2021 NLCA 57, 2021 NLCA 57

M.J.B. (appellant) v. C.A.B. (respondent) (20/37 and 20/43) Indexed As: M.J.B. v. C.A.B. 2021 NLCA 57 7 C.A.N.L.R. 158 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L, Butler and Knickle JJ.A. December 15, 2021

Summary: This matter involved divorce proceedings between the parties. The mother, M.J.B., appealed two interim orders of the applications judge. The first order granted the father, C.A.B., compensatory access with two of the children due to a wrongful denial of access by the mother. The second order was in relation to the children’s schooling; M.J.B. had applied to have the three children change schools. The applications judge ordered that the eldest child was permitted to change schools, but ordered that the two youngest children were to remain in their current schools.

M.J.B. appealed the order for compensatory access, as well as the schooling order as it related to the two younger children. Held: Appeals dismissed. Fry C.J.N.L. (Butler and Knickle JJ.A. concurring): There was no basis to interfere with the applications judge’s order for the father to have compensatory access with the children. The judge found that the mother’s decision to deny the father access in March of 2020 was reasonable, but that the subsequent denials of access for the week of April 27 and on May 11 were unreasonable.

There were no factors or evidence to justify the denial of access for those times (paragraphs 3-9). The applications judge made no error with regard to the schooling order. The applications judge held that it was not in the best interest of the two younger children to change schools, as the evidence disclosed that they had a close and longstanding connection with their current school in terms of teachers, friends and extracurricular activities.

Further, the two younger children were in a shared parenting arrangement; the parents would have been inconvenienced by the transportation requirements to and from school due to the distance between the two parents’ residences. The applications judge’s schooling order was based on the evidence and the best interests of the children (paragraphs 10-13). Counsel: Appearing on her own behalf, the appellant; Appearing on his own behalf, the respondent. The appeals were heard and decision rendered orally on December 15, 2021 by the Court.

The following memorandum of disposition was filed on December 16, 2021 by Fry C.J.N.L. for the Court. ______________________________________________________________ MEMORANDUM OF DISPOSITION Fry C.J.N.L.: BACKGROUND [ 1 ] These appeals involve the divorce proceedings between M.J.B. and C.A.B. The parties have an extensive litigation record in the

Family Division. Between February 2015 and June 2020 there have been 23 parenting orders, many of which arise from interim applications. There are many other applications, hearings and decisions involving financial matters. This is a high conflict family dissolution involving five children. [ 2 ] The mother, M.J.B., is appealing two interim orders of the applications judge. The first decision on May 12, 2020, granted the father compensatory access with the two youngest children due to a wrongful denial of access by the mother. These two children were in a week on/week off shared parenting arrangement.

The second decision on June 2, 2020, was in relation to schooling for the three youngest children of the marriage. The oldest of the three children was permitted to change schools. The mother is only appealing the schooling order as it relates to the two youngest children. The First Appeal 2020-01H-0037 - Compensatory Access [ 3 ] The first appeal relates to the order arising from the interim application for compensatory access. This application was heard during the first few months of the Covid-19 pandemic.

The father alleged that he was denied access to the two youngest children of the marriage on three occasions between March 16 and May 12, 2020. [ 4 ] The applications judge found that the mother’s denial of access during the weeks of March 16 and 30 was not unreasonable given that the children were exhibiting flu-like symptoms and given the recent onset of the Covid-19 pandemic. [ 5 ] The mother had asserted that she was owed compensatory time and had decided to take it during the weeks of March 16 and March 30.

The applications judge held that that any compensatory time owed to the mother for alleged past denials of access was satisfied by the two extra weeks of access that the mother had during the weeks of March 16 and March 30. [ 6 ] The applications judge further found that the mother had wrongfully denied the father access to the children of the marriage during the week of April 27, 2020 and on the first day of his next access period.

He ordered that the father was to have compensatory access with the children by extending the father’s regular parenting time of seven days on/seven days off by four days in each of two cycles. The applications judge also ordered that the father was to ensure that public health measures were being followed. [ 7 ] The judge’s decision made it clear that he considered all the facts put forward by the legal counsel for both parties. He found the mother’s denial of access in March was not unreasonable in the circumstances but that her further denial for the week of April 27 and on May 11 was unreasonable.

There were no factors or evidence to justify the denial. The judge compensated the father with eight days of access divided into two blocks of four days, stating that he was bearing in mind the children’s best interests in having the least interruption with the relationship with the older sibling living full time with the mother. [ 8 ] The father took a limited position on this appeal. He advised the Court that he had not taken the eight days of compensatory access and was willing to forego them to avoid further conflict.

The mother advised the Court that he may not have been entitled to the eight days because, at a subsequent hearing several months later, the judge said that there was no compensatory access. This Court had no information with respect to the subsequent hearing, orders which may have issued, or even whether the subject matter was relevant or related to this appeal. [ 9 ] There is no basis to interfere with the exercise of the judge’s discretion. The Second Appeal 2020-01H-0043 - Schooling [ 10 ] The second appeal relates to the order of the applications judge regarding the children’s schooling.

The mother’s interim application sought to have the three youngest children change schools. They were born in 2005, 2007 and 2009. The child born in 2005 was at the time of the application, living full time with his mother, while the other two were in a week on/week off shared parenting arrangement. The mother sought to have the three children attend school in Conception Bay South, where she now resided, as opposed to St.

John’s, where the father resided. [ 11 ] The applications judge reviewed all of the evidence before him including the evidence that this child, at 15 years old, had expressed his desire to change schools to his mother, his father and various counsellors and therapists.

The applications judge found that it was in the best interests of this child, as he transitioned from junior high to high school, in the Fall of 2020, to attend school in the Conception Bay South catchment area where he was residing full time with his mother. [ 12 ] The applications judge held that it was not in the best interests of the two younger children to change schools as the evidence disclosed that they had a close and longstanding connection to their school in terms of teachers, friends and extracurricular activities.

These children were in a shared parenting arrangement and one or other of the parents would be inconvenienced by the transportation requirements to and from school, given the distance between the two residences. The applications judge ordered that they remain in their current schools. [ 13 ] The applications judge made no error in his decision on this application. The schooling decisions for all three children were based on the evidence and the best interests of the children. [ 14 ] In the result, we dismissed both appeals with no order as to costs. Appeals dismissed.