T.O . APPELLANT AND: M.L . RESPONDENT, 2024 NLCA 5

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: T.O. v. M.L, 2024 NLCA 5 Date: February 5, 2024 Docket Number: 202201H0065 BETWEEN: T.O. APPELLANT AND: M.L. RESPONDENT Coram: D.E. Fry, C.J.N.L., F.P. O’Brien and K.J. O’Brien, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, Family Division 202002F0303 (2022 NLSC 156) Appeal Heard: December 12, 2023 Judgment Rendered: February 5, 2024 Reasons for Judgment by: K.J. O’Brien J.A. Concurred in by: D.E. Fry C.J.N.L. and F.P. O’Brien J.A. Counsel for the Appellant: Sarah J. Clarke Counsel for the Respondent: Gladys H. Dunne, K.C.

Authorities Cited: CASES CITED: Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27; Barendregt v. Grebliunas, 2022 SCC 22; Van de Perrev. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014; O’Keefe v. O’Keefe, 2019 NLCA 70, 5 C.A.N.L.R. 138; L.H. v. Newfoundland and

Labrador (Child, Youth and Family Services) , 2023 NLCA 32 ; Anstey v. St. John’s City) , 2014 NLCA 35 , 356 Nfld. & P.E.I.R. 117; N.T. v. R.W.P. , 2011 NLCA 47 , 309 Nfld. & P.E.I.R. 350; Wewaykum Indian Band v. Canada , 2003 SCC 45 , [2003] 2 S.C.R. 259; Cabana v. Newfoundland and Labrador , 2014 NLCA 34 , 356 Nfld. & P.E.I.R. 103. STATUTES CONSIDERED: Children’s Law Act , RSNL 1990, c. C-13, sections 31(1) , 72 , 31(2) ; Divorce Act , RSC 1985, c. 3 (2nd Supp .). K.J. O’Brien J.A. : [ 1 ] This is an appeal of the dismissal of a mother’s application for permission to relocate with her child.

At the time of the application, there was a joint custody and equal shared parenting arrangement in place with the child’s father. OVERVIEW [ 2 ] TO, the mother, and ML, the father, lived together in a relationship and had one child, born in 2015. Following their separation in 2019, they lived in neighbouring communities, approximately one hour’s drive from St. John’s, Newfoundland and Labrador. At that time, the father worked on rotation outside of the province. [ 3 ] Approximately one month after they separated, the parties entered into a separation agreement.

The separation agreement provided for joint custody and primary residence of the child with the mother. The mother was described in the separation agreement as the “primary caregiver” with “day-to-day responsibility for the guidance and upbringing of the child”. The father was to “enjoy reasonable and liberal access” when he was home on turnaround. [ 4 ] Approximately five months after the separation agreement was signed, the father’s employment outside of the province ended.

As a result, in November 2019, the parents agreed to change the parenting arrangement to week on-week off. [ 5 ] In May 2020, the mother secured a new position with her employer in St. John’s. She and her new partner (subsequently her husband) made plans to move to St. John’s in July 2020 with the child. The father did not agree to the child moving and so he filed an Originating Application at the court below seeking to maintain the current parenting arrangement and an ex-parte emergency interim application seeking a non-removal order to prevent the mother from relocating with the child.

That order was ultimately granted and it prevented either parent from relocating with the child except by further court order or the parents’ written agreement. [ 6 ] Following the court’s direction on some procedural matters, the mother made a formal request to the court seeking permission to relocate with the child. The relocation application was heard in May 2022, when the child was nearly seven years old.

At that time, there was an equal shared parenting arrangement, with the child residing alternately with the mother, her husband and their baby born in 2020, and with his father, his partner, and her child on a week-about basis. The mother and her husband remained in the neighbouring community to the father and commuted to their work in St. John’s. [ 7 ] The judge gave his decision in October 2022 ( M.L. v. T.O. , 2022 NLSC 156 , the “Decision”), dismissing the mother’s application and prohibiting the relocation of the child. [ 8 ] The mother now appeals that decision. She alleges the following errors: a.

The judge failed to consider that her relocating to St. John’s without the child would necessarily result in a change to the current parenting schedule, thereby depriving the child of a substantial amount of time with her. b. The judge placed undue emphasis on the parenting arrangement and family environment during the period from when the relocation application was filed (November 2020) until the date of the hearing (May 2022). c. The judge misapprehended or ignored material evidence relevant to the factors required by law to be considered in a relocation application. d.

