Boryskiewich v. Stuart, 2015 MBCA 23

Citation: Boryskiewich v. Stuart, 2015 MBCA 23 Date: 20150227 Docket: AF14-30-08131 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN : DEREK STEPHEN BORYSKIEWICH ) K. L. Webb ) for the Appellant ) (Petitioner) Respondent ) B. R. Murray ) for the Respondent - and - ) ) Appeal heard and TARA STUART ) Decision pronounced: ) February 10, 2015 ) (Respondent) Appellant ) Written reasons: ) February 27, 2015 BEARD J.A. (for the Court): I.

THE ISSUES [ 1 ] Ms Stuart (the mother) is appealing the variation order pronounced on November 21, 2013, pursuant to The Family Maintenance Act , C.C.S.M., c. F20, granting, among other relief, primary physical care and control of Z.B. to Mr. Boryskiewich (the father). The grounds of appeal are as follows: (

i) that the motion judge erred in failing to consider whether there had been a material change in the circumstances affecting the child; (ii) that the motion judge erred in deciding that it was in the child’s best interests to grant primary care and control to the father in Brandon, rather than leaving the child in the primary care and control of the mother in Dauphin; (iii) that the motion judge erred in not considering what would happen if the mother moved back to Brandon; and (iv) that the motion judge erred in leaving some matters to be worked out by the parties. II.

THE FACTS [ 2 ] The parties are the parents of Z.B., who is now seven and one-half years’ old. They cohabited for about a year, during which time the father worked in the oil fields in Alberta and the mother and Z.B. lived in Brandon, where she worked as a licenced practical nurse. The parties entered into a consent final order pronounced on January 11, 2010, pursuant to which the parties retained joint custody of Z.B., the mother had primary care and control and the father had physical care and control as agreed.

The father spent every fourth week in Brandon, during which he had frequent visits with Z.B. when he was a baby, turning into visits of several days’ duration as Z.B. got older. [ 3 ] In August 2012, the father returned to Brandon permanently and started to see Z.B. every second weekend and sometimes during the week. In December 2012, he applied to vary the final order to have equal periods of care and control. The mother began dating a man living in McCreary and decided to move there with Z.B., resulting in the father applying in March 2013 for an order preventing that relocation.

The parties’ lawyers appeared in court on May 1, 2013, at which time the mother’s lawyer stated that Z.B. would remain in Brandon pending a trial to determine whether the mother could relocate him, and arrangements were made for trial dates in November 2013.

[4] On May 16, 2013, the mother was arrested and charged with offences related to impaired driving, not wearing a seatbeltand having a child under 18 in the car who was not wearing a seatbelt. She had two prior drinking and driving convictions, albeit theywere from over a decade earlier. By the time of the trial in this matter, she had pled guilty to some of the charges and that matter was setfor sentencing in April 2014.

There was a real possibility that she would be sentenced to a period of incarceration, due to the earlierrelated convictions. [5] The mother checked herself into an alcohol treatment facility in Ste. Rose du Lac, where she remained for four weeks. During this time, Z.B. lived with his maternal grandmother in Brandon and had his regular weekend visits with the father.

Following herrelease, she joined Alcoholics Anonymous and had witnesses testify at the trial as to her success with that program and with abstainingfrom alcohol. [6] While the mother found employment in her field in McCreary and moved there to further her new relationship, thatrelationship soon broke down. The mother acknowledged that this occurred due to her alcohol abuse. She found rental accommodationand remained in that community when she finished treatment.

Z.B. spent most of the summer in McCreary with the mother, travellingback to Brandon for his regular visits with the father. [7] At the end of August 2013, the mother found a new job in Dauphin and, over the course of a weekend, madearrangements to move herself and Z.B. to Dauphin. She was living in a house owned by R.R. whom she met at the treatment centre andwas then dating. She enrolled Z.B. in school in Dauphin and was looking into extra-curricular activities for him. Z.B. would be startingschool, and her babysitting plan while she worked her 12-hour shifts was reliant on two girls aged 14 and 15 years’ old.

