Morrill v Morrill, 2016 MBCA 66

Citation: Morrill v Morrill, 2016 MBCA 66 Date: 20160620 Docket: AF15-30-08468 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN: NADINE NICOLE MORRILL ) D. R. Kropp and) A. M. Griffin ) for the Appellant (Petitioner) Appellant ) ) M. L.

Karpiak ) for the Respondent- and - ) ) KEVIN KARL MORRILL ) Appeal heard: ) April 13, 2016 ) (Respondent) Respondent ) Judgment delivered: ) June 20, 2016 On appeal from 2014 MBQB 161, 308 ManR (2d) 223 MONNIN JA [1] This is an appeal, following a trial, from an order dismissing the appellant’s request to relocate to California twominor children of her marriage to the respondent. [2] The trial was heard over an eight and one-half-day period in June of 2014. The trial judge released her reasons fordecision in July of 2014. A subsequent hearing was held on August 14, 2015, to settle the issue of costs.

The appellant filed her noticeof appeal on September 24, 2015. The nearly one-year delay in settling the matter of costs was never explained, but remainsproblematic. [3] At the time of trial, the appellant had primary care and custody of the daughter of the marriage, who was then fifteenand one-half years of age, and the son, who was then seven years of age. [4] The appellant raises numerous grounds of appeal.

She alleges that the trial judge erred in law when she failed to giveappropriate deference to her wishes as the primary caregiver; 2) she erred in not considering the wishes of the children, and in particularthose of the 15-year-old daughter who had expressed a clear wish to relocate; 3) the trial judge erred when she asked the appellantwhether she would remain in Winnipeg if her request to relocate the children was denied (the double bind question); 4) the trial judgefurther erred when she took into consideration the best interests of an adult daughter who was not in issue in the proceedings before her;5) the trial judge erred in accepting opinion evidence from a witness not qualified as an expert; 6) the trial judge erred in introducing andrelying on the writings of a social scientist not called as a witness; and finally, 7) the trial judge erred in her award of costs. [5] Before dealing briefly with some of the facts, it is useful to recall the standard of review in a case of this nature.

Itwas restated by Marc Monnin JA in this Court’s decision in Rogers v Rogers, 2011 MBCA 50, 268 ManR (2d) 77 (sub nom Delichte vRogers) (hereinafter referred to as Delichte) in these words (at para 18): The standard of review in custody cases is not disputed. With respect to this type of order, an appellate court should not disturb thedecision in the absence of a material error, a serious misapprehension of the evidence or an error of law. See Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R. (2d) 40; 202 W.A.C. 40. As noted by Justice L’Heureux-Dubé inthat case (at para. 10):

“.... [Trial judges] must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with anappreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the parties andto their children.

Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courtswhen such decisions are reviewed.” In [Van de Perre v Edwards], 2001 SCC 60 , [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001SCC 60, Justice Bastarache affirmed that the basic principles of appellate review were fully applicable to child custody cases. [6] In her reasons, the trial judge set out the background of the parties and the history of their marriage as follows (atparas 5-14): The mother and the father were married on September 25, 2004.

At the time of the marriage the mother had two children from twoprevious relationships; Samantha, born December 31, 1994 and Kaitlyn, born November 10, 1998. Rylan, who is a child of these parties,was born May 19, 2007. Samantha was ten years old and Kaitlyn was six years old when the parties married. Neither of the girls’ biological fathers wereinvolved in their lives. The respondent is the only father that these two girls have ever known. The father legally adopted Kaitlyn in2009 and has stood in loco parentis to Samantha since the time of the marriage. On April 17, 2011 the parties separated.

On April 21, 2011, the father moved out of the marital home. In the months leading up to theseparation, the father was depressed and withdrawn from the children. Prior to the father’s depression, he was very active and involved in the lives of all three children. This included, but was not limited tocoaching the girls’ sports teams, helping with homework, volunteering at their school and attending school concerts and sports banquets. On April 21, 2011, the mother insisted that she would tell the children about the separation on the way to school, without the fatherbeing present.

