Singh v. Pierpont, 2015 MBCA 18

Citation: Singh v. Pierpont, 2015 MBCA 18 Date: 20150211 Docket: AF14-30-08211 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : MICHIKO NATALIE SINGH ) J. W. Feldschmid ) for the Appellant ) (Applicant/Respondent) Respondent ) C. B. Paul ) for the Respondent - and - ) ) Chambers motion heard: WILLIAM EDWARD PIERPONT ) January 7, 2015 ) ) Judgment delivered: (Respondent/Applicant) Appellant ) February 11, 2015 BEARD J.A. I. THE ISSUES [ 1 ] The parties have filed two motions in this appeal. Mr. Pierpont has filed a motion under Court of Appeal Rules 28.1(

b) and 43.1 ( Man. Reg. 555/88R ) to extend the time for filing his appeal factum and Ms Singh has filed a motion to dismiss Mr. Pierpont’s notice of appeal for failing to meet the filing requirements in Court of Appeal Rule 11(1)(c). II. THE FACTS [ 2 ] The underlying proceedings have to do with the custody, care and control of, and visitation with, the child of the parties and, in addition, whether the child will live with his mother, Ms Singh, in Canada or with his father, Mr. Pierpont, in Hawaii. [ 3 ] Ms Singh is a dual Canadian and American citizen, while Mr. Pierpont is an American citizen.

Ms Singh obtained employment in Honolulu, Hawaii, and moved there in 2000. Mr. Pierpont was also living and working in Honolulu, which is where they met. They were married in Hawaii on March 12, 2010, and their son, W.R.P., was born there on July 13, 2010. [ 4 ] Ms Singh was laid off from her employment in 2009, and her employer filed for bankruptcy protection in 2010.

She obtained employment in Winnipeg and the family moved here in September 2010, although the exact terms of the move (for example, whether it was a permanent or temporary move) are a matter of contention between the parties. [ 5 ] In 2011, the parties and their son went back to Honolulu, although the exact reason is, again, a matter of contention. While there, they separated and Mr. Pierpont filed for a divorce.

Each party retained a lawyer and the divorce proceeded through the courts in Hawaii, with the oral hearing taking place on October 1 and 2, 2012, and the written divorce decree and corollary relief order being issued on February 4, 2013. [ 6 ] There have been many pre and post-divorce proceedings in Hawaii, with both parties being represented there throughout. The details of those proceedings are more fully listed in

Schedule A, attached hereto. The recent post-divorce proceedings are still ongoing and have not been resolved on a final basis. [ 7 ] Notwithstanding the ongoing proceedings and outstanding orders in Hawaii, Ms Singh began custody proceedings in Winnipeg by way of an application for relief under The Child Custody Enforcement Act , C.C.S.M., c. C360, (the Act ). The details of these proceedings are more fully set out in

Schedule B, attached hereto. Again, both parties have been represented throughout by legal counsel in Winnipeg. [ 8 ] In

summary, on September 19, 2011, Ms Singh obtained an interim order in the Hawaii divorce proceedings permitting her to take the child to Winnipeg, which she did. According to Mr. Pierpont, Ms Singh was not complying with the Hawaii visitation order and he returned to court in Hawaii to obtain physical custody of the child, which order was ultimately granted on an interim basis on March 12, 2014, and included an order that the child was to be returned to Hawaii. [ 9 ] Ms Singh was represented by counsel at that hearing, following which she retained counsel in Winnipeg and the

underlying Manitoba application for custody of the child was commenced on April 4, 2014. Mr. Pierpont retained Winnipeg counsel. An interim order granting physical care and control of the child to Ms Singh was made on April 11, 2014, followed by an interim order of visitation to Mr. Pierpont on April 16, 2014. In early May 2014, Mr. Pierpont attended in Winnipeg for a visit pursuant to that interim order.

He then took the child back to Hawaii in contravention of the Manitoba interim order but in accordance with the earlier Hawaii interim order. [ 10 ] The Manitoba application proceeded on an expedited basis, with the application judge hearing argument on May 21, 2014, regarding the threshold issue of whether the child had a real and substantial connection with Hawaii, and giving an oral decision on May 29, 2014.

