2021 NLCA 45, 2021 NLCA 45

J.P. (appellant) v. D.A. (first respondent), L.A. (second respondent), and Child Youth and Family Services (third respondent) (21/15) Indexed As: J.P. v. D.A. 2021 NLCA 45 7 C.A.N.L.R. 10 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., Welsh and Goodridge JJ.A. July 29, 2021

Summary: The appeal related to a court order granting the parents joint custody of their child, T. Prior to the court order, the maternal grandmother, L.A., had custody of T. The court order stated that the child’s primary residence was to be with her mother, who lived in St. John’s. The order also stated that the child was to remain with the grandmother, who lived in Corner Brook, until the school year ended in June of 2021. The father sought to have the court order set aside and a new order entered such that the child’s primary residence would be with the father in Corner Brook.

Alternatively, the father sought a new trial. Held: Application for additional evidence denied; appeal dismissed. Fry C.J.N.L. (Welsh and Goodridge JJ.A. concurring): The judge made no error in the analysis of the appropriate factors or principles considered under either the Children’s Law Act or Gordon v. Goertz . The judge referred to and considered all of the overlapping factors and did refer to and gave consideration to the “maximum contact” principle. There was no undue weight given to any of the factors appropriately considered by the judge (paragraphs 24-49).

The judge did not make findings of fact that were not supported by the evidence, nor did the judge misapprehend the evidence (paragraphs 50-58). The judge’s decision to have the child continue to reside with the grandmother until the end of the school year was not unreasonable. This was a child-focused approach and was supported by the evidence (paragraphs 59-60). The judge did not err in amending or clarifying the court order.

The reasons of the judge, when read in the context of the order, the apparent misunderstanding as to the legal meaning of joint custody, and the need to provide clarity to school authorities, provided an appropriate basis for the judge to clarify what was implicit in the original order (paragraphs 61-69). The application for additional evidence was denied.

Some of the evidence sought to be admitted would more appropriately be dealt with via an originating application for variation of the court order, while the other evidence sought to be admitted had already been disclosed by the parties during the trial (paragraphs 70-79). Cases cited: Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235 Van de Perre v. Edwards, 2001 SCC 60 , [2001] 2 S.C.R. 1014 J.W. v. M.G., 2018 NLCA 40 , 3 C.A.N.L.R. 97

Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27 (S.C.C.) Penney v. Pitts, 2018 NLSC 76 Temple v. Peddle, 2019 NLCA 2 Statues considered: Children’s Law Act, RSNL 1990, c. C-13, sections 35(1), 31(2) Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Rules considered: Rules of the Supreme Court, 1986, rule 15.07 Court of Appeal Rules, NLR 38/16, rule 37 Counsel: John Noseworthy, for the appellant; Sandra Sarto, for the first respondent; Jamie Luscombe, for the second respondent; No appearance, for the third respondent. The appeal was heard on May 20, 2021 before Fry C.J.N.L., Welsh and Goodridge JJ.A.

The following judgment was filed on July 29, 2021 by Fry C.J.N.L. for the Court. ______________________________________________________________ Fry C.J.N.L.: [1] This appeal pertains to a 2021 court order granting the parents joint custody of their child, T. The child’s primary residence wasto be with her mother, the first respondent, who resides in St. John’s. The order provided significant blocks of parenting time for thefather, the appellant.

The maternal grandmother, the second respondent, has had custody of the child since 2015 as a result of a courtorder (September 14, 2015) and under a kinship agreement supported by Child, Youth and Family Services (“CYS”). The child was toremain with the grandmother, who resides in Corner Brook until the school year ended in June of 2021. The father seeks to have the trialdecision reversed so that the child’s primary residence is with him in Corner Brook or alternatively, a new trial. BACKGROUND [2] The parents were in a short-lived relationship which ended in 2013.

