Morrill v Morrill, 2016 MBCA 93

Citation: Morrill v Morrill, 2016 MBCA 93 Date: 20160927 Docket: AF15-30-08468 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: NADINE NICOLE MORRILL ) D. R. Kropp ) for the Appellant ) (Petitioner) Appellant ) M. L. Karpiak ) for the Respondent- and - ) ) Chambers motion heard:KEVIN KARL MORRILL ) September 22, 2016 ) ) Decision pronounced: (Respondent) Respondent ) September 27, 2016 HAMILTON JA [1] The respondent (the father) seeks a stay order, under

section 65.1 of the Supreme Court Act, RSC 1985, c S-26,pending the determination of his application for leave to appeal to the Supreme Court of Canada. He wishes to appeal this Court’sdecision permitting the petitioner (the mother) to relocate to California with their son (9 years old) and daughter (soon to be 18 years old)and seeks a stay of the judgment permitting that relocation. See 2016 MBCA 66 (the CA decision). [2] The trial judge awarded the parents joint custody, with primary care and control to the mother, and specified care andcontrol of the son to the father. See 2014 MBQB 161, 308 ManR (2d) 223.

She did not permit the mother to relocate with the son andthe daughter to California to live with her fiancé and his two children. She wrote (at paras 97-98): [I]t is in [the son and the daughter]’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 itis 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 newlife in California. [3] In the CA decision, the unanimous panel: • concluded that the trial judge erred by relying on untested social science opinion found in academic articles and on opinionevidence of a social worker who was not qualified as an expert in the trial. • concluded that these errors materially affected the trial judge’s decision and therefore it was not entitled to deference. • reconsidered the evidence at trial, without regard to the impugned opinions, with reference to the principles articulated in Gordon vGoertz, (SCC), [1996] 2 SCR 27, and permitted the mother to move to California with the son and the daughter. [4] The panel also ordered that the relocation was not to occur until the parties agreed to the father’s access with the son,or it was determined by a judge of the Court of Queen’s Bench.

The matter of access was argued in that Court the day before the hearingof this motion, and is on reserve. [5] The father’s application for leave to appeal to the Supreme Court of Canada seeks leave on the following two

questions (the proposed questions): 1. What is the scope of the Court’s gatekeeping function in mobility cases to ensure the child’s best interests are adequately considered? 2. On what basis can an appellate court substitute their finding on mobility for that of the court below? [ 6 ] Given that this is a mobility case, the Supreme Court of Canada’s decision in Gordon is a significant focus of this motion.

Material Filed [ 7 ] In addition to the decision of the trial judge and the CA decision, I have the father’s application for leave to appeal filed with the Supreme Court of Canada, affidavits filed by the mother and the father for this motion and their respective motion briefs. Background Facts [ 8 ] After the parties separated, the father did not see the children for a period of time. The parties agreed to jointly retain Verna Sullivan to be a parenting coach to help the father reconcile with the children. Her role expanded to provide therapy to assist other family members.

Ms Sullivan is a social worker with a master’s degree. She has often been qualified as an expert in Manitoba courts in her field of parenting coach, family therapist and assessor. She was not qualified as an expert witness at this trial. [ 9 ] At the end of Ms Sullivan’s evidence, the trial judge asked her whether she knew about papers and articles written by Dr. William Austin which dealt with concepts in mobility cases that the author calls “social capital” and “gatekeeping”. Ms Sullivan did not know of Dr.

Austin. [ 10 ] Before hearing submissions, the trial judge provided counsel with copies of the articles written by Dr. Austin. In her reasons, she wrote (at paras 78-79): I referred counsel to two published articles which deal with relocation and child custody evaluation. In argument, both counsel referred to the concepts of gatekeeping and social capital that were discussed in these articles.

It is not necessary for me to comment about the findings of this social science research, except to point out that the concepts of gatekeeping and social capital provide a useful tool against which I can measure my decision that the proposed move is contrary to the best interests of the children. [ 11 ] The panel concluded that “the trial judge erred in raising the psychological theories of Dr. Austin on her own initiative, and thereafter relying on that opinion in arriving at her decision” (at para 36 of the CA decision).

