F.F.R. v. K.F., 2013 NLCA 8

Date: 20130122 Docket: 12/17 Citation: F.F.R. v. K.F. , 2013 NLCA 8 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: F.F.R. APPELLANT AND: K.F. RESPONDENT Coram: White, Harrington and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division (Family) 201002U0248 Appeal Heard: September 20, 2012 Judgment Rendered: January 22, 2013 Reasons for Judgment by White J.A. Concurred in by Harrington and Hoegg JJ.A. Counsel for the Appellant: Nicole M. Squires Counsel for the Respondent: Melanie Del Rizzo White J.A.: [ 1 ] This is an appeal by Mr.

R. of a custody and access order, dated March 2, 2012, respecting his and Ms. F.’s daughter, K., born […], 2003. At trial Mr. R.’s application for shared parenting was denied and the trial judge instead granted qualified joint custody, with

Ms. F. holding the ultimate decision making authority respecting K., and access to Mr. R. during the school year. Parenting in the summer months was ordered to be shared on a week-about basis. Mr. R. now appeals from that order seeking unqualified joint custody and shared parenting on a week-about basis during the entire year. He also appeals the award of party and party costs made in favor of Ms. F. [ 2 ] For the reasons that follow, I would dismiss the appeal. BACKGROUND [ 3 ] Mr. R. and Ms. F. were never married, but cohabitated for approximately seven years.

They have one child together, K., who was seven years old at the time of trial. Mr. R. also has two children from a previous marriage. He shares joint custody of those children with his ex-wife. Since K.’s birth, up until the separation of the parties, K.’s parenting was also shared with Mr. R.’s ex-wife so that the siblings would remain together. [ 4 ] Following separation, K. was primarily parented by Ms. F. Mr. R. had limited access. The parties separated in May of 2009 and signed a separation agreement on July 31, 2009. The agreement specified that there would be joint legal custody of K.

The agreement also provided that the matter of physical parenting could be referred by either party to mediation through Family Justice Services, and, if mediation was unsuccessful, either party could refer the matter to a court of competent jurisdiction. The matter was not resolved by agreement and Mr. R. filed an originating application on March 24, 2010 seeking shared parenting on a week-about basis. Ms. F.’s response opposed the application. [ 5 ] On May 19, 2010, an interim decision of a Unified Family Court judge granted Mr. R. specified access, with K.’s primary residence being with Ms.

F., and further ordered that Mr. R., Ms. F. and K. attend counseling with L.P., a psychologist, and that L.P. file a report with respect to custody and access. That report was filed on August 31, 2010. [ 6 ] On September 1, 2010, the parties attended an update hearing. At the hearing, both parties consented to increasing Mr. R.’s weekend access. A consent order was filed in this regard. Both parties were also ordered to arrange for an appropriate personality assessment, pursuant to a recommendation by L.P. Mr. R. subsequently obtained a detailed personality assessment from B.K., a psychologist, and Ms.

F. obtained one from E.K., a psychologist. As will be discussed later, Mr. R. took issue with the timing of the report of E.K., as well as her qualifications as an expert able to speak to the issue of personality assessments. [ 7 ] On November 22, 2010, a subsequent interim application was heard, but the applications judge determined that a full hearing would be required to change the parenting schedule. [ 8 ] The trial began on April 4, 2011, but could not be concluded before the summer break due to scheduling issues.

An interim order, dated July 7, 2011, issued by the trial judge ordered that the parenting of K. would be done on a week-about basis in the summer months. He further ordered that K. be interviewed by B.K. to determine her views and preferences. TRIAL DECISION [ 9 ] The trial took 24 hearing days, with a number of witnesses testifying. The trial judge, applying the factors set out in sections 31(1) and 31(2) of the Children’s Law Act , RSNL 1990, c. C-13, denied Mr. R.’s request for shared parenting on a week-about basis. He further ordered that Mr. R. would have qualified joint legal custody, with Ms.

F. having the final decision making authority with respect to K. The trial judge also ordered that Mr. R. is entitled to parent K. every second week during her summer vacation. STANDARD OF REVIEW [ 10 ] The standard of review is that enunciated by Barry J.A. in Meadus v.

Meadus , 2012 NLCA 59 , at para. 33 : … Where the trial decision is of a fact-based and discretionary nature, such as one involving custody or support, involving the balancing of various factors with an appreciation of the particular facts of the case, appeal courts will defer to trial judges and not intervene without material error, a serious misapprehension of the evidence, or an error of law. See Locke v. Goulding, 2012 NLCA 8 , 318 Nfld. & P.E.I.R. 91, at paragraphs 18-19 .

