Delichte v. Rogers, 2011 MBCA 50

Citation: Delichte v. Rogers, 2011 MBCA 50 Date: 20110627 Docket: AF 10-30-07441 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Madam Justice Freda M. Steel Mr. Justice Marc M. Monnin BETWEEN : KARYN LYNNE DELICHTE ) S. B. Malamud ) for the Appellant (Petitioner) Appellant ) ) B. N.

Rogers ) on his own behalf - and - ) ) Appeal heard: ) March 23, 2011 BRENDAN NOEL ROGERS ) ) Judgment delivered: (Respondent) Respondent ) June 27, 2011 MONNIN J.A. 1 This is an appeal of an order after trial denying an application brought by the petitioner (the mother) to vary a previous order of joint custody of the parties’ son and daughter to allow her to relocate with them to San Diego, California, for the purpose of pursuing her post-graduate education. 2 The parties are no strangers to litigation.

Since the first order of care and control in December 2004, there have been a total of 19 orders made by the Court of Queen’s Bench. The order germane to this appeal is a final order with respect to custody, child support and special extraordinary support granted by consent on October 1, 2007. 3 As a result of an incident which involved alcohol abuse by the respondent (the father) while exercising access with his son, the mother sought a variation to the order. By consent, the visits were suspended by an order dated June 19, 2009.

They were reinstated by the trial judge as part of these proceedings. 4 In accordance with the order made by the trial judge, the father has had access to the son. Counselling for the daughter was also ordered. At the hearing of the appeal, the court was advised that access with the son had been uneventful and that the daughter had met on three occasions with the psychologist agreed upon by the parties. We were advised that that was the number of sessions directed by the psychologist himself. FACTS 5 The parties were married in April 1994 and separated in April 2003. They were divorced in October 2007.

There are two children of the marriage; a daughter, born in April 1997, and the son in April 2001. 6 The marriage was not a happy one. The father had an alcohol problem that he did not acknowledge until recently and which contributed to dysfunctional issues in the family, including an incident of spousal abuse. He now has recognized his problem and within the last year or so has been attending Alcoholics Anonymous, receiving support from that organization.

He appears to have a reasonable prospect of dealing with his alcoholism. 7 After a career as a professional football player, he became involved in financial planning. He was successful in that field, as evidenced by the substantial income he was able to generate over the years. However, due in part to his problems with alcohol, he incurred financial difficulties which led to a bankruptcy. He is currently a discharged bankrupt. 8 It is recognized that the children are currently well adjusted. Since the separation, they have resided with their mother.

She has received support from a sister and her parents, both financially and with childcare. They are both attending private schools in Winnipeg and doing well. Pursuant to the final order granted in October 2007, specific periods of care and control of the son

were given to the father, but no access to the daughter, and she has not visited with her father since 2004. 9 The mother is in her early forties. After high school, she obtained an Arts degree and a certificate in public relations. Sheentered the workforce in the public relations field. After the breakup of the marriage, she returned to university in May 2006 to furtherher education. She was enrolled in an honours degree program in psychology at the University of Manitoba, qualifying for the Dean’shonour list.

She wished to continue in that field to obtain a doctorate in psychology with a specialization as a forensic clinician. Theseparation agreement signed by the parties in October 2007 recognized that her graduate studies were contemplated. 10 In January 2010, the mother applied to the California School of Professional Psychology in San Diego to enroll in a doctoralprogram. While she had considered certain schools in Canada, namely, Dalhousie University in Halifax and Simon Fraser University inBritish Columbia, they did not offer the type of specialty she wished to obtain in forensic psychology.

Her decision to seek post-graduateeducation was supported by her advisor at the University of Manitoba, who testified at the trial. He confirmed that a specialty inforensic psychology was not available at the University of Manitoba. He was of the view that it was not uncommon to seek a post-graduate degree in a different setting and a practice he approved. TRIAL JUDGE’S REASONS 11 The trial judge concluded quickly that there has been a material change in the circumstances affecting the children since thepronouncement of the final order (as contemplated by s. 17(5) of the Divorce Act).

