N.T. v. R.W.P., 2011 NLCA 47

Date: 20110629 Docket: 10/115 Citation: N.T. v. R.W.P. , 2011 NLCA 47 PUBLICATION BAN: THERE IS A PUBLICATION BAN ON THE NAMES OF ALL CHILDREN REFERRED TO HEREIN AS WELL AS THE NAMES OF ANY PERSON WHO COULD IDENTIFY THE SAID CHILDREN, PURSUANT TO

SECTION 58 OF THE FAMILY LAW ACT, RSNL 1990, c. F-2 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : N. T. APPELLANT AND : R.W. P. RESPONDENT Coram: Welsh, Rowe and Harrington, JJ.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division, (Family) 200202U0422 Appeal Heard: May 24, 2011 Judgment Rendered: June 29, 2011 Reasons for Judgment by Rowe, J.A. Concurred in by Welsh and Harrington, JJ.A. Counsel for the Appellant: Lori G. Savory Counsel for the Respondent: Keri-Lynn Power

Rowe, J.A.: INTRODUCTION [1] This is a parent and child mobility case. While the separated parents have joint custody of the child of their common lawrelationship, a 10 year old boy, his primary residence has been with the mother. She is moving to Halifax. She wishes to take the childwith her. The trial judge found that it was in the best interests of the child to remain in St. John’s with his father. The mother appeals thatdecision. FACTS [2] RWP (the father) and NT (the mother) began cohabiting in 1999. W (the child) their son was born in 2001.

The father andmother separated in 2002, reconciled in 2003 and separated again in 2004. Since then, they have been locked in incessant, acrimoniouslitigation on child support and custody matters. While the child is in the joint custody of both his parents, he has lived primarily with hismother. [3] At the time of the trial, the father, mother and child lived in St. John’s. The mother decided to move to Halifax for personaland career reasons. She wished to take the child with her.

The father opposed this. [4] In an eight-day trial, the parents denounced one another as unfit, raking up story after story of alleged past misconduct. Thetrial judge was not persuaded by either parent. He wrote at para. 24 of his decision (2010 NLTD(F) 22): Because I am satisfied that each of these parents have adequate skills (albeit with different methods of application) to raise [the child], Iwould if [the mother] were to remain in Newfoundland, award joint custody to both parents equally with access on a week-on/week-offbasis.

Having decided that both the mother and father were good parents, the trial judge considered whether it was in the best interests of thechild to live with his mother in Halifax or his father in St. John’s. [5] The trial judge considered the situation outlined by each parent and concluded that it was better for the child to remain withhis father in St. John’s. The trial judge noted especially the connections with the father’s family, as well as the friends that the child has in St. John’s.

The trial judge included in his decision arrangements for the mother to have access (e.g. during the summer, at Christmas, by telephone,by e-mail). [6] The mother appealed. Counsel on her behalf repeated the litany of alleged misdeeds by the father, seeking to have us find hewas an unfit parent. Counsel for the father joined issue. The appeal resembled the trial, albeit in abbreviated form. ANALYSIS [7] The mother has failed to demonstrate any palpable and overriding error in the findings of fact by the trial judge.

To thecontrary, I would say that the trial judge dealt with the evidence thoroughly and made his findings in a careful way. The mother has alsofailed to show any error of law in the trial judge’s application of the jurisprudence, notably Gordon v. Goertz, (SCC),[1996] 2 S.C.R. 27. Again, I would say that the trial judge demonstrated a methodical application of the law, notably in his considerationof the situation the child would face in Halifax or St. John’s.

I would adopt the reasons of the trial judge (save as noted below) andaffirm his decision. [8] The one respect in which I would differ from the trial judge relates to the following passage from para. 42 of his decision: It is, of course, an old-fashioned notion that a parent or parents must sacrifice all in their lives for the benefit of their children. In mymind, failure to do so does not render such a parent inadequate.

However, there is a large qualitative difference between balancing theneeds of the parent and the child on the one hand and essentially possibly abandoning the child to the care of a father whom she regardsas wholly inadequate as a parent on the other hand [which] causes me some concern as to the true depth of her commitment to that child. [9] This is a variation on the classic “double bind” described by the Alberta Court of Appeal in Spencer v.

Spencer, 2005 ABCA262: [18] [I]t is problematic to rely on representations by the custodial parent that he or she will not move without the children should theapplication to relocate be denied. The effect of such an inquiry places the parent seeking to relocate in a classic double bind. If theanswer is that the parent is not willing to remain behind with the children, he or she raises the prospect of being regarded as selfinterested and discounting the children’s best interests in favour of his or her own.

On the other hand, advising the court that the parent isprepared to forgo the requested move if unsuccessful, undermines the submissions in favour of relocation by suggesting that such a moveis not critical to the parent’s well-being or to that of the children. … [19] Once a material change has been found, Gordon directs the judge to be mindful of the status quo prior to the move, but the inquirycannot stop there.

The relevant inquiry is to the children’s best interests, evaluated in the new circumstances as found (here, the effect onthe children of the mother’s relocation with her new husband and child to Victoria if they are allowed to move) compared to its effect onthem if they are not allowed to move. The children’s best interests must be assessed in the new circumstances, its impact on them if theystay or if they go: see Christmas v. Christmas, 2005 ABCA 213. [Emphasis added.]

See also, MacPhail v. Karasek , 2006 ABCA 238 , which relies on Spencer . [ 10 ] While the trial judge made an error, I am persuaded that it was not a material error (i.e. one that affected the outcome of the case), in that it is clear both that the trial judge found the mother to be a good parent and that he decided that the child should remain in St.

John’s based on the child’s connections here and not because of any adverse view of the mother. [ 11 ] As a separate point, I would note that while the main issue before the trial judge was mobility, there was also an issue of retroactive child support (based on imputed income). While the trial judge refers to that issue at para. 9 of his decision, he failed thereafter to deal with it. The mother sought to have this Court decide the matter. We will not do so. [ 12 ] The evidence and arguments surrounding the claim for retroactive child support need to be dealt with by the trier of first instance.

Thus, I would refer this matter back to the trial judge to render his decision, something which he failed to do. [ 13 ] The father pressed on this Court that he should receive his costs in the event that the mother’s appeal was dismissed. I am not persuaded that costs should be awarded in this case. I would note, among other factors, that the mother achieved a degree of success in that she showed that the trial judge failed to deal with the retroactive child support issue and that he made the “double bind” error described above, albeit an error that did not affect the result.

CONCLUSION [ 14 ] The appeal is dismissed as regards the mobility issue. The case is referred back to the trial judge to render a decision on the retroactive support issue, which he failed to do. No award of costs is made. _______________________________ M. H. Rowe, J.A. I concur: _____________________ B.G. Welsh, J.A. I concur: ______________________ M.F. Harrington, J.A.