All of thisoccurred without her advising the father and without consideration for the undertaking to the judge on May 1, 2013, that Z.B. wouldremain in Brandon until the relocation trial was completed. [8] The father found out about the move to Dauphin and immediately applied for an order that Z.B. be returned toBrandon. Following a contested hearing on September 13, 2013, a judge ordered that the mother not relocate Z.B. from Brandon withouteither the consent of the father or a court order. Z.B. was returned to Brandon and resided with his maternal grandmother.

The motherremained in Dauphin, but travelled to Brandon on her days off to see Z.B. at her mother’s place. Because she worked 12-hour shifts, shehad several consecutive days off at a time. The father continued to see Z.B. every second weekend and during the week. [9] The mother’s relationship with R.R. deteriorated, so she found rental accommodations in Dauphin and moved out.

Incidents such as a rock thrown through the mother’s front window, tires slashed and eggs being thrown at her house led her to apply inearly November 2013 for a protection order against R.R. [10] After the change in primary care and control ordered on November 21, 2013, Z.B. moved in with the father and hasresided with him since then. [11] Both the mother and father have siblings and extended family, many of whom live in or close to Brandon. The father hasanother son who is now 15 and a daughter who is 11 who live with their mother and have regular visits with the father.

The mother has adaughter who is now 16 and lives with the mother’s sister close to Brandon. All of Z.B.’s half-siblings have regular contact with him. [12] During the trial, the mother testified about her alcohol abuse, stating that she started drinking when she was 12 and hadbeen an alcoholic for many years.

She admitted to having had problems at work because of absenteeism due to alcohol, to drinkingwhile caring for Z.B., to having driven while under the influence of alcohol on many occasions including with Z.B. in the vehicle, and toher mother helping her out, including with Z.B., to the extent that she described her as an enabler to her alcohol problems. She had beenin treatment, albeit briefly, on one occasion prior to May 2013, and she had been able to quit drinking for periods of time in the past, evenmonths, before relapsing. III. THE GROUNDS OF APPEAL (

i) the motion judge erred in failing to consider whether there had been a material change in the circumstances affecting the child [13] The failure to address a required step in the analysis would constitute an error of law, which would be reviewed on thestandard of correctness. [14] The mother argues that the first requirement in a mobility case, as set out by McLachlin J. (as she then was), for themajority, in Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, is that the parent applying for a change in custody or accessmust show that the move constitutes a material change in circumstances.

She argues that para. 49 of Gordon sets out a seven-steproadmap for a court to follow and that the trial judge erred in not following the steps set out therein; in particular, he failed to address theissue of whether a move from Brandon to Dauphin, a drive of approximately two hours, would constitute a material change incircumstances. [15] The father argues that the mother, both herself and through her counsel, acknowledged that this move was a mobilityissue and, thus, acknowledged that it would result in a material change in circumstances.

Therefore, according to the father, this was nota live issue that the motion judge was required to address. [16] A review of the transcript of the submissions at the trial shows that the mother’s counsel went through the factors in theseventh step of the Gordon roadmap (see Gordon, at para. 49), being the factors to be considered in relation to determining the bestinterests of the child, but she nowhere argued that the proposed move to Dauphin did not constitute a material change in circumstances orthat the question of whether the move constituted a material change in circumstances was a live issue.

While the seven steps in Gordonconstitute a roadmap, every judge does not have to address every step in every case. Rather, the judge only has to address those mattersthat are at issue and argued by the parties. [17] Thus, the motion judge did not err in not addressing the issue of whether the move to Dauphin constituted a materialchange of circumstances.

[18] Further, there was certainly ample evidence that the proposed move to Dauphin, together with the surroundingcircumstances of that move, constituted a material change in circumstances entitling the motion judge to embark on a fresh inquiry intowhat was in the best interests of the child.