BEST INTERESTS OF THE CHILD [ 11 ] The parties agreed that in determining the appropriate parenting arrangement, the trial judge correctly applied

section 31 of the Children’s Law Act which provides that an application for custody of or access to a child shall be determined on the basis of the “best interests of the child”. Subsection 31(2) then provides that in determining the best interests of the child the Court must consider all of the circumstances of the child and includes a list of circumstances that the Court is directed to take into account. ISSUES [ 12 ] There were a number of issues in this case, which I would summarize as follows:

(1) Did the trial judge fail to consider relevant evidence?

(2) Did the trial judge err by relying on or giving too much weight to the “views and preferences” of the child?

(3) Did the trial judge err in considering the status quo living arrangement of the child?

(4) Did the trial judge err in failing to follow the recommendations of expert witnesses?

(5) Did the trial judge err in ordering qualified joint custody?

(6) Did the trial judge err in his application of the maximum contact principle?

(7) Did the trial judge err in his determination as to the effect of the late filing of the respondent’s expert report at trial?

(8) Did the trial judge err in considering evidence which arose after the trial had concluded?

(9) Did the trial judge err by misapprehending specific evidence and making unsubstantiated inferences of fact?

(10) Did the trial judge err by awarding costs to the respondent? ANALYSIS Did the trial judge fail to consider relevant evidence? [ 13 ] The appellant submits that the trial judge failed to consider the testimony of T.R. (the appellant’s current wife), V.M. (the appellant’s former wife) and that of E.R. (the appellant’s sister).

The appellant submits that this evidence established that he has demonstrated the ability to effectively co-parent and that he was an equal participant in K.’s life since she was born. [ 14 ] With respect to V.M.’s evidence, the appellant notes that the success that the appellant has had in raising his other two children while co-parenting them should have been considered by the trial judge. This success, while laudable, does not, however, speak to his ability to co-parent with another person. Each relationship is unique, and it is the ability of the appellant and the respondent to co-parent K. that was in issue.

Further to this, the appellant submitted that V.M.’s evidence relating to the impact the parenting arrangement would have on K.’s interaction with her other two siblings was not considered. This is clearly not the case. The trial judge explicitly considered the effect that his decision would have on the relationship among the siblings at paragraph 114 of his decision. [ 15 ] With respect to the issues of parenting ability and the relative sharing of the parental load, the trial judge dealt with the whole of the evidence relating to these issues at paragraph 58 of his decision, stating: [58] Overall, Ms.

F. believes that Mr. R. is a good parent and Mr. R. believes Ms. F. is a good parent. They also both concede that each has the overall ability to properly act as parent while parenting their daughter. Similar evidence was provided by practically every witness, irrespective of "whose side" they appeared to support. I have however concluded that the evidence supports Ms. F. being more of a "hands on" parent when he and Ms.

F. cohabited. [ 16 ] While the trial judge did not reference the evidence of every witness, it is not necessary for him to comment specifically upon every piece of evidence adduced at trial: Van de Perre v. Edwards , 2001 SCC 60 , [2001] 2 S.C.R. 1014. The trial judge did not err by dealing with the voluminous evidence on these issues in the way that he did. His analysis of the evidence did not constitute a material error or serious misapprehension of the evidence.

The evidence of the respondent certainly supported the trial judge’s conclusion. [ 17 ] The appellant, however, also takes issue with the trial judge’s assessment of the respondent’s credibility, pointing to a number of alleged inconsistencies in her testimony. It is clear that a trial judge’s findings of credibility are owed considerable deference on appeal. See the comments of Rothstein J. in F.H. v.

MacDougall , 2008 SCC 53 , [2008] 3 S.C.R. 41 where he stated: [72] …Assessing credibility is clearly in the bailiwick of the trial judge and thus heightened deference must be accorded to the trial judge on matters of credibility. As explained by Bastarache and Abella JJ. in R. v. Gagnon , [2006] 1 S.C.R. 621, 2006 SCC 17 (S.C.C.) , at para. 20 : Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

That is why this Court decided, most recently in H.L. , that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. [ 18 ] None of the alleged inconsistencies in the respondent’s testimony raised by the appellant in his factum and by his counsel at the hearing lead me to conclude that the trial judge’s assessment of the respondent’s credibility amounted to reversible error. [ 19 ] The appellant also submits that, while the trial judge may not have made a material error nor had a serious misapprehension in his assessment of the evidence, he did not afford the appropriate weight to the appellant’s evidence, and inappropriately gave greater weight to the respondent’s evidence.

I agree with the respondent’s submission at paragraph 12 of her factum that this underlying argument is similar to that made in Cox v. Brady , 2002 NFCA 27 , 212 Nfld. & P.E.I.R. 1 . In that case Wells C.J.N. stated: [61] The appellant here has not established any error that can be said to be material. There is no basis for concluding that there was any serious misapprehension of the evidence by the trial judge.

