LaBrash v. LaBrash, 2012 MBCA 17

Citation: LaBrash v. LaBrash, 2012 MBCA 17 Date: 20120215 Docket: AF 11-30-07634 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Mr. Justice Michel A. Monnin Mr. Justice Richard J. Chartier BETWEEN: ) LAURIE ELAINE LABRASH ) D. F. Fraser ) for the Appellant (Petitioner) Respondent ) ) M. L. Knight- and - ) for the Respondent ) ) RANDALL PAUL LABRASH ) Appeal heard and ) Decision pronounced: (Respondent) Appellant ) February 15, 2012 ) CHARTIER J.A. (for the Court): 1 This appeal was dismissed following the hearing, with brief reasons to follow.

These are the reasons. 2 The appellant (the father) appealed the decision of the motions judge dismissing his motion to vary the final ordergranted pursuant to The Family Maintenance Act, C.C.S.M., c. F20 (the Act), to allow for equal periods of care and control and shareddecision-making authority with regard to his child. While the motions judge did not grant equal periods of custody, she did vary the finalorder to allow the father increased periods of time with the child. 3 The father’s principal submission was that the motions judge erred in law by failing to apply the principlesenunciated in Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27. Specifically, that the motions judge failed to consider oneof the factors listed in Gordon: “the desirability of maximizing contact between the child and both parents” (at para. 49). He pointed tothe reasons of the motions judge where, after noting that Gordon involved an application for a variation of a Divorce Act order, she said: …. Accordingly, while some aspects of the Supreme Court of Canada’s direction in the case are helpful for the determination of avariation application respecting care and control, others do not apply because the nature of the cases are different.

What is clear, however, is that as required under subsection 2(1) of The Family Maintenance Act, “the best interests of the child shall bethe paramount consideration of the court”. 4 We do not agree with the father’s submission that the motions judge erred. She correctly noted the test to vary anorder made under the Act is a little different than the test to vary an order granted under the Divorce Act in that under the provincial

legislation, an order may be varied simply “if the court thinks it is fit and just to do so” (see s. 46(2) of the Act ). The motions judge also highlighted s. 2 of the Act which states that “the best interests of the child shall be the paramount consideration of the court.” This is of course similar to the principle set out by the Supreme Court of Canada in Gordon that the “only issue is t he best interest of the child in the particular circumstances of the case” (at para. 49).

Moreover, the motions judge, while not listing all of the factors found at para. 49, did reference those that were most relevant to the case before her, when she stated: In determining what arrangement is in [the child’s] best interest I should take into consideration, as noted by the Supreme Court of Canada, the existing custody arrangement and the relationship between the child and each of [the] parents, the desirability of maximizing contact between the child and both parents , the views of the child and any disruption to the child of a change in custody. [emphasis added] 5 Ultimately, a fair reading of the reasons of the motions judge leads us to conclude that in considering the motion to vary, she did apply the factors enumerated in Gordon that were pertinent to the circumstances of this case.

She then proceeded to weigh them. Despite able argument of counsel, we have not been persuaded that she committed palpable and overriding error in the weighing of those factors. 6 The father also argued that the motions judge erred in making credibility findings based upon contradictory affidavit material, without seeking out neutral, third party evidence or confirmatory viva voce evidence. There is no merit to this argument.

The motions judge stated in her reasons that both parties wished to proceed to argument notwithstanding outstanding matters relating to the fact that: 1) cross-examinations on affidavits had not yet proceeded; 2) the father had not yet received responses to questions on interrogatories; and, 3) an assessment report sought by the father had not yet been prepared. The decision to proceed without such a report is an exercise in discretion and will be driven by the facts of the case (see A.E.O. v. T.K.O. , 2011 BCCA 517 at para. 7 ).

The father has failed to persuade us that the motions judge erred when she proceeded without the benefit of a report. She noted that “the father expressly stated that he did not wish to have matters delayed for preparation of an assessment report.” 7 In addition, we remain unconvinced that the motions judge in any way based her decision on any contradictory evidence or reached a conclusion for which there is no evidentiary support. 8 The motions judge’s view of the best interest of the child is entitled to considerable deference.

We have not been convinced that her decision is wrong, let alone so clearly wrong as to amount to an injustice. 9 The appeal is dismissed with costs. J.A. C.J.M. J.A.