JASON BATEMAN APPLICANT AND: JESSICA BATEMAN (MACARTHUR) RESPONDENT, 2016 NLCA 41

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL Citation : Bateman v. Bateman , 2016 NLCA 41 Date : August 10, 2016 Docket : 201601H0074 BETWEEN: JASON BATEMAN APPLICANT AND: JESSICA BATEMAN (MACARTHUR) RESPONDENT Coram: White J.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, Grand Bank, 201106G0131 Application Heard: August 9, 2016 Decision Rendered Orally: August 9, 2016 Written Reasons Filed: August 10, 2016 Counsel for the Applicant: Bob Buckingham Counsel for the Respondent: Katrina A. Brannan Q.C. and Vanessa M.

Laite (appearing by Video Conference) White J.A.: BACKGROUND [ 1 ] Jason Bateman applied for a stay pending appeal of an interim order of the Supreme Court Trial Division (Family) permitting Jessica Bateman (now MacArthur) to relocate to St. John’s and varying the terms of his access to their two children until the Family Court resolves Ms. MacArthur’s application for permanent relocation and variation of access. [ 2 ] The parties are from Marystown, Newfoundland and Labrador. They married in 2004 and divorced in 2013. Their two children are aged 11 and 8.

After their divorce, the court ordered that they share joint custody and that the children reside with Ms. MacArthur while Mr. Bateman exercises regular access on every second weekend and every Tuesday and Thursday evening. [ 3 ] In January 2016, Ms. MacArthur made an application for relocation and a variation of access on the basis that she was going to lose her job and would need to relocate from Marystown to the St. John’s area in order to find a new one. That application has not yet been resolved. However, she did lose her job and then found a new one in the St. John’s area, to start on July 25, 2016.

She made an urgent interlocutory application for relocation and a variation of access. The application proceeded on an expedited basis, to which Mr.

Bateman objected. [4] Despite Mr. Bateman’s objection to the process and to the relocation, the applications judge issued an interim order in favourof Ms. MacArthur, permitting her to relocate pending the final resolution of her application. At the same time, the judge varied access toprovide for a longer periods of time for the children to spend with the Mr. Bateman each August, in order to compensate him for thereduction in weekday access. According to the order of the judge, as it is now August, Mr. Bateman has custody of the children for theentire month. [5] Mr.

Bateman filed for leave to appeal the order of the applications judge and sought a stay. At the conclusion of the hearing,the application for leave to appeal was granted and the application for a stay denied with written reasons to follow. These are thosereasons. Applicable Law [6] The applicable test for a stay pending appeal in custody and access cases is set out in R.E.[1] v. N.G, 2010 NLCA 60, 301Nfld. & P.E.I.R. 240 as well as C.B. v.

N.S., 2014 NLCA 51 at para. 11: The test to be applied in determining whether a stay should be granted where custody of and access to a child are at issue is discussed inN.G. v. R.E., 2010 NLCA 60, 301 Nfld. & P.E.I.R. 240. The test for a stay generally has three prongs:

(1) Is there a serious issue to be tried in the sense that the appeal is not frivolous?

(2) Will a party suffer irreparable harm if the stay is denied?

(3) Where does the balance of convenience lie? When the decision under appeal relates to a child, as stated in N.G., paramountcy of the best interests of the child is engaged, with theresult that the test will be applied from that perspective. Serious Issue to be Tried [7] In addressing the issue of whether or not an interim relocation should be permitted the applications judge relied on Gordon v.Goertz, (SCC), [1996] 2 S.C.R. 27 despite Mr. Bateman’s concerns about a truncated and expedited process, which thejudge acknowledged “ha[ve] merit”. I note that other courts have developed the Gordon v.

Goertz analysis in the context of applicationsfor interim relocation. For example, the Saskatchewan Court of Appeal in Mantyka v. Dueck, 2012 SKCA 109, 399 Sask. R. 303 said: [31] The case law also provides that significant caution is necessary when deciding whether a custodial parent should be allowed tomove with a child on an interim basis, i.e. before a trial of the relevant issues. This is so for two reasons. The first is because an interimchange of location can all too easily create a new “normal” and thereby effectively go some distance toward determining the final resultof the proceedings.

