2013 NBCA 24, 2013 NBCA 24

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 93-12-CA T.L. (Applicant) APPELLANT T.L. (Requérante) APPELANTE - and - - et - A.C. (Respondent) RESPONDENT A.C. (Intimé) INTIMÉ T.L. v. A.C., 2013 NBCA 24 T.L. c.

A.C., 2013 NBCA 24 CORAM: The Honourable Justice Turnbull The Honourable Justice Larlee The Honourable Justice Quigg CORAM : L’honorable juge Turnbull L’honorable juge Larlee L’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: June 28, 2012 Appel d’une décision de la Cour du Banc de la Reine : Le 28 juin 2012 History of case: Decision under appeal: Unreported Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : Inédite Procédures préliminaires ou accessoires : S.O.

Appeal heard : January 23, 2013 Appel entendu : Le 23 janvier 2013 Judgment rendered: March 28, 2013 Jugement rendu : Le 28 mars 2013

Counsel at hearing: For the appellant: Rita Godin For the respondent: Terence R. Connelly Avocats à l’audience : Pour l’appelante : Rita Godin Pour l’intimé : Terence R. Connelly THE COURT The appeal is dismissed with costs of $2,000. LA COUR L’appel est rejeté avec dépens de 2 000 $. The following is the judgment delivered by THE COURT I. Introduction [ 1 ] This appeal raises once again the issue of the proper analysis to be undertaken by judges when considering custody orders in a context that brings into play the mobility of children. II.

Background [ 2 ] The parties lived in a common-law relationship in the Bathurst area for nine years, and separated in March 2009. They have one child who is presently seven years of age. After the separation, the mother moved to an apartment in Bathurst and the father retained the residence in which the parties had cohabited. The parties arranged their own access

schedule whereby the mother would have care of the child from Monday to Friday and the father from Friday to Monday. This arrangement worked to the benefit of both parties as it accommodated their work schedules and maximized their contact with the child. Both parties have large, extended families who reside in the Bathurst area and are involved in the child’s life on a regular basis. These family members include grandparents, great grandparents, aunts, uncles and cousins. The child has attended the same elementary school since commencing school and is involved in extra-curricular activities.

In 2010, the mother became engaged to a man who resides in Saskatchewan and married him on December 23, 2011. The mother wishes to relocate to Saskatchewan with the child. III. Procedural History [ 3 ] On November 26, 2010, the mother filed a Notice of Application (Form 73AA) requesting an equal division of debts, sole custody of the couple’s child, child support and permission to move the child with her to Saskatoon, Saskatchewan. Two consent orders were signed by the judge prior to the hearing of the Application.

The first, dated January 7, 2011, permitted the mother to travel with the child to visit Saskatchewan for the period of January 13 to January 30, 2011. In the second consent order, dated May 9, 2011, the parties agreed to joint custody with primary care and residence with the mother. They also resolved upon interim child support. The father was granted liberal and generous access to the child, and the previous access arrangement continued. The issue of relocation remained to be determined. [ 4 ] A hearing was held on May 15, 2012. In his decision, the judge determined the parties would

have joint custody of their son, with primary care and principal residence remaining with the mother. The father was granted liberal andgenerous access, as had been exercised from the date of separation. However, the judge denied the mother’s request to move the child toSaskatchewan. IV. Issues [5] The mother submits the judge erred in law by: 1. Misstating she bore the burden of proof to establish moving the child was in his best interests; 2. Misapplying the principles enunciated in Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, [1996] S.C.J. No. 52(QL); 3.

Failing to provide sufficient reasons for his decision; and 4. Making a procedural ruling during the trial. V. Standard of Review [6] As to the proper standard of review of the decision not to allow the child to move toSaskatchewan, the decision in P.R.H. v. M.E.L., 2009 NBCA 18, 343 N.B.R. (2d) 100, is determinative. Larlee J.A. states: The appropriate standard of review to be applied in an appeal of this nature is discussed in Van de Perre c. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014; [2001] S.C.J. No. 60 (QL); 2001 SCC 60.