They share one daughter, T, who was born in the spring of2012. On August 1, 2013, CYS removed T from her mother’s care due to concerns about her ability to parent. CYS did not consider thefather to be an appropriate placement for T and filed an application for temporary custody. The court granted the application and T wasplaced in a foster home. [3] The mother gave birth to another daughter, J, in the summer of 2014. J was removed from her mother’s care at birth and placedin the same foster home as T.

At a presentation hearing on September 26, 2014, the court ordered that J be placed in the custody of thematernal grandmother, until a full protective intervention hearing took place. J’s father is deceased. [4] That hearing did not take place as the father of T, the mother of both children, the grandmother and CYS all agreed that thematernal grandmother should have custody of both children. The consent court order provided T’s father with generous access.

It alsoprovided that the grandmother should consult with the father regarding major decisions for T, however, the grandmother was given finaldecision-making authority. [5] The mother moved to St. John’s in 2016. She had a third child in early 2019 who has resided with her since his birth.

Themother was in contact with CYS during the course of her pregnancy and subsequently and no concerns were identified which wouldprevent her from parenting. [6] On March 25, 2019, the father filed an Originating Application for Variation of the September 14, 2015 parenting order andsought an order granting him equal decision-making authority with the grandmother. He also filed an Emergency Interim applicationseeking an order prohibiting the grandmother from leaving Corner Brook with T, which was granted.

[ 7 ] On May 8, 2019, the father amended his application and sought primary care of T in Corner Brook. The mother did not support the father's application and in her Response sought primary care of T who would reside with her in St. John’s. The grandmother supported the mother's position. [ 8 ] Neither the mother nor the father to this point has had custody or been a primary care provider for T. Both parents have enjoyed significant access with T; the father, in Corner Brook and the mother in St. John’s. [ 9 ] Because CYS had previous involvement with the parents, the style of cause continues to reference them as third respondent although they took no

part in either the trial or the appeal. The Trial Judge’s Decision [ 10 ] To ground the Originating Application for Variation, the judge first determined that there were material changes in circumstances since the September 14, 2015 order as required by section 35(1) of the Children’s Law Act , R.S.N.L. 1990, c. C-13 (the “ Act ” ). These included that both parents had made significant lifestyle changes since the order was made and each submitted, that given their present circumstances, it was in T’s best interest to live with one of her parents. Another was that the grandmother planned to move to St.

John's if the mother was granted primary care of T. [ 11 ] The judge considered the following factors outlined in section 31(2) of the Act in determining what constituted the best interests of T: (

i) the love, affection and emotional ties between T, her parents and other family members, (ii) T’s views and preferences, (iii) the length of time T had lived in a stable home environment, (iv) the ability and willingness of each parent to provide guidance, education and the necessaries of life, (

v) the ability of each parent to act as a parent, (vi) plans proposed for T 's care and upbringing, and (vii) the permanence/stability of the family unit. [ 12 ] The judge also referenced the maximum contact principle set out in the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .), noting that it was equally applicable in cases where the parents were not married, although always subject to the best interests of the child. [ 13 ] The judge decided that it was not in T’s best interests to reside with her father on a full time basis. Her reasons included: (

i) that the father's work

schedule was such that his new partner would have been doing the majority of the parenting, and that it was in T's best interest that she be cared for by one of her biological parents, (ii) that it was not in T's best interests to grow up separate and apart from her siblings, (iii) that the grandmother was clearly a significant person in T 's life and that it was in T's best interest that the grandmother continue to be a consistent presence, and (iv) that prior to filing his application in May 2019, the father was satisfied with the status quo, and that the current application was brought because he wanted to continue to have regular contact with T, not because he wished to be her primary parent. [ 14 ] The judge also noted that some of above comments could also apply to the mother including that she had left her daughters in her mother’s care for five years and that she only sought primary care of the children after the father filed his application. [ 15 ] The judge concluded that the father and mother were to have joint custody of T, and that T’s primary place of residence would be with her mother in St.

