M.E.L. , 2009 NBCA 18 , 343 N.B.R. (2d) 100 ; MacLean v. MacLean , 2004 NBCA 75 , 274 N.B.R. (2d) 90 , at para. 18 ; J.P. v.

R.R. , 2004 NBCA 98 , 278 N.B.R. (2d) 351 , at para. 27 ; Scott v. Scott , 2004 NBCA 99 , 278 N.B.R. (2d) 61 , at para. 32 and Boudreau v. Brun , 2005 NBCA 106 , 293 N.B.R. (2d) 126 , at para. 5 . Deference is owed to the trial judge's assessment of the evidence when it comes to deciding who should have custody and on what terms. However, no deference is owed with respect to a question of law, including the identification of the proper test to be applied: J.A.D. v. L.D.D ., 2010 NBCA 69 , 364 N.B.R. (2d) 200 . [para.11] [ 6 ] In N.E.R. v.

J.D.M. , 2011 NBCA 57 , 377 N.B.R. (2d) 147 , the 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 when determining whether a material change of circumstances has occurred, what the best interests of the child are or when the motion judge fails to give sufficient reasons for his or her decision. [para. 10]

[ 7 ] Accordingly, we may intervene when there is a material error of fact or law. In my view, this is not such a case. V. Analysis A. Material Change in Circumstances/Best Interests of the Child [ 8 ] The father filed a Motion to Change seeking: (1) sole custody of the children; (2) supervised access for the mother; (3) the cancellation of support obligations from two consent orders; and (4) payments of child support from the mother. [ 9 ] The motion was brought pursuant to the provisions of the Act for a variation of an existing custody order. The governing principles are set out in s. 129(2) of the Act , which states: 129

(2) Upon application the court may order that either or both parents, or any person, either alone or jointly with another, shall have custody of a child, subject to such terms and conditions as the court determines, such order to be made on the basis of the best interests of the child; and the court may at any time vary or discharge the order. 129

(2) Si on le lui demande, la cour peut rendre une ordonnance établie dans l’intérêt supérieur de l’enfant et qui attribue la garde de celui-ci à l’un des parents ou aux deux, ou à toute personne, seule ou conjointement avec une autre, aux conditions dont la cour décide, et la cour peut à tout moment modifier ou révoquer l’ordonnance. [ 10 ] Section 129(2) instructs judges to make orders “on the basis of the best interests of the child”. “Best interests of the child” is defined in s. 1 of the Act :

“best interests of the child” means the bestinterests of the child under the circumstancestaking into consideration (

a) the mental, emotional and physical healthof the child and his need for appropriate careor treatment, or both; (

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

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

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

e) the merits of any plan proposed by theMinister under which he would be caring forthe child, in comparison with the merits ofthe child returning to or remaining with hisparents; (

f) the need to provide a secure environmentthat would permit the child to become auseful and productive member of societythrough the achievement of his full potentialaccording to his individual capacity; and (

g) the child’s cultural and religiousheritage[.] « intérêt supérieur de l’enfant » désignel’intérêt supérieur de l’enfant dans lescirconstances, compte tenu

a) de l’état de santé mentale, affective etphysique de l’enfant et du besoin qu’il a desoins ou de traitements convenables, ou desdeux;

b) des vues et préférences de l’enfantlorsqu’il est raisonnablement possible de lesconnaître;

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

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

e) des avantages de tout projet de prise encharge de l’enfant par le Ministre comparés àl’avantage pour l’enfant de retourner ou derester auprès de ses parents;

f) du besoin pour l’enfant d’être en sécurité,dans un milieu qui lui permette de réaliserpleinement son potentiel, selon ses aptitudespersonnelles et, ce faisant, de devenirmembre utile et productif de la société; et

g) du patrimoine culturel et religieux del’enfant[.] [11] In Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, [1996] S.C.J. No. 52 (QL), McLachlin J., asshe then was, sets out a two-stage inquiry for varying custody orders (para. 9). The first step involves determining whether there has beena material change of circumstances of the child since the last custody order: 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] [12] 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 materially

affects 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] [13] The second step of McLachlin J.’s test is that of the “best interests of the child”. She elaborates on this step aswell: The threshold condition of a material change in circumstance satisfied, the court should consider the matter afresh without defaulting tothe existing arrangement: Francis v. Francis (1972), (SK CA), 8 R.F.L. 209 (Sask. C.A.), at p. 217.

