2018 NLCA 43, 2018 NLCA 43

Robert Ring (appellant) v. Amanda Ring (Walsh) (respondent) (17/71) Indexed As: Ring v. Ring (Walsh) 2018 NLCA 43 3 C.A.N.L.R. 159 Court of Appeal of Newfoundland and Labrador Green, Harrington and Hoegg JJ.A. July 23, 2018

Summary: In the context of divorce proceedings where parenting arrangements were in dispute, the appellant father sought an interim order determining where the child would attend school. The family court judge adopted the respondent mother’s proposal which did not provide for the homogeneous French language environment the father wanted. The father appealed that determination arguing the judge erred in mixed fact and in deciding that the best interests of the child would be served, at least in the short term, by his attending the school chosen by the mother. Held: Appeal dismissed.

Green J.A. (Harrington and Hoegg JJ.A. concurring): The judge stressed that the decision had to be based on what was considered to be in the best interests of the child, not the best interests or convenience of the parents. She looked at a number of factors, as outlined in section 31(2) of the Children’s Law Act, RSNL 1990, c. C-13 . In fact, the applicable legislation was

section 16 the Divorce Act , RSC 1985, c. 3 (2nd Supp .). Custody orders or orders dealing with specific incidents of custody are entitled to considerable deference on appeal. Generally, an appellate court will only intervene where there has been a material error, a serious misapprehension of the evidence or an error of law. Even where an error has been identified, it does not follow that the original decision should be set aside. The error must be material and in any event the appeal court must put the children’s current best interests first when fashioning a remedy.

The judge erred in her choice of statutory frame of reference. The error is not material to the decision, however, since the cases interpreting

section 16 of the Divorce Act essentially apply the same group of factors to the best interests decision. On an interim application to determine one incident of a custodial arrangement, in this case, schooling, the focus has, of necessity, to be short-term and narrow. It is apparent from her reasons that the applications judge did not allow herself to be drawn into making a choice based solely on weighing the merits and demerits of French immersion schooling against homogeneous French language education. The relative merit of particular schools is not the central issue in this case.

The issue is what choice of school is in the best interests of the child, taking into account all factors bearing on the child’s interests. The judge correctly adopted a holistic approach by considering, as well, other factors which she deemed relevant to determining the best interests of the child such as what she believed to be the child’s de facto primary residence (Flatrock) and the connections he would have developed from living in that area.

In the end, the applications judge was satisfied that, given the totality of the circumstances some degree of facility with the French language could be achieved, at least in the short run, by attending the French immersion school while at the same time achieving other benefits by keeping the child in the Flatrock/Torbay area. She did not err in adopting such an approach.

Counsel for the father argues that to recognize that the child’s living arrangement with his mother as the status quo residence iseffectively to validate and reward the mother’s unilateral decision to resile from a prior agreement to send the child to a homogeneousschool. A failure by the court to recognize and enforce previously agreed understandings between the parties is not necessarily an errorof law. The overriding consideration is the judge’s perception of the best interests of the child in the current circumstances. For thejudge, the current arrangement was the key factor.

While someone else might view the situation differently, it was open to the judge toplace emphasis on that fact. In the circumstances it cannot be said that the judge made a palpable or overriding error in this regard. The judge understood the distances involved in transporting the child to the school and the degree of inconvenience that might result toone or other of the parents. She regarded the inconvenience as minimal and as not the major factor. The judge also had an evidentiarybasis for linking the Flatrock and Torbay communities with respect to local connections that the child had developed.

The judge did not make any material errors with respect to her appreciation of the evidence or consideration of relevant factors, or anyerrors of law or principle that would have affected the result. There is no basis for appellate intervention in this case. Cases cited: Osbourne v. Conroy, 2017 NLTD(F) 15 Pumphrey v. Pumphrey (1997), (NL CA), 148 Nfld. & P.E.I.R. 340 (Nfld. C.A.) Wilson v. Wilson, 2015 ONSC 479 Lambe v. Coish, 2006 NLTD 201, 263 Nfld. & P.E.I.R. 78 Perron v. Perron, 2012 ONCA 811 Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 Counsel: Daniel M. Glover, for the appellant; Susan M.