Instead what the appellant has done is listed some 24 separate determinations by the trial judge, quoted excerpts from the transcript relating to those 24 examples and is asking this Court, on a reconsideration of all of that evidence, to exercise its discretion in a manner different than the trial judge exercised his discretion.

While I may well have made a custody order different from that made by the trial judge, were I sitting as the judge at trial in this case, that does not permit me to substitute my discretion for that of the trial judge, on the basis of reconsidering the evidence in the manner requested by the appellant. That is the kind of reconsideration of the evidence that Bastarache J., speaking for a unanimous court in Van de Perre , specifically determined was inappropriate review by an appellate court.

The appellant having failed to establish any basis for a reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion, there is no basis on which this Court can justify a reconsideration of the evidence, with a view to substituting its discretion for that of the trial judge. I would therefore decline to review the trial judge’s decision in that manner. [ 20 ] The comments of Chief Justice Wells are apt in this case. This Court will not engage in a reweighing of the evidence where

there was no serious misapprehension of it. The appellant’s argument fails in this regard. Did the trial judge err by relying on or giving too much weight to the “views and preferences” of the child? [21] Paragraph 31(2)(

b) of the Children’s Law Act mandates that a court, in assessing the best interests of the child pursuant tosubsection 31(1), is directed to examine “the views and preferences of the child, where the views and preferences can reasonably beascertained” (italics added).

Here, the appellant asserts that (1) because of the young age of the child, the trial judge erred by taking herviews and preferences into consideration; and, alternatively, (2) if the views of the child were appropriately considered, the trial judgeerred by giving them undue weight. [22] Is there an age below which a child’s views and preferences should not be considered? The appellant cited a number of cases infavor of his argument that children under the age of 12 are rarely, if ever, able to provide views and preferences with respect to theirdesired parenting arrangement: Stav v. Stav, 2012 BCCA 154; Johns v.

Hinkson (1996), (SK KB), 151 Sask. R. 168(QB); Kean v. Cripple (2006), (NL SC), 258 Nfld. & P.E.I.R. 140 (NLUFC); B.(L.) v. B.(B.), 2007 NBQB 220. These cases do not purport to set a lower age limit for the investigation of a child’s views or preferences. What is clear, however, is thatif a young child’s views are considered, a court must be careful not to assign them too much weight. [23] This point is expressed in B.(L.) v. B.(B.).

That case quotes "Payne on Divorce" (4th edition) at p.396, which suggests thatcourts do not generally place much if any reliance on the express preferences of children under the age of nine. This point was alsoexpressed in James G. MacLeod, Child Custody Law and Practice (Toronto: Carswell, 2007) at 4-120, where the author states: As a general rule, courts give little if any effect to the wishes of young children. Younger children should not be expected to determinetheir own custody as the court noted in Sam v. August.

In considering how much weight to attach to the wishes of a nine-year-old child, acourt must consider her intelligence, her ability to understand her circumstances, and the detail and consistency of the expression of herwishes. [24] The respondent pointed to the case of Mercer v. Angelo (2002), (NL SC), 211 Nfld. & P.E.I.R. 265(NLUFC), where the views of a five year old were considered by the trial judge. In that case, the paternal grandmother was seekingaccess to her grandchild, Aleasha. In discussing the views of the child, the trial judge in that case noted: [35] Ms.

Woods' evidence includes Aleasha telling her that Nanny Bun was very bad. Ms. Friel's evidence includes Aleasha tellingher that Ms. Mercer was not her Nanny anymore and that Aleasha expressed no desire whatsoever in seeing her grandmother as well asexpressing quite genuine concern if she should be forced to do so. [36] I find that the foregoing evidence, from two independent witnesses, leads to one inescapable conclusion - Aleasha's preferenceis for her grandmother not to have access to her.

That of course does not determine the matter. [25] Obviously the views of the five year old child in that case were not those of a mature young adult, but they were none-the-lessconsidered by the trial judge. As stated above, where a court does take the views and preferences of the child into account, the courtmust be mindful that the child’s views may not represent her or his best interests; as noted by the trial judge in Mercer v. Angelo, it “doesnot determine the matter”. [26] B.K. testified at trial that K. had expressed during an interview the thought that a week-about

schedule would be “too long” andthat she preferred the arrangement in place at that time. B.K. noted that when he asked K. what she meant by “too long”, she could notelaborate. He stated: Some questions require a certain level of expressive language that perhaps a young girl her age might, might have difficulty with.

