r v. Sypher, 2016 NLCA 55

Jason Bateman (appellant) v. Jessica Bateman (MacArthur)(respondent) (16/74) Indexed As: Bateman v. Bateman 2016 NLCA 55 1 C.A.N.L.R. 143 Court of Appeal of Newfoundland and Labrador Rowe, Barry and Harrington JJ.A. October 17, 2016

Summary: The appellant, Mr. Bateman appealed an interim order of the Supreme Court Family Division which altered the custody and accessarrangements ordered after the parties’ divorce, permitted the respondent, Ms. Bateman, to relocate with the parties’ children pending theresolution of the full application for relocation and reduced the appellant’s access to the children. Mr.

Bateman argued that reliance bythe applications judge upon affidavit evidence without cross-examination and the truncated timelines in which the hearing occurred didnot constitute a “full and sensitive inquiry” to determine what is in the best interests of the children, the criteria mandated by the SupremeCourt of Canada in Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27. Held: Appeal dismissed.

Harrington J.A. (Rowe and Barry JJ.A. concurring): Although the threshold for appellate interference is not as high in cases whereevidence is given by affidavit as opposed to oral testimony, an appellate court should not interfere with an interim order unless it isdemonstrated that the interim order is clearly wrong and exceeds the wide ambit of reasonable solutions that are available on a

summaryinterim proceeding. The courts have built upon the application of the test in Gordon v. Goertz to adjudicate applications for interim relocation orders. Themost fundamental principle underlying this assessment is the need to maintain some semblance of stability in the lives of the childrenbefore a trial can be held to consider the making of a permanent custody and access order. Therefore, the status quo situation to whichchildren have become accustomed, either before or after the separation, should be disturbed only when there are compelling reasons todo so.

In this case, the applications judge did not err by permitting the mother to relocate on an interim basis with the children. The parent withwhom the children had primarily resided since separation wanted to relocate a relatively short distance for work, and was willing tofacilitate access for the other parent. In all of the circumstances, the applications judge did not err in the manner in which he conductedthe interim hearing. Cases cited: Gosse v. Sorensen-Gosse, 2011 NLCA 58, 311 Nfld. & P.E.I.R. 76 Hayes v. Bryant (1997), (NL CA), 151 Nfld. & P.E.I.R. 261 (Nfld. C.A.) Pumphrey v.

Pumphrey (1997), (NL CA), 148 Nfld. & P.E.I.R. 340, 29 R.F.L. (4th) 283 (Nfld. C.A.) Sypher v. Sypher (1986), 2. R.F.L. (3d) 413 (Ont. C.A.) Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27

Mantyka v. Dueck, 2012 SKCA 109, 399 Sask. R. 303 McGillis v. McGillis (1996), (MB CA), 113 Man. R. (2d) 73 (Man. C.A.) D.P. v. R.B., 2007 PESCAD 25, 271 Nfld. & P.E.I.R. 344 Counsel: Bob Buckingham, for the appellant; Katrina A. Brannan Q.C. and Vanessa M. Laite, for the respondent. This appeal was heard on September 21, 2016 before Rowe, Barry and Harrington JJ.A.

The following judgment was delivered on October 17, 2016 by Harrington J.A. for the Court. ______________________________________________________________ Harrington J.A.: INTRODUCTION [1] This appeal follows from an interim order of an applications judge which altered the terms of a joint custody arrangementbetween the divorced parents of two children who are now 7 and 11 years of age. Central to the proceeding was a request by the mother(the respondent) to move with her children to the town of Paradise in order to take up a new employment opportunity following a lay-offfrom her employment in Marystown.

The primary residence of the children has been with their mother since the separation and divorce in2013, with access to the father. The mother’s new employment involved a move to Paradise, adjacent to St. John’s, which will affect theexisting access of the father to his children. The events led to the mother’s interim application and subsequent order by the applicationsjudge which has led to this appeal. For the reasons which follow, I would uphold the interim order of the applications judge and dismissthe appeal. BACKGROUND [2] The parties were married in June 2004 and separated in April 2011.

They were subsequently divorced in January 2013. Thefather is a fisheries officer based in Marystown. The evidence established that the mother was employed as an occupational health andsafety inspector at a marine construction facility in Marystown, where construction of components for an offshore oil production facilityhad concluded in 2016, resulting in her lay-off from employment. [3] In October 2012, following a three-day trial in the Supreme Court of Newfoundland and Labrador at Grand Bank, anapplications judge ordered that the parties would continue to have joint custody of their two children.

The Judge further ordered that thechildren’s primary residence would be with their mother. [4] The mother had made considerable efforts to find new employment close to her place of residence but had been unsuccessful. InJuly, 2016 she accepted a position as an occupational health and safety inspector for the Newfoundland and Labrador government in St.John’s.