The panel cited a number of criminal law decisions in support of this conclusion. [ 12 ] With respect to Ms Sullivan, the trial judge noted in her reasons that Ms Sullivan had not been qualified as an expert and wrote (at para 58): I have not taken into account her evidence with respect to her opinions as to best interests relating to any change in primary care and control or any change in the residence of the children. [ 13 ] The panel concluded that the trial judge wrongly treated Ms Sullivan’s evidence as expert opinion (at paras 40-41, 44- 46): However, following her examination and cross-examination, earlier set out in para 25 of these reasons, Ms Sullivan was asked 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, Ms Sullivan had never heard of Dr. Austin. Even more troubling is the number of times Ms Sullivan was asked to provide an opinion during the course of her cross-examination. Why this course of questioning was not objected to or prevented from occurring is beyond my understanding, but probably demonstrates the shortsightedness, by all concerned, of not having this witness qualified as an expert.

She was not called as such, but she was treated as if she was.

In my view, the trial judge’s invitation to Ms Sullivan to comment on the work of Dr. Austin demonstrated that she was treating herevidence as that of an expert, even though she tried to rectify the matter when she stated in her reasons that she was in fact not doing so.However, by that time the trial judge’s comments were akin to attempting to get the toothpaste back in the tube. It does not work andthat is evidenced by what the trial judge wrote in her reasons (at paras 64, 67 and 70). . . .

It is important to note that a trial judge must perform a gatekeeper function with respect to expert evidence to ensure that the fact-findingprocess is not distorted by the potential dangers of expert evidence. Abdication of that gatekeeper function is an error of law. See R vPearce (ML), 2014 MBCA 70 at paras 68 and 74, 310 ManR (2d) 14. There are times when evidentiary errors committed during the course of a trial can be overlooked by an appellate court because theerrors 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 thisCourt’s deference. [emphasis added] Test for a Stay [14] The parties agree as to what the applicable test is for a stay in these circumstances. [15] The starting points are the three well-known factors set out in RJR—MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311 (see p 334): 1. Is there a serious question to be argued on appeal? 2. Would the applicant suffer irreparable harm if the stay is refused? and 3.

On a balance of convenience, who would suffer greater harm from the granting or the refusal of the stay? [16] When a request for a stay is pending the determination of an application for leave to appeal to the Supreme Court ofCanada, the “serious question” factor must take into account the stringent leave requirement of the Supreme Court of Canada that thequestion must be one of public or national importance or raise an issue of legal importance. Therefore, the issue is not just whether thereis a serious question to be argued, which has been described as a low threshold.

See RJR; and Todosichuk v Daviduik, 2005 MBCA 117. It is whether there is a serious question to be argued that is of public importance, an important issue of law or mixed law and fact that isinvolved in that question, or that the matter is otherwise of such a nature and significance as to warrant a decision by the Supreme Courtof Canada.

See section 40(1) of the Supreme Court Act; Leis v Leis, 2011 MBCA 109, 275 ManR (2d) 55; and Nova Scotia (Minister ofCommunity Services) v BF and BW, 2003 NSCA 125, 219 NSR (2d) 67, in which Cromwell JA (as he then was) stated the issue as“whether there is an arguable issue of law which could qualify for leave to appeal to the Supreme Court of Canada” (at para 11). [17] As well, when cases involve the care and custody of children, the irreparable harm and balance of convenienceconsiderations must also take into account the best interests of the children involved in the dispute.

See Leis at para 7; and Garcia Perezv Polet, 2014 MBCA 82 at para 15, 310 ManR (2d) 48.

For this motion, as the panel did on the appeal, the focus is appropriately on theson, as the daughter will be 18 in November and will no longer be a child of the marriage under the Divorce Act, RSC 1985, c 3 (2ndSupp), for the purpose of custody and access considerations. [18] Therefore, to be successful on his motion for a stay of the CA decision, the father must persuade me that: 1. his proposed questions raise an arguable issue which could qualify for leave to appeal to the Supreme Court of Canada; 2. he will suffer irreparable harm if the stay is refused; 3. he will suffer more harm if the stay is not granted than any harm suffered by the mother if the stay is granted; and 4. it is in the best interests of the son that a stay be granted.

