2012 NBCA 38, 2012 NBCA 38

COURT OF APPEAL OF NEW BRUNSWICK 129-11-CA D.A. APPELLANT D.A. APPELANT - and - - et - J.R. RESPONDENT J.R. INTIMÉE D.A. v. J.R., 2012 NBCA 38 D.A. c.

J.R., 2012 NBCA 38 CORAM: The Honourable Justice Larlee The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Larlee L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: September 6, 2011 Appel d’une décision de la Cour du Banc de la Reine : Le 6 septembre 2011 History of 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: March 13, 2012 Appel entendu : Le 13 mars 2012 Judgment rendered: April 26, 2012 Jugement rendu : Le 26 avril 2012 Reasons for judgment by: The Honourable Justice Larlee Motifs de jugement : L’honorable juge Larlee Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Quigg L’honorable juge Green

Counsel at hearing: For the appellant: C. Thomas Prince For the respondent: Alison J. Ménard Avocats à l’audience : Pour l’appelant : C. Thomas Prince Pour l’intimée : Alison J. Ménard THE COURT The appeal is dismissed with costs. LA COUR Rejette l’appel avec dépens. The judgment of the Court was delivered by LARLEE J.A. [ 1 ] D.A. appeals a decision made by a judge of the Court of Queen’s Bench varying an interim custody order pursuant to s. 129 of the Family Services Act , S.N.B. 1980, c. F-2.2.

The issues raised on the appeal are whether the appellant received a fair hearing since he was not represented by counsel; whether the judge erred by concluding there was a material change in circumstances allowing review of the original custody order; and whether the judge considered the relevant factors with respect to mobility cases. [ 2 ] For the following reasons I would dismiss the appeal. [ 3 ] The parties lived in a common-law relationship for two years and are the parents of 2-year-old M.J.A.

The respondent has a 13-year-old child from a previous relationship, who lives with her on a full-time basis and sees his father occasionally. When the parties’ relationship ended in June 2010, they consented to an interim joint custody order with respect to M.J.A., with primary care to the respondent and generous scheduled weekly access to the appellant. [ 4 ] In December 2010, a new interim order included the condition that the child was not to be removed from New Brunswick without the consent of both parties.

In May 2011, the respondent filed a Notice of Motion requesting a variation of the original custody order, so that she could relocate with the child to Goose Bay, Newfoundland and Labrador, in order to accept a job opportunity with her parents. At the hearing on this motion, the unrepresented appellant requested an adjournment to obtain the services of a lawyer. The motion judge denied the adjournment. The judge heard the respondent’s evidence because her witnesses were present from Labrador, and the appellant had the opportunity to cross-examine them.

The judge then allowed the appellant time to find a lawyer and present his evidence at a later date. On August 10, 2011, the appellant appeared with a lawyer whom the respondent’s lawyer moved to have removed from the record because of a conflict of interest. The appellant’s lawyer subsequently withdrew. The appellant requested a further adjournment to find another lawyer. The judge refused; he determined that the matter was urgent and he needed to proceed to hear the motion. As a result, the appellant was self-represented throughout the remainder of the hearing.

The motion judge ultimately ruled in favour of the respondent, allowing her to move to Goose Bay with the child and making her the primary caregiver of the child.

[5] The appellant relies on three grounds of appeal and alleges the motion judge erred: 1) in denying the adjournment requested to obtain counsel and refusing his request to call his mother as a witness, thereby denying afair trial; 2) in determining there was a material change in circumstances affecting the child where the change of circumstances alleged wascontrived, developed or imposed by the respondent’s mother for the purpose of causing the respondent to move; 3) in failing to properly consider the minimum factors to be applied to mobility cases as set out in Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27, [1996] S.C.J. No. 52 (QL) . [6] In K.C.W.V. v. K.L.P., 2010 NBCA 70, 363 N.B.R. (2d) 351, the Court reiterated that the standard for varyinga motion judge’s decision on custody is one of considerable deference. Intervention on appeal requires that there have been a materialerror, a serious misapprehension of the evidence, or an error of law (see P.R.H. v. M.E.L., 2009 NBCA 18, 343 N.B.R. (2d) 100 and Vande Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014).