Ryan-Froslie J. explained the problem as follows in Benson v. Benson, 2011 SKQB 457, 388 Sask. R. 89 at para. 18: The difficulties a Court faces in determining mobility issues on interim applications has been the subject of considerable judicialcomment. The evidence presented on interim applications is in the form of affidavits. Often those affidavits are not extensive enough toenable a court to thoroughly examine the best interests of a child. That evidence is often contradictory and the Court has no ability to testits authenticity or determine issues of credibility.

Allowing a child to move on an interim application uproots the child from itscommunity and makes a return to that community unlikely on a hearing of the final application because of the consequent disruption tothe life of the child. In other words, allowing such a move often amounts to a final determination of the issue. It is for those reasons thatCourts have long held that as a general rule moves should not be allowed on interim applications (See: Guenther v.

Guenther, [(1999), (SK QB), 181 Sask.R. 83 (Q.B.)] at para. 5). [32] The second reason for approaching interim relocations with caution is that the record before the court normally consists only ofaffidavit evidence which, by its nature, is often incomplete or somewhat limited in scope. Moreover, such evidence is oftencontradictory or inconsistent. It is thus both difficult and unwise to make important decisions on the basis of a record with these sorts offrailties. See: Nieman v. Bull, 1999 SKQB 204 at para. 7; Shiplack v. Shiplack, 2008 SKQB 254, 317 Sask.

R. 223 at para. 19. [33] All of this has led to an overall approach where, of course always bearing the best interests of the child or children in mind, interimrelocations by a custodial parent are allowed only in compelling circumstances. See generally: Bala and Wheeler, “Canadian RelocationCases: Heading Towards Guidelines” (2012), 30 C.F.L.Q. 271. Indeed, in his often-cited decision in Ofukany v.

Ofukany, 2009 SKQB234, at para. 12, Smith J. took the position that there is a presumption, albeit a rebuttable one, that the children in mobility cases should“remain in the locale of the status quo until the debate proceeds to trial to be fully and fairly determined.” [8] The applications judge did not address whether the analysis of the Saskatchewan Court of Appeal applies in this jurisdictionand is relevant to this case. I accept that this is an issue which should be resolved and that Mr. Bateman has raised a serious issue to betried with respect to his appeal.

Irreparable Harm [9] I conclude, however, that Mr. Bateman has not established that the children or he would suffer irreparable harm if the stay isnot granted. I appreciate that the relocation is a significant change for the children and for Mr. Bateman. However, as it is currentlyAugust, he has the children with him in Marystown and the status quo is preserved. The appeal can be heard and resolved quickly

enough in September or early Fall that no irreparable harm will occur. [ 10 ] Moreover, while relocation on an interim basis will affect the children's routines, in my view what would really cause the children serious harm is multiple court orders which may potentially change those routines several times in a short period. For example, a stay would effectively reverse the decision of the applications judge which has been in force since July.

The decision on appeal has potential to conflict with either the initial decision or the stay decision or any decision that the Trial Division may make on the hearing of the final application for relocation, which could then be subject to appeal itself. Surely, it is unacceptable to subject the children to possibly varying judicial outcomes in this dispute over what is a significant, but not drastic, change in circumstances. Balance of Convenience [ 11 ] For the same reasons, I find that Mr. Bateman has not established that the balance of convenience favours him.

Best Interests of the Children [ 12 ] Even if the children were not presently with Mr. Bateman, I would be inclined to conclude that a stay pending appeal is not in their best interests. Ms. MacArthur is their primary caregiver and there is no basis in the record to alter that situation, when their father can still exercise regular access. Changing the primary caregiver for young children is a more disruptive change than a variation in access. Moreover, Ms. MacArthur’s employment will benefit the children and should be supported.

Conclusion [ 13 ] In my view, this case should be resolved quickly here and in the court below so as to minimize harm and inconvenience to all parties. [ 14 ] I concluded that the appeal raises a serious issue to be tried and also that this issue meets the test for granting leave to appeal (see for example Barnes v. Barnes , 2010 NLCA 17 , 295 Nfld. & P.E.I.R. 213 at paras. 9-11 , 25) and therefore granted leave. The appeal will be heard on September 21, 2016 at 10:00am. The Applicant was granted leave to file his notice of appeal and shall file his factum by August 31.

The Respondent shall file a response by September 14. [ 15 ] The application for a stay was dismissed. [ 16 ] While the application for a stay pending appeal was dismissed, a serious issue was raised and leave to appeal was granted. Accordingly, there is no order as to costs. ____________________________ C. W. White J.A.