The judge created a reasonable apprehension of bias by asking the father’s lawyer to call the father’s partner and the child’s paternal grandfather as witnesses. e. The judge denied her procedural fairness by limiting the time available for the hearing. [ 9 ] For the reasons that follow, I do not find any error by the judge, and I would thus dismiss the appeal. LAW APPLICABLE TO THE RELOCATION DECISION [ 10 ] The Children’s Law Act , RSNL 1990, c. C-13 (“ CLA ”) applies to parenting decisions involving unmarried parents.

In making a parenting decision, the court must regard the best interests of the child as the first and paramount consideration ( ss. 31(1) , 72 ). To determine the best interests of the child, the court must consider all the needs and circumstances of the child including: 31(2) (

a) the love, affection and emotional ties between the child and, (

i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who live with the child, and (iii) persons involved in the care and upbringing of the child; (

b) the views and preferences of the child, where the views and preferences can reasonably be ascertained; (

c) the length of time the child has lived in a stable home environment; (

d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, thenecessaries of life and the special needs of the child; (

e) the ability of each parent seeking the custody or access to act as a parent; (

f) plans proposed for the care and upbringing of the child; (

g) the permanence and stability of the family unit with which it is proposed that the child will live; and (

h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. [11] The Supreme Court of Canada has set out principles that apply to relocation applications in Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27 and, more recently, in Barendregt v. Grebliunas, 2022 SCC 22. [12] In Barendregt, the Court refined the common law framework to focus on the crucial question of whether relocation is in thebest interests of the child, having regard to the child’s physical, emotional and psychological safety, security and well-being.

The Courtemphasized that the inquiry is highly fact-specific and discretionary (Barendregt, at para. 152). [13] Additionally, the Court set out a non-exhaustive list of factors for a court to consider on relocation applications, including: thereasons for the relocation; the impact of the relocation on the child; the amount of time spent with the child by each person who hasparenting time and the level of involvement in the child’s life of each of those persons; and the reasonableness of the proposal of theperson who seeks to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking intoconsideration, among other things, the location of the new place of residence and the travel expenses (Barendregt, at para. 154).

Many ofthese factors were noted in Gordon and are included in the CLA. [14] Finally, the Court was clear that courts “should not consider how the outcome of an application would affect either party’srelocation plans — for example, whether the person who intends to move with the child would relocate without the child or not relocate”(Barendregt, at para. 154). [15] Recent amendments to the Divorce Act, RSC 1985, c. 3 (2nd Supp.), have added specific provisions related to relocationapplications for couples who are divorced or applying for divorce.

However, Gordon and Barendregt continue to apply to unmarriedparents making relocation applications under the CLA. STANDARD OF REVIEW [16] The scope of appellate review in family law cases is narrow. Determining a child’s best interests is always a fact-specific andhighly discretionary determination. Having heard from the parties directly, weighed the evidence, and made factual determinations, thetrial court is well positioned to determine the parenting arrangement that is in the best interests of the child.

Therefore, an appellate courtmay only intervene where there is a material error, a serious misapprehension of the evidence, or an error in law (Barendregt, at paras.100-103; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at paras. 9, 11-12). [17] This deferential standard of review applies to the first three issues raised by the mother. However, for the fourth and fifthissues, which concern the reasonable apprehension of bias and procedural fairness, a correctness standard applies (O’Keefe v. O’Keefe,2019 NLCA 70, 5 C.A.N.L.R. 138, at para. 7; L.H. v.

Newfoundland and Labrador (Child, Youth and Family Services), 2023 NLCA 32,at paras. 50, 54; Anstey v. St. John’s (City), 2014 NLCA 35, 356 Nfld. & P.E.I.R. 117, at para. 19). On the correctness standard, thisCourt may intervene if the mother establishes that there was a reasonable apprehension of bias during the hearing or that the hearing wasprocedurally unfair. ISSUE 1: Did the judge err by failing to consider that the mother relocating to St. John’s without the child would necessarilyresult in a change to the current parenting

schedule thereby depriving the child of a substantial amount of time with her? [18] The judge did not consider a parenting scenario in which the mother would relocate to St. John’s and the child would remainprimarily resident in the rural community with the father. The mother now submits that the judge should have and, had he done so, hewould have had to consider that the child’s time with her would be significantly reduced. [19] I do not agree that the judge should have considered this scenario because neither party put any evidence before the judge thatthis was a possible parenting plan to be considered.

