C. (S.) v. C. (A.S.), 2011 MBCA 70

Citation: C. (S.) v. C. (A.S.), 2011 MBCA 70 Date: 20110818 Docket: AF10-30-07438 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: ) A. J. HogueC. (S.) ) for the Applicant ) (Petitioner) Applicant ) E. G. Rice ) for the Respondent- and - ) ) Chambers motion heard:C. (A.

S.) ) May 5, 2011 ) (Respondent) Respondent ) Decision pronounced: ) August 18, 2011 STEEL J.A. 1 This is a motion to extend the time for service of a notice of appeal and for an extension of time to perfect that appealby filing the factum and appeal book. 2 Under the Court of Appeal Rules (Civil), the time for filing and service of a notice of appeal is 30 days from the timeof filing the judgment being appealed (see Rule 11(1)). 3 The father seeks to appeal a judgment signed on September 8, 2010. The notice of appeal, filed on October 5, 2010,was within the time period provided in the rules.

However, it was not served on the mother until six months later, on March 4, 2011. 4 The law governing the extension of time to perfect an appeal or serve a notice of appeal is the same as the lawapplicable to seeking an extension of time to file an appeal. See Branum v. Branum (1998), (MB CA), 129 Man.R.(2d) 142 at para. 9 (C.A.), Twaddle J.A. (in chambers). The criteria are well known.

Applicants must demonstrate that: 1) there was a continuous intention to appeal from a time within the period when the appeal should have been commenced; 2) there is a reasonable explanation for the delay; 3) there are arguable grounds of appeal; and 4) any prejudice suffered by the other party can be addressed. See Zalizniak v. Zalizniak, 2006 MBCA 161, 212 Man.R. (2d) 114 (in chambers), and Bohemier et al. v. CIBC Mortgages Inc., 2001MBCA 161, 160 Man.R. (2d) 39. 5 Even if not all the criteria are satisfied, the court may still grant the extension if it is right and just in all of thecircumstances.

See Hunter v. Hunter, 2000 MBCA 134, 150 Man.R. (2d) 291 (in chambers). 6 In this case, the mother conceded that the father had a continuous intention to appeal and that there was a reasonableexplanation for the delay. The father commenced the appeal without counsel and did not know that he had to file his factum and appealbook within a certain period of time, nor did he realize that he, and not the court staff, was responsible for serving the material on themother. 7 My concern here is whether there are arguable grounds for appeal and the prejudice that may be suffered by the child

involved in this custody dispute. 8 The test of merit does not require the father to show that the appeal will probably succeed. All the father need showis that the points to be argued have a reasonable chance of success. An arguable ground of appeal has been defined as a realistic groundwhich, if established, appears of sufficient substance to be capable of convincing a panel of the court to allow the appeal (Coughlan et al.v. Westminer Canada Ltd. et al. (1993), (NS CA), 125 N.S.R. (2d) 171 at para. 11 (C.A.) (in chambers)). See alsoSentinel Self-Storage Corp. v.

Dyregrov et al., 2003 MBCA 136 at paras. 23, 29-33, 180 Man.R. (2d) 85, Steel J.A., concurring in theresult. 9 In many civil cases, extensions of time are often granted quite readily, especially where the party seeking theextension was not represented by counsel and the delay is not significant or prejudicial. However, in cases involving children, there aresome special concerns. 10 The question of arguable grounds should be considered within the context of the best interests of the child, a paramountconsideration in custody disputes.

Delay and uncertainty are of particular concern in child custody proceedings where an expeditiousresolution and finality are in the child’s best interests. Such a consideration is no different than considering whether prejudice wouldresult to the other party, except here, that party is not the opposing party, but the child involved in the case. See Armstrong v. Armstrong, 2006 ABCA 228 at paras. 40-41, 30 R.F.L. (6th) 279 (in chambers) and Hart v.