The Supreme Court of Canada set out a standard ofconsiderable deference for the decisions of trial courts in cases of family law. Intervention on appeal requires that there have been amaterial error, a serious misapprehension of the evidence, or an error of law. A material error is further explained: As indicated in both Gordon and Hickey, (SCC), [1999] 2 S.C.R. 518, the approach to appellate review requires anindication of a material error. If there is an indication that the trial judge did not consider relevant factors or evidence, this might indicatethat he did not properly weigh all of the factors.

In such a case, an appellate court may review the evidence proffered at trial to determineif the trial judge ignored or misdirected himself with respect to relevant evidence.

This being said, I repeat that omissions in the reasonswill not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. [...] [para. 15] Speaking for the Court, Bastarache J. further clarified that "an omission is only a material error if it gives rise to the reasoned belief thatthe trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion" (para. 15). See thisCourt's decisions on the application of the deferential standard: MacLean v. MacLean (2004), 274 N.B.R. (2d) 90, [2004] N.B.J.

No. 363(QL), 2004 NBCA 75 at para. 18; J.P. v. R.R. (2004), 278 N.B.R. (2d) 351, [2004] N.B.J. No. 467 (QL), 2004 NBCA 98 at para. 27;Scott v. Scott (2004), 278 N.B.R. (2d) 61, [2004] N.B.J. No. 468 (QL), 2004 NBCA 99 at para. 32 and Boudreau v. Brun (2005), 293N.B.R. (2d) 126, [2005] N.B.J. No. 501 (QL), 2005 NBCA 106 at para. 5. [paras. 8-9] In brief, deference is owed to the trial judge's assessment of the evidence when it comes to deciding who should have custody and onwhat terms. However, no deference is owed with respect to errors of law. VI.

Analysis [7] It is the mother’s position that the judge made various errors in law which allow this Court tointervene, set aside the decision and order a new trial to be held in the Court of Queen’s Bench, Family Division. For the reasons that

follow, we do not agree. A. Statement Regarding “Burden of Proof” [ 8 ] The mother contends an error in law was made when the judge stated in his decision that she bore the burden of proving the move to Saskatchewan was in the best interests of the child, contrary to Gordon v. Goertz .

It is evident that, although the judge may have made a poor choice of words, he meant there is an evidentiary burden upon the mother to prove that allowing the child to move with her to Saskatchewan was in the child’s best interests, and the father also had an evidentiary burden to show why it was in the child’s best interests to remain in Bathurst. As such, each party had to show the judge, on an evidentiary basis, which of the two options was in the best interests of the child. In Gordon v. Goertz , the Court asserts: The Ontario Court of Appeal weighed both views in Carter v. Brooks , supra .

Morden A.C.J.O., speaking for the court, rejected the idea of a presumption in favour of the custodial parent. In his view, "[b]oth parents should bear an evidential burden" of showing where the best interests of the child lie. He agreed that while judges should accord a "reasonable measure of respect" to the views of the custodial parent, whose own best interests are relevant in determining those of the child, they should not be obliged to defer to the custodial parent as a matter of law.

Rather, the judge should balance the relevant factors "without any rigid preconceived notion as to what weight each factor should have" (p. 63). The process should not "begin with a general rule that one of the parties will be unsuccessful unless he or she satisfies a specified burden of proof" (p. 63). In Morden A.C.J.O.'s view, "[t]his over-emphasizes the adversary nature of the proceeding and depreciates the Court's parens patriae responsibility" (p. 63).

He rejected the language of parental "rights" which coloured some earlier cases, stating (at p. 61): . . . the only principle that governs is that of the best interests of the child and . . . it does not assist in applying this principle to rely upon a mechanical proposition such as that quoted in Landry which includes the expression 'the right to remove'. [para. 29] [Emphasis in original.] In the decision, the judge reviews the evidence presented by both parties pertaining to the best interests of the child and makes no error in determining that the mother did not meet the evidential burden, while the father did.

