Delichte v. Rogers, 2012 MBCA 105

Citation: Delichte v. Rogers, 2012 MBCA 105 Date: 20121026 Docket: AF 12-30-07768 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Barbara M. Hamilton Madam Justice Holly C. Beard BETWEEN : KARYN LYNNE DELICHTE ) K. L. Delichte ) on her own behalf (Petitioner) Appellant ) ) J. A. King and - and - ) A. J.

Wheeler ) for the Respondent ) BRENDAN NOEL ROGERS ) Appeal heard and ) Decision pronounced: (Respondent) Respondent ) October 26, 2012 STEEL J.A. (for the Court): 1 This is an appeal from the variation order of the motion judge of August 16, 2011, with respect to the duration and frequency of the father’s periods of care and control of his son. 2 These parties separated in 2003 and have been before the courts on numerous occasions to settle the terms of their divorce and care and control of their children. 3 Most recently, this court overturned the decision of the trial court and allowed the mother’s request to relocate with the children to California to pursue her graduate studies, subject to arranging periods of care and control between the father and the son.

See Delichte v. Rogers , 2011 MBCA 50 , 268 Man.R. (2d) 77 . 4 The parties returned to the trial judge and failing agreement, the judge imposed specified periods of care and control. It is that order which is the subject of this appeal. It is worth noting that the mother was agreeable to some access and had put forward her own proposal.

Her objection is that the judge did not accept her proposal and, instead, specified a more extensive regime of care and control, which she argues is not in the child’s best interests, is too intrusive in both her life and that of her son’s and is not sufficiently protective of her son’s safety given the father’s history of alcoholism. 5 The standard of review of these issues is clear. A court of appeal should not interfere in the decision of the motion judge in the absence of a material error, a serious misapprehension of the evidence or an error of law. See Van de Perre v.

Edwards , 2001 SCC 60 , [2001] 2 S.C.R. 1014 . In this case, the motion judge was also the trial judge. He is familiar with the history of these parties, had heard all the evidence and read all the material over a significant period of time. 6 We see no material error, misapprehension of evidence or error in law that would justify appellate interference. The appeal is dismissed. As is normal in these cases, the successful party, in this case the father, will have his costs.

J.A. J.A. J.A.