Deference is owed to a motion judge’s assessment of the evidence and his orher determination of custody and all incidental terms. Deference is not owed when reviewing a decision on a question of law, includingwhat the proper criteria should be when determining whether a material change of circumstances has occurred. [7] The decision under appeal is an interim custody decision which the motion judge rendered in order to addressa situation pending a full hearing into the issue. In Legault v. Rattray, (NB CA), [2003] N.B.J.

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

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

summary interim proceeding.” [para. 4] [8] There is no absolute right to counsel in civil cases. In J.R. v. New Brunswick (Minister of SocialDevelopment), 2010 NBCA 81, 365 N.B.R. (2d) 377, a guardianship case dealing with the possibility of state appointed counsel for thematernal grandparents of a child in protective care, this Court referred to New Brunswick (Minister of Health and Community Services) v.G.(J.), (SCC), [1999] 3 S.C.R. 46, [1999] S.C.J.

No. 47 (QL) and concluded that a fair trial requires effectiveparticipation by the parents before the custody of a child is removed from them: Consequently, the Supreme Court directs judges to consider what constitutes effective participation for a party whose security of theperson is threatened by the state action. If a judge concludes the parent does not need counsel, after assessing the complexity of theprospective proceedings and the abilities of the parent (and after considering the bounds of assistance a judge might be able to provide),then no order is required.

This is because the hearing would be fair and the principles of fundamental justice met (at para. 86). If,however, a judge concludes the parent cannot effectively participate without the assistance of a lawyer then an order for state-fundedcounsel is required. [para. 14] [9] In assessing whether a parent is able to present his or her case effectively absent representation by counsel,some of the factors for consideration include the seriousness of the interests at stake, the complexity of the proceedings, and thecapacities of the parent (see New Brunswick (Minister of Health and Community Services) v.

G.(J.), at para. 75). Considering thosedirections in the context of the present case, a motion judge hearing an interim order with respect to a variation of a custody order shouldalso be able to assess whether the parent is able to proceed self-represented at a hearing, particularly if there is some urgency to thematter and the parent has had some time to retain the services of counsel, even though not successful. The issue here was not complexand the appellant was able to present his views adequately.

In addition, the motion judge fashioned some procedural measures to aid theappellant. [10] In New Brunswick (Minister of Family and Community Services) v. A.R. et al. (2007), (NB

CA) , 322 N.B.R. (2d) 372 , [2007] N.B.J.

No. 345 (C.A.) (QL) , this Court held that the decision to grant or refuse an adjournment is discretionary and therefore: […] such a decision will not be interfered with on appeal unless it can be shown that the motion judge did not direct herself correctly in law and did not observe the applicable principles, or misapprehended the evidence to the point that an injustice would result. [para. 15] In my view, given the nature of this motion, it cannot be said that the motion judge erred in not granting an adjournment in order for the appellant to obtain legal counsel. [ 11 ] Similarly, on a motion for interim relief, it is in the discretion of a motion judge to decide if the calling of certain witnesses is necessary or if reliance on their affidavit evidence will suffice: Rules 39.01(1) and 39.02(2) of the Rules of Court .

In this case, the judge asked the appellant if his mother’s testimony could add anything to the debate and was convinced that she would not have anything new to add to her affidavit evidence. Thus, he exercised his discretion and did not give leave for the witness to be examined orally. In his decision, the motion judge clearly considered that affidavit evidence in the context of the disruption to the child by a change in custody and explicitly her removal from the appellant’s mother: It is true that M.’s eventual move would cause some disruption in her sense of continuity.