Shepresents as a bright girl but when we started talking about our thoughts and our feelings in the abstract it’s possible that this is, that’s adifficult question for her age group. … So I asked her what she meant about, what she meant when she said it’s too long and it was just my sense of things that the question kindof threw her a little bit, like it was, it was just a question that she had a hard time understanding or perhaps she understood it but wouldhave a difficult time putting it into words what she felt about that. [27] Mr.

R.’s counsel cited this as support for the fact that K. was too young to have her views considered. I do not agree with thissubmission. While it might indicate that K. has difficulty expressing her views, it does not mean that she is incapable of forming them. Itwas clear to B.K. that she preferred the status quo and was consistent in her statements about her wishes. [28] Whether a trial judge will consider the views and preferences of a child in any given case will be a matter of discretion. Insome cases, it may be inappropriate to consider the child’s views.

An example would be where there is evidence of parental alienation. In this case, while K. might fall within the lower end of the age range in which it is appropriate to elicit the preferences of a child, thetrial judge did not err in holding that her views could appropriately be considered. [29] The second prong of the appellant’s argument on this issue was that the trial judge placed too much weight on the views of thechild.

Specifically, the appellant submits that the trial judge failed to consider the whole of the experts’ evidence, particularly that of L.P. [30] K.’s views and preferences were introduced into the record through the reports and testimony of L.P. and B.K. In her reportdated August 31, 2010, L.P. noted that, “[K.] has essentially said that she wants to keep the current

schedule of custody”, but went on torecommend that a “week-on, week-off custody arrangement be established soon”. In her testimony, L.P. stated that: In the last session K. said that she wanted to keep the current

schedule of custody, but it was a little unusual in that she said so and thenimmediately outlined the

schedule and said that her mother would like it like that. It sounded like it had been discussed before but I don’t

know that. [ 31 ] While the appellant suggested that the trial judge erred in failing to consider the recommendation of L.P. that parenting continue on a one week on, one week off custody arrangement, it is sufficient to say that this is ultimately the decision of the trial judge which is made after assessing all of the evidence. The trial judge’s failure to follow the recommendation of L.P. does not amount to a material error. [ 32 ] As noted above, B.K. testified at trial that K. had expressed that she preferred the arrangement in place at that time. In response to questions from Mr.

R.’s counsel regarding whether B.K. thought there had been any coaching of the child, B.K. stated: Well, essentially what I asked her was did your mom ask you to tell me anything during this interview and she said, no, and I asked the same questions specific of her father and she said no… there really were no obvious indications of her being coached. [ 33 ] While there was a suggestion by Mr.

R. that K. may have been coached by her mother prior to giving her views to both L.P. and B.K., the trial judge held at paragraphs 52-53 that: In so far as coaching is concerned L.P. says that K. may have been influenced and Mr. [B.K.] stated “It is very difficult to determine whether a child has been “coached” prior to an interview.” He also stated that there were no obvious signs of “coaching” and K. stated that “she was not told to tell me anything, by either parent, prior to the interview.” I accept Mr. [B.K.’s] conclusion that there were no obvious signs of coaching which, more or less, coincides with Ms.

L.P.’s view. I cannot however, based on the foregoing evidence, decide conclusively, one way or the other that K. was or was not coached to express the parenting preference which she did express. What I can conclude is that it can be clearly ascertained that K.’s view and preference is for the status quo and not week about shared parenting.

I therefore attach some limited weight to K.’s preference. [ 34 ] Thus, while there were obvious frailties in the preference expressed by K. (her young age, the suggestion of coaching and her difficulty in expressing her feelings), the trial judge addressed this by giving her preference “some limited weight”. He did not err in doing so. [ 35 ] While the appellant suggests that the trial judge gave more than “some limited weight” to this preference, I am not satisfied that this is the case.

Just because the trial judge referred to this factor at other points in the judgment, for example, at paragraph 73 where he lists K.’s views and preference amid numerous other factors he considered, does not suggest that he gave this any more than “some limited weight”. [ 36 ] The appellant has not established an error in law, a material error or a serious misapprehension of the evidence regarding the trial judge’s consideration of the views and preferences of K. Did the trial judge err in considering the status quo living arrangement of the child? [ 37 ] By virtue of paragraph 31(2) (

c) of the Children’s Law Act , the trial judge was directed to consider “the length of time the child has lived in a stable home environment”. In considering this factor, the trial judge noted: [54] K.'s primary residence is at her mother's home at [address], St. John's where, as indicated, she has lived since birth, albeit with supplemental parenting being provided by Mr. and Mrs. F. since her birth on […], 2003 and her parents' separation in May 2009. I am satisfied during Mr. R's and Ms. F's relationship the home environment was relatively stable.

I am also satisfied that K. has resided in a relatively stable environment with her mother since separation and, when parented by Mr. R. and T.H., this is also a relatively stable environment. Later in his reasons, in considering the factors which support the respondent’s position, the trial judge noted: [73] Evidence which supports Ms.