The parties returned to court on June 3, 2014, to argue the issue of the appropriate relief and the application judge gave an oral decision on that date, setting out the terms of an order which did not deal with custody, but did order that Mr. Pierpont return the child to Manitoba. An unsigned copy of that order was marked “filed” on June 11, 2014, and a copy was subsequently signed by the judge on June 19, 2014. [ 11 ] Mr.

Pierpont filed a notice of appeal of that order on July 11, 2014, and in the notice has challenged the application judge’s May 29, 2014 finding that the child had no real and substantial connection with Hawaii on April 4, 2014, being the date on which Ms Singh filed her application in Manitoba, and the related order of June 3, 2014. [ 12 ] On August 20, 2014, the Court of Appeal registrar wrote to Mr. Pierpont’s counsel to advise that any required transcript, the appeal book and appellant’s factum must be filed with the court no later than October 2, 2014.

On October 2, 2014, there was some communication between Mr. Pierpont’s counsel and the registry staff and between counsel regarding the filing deadlines. On October 3, 2014, Mr. Pierpont’s counsel sent an email to the registrar with a copy to Ms Singh’s counsel, the contents of which explain what occurred regarding the filing of those documents: This is to confirm that I spoke to a staff member of the Court of Appeal Registry this afternoon to advise that I had not received consent, anticipated in my October-02-14 4:06 PM email below, from opposing counsel for an extension to file the appellant’s factum today.

I was advised by the Registry staff person I spoke with that the Registry would not accept the factum in the absence of that consent, presumably in accordance with rule 28.1 of the Court of Appeal Rules. Therefore, I have not attempted to file or serve the appellant’s factum, nor will I unless consent is forthcoming from counsel for [Ms Singh] or I bring a motion under clause (

b) of the rule seeking leave to file and serve the factum. The Appeal Book was filed yesterday (Thursday, October 2, 2014). Unrelated to this, counsel for [Ms Singh] has also indicated to me that she has [received] instructions to bring a motion seeking an order to dismiss the appeal on the grounds that it should have been filed 30 days after the reasons for decision of [the application judge] were delivered on May 29, 2014, rather than 30 days after Her Ladyship’s June 3, 2014 order (which resulted from both her May 29 and June 3 pronouncements) was filed.

Though I have not seen [Ms Singh]’s motion (I understanding [ sic ] it has yet to be filed or may have only been filed today), I would anticipate cross motions, heard together: [Ms Singh]’s motion to dismiss the appeal and [Mr. Pierpont]’s motion to seek an extension and leave to file and serve his factum. If you wish to provide any particular direction, please advise. [ 13 ] Mr.

Pierpont filed his motion to extend the time for filing his factum and an affidavit in support on December 1, 2014, and Ms Singh filed her motion to dismiss the appeal for failing to meet the filing requirements and other relief, together with an affidavit in support, on December 8, 2014. III. THE MOTION TO DISMISS THE APPEAL The Parties’ Positions [ 14 ] Ms Singh is advancing two positions: (

i) that the applicable Court of Appeal rule setting the time for filing and serving the notice of appeal (the appeal period) is Rule 11(1)(c), being that the filing period begins to run from the date of the pronouncement of the judgment appealed from; and (ii) that Mr.

Pierpont is really appealing three decisions or rulings, being the interim custody order pronounced on April 11, 2014, the decision regarding real and substantial connection pronounced on May 29, 2014, and the order pronounced on June 3, 2014, each with its own appeal period. [ 15 ] She states that the notice of appeal, which was filed on July 11, 2014, was filed more than 30 days after the pronouncement of all of these three judgments/orders and, therefore, failed to meet the requirements of Rule 11(1)(c). [ 16 ] On Ms Singh’s first position, Mr.

Pierpont takes the position that the applicable rule is Rule 11(1)(a), which states that the appeal period begins to run from the date of the filing of the judgment, and not Rule 11(1)(c). [ 17 ] On her second position, Mr. Pierpont emphasized that he has not appealed the April 11, 2014 order but, rather, has appealed only the May 29, 2014 decision and the June 3, 2014 order. He argues that the May 29, 2014 decision formed the basis of the order pronounced on June 3, 2014. In support of that position, he points to comments made by the application judge to that effect on May 29, 2014.