Hart (1997), (BC CA), 92B.C.A.C. 158 at para. 9 (in chambers). 11 Ever since their separation in 2004, these parties have had a long history of disputes regarding the custody of their threechildren. In 2006, a psychologist, Dr. Golfman, and a social worker, Ms Frankel, completed an extensive assessment of the situation. Their report and testimony at trial formed an important basis for the judge’s conclusion at the 2008 trial that the father was deliberatelyalienating the children from their mother.

While the judge ordered primary care and control to the father, she did so on condition that thefather hire a reunification expert and encourage access between the children and their mother. 12 That access did not take place. At a second trial in 2010, the reunification expert, Ms Mercedes, testified that the fatherwas not cooperating. The judge changed custody of the youngest child from the father to the mother. It is this judgment that is thesubject of the notice of appeal. 13 This child, who was 11 years old at the time of the 2010 judgment, had not seen her mother for approximately fiveyears.

As a result of that judgment, the child was taken from her father and siblings in May 2010, spent four months in foster care whilegradually getting to know her mother again, moved to a new school and a new home and is presently undergoing counselling and seeingher father and siblings under a supervised access regime. It is now more than a year later. Before she is subject to even the possibility ofmore uncertainty as a result of a pending appeal, there should be a close examination of the grounds of appeal. 14 There are three issues under appeal.

First, the father seeks to appeal the decision giving sole custody of the youngestchild of the marriage to the mother and supervised access to him. Second, he objects to both the quantum of the child support payable bythe mother and the child support arrears arrived at by the trial judge. Third, he objects to the decision to offset the costs owing by him tothe mother arising from the first trial against the arrears of child support. Custody - background 15 In order to determine whether there are arguable grounds of appeal, it is necessary to review the facts in this lengthy,acrimonious custody dispute.

Those facts are best summarized by the trial judge in her 2008 decision on costs (2008 MBQB 250 atparas. 3, 5-7): When the parties separated in June 2004 the children were 11, 9, and 5 years old. By November 2004 when the proceeding wascommenced, the respondent (the father) had begun a course of conduct aimed at manipulating the children into completely rejecting thepetitioner (the mother).

Despite a series of court-ordered interventions including interim orders for access, supervised access,assessment, and therapeutic mediation, the father successfully obstructed the mother’s attempts to have a relationship with the children. By the time the trial commenced, four years after the proceedings began, the children were adamant in their refusal to participate even insupervised access.

After two weeks of trial it was clear that the extent of the estrangement between the children and the mother was not justified by themother’s actions, but was a result of the father’s deliberate plan to alienate the children from their mother. The father was seeminglyoblivious or indifferent to the emotional toll his manipulation, obstruction of access and derogatory comments took on the children. By the time this matter came to trial, the children were so afraid of their mother that the mother recognized that an immediate reversal ofcustody would be too traumatic to the children to endure.

Her plan was to have the children placed into foster care pending intensivetherapeutic intervention, and an eventual placement in her physical custody. The father’s plan was to move with the children out of theprovince after the trial. He offered no plan to reconcile the children with their mother. When pressed he said that he thought the childrenshould see their mother under supervision. However, he had undermined and sabotaged the interim orders for supervised access.

… [A]fter weighing the risks and benefits of placing the children in foster care I decided that placing the children in foster care was not in their best interests given their ages, their emotional states, and the available placement and therapeutic resources. I ordered that the children remain in the father’s physical care subject to several firm conditions including mandating the children’s participation in therapeutic counseling with the goal of reconciling the children with their mother and having them spend time in her care. 16 This “therapeutic access re-introduction process” was not successful.

In May 2010, the custody issues were before the court again by way of petition for divorce. In their petitions, both parties sought custody of the three children. The mother also applied for a review of the 2008 order made pursuant to The Family Maintenance Act , C.C.S.M., c. F20 . 17 At the 2010 trial, the mother decided that, given the older children’s ages (17 and 15), she would not pursue a change of custody for them, only for the youngest daughter.