F's position includes: K.'s primary residence, since birth, has always been at [address], where her mother still resides… K.'s current routine being followed since the May 19 and Sept. 1, 2010 court orders and K. being principally parented by her mother after separation and up to the making of such orders… And further still the trial judge stated: [110] As stated, each case depends on its own facts; I find that court orders of May 19, 2010 and September 1, 2010 provide for continuity and stability; I also find that the status quo should be maintained, albeit with [minor] adjustments because K.'s needs and circumstances require continuity and stability.

I also cannot ignore that prior to such orders, from separation in May 2009 up to the initial order of May 19, 2010, K. primarily resided with her mother at [address]. … [112] I am completely satisfied that K.'s needs and circumstances do not dictate ordering equal shared parenting; this is because a continuation of the status quo , albeit to be qualified within the ensuing Order, better serves K.'s best interests. Mr.

R's application for equal shared parenting is therefore rejected. [113] My analysis of the whole of the evidence firmly convinces me that K.'s needs and circumstances require the continuation of one stable home environment because this will better serve her best interests. I am not prepared to gamble with this eight year old's future by ordering her down an untrodden path, especially during K.'s school weeks. I will, with some reluctance, continue to provide Mr.

R. with Wednesday overnight access but I will not order a deeper intrusion into K's school weeks. [ 38 ] The appellant submits, however, that the trial judge erred by taking the status quo arrangement into consideration by: (1) improperly using the interim orders to support the status quo ; (2) improperly giving weight to the fact that K. has always lived at

[address]; and (3) improperly giving weight to the fact that the respondent had primary care of K. since separation, as she limited theappellant’s access to K. in this period. [39] In support of his submission, the appellant notes the case of Pumphrey v. Pumphrey (1997), (NL CA), 148Nfld. & P.E.I.R. 340 (Nfld. C.A.).

There, this Court stated: [15] … While interim orders are not, at law, used to establish a status quo supporting the position of one party on the final application,for children, particularly young children, the longer interim arrangements are in place the more difficult for the child if, in the end, his orher best interests dictate a change in custody or primary caretaker. [40] The appellant is correct that the existence of an interim order should not determine the conclusion on the final parentingarrangement.

It is important, however, to note the end of the statement in Pumphrey, the meaning of which is discussed by James G.MacLeod’s annotation to that case where he stated: Steele J.A. emphasized that the effect of an interim order changes over time. The longer a "temporary" order remains in effect, the morelikely that it will become the final order.

In custody cases, the longer a child lives in a stable home environment, the more disruptive achange will be to the child's lifestyle and the less likely it is that a judge will change the child-care arrangements. (See 1997 CarswellNfld 62.) [41] It is clear that the trial judge was entitled to consider the stability of K.’s circumstances in making such an order. While thestatus quo arrangement existing post-separation was subsequently endorsed by the court by way of interim order, this does not mean thatthe parenting situation prior to the final order cannot be considered.

Similarly, it cannot be ignored that K. has lived at [address] herwhole life. This is only one aspect of K.’s status quo, but it is one that can have significant emotional import for a young child. [42] It is important to note that the status quo is not a controlling factor and it does not decide the issue. There is no presumption infavor of the status quo. Where the child has lived in a particular home and been primarily parented by a particular parent, the trial judgeis nevertheless entitled to consider this in his or her overall weighing of the evidence.

In considering these factors along with all of theevidence in relation to the best interests of K., the trial judge did not err. Did the trial judge err in failing to follow the recommendation of particular expert witnesses? [43] As noted above, the trial judge is not obligated to follow the recommendation of any expert. Here, where it is left to the trialjudge to determine what parenting arrangement is in the best interests of K., a trial judge may accept or reject any of the profferedrecommendations on the ultimate issue.

The weight given to any particular expert’s evidence by the trial judge is given considerabledeference: see Brake-Patten v. Gallant, 2012 NLCA 23, at para. 57. The trial judge’s failure to follow the recommendation of anyparticular expert where he did not believe the recommendation to be in the best interests of K., does not amount to a reversible error. Did the trial judge err in ordering qualified joint custody? [44] On the issue of decision making authority, the trial judge stated: [119] I have, as indicated, concluded that there is ongoing animosity between Mr. R. and Ms. F.

I have also concluded that there isan abundance of evidence which proves a lingering lack of cooperation and effective communication. I have therefore, following theprinciples set out in the foregoing jurisprudence, also concluded that K.'s best interests will be better served with one parent having finaldecision-making authority concerning major issues that affect her; this is because I am firmly convinced, based on the evidence, thatboth of K.'s parents will not be able to consistently agree on issues which affect K.; this includes extra-curricular and recreationalpursuits. As stated in Lamont-Daneault v.

