2018 NLCA 40, 2018 NLCA 40

J.W. (appellant) v. M.G. (respondent) (17/17) Indexed As: J.W. v. M.G. 2018 NLCA 40 3 C.A.N.L.R. 97 Court of Appeal of Newfoundland and Labrador White, Harrington and O’Brien JJ.A. July 19, 2018

Summary: The parents of a child, Ms. W and Mr. G, separated in 2014. They agreed on an equal parenting arrangement. In 2016, Ms. W relocated to Victoria, British Columbia to further her education and applied to the Supreme Court of Newfoundland and Labrador for an order allowing the child to move there with her on a permanent basis. The trial judge ordered that Ms. W and Mr. G have joint legal custody of their daughter and share parenting on a three-month rotating basis, with the child living for three months in Victoria, the next three months in St. John’s and so on.

When the child starts kindergarten, she will live primarily with her father in St. John’s during the school year and primarily with her mother in Victoria during the summer vacation. Ms. W appealed arguing that the trial judge’s decision that her daughter live primarily with Mr. G during the school year is not in her daughter’s best interests. Held: Appeal dismissed. O’Brien J.A. (White and Harrington JJ.A. concurring): The applicable standard of review for questions of law is correctness and for questions of fact is palpable and overriding error.

Nonetheless, the decision of a trial judge in a case such as this, involving a discretionary determination as to what is in the best interests of a child in a custody dispute, is generally entitled to considerable deference. The Children’s Law Act , R.S.N.L. 1990, c. C-13 mandates that a dispute involving custody or access of a child shall be determined on the basis of the best interests of the child. It also lists factors which must be considered in determining what is in the child’s best interests. As this matter involves Ms.

W’s request to relocate from Newfoundland and Labrador to British Columbia with her daughter, it also engages the additional factors set out in the case law which apply to mobility and custody rights disputes. The trial judge considered the law and factors contained in both the Act and in the case law and applied these to the facts and the evidence presented at the hearing. Each applicable factor is referenced in the decision and considered in relation to the facts and evidence. The discussion and analysis provided under each factor suggests the trial judge carefully considered the evidence.

It is not necessary to review all of the trial judge’s observations and considerations of the factors in this respect. Ultimately, having considered parenting proposals from both parties and the proposed family units in Victoria and St. John’s, the trial judge concluded that Mr. G’s proposal, with the child continuing to live in St. John’s, would offer a more permanent and stable family unit for raising the child. Contrary to the submissions of Ms.

W, the trial judge appreciated that, even where her reasons for moving were laudable (for example, that the move in this case might result in future financial benefits, due to Ms. W’s higher education, and would provide a positive role model for Ms. W’s daughter), the focus must remain on the best interests of the child. Counsel for Ms.

W argued that the trial judge’s failure to identify her as the primary caregiver and de facto custodial parent, meant that her views were not accorded the respect and consideration they would otherwise have commanded, and that this was an error which tainted the trial judge’s entire analysis and his ultimate finding.

There was ample evidence to support the conclusion that both parents were extensively involved in all facets of the child’s life, from mundane, quotidian tasks to the more significant parenting decisions, and the trial judge’s determination that this was a shared parenting arrangement is entitled to deference. The judge did not err in this regard.

The trial judge did not err either in his identification of the applicable law, in his application of the law to the facts and evidence in thiscase, or in the conclusion reached regarding the best interests of the child. There is no basis for appellate intervention. Cases cited: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 S.H. v. W.P., 2016 NLCA 67 Green v. Green, 2005 NLCA 29, 247 Nfld. & P.E.I.R. 82 Whalen v. Whalen, 2005 NLCA 35, 247 Nfld. & P.E.I.R. 344 Ligate v. Richardson, (1997), (ON CA), 34 O.R. (3d) 423 (Ont. C.A.) A.M. v.

The Children’s Aid Society of Cape Breton-Victoria, 2005 NSCA 58, 232 N.S.R. (2d) 121 Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518 Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 Slade v. Slade, 2001 NFCA 2 Winsor v. Winsor, 2017 NLCA 5 Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27 F.F.R. v. K.F., 2013 NLCA 8, 332 Nfld. & P.E.I.R. 262 Burns v. Burns, 2000 NSCA 1, 182 N.S.R. (2d) 101 Bennett v. Nuttall-Bacon, 2017 NLTD(F) 4 Counsel: Brodie Gallant, for the appellant; Michael Ralph, for the respondent. This appeal was heard on February 8, 2018 before White, Harrington and O’Brien JJ.A.