The father, who was the more passive personality, complied with what he was told to do by the mother. This pattern ofbehaviour was typical of their relationship throughout the marriage. From April 21, 2011 until February 1, 2012, the father completely withdrew from the children’s lives. They lived with the mother, whowas solely responsible for their care. After the separation, the father was prescribed anti-depressants and due to concerns regarding suicidal thoughts, saw a psychiatrist. In February 2012, the parents jointly agreed to retain Verna Sullivan, B.A.

M.S.W., as a parenting coach to help the father reconcile withSamantha and Kaitlyn, who were refusing to see him, and to assist the father in resuming his relationship with Rylan. The visits withRylan, which were initially supervised, eventually transitioned into overnights, as a result of the recommendations received from Ms.Sullivan and Nancy Vadas, a play therapist engaged to assist the father and Rylan in redeveloping their relationship. Eventually Ms. Sullivan’s role with the family expanded to include providing therapy to assist the various family members in mendingtheir relationships.

On December 10 and 11, 2013, Justice Little granted an interim order granting the father specific periods of physical care and control toRylan. Justice Little also ordered that the father provide a sworn financial statement, personal and business income tax returns for thetaxation years 2011, 2012 and 2013 and notices of assessment or re-assessment for the taxation years 2011, 2012 and 2013. [7] The facts that surround the appellant’s request to relocate the children to California are also set out in the trial judge’sdecision (at paras 15-24):

In October 2012, the mother began a romantic relationship with Arnold “Duke” Witchel who resides in Sacramento, California. Although they had known each other for years from attending annual work related conferences, they began dating in October of 2012, after they had both separated. Their second series of dates occurred in December of 2012 in California, at which time they decided to date each other exclusively. Their third series of dates occurred in January 2013 in Winnipeg, at which time the mother advised the elder daughter, Samantha, that if things worked out, they would be moving to California.

The mother and Mr. Witchel became engaged in 2014. The mother’s employment as a Senior Director and Certified General Accountant for CGA Manitoba was in a state of flux due to a pending merger. She perceived that this would result in a demotion. In 2013, the mother earned $144,709.00 from her position, which included bonuses. In May of 2014 she took a severance package of $150,000.00 and is currently unemployed. The mother has made no attempts to find employment in Winnipeg. However, she applied for a job in Sacramento, at a firm called “Aptify” which Mr. Witchel also works for.

The mother has received an offer with an expected annual salary of $105,000.00 (U.S.), which offer has been kept open until the conclusion and outcome of this trial. Summer Of 2013 On July 7, 2013, the mother met with the father, at which time she told him of the situation with the job merger and that she had found a job in Sacramento, California. She told him that she would like to relocate with the two younger children in order to take this job. The mother gave the father two options, either agree to the move or have the matter litigated in court. The father advised that he would think about it.

On July 22, 2013, the father sent the mother an email wherein he said “I guess we can discuss an agreement”. Based on this, the mother assumed that the father was opting for a settlement rather than litigation. On July 23, 2013, the parties had a second meeting where the mother brought a handwritten note about what she proposed. They discussed meeting with settlement counsel rather than litigation counsel. At the end of the meeting the mother told the father that she would send him a copy of her handwritten notes, which she never did.

The father’s evidence is that he did not agree to a move at that meeting as he wanted to take a few weeks to think about it before they met again. At none of these meetings, nor in her handwritten notes, did the mother disclose to the father that the plan included not only moving the children to California but also included moving into the home of her new boyfriend Mr. Witchel and his two children. The father discussed the proposed move with Verna Sullivan who advised him that it would change his relationship with Rylan forever and he would become a “friendly visitor” or a “stranger” to Rylan. Based on Ms.

Sullivan’s advice the father decided to oppose the move. The mother’s failure to disclose that she was moving to California to live with her new boyfriend in a blended family situation is very troubling. When asked by Ms. Sullivan if she had a new relationship in California, the mother lied. She failed to tell her parents she was moving. Most concerning is the fact that the mother did not tell Samantha that she was moving to California with Rylan and Kaitlyn. In fact, the mother led Samantha to believe that the three of them were merely going on a vacation to California in August 2013.

