2011 NBCA 50, 2011 NBCA 50

COURT OF APPEAL OF NEW BRUNSWICK 66-10-CA BLAKE MANN (Respondent) APPELLANT BLAKE MANN (Intimé) APPELANT - and - - et - STÉPHANIE GLIDDEN (Applicant) RESPONDENT STÉPHANIE GLIDDEN (Requérante) INTIMÉE Mann c. Glidden, 2011 NBCA 50 Mann c.

Glidden, 2011 NBCA 50 CORAM: The Honourable Justice Larlee The Honourable Justice Deschênes The Honourable Justice Richard CORAM : L’honorable juge Larlee L’honorable juge Deschênes L’honorable juge Richard Appeal from a decision of the Court of Queen’s Bench: May 10, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 10 mai 2010 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: January 27, 2011 Appel entendu : Le 27 janvier 2011 Judgment rendered: May 26, 2011 Jugement rendu : Le 26 mai 2011

Counsel at hearing: For the appellant: Claude A. Haché For the respondent: Guy Dumas Avocats à l’audience : Pour l’appelant : Claude A. Haché Pour l’intimée : Guy Dumas THE COURT The appeal is dismissed with costs of $2,500. LA COUR Rejette l’appel avec dépens de 2 500 $. The following is the judgment delivered by THE COURT [1] On May 12, 2010, a judge of the Court of Queen’s Benchissued an interim custody order in the course of a divorce proceeding commenced inNew Brunswick. The order supersedes one made in the Provincial Court of Albertaunder provincial legislation: Gillespie v.

Gillespie (1973), (NB CA),6 N.B.R. (2d) 227, [1973] N.B.J. No 33 (C.A.) (QL) at para. 20. With leave, BlakeMann, the father, appeals the order. He submits it should be set aside because thedivorce proceeding should be heard in Alberta and that the judge erred by ruling thatthe “balance of convenience” favours the Province of New Brunswick. He also allegesthe judge erred in not giving effect to s. 130.3(1) of the Family Services Act, S.N.B.1980, c. F-2.2. [2] Section 6(1) of the Divorce Act, R.S.C. 1985, c. 3 (2ndSupp.), states as follows: 6(1) Where an application for an order under

section 16 [for custody] is made in a divorce proceeding to a court in a province and isopposed and the child of the marriage in respect of whom the order is sought is most substantially connected with another province, thecourt may, on application by a spouse or on its own motion, transfer the divorce proceeding to a court in that other province. [3] This provision clearly contemplates the exercise of judicialdiscretion: Shields v. Shields, 2001 ABCA 140, [2001] A.J. No. 761 (QL), at para. 6. In the present case, there was a connection between the parties and the child and theProvince of Alberta, but there was also a connection with the Province of New

Brunswick. The judge of the Court of Queen’s Bench weighed the factors, considered the best interest of the child, and made a decision in the exercise of his discretion whether or not to accept jurisdiction. It is settled law that such a decision will only be interfered with on appeal “if it is founded upon an error of law, an error in the application of the governing principles or a palpable and overriding error in the assessment of the evidence … or if it is unreasonable, in the sense that nothing in the record can justify it”: Beaverbrook Canadian Foundation v.

Beaverbrook Art Gallery , 2006 NBCA 75 , 302 N.B.R.(2d) 161 at para. 4 . We find no such error in this case. Furthermore, the decision is not unreasonable. [4] As for the submission that the judge should have given effect to s. 130.3(1) of the Family Services Act , the answer is simple: the interim order issued in this case was not issued under the Family Services Act ; it was issued under the Divorce Act ; and, accordingly, s. 130.3(1) has no application. Similarly, T.M.A.H. v. J.J.G. , 2010 NBCA 4 , [2010] N.B.J.

No. 149 (QL) also does not apply, as it involved a proceeding brought under the Family Services Act . It is also noteworthy that this is not a case, as in T.M.A.H. , where “a material change in circumstances […] was the product of a unilateral act undertaken in an effort to frustrate a pending judicial proceeding” (para. 33). In the present case, the mother brought the child to New Brunswick with the father’s consent after obtaining an Interim Variation of Parenting Order. [5] For these reasons, the appeal is dismissed with costs of $2,500.00. ____________________________________ M.E.L.

LARLEE, J.A. _____________________________________ ALEXANDRE DESCHÊNES, J.A. ______________________________________ J.C. MARC RICHARD, J.A.