The following judgment was delivered on July 19, 2018 by O’Brien J.A. for the Court. ______________________________________________________________ O'Brien J.A.: OVERVIEW [1] A five-year-old child lives in St. John’s, Newfoundland and Labrador, where she was born in 2013. [2] This appeal is about her. [3] It is also about the many people in her life who care for her and want what is best for her, even if they may not agree amongthemselves how best to achieve this. [4] The child’s parents, Ms. W and Mr. G, lived together in a domestic relationship from 2011 until they separated in 2014, whenshe was one.

After separation, her parents both continued to live, independently, in St. John’s. They shared in her parenting, agreeing onan equal parenting arrangement. Both have remained deeply involved in her life since they separated. Both are committed to her. Shehas benefited greatly as a result. [5] In 2016, Ms. W relocated to Victoria, British Columbia in order to further her education. As she wanted her daughter to live withher in British Columbia, she applied to the Supreme Court of Newfoundland and Labrador for an order allowing the child to move therewith her on a permanent basis. [6] Mr.

G continues to live in St. John’s and he opposed Ms. W’s application. He wants his daughter to remain in St. John’s, living

with him. [7] As the parties could not resolve the matter, there was a hearing in the Supreme Court of Newfoundland and Labrador in 2016. Ms. W, Mr. G, and other witnesses testified at the hearing. Ms. W and Mr. G also provided the Court with their respective, proposedparenting plans for the care and upbringing of their daughter. [8] Informed by the evidence and parenting plans, the trial judge considered the applicable legislation and case law in order todetermine the parenting arrangement which would be in the child’s best interests.

The trial judge ultimately decided on a variation of theparenting plan proposed by Mr. G, and made an order regarding the future parenting arrangement. The trial judge’s reasons for judgmentand order are at 2016 NLTD(F) 36. [9] The order states that Ms. W and Mr. G have joint legal custody of their daughter and they will share parenting on a three-monthrotating basis, with the child living for three months in Victoria, the next three months in St. John’s and so on. This arrangement willcontinue until September 1, 2018, when she starts kindergarten. [10] At that time she will live primarily with her father in St.

John’s during the school year and primarily with her mother in Victoriaduring the summer vacation. [11] The order also provides a

schedule for shared parenting during the Christmas and Easter periods, it includes provisions topromote ongoing contact with Ms. W’s mother and family, who live in St. John’s, and it affords additional parenting opportunities to Ms.W whenever she is in St. John’s. [12] Ms. W has appealed the trial judge’s decision on the basis that the trial judge made errors in applying the law. Specifically, Ms.W argues that the trial judge’s decision that her daughter live primarily with Mr. G during the school year is not in her daughter’s bestinterests. [13] Ms.

W requests that this Court vary the trial judge’s order so that the child will reside primarily with Ms. W in Victoria. [14] For the reasons set out below, I would conclude that the judge did not err in this matter. Therefore, I would dismiss the appeal. ISSUES [15] The issues to be decided in this appeal are as follows: 1. Did the trial judge err in his consideration of the evidence, in his identification and application of the law, or in his ultimatedetermination regarding the best interests of the child? 2. Did the trial judge err in not determining that Ms.

W was the child’s “primary caregiver and de facto custodial parent”? STANDARD OF REVIEW [16] This is an appeal of a trial judge’s decision regarding parenting of a child. The trial judge’s decision was reached afterconsidering the evidence presented at a four-day hearing, evaluating the respective parenting proposals, and applying the factors set outin the legislation and case law to the evidence. [17] The decision, by its nature, is discretionary. [18] The applicable standard of review for questions of law is correctness and for questions of fact is palpable and overriding error(see Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235). [19] This Court has stated that these review standards apply to fact-based and discretionary decisions made in family law cases, asthey do to decisions in other civil cases. (See S.H. v. W.P., 2016 NLCA 67; Green v. Green, 2005 NLCA 29, 247 Nfld. & P.E.I.R. 82;Whalen v.

Whalen, 2005 NLCA 35, 247 Nfld. & P.E.I.R. 344.) Deference in custody cases [20] The decision of a trial judge in a case such as this, involving a discretionary determination as to what is in the best interests of achild in a custody dispute, is generally entitled to considerable deference. [21] As Justice Moldaver, writing for the Ontario Court of Appeal in Ligate v. Richardson, (1997), (ON CA), 34O.R. (3d) 423 (Ont.

