Wilson v. Funk, 2015 MBCA 57

Citation: Wilson v. Funk, 2015 MBCA 57 Date: 20150610 Docket: AF14-30-08295 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella BETWEEN : ) T. D. Baryluk ) for the Appellant MATTHEW THOMAS CRAIG WILSON ) ) K. L.

Webb (Petitioner) Respondent ) for the Respondent ) - and - ) ) Appeal heard and TABITHA ANNE FUNK ) Decision pronounced: ) June 8, 2015 (Respondent) Appellant ) ) Written reasons: ) June 10, 2015 MAINELLA J.A. (for the Court): Introduction [ 1 ] The mother of a seven-year-old child appeals an interim order under The Family Maintenance Act , C.C.S.M., c. F20, concerning care and control of the child. She also moves to adduce fresh evidence on the appeal relating to the ultimate disposition of criminal charges against her that were pending at the time the interim order was made.

At the hearing of the appeal, the motion to adduce fresh evidence was allowed and the appeal was dismissed with reasons to follow. These are those reasons. Background [ 2 ] The motion judge determined that the best interests of the child would be served by an order of joint custody where the father would have primary care and control and final decision-making power, and the mother would have secondary care and control, on alternative weekends and after school one day a week, with a condition prohibiting her use of alcohol or drugs when the child was with her.

The interim order was pronounced on February 21, 2014, but not entered until November 6, 2014. A stay of the interim order was not sought pending the appeal. Discussion [ 3 ] Interim orders in family law are discretionary decisions that are largely fact driven and, therefore, will not be interfered with on appeal absent “a serious error in principle, a complete misapprehension of the evidence, or the order being so clearly wrong that it amounts to an injustice” ( Cottyn v. Anderson , 2014 MBCA 48 at para. 7 , 306 Man.R. (2d) 87; and see Kozub v.

Burgess , 2013 MBCA 64 at para. 8 ). [ 4 ] The law regarding interim custody orders is well-known. Children should not be subject to needless disruption of their lives on a short-term basis. Absent a compelling reason that the child’s best interests demand immediate change, the continuity of the status quo in all matters relating to custody should be preserved prior to a trial. Also, only in limited circumstances can a motion judge

deciding a custody issue make a finding of fact or a determination of credibility on material facts in dispute that will affect the result (seeGaray v. Jackson (1989), (MB CA), 61 Man.R. (2d) 225 at para. 6 (C.A.); Hultman v. Hultman (1990), (MB CA), 68 Man.R. (2d) 228 at para. 7 (C.A.); Dwyer v. Dwyer (1994), (MB CA), 97 Man.R. (2d) 195 atpara. 4 (C.A.); Kiesman v. Lesperance (1995), (MB CA), 107 Man.R. (2d) 231 at para. 2 (C.A.); McGillis v.McGillis (1996), (MB CA), 113 Man.R. (2d) 73 at para. 1 (C.A.); McMechan v.

McMechan 2005 MBCA 4 at para.6, 192 Man.R. (2d) 79; and Kozub at para. 10). [5] There was conflicting affidavit evidence before the motion judge as to whether the mother had a substance-abuseproblem that would justify disturbing the status quo of a shared parenting arrangement that had previously existed by agreement of theparties for over three years.

While the disputed affidavit evidence before the motion judge may not have been the clearest of cases toallow him to find that the mother’s residence was not the “type of environment” a young child should be in and that the mother had an“issue” with alcohol and drugs, we are not satisfied that there is a cogent reason to interfere with his order. [6] We are advised by counsel that despite the passage of over 15 months from when the order was pronounced, the homeassessment report is not yet completed and the custody trial will not be heard likely until the fall of 2016.

This unsatisfactory situationwill not be improved by appellate intervention with the interim order. [7] The repeated message of this court is that an appeal of an interim order is not the best way to resolve a family lawdispute. Parties are almost always better served to devote their efforts and resources to perfecting their case, case management and, ifnecessary, a trial. This is such a case. Extensive delay has occurred to bring this appeal on. Because no stay of the interim order wasobtained that long delay has created a new status quo for the child that should not lightly be disturbed.

Any change of the current statusquo is a matter that is best left to the trial judge to decide on a proper record. Conclusion [8] In the result, the motion for fresh evidence is allowed and the appeal is dismissed with costs. J.A. J.A. J.A.