Assuming the move was taking place, the mother proceeded to register Rylan and Kaitlyn in school in Sacramento. It was while they were in California that the father advised that he was not agreeing to the move. The mother then came back to Winnipeg with Rylan but left Kaitlyn with Mr. Witchel in California. Kaitlyn returned to Winnipeg in time to start school. [ 8 ] In denying the appellant’s request to relocate, the trial judge stated (at paras 88-90): The social capital of the children is in Winnipeg with their extended family, their school, their peers and their community.

These benefits will not possibly be met by moving to California, where they will be thrown into new schools and at times left alone with a step

parent in an untested relationship. The mother has not given any thought as to how Kaitlyn, who is very comfortable in a private Christian school of less than 400 students, where she has gone for the last 10 years, would cope in a public school of 1,900 students. The mother has not given any thought to counselors for Kaitlyn or a play therapist for Rylan.

I am satisfied that the potential detriment to both Rylan and Kaitlyn if the mother was permitted to move with them to California would pose a high degree of risk of long term harm to these two children, as well as their left-behind sister, Samantha. [ 9 ] And she continued (at paras 94, 97-98): After giving careful consideration to the views and plans of the mother, I am strongly of the view that the mother’s wish to move is contrary to the best interests of all three of her children.

I repeat, but it is worth repeating, it is in Rylan and Kaitlyn’s best interests that their deep and long standing relationships with extended family, father, grandparents, sister, great grandmother, school and community not be thrown away. This family recognizes its need to mend itself and it is in the best interests of these children that they remain in Winnipeg in order that this occurs. The negative consequences from the move far outweigh the consequences of the mother losing possibly a higher paying job, or a new life in California with Mr.

Witchel, who testified that he is prepared to continue with a long distance relationship if necessary. [ 10 ] It is of note that, at the time this appeal was heard, Kaitlyn was just shy of her 18th birthday and, therefore, in all practicality, we are dealing with a request to relocate the son of the marriage, who is now 9 years old. [ 11 ] I consider initially the ground of appeal that deals with the double bind question; that is, whether the trial judge erred when she asked the appellant whether she would remain in Winnipeg if her request to relocate the children was denied. [ 12 ] The law on this issue is well settled.

The question should not be asked of the parent seeking the relocation, as it opens the door to simply maintaining the status quo . In Spencer v Spencer , 2005 ABCA 262 , 371 AR 78, we find the following (at para 18): In conducting this inquiry, it is problematic to rely on representations by the custodial parent that he or she will not move without the children should the application to relocate be denied. The effect of such an inquiry places the parent seeking to relocate in a classic double bind.

If the answer is that the parent is not willing to remain behind with the children, he or she raises the prospect of being regarded as self interested and discounting the children’s best interests in favour of his or her own. On the other hand, advising the court that the parent is prepared to forgo the requested move if unsuccessful, undermines the submissions in favour of relocation by suggesting that such a move is not critical to the parent’s well-being or to that of the children.

If a judge mistakenly relies on a parent’s willingness to stay behind “for the sake of the children,” the status quo becomes an attractive option for a judge to favour because it avoids the difficult decision the application presents. [ 13 ] At first blush, it would appear as if the trial judge erred when she asked the appellant whether she would remain in Winnipeg if her request to relocate was denied but, because the trial was also dealing with spousal support for the appellant in the event that her relocation request was denied, knowledge of the appellant’s future intentions was necessary for the trial judge to address that issue.

It is clear from the transcripts that the trial judge was aware of the caution not to canvass that issue, but she justified her having done so in delivering her reasons with respect to costs when she stated: I indicated earlier the mother answered the question as to what her plans were if she wasn’t allowed to move with the children. I asked because [ sic ] her this question because she was asking for spousal support in the event she couldn’t move to California with the children.

So that implied to me -- my memory of the trial, which took place over one year ago, -- that her plan was not to move if she couldn’t be successful in moving with the children. I needed clarity as spousal support was also an issue at the trial. The reason I now remember asking the question was she was asking for spousal support in the event she wasn’t permitted to relocate with the two children. That is why I asked the question you normally are not supposed to ask. She invited that question in light of her claim for spousal support.