C.A.), stated at paragraph 68, deference attaches provided the trial judge’s discretion is appropriately exercised, “inaccordance with recognized legal principles designed to ensure, as much as possible, that the result achieved accords with the bestinterests of the child.” [22] An appellate court may intervene, however, if the trial judge committed an error in principle, which includes failing to take intoaccount a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to relevant factors, overemphasizingrelevant factors, and more generally, includes an error of law (see Ligate at paragraph 69). [23] If an error in principle or error of law was made, the trial judge’s decision is no longer entitled to deference.

At that point (but notuntil that point) an appellate court can take a fresh look at the matter. [24] The starting principle, then, is that a trial judge’s decision in parenting (custody and access) decisions warrants substantialdeference.

[25] This principle of affording a trial judge’s decision deference unless a material error has been established, was clearly articulatedby Justice Cromwell, writing for the Nova Scotia Court of Appeal in A.M. v. The Children’s Aid Society of Cape Breton-Victoria, 2005NSCA 58, 232 N.S.R. (2d) 121. [26] Although made in the context of a child protection case, the comments are equally applicable to a dispute regarding parenting. Justice Cromwell stated at paragraph 26: 26 This is an appeal. It is not a retrial on the written record or a chance to second guess the judge's exercise of discretion.

Theappellate court is not, therefore, to act on the basis of its own fresh assessment of the evidence or to substitute its own exercise ofdiscretion for that of the judge at first instance. This Court is to intervene only if the trial judge erred in legal principle or made apalpable and overriding error in finding the facts.

The advantages of the trial judge in appreciating the nuances of the evidence and inweighing the many dimensions of the relevant statutory considerations mean that his decision deserves considerable appellate deferenceexcept in the presence of clear and material error: (citations omitted). [27] Similarly, in Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, the Supreme Court of Canada discussed thesignificant deference provided to trial judges making discretionary decisions in a support context, and indicated that appellate courtsmust be mindful of this deference.

The Court stated: 10 When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors,and criteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise ofconsiderable discretion by trial judges. They must balance the objectives and factors set out in the Divorce Act or in provincial supportstatutes with an appreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the livesof the parties and to their children.

Because of its fact-based and discretionary nature, trial judges must be given considerable deferenceby appellate courts when such decisions are reviewed. … 12 There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standardof appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard theparties directly. … [28] The Supreme Court of Canada in Van de Perre v.

Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at paragraph 12, confirmed thatthe principles related to appellate review of support orders, as set out in Hickey, are “equally applicable to orders concerning childcustody”. [29] In Van de Perre, the Supreme Court of Canada further cemented the view that deference must be shown to discretionarydecisions made in a parenting context.

The Court stated at paragraphs 12 and 13: 12 … The narrow power of appellate review does not allow an appellate court to delve into all custody cases in the name of the bestinterests of the child where there is no material error as decided in Hickey. The Court of Appeal is not in a position to determine what itconsiders to be the correct conclusions from the evidence. This is the role of the trial judge. … 13 … Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances ofeach child is the hallmark of the process.

This discretion vested in the trial judge enables a balanced evaluation of the best interests ofthe child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. (Emphasis in original.) [30] This Court has also frequently held that a trial judge’s fact-based and discretionary decision in a family law context “should notbe disturbed absent an error in principle, a significant misapprehension of the evidence or an award which is clearly wrong.” See forexample Slade v. Slade, 2001 NFCA 2 at para.10; Winsor v.

Winsor, 2017 NLCA 54 at para. 9. [31] It is against this contextual backdrop that this appeal must be considered. [32] That is, the trial judge’s decision is afforded deference, as a starting principle. This Court must be satisfied that a material error,or error in principle, has been made by the trial judge before it can undertake a “fresh assessment of the evidence” or disturb the trialjudge’s findings. [33] This Court must be persuaded that the trial judge’s error warrants appellate intervention and permits deference to be displaced.

Issue 1: Did the trial judge err in his consideration of the evidence, in his identification and application of the law, or in hisultimate determination regarding the best interests of the child? [34] To determine whether the trial judge erred requires, first, a consideration of the law, which sets out the test and the factors thetrial judge had to apply in deciding what was in the child’s best interests. The Law: The Children’s Law Act and the Supreme Court of Canada’s decision in Gordon v.

Goertz [35] The test and the factors to be applied in this circumstance are set out in the Children’s Law Act, R.S.N.L. 1990, c. C-13 and in theSupreme Court of Canada’s decision in Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27. [36] The trial judge correctly identified both as being applicable.

The Children’s Law Act factors [ 37 ] As Ms. W and Mr. G were not married, the Children’s Law Act ( Act ) applies. [ 38 ] The Act mandates that a dispute involving custody or access of a child shall be determined on the basis of the best interests of the child. It also lists factors which must be considered in determining what is in the child’s best interests. [ 39 ] The factors, set out below in section 31(2), (and those in 31(3) where applicable) must be considered in a custody dispute. 31.