B. The judge misapplied the principles established in Gordon v. Goertz [ 9 ] In Gordon v. Goertz , the Supreme Court determined the minimum legal factors to be considered by courts when determining the best interests of the child in mobility cases: 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. 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] [ 10 ] Although it would have been preferable for the judge to refer to Gordon v.

Goertz and review the principles contained therein, it is apparent he correctly considered the principles established by the Supreme Court. He states in the decision that: “The case law cited by both parties in their briefs adequately describes the jurisprudence on this issue…” (para. 19). A review of the briefs filed by both parties with the Court of Queen’s Bench, Family Division, reveals that both parties refer to, and outline the principles contained in Gordon v. Goertz .

The judge describes the primary factor to be considered in cases such as these to be the “best interests of the child”, and not “what’s more accommodating or what’s best for the parents” (para. 18). In our view, although not clearly articulated, the judge does apply the principles delineated in Gordon v. Goertz , and this is reflected throughout paragraphs 17-27. In the decision, the judge states the following: […] [t]he primary criterea in a mobility case […] is what’s in the “best interests of the child” […] . […] […] As previously mentioned, this particular case contains favorable elements to both parties.

One cannot question the parental capacities of either party; and there is no evidence to raise any sort of doubt as to the parental capacities, respectively. As a matter of fact, both parties are to be commended for their cooperative efforts and in raising their child jointly with the help and assistance of their extended families […] . […]

The child is loved by both of his [parents], the child is with each of his parents frequently, thus receiving maximum contact, the child has a circle of friends and relatives in the vicinity, the child attends school locally […] . [paras. 18, 20 and 22] These statements all indicate the judge applied the principles of Gordon v. Goertz to the present case. As such, there is no error in law in deciding it is in the child’s best interests to remain in the Bathurst area. C. Insufficient Reasons [ 11 ] In P.R.H. , paragraphs 10-14 , this Court undertook a review of the jurisprudence respecting this issue.

Both parties have referenced this case in their briefs. What can be condensed from P.R.H. is that parties are entitled to know why the judge reached his or her decision, and that the reasons must be sufficient to allow for appellate review. It is clear to us the judge did apply the criteria set out in Gordon v. Goertz by evaluating what is in this child’s best interests, the relationship the child has with each parent, the ideal of maximum contact, the child’s extended family, school, and other activities. As indicated, it would have been preferable for the judge to set out the principles formulated in Gordon v.

Goetz and then apply the criteria to the facts of this case, but it is very apparent that these principles were at the forefront when he made his determination. It is clear to us how he reached his conclusion that it is in the child’s best interests to remain in the Bathurst area, and it is unreasonable for the mother to say that she does not know how he made this determination. This case is unique in that both parents truly share the parenting responsibilities of the child. Thus, the judge’s reasons are sufficient. D.

Procedural Ruling [ 12 ] Rules 73.01 and 73.02 of the Rules of Court state: 73.01 Application of Rule Subject to Rule 73.011, civil proceedings in the Family Division of the Court of Queen’s Bench shall be conducted in accordance with this rule unless

an Act provides otherwise. 2010-135 […] 73.02 Application of Other Rules The other rules of court except where inconsistent with this rule or

an Act, apply to proceedings in the Family Division. 73.01 Champ d’application de la règle Sauf disposition contraire d’une loi et sous réserve de la règle 73.011, les instances civiles devant la Division de la famille de la Cour du Banc de la Reine sont régies par la présente règle. 2010-135 […] 73.02 Application des autres règles À moins qu’elles ne soient incompatibles avec la présente règle ou avec une loi, les autres règles de procédure s’appliquent aux instances devant la Division de la Famille.