Further, while that order was marked “filed” on June 11, 2014, it was not signed until June 19, 2014. Thus, his position is that the appeal period commenced on June 19, 2014, or, if not, on June 11, 2014, with the result that the appeal period ended on either July 11, 2014, or July 19, 2014. He asserts that, in either case, the notice of appeal filed on July 11, 2014, was filed in compliance with Rule 11(1)(a). The Legislation

[18] The applicable provisions of the Court of Appeal Rules are as follows:

Definitions 1 In these rules, …. “judgment appealed from” means the judgment of the court or tribunal from which an appeal lies to The Court of Appeal and includesan order, decision, verdict, direction, determination or award; . . . . . Time for service 11(1) Subject to subrules (2) and (2.1), a notice of appeal shall be filed and served within the following time limits: (

a) in a case where the judgment appealed from is required to be filed, within 30 days after that filing; …. (

c) in any other case, within 30 days after the pronouncement of the judgment appealed from. . . . . . 11(3) A party who wishes to file a notice of appeal shall, where practicable, file the judgment appealed from in the court appealedfrom before filing the notice of appeal. 11(4) Where the judgment appealed from is not filed in the court appealed from, the party may file a notice of appeal accompaniedby a letter by or on behalf of the appellant indicating the reason why the judgment has not been filed. Analysis and Decision (

i) Rule 11(1) [19] That a written judgment or order must be signed and filed in the court appealed from is made clear in Rule 11(3), whichspecifically states that the party filing the notice of appeal shall, where practicable, file the judgment in the court appealed from beforefiling the notice of appeal. This engages the appeal period set out in Rule 11(1)(a). [20] The question of whether an appeal period of a court decision runs from the date of pronouncement or entry was thesubject of comment by this court in Baird v.

Baird et al., (MB CA), [1977] 5 W.W.R. 72, wherein Monnin J.A. (as hethen was), for the court, explained why an appeal period should run from the date of “entry” of the order and not from the date ofpronouncement. He stated (at pp. 74-75): However, in matters pertaining to corollary relief time runs from the date of entry. A trial judge always has the privilege to vary hisdecision until the moment of entry so that variations in the order can and sometimes do occur at the very last minute.

An appellatetribunal should only be requested to review that which is firmly established by a written order of the lower court. On that basis, and onthe further basis that in this court the deputy registrar, in the performance of his duties, refused to accept the notice of appeal whentendered [because the order under appeal was not signed and entered], we at the hearing of this case extended the time for the filing ofnotice of appeal to the date of hearing. ….

[21] This decision was followed by Helper J.A. in Harvey v. Harvey (1989), (MB CA), 60 Man.R. (2d) 302(C.A.) (in Chambers), in which she stated (at paras. 10-11): As at March 1, 1989, the new Queen’s Bench Rules were proclaimed. There is no reference whatever in the new rules to entry oforders. Although orders are stated in the rules to be effective from the date they are made (Rule 59.01) [see also Rule 70.31(2)], it is thepractice that orders are frequently not signed and filed in court for some considerable time after pronouncement.

Court of Appeal Rule15(3) states orders should be entered before the notice of appeal is filed although rule 15(4) provides for filing notices of appeal inurgent situations. [See current Rules 11(3) and (4).] As was stated in Baird, until such time as an order is entered or, at the present time,signed and filed, it is subject to change and to settlement by the trial judge.

There were no authorities to which I was referred which lead me to conclude that the practice in Manitoba has changed since theBaird decision although the Queen’s Bench Rules have changed. [22] Consistent with Helper J.A.’s comments in Harvey, it is important to note that the requirement that an order be “entered”in the court granting the order before a notice of appeal is filed, as referred to in Baird, has been replaced with a requirement that an orderbe signed and filed in the court granting the order before an appeal is filed. (See Court of Appeal Rules 11(3) and (4); and Queen’sBench Rule 1.04.1(b) (Man.