The mother had arranged for enrollment of the children in a new school for September, 2016 with the expectation that theywould continue their education in a French immersion program similar to the educational program in which they were enrolled inMarystown. [5] In January, 2016 the mother applied to the same Trial Division judge sitting at Grand Bank to vary the custody and accessprovisions ordered by the judge in 2012.

The mother anticipated having to relocate from Marystown for new employment, which wouldnecessitate alteration of the father’s current access arrangements. [6] A case management meeting was held on May 26, 2016. At the meeting, the mother requested an urgent hearing date, havingbeen offered new full-time employment in St. John’s. A scheduling complication arose because of the Provincial Government’sannouncement on April, 2016 that it would soon close the Supreme Court Trial Division in Grand Bank.

No dates were available on thedocket and the file was ordered to be transferred to the Supreme Court, Family Division in St. John’s. It was not known when a hearingdate would be available. The file was not transferred before the Provincial Government reversed its decision to close the Supreme Courtin Grand Bank on June 24, 2016. A further case management meeting subsequently took place conducted by the judge at Grand Bank. [7] The father responded to the mother’s application for variation in April, 2016 by opposing the mother’s request to vary hisaccess.

He proposed that the children remain with him in Marystown and that the parties share a “50/50 parenting agreement”. He alsoproposed that the child support be changed to “what would be required with a 50/50 shared custody agreement”. The parties participatedin dispute resolution through Family Justice Services but were unable to reach an agreement. The file was returned to the Trial Divisionat Grand Bank. [8] The father was served with the mother’s application to move the children to Paradise on July 8, 2016. The father filed anaffidavit in reply.

Absent from the affidavit was any objection as to whether it was appropriate to have the matter dealt with on aninterim basis.

[9] The interim/interlocutory application was heard on July 15, 2016, and the interim order with reasons was granted, givingcustody to the mother. The father filed an application for leave to appeal to this Court together with a notice of appeal on July 26, 2016.Leave to appeal was granted by this Court on August 9, 2016 on the ground that the appeal raised a serious issue to be tried.

Anapplication to stay the interim order pending the appeal was dismissed. [10] Immediately upon the granting of the interim order, the mother and her two children moved to rental accommodations inParadise, which the mother selected, but had not rented, prior to July 2016.

The mother enrolled the children in a new school, which hasFrench immersion programming, located in Paradise, and made arrangements for after school care as she took up her new employment.The mother also proposed that the father would continue to have access every second weekend by an arrangement by which the childrenwould be driven to a halfway point between Paradise and Marystown, where the father would pick them up and take them to thisresidence in Marystown. STANDARD OF REVIEW [11] Appeals to this Court involving questions of law are reviewed on a standard of correctness.

For questions of fact or mixed lawand fact, the standard of review is palpable and overriding error by the trial judge (Gosse v. Sorensen-Gosse, 2011 NLCA 58, 311 Nfld.& P.E.I.R. 76). [12] The mother acknowledges that the threshold for appellate interference is not as high in cases where evidence is given by affidavitas opposed to oral testimony. Counsel cites the reasons of Green J.A. (as he then was) in Hayes v.

Bryant (1997), (NL CA), 151 Nfld. & P.E.I.R. 261, para. 12: Generally speaking, the opportunity of a judge of first instance to hear the parties and to observe their manner and demeanour whiletestifying, and to come to conclusions of credibility, justifies the deference shown by appeal courts to findings of fact made by trialjudges. However, where, as here, the evidence is given solely by affidavit without any cross-examination, the appeal court is not at sucha disadvantage.

While there are statements in some cases that a certain degree of deference should nevertheless be shown in interimcustody and access disputes even where evidence is given by affidavit … the threshold of appellate interference is not as high as wherethe case involves oral testimony. [13] I would emphasize that Green J.A. also referred to this Court’s decision in Pumphrey v. Pumphrey (1997), (NL CA), 148 Nfld. & P.E.I.R. 340, 29 R.F.L. (4th) 283 involving an appeal of an interim custody order where this Court cited Sypher v.Sypher (1986), 2. R.F.L. (3d) 413 (Ont.

C.A.), at page 413: … an appellate court should not interfere with an interim order unless it is demonstrated that the interim order is clearly wrong andexceeds the wide ambit of reasonable solutions that are available on a

summary interim proceeding. [14] Green J.A. (as he then was) writing for this Court in Hayes accepted the following proposition at paragraph 11: Only where the trial judge erred in principle or overlooked or disregarded material evidence and ended up making an order whichotherwise would not have been made is an appeal court entitled to intervene. ANALYSIS [15] Rule 56A.16 of the Rules of the Supreme Court, 1986 permits either party to a family law proceeding to make an application forinterim relief, on at least ten days notice, unless the Court makes an order shortening the time for service.