[14] I accept the trial judge’s reasoning and, in the context of this case, do not find that she erred when she asked thequestion of the appellant. I am further satisfied that very little turned on the appellant’s answer, and I would dismiss this ground ofappeal. [15] I now move on to deal with the ground that the trial judge erred in taking into consideration the best interests of an adultdaughter.

The trial judge devoted some 14 paragraphs of her reasons in analyzing the relationship between the appellant and her firstchild, who at the time of trial was an adult. [16] The appellant argues that the trial judge considered the needs of an adult daughter over the needs and wishes of theappellant and her two minor children, and thereby committed an error in law.

The respondent argues that what the trial judge did was toconsider the relationship between the eldest daughter and the appellant in her general consideration of the best interests of the minorchildren. [17] There is no doubt that the relationship between the appellant and her adult daughter is presently dysfunctional. I cantherefore understand that the trial judge could look at that relationship in order to consider how the appellant might deal with her minorchildren. In my view, however, she placed far more emphasis on that relationship than was required to address the issue that was beforeher.

I consider the majority of the trial judge’s comments with respect to that relationship as irrelevant to the issue that she was to decide,but I am not prepared to go as far as to say that she erred in law. I view her comments more in the nature of what weight should beattributed to certain evidence, and that is within the purview of a trial judge. Accordingly, I would dismiss this ground of appeal. [18] I now move on to the appellant’s allegations that the trial judge failed to consider the wishes of the appellant as theprimary caregiver and those of the children, especially the 15-year-old daughter.

As these grounds are similar in their nature, I deal withthem as one. [19] In advancing these grounds of appeal, the appellant relies on this Court’s decision in Delichte. More specifically, inher factum she sets out the following excerpt from that decision (at para 22): Once a material change in circumstances justifying a variation has been found, the court must proceed to analyze what is in the bestinterests of the child. That analysis must be done in light of the circumstances of the new location and its impact on the child, giving dueweight to the custodial parent’s views.

As noted by Rowles, J.A. in Orring v. Orring (2006), 2006 BCCA 523 , 232 B.C.A.C.232; 385 W.A.C. 232; 32 R.F.L. (6th) 253; 2006 BCCA 523 (at para. 55): “There is nothing in Gordon v. Goertz [ (SCC), [1996] 2 SCR 27] to suggest that possible negative consequences froma proposed relocation should undermine the weight given to a custodial parent’s views, contrary to the judge’s analysis in this case. Both Lowcay v. Lowcay [2000 BCCA 447, 8 R.F.L. (5th) 313], and Ganson v.

Ganson (2003), 2003 BCSC 544 , 121A.C.W.S. (3d) 1097; 2003 BCSC 544 (B.C.S.C.) confirm that mobility cases inevitability [sic] involve some degree of uncertainty aboutwhat may happen in the future following a relocation but that alone is no reason to disregard the custodial parent’s views about thepotential benefits. It is true that economic prospects may dissolve, relationships may fail and educational opportunities may disappoint.

Nonetheless, barring an improper motive reflecting adversely on the appellant’s parenting ability - and there was no such impropermotive suggested here - the judge ought to have accorded great weight to the appellant’s views about the prospective benefits of therelocation. [20] The fact that a trial judge rules against the wishes of an applicant to relocate does not, in and of itself, lead to theconclusion that the judge did not respect or take into consideration the wishes of a primary caregiver. That consideration is but oneelement of a series of issues to be considered by a judge hearing such a case.

See Gordon v Goertz, (SCC), [1996] 2SCR 27 at para 49. [21] One however cannot consider the directives in para 49 without also considering what McLachlin J (as she then was)wrote (at para 50): In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location mustbe weighed against the continuance of full contact with the child’s access parent, its extended family and its community.

The ultimatequestion in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [22] I accept the respondent’s argument that there is nothing in the reasons of the trial judge that suggests that she did notgive serious and detailed consideration to the wishes of the appellant or her minor daughter. She concluded that the wishes of theappellant did not align with the best interests of her children.