Day, for the respondent. This appeal was heard on November 6, 2017 before Green, Harrington and Hoegg JJ.A. The following judgment was delivered on July 23, 2018 by Green J.A. for the Court. ______________________________________________________________ Green J.A.: [1] In the context of divorce proceedings where parenting arrangements for two children were in dispute, the appellant father soughtan interim order determining where the older child, aged 5, would attend school. The family court judge adopted the respondentmother’s proposal.

The father appealed that determination to this Court. [2] The sole issue before the Court is whether the applications judge erred in fact or law in deciding that the best interests of thechild would be served, at least in the short term, by his attending the school chosen by the mother.

The crux of the issue relates to thedifferent views the parents have respecting the appropriateness of their son attending a French immersion school operated by the Englishlanguage school board as opposed to attending a homogeneous French language school operated by the French language school board. [3] Both parents, laudably, wish their son to grow up with a facility in both official languages. The father, however, believes that hisson’s facility in French would be significantly enhanced if he were to be educated in a homogeneous French language environment.

Themother, while not opposing the concept, nevertheless felt that, for other reasons affecting parenting, a French immersion school would besuitable for this purpose. The parties could not break the impasse. The matter came to a head as the deadline for registration of their sonin one or other of the schools approached.

[ 4 ] The father’s application to have the issue determined focused on what he alleged was a prior understanding between the father and mother to move towards a parenting regime that involved sharing parenting time on an equal basis and that the mother’s move to Flatrock from St. John’s with the child to be with the mother’s parents was to be a temporary move. Using this as a benchmark, he submitted to the applications judge that, in addition to the fact that his son would receive a superior French language and cultural experience at the homogeneous French language school proposed by him in St.

John’s, if the boy were to attend the French immersion school in Torbay as proposed by the mother, it would interfere with the contemplated transition from the existing situation where the mother had primary care to one of equal shared parenting [ 5 ] For the reasons that follow, I have concluded that there is no basis for appellate intervention in this case and would dismiss the appeal.

The Ruling [ 6 ] The judge’s decision, delivered orally at the conclusion of the case, was given in a “stream of consciousness” format that was peppered with comments, observations and other matters that were sometimes not pertinent to the issues under consideration. That makes it difficult, short of quoting it in its entirety, to reproduce key passages as containing the fundamental basis of the decision.

It is better, therefore, to attempt to summarize the key factors that appear to have led the judge to the decision she made. [ 7 ] The judge stressed that the decision had to be based on what was considered to be in the best interests of the child, not the best interests or convenience of the parents. She looked at a number of factors, as outlined in section 31(2) of the Children’s Law Act, RSNL 1990, c. C-13, referring to the decision of LeBlanc J. in Osbourne v.

Conroy , 2017 NLTD(F) 15, a case, unlike the present, involving unmarried parents. [ 8 ] She concluded that considerations relating to the emotional ties between the child and each parent, and the ability of each parent to provide guidance, education and the necessaries of life were relatively equal in the balancing exercise. In fact, she described them as “two able and loving parents” (Transcript, p.133).

As to the degree of existing contact between each parent and the child, she recognized that although the child was currently spending more time in the mother’s care, the father claimed that he and the mother had agreed to move to an equal time-sharing arrangement in the future but that the mother was now resisting.

While observing that it was “likely” that the father would be successful in that claim in the long run, the judge nevertheless stressed that in the current interim application, she had to “deal with where it is right now” (Transcript, p. 135). [ 9 ] The judge focused on the fact that “however that evolved” the child had lived with the mother as primary caregiver in the Flatrock area ever since he was two and a half years old when the parents separated.

She noted that the father claimed that that arrangement was to be only a temporary measure, but the reality was that the primary caregiving arrangement was “their home right now so that’s what I have to deal with.” That meant that the child “has been growing up in that Flatrock/Torbay area” with local friends. The French immersion school proposed by the mother is located in the Torbay area, relatively close to the child’s primary residence in Flatrock, whereas the homogeneous French language school proposed by the father is in St.