Daneault supra, and Sawatzky v. Sherris 2002 MBCA 143 , [2002 CarswellMan 465(Man. C.A.)] supra, ordinarily this is the parent with primary care and control. Because I cannot find a valid reason for departing fromthat which is ordinarily ordered, the ensuing order will provide for joint custody but with Ms. F. having final decision making authorityif she and Mr.

R. cannot agree on major decisions which affect K. [45] The appellant submits that the trial judge erred in ordering “qualified joint custody” because: (1) the parties, in their separationagreement, agreed to have joint custody of K. and in the absence of an application to vary this agreement pursuant to

section 34 of theChildren’s Law Act, the trial judge had no jurisdiction to vary it; and (2) an order of qualified joint custody was inappropriate in thiscase. [46] Parents may make separation agreements regarding “the right to direct the education and moral training of their children” and“the right to custody of and access to their children” (see paragraphs 64(

c) and (

d) of the Family Law Act, RSNL 1990, c. F-2). Such anagreement may, however, be varied on application. Subsections 34(1), (2) and (3) of the Children’s Law Act provide: 34.

(1) Where an order for access to a child provides for access without specifying times or days, a party to the order may apply to acourt to vary the order by specifying times or days.

(2) The court may vary the order by specifying times or days agreed on by the parties or where the parties do not agree the courtmay vary the order as it thinks appropriate. (3) Subsection (1) also applies, with the necessary changes, to a separation agreement under

section 64 of the Family Law Act. [47] The appellant submits that, because neither party applied to vary the legal custody arrangement set out in the agreement, thetrial judge had no jurisdiction to vary it. This submission ignores subsection 66(1) of the Family Law Act, which provides: 66.

(1) In the determination of a matter respecting the support, education, moral training or custody of or access to a child, the court maydisregard a provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of

the child. [48] The appellant’s first argument on this issue therefore fails. The trial judge had jurisdiction to set aside any pre-existingagreement relating to the issue of legal custody even where no application to set aside or vary was made if it was in the best interests ofthe child to do so. See Cheeseman v. Walsh, 2006 NLCA 31, 259 Nfld. & P.E.I.R. 134 at paras. 9-13. [49] Further to this, the trial judge did not err in ordering qualified legal custody in this case.

Assigning one parent final decisionmaking authority may be appropriate where there is evidence of an inability to resolve matters because of a high degree of conflictexisting between the parents: see Carnell v. Follett, 2010 NLTD(F) 25, 300 Nfld. & P.E.I.R. 133; Snook v. Lane (2006), (NL SC), 255 Nfld & P.E.I.R. 339 (NLUFC).

While parents should strive to come to an agreement and rationally and fairly dealwith issues as they arise, it must be recognized that this is not always possible and that, as a result, the child of the relationship may becaught in the conflict. [50] Here there was ample evidence of continuing animosity between the parents and of difficulties in communicating and inreaching agreement. The trial judge outlined this evidence at paragraphs 86-104.

While the appellant indicated that there was evidencethat the parties were able to agree on major issues, I am satisfied that the trial judge did not show a misapprehension of the evidence,make an error or err in law in ordering qualified legal custody on the facts of this case.

I do, however, commend any effort the partiesmake towards a positive relationship and hope that they can, in the future, put their animosity behind them for the benefit of everyoneinvolved, particularly K. [51] The appellant submits that the trial judge erred in considering evidence relating to an application for Christmas access inDecember, 2011. The fact that the parties resorted to an application to the Court was considered by the trial judge as another example oftheir inability to resolve issues. The trial judge did not err in considering this evidence for this limited purpose.

In any event, there wassufficient other evidence for the trial judge to find that there was an inability to do so. Did the trial judge err in his application of the maximum contact principle? [52] In discussing which parenting regime would advance the child’s best interests, the trial judge stated: [107] Despite section 26(1) of the CLA, there is no presumption in favour of shared parenting: MacDonald v. MacDonald (1998), (NL CA), 36 R.F.L. (4th) 257 (Nfld.

C.A.) as each case depends on its own facts. [108] Both parents acknowledge that the other is a "fit" parent; this however does not necessarily lead to an equally shared parentingorder: Kaplanis, supra. … [112] I am completely satisfied that K.'s needs and circumstances do not dictate ordering equal shared parenting; this is because acontinuation of the status quo, albeit to be qualified within the ensuing Order, better serves K.'s best interests. Mr.

R's application forequal shared parenting is therefore rejected. [113] My analysis of the whole of the evidence firmly convinces me that K.'s needs and circumstances require the continuation of onestable home environment because this will better serve her best interests. I am not prepared to gamble with this eight year old's future byordering her down an untrodden path, especially during K.'s school weeks. I will, with some reluctance, continue to provide Mr.

