Squires v. Smith, 2015 NLCA 25

Date: 20150519 Docket: 15/13 Citation: Squires v. Smith , 2015 NLCA 25 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : GLENN RICHARD SQUIRES INTENDED APPELLANT AND : ANGIE NICOLE SMITH INTENDED RESPONDENT Coram: Welsh, White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (F) 201402F0847 (2015 NLTD(F) 6) Appeal Heard: March 24, 2015 Judgment Rendered: May 19, 2015 Reasons for Judgment by Welsh J.A. (Dissenting) Reasons for Judgment by White J.A. Separate Concurring Reasons by Hoegg J.A. Counsel for the Intended Appellant: Nick Avis Q.C. Counsel for the Intended Respondent: Stephanie L. Newell Q.C.

Welsh J.A.: (Dissenting) [ 1 ] This appeal involves an interim order regarding custody of and access to the parents’ young child who will be having his first birthday on May 21 st . Both parents wish to maximize their opportunity to care for and bond with the child. The father seeks leave to appeal, and if granted, appeals portions of the interim order. He is particularly concerned with the passage of time before a trial date is available. BACKGROUND [ 2 ] The child’s parents are not married and cohabited for only approximately two months after the child’s birth. Ms.

Smith is on maternity leave and expects to return to her employment full-time in July 2015. Mr. Squires generally works three weeks offshore, followed by onshore leave for three weeks. The interim access order, proposed by Ms. Smith and accepted by the applications judge, provides periods of access for Mr. Squires, with consideration being given to the child’s breastfeeding and nap schedules. [ 3 ] Unfortunately, only approximately one-half hour was available for the applications judge to consider submissions by the parties before determining the interim custody and access schedule.

The judge noted that an interim order focuses on the short-term needs and best interests of the child. He concluded that the

schedule proposed by Ms. Smith, adjusted to permit one overnight access for Mr. Squires after the child’s first birthday, would be reasonable, balancing “parenting time for the father and the breastfeeding relationship between the mother and their infant son” (2015 NLTD(F) 6, at paragraph 19). [ 4 ] The difficulty that arises here is that the order will be in place for longer than the short-term given that Mr. Squires has been advised that a trial of issues regarding custody of and access to the child would likely not be scheduled before November. When the order was made, the child was eight months old.

By November he will be almost one and one-half and Ms. Smith will have returned to her employment for some months. ANALYSIS Leave to Appeal [ 5 ] This is an interlocutory order for which leave to appeal is required (rule 57.02(1)(

a) of the Rules of the Supreme Court, 1986 ). Factors to be considered in granting leave are set out in subsection (4). In this case, I would grant leave, relying on “(

e) the Court is of the view that the interests of justice require that leave be granted”. [ 6 ] The severely truncated opportunity to deal with custody and access issues at the hearing of the interim application was insufficient to permit adequate consideration of issues that will engage after the child’s first birthday and Ms. Smith’s return to her employment. The delay inherent in determining these issues at a trial and the applications judge’s failure to address the possible effects of delay on the best interests of this young child are sufficient to warrant consideration of Mr. Squires’ appeal.

In addition, there is an issue as to whether there is an evidentiary basis for the clause in the order regarding the consumption of alcohol and illegal drugs by Mr. Squires. The Appeal [ 7 ] The interim order sets out a

schedule for Mr. Squires’ access to the child during his onshore leave. Prior to the child’s first birthday on May 21, 2015, access is for three hours each day during the early afternoon, with no provision for overnight access. [ 8 ] If Mr. Squires’ onshore leave is extended, his access is reduced to three hours on just four days a week. The rationale for this is unclear, though the applications judge commented that this

schedule “takes into account Ms. Smith ordinarily parenting [the child] full-time during such weeks” (paragraph 20). It is not apparent how this explains why Mr. Squires should not have the same access during extended leaves as he has during his regular onshore leaves. [ 9 ] After the child’s first birthday, the only change to the

schedule is that Mr. Squires is permitted one overnight access from 4:00 p.m. on Thursday to noon on Friday. That provision also applies when Mr. Squires is on extended onshore leave. [ 10 ] After Ms. Smith returns to her employment, Mr. Squires has access on two days each week for three hours and on two other days for four hours, with one overnight from 4:00 p.m. until noon the next day. This

schedule provides Ms. Smith with one full day with the child on each weekend. In addition to the access schedule, the order includes several other clauses related to custody of and access to the child. Clause 26 of the Order [ 11 ] A clause to which Mr. Squires objects is: 26. Mr.