Rule 56A.16(4) further statesthat a party who wants to oppose such a claim may do so by filing one affidavit, at least four days before the hearing, setting out why theapplicant should not be successful.

Rule 56A.16(7) says that the Court shall make a decision after reviewing the affidavits filed andhearing the arguments of the parties, unless the judge gives permission to cross-examine the deponents or orders that witnesses give oralevidence. [16] Following these rules, by an ex parte order granted on July 7, 2016, the applications judge shortened the time for service of theapplication for interim relief and set timelines for the filing of affidavits by both parties prior to the hearing. [17] At no time prior to or at the hearing was the applications judge asked to permit cross-examination on the affidavits filed or toallow witnesses to give oral evidence.

The hearing lasted ninety minutes, which the father’s counsel argues was too short. However, thesame judge who had originally granted the divorce and ordered the custody and access was aware that the mother had been the primarycare giver from the date of the divorce in 2013. [18] The primary issue in this proceeding centers on the process conducted by the applications judge. Sitting as a single judge atGrand Bank, he was faced with uncertainties about managing the court’s workload given an announcement by the ProvincialGovernment that the court in Grand Bank would close.

The father’s counsel objects to the sole reliance by the applications judge uponaffidavit evidence without cross-examination and the truncated timelines which occurred in what the father says was the unacceptablyshort 90-minute hearing conducted after the court closure decision had been reversed. He criticizes the abridged format of the inquiry,given the proposed change in access which would involve changing the place of residence of the children from Marystown to the town ofParadise, which involves a one-way driving time of 3 hours on alternate weekends by the parents as proposed by the mother.

Additionally, the father would have access to the children for the month of August in each year. The father’s counsel submits that thechange of the place of residence is so significant that the nature of the interlocutory hearing, based primarily on affidavit evidence, wouldnot constitute a “full and sensitive inquiry” to determine what is in the best interests of the children, the criteria mandated by the SupremeCourt of Canada in Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27 at para. 44.

The applications judge acknowledged theconcerns of the father in his reasons but nevertheless found in favor of the mother. [19] Before this Court, the father sought leave to appeal the interim order and sought a stay pending appeal. White J.A., of this Court,rejected the application for a stay, concluding that the father had not established that the parents or children would suffer irreparableharm if the stay was not granted. He acknowledged that the relocation was a significant change for the children and for the father, while

holding that an appeal could be heard expeditiously without causing irreparable harm to the father’s access. [20] White J.A. also concluded that a stay pending appeal was not in the best interests of the children, noting that the mother has beenthe primary care giver and there is no basis in the record to alter that situation when their father could exercise reasonable access. Heheld that changing the primary caregiver for young children in this case would be a more disruptive change than a variation in access.

He also held that the mother’s continued employment would benefit the children and should be supported. [21] Nonetheless, White J.A. granted leave to appeal, considering the decision of the Saskatchewan Court of Appeal in Mantyka v.Dueck, 2012 SKCA 109, 399 Sask. R. 303, which focused on the criteria that should apply when deciding whether a custodial parentshould be allowed to move with a child on an interim basis.

He noted some of the jurisprudence calls for “… significant caution … whendeciding whether custodial parents should be allowed to move with a child on an interim basis i.e. before a trial of the relevant issues”(see Mantyka at paragraph 31). He further noted that the reasoning in Mantyka suggested that an interim change of location could tooeasily create a “new normal and thereby effectively going some distance toward determining the final result of the proceedings”.

Heindicated that the applicability of the reasoning in Mantyka in this jurisdiction was an issue which should be considered and thus grantedleave to appeal. [22] At the hearing before this panel, counsel for the father sought a full hearing with cross-examination on affidavits, a return of thechildren to Marystown pending the completion of a proper hearing and the rendering of a decision by a new Trial Division judge. Healso sought the right to submit fresh evidence that the children have not yet been able to gain enrollment in French immersion educationin the school in Paradise where they are enrolled.

However, the school year has just begun and the children are wait-listed forenrollment. The father requests that the primary caregiving should be transferred to him and the children returned to live in Marystown. [23] Applications by a parent for relocation with the children on an interim basis task the courts with balancing two sometimes-competing goals. On the one hand, Gordon v. Goertz governs mobility cases and requires that the court conduct a full and sensitiveinquiry into the best interests of the children (at paragraphs 44, 52).

On the other hand, this Court has recognized in Pumphrey thatinterim orders are intended to provide temporary solutions and applications should proceed on comprehensive affidavit evidencewhenever possible (at paragraphs 11,14). [24] In order to strike the appropriate balance, the courts have built upon the application of the test in Gordon v. Goertz to adjudicateapplications for interim relocation orders. In Pumphrey at paragraph 3, this Court accepted the proposition of the Manitoba Court ofAppeal in McGillis v. McGillis (1996), (MB CA), 113 Man.