Reg. 553/88), enacted in 1994, stating that “entered” in reference to the date of an order or judgment is thedate of signing. See also Ridout v.

Ridout, 2003 MBCA 61 at para. 13, 173 Man.R. (2d) 226.) [23] Ms Singh argues that the decisions in Baird and Harvey should be limited to cases dealing with corollary relief ordersunder the Divorce Act. [24] In those cases, a distinction was being made between the appeal period related to a decree nisi, which had a specificstatutory appeal period of 15 days after the pronouncement or making of the order, and that related to a corollary relief order, which thecourt found was not subject to that statutory appeal period.

A reading of the cases shows that this court’s comments regarding thecorollary relief orders were general in nature and would apply to all orders not governed by specific statutory provisions. Regarding thegeneral application of the reasons in Harvey, see the Introductory Note to Rule 59 in Professor Karen Busby, Manitoba Queen’s BenchRules Annotated (Toronto: Carswell, 2014) (loose-leaf release 60) at p. 2-225. [25] In addition, the requirement to file a signed written order (which includes a judgment) is found in the Queen’s BenchRules, including Rules 59 and 70.33.

There was no explanation why an unsigned order was filed on June 11, 2014, but it should benoted that the rules anticipate the filing of a signed order, not the filing of an unsigned order. In that regard, see Rules 59.05 and70.33(15). [26] Finally, Rule 11(1)(

c) begins with the phrase “in any other case.” That means that it is a residual clause and it appliesonly to judgments that are not subject to any other sub-clause within Rule 11(1). In this case, both the Queen’s Bench Rules and theCourt of Appeal Rules require that the judgment appealed from be filed in the court being appealed from, so the judgment is clearlywithin Rule 11(1)(a). [27] I find that, in this case, the parties were required to file the signed judgments (including orders) of the application judge inthe Court of Queen’s Bench.

Given that “the judgment … is required to be filed,” the applicable Court of Appeal rule governing theappeal period in this matter is Rule 11(1)(a). [28] In the result, the appeal period began to run from the date of the filing of the signed written orders and not from the dateof pronouncement. (ii) Rulings Under Appeal [29] Mr. Pierpont’s notice of appeal is clear that he is appealing the order of June 3, 2014, and the underlying decision of May29, 2014, and it makes no mention of the interim custody order of April 11, 2014.

This was confirmed by his counsel in his motionbriefs and in his oral argument. [30] Ms Singh’s counsel argues that, while Mr. Pierpont has not mentioned the April 11, 2014 order, his appeal is really aback-door attempt to challenge that order without mentioning it. Her position is that each of the three decisions – the April 11, 2014order, the May 29, 2014 decision and the June 3, 2014 order – are separate rulings or decisions by the court that engage separate appealperiods. [31] The several rulings have to be considered in the context of how this matter unfolded.

Because this application was beingdealt with expeditiously as an emergency matter, each appearance was of short duration, being fit into the application judge’s busyschedule. This resulted in a succession of short hearings, rather than fewer, more comprehensive ones. Further, the desire to completematters quickly may have led to the contents of the orders being less comprehensive than they might have been. That said, whathappened is clear from the transcripts. [32] The underlying applications for relief required a determination as to whether the child had a real and substantialconnection with Hawaii.

On April 11, 2014, the application judge granted interim relief under s. 6 of the Act pending a hearing on thereal and substantial connection issue. The proceedings were adjourned to May 21, 2014, for argument on that issue, and the applicationjudge gave her decision on May 29, 2014. The parties did not have sufficient time to address the question of what relief should flowfrom that decision, so the matter was adjourned to June 3, 2014, for further argument.

There was, however, a discussion about theinterim custody order, and the application judge stated that the existing order (i.e., the interim order under s. 6) did not have an expirationdate but was “until further order of the Court,” so it would continue.

[33] On June 3, 2014, the application judge indicated that, particularly given the competing custody order in Hawaii, therewould have to be a custody hearing with viva voce evidence in Manitoba before she would make any order under s. 4 of the Act. MsSingh took the position that she wanted the child returned to Manitoba and an assessment completed before any custody hearing, so theapplication judge made an order for the return of the child. In the transcript it is clear that the order for the return of the child was beingmade under s. 6(c), the interim order provision of the Act, and not under s. 4.