(1) The merits of an application under this

Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child.

(2) In determining the best interests of a child for the purposes of an application under this

Part in respect of custody of or access to a child, a court shall consider all the needs and circumstances of the child including (

a) the love, affection and emotional ties between the child and, (

i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child's family who live with the child, and (iii) persons involved in the care and upbringing of the child; (

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

c) the length of time the child has lived in a stable home environment; (

d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and the special needs of the child; (

e) the ability of each parent seeking the custody or access to act as a parent; (

f) plans proposed for the care and upbringing of the child; (

g) the permanence and stability of the family unit with which it is proposed that the child will live; and (

h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

(3) In assessing a person's ability to act as a parent, the court shall consider whether the person has ever acted in a violent manner towards (

a) his or her spouse or child; (

b) his or her child's parent; or (

c) another member of the household, otherwise a person's past conduct shall only be considered if the court thinks it is relevant to the person's ability to act as a parent. As will be discussed below, the trial judge identified and applied the relevant factors from the Act in this case. The Gordon factors [ 40 ] As this matter involves Ms.

W’s request to relocate from Newfoundland and Labrador to British Columbia with her daughter, it also engages the additional factors set out Gordon which apply to mobility and custody rights disputes. [ 41 ] The applicable law, and factors to be considered in such disputes (the so-called Gordon factors), were stated by the Supreme Court of Canada in Gordon at paragraphs 49 and 50 , as follows: 49 The law can be summarized as follows: 1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. 2.

If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect. 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. 50 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? (Emphasis in original.) [ 42 ] Again, as discussed below, the trial judge correctly identified and applied the Gordon factors in this case. [ 43 ] There is much similarity in the language, purpose and spirit in both the Act and the Gordon case.

Both are meant to provide direction and guidance to a trial judge determining parenting (custody and access) issues. [ 44 ] Both direct that the issue to be decided by the trial judge is the same; namely, what is in the best interests of the child. As the Supreme Court of Canada stated in Gordon : “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.” [ 45 ] Similarly, in determining the best interests of the child, the trial judge is required to “consider all the needs and circumstances of the child” ( Act ) , and to have “regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them” ( Gordon ). [ 46 ] Further, both the Act and the Gordon case list specific factors the judge is to consider in undertaking a determination of parenting rights. While the factors are not identical, there is some overlap.

Applying the Children’s Law Act and Gordon factors to this situation [ 47 ] This Court has indicated that, in mobility cases, it is appropriate to consider the factors listed in Gordon , along with the factors in the relevant legislation, which in this case is the Act ( see Whalen at paragraph 18 ). [ 48 ] As this case was about mobility and custody in the context of an unmarried couple, it was appropriate for the trial judge to have considered the factors in the Act as well as those in Gordon .

The trial judge did so, in paragraphs 25 to 44 of the trial judgment. [ 49 ] The trial judge considered the law and factors contained in both the Act and in Gordon and applied these to the facts and the evidence presented at the hearing. Each applicable factor from both the Act and the Gordon case is referenced in the decision and considered in relation to the facts and evidence.

The trial judge’s consideration of the Children’s Law Act factors [ 50 ] In paragraphs 25 to 38 of the judgment, the trial judge considered the law and relevant factors from the Act . [ 51 ] He discussed each individual factor set out in section 31(2) and (3) of the Act . [ 52 ] The topical factors considered mirrored those in the Act and included the following, all discussed under separate headings: Section 31(2)(a): the love, affection and emotional ties (between the child and her parents, and other family members on both sides of the family); Section 31(2)(c): the length of time the child has lived in a stable home environment; Section 31(2)(

d) and (e): the ability and willingness of each parent to provide the child with guidance, education and the necessaries of life, and to act as a parent; Section 31(2)(f): the plans proposed for the care and upbringing of the child; Section 31(2)(g): the permanence and stability of the family unit within which it is proposed that the child will live; Section 31(2)(h): the relationship by blood between the child and each parent; and Section 31(3): acts of violence by Mr. G in August 2014 and the relevance of these acts to his parenting ability.

[ 53 ] The only factor in section 31(2) that was not considered was (b) “the views and preferences of the child, where the views and preferences can reasonably be ascertained.” As the child was three years old at the time of the hearing, this factor was not applicable. [ 54 ] A review of the trial judge’s discussion under each factor shows a considered and measured approach taken in relating the factors to the evidence in this case, and in assessing how each factor impacted the best interests of the child. [ 55 ] The discussion and analysis provided under each factor suggests the trial judge carefully considered the evidence.