That included the fact that the father had not had anyperiods of care for the daughter since the pronouncement of the order in October 2007, notwithstanding that there was provision for it atthat time, as well as the impending move by the mother to San Diego. Having done so, he then proceeded, in accordance with the leadingSupreme Court case of Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27, to consider the best interests of the children inassessing the benefits and detriments of allowing them to move from Winnipeg to San Diego with their mother. 12 The trial judge concluded that it was in the children’s best interests that they remain in a stable and nurturing environment inWinnipeg, staying in their respective schools, and having the benefit of the friendship of their peers. He found that the onus was uponthe mother to present a plan that established, within reason, that the move to San Diego served the best interests of the children.

Hefound that she had failed to do so on a balance of probabilities. 13 The trial judge then outlined the factors he took into consideration to reach that conclusion, namely: (1) that the move would not enhance the relationship between the children and their father in light of the mother’s past conduct; (2) that the move would likely not bring a financial benefit to the mother and therefore to the children; (3) the likely disruption caused to the children by their removal from their schools and community to an unknown situation; (4) the lack of evidence of the financial viability of the mother pursuing her studies in San Diego; (5) a lack of evidence with respect to the mother being able to satisfy immigration requirements; and (6) the lack of evidence that the children had developed a reasoned positive opinion as to their move to San Diego. 14 While having concluded that it was not in the children’s best interests to move, he indicated that the mother should not feelthat she was held hostage in Winnipeg.

It was up to her to present a plan that responded to the deficiencies of her present proposal. Hetherefore dismissed her application. POSITION OF THE PARTIES 15 The mother argues that the trial judge erred in law by failing to correctly apply the principles set out in the Gordon decisionin the following manner. In the first instance, she argues that the trial judge did not consider all of the principles enumerated at para. 49of the decision; more particularly, the obligation to treat the mother’s decision to relocate with an appropriate amount of deference.

Secondly, the mother argues that the trial judge misapprehended the evidence and did not properly apply the factors to be considered asset out in para. 49, including the lack of a meaningful relationship between the children and their father. In her submission, the “factors”used by the trial judge were not appropriate considerations under the principles set out in Gordon. 16 The mother further argues that, while the principle of maximum contact set out in s. 17(9) of the Divorce Act is an importantfactor, it is not an irrebuttable presumption.

Given that there was no access to the children prior to the trial judge’s decision, that factshould have been given greater consideration than it was. 17 The father argues that the trial judge committed no error in law, properly considered the evidence, and did not misdirecthimself. He submits that the trial judge, after properly considering the evidence, found that the mother’s plan was lacking in substance,with no evidence that the move would assist her in meeting the needs of the children.

On the other hand, he properly found that themove would disrupt the children’s current schooling and affect the ability to foster maximum contact with their father. The trial judgeproperly applied the principles of Gordon, and did not misdirect himself as to the intent of s. 17(9) of the Divorce Act. The trial judge’sview that a relationship between the father and his son was both possible and to be encouraged is consistent with his decision to reinstateperiods of care in light of the father’s evidence as to his ability to deal with his problems.

This fact was therefore relevant for the trialjudge’s determination as to the advisability of the move. STANDARD OF REVIEW 18 The standard of review in custody cases is not disputed. With respect to this type of order, an appellate court should notdisturb the decision in the absence of a material error, a serious misapprehension of the evidence or an error of law. See Hickey v.Hickey, (SCC), [1999] 2 S.C.R. 518. As noted by Justice L’Heureux-Dubé in that case (at para. 10):

…. [Trial judges] must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the parties and to their children. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed. In Van de Perre v.

Edwards , 2001 SCC 60 , [2001] 2 S.C.R. 1014 , Justice Bastarache affirmed that the basic principles of appellate review were fully applicable to child custody cases. LAW 19 Mobility cases, i.e., cases where a parent applies for a change in a custody or access order because of an impending move, are governed by the seminal case of the Supreme Court of Canada in Gordon . In that case, McLachlin J. (as she then was), speaking for the majority of the court, summarized the law as follows (at para. 49): ... 1.