R. withWednesday overnight access but I will not order a deeper intrusion into K's school weeks. [53] The appellant argues that the decision of the trial judge on this issue ignored the “maximum contact principle” which providesthat a child should have as much contact with both parents as is consistent with the child’s best interests. The appellant’s argumentappears to be similar to that made in MacDonald v. MacDonald (1998), (NL CA), 161 Nfld. & P.E.I.R. 39 (Nfld.C.A.).

There, Cameron J.A. stated: [17] With respect, the argument of the appellant appears to me to be a thinly disguised statement that there is a presumption for jointcustody and equal sharing of children. This Court, in Pumphrey, rejected the notion that there is such a presumption in favour of jointcustody on divorce. (See also L'Heureux-Dubé, J., in Young v. Young et al., (SCC), [1993] 4 S.C.R. 3 [parallel citationsomitted].

I would add that I do not interpret s. 26(1) of the Children's Law Act as substituting yet another presumption regardingcustody for those presumptions (father entitled to custody) or stereotypical gender views (tender years doctrine) that have so influenceddecisions in the past. Rather, in my view the

section quoted is intended to eliminate those presumptions or assumptions. (See thediscussion regarding the historical background of guardianship and custody of infants in Family Law in Newfoundland, R. Gushue(1973) pp. 51-52 and Director of Child Welfare (Nfld.) v. J.S. and G.B. (1994), (NL CA), 115 Nfld. & P.E.I.R. 14;360 A.P.R. 14 (Nfld. C.A.), at p. 19. [54] The same reasoning applies here. There is no presumption for shared parenting, nor should there be. The trial judge found thatthe parenting

schedule ordered was that which served K.’s best interests, encouraged stability in K.’s life and attempted to reduce theconflict between the parties. He did not err in doing so. [55] I would also note at this point that there was a suggestion on the part of the appellant that the trial judge’s order ran afoul of themaximum contact principle in that the order may have the incidental effect of preferring care given by the respondent’s parents over carethat could be provided by the appellant himself.

This might occur, for example, when the children do not have school on a day that theappellant would normally drop off K. and the appellant is available to care for her, but she is dropped off with the grandparents instead.The appellant also notes that this might be the situation between the end of school and 4:30 P.M. when Ms. F. comes home. [56] While this arrangement might incidentally have the effect of having K. cared for by her grandparents when the appellant couldcare for her, the benefit of this system is its certainty and structure. A more flexible arrangement can lead to more instances of conflict.

When a parent knows that the drop off time is before school on certain days, this avoids the possibilities of future arguments and

uncertainties. This did not amount to a reversible error on the part of the trial judge.

Did the trial judge err in his determination as to the effect of the late filing of the respondent’s expert report at trial? [ 57 ] The appellant submitted on appeal that the late filing of the report of E.K. by the respondent was prejudicial to the appellant’s ability to properly present his case; was a serious breach of a court order and the Rules of the Supreme Court, 1986 ; and should have had cost consequences. [ 58 ] The facts giving rise to this issue are as follows: The parties, by virtue of a consent order filed on September 7, 2010, agreed to arrange for the conduct of personality assessments.

The appellant had his report completed by B.K. and was filed as of March 28, 2011. The appellant further indicates that B.K.’s report was prepared before that date, but the appellant waited to file it in the hopes that the respondent would have hers prepared so that B.K. could comment on that report in his. The respondent indicated at various pre-trial conferences, case management meetings and interim applications that she was in the process of completing her report and would file it prior to trial. [ 59 ] On April 4, 2011, the first day of trial, B.K. testified.

At this time, the respondent had not yet provided her expert report. She also indicated on that date that she was not in a financial position to do so. The trial judge indicated that the respondent was obligated to file the personality assessment, pursuant to the consent order of September 7, 2012. At that time, the appellant indicated that this would cause procedural issues, including, significantly, the lack of opportunity to examine B.K. on E.K.’s report. [ 60 ] The report of E.K. was tendered on April 12, 2011.

The appellant was heard again on the problems created by this late filing, but chose to continue the trial to avoid delay. The appellant did not seek an adjournment and did not seek to recall B.K. [ 61 ] At trial, counsel for the appellant submitted that the failure to file the report was in breach of the order of September 7. Counsel for the appellant did not apply for leave to seek a contempt order as required pursuant to rule 53.02(1) and thus the trial judge lacked jurisdiction to decide the issue. He did, however, state: [121] … I do add however, by way of orbiter dicta , for the benefit of counsel for Mr.