The trial judge awarded sole custody of the youngest child to her, with supervised access to the father. 18 The father argues that in doing so, the trial judge erred in the exercise of her discretion and erred in her findings and appreciation of the evidence. 19 In particular, it is submitted that the judge did not give the wishes of the child sufficient weight and ignored the allegations of abuse contained in letters written by the children in 2009. The father argues that the court’s finding that he did not cooperate in facilitating visits between the mother and children was wrong.

He maintains that he did exactly what he was ordered to do, but that he could not force the children to visit their mother against their will. The father also argues that the expert’s opinion as to the impact of parental alienation on children contains a fatal flaw. All the evidence indicates that these children are happy and healthy and are suffering no consequences from their lack of contact with their mother. Last, the method chosen by the judge to implement the change of custody was too traumatic.

Instead of taking the child from the father immediately, the court should have ordered a gradual integration with the mother. 20 A review of the evidence and the reasons for decision of the trial judge reveals that none of these arguments have merit. - wishes of the child 21 The judge very clearly considered the wishes of the child. She ordered that the child be interviewed by Dr. Golfman and Ms Frankel (the experts involved in the original assessment) as part of their updated assessment. She considered that assessment and Ms Frankel’s evidence with respect to the wishes of the child.

The judge stated as follows: I have given serious consideration to [A.’s] views in this matter. At this point, having been subjected to virtually years of psychological pressure, [A.’s] feelings are no doubt sincere. She tells her father that she does not want to see her mother. She tells other people this because she’s living in her father’s home and does not want to cause problems for herself, for her father, for her siblings by seeing her mother, and also because she has been taught to fear her mother. This is not a case of rational estrangement. …. [A.] just turned 11.

Because of the psychological pressure and the environment in which she lives, she cannot make decisions that are in her best interests. That is the court’s responsibility. 22 The judge’s findings on this point are confirmed by both Ms Frankel and Ms Mercedes.

For example, Ms Mercedes indicated in her report that the child seemed to “be hungry” for a relationship with her mother, but was wary of hurting her father and his family. - alleged abuse by mother 23 The letters written by the children in 2009 alleging abuse at the hands of their mother were submitted into evidence by the father at the 2010 trial and the father argues that the judge erred in failing to give adequate weight to his argument that the children’s antipathy to their mother is based upon their having “witnessed the serious abuse by [their] mother.” 24 First, those letters were submitted as evidence of state of mind, not for the truth of their contents.

Second, the allegations in the letters were not allegations of new abuse, but rather referred to actions that occurred before the parties separated in 2004, five years before the letters were written by these children. The judge very clearly considered and adjudicated upon those allegations in the 2008 trial. 25 In her 2008 reasons for decision, the trial judge considers the allegations of abuse made by all three children against their mother. The children were interviewed by another expert, Mark Berkowitz, about their relationship with their mother and their wishes.

In his report, he indicates that the elder daughter told “she was ‘kind of’ scared of her mother because she might slap her during the visit” ( 2008 MBQB 105 at para. 7 ). However, N., the elder daughter, said this had not happened during a visit. She claimed her mother pushed her several times during one of the visits. N. also told Mr. Berkowitz that she felt that if she stopped visiting with her mother, her mother would return home.

When asked if this feeling was independent or if others had talked to her about this, N. would not respond. 26 Moreover, the judge noted that the allegations of abuse seemed to change over time. When meeting with another

therapist later in 2007, that therapist concluded (at para. 60): “The children’s statements about their mother have been distorted beyond their earlier statements and appear to be influenced by others.” 27 The assessors concluded that (at para. 28): At the outset of evaluation, A.S.C. volunteered that she had become upset and had hit H. on two occasions. When A.S.C. was receiving counseling at the women’s shelter about domestic abuse, she reported these incidents herself to Child and Family Services.