The judge was asked to decide if it was in the best interests of the child to relocate toSt. John’s. The father wanted to maintain the current parenting arrangement. The mother put forward two possible parenting plans for thejudge to consider. The first was that she would move to St. John’s and parent the child during weekdays and that the father would parentthe child three weekends a month, for most of the summer, and during the Christmas and Easter holidays. This proposal amounted to anapproximately equal number of days with each parent during the year.

The second proposal was that the father would move closer to St.John’s and the parents would maintain the week-about

schedule (Transcript, May 2, 2022, at pages 147-149, 168). The father testifiedthat moving to St. John’s, or closer to St. John’s, was not an option for him (Transcript, May 6, 2022, at page 107). [20] The mother did not testify as to whether she would move to St. John’s if the application was not granted. She testified that thecurrent situation of her husband and her commuting one hour each way for work was untenable, but she did not specify how this would

change if the child could not relocate. Although she suggested that she and her husband could lose their current jobs because of the amount of work they were missing to maintain the status quo , there was no evidence tendered to support this submission (Transcript, May 2, 2022, at page 148; May 4, 2022, at page 95). [ 21 ] The mother was not required to testify about her relocation plans if the application was not granted. She was entitled to leave her decision as to whether she would move open, pending the outcome of the application.

Moreover, it would have been an error for the judge to consider her willingness to move with or without the child . Had he done so, he would have placed the mother in what is referred to as a “ double bind”: a parent can either appear to be putting their own interests ahead of their child, or risk undermining the strength of their relocation application. Appellate courts in Canada have long discouraged trial judges from placing parents in a double bind, including this Court in N.T. v. R.W.P. , 2011 NLCA 47 , 309 Nfld. & P.E.I.R. 350 , at paragraphs 8 to 10 .

Barendregt has now clarified that courts should not consider how the outcome of a relocation application would affect either party’s relocation plans (paras. 136-140, 154). [ 22 ] In

summary, the judge considered the parenting scenarios that were presented to him: the two options for parenting proposed by the mother and the status quo parenting arrangement proposed by the father. He did not err by failing to consider other possible outcomes, including the mother relocating without the child.

ISSUE 2: Did the judge err by placing undue emphasis on the parenting arrangement and family environment during the period from when the relocation application was filed (November 2020) until the date of the hearing (May 2022)? [ 23 ] The judge considered both the existing and historical parenting arrangements for the child. He considered the child’s relationship with his father, his father’s partner and her child, and with his mother, her husband and their child. He also considered the child’s relationship with his grandparents, particularly his maternal grandmother in St.

John’s and his paternal grandfather in the father’s community (Decision, at paras. 54-60). He recognized that the mother was the primary caregiver for the first four years of the child’s life. He considered that for more than two and a half years immediately before the hearing, the child had lived in a shared parenting arrangement on a week-about basis.

He found that both homes provided stable, nurturing family environments that met the child’s needs (Decision, at paras. 61-64). [ 24 ] The judge found that the mother ceased to be the primary parent when the parents transitioned to week-about shared parenting (Decision, at para. 71). The mother disputes this finding. Although she acknowledges that the judge was required to consider both the historical and existing parenting arrangements, and the child’s relationships with his family members, she objects to the weight he gave the factors.

The mother submits that the judge should have put greater emphasis on her relationship with the child as the primary caregiver. [ 25 ] I would not interfere with the judge’s finding that the mother and father were co-parenting the child and that the mother was no longer the primary parent. The judge gave significant attention to this issue, and carefully reviewed the evidence supporting his conclusion (Decision, at paras. 69-78). No palpable or overriding error or serious misapprehension of the evidence has been demonstrated in the judge’s analysis and conclusion on this point.

Because he found that the mother was no longer the primary parent, he did not give her views any greater weight than those of the father in making his decision. In shared parenting arrangements, both parents’ views are entitled to great respect in an assessment of the child’s best interests ( Barendregt , at para. 119 ). [ 26 ] Nor would I interfere with the judge’s weighing of the factors. The judge conducted an appropriate fact-specific inquiry and applied the correct law.

Although the judge did not cite Barendregt , he focused on the crucial question of whether relocation was in the child’s best interests and had regard to the child’s physical, emotional and psychological safety, security and well-being. It was entirely reasonable for the judge to give considerable weight to the stable, shared parenting environment established over the two and a half years immediately before the hearing.

The judge found that the child had thrived under this arrangement and there was ample evidence supporting his conclusion: [100] Under the current arrangement, both parents have equivalent contact with the Child, both in terms of quality and quantity. The Child experiences the benefit of both parents participating in weekday and weekend parenting routines and/or activities every second week. The Child has thrived under this arrangement over the last two and a half years.