John’s after the end of the 2020/2021 school year. T was to continue residing in Corner Brook until the school year ended. The judge also made orders regarding vacations and holidays, including block periods of parenting time for the father, telephone/video access, medical issues, school issues, traveling with T, and other conditions. [ 16 ] Shortly after the final order was issued, the judge was advised of some confusion respecting the order and she called a case conference with the parties to clarify the issue.

The order was amended to specify that the child would continue to reside with her grandmother with generous access to her father until the end of the school year.

ISSUES [ 17 ] The issues raised by the appellant are that the judge: (1) misapplied the law with respect to the issue of custody and access, parenting time, relocation and the best interests of the child; (2) made material findings of fact not based on the evidence; (3) made a decision that was unreasonable and not based on the evidence, given that she found that it was important that the child have her primary residence with one of the biological parents but maintained the child’s primary residence with the grandmother until the school year finished; and (4) lacked authority to grant the amended order as she was functus officio.

STANDARD OF REVIEW [ 18 ] The Supreme Court of Canada has stated that the applicable standard of review for questions of law is correctness and for questions of fact is palpable and overriding error ( see Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 ) and that deference must be shown to discretionary decisions made in a parenting context ( see Van de Perre v. Edwards , 2001 SCC 60 , [2001] 2 S.C.R. 1014 ). [ 19 ] This Court provided a fulsome discussion of the standard of review pertaining to appeals of a trial judge’s decision involving parenting of a child in J.W. v.

M.G . , 2018 NLCA 40 , 3 C.A.N.L.R. 97 , at paras. 16-33 . My review of the judge’s decision will be considered in light of these principles.

[20] Decisions involving the best interests of the child, as in this case, where each parent submits that the child should primarilyreside with one of them, necessitate a review and weighing of the factors set out in the relevant legislation, jurisprudence and proposedparenting plans.

These parenting decisions, focusing as they must on the best interests of the child, are by their very nature,discretionary. [21] This Court noted in J.W., at para. 29 that the Supreme Court of Canada in Van de Perre, at paras. 12-13, “cemented the view thatdeference must be shown to discretionary decisions made in a parenting order” : 12 … The narrow power of appellate review does not allow an appellate court to delve into all custody cases in the name of the bestinterests of the child where there is no material error as decided in Hickey.

The Court of Appeal is not in a position to determine what itconsiders to be the correct conclusions from the evidence. This is the role of the trial judge.… 13 … Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances ofeach child is the hallmark of the process.

This discretion vested in the trial judge enables a balanced evaluation of the best interests ofthe child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. (Emphasis in original.) [22] This Court concluded in J.W. that “the trial judge’s decision is afforded deference, as a starting principle. This Court must besatisfied that a material error, or error in principle, has been made by the trial judge before it can undertake a “fresh assessment of theevidence” or disturb the trial judge’s findings” (see para. 32).

ANALYSIS [23] The appellant submits that the judge’s decision is not entitled to appellate deference as the judge committed errors in principle,including misapplying the law, making findings of fact not based on evidence and giving undue weight to certain factors and failing togive sufficient weight to other relevant factors. Issue 1: The judge misapplied the law with respect to custody, access and parenting time, relocation and best interests of thechild [24] The appellant submits that the judge made an error of law as the Supreme Court of Canada's decision in Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27, was not considered or mentioned in the judge’s decision. [25] In that case, the Supreme Court of Canada summarized the law with respect to the issues of custody and access in relocation ormobility applications as follows: [49] … 1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange 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 entitledto 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 thecase. 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 ofthe 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. [26] The Gordon v. Goertz principles respecting relocation or mobility applications have been applied by courts across the countrynot only in the context of divorcing couples but also in the context of unmarried couples (see also J.W. at paras. 35, 40 and 48).

