E.K. APPELLANT AND: R.K. RESPONDENT, 2022 NLCA 62

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: E.K. v. R.K., 2022 NLCA 62 Date: November 25, 2022 Docket Number: 202201H0010 BETWEEN: E.K. APPELLANT AND: R.K. RESPONDENT Coram: O’Brien, Knickle and Boone JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, Family Division 202002F0644 Appeal Heard: November 1, 2022 Judgment Rendered: November 25, 2022 Reasons for Judgment by: Boone J.A. Concurred in by: O’Brien and Knickle JJ.A. Counsel for the Appellant: Kathy P. Moulton Counsel for the Respondent: Ryan M. Belbin Authorities Cited: Authorities Cited: CASES CITED: Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27; Housen v. Nikolaisen, 2002 SCC 33 , [2002]2 S.C.R. 235. STATUTES CONSIDERED: Divorce Act, RSC 1985, c. 3 (2nd Supp.); Children’s Law Act, RSNL 1990, c. C-13,

section 35. RULES CONSIDERED: Rules of the Supreme Court, 1986,

Part IV, Supreme Court Family Rules, rule F19.02.

Boone J.A.: [1] A Family Division judge denied E.K. permission to proceed with an application to vary an interim parenting order. E.K.appeals from that decision. BACKGROUND [2] The parties are the parents of a five year old daughter. Their marriage broke down and they separated. E.K. applied to theFamily Division for a decision on parenting. During the first case management hearing, the parties agreed on a Consent Interim Orderregarding parenting: their daughter was to primarily reside with her father, R.K., who lived just outside St. John’s; her mother, E.K., wholived in St.

John’s, would see her for parenting during set time periods. More importantly, the Order required that E.K. be supervisedduring her parenting times. [3] E.K. had been her daughter’s primary caregiver. R.K. did not raise any concerns regarding E.K.’s parenting abilities. The issueof supervising E.K. during parenting arose because she was in a relationship with a man who had been convicted of the manslaughter of aprior intimate partner, and who had also threatened E.K.: he said that if she was unfaithful to him then he would kill her and leave her forher daughter to find “in a pool of blood”.

Although it is unusual for evidence to be presented during case management, a social workerfrom the Department of Children, Seniors and Social Development (“CSSD”) testified. She said that CSSD was of the view that it wasnot safe for E.K. to be the primary parent or to have unsupervised access while she remained in that relationship. [4] Ordinarily, an interim order stays in place pending final resolution of the dispute between the parties. The Rules of theSupreme Court, 1986,

Part IV, Supreme Court Family Rules, rule F19.02 provides that someone who seeks to vary an interim order mustfirst obtain the permission of a judge to bring a variation application.

The rule sets out the criteria that the judge must apply to determineif permission should be granted: there must be a compelling change of circumstances, and an urgent or immediate need becauseirreparable harm will likely occur before final hearing, and the applicant must also show either that they have taken steps to advance thematter to hearing or otherwise resolve the issues in dispute, or that there is a valid reason why the matter has not advanced. [5] Six months after the parties agreed to the Order, E.K. asked the Family Division for permission to proceed with an applicationto vary its terms.

She relied on two changes in circumstances that she said made access to her daughter easier: E.K. had changed jobsand R.K. had moved to St. John’s. She also said that supervision was no longer necessary because she had demonstrated over thepreceding six months that she could be trusted not to see her daughter with her partner present. [6] The Family Division judge, in a brief endorsement, denied E.K. permission to proceed with an application to vary. The judgesaid that neither E.K.’s job change nor R.K.’s residence change amounted to a compelling change of circumstances.

The judge did notspecifically address E.K.’s position that her compliance with the terms of the Interim Order constituted a compelling change. The judgealso decided that E.K. had not demonstrated urgent or immediate need to hear the Application and noted that E.K. had not taken anysteps to advance the matter through the court. [7] E.K. says that the trial judge erred in application of the criteria in rule F19.02. Based on the analysis that follows, her appealfails.