He is happy and looks forward to his time with both parents. [ 27 ] I do not accept that the judge placed too great an emphasis on the child’s relationship with friends and other family members. The judge placed greatest emphasis on the child’s relationship with his parents.

The judge considered impacts of the relocation on other relationships, including with extended family and friends, but did so in a reasonable and measured way (Decision, at paras. 113-116). [ 28 ] The mother is essentially asking this Court to reweigh the factors relevant to relocation, which is inconsistent with the standard of review for relocation applications. The judge’s weighing of the evidence and discretionary determinations are due deference because he made no material error, serious misapprehension of the evidence, or error in law.

ISSUE 3: Did the judge err by misapprehending or ignoring material evidence? [ 29 ] The mother alleges several errors in the way the judge considered the evidence. [ 30 ] First, the mother submits that the judge failed to recognize that she was named as the primary parent in the separation agreement and that the subsequent change to the child’s living arrangements was a change to the access

schedule only, not a change to her status as primary parent. [ 31 ] One of the arguments the mother raised at the hearing was that the terms of the separation agreement permitted her to relocate with the child to St. John’s without the father’s consent. The judge rejected the mother’s

interpretation of the separation agreement and his finding in this regard has not been appealed. In dealing with this argument in his decision, the judge carefully considered the separation agreement. He referred to the provisions in the separation agreement that referenced the mother as the primary caregiver, with “ de facto custody, care and control” of the child (Decision, at para. 4).

[ 32 ] Nevertheless, the judge found that the mother was no longer the primary parent because of changes to the parenting arrangement that the parties made by consent (Decision, at paras. 8, 71). I have already indicated that the judge made no palpable or overriding error or serious misapprehension of the evidence in coming to this conclusion. He reviewed both parties’ positions on the separation agreement (Decision, at paras. 27-32). He did not ignore or misapprehend clauses of the separation agreement.

He found that they were no longer operative because of changes the parties had made by agreeing to an equal shared parenting arrangement. There is no basis to interfere with this finding. [ 33 ] Second, the mother submits that the judge erred by speculating about a scenario for which there was no evidence, and by overemphasizing the importance of maximum contact between the father and the child. The judge wrote: [119] There is no opposition to the fact that the Father plays a significant role in the Child's life and that his parenting time with the Child should be maximized.

This being the case, any risks to maintaining this important parenting relationship should also be considered by the Court. After considering all of the evidence, I am of the view that the Mother's plan introduces a material risk of deterioration of the Father's relationship with the Child down the road. As the Child gets older and becomes more entrenched with friends and school life in St. John's, it is likely that the natural progression towards independence will cause him to view off-school time with the Father as an unreasonable deprivation of his time and activities with friends in St. John's.

As a consequence, he may resist spending weekends and holidays with the Father. If forced, he might resent him for it. While speculative, the Court must consider such risks when comparing competing parenting arrangements, including those associated with relocation.

The current week-for-week parenting arrangement does not present similar risks for the Child's relationship with the Mother, as the last two and half years would demonstrate. [ 34 ] As noted above, the judge not only considered how the mother’s proposed parenting plan of weekends and holidays with the father might impact the child, he also considered that this plan would not be in the child’s best interests as it would result in the child being deprived of substantial amount of weekend and holiday time with the mother, her husband, and his younger brother (Decision, at para. 128). [ 35 ] The judge considered the desirability of maximizing the child’s contact with both parents.

This consideration is sometimes referred to as the “maximum contact principle” and is preferably referred to as “the parenting time factor”. The principle is not absolute and is only significant to the extent that it is in the child's best interests ( Barendregt , at para. 135 ). The judge stated the law on this point correctly (Decision, at para. 99). [ 36 ] He also applied it correctly. He did not place undue emphasis on the child’s parenting time with his father. He carefully considered the importance of both parents having parenting time with the child.

He not only considered the amount of time each parent would have with the child under the proposed relocation plan, but also the quality of that time (Decision, at paras. 117-118). It was entirely appropriate for the judge to consider the possible future impact of the proposed parenting plan. Judges are required to do this on relocation applications. [ 37 ] Third, the mother submits that the judge ignored evidence of the child’s views on the relocation.