Nothing further was said about the interim custody order,but, given the application judge’s comments on May 29, 2014, it is clear that that order was to continue indefinitely, “until further orderof the Court.” [34] Taking these circumstances into account, there is no basis to Ms Singh’s argument that the appeal was an attempt toappeal the April 11, 2014 interim custody order without specifically mentioning it. The important finding for Mr.

Pierpont’s applicationto enforce his Hawaii order under s. 3 of the Act was not the interim custody order but the May 29, 2014 decision regarding real andsubstantial connection with Hawaii, as his application under s. 3 was dependant on a finding that that connection existed. That was a keydecision that should have been referenced in a written order. The hearing and order on June 3, 2014, related to that decision and, but fora lack of time, would likely have been argued on May 29, 2014. These two decisions were clearly part of the same hearing.

As theapplication judge correctly noted, the real and substantial connection decision was preliminary to the order that followed. [35] For these reasons, Ms Singh’s position that the May 29, 2014 decision and June 3, 2014 order were separate decisionswith separate appeal periods is not correct. Further, there was no need for Mr.

Pierpont to appeal the interim custody order in order toappeal the May 29, 2014 decision and the June 3, 2014 order because the interim order was a separate order under a different provisionin the legislation and invoked different, although related, principles. [36] For these reasons, I find that the appeal does not include an appeal of the April 11, 2014 interim custody order and thatthe decision of May 29, 2014, and the order of June 3, 2014, were part of the same proceeding and engaged the same appeal period. IV. THE MOTION TO EXTEND THE TIME TO FILE THE APPELLANT’S FACTUM The Parties’ Positions [37] Mr.

Pierpont’s position is that the criteria for extending the time for filing a factum are the same as those for extendingthe time to file a notice of appeal, being: (

i) a continuous intention to appeal from a time before the expiration of the filing period; (ii) areasonable explanation for the delay; and, (iii) arguable grounds of appeal. [38] His position is that he has met all of those criteria. Regarding the first, his position is that he filed his notice of appealwithin the appeal period. Regarding the second, his position is that the case law is that inadvertence of counsel alone is sufficientreason. Further, he has adduced evidence that his counsel was ill and unable to comply.

Regarding the third, he argues that the groundsof appeal are set out in his draft factum, which discloses arguable grounds. [39] Ms Singh does not dispute the criteria for extending time to commence or perfect an appeal cited by Mr. Pierpont. On thefirst criterion, she argues that he did not file his notice of appeal in time and, further, that there is no evidence that he formed theintention to appeal within the appeal period.

On the second criterion, she argues that the evidence was that his counsel’s illness was onlysporadic between September 25, 2014 and October 2, 2014, not complete, and it does not explain why the appeal was not perfectedbefore September 25, 2014 (the date that he said he became ill) or why the motion to extend time was delayed from October 2, 2014 toDecember 1, 2014. On the third criterion, she argues that the appeal has no merit.

Analysis and Decision [40] The criteria for extending the time for filing a factum are the same as those for extending the time to appeal, being thewell-known three criteria set out in para. 37 above. (See Bohemier et al. v. CIBC Mortgages Inc., 2001 MBCA 161, 160 Man.R. (2d) 39;and Campbell v. Campbell, 2011 MBCA 23 at para. 6, 268 Man.R. (2d) 8.) [41] In addition, the court has an overriding discretion to grant or refuse an extension if it is right and just in thecircumstances. (See Cross Lake Indian Band et al. v. Hydro-Electric Board (Man.) et al. (1984), (MB CA), 27Man.R. (2d) 6 at para. 23 (C.A.); Brandt v.

Brandt, 2000 MBCA 46 at para. 7, 148 Man.R. (2d) 134; and Rodych v. Rasidescu, 2011MBCA 89 at para. 11.) Further, inadvertence of counsel is an accepted explanation. (See Arndt v. Arndt (1987), (MBCA), 46 Man.R. (2d) 234 at para. 8; and Branum v. Branum (1998), (MB CA), 129 Man.R. (2d) 142 at para. 10.) [42] Regarding the first criterion, I have already found that the notice of appeal was filed within the appeal period, so,obviously, the intention to appeal was formed within that time. [43] Regarding the second criterion, Mr.

