RS v. LH, 2013 NLCA 28

Date: 20130426 Docket: 11/85 Citation: RS v. LH , 2013 NLCA 28 PUBLICATION BAN: THERE IS A PUBLICATION BAN ON THE RELEASE OF ANY INFORMATION THAT WOULD RESULT IN THE IDENTIFICATION OF THE SAID CHILD. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : R.S. APPELLANT AND : L.H. RESPONDENT Coram: Welsh, White and Harrington JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (F) 200902U0326 Appeal Heard: March 12, 2013 Judgment Rendered: April 26, 2013 Reasons for Judgment by Welsh J.A. Concurred in by White and Harrington JJ.A. Counsel for the Appellant: Self-represented Counsel for the Respondent: Self-represented

Welsh J.A.: [ 1 ] This is an appeal by R.S. regarding custody of and access to his child. Mr. R.S. and L.H. are the unmarried parents of one child who was born in […] 2008. They lived together parenting the child for approximately eight months, in two blocks of time, all before the child was one year old. Following a number of temporary orders regarding custody of the child, a six-day trial was held. The trial judge summarized her assessment of the parties (2011 NLTD(F) 36): [7] Ms. L.H. is very organized, likes routine and regular physical activity.

She is strong, independent and financially responsible, but easily worried, anxious and frustrated. The evidence supports the conclusion that she is quick-tempered and it is not uncommon for her to both scream and swear. While testifying before me, her description of events was often riddled with the use of the “f” word. Nevertheless, I find that Ms. L.H. has been protective and selfless in her care of [the child], for whom she has provided a stable home environment. [ 2 ] The trial judge recognized that Mr.

R.S.’s personality allowed him to relate well to the child in play, but concluded that he is self-absorbed and “despite being 48 years of age when [the child] was born, lacked the requisite maturity and responsibility required to manage a home and raise a child” (paragraph 10). The trial judge described incidents that resulted in Ms. L.H. being granted custody of the child, with Mr. R.S. being limited to supervised access. [ 3 ] For purposes of the trial, both parties consented to a psychological assessment. Regarding Ms. , “no significant problems” were identified relating to her ability to parent. Regarding Mr.

R.S., the trial judge summarized the psychologist’s conclusions: [35] Regarding Mr. R.S., Mr. Kane acknowledged his struggles to find and maintain full-time employment, his financial troubles and his responses to frustration. He concluded that [Mr. R.S.] tended to minimize his personal shortcomings of impulsiveness, which interfered with his ability to parent. [Mr. Kane] questioned [Mr. R.S.’s] level of insight into the appropriateness of his behaviour. Regarding Mr. R.S.’s psychological test scores, the trial judge summarized: [36] … Individuals with Mr.

R.S.’s profile often have stormy relationships with family members and do not benefit from experience. They need gratification and are resentful, rebellious and impatient and have limited frustration tolerance. [Mr. Kane] testified that intellectually there were no hindrances to Mr. R.S.’s ability to parent, but that he has maladaptive personality traits. [ 4 ] The trial judge gave explicit examples of Mr. R.S.’s impulsiveness and poor judgment in his past dealings with the child, and concluded that he did not, at the time, have the ability to parent the child responsibly. The judge understood that Mr.

R.S. was seeking an order for joint custody, unsupervised access and a plan to phase in shared parenting based on equal time with each parent. However, she concluded: [52] The challenge in this case is to find a means by which we can reduce or eliminate the risks associated with Mr. R.S.’s lack of parenting skills, the volatility between the parties and [Mr. R.S.’s] inappropriate responses to frustration and stress. … [55] Ms. L.H. has been [the child’s] consistent, stable, protective and responsible parent. Mr.

R.S. has been inconsistent in his parenting and his lifestyle has been unstable; his behaviour has given rise to protection concerns at least twice, and on other occasions he has acted irresponsibly. [ 5 ] In the result, the trial judge confirmed that, consistent with “the parenting arrangement that has emerged by virtue of the respective actions of the parties”, Ms. L.H. should have sole custody of the child with supervised access by Mr. R.S.. Based on the evidence and inferences drawn therefrom, the judge was satisfied that the child’s “best interests require that Ms.

L.H. be able to make the day to day decisions necessary for [the child’s] care as she has for the last 33 months.” (Decision of the trial judge, at paragraph 57.) [ 6 ] In this appeal, Mr. R.S. submits that the trial judge failed to recognize the importance and value of his involvement in his child’s life. This conclusion is not supported by the evidence or the trial judge’s reasons for decision. The trial judge’s clear focus was, as required, the best interests of the child. However, based on the evidence, she was satisfied that the best, and indeed the only appropriate, way for Mr.

