Power v. Wiseman, 2012 NLCA 51

Date: 20120731 Docket: 12/50 Citation: Power v. Wiseman , 2012 NLCA 51 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : SHERRI POWER APPLICANT AND : JOSHUA WISEMAN RESPONDENT Coram: Hoegg J.A. Application Heard: July 31, 2012 Decision Rendered: July 31, 2012 (Orally) Written Reasons Filed: August 3, 2012 Counsel for the Applicant: Susan Day Counsel for the Respondent: Melanie Del Rizzo REASONS FOR ORAL DECISION Hoegg J.A.: INTRODUCTION AND BACKGROUND [ 1 ] Ms.

Sherri Power applied to this Court to stay the order of a Unified Family Court (UFC) judge which permitted her two young sons to relocate to Alberta with their father, Joshua Wiseman. Mr. Wiseman opposed the application. [ 2 ] The two boys, now aged 3 and 5, were born in Alberta. They moved to this province with their mother in 2009 and their father immediately followed. The boys have lived at various times with either or both parents in four Newfoundland communities. In July 2010, following the final breakdown of their relationship, Ms. Power and Mr.

Wiseman consented to an interim order which provided for equal parenting of the boys. Shortly thereafter, Mr. Wiseman applied to relocate the boys to Fort McMurray, Alberta. [ 3 ] The trial took place over twelve days between December 2011 and May 2012 before the Unified Family Court at St. John’s. On June 21, 2012, the UFC judge ordered that it was in the children’s best interests to be able to relocate to Alberta, where they would continue to be equally parented. (Both parents had testified that they would live wherever the court determined would be in the boys’ best interests.) [ 4 ] Ms.

Power immediately appealed the UFC decision and applied for a stay of the relocation order. Another UFC judge heard

and dismissed Ms. Power’s stay application. Ms. Power then applied to this Court for a stay of the relocation order pending the hearingof her appeal. The application was heard expeditiously because the older boy is due to start school within a few weeks. On July 31,2012, I heard and dismissed Ms. Power’s stay application. What follows are my reasons for doing so. THE LAW [5] The law respecting the staying of court orders which involve the custody and access of children was set out by Harrington J.A.of this Court in R.E.[1] v. N.G., 2010 NLCA 60, 301 Nfld. & P.E.I.R. 240.

In R.E.[1], Justice Harrington modified the tripartite test forstays pending appeal enunciated in RJR-MacDonald v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311 andfollowed by this Court in Rees v. Royal Canadian Mounted Police, 2005 NLCA 4, 244 Nfld. & P.E.I.R. 72 so as to incorporate theparamount consideration in custody and access cases of the best interests of the subject child or children. At paragraph 33 of thedecision, he set out the modified approach: (

a) the test generally should be applied from the perspective of the best interests of the child; (

b) as to the first prong, assessment of whether there is a serious issue on appeal should be undertaken bearing in mind that custodydecisions are essentially fact driven and depend to a great extent on the trial judge’s overall assessment of where the best interests of thechild lie; (

c) as to the second and third prongs, the questions of irreparable harm and balance of convenience must be considered from theperspective of the best interests of the child, not the parties and it is the potential for serious risk of irreparable harm to the child that isthe primary consideration; (

d) circumstances of a special and persuasive nature in relation to the best interests of the child, usually connected to the risk to harm,must be demonstrated by the applicant. [6] Accordingly, I approached this stay application from the point of view of the boys’ best interests and in the knowledge that theolder boy is to begin his first year of school within a few weeks. I am also mindful of the Supreme Court of Canada’s decision in Van dePerre v.

Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1041, to the effect that finality is of particular importance in custody cases and thatdeference is owed to the exercise of a trial judge’s discretion made after consideration of the unique circumstances of a particular case. Is there a serious issue on appeal? [7] Ms. Power’s appeal is rooted in her view that the UFC judge came to the wrong conclusion in deciding that her children’s bestinterests would be better served by their relocation to Alberta rather than remaining in this province.

Her grounds of appeal allege thatthe UFC judge made four erroneous factual findings and also that he failed to give sufficient weight to a CYFS investigation and to herposition that she had heretofor been the primary caregiver of the boys. [8] Mr. Wiseman disagrees with Ms. Power’s allegations of judicial error and disputes the veracity of her assertion that she hasbeen the primary caregiver of the boys. In sum, he maintains that Ms.

Power’s appeal is an attempt to retry the case, and that herdisagreement with the trial decision is not sufficient reason for a stay. [9] I have considered the notice of appeal and the submissions of both parties regarding whether there is a serious issue on appeal. I am also mindful that the Unified Family Court judge heard twelve days of evidence from several witnesses including CYFS workersand parties. Without determining the merits of any of the grounds of appeal, I am unable to say that any of them presents a serious issue. [10] Ms.