The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. 2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4.

The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest[s] of the child in the particular circumstances of the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly, the judge should consider, inter alia : (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

20 The Gordon decision has received substantial judicial attention and has been considered by appellate courts throughoutCanada. In his paper entitled “Ten Years After Gordon: No Law, Nowhere” (2007), 35 R.F.L. (6th) 307, Professor D.A. RollieThompson indicates that, over the ten years since the decision, nearly 70 reported decisions in the appellate courts could be found.

Heopined that the appellate courts have been highly interventionist in appeal cases, yet have not developed much in the way of refining thelegal principles set out by Gordon. 21 Appellate decisions, however, do confirm that, while there is no legal presumption in favour of the custodial parent, thatparent’s decision is entitled to substantial deference.

As noted by Justice McLachlin in Gordon (at para. 48): While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the childand is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most seriousconsideration.

The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring animproper motive reflecting adversely on the custodial parent’s parenting ability. 22 Once a material change in circumstances justifying a variation has been found, the court must proceed to analyze what is inthe best interests of the child. That analysis must be done in light of the circumstances of the new location and its impact on the child,giving due weight to the custodial parent’s views. As noted by Rowles J.A. in Orring v.

Orring, 2006 BCCA 523, 32 R.F.L. (6th) 253(at para. 55): There is nothing in Gordon v. Goertz to suggest that possible negative consequences from a proposed relocation should undermine theweight given to a custodial parent’s views, contrary to the judge’s analysis in this case. Both Lowcay v. Lowcay [2000 BCCA 447, 8R.F.L. (5th) 313], and Ganson v. Ganson (2003), 2003 BCSC 544 , 121 A.C.W.S. (3d) 1097; 2003 BCSC 544 (B.C.

S.C.)confirm that mobility cases inevitability involve some degree of uncertainty about what may happen in the future following a relocationbut that alone is no reason to disregard the custodial parent’s views about the potential benefits. It is true that economic prospects maydissolve, relationships may fail and educational opportunities may disappoint.

Nonetheless, barring an improper motive reflectingadversely on the appellant’s parenting ability – and there was no such improper motive suggested here – the judge ought to haveaccorded great weight to the appellant’s views about the prospective benefits of the relocation. 23 In the analysis, the maintenance of the status quo must not be overemphasized. As stated by Huddart J.A. in L.(S.S.) v.

W.(J.W.), 2010 BCCA 55, 81 R.F.L. (6th) 38 (at paras. 12-13): In my view, the trial judge fell into what is an easy error in difficult parental mobility cases, to prefer what is seen as the status quo, if, inresponse to the other parent’s proposed parenting plans, the parent seeking to move offers what some judges have called the“third option” of not moving, if moving means leaving the children behind. The status quo is allowed to supersede the balancing ofother relevant factors. That is not the correct approach: see Chera v. Chera, 2008 BCCA 374 (B.C. C.A.) at para. 60; Spencer v.Spencer, 2005 ABCA 262 (Alta.

C.A.) at paras. 15-19. This error led him to make inconsistent orders, which is the error this Courtfound the trial judge to have made in Nunweiler v. Nunweiler, 2000 BCCA 300 (B.C. C.A.) at para. 30, and comparable to that made inFalvai v. Falvai, 2008 BCCA 503 (B.C. C.A.). Opting to maintain what is perceived as the status quo, without more, avoids the difficult decision of having to prefer one parent’s planto the other’s, without acknowledgment that the status quo is ephemeral in any family.

In this case, the mother’s income was declining;the father’s job had terminated in December; and the emotional attachment the older child in particular had formed with the father’s thirdchild was disrupted when that young girl returned with her mother to Calgary to a new relationship after her parents’ unsuccessfulattempt at reconciliation in the fall of 2008. The reality of the mother’s new relationship and employment opportunities were essentiallyignored, as was the fourth option put forward by the mother, that the father move to south western Ontario so the children could continueto enjoy two proximate homes.