ISSUE [8] The sole issue on this appeal is whether the Family Division judge erred in denying E.K. permission to bring an application forvariation of the interim parenting order. ANALYSIS [9] Under the Supreme Court Family Court Rules, a request for permission to proceed with an application to vary an interim ordermay be made without notice to other parties. Therefore, the facts to be considered by the Family Division judge include only theassertions made by the requestor. [10] The Family Division judge expressly adverted in her decision to the criteria set out in rule F19.02.

The parties agree that theFamily Division judge correctly stated the legal standard for assessing a request for permission to proceed with an application to vary aninterim order. [11] E.K.’s appeal therefore raises a question whether the Family Division judge erred in applying the legal standard set out in thosecriteria to the facts asserted by E.K. [12] Interim orders are by nature temporary, and in most cases, intended to last for a relatively short time.

When interim orders arevaried, this means that temporary arrangements are substituted for conditions already meant to be only temporary. [13] Whether an interim order affecting children is made under provincial family legislation or the Divorce Act, RSC 1985, c. 3 (2d.Supp.), a party seeking to vary the order is required to demonstrate that there has been a material change in circumstances. A materialchange of circumstances has been commonly defined, in cases under both the Divorce Act, and provincial regimes, along the lines of thisdefinition utilized by the Supreme Court of Canada in Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27: [13] It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change inthe condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) whichmaterially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge whomade the initial order.

[14] The Supreme Court Family Rules therefore provide that a party cannot even ask the Court to consider varying an interim orderwithout first showing the presence of certain factors: F19.02

(1) A party must request a judge’s permission to proceed with an application to vary an existing interim order.

(2) To request a judge’s permission to proceed with an application to vary an interim order, a party must file an Application to Vary anInterim Order in Form F19.02A.

(3) A judge may grant permission to proceed with an application to vary an interim order where (

a) there has been a compelling change of circumstances since the date the interim order was made; (

b) there is an urgent or immediate need to hear the application as irreparable harm will likely occur before the matter can proceed to afinal hearing; and (

c) either (

i) the party has taken steps to advance the matter to a hearing or otherwise resolve the issues in dispute, or (ii) there is a valid reason why the matter has not advanced to a hearing or final resolution. [15] The term “compelling change in circumstances” first appeared as a specific term in the Supreme Court Family Rules in 2017. As used in that context it has not been judicially defined. In other cases, the term has been used as a synonym or as a defining feature ofthe term “material change in circumstances” which is used in jurisprudence interpreting the Divorce Act and in the Children’s Law Act,RSNL1990 c.

C-13, s. 35. [16] Given the context in which it is used in rule F19.02(3), “compelling change of circumstances” must mean something differentthan a “material change of circumstances”: if a family court judge finds on a request under Rule F19.02(3) that there has been acompelling change in circumstances, then the result will be an application for a variation hearing at which the applicant will have todemonstrate a material change in circumstances. [17] The terms “material change” and “compelling change” cannot therefore mean the same thing. [18] It is not helpful to merely describe the difference between the two standards in purely relative terms, for example, by sayingthat one is a higher standard than the other.

The best approach to the

interpretation or application of a rule of procedure is a functionalconsideration of the term used. [19] In the context of a request for permission under rule F19.02(3), a compelling change of circumstances should be one that ispowerful enough to demand the attention of the parties and judge.

If it is, then the application to vary can proceed, and the judge candecide whether the change is a material one that justifies variation in the Interim Order. [20] The Family Division judge decided that there was no compelling change of circumstance; no urgent or immediate need to hearthe application; and that E.K. had not taken steps to advance the matter to a hearing or otherwise resolve the dispute. E.K. says that eachof those decisions was made in error. [21] The Family Division judge expressly found that neither E.K.’s job change nor R.K.’s change of residence constituted acompelling change of circumstance.

The judge did not expressly address E.K.’s position that her compliance, for a period of 6 months,with the requirements of supervision during her access times, constituted a compelling change of circumstances. [22] In this Court, E.K. conceded that neither a job change nor a local residence change would ordinarily constitute a compellingchange.