In that regard, the motion judge referred to the following: the mother’s poorly planned moveto McCreary only a few months earlier; the crisis created by her alcoholism; her lack of family support, particularly that of her mother, inDauphin; her reliance on teen-aged babysitters in Dauphin; and the instability for Z.B. that accompanied all of those decisions. (ii) the motion judge erred in deciding that it was in the child’s best interests to grant primary care and control to the father in Brandon,rather than leaving the child in the primary care and control of the mother in Dauphin [19] The determination of what is in the best interests of a child is a discretionary decision by a trial judge, and the standard ofreview of that decision is very high.

As was stated in Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518 (at para. 12): …. Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error inlaw, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factorsdifferently. [20] Bastarache J., for the court, adopted this standard of review for appeals of orders concerning custody of children in Vande Perre v.

Edwards, 2001 SCC 60 at para. 12, [2001] 2 S.C.R. 1014. [21] The mother argues that the motion judge provided no analysis of why it was in Z.B.’s best interests for the father to haveprimary care and control of him. [22] The father argues that the motion judge referred to the Gordon decision and that a review of the evidence and facts towhich he referred in his reasons shows that he considered and applied the factors set out in step seven of Gordon. [23] We agree that the motion judge considered and correctly reviewed in detail the evidence as it related to the best intereststest, as required in Gordon.

He summed up his view of that evidence very clearly, as follows: …. [The mother’s] moves, job changes and reasons for them, show that she has a keen eye to her best interests both professionallyand personally and that’s not a bad thing. She ought to be looking to improve her situation. But my concern must be for the bestinterests of [Z.B.].

The impulsive nature of the moves, made [without] consultation or real notice, hiding the true state of things in theface of a pending trial, the short nature of two rapid relationships, indicate to me that [the mother] is in a fragile state personally,although recovering, and not making decisions in [Z.B.’s] best interests; rather in her own. …. [24] The mother has not pointed out any material error or any misapprehension of the evidence that would permit this court tointerfere with the motion judge’s decision.

Further, the conclusion that he drew from that evidence, being that Z.B.’s best interests lay ingranting primary care and control to the father, is unassailable. (iii) the motion judge erred in not considering what would happen if the mother moved back to Brandon [25] The mother argues that the motion judge erred in not considering what would happen regarding primary custody andcontrol if she were to move back to Brandon. [26] At trial, the mother was specifically asked in direct examination what would happen if Z.B. were ordered to stay inBrandon, and her response was “I’m not sure.

I’ll worry about that when that happens. I will try to be involved as much as I can in hislife.” She gave no indication that she would move back to Brandon. [27] With this response, the motion judge had no evidentiary basis to make any order dealing with that scenario, because itwas not before him as a possibility. The mother put forward no plan for her return upon which he could base a decision, so it would havebeen completely speculative.

He committed no error in not considering something that was not before him. (iv) the motion judge erred in leaving some matters to be worked out by the parties [28] The mother argues that the trial judge gave the father primary care and control but acknowledged that the father asked forshared custody.

She argues that the motion judge’s reasons make it difficult for the parties to know whether his intention was to ordershared care and control if the mother were to move to Brandon, or to order primary care and control to the father with specified andliberal periods of care and control to the mother. [29] The motion judge was acknowledging the father’s testimony that he would share custody with the mother as her schedulepermitted, which was an acknowledgement by the father that he would work with her to maximize her contact with Z.B. depending onher availability.

It was not an indication by the motion judge of a different order if the mother returned to Brandon. [30] The motion judge was making his order on the only evidence that he had, that being that the mother had not made adecision to return to Brandon. Further, while the mother described her work

schedule in general terms, she did not provide the type ofdetail that would permit an order outlining specific periods of care and control for her. Thus, because the mother’s work

schedule wasnot before the motion judge, all he could do was to outline the nature of her contact in general terms, as so often happens in these cases,and leave it to the parties to work out the details or to return to court with more information on which to base a more detailed order. [31] The motion judge did not err in leaving these details to be resolved by the parties in the future. IV. DECISION

[ 32 ] For these reasons, we would dismiss the mother’s appeal with costs to the father throughout. J.A. J.A. J.A.