2011 NBCA 100, 2011 NBCA 100

COURT OF APPEAL OF NEW BRUNSWICK 58-11-CA A.F.G. (Applicant) APPELLANT - and - D.A.B. (Respondent) RESPONDENT A.F.G. (Requérante) APPELANTE - et - D.A.B. (Intimé) INTIMÉ A.F.G. v. D.A.B., 2011 NBCA 100 A.F.G. c.

D.A.B., 2011 NBCA 100 CORAM: The Honourable Justice Larlee The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge Larlee L’honorable juge Bell L’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: March 15, 2011 Appel d’une décision de la Cour du Banc de la Reine : Le 15 mars 2011 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: September 13, 2011 Appel entendu : Le 13 septembre 2011 Judgment rendered November 17, 2011 Jugement rendu : Le 17 novembre 2011

Reasons for judgment by: The Honourable Justice Quigg Motifs de jugement : L’honorable juge Quigg Concurred in by: The Honourable Justice Larlee The Honourable Justice Bell Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Bell Counsel at the hearing: For the appellant: David A. Estey For the respondent: Randall A. Wilson Avocats à l’audience : Pour l’appelante : David A. Estey Pour l’intimé : Randall A. Wilson THE COURT The appeal is dismissed without costs. LA COUR Rejette l’appel sans dépens. The judgment of t he Court was delivered by QUIGG J.A. I.

Introduction [ 1 ] This appeal raises the issue of the appropriate factors to be taken into consideration by a motion judge when determining the best interests of a child in a custody/mobility case. The appellant mother submits the judge failed to apply the appropriate factors, and misapplied or ignored evidence in transferring custody of the child from the mother to the father.

This appeal further raises the question of whether the motion judge erred in law by not, on his own motion, ordering a “Voice of the Child” assessment, an assessment usually undertaken by a psychologist to determine the views of a child, whose parents are separating, to assist a judge in his or her decision making. II. Background and Procedural History [ 2 ] The appeal arises from a decision of the Court of Queen’s Bench, Family Division, granting sole custody to the father, thus disallowing the mother from relocating, with the parties’ child, to the Northwest Territories.

[ 3 ] The parties to this appeal began cohabitating in St. George, N.B. in 2002. Their daughter was born in 2003. The parties never married and separated in 2004. The father filed an application requesting access to the child and as a result the parties consented to an order establishing joint custody with primary care to the mother. This was executed in April 2006.

The motion judge stated: The Consent Order was the basis for a somewhat uneasy co-existence between the parties until, in August of 2010, [the father] discovered his daughter [P.] [ sic ] had a “secret” − mommy had told her they were moving to Yellowknife in the Northwest Territories very soon and she wasn’t to let Daddy know. [para. 4 –motion judge’s decision] [ 4 ] This proved to be accurate.

The mother planned to move to Yellowknife with her new partner and she also intended to take the child and a younger half-sibling. [ 5 ] The father filed a Notice of Motion on August 19, 2010, requesting that the mother be enjoined from removing the child from New Brunswick until a hearing was held to determine the best interests of the child. An ex parte order was executed on August 20, 2010, whereby the relief sought by the father was granted.

The father did not seek any further relief from the court, however the mother requested a hearing respecting the mobility of the child and that she be granted sole custody of the child with the current access order to remain in place. [ 6 ] On August 30, 2010, a four day hearing on the motion commenced. Eight witnesses testified, five for the father and three for the mother.

The motion judge stated in the decision that only one of the witnesses, the child’s teacher, could be considered to be objective or unbiased. [ 7 ] In his decision, the judge undertook a thorough analysis of the principles and factors to be considered in a dispute involving the custody and relocation of a child. He reviewed the child’s relationship with each parent and, in considering the child’s best interests, concluded the child should not be permitted to relocate with her mother. The judge prescribed an access

schedule which appears to accommodate the reduction in regular contact that the child would have with the mother. III. Issues [ 8 ] The Supplementary Notice of Appeal attributes the following errors in law to the motion judge: 1. He did not apply all of the factors to be considered in evaluating the best interests of the child, misapplied or ignored evidence in concluding that the custody of the child would be transferred from the mother to the father and failed to give adequate reasons. 2. He did not, on his own motion, order an independent Voice of the Child assessment after hearing all of the evidence. 3.