[ 27 ] In her decision, the judge appropriately determined that there had been a material change in circumstances, which is a requirement under either a Gordon v. Goertz or a Children’s Law Act analysis. [ 28 ] The appellant agrees that the judge considered and analyzed all of the factors set out in

section 31 of the Act and her reasons confirm this, however the appellant argues that the Gordon v. Goertz factors are central to the appeal in the present case and were not properly considered. [ 29 ] Given that there is considerable overlap between the factors set out in the Act and Gordon v. Goertz , the appellant was asked to specify which factors in Gordon v. Goertz had been overlooked in the judge’s analysis of the best interests of the child. The appellant identified the “maximum contact” principle.

a) The maximum contact principle [ 30 ] The analysis and consideration of the factors in Gordon v. Goertz usually arise in circumstances where one custodial parent or the other seeks to vary a custody order and move to another location thereby potentially interfering with the left behind parent’s parenting time with the child. [ 31 ] In this case, neither parent has been in a custodial relationship with the child nor is either parent planning to move or relocate. Each of them has resided for a considerable period of time on the east coast and the west coast of the province, respectively.

The maternal grandmother has had custody of the child for most of her life with both parents having access. [ 32 ] When a child, as opposed to a parent, is potentially relocating, as in this case, the factors listed in Gordon v. Goertz may be of assistance in determining the best interests of the child. It is in that sense that the factors relevant in Gordon v. Goertz were considered in this case. [ 33 ] The Originating Application for Variation (amended) filed by the father was for primary care and residence of the child with him in Corner Brook.

The mother’s Response claimed joint custody with the father, and sought primary residence and physical custody of the child with her in St. John’s, where she has lived since 2016. The grandmother’s Response opposed the father’s application and supported the mother’s application.

She advised the Court she sought primary care of the child and mobility only as an alternative should the mother’s application be unsuccessful. [ 34 ] In her reasons the judge stated: [ 35 ] … The Court is free to consider other factors such as the principle of “maximum contact” and the ability of each parent to promote the children's relationship with the other parent. While the maximum contact principle is specifically set out in the Divorce Act , R.S.C. 1985, c. 3, (2nd Supp .), it is equally applicable in cases where the parents are not married.

The principle, however, is subject to the best interests of the child. [35] The judge not only referred to and considered the maximum contact principle which requires consideration of beneficial contact between the child and both parents but also the multitude of factors which may affect the determination of the child’s best interests. The judge specifically provided significant block parenting time for the father including an equal share of the summer holidays as well as sharing of significant holidays such as Christmas and Easter.

Other opportunities for additional contact time by electronic means were provided as well as opportunities for additional parenting time in either St. John’s or Corner Brook. [ 36 ] The judge’s analysis proceeded on the basis that there had been a material change in circumstances. She considered the competing custody applications between the parents and found that it was in the best interests of the child that she have her primary residence with one of the parents, that being her mother. The judge was fully cognizant of the fact that the child would move to St. John’s.

Having decided that the mother would have primary residence of the child, there was no need to consider the grandmother’s application for mobility. [ 37 ] In the circumstances presented here, the judge considered all of the appropriate factors affecting the child’s best interests, arising from the jurisprudence and the relevant legislation, including the relocation of the child to reside with her mother in St. John’s. The judge committed no error in failing to specifically mention Gordon v. Goertz in her decision. (

b) The judge gave undue weight to the evidence of the mother and grandmother and failed to give adequate consideration to the father’s evidence [ 38 ] The appellant also submits that the judge, in considering the best interests of the child, gave undue weight to the evidence of the mother and grandmother and failed to give adequate consideration to the father’s evidence, gave more weight to the relationship between the siblings and less weight to preserving and fostering the father-child relationship. [ 39 ] The appellant submits that the judge gave significant consideration to the mother’s efforts to make lifestyle changes and become able to parent her children.