Pierpont’s counsel has provided evidence that he became ill and was not able tocomplete the factum by the filing date. While Ms Singh has questioned the seriousness of the illness, there was no cross-examination onthe affidavit to challenge its veracity. Thus, I accept counsel’s explanation.

While, on the one hand, he may not have been as diligent ashe could have been by preparing the material earlier, it is clear that he had essentially completed the factum before the expiration of theappeal period, given that he indicated that he would be in a position to file it only one day late. [44] Regarding the third criterion and, given the standard of review for what is a discretionary decision (i.e. whether there wasa real and substantial connection to Hawaii), Mr. Pierpont has a steep hill to climb. That said, I am satisfied that he has raised arguablegrounds of appeal.

I note, for example, the question of the effect of, or the weight to be given to, the ongoing legal proceedings inHawaii in which Ms Singh was participating that led to the granting of custody to Mr. Pierpont immediately before she filed herapplication in Manitoba. That was not an old, dated and historical order, but one that was made less than one month before Ms Singhcommenced proceedings in Manitoba and was the result of proceedings in which Ms Singh was represented by counsel. As this matterwill go to appeal, I will say no more. [45] Ms Singh has argued that, due to Mr.

Pierpont’s delay in filing his motion for the extension from October 3, 2014, to

December 1, 2014, thereby delaying the appeal to her detriment, I should exercise my discretion and refuse to grant his motion. Mr.

Pierpont’s response is that he was waiting for Ms Singh to file her motion to dismiss his appeal, which he thought was imminent, as his motion would become moot if her motion was granted. [ 46 ] In response to this position, I note that, if Ms Singh was concerned about having the appeal dealt with as quickly as possible, it was open to her to file her motion at any time after July 11, 2014, as that is the filing that she is challenging, yet she has not explained her delay of some five months. [ 47 ] Neither party has followed up this appeal as quickly as possible. That said, I accept Mr.

Pierpont’s explanation for his delay which, when considered together with Ms Singh’s delay, leads me to conclude that I should not exercise my discretion and dismiss Mr. Pierpont’s motion on this basis. [ 48 ] Thus, I would find that Mr. Pierpont has met the requirements for the granting of an extension of the time period within which to file his factum. [ 49 ] Further and in any event, given that Mr.

Pierpont’s counsel had filed the notice of appeal and appeal book within the required time period and was only one day late in the completion of the factum, I would have exercised my discretion and extended the date for filing the factum. V. CONCLUSION [ 50 ] For these reasons, I am dismissing Ms Singh’s motion to dismiss Mr. Pierpont’s notice of appeal and I am granting Mr. Pierpont’s motion to extend the time period to file his factum. Mr. Pierpont will have 14 days from the date of this decision within which to file his factum. [ 51 ] Each party will pay his or her own costs of these motions. J.A.

Schedule A Hawaii Court Proceedings The details of the Hawaiian court proceedings are follows: - August 18, 2011 – Mr. Pierpont filed his Complaint for Divorce and a pre-decree motion seeking temporary custody of the child. - September 19, 2011 – Following a hearing, there was an oral order granting the parties joint legal custody of the child with sole temporary physical custody to Ms Singh and allowing Ms Singh to return to Winnipeg with the child, on specified conditions.

A written decision was issued on March 22, 2012. - The divorce hearing was held on October 1 and 2, 2012, leading to a Decree Granting Absolute Divorce and Awarding Child Custody being issued on February 4, 2013. The divorce decree granted joint legal custody to the parents, sole physical custody to Ms Singh and specified visitation to Mr. Pierpont. - January 23, 2013 – Mr. Pierpont filed a motion for pre-decree relief requesting a change to the legal and physical custody, which was continued as a motion for post-decree relief. Following a trial on June 3, 2013, the motion regarding custody was dismissed, but Mr.