Squires shall not smoke or abuse alcohol or illegal drugs when parenting [the child]; nor shall he or anyone else be under the influence of alcohol or drugs in [the child’s] presence. [ 12 ] A clause of this type may be included in a custody and access order where there is evidence that a parent has demonstrated irresponsible conduct or some alcohol or drug dependency. For example, in J.H. v. L.D. , 2009 NLTD 54 , 286 Nfld. & P.E.I.R. 154, J.H. was granted supervised access, subject to the clause: [34] … (

c) J.H. and the supervisor shall not be under the influence of alcohol or drugs during any times of access. …

[ 13 ] The basis for this clause is discussed in paragraphs 11 to 13, and I would note, in particular: [11] … J.H., who suffers from a serious and lengthy addiction to alcohol, had been sober for a period of only eight months. There was no comfortable indication that such a change in lifestyle would continue after the court proceedings ended.

In fact, given J.H.’s history with alcohol, coupled with his use of drugs and his obsession with pornography, the best interests of the child would dictate a cautious approach, rather than unsupported optimism that he would continue and maintain his recently changed lifestyle. (See also: Baird v. Crane , 2011 NLTD(F) 37, where the father had been granted supervised access.) [ 14 ] In this case, Mr. Squires challenges clause 26 on two bases: that it lacks any evidentiary foundation; and that it is vague and overbroad. At the Family Court hearing, Ms. Smith provided an affidavit alleging that Mr.

Squires had been convicted of impaired driving. Mr. Squires admits this, but points out that this was in 2006 and that he has since received a pardon. Ms. Smith also points to an incident when Mr. Squires returned home intoxicated. Mr. Squires points out that this occurred before the child was born. [ 15 ] The applications judge did not find it necessary to restrict Mr. Squires to supervised access, and did not comment on alcohol or drug use as a concern. There is, in fact, no evidence from which a reasonable inference can be drawn that clause 26 is an appropriate condition to be included in the order.

There is no evidence that either parent’s ability to care for the child would be impaired by their use of alcohol or illegal drugs. [ 16 ] Further, I accept Mr. Squires’ submission that the language of the clause is vague and overbroad. Without an identified foundation for imposing the restriction, it is unclear what is meant by “abuse” alcohol or illegal drugs, or what would constitute another person being “under the influence of alcohol or drugs” so as to engage this clause. [ 17 ] In the circumstances, I conclude that the applications judge erred by including clause 26 in the order.

The clause should, accordingly, be deleted. Care of the Child when Ms. Smith Returns to Work [ 18 ] Mr. Squires has two main objections to the access

schedule when he is on onshore leave. First, he submits that, during those periods, he should have equal parenting time with Ms. Smith. Second, he submits that, when Ms. Smith returns to her employment, he should parent the child during the hours when she is at work. This would avoid the need for a babysitter or daycare. [ 19 ] It is well known that children change and develop quickly during the first years of their lives. Time with their parents and other care-givers is an important component of that development.

In this case, the applications judge had only limited time to consider an appropriate interim custody and access schedule, with the expectation that full evidence would be heard at trial. [ 20 ] Given that Mr. Squires has regular access to the child, subject to the issue discussed below, the question of equal parenting time may reasonably be delayed pending trial of the custody and access issues. [ 21 ] However, an issue that was not specifically addressed by the applications judge and that may have an effect on the best interests of the child is why a caregiver, rather than Mr.

Squires, should care for the child during the hours when Ms. Smith is at work and Mr. Squires is on onshore leave and available to parent the child. [ 22 ] Since the applications judge did not give reasons for refusing to grant Mr. Squires care of the child while Ms. Smith is at work, it is not possible for this Court to identify the rationale underlying the order. On its face, it would appear reasonable for Mr. Squires to care for the child during the hours when he is on onshore leave and Ms. Smith is at work. However, there may be reasons why this option was rejected.

In the circumstances, it was an error for the applications judge to fail to give reasons for accepting a

schedule that precludes Mr. Squires from parenting the child during the hours when Ms. Smith is at work and he is on onshore leave because that omission precludes proper consideration of the issue on appeal. [ 23 ] This Court is not in a position to make a determination regarding the applications judge’s decision on this issue. In the circumstances, before Ms. Smith returns to her employment, it is necessary that Mr. Squires have the opportunity, by means of an application or appropriate judicial process in the Family Court, to deal with the issue of whether the order should be amended to permit Mr.

