Singh v. Pierpont, 2015 MBCA 31

Citation: Singh v. Pierpont, 2015 MBCA 31 Date: 20150407 Docket: AF14-30-08211 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin BETWEEN : ) J. W. Feldschmid MICHIKO NATALIE SINGH ) for the Appellant ) (Applicant/Respondent) Respondent ) C. B. Paul ) for the Respondent - and - ) ) Appeal heard WILLIAM EDWARD PIERPONT ) March 30, 2015 ) ) Written Reasons: (Respondent/Applicant) Appellant ) April 7, 2015 HAMILTON J.A. The Issue [ 1 ] This is an appeal from a discretionary interim order dated June 3, 2014 (the June 3rd order), pronounced pursuant to s. 6 (

c) of The Child Custody Enforcement Act C.C.S.M., c. C360 (the Act ), requiring the appellant (the father) to return the parties’ four- year-old son to Winnipeg to be in the care of the respondent (the mother) pending a final resolution of this matter. That order was made in the context of the mother’s application for custody of the son pursuant to s. 4 of the Act and the father’s application, pursuant to s. 3 of the Act , for an order that the court enforce an interim order granted in Hawaii on March 12, 2014 (the Hawaii order), giving him sole custody.

Sections 3 and 4 of the Act read as follows: Enforcement of extra-provincial custody orders 3 A court on application shall enforce, and may make such orders as it considers necessary to give effect to, a custody order made by an extra-provincial tribunal as if the custody order had been made by the court unless it is satisfied on evidence adduced that the child affected by the custody order did not, at the time the custody order was made, have a real and substantial connection with the province, state or country in which the custody order was made.

New order in place of extra-provincial custody order 4(1) Notwithstanding the existence of a custody order affecting a child made by an extra-provincial tribunal, a court on application may make a custody order in respect of the child that differs from the custody order made by the extra-provincial tribunal, if it is satisfied (

a) that the child affected does not, at the time the application is made, have a real and substantial connection with the province, state or country in which the custody order made by the extra-provincial tribunal was made or was last enforced; and

(

b) that the child has a real and substantial connection with Manitoba or all the parties affected by the custody order are habitually resident in Manitoba. Residence for proceedings only 4(2) A person who is within Manitoba solely (

a) for the purpose of making or opposing an application under this Act ; or (

b) for the purpose of avoiding or attempting to avoid compliance with a custody order made by an extra-provincial tribunal; shall be deemed not to be habitually resident in Manitoba for the purposes of this Act . Consideration of court 4(3) In making an order under this section, the court shall (

a) give first consideration to the welfare of the child regardless of the wishes or interests of any person seeking or opposing the order; and (

b) treat the question of custody as of paramount importance and the question of access or visitation as of secondary importance. The Facts [ 2 ] As background, the parties were married in Hawaii in 2010 and their son was born there on July 13, 2010. Six weeks later, the family moved to Winnipeg, where the mother had obtained employment. In July 2011, the family returned temporarily to Hawaii, where they separated and the father commenced divorce proceedings. In November 2011, the mother moved back to Winnipeg with the son pursuant to an interim order granted in the divorce proceedings.

In 2013, the divorce in Hawaii was finalized and they were granted joint custody of the son, with the mother having sole physical custody and the father having access. The mother and the son continued to live in Winnipeg and the father lived in Hawaii. [ 3 ] The father alleged that the mother was not complying with the access provisions of the divorce order, so he returned to court in Hawaii in 2013 to have the order varied.

The problems continued, and, in a subsequent proceeding in Hawaii on March 12, 2014, the court granted him sole custody and authorized him to go to Winnipeg to pick up the son if the son was not returned within 30 days. Save for the March 12 hearing, which took place in her absence but with her counsel present, the mother participated fully in these proceedings. [ 4 ] On April 4, 2014, the mother filed an application for custody under s. 4 of the Act and also an application for interim custody. The father filed his application under s. 3 of the Act for an order that the court enforce the Hawaii order.

On April 11, 2014, the application judge granted interim custody of the child to the mother pursuant to s. 6 of the Act and set up a hearing to determine the issue of real and substantial connection, required for the determinations under both ss. 3 and 4 of the Act. [ 5 ] On April 16, 2014, another judge of the Manitoba court granted the father access to the child pursuant to a consent order. During the father’s access, he took the child back to Hawaii in breach of the Manitoba access order, and, to date, the child remains in Hawaii.

Upon learning that the child would not be returned to Manitoba, the mother applied in Manitoba for an order that he be returned. [ 6 ] On May 29, 2014, the application judge ruled on the question of “real and substantial connection” for the purpose of the applications before her. She noted that there was no issue between the parties that the child had a real and substantial connection to Manitoba and that the dispute concerned whether he had a real and substantial connection to Hawaii.

She found that the child did not have a real and substantial connection with Hawaii when the Hawaii order was pronounced and when the mother made her application under s. 4 of the Act . Subsequent to those findings on June 3, 2014, she ordered that the child be returned to Winnipeg forthwith. The father has not complied with that order. Decision [ 7 ] The father asserts that the application judge erred in law when she concluded that the son did not have a real and

substantial connection to Hawaii on the date that the Hawaii order was pronounced. Briefly stated, his position is that the ongoing Hawaii proceedings, with the full participation of the mother, create a presumptive connecting factor of the son to Hawaii that the mother did not overcome. [ 8 ] We decline to address these arguments as, in our view, any comments would be premature, given that the final outcome of the proceedings under the Act is not known.

That is, it is premature for this court to consider the father’s arguments because they will become moot if the application judge does not rule in favour of the mother in her application under s. 4 of the Act. One of the possible outcomes in that case is that the application judge could confirm the Hawaii order. [ 9 ] The June 3, 2014 interim order which is under appeal is a discretionary order that flows from the earlier interim custody order granted on April 11, 2014.

The application judge concluded that it was in the best interests of the son to be returned to the mother with whom he had lived since November 2011, when he and the mother returned to Winnipeg following the separation. The father has not persuaded us that the application judge erred in ordering the return of the son and her June 3rd order is entitled to deference. As stated by Steel J.A. in Kozub v. Burgess , 2013 MBCA 64 (at para. 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 ). [ 10 ] We urge the parties and their counsel to proceed as expeditiously as possible with the pending application under the Act and/or their proceedings in Hawaii. The delay caused by this appeal is concerning. [ 11 ] The appeal is dismissed and the mother shall have costs of the appeal. J.A. I agree: J.A. I agree: J.A.