It is without a doubt that she has developed a considerable bond with the father and his mother, Mrs. A. There are ties that exist between them. However if those ties are as strong as Mrs. A and Mr. A want this Court to believe they will not go away as [they] suggested if M is allowed to move with her mother. These bonds will remain. [para. 38] There is nothing in the record, including the transcript of the hearing, to persuade me the appellant was denied a fair hearing.

This ground of appeal must fail. [ 12 ] With respect to the variation of the custody consent order, the motion judge found the threshold had been met to demonstrate a material change in the circumstances of the child, or the parents’ ability to meet her needs, since the signing of the last consent order. Since that order, the appellant had lost his medical coverage at work and changed his living arrangements by moving out of his residence to live with his mother and sister in a two bedroom home.

Those changes, coupled with the respondent’s intention to move for a job opportunity, were sufficient to trigger a material change in circumstances. Accordingly, the motion judge embarked on a fresh inquiry as to the “best interests of the child” as defined in s. 1 of the Act . His analysis reflects a correct application of the law to the facts ( see Gordon v. Goertz ). In my view, the motion judge’s reasons adequately address the pertinent criteria. In P.R.H. v. M.E.L . , at para. 10 , we cited Van de Perre v.

Edwards , at para. 6 , and held that in preparing reasons in custody cases, a trial judge is expected to consider all relevant factors, but it would be unreasonable to require a judge to discuss every piece of evidence in his or her reasons. This was more recently confirmed in N.J.P. v. The Minister of Social Development , 2012 NBCA 3 , [2012] N.B.J. No. 15 (QL) , at para. 7 .

Applying the standard of review enunciated above, the fact that there was not just one but four changes that could conceivably be considered a material change in circumstances affecting the child, I find there is no basis for intervention on this ground (see J.A.D . v. L.D.D. , 2010 NBCA 69 , 364 N.B.R. (2d) 200 ). [ 13 ] I should add a note of caution. I think it would be prudent to have these interim custody/mobility cases heard in an expeditious manner with as early a date as possible fixed for the hearing of the subsequent application, where all of the evidence is fleshed out.

The underlying motion that is the subject of this appeal was filed May 10, 2011. The hearing commenced June 30, 2011 and was adjourned to August 10, 2011. The oral decision was rendered August 17, 2011. The application, or full hearing, is scheduled for July 3-5, 2012. In my view, the period of time from the filing of the motion until the resolution of this custody/mobility case seems too long. [ 14 ] The Supreme Court in Gordon v.

Goertz made it clear that the custodial parent's reason for moving should not enter into the inquiry unless it falls within the exceptional case where it is relevant to that parent's parenting ability or is designed to thwart contact with the access parent (see L.D.D. v. J.A.D , 2009 NBQB 276 , 349 N.B.R. (2d) 206 , per Morrison J.).

However, in my view, the status quo may be favoured on an interim basis unless there are compelling or urgent circumstances which dictate a move before a full hearing: relocation to live with new partner; child starting school; urgency in the move to preserve a job that would be lost; or the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial ( see Chen v. Liu , 2010 NBQB 158 , [2010] N.B.J. No. 142 (QL) , per Wooder J.; R.G. v. C.G. , 2008 NBQB 421 , 371 N.B.R. (2d) 57 , per Tuck J.; Ivens v. Ivens , 2008 NWTSC 18 , [2008] N.W.T.J.

No. 11 (QL) , per Schuler J.; A.S. v. T.S . 2007 NBQB 383 , 322 N.B.R. (2d) 169 , para. 33 , per B. Robichaud J.). The standard of review does not allow us to substitute our view for that of the motion judge. Although on a deference basis I would not interfere with the motion judge’s decision, in this case there would have been nothing wrong with the mother relocating and the child remaining in Miramichi until the child’s “best interests ” were determined at a full hearing.

[ 15 ] I would dismiss the appeal with costs of $1,000. ____________________________________ M.E.L. LARLEE, J.A. WE CONCUR: _____________________________________ KATHLEEN A. QUIGG, J.A. ______________________________________ BRADLEY V. GREEN, J.A.