The earlierconclusion that the custodial parent was the best person to have custody is no longer determinative, since the existence of materialchange presupposes that the terms of the earlier order might have been different had the change been known at the time. (Willick v.Willick, supra, at p. 688, per Sopinka J.) The judge on the variation application must consider the findings of fact made by the firstjudge as well as the evidence of changed circumstances (Wesson v. Wesson, supra, at p. 194) to decide what custody arrangement nowaccords with the best interests of the child.

The threshold of material change met, it is error for the judge on a variation applicationsimply to defer to the views of the judge who made the earlier order.

The judge on the variation application must consider the matteranew, in the circumstances that presently exist. [para. 17] Further, she notes that Parliament has provided two specific directions with respect to this test: “[p]arental conduct, however meritoriousor however reprehensible, does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child”, and “achild of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child” (paras. 21and 24).

Otherwise, the test involves a multitude of factors, as “[a] more precise test would risk sacrificing the child's best interests toexpediency and certainty” (para. 20). [14] This Court has recently had occasion to consider the issues to be canvassed by a trial judge when dealing withcustody. In S.L.B. v. P.J.O., 2013 NBCA 52, 408 N.B.R. (2d) 235, we dealt with a request to vary a custody arrangement. In that case,the Court reminded trial judges they must focus on the best interests of the child as defined by the criteria set out in the Act once achange in circumstances has been established (para. 10).

The Court went on to add: As explained above, the motion judge determined there had not been a change in circumstances. Because of this conclusion, he did notproceed to the second step of the two-part test established by McLachlin J. in Gordon v. Goertz, that is, a "fresh inquiry" into the bestinterests of the child. The analysis to be undertaken by a motion judge when determining the "best interests of the child" in custody andaccess 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 of Queen's Bench, Family Division, as we are not equipped to make the findings required to be made during the fresh inquiry into the best interests of the child. [para. 13] [ 15 ] In the present case, the motion judge concluded there had been a material change in circumstances since the making of the previous order.

He found the following: In this case, since the April 29, 2010 order, the children have moved to Fredericton. They have moved numerous times within the City. B.C. has struggled with her parenting and coping skills. “A” has been the victim of a sexual assault. “A” has engaged in sexual activity with “B”. They have (understandably) needed counselling to assist with the repercussions. “A” and “B” have begun school which would naturally be anticipated. But unanticipated would have been the significant degree of tardiness and missed days resulting in a detrimental effect on their educational development.

On this point I accept the evidence of Ms. Moir that the tardiness and missed days have negatively impacted their development. Staff from the Department of Social Development have been active in the activities of the family in Fredericton and, to a lesser degree, in Saint John. Moreover, there are issues between B.C. and M.K that require continued monitoring. Many of these things may or may not be the fault of B.C. Nor could such events have been anticipated at the time when the prior orders were made. But they are the facts that I weigh in coming to the conclusion that I do.

In my view, and I so find, a material change has occurred in the manner contemplated in the authorities cited above. Therefore, I am prepared to embark upon a fresh enquiry as to what may be in the best interests of the children. Therefore, the first step of the test is satisfied, and the motion judge was correct to move on to a “fresh inquiry” into the best interests of the children. [ 16 ] At the hearing, the judge did note it was the first time the court had fully received and reviewed evidence, and heard argument on the issues of custody and access, as the previous orders were consent orders.

