2012 NBCA 1, 2012 NBCA 1

COURT OF APPEAL OF NEW BRUNSWICK 53-11-CA D.E. (Respondent) APPELLANT D.E. (Intimé) APPELANT - and - - et - B.G.E. (Applicant) RESPONDENT B.G.E. (Requérante) INTIMÉE D.E. v. B.G.E., 2012 NBCA 1 D.E. c.

B.G.E., 2012 NBCA 1 CORAM: The Honourable Justice Turnbull The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Turnbull L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: March 10, 2011 Appel d’une décision de la Cour du Banc de la Reine : Le 10 mars 2011 History of Case: Historique de la cause : Decision under appeal: 2011 NBQB 70 Décision frappée d’appel : 2011 NBBR 70 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard : January 12, 2012 Appel entendu : Le 12 janvier 2012 Judgment rendered: January 13, 2012 Jugement rendu : Le 13 janvier 2012

Counsel at hearing: For the appellant: D.E. appeared in person For the respondent: David A. Estey Avocats à l’audience : Pour l’appelant : D.E. a comparu en personne Pour l’intimée : David A. Estey THE COURT The Order of the Court of Queen’s Bench, Family Division, dated March 29, 2011, is set aside. The matter is remitted to Justice French, of the Court of Queen’s Bench, Family Division, for a new hearing and determination, in accordance with the best interests of the children. There is no order as to costs.

Considering that it is in the best interests of the children that the question of their custody be resolved as soon as possible, and that further delay may result in an injustice or hardship, s. 24(2) of the Official Languages Act , S.N.B. 2002, c. O-0.5, is invoked and this decision will be published in the first instance in one official language and, thereafter, at the earliest possible time, in the other official language. LA COUR L’ordonnance rendue par la Cour du Banc de la Reine, datée du 29 mars 2011, est annulée.

L’affaire est renvoyée au juge French, de la Cour du Banc de la Reine, Division de la famille, qui devra entendre les parties et trancher conformément à l’intérêt des enfants. La Cour n’accorde aucuns dépens. Compte tenu du fait qu’il est dans l’intérêt supérieur des enfants que la question de leur garde soit résolue le plus tôt possible, et qu’un retard additionnel pourrait causer une injustice ou un inconvénient grave, le par. 24(2) de la

Loi sur les langues officielles , L.N.-B. 2002, ch. O-05, est invoqué et la présente décision sera publiée d’abord dans l’une des langues officielles puis, dans les meilleurs délais, dans l’autre langue officielle. The following is the judgment delivered by THE COURT [ 1 ] The appellant father and respondent mother were married in 1997 and separated in 2002. They have two children (A.E., born 1997 and R.E., born 1999). The parties lived separately and the children resided with the mother. There was no separation agreement or formal order.

During this period the parties had agreed the father would pay child support in the amount of $250 per month plus some additional amounts when the mother required financial assistance. In July 2009, the father was informed by the Minister of Social Development that he would be required to pay child support in accordance with the Federal Child Support Guidelines, as the mother was receiving social assistance. Regardless of the arrangement between the parties whereby the father paid $250 per month in child support, the Federal Child Support Guidelines required support in the amount of $570 per month.

The Minister brought an application before a judge of the Court of Queen’s Bench, Family Division, in April 2010, on behalf of the mother to collect the Guidelines amount. The application was granted. In May 2010, the father filed an application requesting sole custody of the children, or joint custody with the mother, but with the children to reside with him and his common-law-spouse.

The father raised several concerns respecting the children’s living conditions, issues they were both having at school, and allegations of verbal and possible physical abuse against the children by the mother’s partner. [ 2 ] A hearing was held on July 9, 2010, at which time the judge made an interim order that the status quo be maintained, that is the children reside with their mother, and a Voice of the Child Assessment to be conducted with each of the children. All issues were to be fully canvassed at a further hearing, which was held on September 21 and 27, 2010.

The trial judge upheld the existing custody and access arrangement, and characterized the motion “as flowing from Mr. E’s desire to avoid paying child support”. The decision was released on March 10, 2011.

[ 3 ] The judge concluded that although both parties were evenly matched insofar as “best interests of the children” , he found the father’s motion for custody of the children “ as flowing from the father’s desire to avoid paying child support” (para. 74). [ 4 ] Included in the father’s Grounds of Appeal are allegations that the judge made “a number of misquotes, errors, omissions and contradictions in the decision” which the father alleges are based on “incomplete facts and shows an overall lack of attention for the relevant details”.

He alleges that this was not “an informed decision, which is unethical”. [ 5 ] We are satisfied that when the judge concluded the father’s motivation for requesting custody was to avoid paying child support, the judge tipped the scales in favour of the mother on the basis of a consideration of doubtful relevance and for which, in any event, there was no substantive evidence. This conclusion should not have affected or determined his evaluation of what was in the “best interests” of the children.

Furthermore, we are alive to the current situation which would seem to indicate that events have overtaken the order under appeal. In particular, at the hearing we were informed that the parties had appeared before a different Family Division judge on October 12, 2011. The result of that hearing was an Interim Order dated October 21, 2011, effective October 12, 2011, which changed the custody and primary residence of the children, as well as access.

All things considered, we are satisfied that in the interests of justice and in the “best interests of the children”, we should allow the appeal and set aside the March, 2011 Order. [ 6 ] The Order of the Court of Queen’s Bench, Family Division, dated March 29, 2011, is set aside. This matter is currently scheduled for a review hearing on January 23, 2012, before Justice French of the Court of Queen`s Bench, Family Division, who issued the October, 2011 Interim Order. Therefore, we remit this matter to Justice French, for a new hearing and determination in accordance with the best interests of the children.

There is no order as to costs. _________________________________ WALLACE S. TURNBULL, J.A. _________________________________ KATHLEEN A. QUIGG, J.A. _________________________________ BRADLEY V. GREEN, J.A.