In the alternative, the mother is requesting that a Voice of the Child assessment be completed and a new trial be ordered. IV. Standard of Review [ 9 ] The standard of review to be employed in cases such as this one requires deference. Intervention on appeal is unjustified absent a material error (see P.R.H. v. M.E.L ., 2009 NBCA 18 , (2009) 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 ). [ 10 ] In brief, 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. V. Analysis [11] It is the mother’s position that the motion judge erred in law by not applying all of the factors to be consideredin evaluating the best interests of the child and by misapplying or ignoring the evidence in concluding the custody of the child wouldchange from joint custody (with primary care to the mother) to sole custody to the father. In order to put the best interests of the child testin proper context in a mobility situation, one must review the pertinent legislation of this province as well as the relevant jurisprudence. A.

Statutory Framework [12] The case before us concerns the determination of custody of a six-year- old child of parents who did not marry.We must therefore consider the seven criteria set out in s.1 of the Family Services Act, S.N.B. 1980, c. F-2.2., which reads: “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 towhom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of thechild; (

e) the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits ofthe 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 societythrough the achievement of his full potential according to his individual capacity; and (

g) the child's cultural and religious heritage. B. Definition of “best interests of the child” in mobility cases [13] In Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, [1996] S.C.J. No. 52 (QL), the SupremeCourt determined the minimum legal factors to be considered in mobility cases (see as well, J.A.D. v. L.D.D., 2010 NBCA 69,

(2010) 364 N.B.R. (2d) 200 ). In Gordon v. Goertz , McLachlin J. (as she then was), set out a two-stage inquiry to be conducted in determining an application for variation of a custody order. The first step is to ascertain whether there has been a material change in the circumstances of the child. T he second step is to undertake a fresh inquiry into the best interests of the child, considering the relevant factors. However, the primary concern always remains the best interests of the child. The principles established in Gordon v. Goertz can be summarized as follows: [...] 5.

Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [paras. 49-50] C.

Application of the principles and jurisprudence to the circumstances of this case . [ 14 ] In the present case, the motion judge considered the best interests of the child when he concluded sole custody should be awarded to the father. He employed the two-part analysis prescribed in Gordon v. Goertz . After determining there had been a change in circumstances, he undertook a fresh inquiry into the best interests of the child.

The judge devoted considerable time and effort in applying each of the seven criteria contained in the definition of “best interests of the child” as outlined in s. 1 of the Family Services Act to the facts of this case. It should be noted this case is unique in the sense that the motion judge had unchallenged evidence before him which indicated that from 2007-2009, the child spent a substantial amount of time with her father. The child has been in the father’s full-time care since June 2010.

In my view, the motion judge did not err in interpreting the evidence before him and there was ample evidence to support his determination that it is in the child’s best interests to be in the father’s custody. D. Voice of the Child assessment

[15] In her written submission, the mother states the motion judge erred by not ordering a Voice of the Childassessment, on his own motion, as provided for in s. 11.4(1) of the Judicature Act. This

section provides: 11.4(1) Upon ex parte application or on hisown motion a judge of the Family Divisionmay direct a family counsellor, social worker,probation officer or other person to make areport concerning any matter that, in theopinion of the judge, is a subject of theproceeding. [Emphasis added] 11.4(1) À la suite d’une demande ex parte oude sa propre initiative, un juge de la Divisionde la famille peut charger un conseillerfamilial, un travailleur social, un agent deprobation ou toute autre personne de faire unrapport sur toute question qui, selon lui, a desliens avec la procédure. [C’est moi qui souligne] [16] In P.R.H., Larlee J.A. states: There is no statutory authority under the Divorce Act to order an assessment by a child care professional who reports to the court and tocounsel.