John’s, near to the father’s residence. [ 10 ] She acknowledged that the father claimed that the educational experience at the homogeneous French language school in St. John’s “would be a better French experience” and that while in the father’s care the child had been able to develop connections with Francophone groups associated with the school. [ 11 ] In deciding to allow the mother to enroll the child in the French immersion program in Torbay, however, the judge relied on the following: (

i) the child’s current primary residence was in the Flatrock area; (ii) the child’s exposure to French as a working language could be accomplished in the Torbay French immersion school, albeit there might be a “fuller” French experience at the other school; (iii) the father’s connection with French culture was “distant”.

Although the judge did not elaborate on this, I read her comment to mean that the other benefits of schooling in a homogeneous French school beyond language instruction, such as cultural growth and knowledge, were not as important because the father himself was of English heritage; and (iv) attending school in Torbay would not appreciably affect the “transportation issue.” She did not elaborate except to say that it would not likely be an impediment to the father being in a position to claim an equal parenting arrangement in the future.

The Challenge on Appeal [ 12 ] The father asserts to this Court that the applications judge did not address, or did not make correct decisions with respect to, the following pertinent factors: 1. The fact that decisions in other jurisdictions, such as Perron v. Perron , 2012 ONCA 811 , 113 O.R. (3d) 600 , have recognized that there is a qualitative difference between the type of French educational and cultural experience offered by homogeneous French- language schools designed for the Francophone community, and French immersion programs designed for English-speakers and providing bilingual instruction. 2.

The fact that the parties had initially agreed on an equal sharing of parenting responsibilities and that the father’s acceptance of the mother’s move to the Flatrock area with the child was based on it being of a temporary nature. The approval of the mother’s decision to enroll the child in the Torbay school effectively wrongly re-inforced and rewarded the mother’s unilateral decision to deny equal access to the father.

3. The fact that, contrary to the view of the applications judge, issues with respect to transportation of the child to school favoured himattending the Francophone school in St. John’s near his father because there would be busing provided by the St. John’s school fromFlatrock to St. John’s and return whereas if he were to attend the immersion school in Torbay the father would have to devote one and ahalf hours of his time to bring him to the Torbay school when he was parenting the child. 4.

The fact, overlooked by the applications judge, that the Torbay school was not in Flatrock, with the result, contrary to the conclusionof the judge, that the child would not be more connected to the Torbay school than the St. John’s school. In fact, the father asserted thatbecause the child had attended pre-kindergarten at the St. John’s school, he was more connected to that school and had already madefriends there. [13] Custody orders or orders dealing with specific incidents of custody are entitled to considerable deference on appeal.

Generally,an appellate court will only intervene where there has been a material error, a serious misapprehension of the evidence or an error of law:Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at paragraph 11. In that case, Bastarache J. also commented: [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 … The Court of Appeal is not in a position to determine what it considers to be thecorrect 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 of thechild and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. … [15] … [T]he approach to appellate review requires an indication of a material error.

If there is an indication that the trial judge did notconsider relevant factors or evidence, this might indicate that he did not properly weigh all of the factors. … [A]n omission is only amaterial error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in away that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence. (Emphasis in original.) [14] Even where an error has been identified, it does not follow that the original decision should be set aside.

The error must bematerial and in any event the appeal court must put the children’s current best interests first when fashioning a remedy: Perron,paragraph 26. [15] Furthermore, where the appeal relates to an interim order, which by its very nature is generally intended to last for a short periodof time, there may be even more reason to defer to the result of the interim order since a more fulsome determination is ultimatelyanticipated.