It is not necessary to review all of the trial judge’s observations and considerations of the factors in this respect.

However, some examples might help illustrate the nature and extent of the analysis which was undertaken. [ 56 ] Examples might also demonstrate how the findings of the trial judge were based on the evidence presented at the hearing, and how the trial judge’s application of the law to the evidence informed his determination on the ultimate issue regarding what is in the child’s best interests. [ 57 ] For example, in applying the factors in the Act , the trial judge concluded from the evidence that the child is closely bonded to both her parents and that both want what is best for her.

He also noted the child’s very close relationship with her maternal and paternal grandparents, and other extended family, who live in St. John’s. [ 58 ] The trial judge discussed the equal (i.e. “50/50”) shared parenting arrangement which had evolved between the parents by no later than June 2015. This arrangement involved the child living half of the time with her mother and half of the time with her father, who lives with his parents (i.e. the child’s paternal grandparents).

It was noted that the arrangement permitted the child to maintain and strengthen her relationships with both parents and both sets of grandparents. [ 59 ] The stability of the living arrangements, the trial judge noted, also reinforced the child’s “emotional ties to extended family on both sides” and “fostered the development of the bright and happy child to which all those who testified before the Court confirm of (the child) today.” [ 60 ] The trial judge also decided, based on the evidence, that, although they have different parenting styles, both parents have been actively and extensively involved in the child’s development and both have shown the ability and willingness to parent appropriately.

He concluded on this point: “Both parents are good parents”. [ 61 ] The judgment also shows that the parenting plans of Ms. W and Mr. G were carefully considered. The trial judge’s discussion on this point includes a positive description of the housing and day care arrangements which would be available to the child in Victoria, British Columbia, and observes that Ms. W’s relatives in British Columbia could be a source of support for Ms. W and her daughter. It also includes a review of Mr.

G’s proposal which, was argued, would facilitate generous access to the child by the parents and extended families. [ 62 ] The trial judge reviewed both parenting proposals in making his determination. Mr. G’s proposal involved the child spending the school year with him in St. John’s and spending the summer with Ms. W in Victoria. Ms. W’s plan involved the child spending the school year with her in Victoria, and spending six weeks in the summer in St. John’s during which time Ms. W proposed that the child should attend a daycare or day-camp.

It was proposed that the child’s six weeks spent in Newfoundland and Labrador in the summer would otherwise be shared between Mr. G and Ms. W’s parents, who live in St. John’s. The trial judge was entitled to consider the extent to which each parenting proposal maximized contact with both parents. [ 63 ] Ultimately, having considered both parenting proposals and the proposed family units in Victoria and St. John’s, the trial judge concluded that Mr. G’s proposal, with the child continuing to live in St.

John’s, would offer a “more permanent and stable family unit for raising” the child. [ 64 ] The trial judge also addressed the issue of blood relations, which is a factor in the Act . On this point he concluded that while Mr. G was not the child’s biological father, he had “fully undertaken the role of (her) father since her birth” and that he had “continued in the role of (her) father without interruption and that this point was not contested by Ms. [W] at trial”. As such, he found Mr. G. to be “ in loco parentis ”, with respect to the child, which means Mr.

G had the rights and obligations of a parent, including custody and access rights. [ 65 ] Related to this point, Ms. W had also applied to the Court for child support to be paid by Mr. G. This suggests that Ms. W, herself, believed Mr. G had a legal responsibility as the child’s father to support the child financially. Again, this is consistent with the trial judge’s finding that Mr. G had rights, as well as responsibilities, arising from his status as father. [ 66 ] Finally, and as required by section 31(3) , the trial judge considered Mr. G’s violent behavior in August 2014, shortly after the parties separated.

This behavior included breaking pictures and furniture, and the inappropriate use of social media and the sending of inappropriate text messages by Mr. G.

The trial judge stated that the behavior “is very concerning for me” as it was the behavior of “someone who was clearly out of control” when these events took place. [ 67 ] The trial judge further noted on this point that the violent behavior “did not take place in the presence of Ms. [W] and the child, although Ms. [W] was the recipient of Mr. [G’s] fury and vitriol over the phone while the destruction was taking place.” [ 68 ] The trial judge determined that Mr.

G’s “behavior at this time was isolated to August 2014 and is not behavior that is generally attributable to his conduct” and that it “is not significantly relevant to his ability to act as a parent”. [ 69 ] In the notice of appeal filed in this Court, Ms. W had originally included the issue of whether the trial judge had erred in his consideration of Mr. G’s past behavior in this regard. However, at the appeal this Court was advised by counsel on behalf of Ms. W that this ground of appeal was not being argued. In Ms.