These kinds of changes can be anticipated during the time between interim and final disposition, usually without affecting thebest interests of the child, and can be accounted for at the time of final resolution. [23] However, E.K. argued that the change in her job and in R.K.’s residence, together with her compliance with the supervisoryterms of the Interim Order for a period of six months showed that she was able to spend more time with her daughter and could betrusted to keep her partner away, and that these factors aggregated to constitute a compelling change of circumstances that justifiedproceeding with an application to vary the terms of the Order. [24] The Family Division judge did not expressly address E.K.’s argument that her compliance with supervision conditionsconstituted a compelling change in circumstances.

The judge is nevertheless presumed to have been cognizant of this argument, andtherefore, her decision amounted to a finding that E.K.’s history of compliance was not a compelling change. “[T]he failure [of a judge atfirst instance] to discuss a relevant factor in depth, or even at all, is not itself a sufficient basis for an appellate court to reconsider theevidence… [unless there is] a reasoned belief… that the trial judge forgot, ignored, or misconceived the question”: Housen v. Nikolaisen,2002 SCC 33 , [2002] 2 S.C.R. 235, at para. 39.

In this case, the variation application was very brief but E.K. neverthelessincluded in it several references to her position that she should no longer be supervised during access times because she had beencompliant with the terms of the Interim Order. There is no basis for believing that the Family Division judge failed to appreciate E.K.’sposition. [25] Therefore, the endorsement by the Family Division judge must be read as a rejection of E.K.’s position that her priorcompliance justified the variation of the terms of the Interim Order to delete the requirement for supervision.

E.K. says that was an error. [26] I do not agree. The fact that E.K. had complied with conditions of supervision did not constitute a change of circumstances atall. The transcript of the case management hearing that led to the Interim Order shows that the requirement for supervision arose becauseE.K. was in a relationship with a man who had previously been convicted for the manslaughter of an intimate partner and had threatened

to take E.K.’s life in a manner calculated to harm her daughter. The CSSD social worker testified that CSSD would not support any parenting arrangement that involved E.K. having unsupervised access because of E.K.’s continued relationship. It is clear from the transcript that the parties included the supervision requirement only because of E.K.’s relationship with that man.

That circumstance had not changed when E.K. made her request to the Family Court judge to allow her to proceed with an application to vary the Interim Order. [ 27 ] E.K. argued before this Court that the requirement for supervision was included in the Interim Order because CSSD, R.K. and the Family Division judge did not trust that she would keep her child away from her partner, and she says that her compliance with conditions showed that she could be trusted to do so in the future. [ 28 ] The Interim Order was made by consent, drafted by the parties and presented to the judge.

Consequently, we do not have the benefit of the judge’s explanation of the reasons for the imposition of the requirement for supervision in the Interim Order. However, nothing in the record demonstrates that the requirement for supervision was imposed only because of a lack of trust that E.K. would keep her partner away from her daughter. It was clear on the record that it was the mere fact of her relationship with a man who presented a threat to her and her daughter that led to the requirement.

This circumstance had not changed. [ 29 ] Consequently, E.K. has not shown that it was an error for the Family Division judge to have rejected her position that her record of compliance, taken by itself or in combination with her job change and R.K.’s address change, was compelling enough to require a variation hearing.

SUMMARY AND DISPOSITION [ 30 ] All three factors set out in rule F19.02(3) must be present before permission will be granted to proceed with a variation application. If a party requesting permission to proceed with a variation application fails to demonstrate a compelling change, permission should be denied. The Family Division judge was not in error in finding an absence of compelling change. There is no need to consider E.K.’s appeal from the decision regarding the other criteria. COSTS [ 31 ] The Appeal is dismissed.

R.K. is entitled to his costs in this Court taxed on column 3. _____________________________ D.M. Boone J.A. I Concur : _____________________________ F.P. O’Brien J.A. I Concur : _____________________________ F.J. Knickle J.A.