Power argued that the trial judge did not give sufficient consideration to the difficulties and challenges that she wouldencounter in having to relocate to Alberta. She said that she was in a “catch 22” position in that she felt compelled to say that she wouldmove to wherever the court decided it would be in the childrens’ best interests to live so as not to be seen as a selfish parent. In thisregard she relied on Stav v. Stav, 2012 BCCA 154, 214 A.C.W.S. (3d) 490, which discusses the classic “double bind” in which parents inmobility cases often find themselves. [11] In this case, Ms.

Power wanted to remain in this province and Mr. Wiseman wanted to relocate to Alberta, but both testified thatthey would live wherever the court decided was in the boys’ best interests. Because of their divergent positions, the court was chargedwith deciding which venue was in the boys’ better interests. Both parents were doubly bound, so to speak, and one of them necessarilywould have to sacrifice his or her choice of venue depending on the court’s decision. Because the UFC judge determined that it was inthe boys’ best interest to live in Fort McMurray, Ms.

Power has challenges and difficulties associated with her move. Had the decisionbeen that the boys would be better off in Newfoundland, Mr. Wiseman would have had challenges and difficulties associated with hisstaying in Newfoundland, among which would have been his sacrifice of the opportunity for gainful employment in his area of workwhich would enable him to support his family and to make a meaningful contribution to society. [12] Ms. Power’s argument that the UFC judge failed to consider the difficulties and challenges she would face in relocating toAlberta is not a ground of appeal.

Neither was I directed to any evidence in support of difficulties and challenges Ms. Power would facein relocating to Fort McMurray which the UFC judge allegedly ignored. In her argument to this Court, Ms. Power attempted to referenceevidence which was not before the UFC judge. An argument which is not the subject of a ground of appeal and which depends onevidence which was not before the trial judge cannot, absent very unusual circumstances, be considered on a stay application. Irreparable harm [13] Ms.

Power argued that her boys’ imminent separation from her and their relocation to another “foreign” and “unfamiliar”environment could cause the boys irreparable harm. I am not convinced that this is so. The boys have been relocated from theirbirthplace in Alberta to this province and have moved and continue to move among different locations in this province. As well, they areused to being with one or the other supportive and loving parent exclusively for days at a time.

They will be accompanied by theirsupportive and loving father on their move to Fort McMurray and then soon joined by their supportive and loving mother. Daily

telephone contact for the parent not with his or her children at any point in time will continue as provided for in the UFC order. In these circumstances, I am unable to conclude that the boys will be irreparably harmed by a temporary separation from their mother or their move to Fort McMurray. Balance of Convenience [ 14 ] While there is always the temptation to stick with the status quo when considering the balance of convenience, I am of the view that the balance of convenience favors the boys’ move to Fort McMurray forthwith.

Arrangements are in place for the elder boy to begin school and they have a home to go to directly upon their arrival. They also have paternal grandparents whom they know well in Fort McMurray, and their father has good prospects for immediate gainful employment so as to support them. The certainties associated with this timely move, in my view, outweigh the uncertainty associated with the lack of a plan for their education and activities in this province. In this regard, I note that were the boys to stay in this province, a decision would have to be made as to whether they would attend school in St.

John’s where their mother lives or in Carbonear where their father lives because the current week-about joint custody arrangement would not be workable. As well, although it is clear that Ms. Power is doing her best to have the trial transcript prepared so that facta can be filed and an appeal date set, no hearing date has yet been set. Special Circumstances [ 15 ] The only special circumstance advanced in favour of Ms. Power’s position is that the boys’ young ages will prevent them from “understanding what was happening to them and their concept of time”.

This argument was not supported by any expert evidence or commonly understood wisdom of which the court could take judicial notice. Neither was it related to any trial evidence or connected to any known risk of harm. Accordingly, I am not persuaded that it is a special circumstance of the kind contemplated in R.E. [1] . [ 16 ] Mr. Wiseman has indicated to this Court that he will forego his present custodial week so that the boys can spend time with their mother before they leave for Alberta. He has also indicated to this Court that he will facilitate good relations with Ms.

Power and her contact with her sons in the period of time before she is able to execute her move to Fort McMurray, and that he will cooperate with her in matters related to the elder boy’s first day of school. DISPOSITION [ 17 ] In the result, Ms. Power has not met the test for granting of a stay of the Unified Family Court relocation order of June 21, 2012. Her application is dismissed. There is no order as to costs. _______________________________ L. R. Hoegg J.A.