2018 NLCA 57, 2018 NLCA 57

Elizabeth St. Croix (appellant) v. Joan Pardy-Callan (first respondent) and Wade Callan (second respondent) (18/87) Indexed As: St. Croix v. Pardy-Callan 2018 NLCA 57 3 C.A.N.L.R. 400 Court of Appeal of Newfoundland and Labrador Welsh, White and Hoegg JJ.A. October 2, 2018

Summary: After the sudden death of the father of a seven-year old child while he and the child were visiting the child’s paternal grandparents, the grandparents refused to return the child to her mother, who had complete hearing loss. The mother made an emergency application for the return of the child. That application was dismissed by the Supreme Court of Newfoundland and Labrador. Held: Appeal allowed, return of child ordered.

Welsh, White and Hoegg JJ.A.: It is difficult to understand the basis on which the judge concluded that an order that the child should remain with the grandparents and attend school in Norman’s Cove until a further order of the Court would be least disruptive to the child and would be in the child’s best interests. Disruption was unavoidable when her father, with whom she had been residing, died. The mother exercised her role as the child’s parent during the days and on occasional overnights during the parents’ separation.

Pursuant to the judge’s order, the child was placed for an interim period in an unfamiliar school. Section 26(1) of the Children’s Law Act , RSNL 1990, c. C-13 , provides that the parents are equally entitled to custody of their child unless otherwise provided in the Act . The child’s mother was thus entitled to custody of the child unless there was some reason to deny that entitlement. The judge failed to provide such a reason. Counsel: Michelle Wilson, for the appellant; Sophie St. Croix and Stephen Griffin, for the first and second respondents.

This appeal was heard and decision rendered orally on October 1, 2018 by Welsh J.A. for the Court. The following memorandum of disposition was filed on October 2, 2018 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] This appeal arises from the sudden death of the father of a seven-year old child while he and the child were visiting the child’s paternal grandparents in Norman’s Cove. When the grandparents refused to return the child to her mother in St. John’s, the mother immediately made an emergency application for return of the child.

Her application was set over for an interim hearing two weeks later when a judge of the Supreme Court of Newfoundland and Labrador, Family Division, dismissed her application. Without delay, the

mother filed a notice of appeal in this Court. [ 2 ] At the hearing, after the parties’ written and oral submissions were considered, the appeal was allowed, and the order of the applications judge was set aside on the basis that he had made legal and factual errors. The Court was satisfied that, in the circumstances, remitting the matter to the Supreme Court would not provide an appropriate remedy.

Rather, there was an adequate record and sufficient urgency to permit this Court to make an order. [ 3 ] In the result, the Court ordered that the child was to be returned forthwith to her mother who is the sole custodian of the child. [ 4 ] The parties were given leave, should they wish, to file a consent order regarding access by the paternal grandparents to the child.

If the parties agree on such an order, it would be desirable, in the circumstances, to include a provision that neither party shall make disparaging remarks about the other party or their family and shall not discuss custody and access issues or the court proceedings with the child, and further, that the grandparents shall not make remarks to the child that may have the effect of making her nervous to be in the care of her mother due to her mother’s complete hearing loss. [ 5 ] There was no order as to costs of the appeal.

Summary Following Oral Decision [ 6 ] The child was born on February 3, 2011. The child’s mother has complete hearing loss and communicates with her child using sign language. The parents separated in November or December 2017. During the parents’ separation, the child resided at her father’s residence, which was one street away from her mother’s residence, both being within walking distance of the child’s school. [ 7 ] On April 18, 2018, the child’s mother filed an application in the Supreme Court, Family Division, seeking an order for joint custody, with the child residing with each parent on a weekly rotation.

In his response to the application, the child’s father stated that he was “not agreeable to overnight access, as he feels the child may not be properly supervised and would be unsafe. [The child’s mother] has mental health issues, as well as being hearing-impaired”. It was his stated position that the child’s mother should not have overnight access unless supervised.

Despite these stated concerns, the judge accepted that, after the parents separated, the child had, in fact, stayed with her mother overnight on a few occasions and for three days when her father was in the hospital. [ 8 ] If there were real concerns with overnight access, it is reasonable to infer that those concerns would apply without exception and that the child should not have stayed with her mother overnight at any time.

The child’s mother rejected the father’s position that overnight stays with her would put the child’s safety at risk. [ 9 ] Further, the mother was primarily responsible for the child’s care on a daily basis. She usually walked over each morning to the father’s residence to get the child ready for school and walked her to school. She would pick the child up from school and spend evenings with her, regularly returning her to her father’s residence later in the evening.

Often she helped the child get ready for bed before returning to her own residence. [ 10 ] On August 30, 2018, after the child’s father died suddenly on August 29 th , the paternal grandparents refused the mother’s request to return the child to her. The following day, the mother filed an ex parte emergency application to have the child returned to her sole custody. The judge adjourned the hearing to September 11, 2018 to permit notice to be given to the grandparents.

Meantime, the grandparents had registered the child to attend school in Norman’s Cove. [ 11 ] At the conclusion of the September 11 th hearing, the judge ordered that the child would remain with her grandparents and attend school at Norman’s Cove until the new term begins in January 2019 or until further order of the Court. He further ordered that the grandparents would deliver the child to her mother after school on Fridays and pick her up on Sundays at 6:00 p.m.

The judge refused to order overnight supervision when the child is with her mother. [ 12 ] It is difficult to understand the basis on which the judge concluded that the above order would be “least disruptive” to the child and would be in the child’s best interests. Disruption was unavoidable when her father, with whom she had been residing, died. While the child often visited her paternal grandparents and had a positive relationship with them, she had not resided with them. By contrast, the child had resided with both her parents until they separated approximately nine months earlier.

During the period of separation, the mother exercised her role as the child’s parent during the days and on occasional overnights. [ 13 ] The applications judge did not refer to, and did not consider, that, for two years the child had attended classes at the school that was within walking distance of both parents’ residences.

Rather, pursuant to the judge’s order, the child was placed for an interim period in an unfamiliar school. [ 14 ] In addition, any concern with the mother’s ability to parent her child during the night due to her hearing loss must be discounted given that the judge ordered that the child would stay with her mother overnight on Fridays and Saturdays. In ordering that the child would be with her mother only on the weekends, the judge relied on the fact that the child was attending school in Norman’s Cove.

However, he identified no basis on which to conclude that the paternal grandparents had de facto custody of the child. They, in fact, had not applied for custody. [ 15 ] Section 26(1) of the Children’s Law Act , RSNL 1990, c. C-13, provides that the parents are equally entitled to custody of their child: Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child. [ 16 ] Applying this provision, the child’s mother was entitled to custody of the child unless there was some reason to deny that

entitlement. As discussed above, the judge failed to provide such a reason. [ 17 ] In the result, the Court concluded that the applications judge had erred in his application of the Children’s Law Act in the circumstances before him. [ 18 ] Accordingly, the Court ordered that the child be returned forthwith to her mother who is the sole custodian of the child. Appeal allowed.