Kozub v. Burgess, 2013 MBCA 64

Citation: Kozub v. Burgess, 2013 MBCA 64 Date: 20130702 Docket: AF 12-30-07901 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN : ) G. S. Ashcroft and REGAN WILLIAM KOZUB ) R. G. L. Howard ) for the Appellant (Petitioner) Respondent ) ) J. F.

Eagle ) for the Respondent - and - ) ) Appeal heard and ) Decision pronounced: BRITTANY EILEEN KEILLOR BURGESS ) June 14, 2013 ) (Respondent) Appellant ) Written reasons: ) July 2, 2013 STEEL J.A. [ 1 ] This is an appeal from two interim orders with respect to the custody of two young children. The court ordered the mother to return to Thompson, Manitoba from Alberta and further ordered that upon return to Thompson, custody of the children would be shared by the parents, with periods of care and control by way of alternating weeks.

The judge also ordered that costs be paid forthwith. [ 2 ] The appeal was allowed in part at the hearing with reasons to follow. These are those reasons. [ 3 ] The parties had been living together since 2007, with one child born in 2008 and one child born in 2009. The parties met in Alberta, but moved to Thompson together in June 2009, bought a home and started a business. [ 4 ] In May 2012, the mother moved back to Alberta with the children. The father drove her back to her family with an 18-foot trailer filled with household contents and personal belongings.

The mother maintains she had the father’s permission for the move. The father maintains he thought she was visiting her family as part of a vacation and it was not a permanent move. He indicated that he took the trailer because it was big enough to bring back auto parts from Alberta to Thompson. [ 5 ] The mother further alleges that she was subjected to physical and emotional abuse throughout the relationship and that the father had significant issues with respect to the abuse of alcohol and non-medical drugs.

While the father acknowledges one incident of domestic assault, he denies all the other allegations, including abuse of alcohol and non-medical drugs. The affidavits are highly contradictory on all issues and unchallenged by cross-examination. [ 6 ] On November 26, 2012, as ordered by the motion judge, the mother returned to Thompson with the children, but applied for a stay. The motion judge declined to stay his order so an application was made to a judge of this court in chambers.

On December 21, 2012, this court refused to stay the portion of the order which required the mother to return the children to Thompson. However, this court did stay the portion of the order making custody joint and alternating periods of care and control weekly. [ 7 ] At the hearing of the appeal on June 14, 2013, the mother changed her position, given the fact that the stay has now been in effect since December 2012. She indicated that she was no longer appealing the portion of the interim order that ordered her and

the children to return to Thompson pending the trial. However, she is still appealing the order related to joint custody and alternating weekly periods of care and control as well as the order of costs. [ 8 ] This is an interim custody order. An appellate court should not interfere with a custody order 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, and Leis v. Leis , 2011 MBCA 99 ). The standard of review is even higher for an interim custody order.

This court has spoken many times of the undesirability of appealing interim orders and the deference owed to the motion judge in such cases (see, for example, Gale v. Gale , 2008 MBCA 134 at para. 61 , 231 Man.R. (2d) 188, Dram v. Foster , 2009 MBCA 125 , 73 R.F.L. (6th) 255, and Randall v. Johnas , 2010 MBCA 26 at para. 10 ). [ 9 ] The motion judge’s order to return the children to Thompson is no longer being appealed. That seems a wise decision in the circumstances.

The children are young and have spent the majority of their lives in Thompson and it is important to note that the trial of the issue is not set to take place until February 2014. By issuing an order of return, the motion judge would have been attempting to maintain the original status quo until a trial of the issue. [ 10 ] However, with respect to the rest of the order, I have some concerns. The motion judge made firm findings of fact and determinations of credibility on an interim motion despite the fact that a greater deal of the affidavit evidence was completely contradicted and highly disputed.

He took no account of the serious allegations of abuse against the father and allegations of neglect of the children by the father. He failed to take into account the history of the care arrangements for the children and changed the status quo from the mother as the primary caregiver to joint custody on an interim basis. The father works all day in his business and his extended family, who could assist him in caring for the children, live in Riverton, Manitoba, seven hours away. I understand that the paternal grandmother has been making that drive to help her son exercise his access to the children.

I also understand that the father has a new partner who is expecting and is available to care for the children in the home. I am not sure I understand why, on an interim basis and when trying to maintain consistency for young children, one would choose to have the children cared for by a new partner when their mother is presently at home full-time and unemployed. Given all of this, I believe that intervention is necessary. [ 11 ] I would dismiss the appeal of the interim order with respect to that portion ordering the return of the children to Thompson.

I would confirm that the mother should remain the primary caregiver for this interim period. With respect to the periods of care and control, I was informed by counsel that the parenting assessment will be complete by the end of August 2013. Depending upon that report, more significant periods of care and control to the father may be consented to or ordered by the court as a result of a motion. [ 12 ] However, given that Hamilton J.A.’s order has been in place since December 2012, I do not believe that it is in the interests of the young children to introduce further change into their lives on a short term basis.

I would leave the bulk of Hamilton J.A.’s order in place.

At this point in time, I would only vary cl. 6.2.8 of the December 21, 2012 order of Hamilton J.A. to read as follows: 6.2.8 Alternating Saturdays from 6:00 p.m. until Sunday at 7:00 p.m. …. [ 13 ] This would allow the father to have the children for full weekends every alternate week in addition to his other periods of care and control. [ 14 ] With respect to the costs of the motion, instead of costs being paid forthwith, as ordered by the court, the father agreed, and I so order, that all and any costs previously ordered should be payable in any event of the cause.

Given the discretionary nature of costs, I would not interfere with the quantum ordered. Costs going forward will be in the discretion of that court. [ 15 ] Costs of this appeal will be in the cause. J.A. I agree: J.A. I agree: J.A.