W’s factum, the matter is addressed in paragraph 19, as follows: The Appellant’s notice of appeal also enumerated grounds which raised issues concerning Mr. G.’s “acts of violence”, “angry and

abusive outbursts”. Those issues are hereby abandoned and need not be determined by this Honourable Court. [ 70 ] As a result, this issue was not argued by counsel for Ms. W or Mr. G at the appeal hearing, and will not be further reviewed in considering the factors, in the Act , which the trial judge examined. The trial judge’s consideration of the Gordon factors [ 71 ] In addition to the factors in the Act , the trial judge also considered the law and factors in the Gordon case, again dealing with each factor individually under separate headings.

The analysis of the Gordon factors can be found at paragraphs 39 to 44 of the trial judgment. [ 72 ] The specific Gordon factors considered by the trial judge were: 7(

a) and (b): the existing shared parenting arrangement and the relationship of the child with both Ms. W and Mr. G in this arrangement; 7(c): the desirability of maximizing contact between the child and both parents; 7(e): Ms.

W’s reasons for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; 7(f): the disruption to the child of a change in custody; and 7(g): the disruption to the child consequent on removal from family, schools, and the community she has come to know. [ 73 ] The only Gordon factor not considered was (d), ‘the views of the child’, as this factor did not apply in these circumstances. [ 74 ] In considering the Gordon factor relating to maximizing contact with both parents, the trial judge emphasized that the child has thrived under the shared parenting arrangement, with both parents playing a large role in her life.

He noted that while life circumstances and a wonderful career opportunity have led Ms. W to Victoria, the success achieved through the shared parenting in this case, and the resulting close bonds between the child and her parents, required a future custodial arrangement that maximized contact with both parents. [ 75 ] The trial judgment dealt at some length with another Gordon factor, Ms. W’s reason for moving, which was to study and work in a PhD program in Victoria. [ 76 ] On appeal, counsel for Ms.

W argued that the trial judge did not give appropriate consideration and weight to the reason for the move, and that the positive outcomes for her daughter which would result from the move were not appropriately considered in Ms. W’s favour. [ 77 ] The judgment reveals that the trial judge understood Ms. W’s position that, undertaking PhD studies in this way would benefit not only her but also her daughter. The trial judge, at paragraph 41, stated Ms.

W’s position as follows: … Ms. [W] said that she had always had the dream of doing her PhD… Ms. [W] maintained that this particular PhD program was an opportunity of a lifetime which she could not pass up. It enables her to pursue her dream in science and it will significantly improve her ability to earn a living and provide for her daughter, removing the financial stresses they have experienced in the past from time to time.

In pursuing this program, she would be a role model for [her daughter], proving to her that the “sky is the limit” when it comes to a woman setting and achieving her life goals. … [ 78 ] The trial judge understood the importance of this opportunity for Ms. W, stating: “Needless to say, this was a wonderful opportunity that Ms. W wished to pursue and she accepted the program which commenced in September 2016”. [ 79 ] The trial judge was also mindful that, according to the Gordon factors, Ms.

W’s reason for moving should be considered “only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child.” As well, the Gordon factors indicate that “the focus is on the best interests of the child, not the interests and rights of the parents.” [ 80 ] That is, the trial judge appeared to appreciate that, even where the reasons for moving were laudable (for example, that the move in this case might result in future financial benefits, due to Ms. W’s higher education, and would provide a positive role model for Ms.

W’s daughter), the focus must remain on the best interests of the child. [ 81 ] The trial judge stated on this point: [Ms. W] maintained that what was good for her and her happiness, by extension would be good for [her daughter].

While this might be true, the legal test requiring an assessment of [the child’s] best interests requires the Court to primarily focus on the impacts of the move on the child, both positive and negative, rather than the indirect benefits that may or may not be realized through the parent achieving her goals and being generally happier with her life.” [ 82 ] I would not interpret this to mean that the trial judge in any way diminished the benefits of, or questioned the reasons for, Ms. W’s move to Victoria.

Rather, I would interpret the trial judge’s comments as placing the reasons for moving in the larger context of determining what is in the best interests of the child, as required by the legislation and case law.

In light of the direction in Gordon , and the Act , I would not conclude that the trial judge erred in this regard. [ 83 ] On the remaining Gordon factors, the trial judge indicated that any custodial order had to minimize the disruption in the child’s life, which would be caused by the change from the present shared parenting arrangement to an arrangement where she would not be seeing one of her parents for extended periods of time. The trial judge also concluded, based on the evidence, that the child’s life in Victoria would not offer the same connections to family and community as are available to her in St.