Pierpont’s visitation rights were varied. The order was signed and filed on July 16, 2013. - November 19, 2013 – Mr. Pierpont filed a motion for post-decree relief, alleging that Ms Singh was interfering with his visitation. There was an evidentiary hearing on March 12, 2014, at which both parties were again represented by counsel, although Ms Singh did not appear. The proceeding resulted in an interim order on that date continuing the order of joint legal custody of the child but granting Mr. Pierpont sole physical custody, subject to reasonable visitation to Ms Singh.

Ms Singh was ordered to return the child to Hawaii within one month, failing which Mr. Pierpont would be entitled to take possession of him. The authorities in Canada were directed to assist Mr. Pierpont in returning the child to Honolulu.

That order was signed and filed in court on April 4, 2014. - Ms Singh appealed that order, which appeal was dismissed on August 5, 2014, for lack of appellate jurisdiction. - September 15, 2014 – Ms Singh filed a petition for relief under the Hague Conference on Private International Law, Convention on the Civil Aspects of International Child Abduction , 25 October 1980, 28<http://www.hcch.net/> (the Hague Convention ) for an order compelling Mr.

Pierpont to return the child to Manitoba. - September 17, 2014 – Ms Singh’s petition was denied in part and granted in part – the court denied her application that the child be returned to her care and custody, but it did order that neither the child or Mr. Pierpont could leave Oahu unless permitted by the court. - September 25, 2014 – Mr. Pierpont filed a motion to dismiss Ms Singh’s petition.

- November 17, 2014 – The court in Hawaii dealt with the Mr. Pierpont’s motion as a

summary judgment motion and dismissed it, ordering that the matter go to trial to determine “genuine issues of material fact.”

Schedule B Manitoba Court Proceedings The details of the Manitoba court proceedings are as follows: - April 4, 2014 – Ms Singh filed her underlying application under the Act , for primary care and control of the child and for specified periods of care and control to Mr. Pierpont. - April 4, 2014 – Ms Singh also filed a motion for interim relief, to be heard on either short leave or ex parte . - April 10, 2014 – Mr.

Pierpont filed an application in Winnipeg for an order under s. 3 of the Act to enforce the Hawaii order pronounced on March 12, 2014. - April 11, 2014 – Following a hearing, the application judge granted Ms Singh interim custody of the child with an order that the child not be removed from the province, all pursuant to s. 6 of the Act , and the underlying applications were adjourned to May 21, 2014. The order pronounced on April 11, 2014 was signed on May 5, 2014. - April 15 and 16, 2014 – Case conferences were held, in the course of which the parties agreed to a consent order granting Mr.

Pierpont specified periods of care and control of the child. Mr. Pierpont acknowledges that, on or shortly before May 9, 2014, during one of his periods of care and control, he removed the child to Honolulu and refused to return him to Winnipeg, contrary to the consent order of April 16, 2014.

The child has remained in Honolulu since that time. - May 13, 2014 – Ms Singh filed an ex parte motion to amend her application to include a request for relief under the Hague Convention . - May 21, 2014 – A hearing was held to determine whether the child had a real and substantial connection with Hawaii, as that phrase is used in the Act . - May 29, 2014 – The application judge delivered her oral reasons, finding that the child had no real and substantial connection with Hawaii on April 4, 2014, the date on which Ms Singh filed her application. - June 3, 2014 – The application judge heard submissions on the order that should follow her finding of May 29, 2014, and ordered, among other things, that Mr.

Pierpont immediately return the child to Winnipeg. - June 19, 2014 – The written order from June 3, 2014, was marked “filed” with the date of June 11, 2014, but it was not signed by the application judge until June 19, 2014. - July 7, 2014 – Ms Singh completed a Request for Return under the Hague Convention . - July 11, 2014 – Mr.

Pierpont filed his notice of appeal, appealing the application judge’s finding that the child had no real and substantial connection with Hawaii on April 4, 2014, and failing to find whether the child had a real and substantial connection with Hawaii on March 12, 2014, asking, firstly, that the court overturn the application judge’s order of June 3, 2014 and, secondly, that it enforce the Hawaii order of March 12, 2014.