R. (2d) 73 at page 74 that “[i]nterim custody ordersought not to be varied in the absence of compelling evidence which calls out for a change in the short-term. To ignore this principle is tocause needless disruption for the children who are the subjects of those orders.” [25] Similarly, undertaking a thorough review of the case law in D.P. v.

R.B., 2007 PESCAD 25, 271 Nfld. & P.E.I.R. 344, the PrinceEdward Island Court of Appeal stated (see also paragraph 56): [27] Where parties apply for the interim custody of children, the primary concern for the court is to assess what is in the best interestsof the children having regard to their condition, means, needs and other circumstances at the time of the motion. The most fundamentalprinciple underlying this assessment is the need to maintain some semblance of stability in the lives of the children before a trial can beheld to consider the making of a permanent custody and access order.

Therefore, the status quo situation to which children have becomeaccustomed, either before or after the separation, should be disturbed only when there are compelling reasons to do so. (Emphasis added.) [26] In Mantyka at paragraph 33 the Saskatchewan Court of Appeal also expressed caution with respect to applications for interimrelocation on the basis that the record before the court normally consists only of affidavit evidence which by its nature may beincomplete and somewhat limited in scope.

The Court also found that these considerations provide context for the paramount concernfor the best interests of the child, given which interim relocations by a custodial parent should only be allowed in “compellingcircumstances”. [27] This line of reasoning is relied upon by counsel for the father to argue that there ought to have been a full hearing with a newjudge of the Trial Division to further assess the best interests of the children and that the respondent ought to have been deniedpermission to move the children to Paradise. [28] While the applications judge did not expressly reference the foregoing jurisprudence, his reasons reflect proper consideration ofrelevant factors in order to safeguard the best interests of the children.

I find the applications judge did not err by permitting the motherto relocate on an interim basis. The record in this matter indicates that the mother had filed an originating application in January, 2016 tovary the father’s access to the children. She had been advised that her employment would soon terminate and that there would not be anywork for her in Marystown. She did have an opportunity to transfer with her existing employer to Texas. Rather than pursue thatalternative, she canvased opportunities at or near St. John’s based on her qualifications.

She was able to obtain full-time employmentcommensurate with her qualifications in her field of competence and work experience as a provincial government employee. [29] The record also indicates that questions of credibility were not at issue in the proceeding, which otherwise might have requiredmore court time. The applications judge noted in his reasons that the mother had acted promptly once her change in employmentprospects had occurred. She had applied immediately after the offer of employment in St.

John’s was made and then applied on an exparte basis to shorten the time for serving the interlocutory application on the father. [30] The primary objection of the father centers on the process which, in his opinion, was not a “full and sensitive inquiry” regardingthe best interests of the children given the fact that there was a joint custody order made in 2013. The father has had access on Fridays toSundays, every second weekend together with two evenings a week on Tuesdays and Thursdays after school until bedtime.

The motherproposed an arrangement for access every second weekend to permit the children to see their father, their paternal grandparents and theirformer schoolmates. The mother offered to transport the children to a point mid-way between Paradise and Marystown every secondweekend in order to allow them to spend time with their father. This arrangement will require the children to be driven on alternate

weekends to Marystown with the mother and the father sharing the transportation arrangement. [ 31 ] Additionally, the mother proposed that the father would have access to the children for the full month of August each year to make up for the loss of access after school on certain days of the week. I am of the view that the access is not an unreasonable burden for the children or the father, given the mother’s continuing employment within the Province.

Moreover, the mother has taken steps to have the children enrolled in a French immersion program, and though there has been a delay in enrollment, it is reasonable to expect that they will find placements at the first opportunity, since they have already been participants in that program of education since starting school in Marystown. [ 32 ] The scenario in this case has many similarities to that in Mantyka where the parent with whom the children had primarily resided since separation, and who was willing to facilitate access for the other parent, was permitted to relocate a relatively short distance on an interim basis.

It is also distinguishable from the situation in D.P. where interim relocation was not permitted. In that case, there was no formal custody arrangement in place prior to the interim order and the parent with whom the children resided sought to move to another province, which would have resulted in a drastic reduction in access and disturbance in the status quo for the children. [ 33 ] In all of the circumstances, the applications judge did not err in the manner in which he conducted the interim hearing regarding the relocation of the children with their mother to Paradise.

I am satisfied that jurisprudence, derived primarily from the principles established in Gordon v. Goertz , permitted the Trial Division judge to issue an interim order that the best interests of the children would be served if they continue to live with their mother while continuing to have contact with their father on the basis of the access proposed by the mother, the primary caregiver of the children since the separation in 2011. DISPOSITION [ 34 ] The order of the Trial Division applications judge should be affirmed. The Respondent may seek a full hearing without delay. I would dismiss the appeal.

Each party shall bear their own costs. Appeal dismissed .