John’s.

The trial judge’s conclusion on the best interests of the child [ 84 ] The trial judge considered the factors in the Act and in Gordon , as described above, and related these factors to the evidence in this matter. The trial judge also considered what parenting proposal would be in the child’s best interest, and made a fact-based discretionary order which would, in the trial judge’s assessment, be in the child’s best interests.

Did the trial judge err in this regard? [ 85 ] Having reviewed the trial judge’s analysis, I conclude that the trial judge did not err either in his identification of the applicable law, in his application of the law to the facts and evidence in this case, or in the conclusion reached regarding the best interest of the child. [ 86 ] As such, the trial judge’s decision is entitled to deference. [ 87 ] As stated above, a fact-based discretionary determination merits deference absent a material error which would mandate appellate interference. [ 88 ] In reviewing the trial judge’s analysis and ultimate determination, I am not persuaded that the trial judge committed an error in principle which would constitute an error of law. [ 89 ] Nothing in the reasons for judgment suggests the trial judge failed to take into account any relevant factor or that he took into account an irrelevant factor.

Rather, a review of the trial judgment reveals the trial judge carefully considered the relevant factors in the Act and in Gordon , that he carefully considered the evidence, and that he applied the factors to the evidence. [ 90 ] There is also nothing to indicate the trial judge failed to give sufficient weight to the relevant factors or that he overemphasized relevant factors. [ 91 ] On the contrary, the record indicates the trial judge heard the evidence, applied the applicable law correctly and made a decision which, in his discretion, he was entitled to make.

In those circumstances, not only is appellate intervention unwarranted but, as the Supreme Court of Canada has clearly stated, such intervention would be inappropriate. [ 92 ] In this respect, I would reiterate and agree with the comments of Justice White of this Court in F.F.R. v.

K.F. , 2013 NLCA 8 , 332 Nfld. & P.E.I.R. 262 , which comments were also made in the context of an appeal of a custody determination, where at paragraph 20 it is stated: “ This Court will not engage in a reweighing of the evidence where there was no serious misapprehension of it.” [ 93 ] I would conclude that the trial judge made no error in this regard. Issue 2: Did the trial judge err in not determining that Ms. W was the child’s “primary caregiver and de facto custodial parent”? [ 94 ] There is another issue which counsel for Ms.

W argued on this appeal, which is more global in nature. [ 95 ] The argument is that the trial judge made an error at the beginning of his analysis by failing to find that Ms. W was, in the words of Ms. W’s counsel, the “primary caregiver and de facto custodial parent”. [ 96 ] The position of counsel for Ms. W on this issue is that, based on the evidence, the trial judge should have identified Ms. W as the primary caregiver and the custodial parent before applying the factors in the Act and in Gordon . [ 97 ] Had the trial judge done so, it is argued, Ms.

W’s views on all aspects of this matter would have been entitled to “great respect and serious consideration”. That is, the trial judge would have been required to apply the factors relating to the best interests of the child through a different lens, which would have been more deferential to and supportive of Ms. W’s views regarding her request to relocate with her daughter. [ 98 ] Counsel for Ms. W argues that the trial judge’s failure to identify Ms.

W as the primary caregiver and de facto custodial parent, meant that her views were not accorded the respect and consideration they would otherwise have commanded, and that this was an error which tainted the trial judge’s entire analysis and his ultimate finding. [ 99 ] Taken to its natural conclusion, the argument is that the trial judge was required to give Ms. W’s views and position “great respect and serious consideration”, and that the trial judge’s failure to do so was an error.

This error, it is argued, caused the trial judge to erroneously conclude that the child’s permanent relocation to Victoria to live with Ms. W was not in the child’s best interests. [ 100 ] In her factum, Ms. W’s offers examples as to why, despite an arrangement where the child spent equal time living with each parent, she should be considered the de facto custodial parent.

Excerpts from the factum on this point include the following: Ms. [W] says she drove [the child] to and from day care and appointments whereas Mr. [G] had no licence, and even after obtaining a licence relied heavily on his parents to pick up and drop off [the child]. Ms. [W] says she researched and chose [the child’s] daycare… has arranged and transported [the child] to medical appointments. Ms. [W] organized [the child’s] birthday parties; she made the cake and arranged the food; she set up the decorations and cleaned up the mess. … …Ms. [W] asserts that she has been the primary caregiver for [the child].