The appellant says this meant that the judge was looking at the best interests of the parent and not the child and that therefore the judge misapplied the law. [ 40 ] Further the appellant submits that in giving the mother’s testimony significant weight, the judge erred as there was no evidence to support that the mother had attended counselling or that her mental health had improved in any way. [ 41 ] The judge reviewed all of the evidence provided during the three day hearing including that of the mother, the father, the grandmother, the partner of the father and Daniel Cooke, a child protection social worker who was responsible for the mother’s file in St.

John’s. [ 42 ] The judge considered the social worker’s evidence that the mother came forward to the department when she became pregnant with her son because of her concern that CYS might intervene because of her previous history. CYS undertook an assessment of her

situation and were satisfied that there were no risks and that she was in a position to parent a newborn. Visitation by the social worker occurred twice a month. Recommendations for appropriate programming were provided and were successfully completed by the mother. The social worker also testified that he was present in the home when all three children were being parented by the mother and no concerns were noted.

The CYS file was closed and has not been reopened. [ 43 ] The judge analyzed all of the factors outlined in the Act including the love, affection and relationship between the child and each of her parents and other family members including the partner of the father, who played a role when the father was exercising his access. She also considered the ability of each parent to act as a parent and the parenting plans for the care and upbringing of the child. She was mindful that neither parent had previously had full time care of the child.

The judge, nonetheless, found that the child spent extended periods of time with her mother every year in St. John’s and also that the father exercised significant parenting time in Corner Brook when he was home from his work commitments. She determined that the child had strong emotional ties with each of her parents and that the grandmother had played an important role in fostering the positive relationship between the child and her parents. [ 44 ] The judge’s decision and a review of the transcript demonstrate that the judge provided a balanced assessment of each of the important factors.

She assessed each parent’s situation, ability and plans for the child. The judge made findings that determined when the parents were on equal footing or when one or the other had an advantage.

The judge determined that the parents should have joint custody and that the child’s best interests would be served by living with her mother and siblings. [ 45 ] It is the role of the judge to weigh the evidence in determining the best interests of the child and there is nothing in the record or the decision to suggest that the judge did anything other than weigh and balance the evidence of the parties and witnesses in an appropriate manner. (

c) The judge gave more weight to the relationship between the siblings and less weight to preserving and fostering the father- child relationship [ 46 ] The father submits at paragraph 16 of his factum, that the judge “placed a particular over-reliance on the relationship between the half siblings, T (who resides in Corner Brook) and J (who resides in St. John’s).” At paragraph 17 of the factum the father asserts “Both of [the mother’s] other children, G and J, reside in St.

John’s.” [ 47 ] Both the mother and the grandmother submit in their facta and at the hearing in this Court, that this information is inaccurate. The evidence and testimony of all witnesses demonstrate that J has lived with T for virtually her entire life in Corner Brook with the exception of the short period when she was in foster care. [ 48 ] The judge did consider as a factor, the longtime living arrangement between the two sisters, which in the circumstances was appropriate to take into account.

The judge also limited her reliance on this factor by concluding that it was not a controlling or overriding factor but one that should be considered (see para. 38). The judge took into account each of the parents’ positions; the mother’s desire to have the three children live together; and the father’s desire to have T remain in Corner Brook with him, while the other two children would live with their mother.

There was no demonstrated over-reliance on this factor, which was weighed in the balancing of all other relevant factors by the judge, in determining the best interests of the child. [ 49 ] In conclusion, on these issues, the judge made no error in her analysis of the appropriate factors or principles under either the Act or Gordon v. Goertz . She referred to and considered all of the overlapping factors and contrary to the father’s submission did refer to and give consideration to the “maximum contact” principle. There was no undue weight given to any of the factors appropriately considered by the judge.

Issue 2: The judge made material findings of fact not based on the evidence [ 50 ] In J.W. , regarding appellate review of material findings of fact, this Court stated: [30] This Court has also frequently held that a trial judge’s fact-based and discretionary decision in a family law context "should not be disturbed absent an error in principle, a significant misapprehension of the evidence or an award which is clearly wrong."… [ 51 ] The father submits that the judge’s description of the mother’s testimony is without factual foundation and should not be accorded any weight.