See also Karpodinis v. Kantas, 2006 BCCA 272 at para. 21, 27 R.F.L. (6th) 254, and Spencer v. Spencer, 2005 ABCA 262 at para. 19,15 R.F.L. (6th) 237. 24 The analysis should not be undertaken on the premise that one party bears the onus, but rather that the court must determinewhat is in the best interests of the child. As noted by Justice McLachlin in Gordon (at para. 47): …. The parent seeking the change bears the initial burden of demonstrating a material change of circumstances.

Once that burden hasbeen discharged, the judge must embark on a fresh inquiry in light of the change and all other relevant factors to determine the bestinterests of the child. There is neither need nor place to begin this inquiry with a general rule that one of the parties will be unsuccessfulif he or she fails to satisfy a specified burden of proof. [emphasis added] 25 Also, as recognized in Gordon, and in numerous cases that follow it, the requirement of s. 17(9) that contact with bothparents be encouraged is not an absolute. It must be subject to the best interests of the child. See Bjornson v.

Creighton (2002), (ON CA), 62 O.R. (3d) 236 at para. 34 (C.A.). ANALYSIS 26 The ratio of the trial judge’s decision can be found in the following paragraph, where he states:

While recognizing that [the mother] should be encouraged to pursue post graduate work and that it is recommended that she study outside of Manitoba, she has failed to present a plan that establishes on a balance of probabilities that it is in the best interests of [K] and [R] to move at this time to San Diego. It is currently in the children’s best interests that they remain in their stable and nurturing environment in Winnipeg . [K] and [R] are doing well in their respective schools and have the benefit of the friendship of their peers.

For the children to move, [the mother] has the onus of presenting a plan that establishes that relocation serves the best interests of [K] and [R]. She has failed to satisfy this onus on a balance of probabilities. 27 In my view, the trial judge’s reasons indicate that he misapprehended the evidence by giving undue negative weight to the mother’s current financial situation and not affording her views the respect that they were owed.

He also erred in requiring her to satisfy an onus that the move was in the best interests of the children as opposed to conducting an assessment of the relative benefits and detriments of the move in order to reach a determination as to where their best interests lay. 28 While the mother’s evidence on the benefits of pursuing a degree in clinical psychology is incomplete, comparing the professional status of a licensed clinical psychologist with that of an assistant professor, as the trial judge did, is not a fair comparison.

As in many professions, a clinician will garner a more varied experience and the likelihood of a greater degree of potential professional development. This would lead to a greater chance of higher remuneration. There is no evidence that the mother was not pursuing a legitimate career objective in enhancing her education or that she was doing so for an improper motive. 29 A meticulous assessment of all of the financial implications and immigration issues of the move to the mother’s household, as considered by the trial judge, was, in my view, beyond the role of the court.

While greater scrutiny may be warranted where there is a suggestion that the move is for an improper motive, such as to hinder access by the non-custodial parent, that was not the stated reasoning of the trial judge. There was evidence by the mother’s immediate family, namely her sister and her parents, that financial support, in a very significant fashion, was available. There was also an indication of financial support being available through financial institutions.

The trial judge misapprehended the evidence of the financial benefits and failed to take into account relevant evidence with respect to the ability to meet the financial concerns expressed. 30 In Orring , the British Columbia Court of Appeal reviewed an order restraining the mother of two children from changing the residency of the children from Kelowna to Bowen Island, both within British Columbia, over the objections of the father. Her motivation was the result of a new relationship with someone at the new location.

The trial judge had refused the order as he concluded there was no reason to interfere with the existing custodial arrangement. In overturning the decision and allowing the move, Rowles J.A., for the court, stated as follows (at para. 52): In my opinion, the judge erred when he dismissed the appellant’s views that moving to Bowen Island would provide both enhanced financial and emotional security for both herself and the children, immediately after he determined that her rationale for moving was unconnected to parenting ability.

There is no indication in the judgment that the appellant’s decision to relocate was motivated by anything other than sound and balanced family and economic reasons.