As the judge states: “to some degree, this hearing itself can be considered the first time the Court has had the benefit of full argument on the extensive evidence presented and adjudicated upon the best interests of the children”. [ 17 ] The motion judge reviewed the evidence and then made determinations with respect to the best interests of the children, regarding their custody and access, in accordance with the definition in s. 1 of the Act . The motion judge set out the criteria from (

a) to (

g) and then applied them to the facts. In the end, the judge made the following finding of fact: When all is said and done it is my view, and I so find, that on the totality of the evidence presented, it is in the best interests of the children to live primarily with M.S. I do not say this without a high degree of sympathy that, as a single mother, B.C. is struggling with significant demands. She, in many ways, should be supported in her endeavor to pursue higher education. But the law dictates that such sympathy must be secondary to the determination of what is best for the children.

This is why I emphasized above the words of then Madam Justice McLachlin from Young v. Young , supra where she said, He or she [the trial judge] must not do what he or she wants to do but what he or she ought to do. [para. 98] [Emphasis in original.] [ 18 ] In

summary, the motion judge determined that a change in the circumstances of the children had occurred since the existing custody order had been executed. He then went on to determine the best interests of the children having regard to the definition found in the Act . After reviewing the evidence, the judge applied the law to his findings of fact and concluded it was in the best interests of the children that their sole custody be entrusted to their father.

In my view, the motion judge’s decision is not tarnished by any errors of law or misapprehension of the evidence that would meet the standard of review and allow us to intervene. In fact, I agree with his determination. B. Sufficient Reasons [ 19 ] In P.R.H. v. M.E.L . , 2009 NBCA 18 , 343 N.B.R. (2d) 100 , 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. 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), 2003 MBCA65 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 whichthey are delivered. The function of the reasons is to tell the affected parties why the decision was made, to provide public accountabilityand to permit effective appellate review.

The reasons need to show the path the judge followed from the evidence to the factual findingsto 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 sufficiencyof reasons to be applied in child protection matters. [paras. 10-13] [20] Therefore, when crafting reasons in custody cases, a trial judge is expected to “consider all relevant factors, butit would be unreasonable to require a judge to discuss every piece of evidence in his or her reasons” (see B.P. v. A.T., at para. 19). In his30-page decision, the judge clearly gave considerable weight to the factors expressed in Gordon v. Goertz and Young v. Young, (SCC), [1993] 4 S.C.R. 3, [1993] S.C.J.

No. 113 (QL), in concluding “a material change in circumstances [had] occurred inthe manner contemplated in the authorities cited”, and explicitly considered each criterion delineated in the definition in s. 1 of the Act infinding “on the totality of the evidence presented, it is in the best interests of the children to live primarily with [the father]”. [21] Overall, the judge undertook a comprehensive analysis of “the best interests of the child” and provided athorough, well-reasoned decision for altering custody. There is no merit to this ground of appeal. C.

Conduct of the Hearing [22] The mother submits the judge made reversible errors in his conduct of the hearing by refusing to allowconsideration of the issue of child support, or evidence relating thereto. A review of the record indicates the judge did not make any sucherror when he ruled that he would only deal with the issue of custody and access, and not that of child support. In the decision, the judgestates “there are unresolved issues based upon an unknown quantum of damages to which [the father] may be entitled to as a result ofsevere injuries he suffered in a fire”.

As an aside, the father’s action respecting his accident is still before the court and remainsunresolved. The situation as it appeared at the time of the hearing was the following: if the judge had considered the actual income of thefather during the time in question, it would have been to the father’s unfair advantage as his income was much lower during that period.At the outset of the hearing, the judge indicated there would not be any ruling with respect to support, and counsel for the mother was inagreement at that time.

Sometime further into the hearing, counsel for the mother spoke to the severance of the child support issues fromthose being heard:

MR. DUNSMUIR: […] So if this court wishes to sever that portion of the response to the motion, because there are claims for affirmative [relief] in the responding document and like it or not that is part of the motion that was before Justice Walsh, which in his mind no doubt because the events involving Justice Noble [ante] dated his decision to set this down for five days. In his mind I don’t doubt that one of the live issues were-(sic) I may have to get to the bottom of the financial circumstances.