For example, he says the mother’s testimony regarding her parenting skills with respect to meals, bedtime and baths should be disregarded when contrasted with the judge’s description of her testimony that the mother “did not cooperate with CYS or follow their recommendations” (para. 25). [ 52 ] In context, paragraph 25 relates to the judge’s description of the mother’s testimony where she acknowledges the difficulties at a particular time in her life, describing the period between 2012 and 2014 more fully quoted as follows: [25]… [The mother] testified that the last few years she lived in Corner Brook were very difficult for her…. [The mother] indicated she was depressed and very unhappy with her life.

Her schooling was suffering. The situation became even more difficult when CYS removed [T] from her care and then [J] soon after. [The mother] acknowledged that she did not cooperate with CYS or follow their recommendations. She attributed this to her depression and negative mindset at the time.

She testified that despite her refusal to work with CYS, she still spent a lot of time with the girls at her mother's home. [The mother] stated when she was there she would do the basic parenting such as preparation of meals, baths and bedtimes. [ 53 ] The father submits that there was no evidence to show that the mother attended counselling or that her mental health has improved in any way. I have already dealt with the evidence of the social worker and the mother under the previous set of issues.

There was ample evidence to demonstrate that the mother had made lifestyle changes, followed program recommendations and was successfully parenting. CYS closed the file following a completed risk assessment. [ 54 ] The father also submits that the there was no evidence to support the judge’s finding that the sisters have always lived together. As previously noted the sisters, now aged 9 and 7 have lived together with their grandmother with the exception of a short period of time

in foster care. [ 55 ] The father submits that the judge failed to consider his evidence that the original court order of 2015 granting custody to the grandmother stated that if the grandmother should not be able or not want to care for the child anymore, the father would be permitted to apply for custody. The court order of 2015 was referenced throughout the judge’s reasons, it was part of the record and the reason the parties were having the hearing was the father’s application for custody.

The grandmother had not testified that she was unwilling or not able to care for the child. [ 56 ] The father submits that the judge made a finding of fact that he could have access anytime he is in St. John’s which is contrary to his testimony that it was almost impossible for him to see her in St. John’s because of his work commitments and that he had nowhere to take her. This was not the judge’s finding of fact based on his testimony but rather is part of the judge’s order found at paragraph 60(

g) of the decision following the trial. It is permissive, as part of the comprehensive order outlining, among other things, the father’s parenting time with the child. [ 57 ] The father further submits that the judge did not give proper consideration to his parenting. The judge acknowledged and spent considerable time to fully understand his work

schedule and how often he was able to parent his daughter when he was home in Corner Brook. The grandmother also testified as to the access that the father had on weekends when he was available and often during the week returning the child to the grandmother for bedtime. The decision of the judge and a review of the transcript also demonstrates that the judge gave full consideration to the role of the father’s partner and the positive relationship she enjoyed with the child as well. The father’s plan for care of the child was that when he was away for work, his partner would be able to care for the child.

The judge acknowledged the strong emotional ties the child has to each parent and the stable home that has been provided by the grandmother for many years. [ 58 ] None of these submissions demonstrate that the judge made any findings of fact not supported by evidence or that she misapprehended the evidence.

Issue 3: The judge’s decision to have the child continue to reside with the grandmother until the end of the school year was unreasonable and not based on evidence given the judge’s finding that it was important that the child reside with one of her parents [ 59 ] The comprehensive court order of January 29, 2021 provided that the parties would have joint custody of the child, (meaning equal decision-making authority), and that the principal residence of the child would be with her mother. The child was not permitted to take up residency with her mother until the school year ended.