Indeed, the judge found that the appellant has been successful in her effort of fulfilling her role as primary caregiver. 31 In this case, while the evidence of the potential financial benefit to the mother was not the strongest, there was nothing to contradict her evidence that, in order to successfully pursue her chosen career with its consequential benefits, additional education away from the City of Winnipeg was required, a fact recognized by the trial judge. She was the custodial parent and there was no realistic prospect of a change of custody being in the best interests of the children.

Given those facts, the trial judge should have given greater respect to her views as to the reasonableness of her plans. 32 The desire to enhance the relationship between the children and their father was one of the considerations that led the trial judge to reject the mother’s application. There is no doubt that the father has made great progress in dealing with his problems of alcoholism and, to a lesser extent, the impact it has had on his financial ability. The indications are that his relationship with his son has been re-established to some degree.

A move to San Diego will affect his ability to maintain that relationship. However, one must consider the fact that there is no existing relationship with the daughter, and the prospects of it rekindling are remote. The evidence of Dr. Gutkin, who interviewed the children, was that the daughter does not wish to have any relationship with her father. She is presently 14 years old, an age where it is unlikely that one could be imposed upon her. While counselling may assist in creating a desire for it, that is again speculative. 33 While maximum contact is to be promoted, it is not an absolute.

The reasonableness of the mother’s desire to pursue further education, when coupled with the fact that she is the custodial parent and should remain so, lead to the conclusion that her departure should not be held hostage to the renascent relationship between the father and his son, especially if there are other means of allowing this to occur. 34 The mother, while contesting the change to access at the trial, indicated that if access was agreed upon or ordered by the court, she was willing to facilitate contact, whether in San Diego or by arranging for visits in Manitoba.

There is a concern here, given that in November 2006, the mother was found in contempt for breaching the provisions of previous orders respecting the father’ s periods of care and control. On May 8, 2008, in a strongly worded decision of Justice Little, she was sentenced to a period of incarceration for 45 days, the sentence being suspended for a period of three years from that date on the condition that she not breach any orders of the court.

There have been no further findings of any breach by the mother. 35 The trial judge took the position that there would be no reference during the trial nor would he consider the decision of Justice Little in his findings. He should not have taken that view. The reasons of Justice Little with respect to the finding of contempt form part of the record which could be considered by the court in assessing the best interests of the children (on the use of previous judicial proceedings, see the recent decision of the Supreme Court of Canada in British Columbia (Attorney General) v. Malik , 2011 SCC 18 at paras. 46-47 ).

Notwithstanding that decision, I am of the view that the possibility of maintaining a long-distance relationship between the father and the son exists. While the contempt finding does give cause for concern, the events leading to that decision occurred over five years ago, as noted by the mother’s counsel on argument. Since that time, the mother has abided by the terms of the orders. The concerns raised as to the mother not abiding by access orders are not as significant as may have been the case a number of

years ago. In any event, this is not an issue which the trial judge focussed upon in reaching his decision that access to the children by the father would be curtailed by the move. 36 Given that there has been no access to the daughter for close to five years, the hope that there will be a renewed relationship is, as noted, speculative. The relationship with the son could be fostered in a number of ways. The father, while currently undergoing substantial financial difficulties, has the potential for earning significant income.

This would allow him to exercise access rights outside of the jurisdiction where necessary. The mother has also indicated that she was willing to return the child to the jurisdiction for purposes of access if ordered by a court. All these are considerations which can be taken into account in framing an appropriate access order. 37 Having considered the status quo as being in the best interests of the children, the trial judge did not turn his attention to how maximum contact could be achieved in a scenario where the mother was allowed to relocate.

That he should have done, as it was a relevant part of the inquiry. CONCLUSION 38 I have concluded that when the principles in Gordon are properly applied to the facts, including giving appropriate respect to the custodial parent’s views as to the positive effects of the move and its feasibility, the application should have been granted, subject to conditions which would facilitate and maintain access by the father. Those conditions should include specific visitation or access rights by the father, whether in Manitoba or San Diego.

If the parties cannot agree as to what those access provisions should be, the matter should be referred to the trial judge for a determination prior to the children moving from the jurisdiction. 39 In these circumstances, I would allow the appeal with costs here and in the court below. J.A. I agree: C.J.M. I agree: J.A.