Analysis General Principles [16] The judge conducted her analysis of the circumstances by reference to the factors to be considered in determining the bestinterests of the child as set out in

section 31 of the Children’s Law Act. In fact, the applicable legislation was the Divorce Act, RSC 1985,c. 3 (2nd Supp.) which provides in pertinent part: 16(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respectingcustody of or access to, or the custody of and access to, any or all children of the marriage.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person,make an interim order respecting the custody of or access to, or the custody of and access to, any or all children of the marriage pendingdetermination of the application under subsection (1). …

(6) The court may make an order under this

section for a definite or indefinite period or until the happening of a specified event and mayimpose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. …

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage asdetermined by reference to the condition, means, needs and other circumstances of the child. …

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as muchcontact with each spouse as is consistent with the best interests of the child, and for that purpose, shall take into consideration thewillingness of the person for whom custody is sought to facilitate such contact. [17] Although section 16(2), dealing with interim orders, only expressly speaks of making orders relating to custody and access in acomprehensive sense, the jurisdiction of the court extends to making decisions with respect to specific incidents of custody as well ascustody generally.

Section 2 of the Divorce Act defines “custody” as including “care, upbringing and any other incident of custody”(emphasis added) and section 16(6) allows the court to impose “terms, conditions or restrictions.” As this Court noted in Pumphrey v.Pumphrey (1997), (NL CA), 148 Nfld. & P.E.I.R. 340 (Nfld. C.A.) at paragraph 17, “Section 16 of the Divorce Act

confers on courts a wide discretion to fashion orders to meet the needs of children, including the sharing or dividing of the ‘incidents of custody’.” Even more pointed is Price J.’s comment in Wilson v. Wilson , 2015 ONSC 479 at paragraph 122 : “The choice of a child’s school … is a decision that is incidental to custody.” [ 18 ] Notwithstanding the error of the applications judge in choice of statutory frame of reference, the error is not material to the decision, however, since the cases interpreting

section 16 of the Divorce Act essentially apply the same group of factors to the best interests decision. See , for example, Perron and Lambe v. Coish , 2006 NLTD 201 , 263 Nfld. & P.E.I.R. 78 at paragraphs 17-20 . [ 19 ] In applying the relevant factors, however, I would stress that the factors are designed for, and generally applied in, deciding overall custodial and access arrangements rather than discrete issues within the overall arrangement. Here, the overall custodial arrangement has not yet been determined and the matter in issue relates to just one facet of that arrangement and only on an interim basis.

That is not to say that the best interest factors are not relevant, only that in applying them to a narrow issue, some may not be particularly influential and those that do have resonance will have to be considered only from the point of view of their relevance to the particular issue, in this case, the choice of schooling on an interim basis. [ 20 ] On an interim application to determine one incident of a custodial arrangement, in this case, schooling, the focus has, of necessity, to be short-term and narrow.

The decision is to be taken with the knowledge that the overall custody and access arrangement will be decided later, either by agreement or by litigation, and that that broader and more long-term decision may have profound implications for the shorter-term interim schooling decision. The applications judge recognized this when she used on several occasions words like “I have to deal with the present. I have to deal with where it is right now” (Transcript, p. 135).

Although the father specifically requested the Court, in making the decision respecting schooling, to “consider the long-term equal parenting plan, rather than the current interim schedule” (Affidavit sworn May 15, 2017, paragraph 13, Appeal Book, Tab 9), the judge was entitled to reject that approach. Significance of Homogeneous French-language Schooling [ 21 ] Counsel for the husband submitted that the applications judge did not appreciate, and therefore erred in her treatment of, the significance of the differences between the French-language school in St. John’s and the French immersion school in Torbay.

In Perron , Rouleau J.A. observed: [44] In a linguistic minority environment, homogeneous French-language school are generally preferable to French immersion programs for ensuring both languages, namely French and English, are maintained at the highest level. In a region with a large English-speaking majority, homogeneous instruction in French does not result in losing the language and culture of the linguistic majority. This does not therefore imply a choice of preferring the culture and language of the minority over those of the majority.

In a minority setting, homogeneous French-language schools in fact make it possible to maintain cultural and linguistic links with both the French-speaking and English-speaking parents. In accordance with s. 24(2)(

d) of the Children’s Law Reform Act , the children’s language of education should therefore be taken into account when determining their best interests. … [46] Homogeneous instruction in French also promotes an in-depth knowledge of both official languages of Canada, which opens doors to a wider array of university and job opportunities.