The order also detailed parenting time for the father both in Corner Brook and also in St. John’s. The order further provided for vacations and holiday sharing, telephone/video access, medical issues, school issues, travel and other conditions as well as a clause for resolving future disputes. [ 60 ] The judge’s decision that during the transition the status quo would remain in place, in that the child would complete her school year in the care of her grandmother and would continue to have the same generous access to her father, was a child-focused approach and supported by the evidence and not unreasonable.

Issue 4: The judge had no authority to grant the amended order dated February 8, 2021 as she was functus officio [ 61 ] The decision and order were given orally in the presence of the parties on Friday, January 29, 2021. A copy of the written decision and order was also provided. The judge called the parties and their counsel back to court on February 8, 2021 to deal with a situation that had developed. [ 62 ] The transcript of February 8, 2021 reveals that the father had exercised access and returned the child to the care of the grandmother in the usual way several times following the decision.

However, on the weekend of February 6, he again exercised access and determined that he would not return the child to the care of her grandmother stating that he had been awarded joint custody and he would maintain custody until the child went to live with her mother at the end of the school year. [ 63 ] Counsel for the father stated that his client must have misunderstood the order because he was awarded joint custody and it did not say the child was supposed to still reside with the grandmother until the school year ended.

The father seemed to suggest that “joint custody” for him meant that he was to have physical custody of the child following the decision. He did not understand that the term joint custody meant joint decision-making and was not determinative of parenting time or primary residence. [ 64 ] The transcript reveals that the judge advised the parties that the order should be read in conjunction with the decision and it was clear that she was not placing the child in the interim care of her father pending her departure to St. John’s in June.

The judge indicated that the order provided for primary residence with the mother and liberal and generous parenting time with the father. The order detailed how the access would be exercised when the child was in Corner Brook and also when she was in St. John’s.

It was her intent that the child would remain in the care of the grandmother until the end of June with generous access to the father, and in her view this was clear from the context of the decision. [ 65 ] The judge noted that the file before her was not yet finished as there was an outstanding issue yet to be determined and so she was able to provide direction and/or clarification to the parties.

The judge indicated that she would clarify the order to ensure that there was no further confusion. [ 66 ] The judge issued an amended order on February 8, 2021 which stated that the child would reside with the grandmother until June 30, 2021. All the other clauses relating to primary residence of the child and parenting time for the father remained the same. The father would continue to have generous access while the child remained in Corner Brook. [ 67 ] The father submits that the judge could not provide clarification or amend the order as she was functus officio .

He references Rule 15.07 of the Rules of the Supreme Court, S.N.L. 1986, c. 42,

Schedule D , and Penney v. Pitts , 2018 NLSC 76 , at paras. 8-9 .

[ 68 ] The mother and the grandmother submit that the judge granted the amended order to make explicit that which was implicit. They submit that it was implicit in the original order that T was to remain in the care of the grandmother until the end of the school year. Paragraph 6 of the original order contemplates the father’s access both prior to and after the child’s move to St. John’s and states “ The father shall have reasonable and generous parenting time with [the child] whenever she is in Corner Brook.

Once she relocates to St John’s …”. [ 69 ] The reasons of the judge when read in context with the order, the apparent misunderstanding by the father of the legal meaning of joint custody, and the need, as outlined in the transcript, to provide clarity to the school authorities as to where the child should reside, provided an appropriate basis for the judge to specifically deal with what was implicit in her original order. There was no error made in clarifying the order.

Application for Additional Evidence [ 70 ] The appellant made an application, which was heard at the same time as the appeal, to admit additional (fresh) evidence. The proposed additional evidence was twofold: (

a) that the father gave up his job as a long haul truck driver and was not required to be away from home; and (

b) that the grandmother had an open file with CYS which she did not disclose when asked about her involvement with CYS when testifying at the trial in December of 2020. [ 71 ] An application for additional evidence in a civil appeal is governed by rule 37 of the Court of Appeal Rules, N.L.R. 38/16 . This Court in Temple v. Peddle , 2019 NLCA 2 , provided a detailed discussion of the jurisprudence applicable to admission of additional evidence under rule 37 , which is essentially a codification of the common law.