All things being equal, the trial judge was entitled to come to thisconclusion, and I would not consider that she failed to give due deference to the wishes of the appellant. [23] However, in my view, all things were not equal, as my treatment of the two following grounds of appeal willdemonstrate. [24] I now deal with the appellant’s allegations that the trial judge introduced into the trial process, and thereafter relied on,commentary by a social scientist and the theories that he propounded to justify the decision she arrived at, as well as her reliance on

opinion evidence from a witness who was not qualified as an expert. [ 25 ] The first ground of appeal arises as a direct result of the trial judge’s initiative when, at the conclusion of the evidence of a witness, Verna Sullivan, she asked the following of the witness: Q And I don’t know if you can answer me, and if you can’t, that’s fine. I don’t know if you’re familiar with, and you can tell me whether you’re familiar with some of the social science literature on relocation, particularly papers and articles and research by Dr. William Austin (phonetic). A Not specifically, no. Q Okay.

But I don’t -- having, having said that, I’m just wondering if you could comment on this, and if you can’t, that’s fine. What he says is if there is restrictive gatekeeping, then children are at a greater risk by shutting the father out, the child is denied the benefit of resources that the father brings to the relationship. There is diminished social capital. And then in another

article he talks about the court will want to know how supportive the moving custodial parent will be as a gatekeeper in keeping the other parent involved with the child. Can you comment on that, and if you can’t -- based on your experience as a parenting coach, not on the validity of this research because I’m not giving you the results, I’m just telling you -- A Um-hum. Q -- some of the themes -- A Right. Q -- and if you can’t, you can’t. A I think that that’s what I was alluding to -- Q Okay, so if you can -- A -- earlier in that Ms. Morrill struggled with the amount and the type of contact that Mr.

Morrill had with Rylan previously. [ 26 ] Thereafter, in preparation for the closing submissions of counsel, the trial judge again refers to articles written by Dr. Austin, an American psychologist, setting out his theories dealing with the concept of social capital and gatekeeping. Neither of these concepts were issues raised by the parties themselves: THE COURT: Okay. Thank you. Okay. And before we recess, I will give counsel, okay, I just want to again re-state that in my examination of Verna Sullivan I asked her about articles written by Dr.

William Austin, specifically with respect to gatekeeping and social ... MR. KROPP: Capital. THE COURT: Capital. And I’ve produced for both, printed for both counsel three documents. One is basically the cover page from his website. Another is an

article entitled Relocation, Research And Forensic Evaluation,

Part 2: Research In Support Of The Relocation Risk Assessment Model, Family Court Review, 2008, Association of Family Conciliation Courts. And the third one is Parental Gatekeeping And Child Custody, Child Access Evaluation,

Part 1: Conceptual Framework Research And Application. And that’s a Family Court Review, 2013.

[27] The trial judge again deals with the concepts of social capital and gatekeeping when she sets out in her reasons howthese concepts can be utilized by her in arriving at her decision with respect to relocation. She wrote (at paras 78-79): I referred counsel to two published articles which deal with relocation and child custody evaluation. The first

article was written by Dr.William G. Austin, and published in Family Court Review, Vol. 46, No. 2, April 2008 347-365 (2008 Association of Family andConciliation Courts), entitled “Relocation, Research and Forensic Evaluation:

Part II: Research in Support of the Relocation RiskAssessment Model”. The second

article is entitled “Parental Gatekeeping and Child Custody/Child Access Evaluation:

Part I:Conceptual Framework, Research and Application” co-authored by Dr. William Austin with Marsha Kline Pruett, H.D. Kirkpatrick,James R. Fiens and Jonathan W. Gould, and published in Family Court Review, Vol. 51 No. 3, July 2013 485-501. In argument, both counsel referred to the concepts of gatekeeping and social capital that were discussed in these articles.

It is notnecessary for me to comment about the findings of this social science research, except to point out that the concepts of gatekeeping andsocial capital provide a useful tool against which I can measure my decision that the proposed move is contrary to the best interests of thechildren. [28] As set out in the above-noted quote, the trial judge averts to the fact that the parties dealt with the content of thosearticles when making their final submissions.