If one is to be ordered, it would have to be done on one of the following possible bases: parens patriae jurisdiction of the trialjudge or the inherent power of the court to control its own process. In Ontario, it appears that assessment reports are often given lessweight in relocation matters than in other types of child-related cases; in fact they have more often than not been ignored.

Thejurisprudence stresses that an assessment is not necessary where there is no clinical issue requiring expert evidence raised on the factsand no real dispute between the parties with respect to how the children reacted to the family breakdown. A court should not order anassessment simply to obtain an apparently impartial third party's opinion on what is in a child's best interests: see Stefureak v. Chambers, (ON SC), [2004] O.J. No. 4253 (S.C.J.) (QL), where the court held that identifying the wishes of a seven year olddid not justify an assessment where there were no clinical issues.

A judge should only order an assessment, which involves expertopinion evidence, where there is some particular problem or issue that requires expert input (see Sheikh v. Sheikh, [2004] O.J. No. 4384(S.C.J.) (QL)). Furthermore a court should not delegate its duty to determine what parenting arrangement is in a child's best interests to an assessor:Johnson v. Cleroux (2002), (ON CA), 156 O.A.C. 197, [2002] O.J. No. 964 (QL); additional reasons at [2003] O.J.No. 981 (C.A.)(QL). See also Snoddon v. Snoddon, [2004] O.J. No. 1987 (QL), 2004 ONCJ 39 (C.J.).

However, courts typically willgive substantial weight to the recommendations of an assessor, but these must be only one factor to consider in the determination. Acourt may also choose to ignore the recommendations of an assessor, as in Steeves v. Robinson (2005), 278 N.B.R. (2d) 38, [2005]N.B.J. No. 52 (QL), 2005 NBQB 46. In the present case the lawyer for the appellant put it like this: "psychologists do not decide custodyissues, judges do". I agree. [paras. 15-16] In my view, the motion judge did not err by not ordering a Voice of the Child assessment.

There was more than enough evidence beforehim (provided by eight witnesses over four days) to determine the best interests of the child without an assessment. E. Separation of siblings [17] At the hearing on appeal, the issue regarding the separation of siblings arose. In this case, the mother has a sonwith another individual. This child is the younger half-brother of the child at the centre of the present dispute. The child’s younger half-brother moved with the mother to Yellowknife. Courts have generally frowned upon the separation of siblings in considering the bestinterests of the child.

In P.R.H., Larlee J.A. states: […] There was no consideration of the impact of separating L. from his sister, nor was there any discussion of any exceptionalcircumstances which would merit such a separation, or of the case law concerning the separation of siblings. Such an exceptionaldecision should require an extensive analysis, such as was found in Funk v. Funk, [2004] B.C.J. No. 2932 (QL), 2004 BCSC 1800. I amof the view that the failure to address these significant criteria amounts to a fundamental omission and a material error and it justifiesintervention by this Court. [para. 24]

[ 18 ] Therefore, in custody cases generally, the failure to address the impact of separating siblings could be viewed as a significant omission and a material error. In this case, however, the motion judge did not err, as he provided an explanation why this situation gave rise to “exceptional circumstances”. In this matter, there is more than one sibling relationship to consider. The child has a half-sibling through her father, with whom she is very close. The father’s partner also has a young son with whom the child has developed a close bond.

Therefore, there are several sibling relationships, and thus exceptional circumstances exist. VI. Disposition [ 19 ] For the above reasons, I would dismiss the appeal without costs. _______________________________ KATHLEEN A. QUIGG, J.A. WE CONCUR: _______________________________ M.E.L. LARLEE, J.A. _______________________________ B. RICHARD BELL, J.A.