The assessors concluded that A.S.C. seemed very unlikely to be an individual who would consistently abuse her spouse and children.

She seemed genuinely fearful of S.C. 28 Also at the 2008 trial, evidence was received from a social worker from Child and Family Services, who, after investigation, concluded that it had no concerns that the mother was abusive prior to separation. 29 There was no basis for the judge to reconsider these allegations at the 2010 trial. - father`s conduct 30 Next, the father argues that the judge erred when she concluded that he had not cooperated in the reconciliation of the mother with the children as required in the conditions contained in the 2008 judgment.

Once again, the evidence is fulsome in support of the judge’s findings and the exercise of her discretion. 31 As mentioned earlier, besides the mother and father, the reunification expert, Ms Tricia Mercedes, who had been hired to attempt to establish contact between the children and their mother gave evidence. As well, Ms Frankel and Dr. Golfman, the assessors who provided the initial report, provided an updated assessment.

Ms Frankel was examined on that report at the trial. 32 In 2008, the judge ordered primary care and control of the children to the father on condition that he participate in and cooperate in a plan of therapeutic reconciliation. The plan required that he take a number of steps, such as facilitating counselling and not talking negatively of the mother in front of the children. In particular, it ordered that the therapist who was to intervene with the children was to be given a copy, by the father, of both the 2006 assessment by Dr. Golfman and Ms Frankel and the court’s reasons for judgment.

The judge specifically stated that she would reconsider moving A. from her father’s home if the orders made in her judgment were not complied with. This judgment and the conditions in it were not appealed. 33 The purpose of the trial in 2010 was not to review the previous findings, but rather to determine whether the conditions upon which the father had been granted primary care and control had been fulfilled. To argue, as the father has, that the expert hired to assist the family with reconciliation should not be allowed to read or that she was biased because she did read Dr.

Golfman and Ms Frankel’s 2006 report or the judge’s 2008 reasons for decision makes no sense to me. 34 When Ms Mercedes testified, she explained the difference between her two written reports. In the first report, she was asked to evaluate the father’s home. She did so and found it to be a good home and the children well cared for. Her second report is directed toward attempting to reconcile the children with their mother.

Her conclusion, which she repeated in her testimony at trial, was that while the older children were very angry, the youngest child was sad and missed her mother. 35 Moreover, a reading of Ms Mercedes’ s report and her testimony at trial reveals that Ms Mercedes did not need to be influenced by the previous reports. Her observations led her to her conclusions. She testified that the father was still very angry and seemed incapable of refraining from making degrading remarks about his ex-wife and focussing his resentment on her.

The extended family, with which the children were living, seemed more concerned with issues of property and jewelry than the children. 36 In her reasons for decision, the judge summarized the father’s attitude as follows: …. His attitude towards the role of a mother is summed up by his statement, “birth don’t mean nothing, women die with birth, and the kids still grow up.” On cross-examination, he admitted he does not see any importance of a mother.

He referred to [the mother] as his cancer and said she was the cause of his other physical ailments, including his asthma. …. 37 The judge found that, by his comments, he had improperly reinforced his younger daughter’s unjustified fears of her mother. The judge found that the father’s course of conduct of manipulating the children into rejecting the mother and obstructing her attempts to have a relationship with her children had not changed significantly since the parties separated in 2004 and certainly had not changed since the first trial in 2008.

Her credibility assessment of the father was supported by the expert reports. 38 With respect to the argument that the children did not seem to be showing any effects of parental alienation, Ms Frankel testified that the consequences often show up in adulthood. “… I’ve concerns about what, what is going on with [A.] that may cause or result in maladjustment, in considerable distress for her in her adult years. …” Ms Frankel concluded that the father was continuing to alienate A. from her mother and that the father did not “have the capacity for insight and compassion for understanding the children’s needs.” - less drastic remedy?