That, however, is misleading because, in my view, counsel were simply responding to thetrial judge’s direction that they should do so. [29] The appellant alleges that the trial judge was in error when she introduced, and then relied on, the concepts of“gatekeeping” and “social capital” in arriving at her decision.

This, the appellant argues, she did instead of focussing on the test set outin Gordon as she should have done. [30] The respondent responds by arguing that the trial judge was only highlighting the two concepts as being useful toolsagainst which to measure whether the proposed relocation of the children was contrary to their best interests. In the alternative, he arguesthat, if the trial judge did commit an error, it was not one that is material to the decision at which she arrived. [31] It is not the role of a trial judge to introduce evidence, information or concepts into a trial on his or her own initiative.

That is the role of counsel for the parties. Furthermore, this is not an instance in which the trial judge could take judicial notice of theconcepts that she introduced. [32] It has long been acknowledged that counsel for the parties are to have conduct of a trial, and it is counsel who mustdecide what is put before the judge. It is not for the judge to consult and rely upon outside or professional literature on his or her ownmotion and, even more so, introduce such material into a trial.

To do so, as in this case, is an error and the practice followed by the trialjudge in this case should be highly discouraged. [33] Although stated in a criminal prosecution, what Brooke JA of the Ontario Court of Appeal wrote in R v Parnell (SD)(1995), (ON CA), 80 OAC 297, supports my view of the role of a trial judge (at para 33): I agree with the appellant’s submission with respect to the reference to literature in the reasons for judgment.

It is not open to judges torely upon such literature unless it has been accepted after being properly introduced and tested in evidence. [34] The same view was expressed in the Supreme Court of Canada decision in R v Marquard, (SCC),[1993] 4 SCR 223, where L’Heureux-Dubé J, in dissent, but not on this point, wrote (at pp 273-74): The law with respect to the admission of learned treatises into evidence has not been greatly altered since R. v. Anderson (1914), (AB CA), 22 C.C.C. 455 (Alta. S.C.).

Anderson requires that, in order for a learned treatise to be read into the body ofevidence which the jury considers, it must first be adopted by the expert as authoritative. In this case, Dr. Turrall was unaware of thestudies cited by the Crown, and of course, could not adopt them as authoritative. There are a number of different views regarding the rules which should govern the admission of learned treatises.

Anderson embodies aparticularly strict approach: if a witness is asked about a text and expresses ignorance of it or denies its authority, no further use can bemade of it by reading extracts of it into evidence. However, if the witness admits its authority, then he may be asked to explain anyapparent differences between its opinion and his own.

See: Sopinka, Lederman and Bryant, The Law of Evidence in Canada, supra, atp. 562. [35] The prohibition on trial judges introducing on their own initiative scientific articles was also clearly expressed in Ring vCanada (Attorney General) et al, 2010 NLCA 20, 297 Nfld & PEIR 86, leave to appeal to SCC refused, [2010] SCCA No 187 (QL),where Cameron JA wrote (at para 26):

It follows that scientific opinion must be presented to the court through the appropriate expert either in oral evidence or, in somecircumstances, in an affidavit. A judge may not make findings on the basis of published scientific treatises discovered on the research ofthe judge or a bibliographer. Also see R v Désaulniers (1994), (QC CA), 93 CCC (3d) 371 at 376 (Que CA); Gallant v Gallant, 2009 NSCA 56 atpara 12, 277 NSR (2d) 265; and R v Awer, 2016 ABCA 128 at para 62 . [36] In

summary, therefore, I am of the view that the trial judge erred in raising the psychological theories of Dr. Austin onher own initiative, and thereafter relying on that opinion in arriving at her decision. [37] The next ground of appeal that I deal with is the trial judge’s reliance on opinion evidence from a witness who was notqualified as an expert for the purpose of this trial. [38] Verna Sullivan is a social worker with a Master’s degree in that field. She works as a parenting coach, a therapist and asan assessor.