In addition, … if the children receive their primary-level instruction in French, they will acquire the right under s. 23 of the Charter to have their future children educated in the language of the minority. [ 22 ] The judge’s treatment of this issue is represented by her comments as follows: I have to note, and you couldn’t have a bigger supporter of French school but I have to go with that they aren’t Charter as you say, Charter or full-on cultural reasons to put École [des Grands-Vents] first and I will tell you that my decision will be to go to Holy Trinity, French Immersion at Holy Trinity… … that school does offer French Immersion and while I think that possibly there is a fuller French experience at École des Grands-Vents, I don’t have full cultural reasons.

The cultural connection is a little more distant on the father’s side and I’m still going to get a full French Immersion down at Holy Trinity so in the absence of a real Charter reason I can’t say that École des Grands-Vents would be superior given the totality of the circumstances that the children have been living primarily with their mother down in that area, and they can get a full French Immersion, and I’m uncertain that actually given their English heritage how much English schooling they would get if they went to École des Grands-Vents, but I’ll leave that to one side.

But there isn’t a strong, … Charter argument, as the father said, for it but yet we’re still able to get a full immersion at Holy Trinity. The other thing that I would say is that while the father, I think, will likely get 50-50 … I have to decide on what I have right now. (Transcript, pp. 144-146; emphasis added.) [ 23 ] It is apparent from the foregoing that the applications judge, wisely, did not allow herself to be drawn into making a choice based solely on weighing the merits and demerits of French immersion schooling against homogeneous French language education.

The relative merit of particular schools is not the central issue in this case. The issue is what choice of school is in the best interests of the child, taking into account all factors bearing on the child’s interests.

The judge correctly adopted a holistic approach by considering, as well, other factors which she deemed relevant to determining the best interests of the child such as what she believed to be the child’s de facto primary residence (Flatrock) and the connections he would have developed from living in that area. [ 24 ] It is arguable that she may have overemphasized the French-language experience available in the French immersion school in Torbay and did not fully appreciate some of the implications of going to a homogenous French school, including the benefits flowing from

section 23 of the Canadian Charter of Rights and Freedoms . However, it is hard to see how such a long-term Charter implication for the father, primarily affecting siblings and subsequent generations, would have resonance in dealing with the short-term interim issue under current consideration. In any event, the superiority of one school over the other was, for the judge, not the deciding factor, nor should it have been.

[ 25 ] She also noted that the father was not from a French cultural background. In fact, he may only have been able to get his son enrolled in the homogeneous school by stating on the application that he was from the Port-au-Port peninsula, a French-speaking area, which may have only been true with respect to the father’s ancestors, not himself.

This lack of a strong connection to a French cultural heritage was also a factor that influenced the judge. [ 26 ] In the end, she was satisfied that, “given the totality of the circumstances” some degree of facility with the French language could be achieved, at least in the short run, by attending the French immersion school while at the same time achieving other benefits by keeping the child in the Flatrock/Torbay area. She did not err in adopting such an approach.

Identification of a Status Quo Baseline [ 27 ] Counsel for the father also takes issue with the judge’s conclusion that the child’s primary residence was in the Flatrock area. He says that much of the judge’s flawed reasoning stemmed from that erroneous conclusion.

He argues that to recognize that the child’s living arrangement with his mother as the status quo residence is effectively to validate and reward the mother’s unilateral decision to resile from a prior agreement to send the child to a homogeneous school and to deny parenting to the husband, on a 50-50 basis, thereby violating the understanding to move to an equal parenting arrangement. The husband had explained that he only agreed to a temporary move for the mother and child to Flatrock during the mother’s maternity leave, expecting that after the mother went back to college or work (in St. John’

s) the arrangement would change. [ 28 ] Counsel points to the judge’s comment that “it has now been over two years and the primary residence has been with the mother, however that evolved ” (Transcript, p. 139; emphasis added) as indicating the judge’s refusal to consider and take account of the improper actions of the mother in unilaterally and arbitrarily refusing, without explanation, to live up to the previously-agreed parenting arrangements.