In my view, this argument is untenable because there was no admissible evidence of the child’s views. [ 38 ] The mother called the child’s counsellor as a witness and sought to admit a report containing the counsellor’s opinion of the child’s views about moving to St. John’s. The counsellor’s opinion was that the child was reasonably well-informed about what his life would be like living in St. John’s and was enthusiastic about the move. The father opposed the admission of the counsellor’s evidence.

The judge decided to hold a voir dire as part of the hearing, but to reserve his decision about the admissibility of the counsellor’s evidence, or any part of it, and the appropriate weight to be given to it, until his final decision on the application (Transcript, May 2, 2022, at pages 173-175; May 3, 2022, at pages 165-166). This decision was discussed with the lawyers and was within the judge’s trial management power. [ 39 ] In his final decision, the judge held that the counsellor’s opinion evidence was inadmissible (Decision, at paras. 106-112).

The judge gave several reasons for his ruling, one of them being that the counsellor’s opinion was based on inaccurate information and assumptions about the parenting arrangement provided by the mother, specifically that the child would have the same opportunity to see the father and that nothing with the parenting arrangement would change (Decision, at para. 109). [ 40 ] The judge’s ruling on the voir dire was not appealed and the mother has alleged no errors in the judge’s statement or application of the law relating to the admissibility of the counsellor’s evidence.

The judge did not err by failing to consider evidence that he had ruled inadmissible. [ 41 ] Finally, the mother submits that the judge materially misapprehended the evidence when he stated that the mother testified that the father was a “stranger” to the child up until shared parenting commenced (Decision, at para. 70). I cannot agree.

Although the mother did not use the word “stranger” in her direct evidence, she testified that the father and the child had “virtually no relationship” and “no relationship”, and that the child “didn’t know” the father during the first four years of his life and was “fearful of spending time with” him (Transcript, May 2, 2022, at pages 40, 42).

On cross-examination, the mother agreed with the father’s lawyer’s statement that “I think [in] your direct [examination] on Monday you said that he was a stranger to his dad or the dad was a stranger to him and that you just finished saying again, you’ve repeated that the child was fearful.” (Transcript, May 4, 2022, at page 102). The judge did not misapprehend the evidence. [ 42 ] In

summary, there was no material error or misapprehension in the judge’s assessment of the evidence.

ISSUE 4: Did the judge create a reasonable apprehension of bias by asking the father’s lawyer to call the father’s partner and the child’s paternal grandfather as witnesses? [ 43 ] The test to establish that a judge’s conduct gives rise to a reasonable apprehension of bias is whether an informed, reasonable and right-minded person, viewing the matter realistically and practically, and having thought the matter through, would conclude that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly. The onus is on the party seeking to disqualify the judge.

There is a strong presumption of judicial impartiality, and so grounds for the apprehension of bias must be

substantial. The inquiry is highly fact specific ( Wewaykum Indian Band v. Canada , 2003 SCC 45 , [2003] 2 S.C.R. 259 , at paras. 57-60 , 76-77; Cabana v. Newfoundland and Labrador , 2014 NLCA 34 , 356 Nfld. & P.E.I.R. 103 , at paras. 18-21 ). [ 44 ] A judge who excessively intervenes during the examination or cross-examination of witnesses may be perceived as not neutral and give rise to a reasonable apprehension of bias ( O’Keefe , at para. 39 ). However, the mother does not allege that the judge interfered in the questioning of witnesses.

She alleges that the judge created a reasonable apprehension of bias when he asked the father’s lawyer to call two witnesses. [ 45 ] The mother’s allegation must be assessed in context. The mother and the father had requested four days for the hearing but were given five days. The judge wanted to ensure that the evidence would be called within those five days because the court’s docket did not have further dates available until the spring of 2023 (Transcript, May 2, 2022, at page 2).

As the hearing progressed, the judge remained concerned about timing, encouraging the lawyers to be efficient (Transcript, May 3, 2022, at pages 298-301). The mother called four witnesses: herself, her husband, her mother and the counsellor. It took three days to hear that evidence. The father planned to call three witnesses: himself, his partner, and his father.

At the end of the third day of the hearing, the father’s lawyer stated that although it had been her intention to call the father’s partner and his father as her first witnesses, given the goal of finishing on time, she would call the father first to reduce the risk of running out of time for his cross-examination (Transcript, May 4, 2022, at page 228). That is what she did. [ 46 ] The father gave evidence on the fourth day and finished his evidence just before lunch on the last day of the hearing.