She takes the position that the decision she made to seek to relocate with [the child] was not made lightly. The decision was in her view in [the child’s] best interest and Ms. [W’s] views as primary parent are “entitled to great respect and the most serious consideration”. She further states that the learned trial judge failed to consider or give any weight [to] this legal principle…

[ 101 ] For the reasons which follow, I am not persuaded that the trial judge erred in this regard. [ 102 ] First, the record and the evidence at the hearing does not support the conclusion that Ms. W was the “primary caregiver and de facto custodial parent”. Rather, as the trial judge stated and the record supports, this was a shared parenting arrangement where the child spent equal time living with Ms. W and Mr. G. Indeed, there was evidence of Mr. G’s involvement in some of the very activities mentioned by Ms.

W, including his involvement in selecting child care arrangements, participating in the planning of birthday celebrations, arranging for the child’s transportation etc. [ 103 ] Moreover, the argument that, despite a 50/50 shared parenting arrangement, Ms. W was more extensively involved in the child’s life in a way that would make her the primary parent, was addressed at the hearing and rejected, based on all the evidence.

There was ample evidence to support the conclusion that both parents were extensively involved in all facets of the child’s life, from mundane, quotidian tasks to the more significant parenting decisions, and the trial judge’s determination that this was a shared parenting arrangement is entitled to deference. [ 104 ] Further, the parsing of parental activities and duties in the way proposed by Ms. W would not appear to be an optimal, or even a workable, method to determine whether there is a primary caregiver in the context of a shared parenting arrangement.

When considered outside the context of the overall evidential picture (which the trial judge would have had) this parsing of parental activities may be unhelpful, or even misleading, in terms of determining the respective roles of each parent. [ 105 ] An assessment of parental activities and responsibilities in this regard should not be reduced to a scoresheet detailing which parent attends to which duties. Rather, a more holistic or comprehensive approach would appear to be more reasonable, and workable, taking account of the parents’ overall respective roles in the life of the child.

This determination would be fully in the purview of the trial judge to make, based on the record. [ 106 ] The Court was referred to the case of Burns v. Burns , 2000 NSCA 1 , 182 N.S.R. (2d) 101 , in support of Ms. W’s position. A review of Burns reveals that the factual situation and evidentiary basis in that case was markedly different than that which the trial judge considered regarding Ms. W and Mr. G. The evidence in Burns supported a finding that the mother was the primary caregiver and the de facto custodial parent. This is unlike the present situation with Ms. W and Mr. G. [ 107 ] Second, even if Ms.

W was the primary caregiver and de facto custodial parent, which is not the case, this would not lead to any legal presumption that she would be entitled to relocate with the child to Victoria. [ 108 ] In Gordon , the Supreme Court of Canada rejected this idea of a legal presumption, stating, at paragraph 47: ‘ I would reject the submission that there should be a presumption in favour of the custodial parent in applications to vary custody and access resulting from relocation of the custodial parent.” [ 109 ] The Court went on, in paragraph 48, to state that the views of the custodial parent are entitled to “great respect and the most serious consideration”.

This appears to be the source of Ms.

W’s argument that the trial judge was required to give her views great respect and serious consideration. [ 110 ] However, in this regard, the Supreme Court of Canada in Gordon also indicated that the custodial parent was the parent “who lives with the child and is charged with making decisions in its interest on a day-to-day basis…” (paragraph 48). [ 111 ] In this case, both parents lived with the child and made decisions in the child’s best interests on a day-to-day basis; therefore both parents’ views would be entitled to great respect. [ 112 ] Even if this was a situation where one parent was the custodial parent and primary caregiver, and the other parent was the “access parent” (which is not the case with Ms.

W and Mr. G), the views of the access parent “should not be ignored in any best interest analysis” (see for example Bennett v. Nuttall-Bacon , 2017 NLTD(F) 4 at paragraph 24). [ 113 ] In any event, I am of the view that the trial judge in this case, in his deliberations regarding the best interests of the child, did accord appropriate respect and consideration to the views of both Ms. W and Mr. G, and considered both positions appropriately. [ 114 ] There is no evidentiary basis to conclude that Ms. W’s views should have been granted a higher priority.

The ultimate issue for the trial judge, regardless of the views espoused by either party, was what was in the best interests of the child. The trial judge determined this issue based on the law and the evidence, and his determination should not be lightly displaced. [ 115 ] I would conclude that the trial judge did not err in this respect.

SUMMARY [ 116 ] For the reasons provided above, I would dismiss the appeal and confirm the order of the trial judge. [ 117 ] I would make no order as to costs. Appeal dismissed.