He submits that doing so in such circumstances amounts to an error of law. [ 29 ] While prior understandings reached between parents as to how parenting was to be arranged are relevant considerations, it does not follow that failure by the court to recognize and enforce previously agreed understandings is necessarily an error of law. The overriding consideration is the judge’s perception of the best interests of the child in the current circumstances.

In referring to the current situation “however that evolved” the judge was signaling that regardless of prior actions of the mother that may have been inconsistent with prior understandings, the best interests of the child required that he stay in the Flatrock/Torbay area for purpose of schooling. The judge concluded: …the test for me is what’s in the best interests of the children. Right now [the child] has primarily lived in that Flatrock/Torbay area since he’s two and a half years old and he’s had a few days every second weekend with his father so his … primary residence right now is not in the St.

John’s area. (Transcript, p. 144; emphasis added.) [ 30 ] For the judge, the current arrangement was the key factor.

While someone else might view the situation differently, it was open to the judge to place emphasis on that fact and to downplay or disregard the fact that recognizing the current situation might indirectly be seen to validate inconsistent and arbitrary action on the part of the mother, thereby enabling agreement-breaking. [ 31 ] In any event, the applications judge did not regard the evidence with respect to the prior parental agreements as being as clear cut as the father represented, leading her to downplay their significance to the ultimate decision.

She stated: There is a disagreement over whether there was ever an agreement to École des Grands-Vents. It doesn’t sound like, at least for the last year, if there ever was an agreement.

I’m not going to concern myself with that but I will say this, that clearly the father wants him to go there, if the mother agreed … she definitely didn’t agree by a year ago, and I’m not sure that she ever fully agreed . … (Transcript, p.141; emphasis added.) [ 32 ] This focus on the current de facto situation was also emphasized by the judge’s treatment of the mother’s attempted explanation for why she originally agreed to allow the child to be placed in the homogeneous school.

She drew the inference from the mother’s reference to the father refusing to pay child support for three months because she would not agree to put him in kinderstart in the St. John’s school, and from the allegation that the father “refused to sign an agreement unless I put [the child] in École des Grands-Vents” (Response, sworn April 11, 2017, p.2, Appeal Book, Tab 7) to conclude that she was “somewhat coerced” (Transcript, p. 142). Notwithstanding that inference, however, the judge stated “I don’t want to wade into that because it’s not the key factor” (Transcript, p. 142).

Once again, she was signaling that the most important consideration for her was the existing situation “however that evolved.” [ 33 ] The fact that the judge did not refer to the explanation provided by the husband in his evidence for not paying child support was therefore not material to the result since the issue was not a significant consideration for the judge in her analysis. [ 34 ] In the circumstances it cannot be said that the judge made a palpable or overriding error with respect to dealing with the evidence in this regard.

Transportation Issues [ 35 ] Counsel for the father submitted that the applications judge misapprehended the evidence, or did not give serious consideration to it, relating to the transportation logistics relative to school attendance and how that would impact on the best interests of the child in the sense of promoting maximum contact with both parents. He pointed to the evidence of the father to the effect that if the child attended the Torbay school, the father would have to travel from St. John’s and return to pick up and deliver the child to and from the school whenever he had parenting responsibilities.

This, he maintained, would make it difficult for him to move from the existing parenting situation to an equal shared custody arrangement. By contrast, the father said that if the child were to attend the St. John’s school, he would be able to take advantage of the homogeneous French language school bus system, which was not generally available to other schools, where he would be picked up and returned to Flatrock at the end of the day. He further asserted that even when the mother was

parenting the child, she could bring the child with her to the school in St. John’s, where she was now attending college. It would therefore not be an inconvenience to her either if the child were enrolled in the St. John’s school. [ 36 ] The mother’s response to the father’s position was, as stated in her pleading: The bus for École des Grands-Vents would not be easier as suggested by the applicant. The bus for École de Grands-Vents picks up the children at 8:00 am in Flatrock and waits outside the school until after 8:35 am to let the children in the school.