At that point, his lawyer indicated that, out of concern for time, the father had decided that he would close his case without calling his partner and his father. His lawyer stated that, due to the concern about time, she had intentionally questioned the father about the topics on which those witnesses were anticipated to give evidence (Transcript, May 6, 2022, at pages 122-123).

The judge indicated that he would like to hear from these two witnesses to assist the court in arriving at a decision in the child’s best interest (Transcript, May 6, 2022, at page 124). [ 47 ] The father’s lawyer reiterated that her concern had been that half a day would not be enough time to hear from both witnesses but that both witnesses were present and available to testify (Transcript, May 6, 2022, at page 126). The judge felt there was sufficient time if the father’s lawyer kept the direct examination pointed.

The father’s lawyer then called the two witnesses. [ 48 ] At no time did the judge direct that the father call the witnesses. Nor did he interfere in their direct or cross-examination. The judge did not know what the witnesses’ testimony would be; it could have been favorable or unfavorable to either side. These were witnesses that the father’s lawyer had already said she would be calling, they were present, and the change in her plan was caused by the time concern.

In these circumstances, I cannot find that a reasonable, right-minded person would conclude that the judge was showing bias or an apprehension of bias. If the witnesses had not been called because of the judge’s concern for time, a reasonable person may have considered the situation unfair because the father would not have had the opportunity to present his intended witnesses. [ 49 ] In

summary, I would not find that the judge’s conduct gave rise to a reasonable apprehension of bias. ISSUE 5: Did the judge deny the mother procedural fairness by limiting the time available for the hearing? [ 50 ] The mother submits that the judge deprived her of a full and fair hearing when he limited the time available for presentation of evidence from the last two witnesses: the paternal grandfather and the father’s partner.

However, I cannot agree because her lawyer was able to conduct a full cross-examination of both witnesses in the time allotted. [ 51 ] The paternal grandfather gave evidence under direct and cross-examination, with both lawyers having the time they required to conduct their questioning. After direct examination of the last witness, the father’s partner, the mother’s lawyer was not immediately ready to start cross-examination.

He requested a five-minute break to discuss with his client and put the judge “on notice” that he believed that he was going to need more time than what was left in the day to conduct cross-examination (Transcript, May 6, 2022, at page 206). The judge allowed a five-minute break but responded that the evidence would be finished that day, and that court would consider running late if needed (Transcript, May 6, 2022, at page 206).

The mother’s lawyer then stated, “I’ll manage whatever time I can, and I can advise the court then if I need more time” (Transcript, May 6, 2022, at page 207). [ 52 ] After the five-minute break, the mother’s lawyer started cross-examining the witness. He continued until he was finished, saying “Thank you Justice that’s all my questions” (Transcript, May 6, 2022, at page 234). He did not ask for more time. The father’s lawyer had sufficient time to conduct a re-examination of the witness.

The judge and the lawyers then discussed the process for and timing of the written submissions to be filed and other issues (Transcript, May 6, 2022, at pages 234-241). [ 53 ] So, although the judge indicated that he was not willing to

schedule more days for the evidence, the mother’s lawyer was not prevented from asking any questions. Her lawyer was clear in his statement to the judge that he had asked all his questions, and there is nothing to suggest that this was untrue or that there were questions that he did not get to ask. In these circumstances, no procedural unfairness has been established. CONCLUSION [ 54 ] In conclusion, the judge applied the appropriate legal principles in determining whether relocating the child was in his best interests.

The judge thoroughly reviewed the evidence, the relevant case law, and considered the appropriate factors in the CLA . He determined that the parents’ rights, interest, or convenience should be considered only to the extent of their impact on the child’s best interests. After considering the benefits and detriments associated with the child's relocation, the judge determined that the benefits did not outweigh changing the current parenting arrangement.

No material error, misapprehension of evidence or error of law has been demonstrated. [ 55 ] Further, no reasonable apprehension of bias arises based on the judge’s conduct of the hearing, either in his interest in hearing from two witnesses tendered by the father’s lawyer or his encouragement to complete the evidence within the scheduled five days. This did not amount to procedural unfairness either given that the mother’s lawyer confirmed clearly that he had completed all his questioning

of the final witnesses. DISPOSITION [ 56 ] For these reasons, I would dismiss the appeal. [ 57 ] As the father has been successful, I would order that he have his costs in this Court on column 3 of the scale of costs. The judge did not order costs in the court below and I would not interfere with his decision. _______________________________ K.J. O’Brien J.A. I concur : _____________________________ D.E. Fry C.J.N.L. I concur : _____________________________ F.P. O’Brien J.A.