Squires to care for the child during the hours when Ms. Smith is at work and he is on onshore leave. [ 24 ] The final term of the applications judge’s order encourages the parties to negotiate further parenting time for Mr. Squires with the object of avoiding a “full-blown” trial. However, the history of this case, including this appeal, is indicative of the parties’ inability to reach a negotiated agreement. While this case has taken an unusual procedural route involving judicial intervention at an early stage, leave was granted as required by rule 56A.16(1.1) to proceed in this way.

In the circumstances, it is important for the parties to have the opportunity to have the above issue determined expeditiously consistent with the best interests of the child. I would remit the matter to the Family Court for that purpose.

SUMMARY [ 25 ] I would grant leave to appeal and amend the order to delete clause 26, which states: 26. Mr. Squires shall not smoke or abuse alcohol or illegal drugs when parenting [the child]; nor shall he or anyone else be under the influence of alcohol or drugs in [the child’s] presence. [ 26 ] The applications judge erred in failing to give reasons for his determination regarding care of the child when Ms. Smith returns to her employment. While this Court is not in a position to deal with Mr. Squires’ request that the interim order be amended to permit him to care for the child during the hours Ms.

Smith is at work and he is on onshore leave, the circumstances are such that it is necessary that he be given the opportunity, by application or other appropriate judicial procedure, to have that issue determined before Ms. Smith returns to work. I would remit the matter to the Family Court for that purpose. Given the apparent inability of the parties to agree, the

option of negotiating a resolution would be an inadequate remedy. [27] I would make no order as to costs. ____________________________________ B. G. Welsh J.A. White J.A.: [28] My colleague Welsh J.A. would grant leave to appeal, delete clause 26 of the interim order, and remit the issue of an aspect ofparental access to the Family Court for reconsideration. [29] With respect, I cannot agree. I would deny leave as I cannot agree with my colleague that the interests of justice require it inthese circumstances. [30] While I can appreciate that clause 26 may cause some difficulties for Mr.

Squires, and it may be that it is “vague andoverbroad”, I would note that, if so, the clause would be of limited, if any, practical effect. [31] My colleague also notes that Mr. Squires objects to the access

schedule while he is on onshore leave but nevertheless concludes(in my view, properly) that this Court is not in a position to make a determination on this issue. That said, I cannot agree with theconclusion of my colleague ordering the Family Court to reconsider the matter upon application or further to any other process initiatedby Mr. Squires. [32] At the hearing which resulted in the interim order a family law judge decided interlocking factual and discretionary questions ona sparse record after brief argument.

There is nothing new before this Court, and I would not be prepared to intervene piecemeal in anorder which is intended only to bridge the time gap until trial or until a further application to Family Court is properly made.

It is not agood reason to ask this Court to grant leave and find error even if appeal of an interim order can be heard before a full trial or anapplication to vary in Family Court. [33] While there will be cases where intervention by this Court is justified, there is nothing in these circumstances such that theinterests of justice require redress in advance of trial. [34] In any event, it is and has been open to Mr.

Squires to seek an earlier trial date which may or may not be granted in thediscretion of the Family Court. [35] I would deny leave to appeal, with no order as to costs. ______________________________ C. W. White J.A. Hoegg J.A.: (Separate Concurring Reasons) [36] I agree with White J.A. that leave to appeal should not be granted for the reasons he states. [37] In denying leave, I would not want to be taken as affirming the appropriateness of Clause 26 of the judge’s order.

Although itwas not appealed, neither would I want to be taken as affirming the appropriateness or correctness, from a constitutional perspective, ofClause 11 of the judge’s order. Clause 11requires Ms. Smith to “pump, store, and provide” her breast milk “if reasonably requiredduring Mr. Squires” parenting times. It is one thing if Ms. Smith chooses to do so, but quite another for her to be ordered to do so (see R.v. Morgentaler, (SCC), [1988] 1 S.C.R. 30; Winnipeg Child & Family Services (Northwest Area) v. G.(D.F.), (SCC), [1997] 3 S.C.R. 925; Carter v. Canada (Attorney General), 2015 SCC 5; A.C. v.

Manitoba (Director of Child andFamily Services), 2009 SCC 30, [2009] 2 S.C.R. 181; and E. (Mrs.) v. Eve, (SCC), [1986] 2 S.C.R. 388). ______________________________ L. R. Hoegg J.A.