[ 13 ] Rule 39.02 of the Rules of Court also states : 39.02 By Examination of a Witness Prior to the Hearing

(1) Prior to the hearing of a motion or application, a person who is not a party to the proceeding may be examined, cross-examined and re-examined, for the purpose of having a transcript of his evidence available for use upon the hearing thereof, and the procedure set out in Rule 33 applies. On the Hearing

(2) With leave of the presiding judge, a person may be orally examined or cross-examined on the hearing of a motion or application. 39.02 Par audition de témoins Avant l’audience

(1) L’interrogatoire, le contre-interrogatoire et le réinterrogatoire d’une personne non

partie à l’instance peuvent se faire avant l’audition de la motion ou de la requête afin qu’une transcription de sa déposition soit disponible à l’audience. Dans ce cas, la procédure établie à la règle 33 s’applique. À l’audience

(2) Avec la permission du juge présidant l’audience, toute personne peut être interrogée ou contre-interrogée lors de l’audition d’une motion ou d’une requête. [ 14 ] The mother submits the judge erred in law by making a procedural ruling during the hearing that the parties had to make a motion to have oral evidence by non-parties, or by individuals who had not deposed to affidavits. She contends that by so doing, her husband’s testimony was restricted to one issue.

The father says Rule 39 applies to all Notices of Application, whether it be a Notice of Application (Form 16D), a Notice of Application (Form 73A), or a Notice of Application (Form 73AA). As the parties in this case were not married, they had to proceed by way of Notice of Application (Form 73AA), pursuant to Rule 73.17.1 of the Rules of Court . [ 15 ] At the beginning of the hearing, the judge said: THE COURT: We are in the context of an application under Rule 39, oral examination testimony will be limited to the authors of the two affidavits that are on file.

Are there any motions to allow testimony by others or is that all we’re looking at is two witnesses this morning? Therefore, the parties were given the opportunity to make a motion requesting testimony from individuals other than the parties. The mother’s lawyer (not counsel on appeal) declined the opportunity: Mother’s lawyer: I think that’s what it’s going to come down to Mr. Justice, two witnesses.

[ 16 ] When the hearing resumed after a noon break, the judge stated: THE COURT: […] when we left this morning you had made a comment that struck me and I would like to clarify for the record. I don’t specifically recall what I said at the opening of today’s trial on the issue of witnesses but it appears that you perhaps may have misunderstood me and I want to clarify that. I did not rule that there would only be two witnesses today.

I simply stated or I intended to state or I thought I had, that neither party had made a motion to have oral evidence by non-parties or by persons who had not authored an Affidavit. […] [ 17 ] It therefore follows the parties were given a second opportunity to make motions to call additional testimony. The mother’s lawyer did choose to call the mother’s husband, who had not authored an affidavit, nor was a party to the proceedings, but on a limited basis: THE COURT: And who do you propose to call? Mother’s lawyer: I propose to call T. L. and to add further clarification Mr. L. but strictly on that point.

No other point. [ 18 ] The mother argues the judge erred by restricting her husband’s testimony to one issue. A review of the transcript reveals this statement to be inaccurate. It was the lawyer representing the mother at the hearing who chose to limit the husband’s testimony to one issue, not the judge. It is apparent that both parties were given the opportunity to make motions to call witnesses of their choice and the judge did not limit the witnesses to the authors of the affidavits. [ 19 ] The mother also contends Rules 38 and 39 do not apply to Notices of Application under Rule 73.17.1.

Rule 73.02 states the other Rules apply to proceedings in Family Division, except where inconsistent with Rule 73 or

an Act. We fail to see any inconsistency. The mother submits in her written brief: […] That custody trials, and especially those involving mobility issues, are rarely decided on just the affidavits of the parties alone.

There can be other parties called to assist the court in the determination of what is in the best interests of the child. […] That the practice is not to require a motion to call witnesses other than the parties to the matter, or those that have offered affidavits. [para. 44] [Emphasis added.] There may be a practice that has developed in the Family Division of the Court of Queen’s Bench not to require motions, but that does not prohibit a judge from doing so. We therefore do not find this ground to be of merit. VII.

Disposition [ 20 ] We therefore dismiss the appeal, affirm the application judge’s decision, and award costs of $2,000. ________________________________ W.S. TURNBULL, J.A.

________________________________ M.E.L. LARLEE, J.A. ___________________________________ KATHLEEN A. QUIGG, J.A.