R.S. to be involved in his child’s life was to begin with supervised access. The trial judge could not ignore Mr. R.S.’s past behaviour or the view of the psychologist regarding Mr. R.S.’s ability to parent the child. The fact that Mr. R.S. disagrees with the inferences and conclusions drawn by the trial judge does not lead to the conclusion that she failed to understand the evidence or his submissions. [ 7 ] Mr. R.S. also submits that the trial judge failed to give appropriate weight and consideration to the evidence of Mr. M. who testified on Mr. R.S.’s behalf. Again this submission is without merit.

It is the trial judge who is in the best position to assess the testimony of the witnesses and to determine how the evidence may influence or affect her decision. It is not necessary for a trial judge to advert to all the evidence or the testimony of every witness. In this case, the inference can be drawn that the evidence of Mr. R.S.’s conduct and the testimony of other witnesses overrode that of Mr. M. who is a friend of Mr. R.S.. [ 8 ] Mr. R.S. submits further that the trial judge erred by failing to permit his friend, Mr. M., to perform the role of supervisor for his access visits.

Again, this submission is without foundation. There is significant responsibility attached to being a supervisor. Accordingly, in authorizing a person to supervise access visits, the court will consider whether that person has the necessary skills and abilities to satisfy the level of confidence the court must have that the visit will be properly supervised. Here there was no evidence to

indicate that Mr. M. was qualified for this role. It is not sufficient that there simply be another adult present. The trial judge considered the possibility of Mr. R.S.’s mother providing supervision. However, the judge accepted that “Mrs. S. has had some health problems in the last year and does not believe she could be reliable either as a supervisor to Mr. R.S.’s access or as a support to him in his relationship with [the child]” (paragraph 40). [ 9 ] I would add that the trial judge did not refer to Mr.

R.S.’s sometimes debilitating health issues as a reason for determining that his access should be supervised. There is no indication, as suggested by Mr. R.S., that this factor influenced her decision. Where health issues of a parent may affect an order as to custody or access, it could be expected that this factor would be specifically dealt with by the trial judge. In the instant case, the judge based her decision on relevant factors as outlined above and in her decision. [ 10 ] In addition, it must be noted that the trial judge did not contemplate that Mr.

R.S. would necessarily always be restricted to supervised access. Indeed, she specifically indicated that “supervised access is not a long-term solution” but that it is necessary in the circumstances “because of the safety concerns addressed herein” (paragraph 58). The judge went on to state: [60] …

i) It is anticipated that, with the assistance of Mr. Bill Kane [the psychologist], the parties will have their respective trust in each other restored and an extended pattern of unsupervised access can resume. When this point is achieved, the parties have leave to file a consent order reflecting the broader terms of unsupervised access. Failing consent, either party can apply to vary the terms of this Judgment after June 2012. [ 11 ] Finally, Mr. R.S. submits that the trial judge erred in ordering him to pay the costs for counselling and for the supervision of his visits with the child.

He says he does not have the financial capability to satisfy this requirement. However, it was Mr. R.S. who led the trial judge to believe he would have an income of approximately $35,000 per year. Apparently, this was, in fact, neither a realistic expectation nor a reality. Had Mr. R.S. wished, he could have pursued an application for reconsideration of this part of the order based on the circumstances as they actually existed, relying on proper financial records and documentation.

I would add that the trial judge recognized that the costs for counselling and supervision of access visits would approximate $740 per month which she described as “considerable” (paragraph 71). The judge concluded: [72] In these very unusual circumstances, I defer to Ms. L.H.’s request and I would not order child support payable until [supervised] access is discontinued. In that event, I order that Mr. R.S.’s estimate of his 2011 income of $35,000.00 (or $299 per month) should be the basis of his child support once supervision ceases. …

Summary and Disposition [ 12 ] The trial judge did not err in her assessment of the evidence or in granting Ms. L.H. sole custody with supervised access to Mr. R.S.. Based on the information before her, the judge did not err in ordering Mr. R.S. to pay the costs for counselling and supervised access. [ 13 ] Accordingly, Mr. R.S.’s appeal is dismissed. The parties shall bear their own costs in this Court and in the Court below. __________________________________ B. G. Welsh J.A. I Concur: ______________________________ C. W. White J.A. I Concur: ______________________________ M. F. Harrington J.A.