39 The father also argued that the judge should have considered a less drastic remedy than a change of custody. In fact, the judge did consider a less drastic remedy in 2008. She chose a less drastic remedy at that time despite the recommendation of the assessors who stated in their 2006 report that, “We are advising the court that we are extremely concerned that [the father] may attempt to undermine any decision by the court to reconcile the children with their mother.” 40 In choosing the remedy she did in 2010, the trial judge made findings of fact that were certainly open to her based on the evidence adduced.

She found that A. continued to be pathologically alienated from her mother and this was not in her best interests and harmful to her. She found that the therapeutic intervention she had ordered after the first trial had not been successful.

She found that, based on the evidence, if she changed custody, the mother was willing to maximize contact with both parents and extended family, while the father was not. “… [The father] has not demonstrated a consistent or credible willingness to support [A.’s] relationship with her mother.” 41 In her decision, the judge accepted the recommendations of the experts and the plan put forward by the mother. 42 Ms Mercedes testified that the child’s reconciliation with her mother was impossible while she was living with siblings and adults that articulate their hate for the mother and hold her responsible for the entire dissolution of the family. 43 In their updated report, Ms Frankel and Dr.

Golfman stated that the child remained pathologically alienated from her mother as a result of the actions of her father initially, and, subsequently, the environment with her older siblings and extended family. Their opinion was that nonetheless, there was an emotional openness and tenderness about the child that may allow her to reconcile with her mother, once she was away from the influence of her father and his family.

They recommended a process of gradual reunification with the mother over a period of four months, with a variety of stages to the process, culminating in final custody in the hands of the mother and supervised visits with her father and siblings. 44 On the one hand, the mother offered a plan, supported by Ms Frankel, Dr. Golfman and Ms Mercedes, where she would follow the experts’ recommendations by allowing her daughter to first live in a neutral setting before moving in with her.

She testified that she would follow all recommendations regarding access with the father and would allow her daughter to have a relationship with the rest of her family. The father, on the other hand, offered no plan other than that the status quo prevail, a status quo where the mother had no access, a situation created by his own conduct. Given this evidence, the judge was entitled to conclude that there did not appear to be any less drastic remedy that had a chance of success.

Quantum of Child Support 45 The judge calculated the amount of child support owed by the mother based on three court orders dated March 16, 2005, June 21, 2008, and January 22, 2010. She calculated the child support that should have been paid up to March 3, 2010, as $23,579. 46 The father argues that the mother failed to disclose her real income and the actual child support that should have been paid according to the child support guidelines was the sum $27,222.

He asks for a retroactive adjustment. 47 First, the father provided no evidence that he sought financial disclosure from the mother and that she failed to provide it. 48 Second, the determination of a retroactive child support variation is discretionary. The trial judge chose to set arrears based on the existing and previous orders, without revising retroactively to account for increases in the income of the payor. She was not asked to do otherwise. The argument was not raised at trial.

In fact, the January 22, 2010 order was by consent. 49 If new evidence has now arisen as a result of recent disclosure, then that should be dealt with by way of a motion to the trial judge and not by way of an appeal. There is no error in principle or misapprehension of evidence here. Child Support Arrears 50 The father argues that in calculating the arrears owing, the judge erred in giving the mother credit for payments without appropriate documentation.

He points to two payments; a direct payment of $562 when, it is alleged, that cheque was returned as a result of insufficient funds and a direct payment that was alleged to have been made to a therapist in payment for her service in the amount of $2,397. 51 The judge carefully reviewed all the documentation with respect to the child support payments made to the Maintenance Enforcement Program, payments made to therapists in lieu of child support, and direct payments made to the father. As a result of her review, she calculated that arrears were owing in the amount of $8,299.50.

She was aware that documentation of the indirect payment had not yet been filed and made her order subject to production. …. There is no document. Mr. Rice said that was an exhibit in the first trial. I do recall that she did pay money to Shannon Cheekie. I looked for the exhibit in the first trial, and was told that they had been returned to Mr. Rice, so you are going to have to -- if that is still an issue I will just need confirmation of this Shannon Cheekie account, which apparently you have, Mr. Rice, but assuming it is $2,397, as testified to by [the mother], the arrears are $8,299.50 as of March 3, 2010.