She has testified many times in the courts of this province, and is a recognized expert in her field. Her role in this case isdescribed in the quote from the trial judge’s reasons that I have referred to in para 6 of these reasons. [39] Ms Sullivan was called to testify about her role as the family’s parenting coach. She was not qualified as an expert. Itwas clearly stated by the parties that she was not being called in her capacity as an expert. Therefore, according to the normal rules ofevidence, Ms Sullivan could only testify as to things that she saw or did in her role as a parenting coach.

Although there was a fairamount of hearsay evidence adduced from Ms Sullivan during the course of her testimony, that is not the issue on this appeal and littleturns on that matter. [40] However, following her examination and cross-examination, earlier set out in para 25 of these reasons, Ms Sullivan wasasked by the trial judge for her opinion or knowledge of the writings of Dr. Austin and the concepts of gatekeeping and social capital. This is not the type of question that counsel or a judge should put to a witness who has not been qualified as an expert. Ironically, MsSullivan had never heard of Dr.

Austin. [41] Even more troubling is the number of times Ms Sullivan was asked to provide an opinion during the course of hercross-examination. Why this course of questioning was not objected to or prevented from occurring is beyond my understanding, butprobably demonstrates the shortsightedness, by all concerned, of not having this witness qualified as an expert.

She was not called assuch, but she was treated as if she was. [42] The appellant now argues that allowing such evidence was an error, and that whatever opinion Ms Sullivan did advanceshould basically be expunged. [43] The respondent replies that the evidence of Ms Sullivan was based on her role as a parenting coach, and she did notexpress an opinion on the relocation of the children.

However, this argument, as stated above, belies my reading of the transcript of MsSullivan’s cross-examination, where she was asked on numerous occasions to express her opinion on a wide range of issues that couldaffect the trial judge’s ultimate decision on whether to allow the relocation or not. [44] In my view, the trial judge’s invitation to Ms Sullivan to comment on the work of Dr. Austin demonstrated that she wastreating her evidence as that of an expert, even though she tried to rectify the matter when she stated in her reasons that she was in factnot doing so.

However, by that time the trial judge’s comments were akin to attempting to get the toothpaste back in the tube. It doesnot work and that is evidenced by what the trial judge wrote in her reasons (at paras 64, 67 and 70): When asked about this plan, Ms. Sullivan testified that this family’s social system is too complex, with too many relationships that needto be mended, for therapy to properly work from a distance. Further, Ms. Sullivan commented that the relationship with Mr. Witchel andhis two children would add further issues of being in a blended family that would also need to be addressed.

I believe that the mother and Kaitlyn have an idealized view of life in California with Mr. Witchel, his children and extended family. Kaitlyn believes that they will both (the mother and Kaitlyn) become part of the Witchel family and they will eventually replace theirWinnipeg family. However, Kaitlyn and her two siblings need to learn that relationships and people are not disposable, nor are theyreplaceable. The grandparents cannot be replaced by Mr. Witchel’s mother, nor can Samantha be replaced by Mr. Witchel’s twochildren. I agree with Ms.

Sullivan that the ability for these children to sustain relationships, have trust in relationships and even life skills, comesback to an ability to hold onto these important relationships. [45] It is important to note that a trial judge must perform a gatekeeper function with respect to expert evidence to ensurethat the fact-finding process is not distorted by the potential dangers of expert evidence. Abdication of that gatekeeper function is anerror of law.

See R v Pearce (ML), 2014 MBCA 70 at paras 68 and 74, 310 ManR (2d) 14. [46] There are times when evidentiary errors committed during the course of a trial can be overlooked by an appellate court

because the errors do not affect the ultimate outcome. This is not such a case. The errors, especially the reliance on the writings of Dr. Austin, cannot be overlooked as they materially affect the outcome of this case. Because of that, the trial judge’s decision does not warrant this Court’s deference. [ 47 ] If this were a criminal matter a new trial would be ordered. That, however, is not how this Court deals with family or civil matters.

It is, therefore, incumbent on this panel to consider the appellant’s request in the face of the existing law and the evidence that was properly admissible, and come to a decision without considering the opinion evidence of Ms Sullivan or considering any reference to the writings of Dr. Austin. [ 48 ] My starting point in reconsidering the appellant’s request to relocate is to consider the guidelines set out by McLachlin J in Gordon . She wrote (at para 49): The law can be summarized as follows: 1.