The bus drops the children off at 3:30 pm in Flatrock, at which time I would have to be home in Flatrock at 3:30 and then drive him to his after school day care. I have had difficulty finding afterschool care in this situation. At Holy Trinity School in Torbay, the school itself provides after school care for $22/day through the YMCA until 6pm if required. This means that [the child] could be dropped off at 8:20 at Holy Trinity School and picked up there at 6 pm. This would allow me to attend school or work in St.

John’s without having to travel back and forth to Flatrock during the day. (Response, p. 3, Appeal Book, Tab 7) [ 37 ] The judge dealt with the busing/transportation issue tangentially in her reasons for judgment as follows: With respect to the transportation issue … we deal with people who are further out than this. If we’re less than an hour drive, Torbay might almost be considered right now a suburb of St. John’s to be honest.

We’re luckily not so far away that being in school in Torbay is going to prohibit you from getting 50/50 because I have had one this week, like that, by the way, where I have had to make a decision in a different direction because I knew darned well if I go in a certain way it’s going to, the father will never get 50/50. … The distance from here to Torbay isn’t such that putting a child in school at Holy Trinity is not [sic] going to be an impediment to you getting your 50/50.

If I was putting a child in school in Bay Roberts it would be because that would be too far to go. … The child has a right to maximum contact to both parents so I have to concern myself with if I put a child in Torbay and I know that this is likely going this way, that your access is going to increase up to 50/50 at some point in the near future, would that be an impediment, it’s not that far, you know, it’s not so far away … I agree it’s inconvenient but it’s not so far that it’s going to impede it because I do believe it will go that way, and I have factored that into this decision. (Transcript, pp. 147-149; emphasis added.) [ 38 ] While it is true that she did not specifically allude to the busing issue – or to the mother’s concerns about daycare arrangements, for that matter – it is obvious she was alive to the logistical problems of transportation in the St.

John’s - Torbay corridor. During the hearing, while the father was testifying about the length of time it took to drive from St. John’s to Torbay, the judge interrupted and observed: Before you spend a lot of time on this can I just comment on it if you don’t mind because I don’t want to waste time on things that … I recognize that no matter what I decide, either way there’s going to be an inconvenience to either parent.

All these applications involve that, they’re going to involve one side or the other doing more driving. … I mean I take it for granted, it’s not that far, I’ve got to be honest with you. …I know the distances. I’m … born and raised in St. John’s, I know where Flatrock is, and I know exactly where, you know, Holy Trinity, I know where he lives, I know all that okay, but I recognize that there’s an inconvenience, and … no matter what I do, I’m telling you right now, while it’s a factor it’s not the major factor. The major factor is usually the best interests of the child.

If it’s a really big driving distance it can come into play but I don’t want you to spend a lot of time on whether it’s 25 or 35 or 45 minutes. I do understand what’s there … (Transcript, pp. 92-94.) [ 39 ] In saying this, the judge was signaling that she understood the distances involved and the degree of inconvenience that might result to one or other of the parents.

She regarded the inconvenience as minimal and as not “the major factor.” It is also clear she was alive to the maximum parental contact principle and might have been prepared to give it more weight if the distances involved had been significantly greater and amounted not merely to an “inconvenience” but to an “impediment.” Thus, regardless of whether the father might have to drive 30 to 40 minutes a day with respect to school transportation, that was not to be regarded, in the judge’s view, as having a significant effect on the issue of maximizing parental contact. [ 40 ] Furthermore, in considering the transportation logistics facing the father, the judge was in any event entitled to balance those inconveniences against the inconveniences that the mother had spoken to relating to after-school care arrangements.