Rule 37(3) provides a list of open ended factors the Court may consider in making its decision on whether to admit the additional evidence (see paras. 24-28). [ 72 ] This Court in Temple also went on to provide other guidance relevant to the application here: [37] In civil cases, a high standard must be met before fresh evidence is admitted. The court in considering these applications exercises great caution which supports the policy of finality of litigation. See Coles v. Coles, 2014 NLCA 3 . [38] Having said that, the admission of fresh evidence is discretionary…. [39]… In J.A.S. v.

Newfoundland & Labrador (Child, Youth & Family Services), 2013 NLCA 13 , 332 Nfld. & P.E.I.R. 33 , Justice Hoegg declined to admit fresh evidence in a child protection case.

She found that the fresh evidence only addressed one of the several reasons on which the applications judge concluded that continuous custody was in the child’s best interests and it would not have made a difference to the outcome. … [ 73 ] Both the mother and the grandmother oppose the admission of the additional evidence in this Court. [ 74 ] At trial, the father’s evidence was that he was planning to continue working as a long haul trucker on his current

schedule and proposed his plan for the care of the child on that basis. This was one of the factors, but only one of the many factors, that the judge weighed in her determination of the best interests of the child. [ 75 ] The father’s loss or change of employment (for which no details were provided in the affidavit), may constitute a material change in circumstances for which the remedy would be to seek an originating application for variation in the trial court.

Accordingly, it is appropriate to decline to admit this evidence given there is a more appropriate remedy. [ 76 ] With respect to the second proposal for additional evidence relating to the grandmother’s failure to disclose an open child protection file with CYS or social worker involvement, the transcript of the evidence given by the grandmother on direct examination on December 9, 2020 is as follows: Q. …And you indicated earlier that you were involved in the kinship program with the Child & Family services? A. Yes. Q. Okay, and do you have regular contact with the social worker? A. Yes. I do. Q.

And who’s the social worker you have contact with? A. Juanita Brake Q. And how often do you have contact with her? A. She comes around when it’s time to renew the kinship, every 4 months. Q. So, does she meet with the girls at that time? A. Oh yes. Q. And how has that been going? How would you describe it? A. Oh, it’s like, awesome, it’s really good.

Q. So, you never had an issue meeting with Juanita? A. No, never had an issue with her. Transcript: Evidence of L.A. page 27, lines 7-21. [ 77 ] The grandmother’s testimony on cross- examination by the appellant’s counsel also on December 9, 2020 is as follows: Q. Sure, okay. Again I just want to follow up on that last, correct me if I’m wrong I thought you gave some evidence particularly when my [colleague] Ms. Sarto was asking some questions that you were still having contact with a social worker so, but then you just told me [there is] no social worker involved, Could you just clarify that for me please? A.

That’s my social worker not hers. Q. Okay so your social worker, okay so there’s currently no social worker involved with [the mother] or her? A. No, not at all. Transcript: Evidence of L.A. page 47, lines 1-8. [ 78 ] Counsel for the grandmother advised that there was no child protection file open at the time of trial and there was no open child protection file at the time of the appeal.

The only relationship between the grandmother and CYS was the normal relationship related to her kinship agreement in providing care for her grandchildren. [ 79 ] There is no additional evidence to be admitted as the evidence regarding her involvement with CYS was disclosed by the grandmother at the trial. The application in this regard is a careless misrepresentation of the record and therefore not helpful to the Court in any way. DISPOSITION [ 80 ] The application for admission of additional evidence was dismissed prior to hearing submissions of the parties on the appeal. [ 81 ] I would dismiss the appeal.

In the circumstances, the respondents, as successful parties, shall have their costs of the appeal in accordance with column 3 of the scale of costs. Appeal dismissed.