R. in particular, that I have already (in paragraph [69]) found that the reports of both B.K. and Ms. E.K., as well as their viva voce evidence, clearly show no psychological problems, including personality disorders for either of K.'s parents. I also add that my review of the case as a whole shows no substantial prejudice to Mr. R. because Ms. F. had her assessment done and it could not be filed until after the trial commenced. [ 62 ] The appellant maintained that this was a breach of a court order and a breach of rule 46.07.

That rule provides: 46.07 Unless an opposite party has, at least ten days before the commencement of a trial, been given a report of an expert witness who is expected to give evidence on a trial, the evidence shall not be admissible without the approval of the Court, which may be granted on such terms as are just. [ 63 ] Thus, while in the normal course a party will file an expert report more than 10 days prior to trial, the Court may allow it to be admitted into evidence on such terms as may be just.

While the appellant now submits that the late filing prejudiced his ability to present his case, the appellant could have asked for an adjournment or could have asked to recall B.K. On appeal, counsel for the appellant noted that the decision not to do so was a tactical one, made to avoid further delay in the proceedings. I am not satisfied that the trial judge erred in admitting this report and the evidence of E.K. [ 64 ] The appellant also suggested that the late filing should have had cost consequences for the respondent. The appellant notes rule 56A.26 of the Rules of the Supreme Court, 1986 .

That rule provides that: A successful party who behaved unreasonably or has acted in bad faith during a family law proceeding (

a) may be deprived of all or part of the party’s own costs; or (

b) may be ordered to pay all or part of the unsuccessful party’s costs. [ 65 ] The respondent submits that the trial judge erred in not exercising his discretion to make such an order. There is insufficient evidence to suggest that the behavior of the respondent rose to the level of being “unreasonable” or amounted to “bad faith”. I would not disturb this finding of the trial judge. Did the trial judge err by misapprehending specific evidence and making unsubstantiated inferences of fact? [ 66 ] The appellant points to 15 alleged misapprehensions of the facts by the trial judge.

It is unnecessary to go through each of these in turn. It is sufficient to say that even if these findings can be characterized as misapprehensions of the facts or errors, they are not serious or material. Most of these findings relate to the obvious antagonism between the parties or the appellant’s admitted ability to parent. In respect of most of the alleged misapprehensions, the appellant is merely asking the Court to reconsider particular findings of fact.

Did the trial judge err by awarding costs to the respondent? [ 67 ] An award of costs is a discretionary order to which deference to the decision of the trial judge applies, absent an error in principle which may warrant intervention on appeal: Defence Construction

(1951) Limited v. Air-Tite Sheet Metal Limited , 2011 NLCA 67 , at para. 63 . In this case, the trial judge stated that he saw no reason to depart from the ordinary rule respecting costs, that costs follow the event. He then held that as Ms. F. had substantial success at trial, she was entitled to party and party costs. [ 68 ] The trial judge applied the correct legal principles. Even in custody cases, the ordinary rule is that costs are in the cause: see rule 56A.26; M.(J.M.) v. M.(K.A.A.) , 2005 NLCA 64 , 251 Nfld. & P.E.I.R. 349 , at paras. 37-38 ; and Snelgrove v.

Butler , 2011 NLTD(F) 6 , 308 Nfld. & P.E.I.R. 168 , at para. 25 . It is clear that there is not a “no costs” presumption in custody cases. [ 69 ] The appellant suggests that there should be such a “no costs” presumption when both parties are advancing a reasonable

position in custody cases, relying on Stockwood v. Hayden , 2010 NLCA 68 , at para. 25 . While Justice Welsh in that case suggests that the advancement of a reasonable position in a custody dispute should not attract adverse costs consequences, the reference is to the adverse costs consequences of rule 20A.08, which can be much more significant and punitive. This Court has been clear that party and party costs can be awarded in the ordinary course, even in custody disputes. [ 70 ] A trial judge may in the exercise of his or her discretion depart from the ordinary rule.

Rule 56A.26(2) provides that a successful party may be deprived of all or part of his or her costs or may be ordered to pay costs when such a party has acted unreasonably or in bad faith. Rule 56A.26(3) provides a non-exhaustive list of circumstances which may establish whether a party has acted unreasonably or in bad faith. Here the trial judge found that there was no reason to depart from the ordinary rule.

The appellant has not pointed to any error on the part of the trial judge which would justify this Court’s interference with his discretion. [ 71 ] Although the trial judge did not mention which column under the scale of costs should apply, rule 55.04(2) provides that costs shall be determined under column 3, unless otherwise ordered. CONCLUSION [ 72 ] The appeal is dismissed with party and party costs to the respondent to be taxed under column 3 of the scale of costs. ____________________________ C. W. White J.A. I Concur: ___________________________ M. F. Harrington J.A. I Concur: ___________________________ L.

R. Hoegg J.A.