52 Mr. Rice, counsel for the mother, filed a copy of the letter sent to the father’s counsel attaching receipts for payments made to Shannon Cheekie, the mother’s therapist, in the amount of $2,072, which was the amount included in the final order, instead of $2,397. So, in fact, only approximately the amount for which the mother provided receipts was deducted from the arrears owed. Set-Off 53 The father argues that the trial judge erred in accepting that the parties had agreed to the setting off of the child support arrears against court costs.

He submits that his counsel did not consent to such a set-off. 54 In fact, the May 7th, 2010 transcript reveals that the father’s counsel consented to the set-off. MR. RICE: Now regarding the, the cost -- the potential set-off of costs against the arrears my client agrees with that. MR. SETT: Yes. THE COURT: Okay. So that’s what -- MR. RICE: So both of us agree with that, but we just have to nail down the amount and -- THE COURT: Okay. That’s fine. . . . . .

THE COURT: And so if you get that number pinned down on the arrears it’s just that one number for Shannon Cheekie, you can send it in consent order setting off, setting off the arrears against the cost from the first trial, so that there won’t be enforcement problems. MR. RICE: Right. THE COURT: Okay. MR. RICE: Which -- yes, it would make both parties happy. .... [emphasis added] 55 I note that counsel for the father answered “yes” to the issue of set-off.

If that was not sufficiently definitive to the issue of consent, I also note that he did not object or contradict either the judge or the mother’s counsel when they indicated that a consent order would go once documentation was provided of that one payment. The fact that counsel for the father was later discharged and did not sign his consent on the order cannot change the fact that he consented in court. 56 The father cannot appeal a provision to which he consented unless leave of the judge making the order has been obtained. See The Court of Queen’s Bench Act , C.C.S.M., c. C280, s. 90(1) .

No such leave was sought here. 57 Even if there had been no consent, still the issue of setting off the mother’s costs owed from the previous trial against the children’s support arrears is discretionary. A court will not usually do so if it would compromise the child’s interests or limit the custodial parent’s ability to care for the children. See Bunsko v. Bunsko , 2005 BCSC 2 , Rowe v. Rowe , 2004 SKQB 508 , 258 Sask.R. 304 , and Logiacco v. Papadopoulos , [2005] O.J. No. 819 (S.C.J.) (QL) .

There was no evidence that it would harm the children here. 58 Moreover, in the 2008 trial, the court ordered that the father pay costs of $8,375 plus disbursements of $6,104.63. It further ordered that while those costs would not be set off against the mother’s obligation to pay child support at that time, that provision could be reviewed if the father did not pay at least one-third of the costs ordered within a one-year period. 59 Given the circumstances, I see no merit to this ground of appeal.

Conclusion 60 Judicial decisions on custody and access are intrinsically discretionary. In Van de Perre v. Edwards, 2001 SCC 60 atparas. 11-15, [2001] 2 S.C.R. 1014, the Supreme Court of Canada indicated that the standard of review with respect to a custody orsupport order was a highly deferential one. Absent an error in principle, a significant misapprehension of the evidence or an award that isclearly wrong, an appellate court should not overturn a trial judge’s decision respecting custody and support. See also Hickey v.

Hickey, (SCC), [1999] 2 S.C.R. 518 at para. 11. 61 No arguable case has been demonstrated here for the presence of such an error. Given the testimony of both parents,the two experts who testified the reports filed and the documentary evidence of monies paid, there was ample evidence to support theconclusions of the trial judge, both with respect to custody and support issues. 62 The motion to extend time to perfect the appeal and serve the notice of appeal is dismissed. If costs cannot be agreedupon, counsel may speak to the issue. J.A.