The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. 2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4.

The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia : (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[ 49 ] The appellant has placed before the Court valid and reasonable reasons justifying her desire to relocate along with her children. That desire is fueled both by employment and financial reasons, and a new romantic relationship. The appellant had achieved a certain level of professional success in her chosen field, but, through no fault of her own, the position she held was eliminated. She could probably still find work in her chosen field in Winnipeg, but the evidence indicates that it would be at a much reduced level of income.

In California, she has secured employment, which is still available to her years after having secured it, and at a salary level similar to what she was earning in Winnipeg before her prior position was eliminated. [ 50 ] It is also evident that, because of the respondent’s mental health issues, the appellant is, and will continue to be, the primary caregiver for the minor son of the marriage.

I refer to the son alone because, as stated previously in these reasons, for all practical reasons by the time this decision is rendered, the minor daughter will be, or will become, an adult child within a matter of months. [ 51 ] In the past, excluding the one with the respondent, the appellant has been involved in what might be described as questionable relationships, but her choice in partners has never prevented her from discharging her duties as a competent parent in an appropriate and acceptable manner.

Notwithstanding her present estrangement from her eldest daughter, the appellant could be described as having been a good mother and parent to her three children. [ 52 ] In addition, although her present romantic relationship might have appeared to be a rushed affair, it has proven to have some strength, as it continues to this day, notwithstanding the difficulties that can be associated with a long-distance relationship. [ 53 ] Militating against the appellant’s desire to relocate is the respondent and the children’s maternal grandparents. [ 54 ] The grandparents, from my reading of the evidence, have, until the appellant expressed her desire to relocate, always been a steady and ongoing source of support for their daughter and her three children.

They have been well intentioned in opposing the appellant’s desire to relocate, but one might question whether their view of what is best for their grandson is tainted by the reality of diminished contact with him, should the appellant be allowed to relocate. They have played an important role in the lives of the appellant’s three children, but relocation does not mean that they will now be shut out from their grandson’s life. It simply means that the relationship will change.

It might also be an opportunity for the appellant to deal with her life without the safety net of her parents’ presence. [ 55 ] As to the respondent, I accept that he would also oppose this move as he has been working hard to re-establish contact and bonding with his son, but one must not lose sight of the fact that the appellant has been the primary caregiver to all three of her children since birth, and that is not a situation that is about to change. [ 56 ] In Delichte , in arriving at its decision to reverse the trial court and allow the mother to relocate, this Court made certain pronouncements that, in my view, have applicability to the decision that we must arrive at, namely (at para 33): While maximum contact is to be promoted, it is not an absolute.

The reasonableness of the mother’s desire to pursue further education, when coupled with the fact that she is the custodial parent and should remain so, lead to the conclusion that her departure should not be held hostage to the renascent relationship between the father and his son, especially if there are other means of allowing this to occur. [ 57 ] I fully realize that the relocation of children is a gut-wrenching situation for those involved in seeing loved ones moving away and their relationship forever changing. However, the law is that, in certain circumstances, relocation is to be permitted.

In the present case, when I consider the admissible evidence in light of the guidelines that the Supreme Court of Canada set out in Gordon , I come to the conclusion that the appellant has made out her case, and that she should be allowed to relocate to California with the children. [ 58 ] However, as this Court set out in Delichte , that relocation is not to occur unless and until the parties have come to an agreement as to the access that the respondent is to have with his son. A starting point to this discussion would no doubt encompass what the appellant proposed in her trial testimony.

If the parties cannot agree to that access, the matter is to be returned to the trial court, before a different judge, for a decision on that point. [ 59 ] Because of this result, it stands to reason that the order of costs made subsequent to the trial cannot stand. I would, accordingly, set it aside. However, I am not prepared to make an order of costs in favour of either party, and I am of the view that each party should bear their own costs, both at trial and in this Court. JA I agree: JA

I agree: JA