The problems were not one-sided. [ 41 ] In these circumstances it cannot be said that the judge overlooked key evidence or failed to consider relevant factors. Distinction between Flatrock and Torbay [ 42 ] The father asserts that the applications judge did not appreciate the significance of Holy Trinity school being in Torbay rather than in Flatrock and therefore made assumptions about the connections the child would have with the local area which caused her to give more weight to them than to the connections the child had developed with the St.

John’s school by attending pre-kindergarten there. [ 43 ] I do not think it can seriously be maintained that the judge did not appreciate that Flatrock and Torbay were not in the same place and that there would have to be travel between them for the purpose of schooling. As noted previously (see paragraph 38 above), she

made her familiarity with the whole area clear to the parties (“I’m born and raised in St. John’s, I know where Flatrock is and I know exactly where … Holy Trinity [is], I know where he lives”). The judge was entitled to take judicial notice, if necessary, of basic geographical local conditions. It is also clear that she recognized the connections that the child had with the St. John’s school and considered them in the light of the child’s connections in the area of his primary residence: This child is somewhat connected to both groups.

The father has presented ample evidence that [the child] has been involved, say with the Francophone groups. I mean there’s ample evidence of connection there.

There’s also a (inaudible), it’s obvious that the child has been growing up in that Flatrock/Torbay area. (Transcript, pp. 141-142) [ 44 ] While it is true that the judge spoke collectively in terms of connections with the “Flatrock/Torbay area” without distinguishing between them, it is a fair inference that what she was thinking about were the connections with other children that the child had from living with his mother in Flatrock (“that is their home right now”: Transcript, p. 139) which to some extent would also be present as connections in the Torbay school, since that was the local school for the area.

This was confirmed by the mother’s affidavit evidence as follows: I believe that Holy Trinity is the best fit. [The child] has many friends at Holy Trinity who he has seen outside of school since infancy, and with whom he has developed strong bonds. (Affidavit, paragraph 3, Appeal Book, Tab 8) [ 45 ] The judge therefore had an evidentiary basis for linking the Flatrock and Torbay communities with respect to local connections that the child had developed.

Summary and Conclusion [ 46 ] The applications judge did not make any material errors, affecting the result, with respect to her appreciation of the evidence or consideration of relevant factors. A review of the judge’s reasons for decision, the record and the evidence given at the hearing does not give rise to a “reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected [her] conclusion” ( Van der Perre , paragraph 15).

She attempted to balance the considerations that seemed relevant to her to come up with a fact-specific exercise of discretion. [ 47 ] Furthermore the judge made no errors of law or principle that would have affected the result. She recognized and applied the proper (best interests) test for determination of the issue as well as the need to consider the maximum parental contact principle.

Furthermore, she was conscious of the fact that the issue was presented in the context of an interim hearing and properly adopted a short- term focus while nevertheless being conscious of the fact that longer-term considerations might indicate a different result and that any short-term decision should not, as much as possible, be an impediment to longer-term arrangements that might ultimately be arrived at. [ 48 ] There is no basis for appellate intervention in this case. [ 49 ] Pursuant to rule 9(5) and 9(6) of the Court of Appeal Rules , NLR 38/16, the Court sought certain information relating to circumstances of the child and the parents occurring subsequent to the order under appeal.

In light of the fact that there is no basis for appellate intervention, however, it is now not necessary or appropriate to consider any subsequent events affecting child or parents. Disposition [ 50 ] I would dismiss the appeal. I would, however, make no order as to costs. [ 51 ] I would make two further comments. First, I understand that counsel for the father agreed to represent him as a result of his volunteer work at the Court’s Legal Assistance Clinic.

Those who volunteer their time at the Clinic provide an important service and are due the gratitude of all those involved in the system of justice in this province. Although the father was not successful in this appeal, I wish to record my appreciation to Mr. Daniel M. Glover, his counsel, for the careful, and professional manner in which he carried out his duties. [ 52 ] The second comment I would make is to encourage the parties to attempt, through mediation if possible, to resolve the longer- term custodial and access issues as soon as possible.

If resolution by agreement cannot be achieved they should seek an early date in court to have outstanding matters decided. Appeal dismissed.