Now, whether or not this court is and if the court is of the view that that issue will have to be put off to another day given the uncertainty of [M.S.]’ future prospects in terms of employment, I don’t have a problem with that. THE COURT: So, Mr. Dunsmuir, Mr. Northrup has indicated he’s got no problem with the finances we may need severed for another day. MR. NORTHRUP: Well, no, I in fact I believe it’s appropriate because my submission is that the income situation that [M.S.] finds himself in today is identical to what it was in November when Justice Noble reviewed and made the decision.

Justice Noble indicated that based on his training allowance income, which is what he presently has, he shall pay $187.00 per month, and since there’s no change in income I have no – I, I think the logic of the Court as you’re relaying it is perfectly logical. There’s no, there’s no change. [Transcript, May 7, p. 18] [Emphasis added] It is clear that counsel for the mother consented to the severance of the child support issue from the hearing. This ground must also fail. D.

Allowing testimony at the August 14, 2014, hearing respecting “purported facts”, which occurred subsequent to the original hearing [ 23 ] The mother contends the judge erred by permitting counsel for the father to repeatedly give evidence of “purported facts” during his submissions in the continued hearing respecting the access schedule. The mother claims the judge’s failure to properly rule on her counsel’s objections resulted in a reasonable apprehension of bias.

A review of the record reveals the judge did attempt, during the August 14, 2014 hearing, to determine exactly what each party desired with respect to access. Both counsel made representations to the court as to what they would like to see occur and for what reasons. Prior to the August 14, 2014, hearing, the judge had determined that custody was going to change and the father would have sole custody of the children.

This was made very clear to both parties, and the judge was explicit that he was only going to consider the evidence heard by him at the trial of the matter, as both sides had elected not to call any further evidence. In my view, the judge was fully aware of the position of each party as they had provided him with written submissions as to the access they desired, prior to the hearing. Sifting through the record revealed no bias, or grounds for any reasonable apprehension of bias, by the judge. This ground of appeal is without merit. E. Unreasonable Access

Schedule [ 24 ] The mother submits the judge made reversible errors in imposing an unreasonable access

schedule for her, which was unsupported by any evidence of a connection to the best interests of the children. The mother says the

schedule fails to maximize the amount of contact between her and the children, contrary to the access

schedule suggested by her and consented to by the father. [ 25 ] In his written submission for appeal, the father does concede he was “surprised by the learned hearing judge’s decision not to set the terms of access for the parties at the time of the decision” on June 4, 2014. At the end of the hearing, both parties were requested to submit their proposed access schedule, which they did. Due to their lack of ability to communicate, and the high conflict in their relationship, it was apparent they were unlikely to come to a consensus.

On August 14, 2014, having already heard evidence from both parties and their witnesses over the five day trial in May, the judge heard submissions by counsel for both parties with respect to access and rendered his decision as to what the terms of access to the children would be. He was familiar with the parties’ positions and the history of their interactions, and had an opportunity to scrutinize their credibility. The judge also had the opportunity to review each of their proposed access plans.

Considering that one of the parties resides in Fredericton and the other in Rothesay, and the high conflict of this situation, I find the access

schedule is reasonable. [ 26 ] In Young v. Young , McLachlin J. confirmed the best interests of the child is the sole consideration in access decisions:

I would summarize the effect of the provisions of the Divorce Act on matters of access as follows. The ultimate test in all cases is the best interests of the child. This is a positive test, encompassing a wide variety of factors. One of the factors which the judge seeking to determine what is in the best interests of the child must have regard to is the desirability of maximizing contact between the child and each parent. But in the final analysis, decisions on access must reflect what is in the best interests of the child. [para. 206] I am in agreement with the judge’s reasons respecting access.

He relied on the evidence and determined the best interests of the children. In my view, the judge did not make any reversible error. This ground of appeal must fail. VI. Disposition [ 27 ] For the above reasons, I would dismiss the appeal and confirm the motion judge’s decision. I would order the mother to pay costs on appeal of $1,500. ___________________________ KATHLEEN A. QUIGG, J.A. WE CONCUR: ___________________________ BRADLEY V. GREEN, J.A. __________________________ BARBARA L. BAIRD, J.A.