Positions of the Parties Re Arguable Issue [19] The father’s overarching argument is that it is time for the Supreme Court of Canada to revisit Gordon, given thattwenty years has passed since it was decided, and that the Supreme Court of Canada has not granted leave on any mobility case since

then. He asserts that trial and appellate courts have struggled with consistently applying the law set out in Gordon , the result of which is that it is difficult to predict a result in a mobility case. He says that what occurred in this case demonstrates this.

In arguing that further guidance and direction from the Supreme Court of Canada is needed, he refers to two commentaries in his application for leave: Rollie Thompson, “Presumptions, Burdens, and Best Interests in Relocation Law” (2015) 53: 1 Fam Ct Rev 40; and Philip Epstein, “Epstein’s This Week in Family Law”, Family Law Newsletters (1 August 2016). [ 20 ] The father also submits that the analysis in the CA decision was through the lens of the mother’s interests and desires rather than about the son’s best interests, and reflects a presumption in favour of the parent with primary care and control, contrary to Gordon . [ 21 ] The mother disagrees and asserts that Gordon sets out clear guidelines that were correctly applied by this Court, and that there is no need for the Supreme Court of Canada to revisit its decision or provide further guidance.

She says that the fact that the Supreme Court of Canada has consistently refused leave to appeal in relocation cases since Gordon , demonstrates that it is also of that view. Therefore, she says that there is no reasonable chance that it will grant leave to appeal on the proposed questions. [ 22 ] Furthermore, the mother asserts that the father’s application is frivolous and vexatious and is a delay tactic. She equates these circumstances to those in Leis , a mobility case, in which Chartier JA (as he then was) concluded that there was no arguable issue of national importance.

Proposed Question 1: What is the scope of the Court’s gatekeeping function in mobility cases to ensure the child’s best interests are adequately considered? [ 23 ] The father’s position is that the panel erred when it concluded that the trial judge failed in her gatekeeping role during the trial. He says that the panel relied on cases decided in the context of criminal proceedings, which have very different dynamics and considerations than family proceedings. He says that the narrow and strict approach applied by the panel will raise signficiant trial fairness and efficiency concerns in the family law context.

He points to the importance of the principle of proportionality set out in Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87. [ 24 ] With respect to Ms Sullivan, he points out that both parties elected to proceed on the basis that Ms Sullivan’s evidence was significant to decide the best interests of the children, and that she was examined in a flexible manner by counsel for both parties. [ 25 ] The father argues that, in any event, the social science commentary by Dr.

Austin, with respect to “gatekeeping” (which is about facilitating access) and “social contract” (which is about respecting the children’s environment, community, family and other significant relationships) are labels for considerations that are relevant for determinations under section 16(1) of the Divorce Act and

section 39 of The Family Maintenance Act , CCSM c F20. These considerations, he says, were not new concepts for determining the best interests of a child in a relocation case, and were consistent with factors identified in Gordon . [ 26 ] The mother’s response is that the father’s position is untenable. She says that he is, in effect, arguing that the rules of evidence should not apply in family law proceedings, the effect of which would be trial by ambush.

Her position is that the gatekeeper function of a trial judge is well-known, as evidenced by the recent decision in White Burgess Langille Inman v Abbott and Haliburton Co , 2015 SCC 23 , [2015] 2 SCR 182. Proposed Question 2: On what basis can an appellate court substitute their finding on mobility for that of the court below? [ 27 ] The father’s position is that the panel erred in not showing deference to the trial judge’s findings of fact, as required by Van de Perre v Edwards , 2001 SCC 60 , [2001] 2 SCR 1014.

He also argues that when a court of appeal conducts a fresh enquiry, as the panel did in this case, the concern is that circumstances and relationships may have changed since the trial and fresh evidence motions are not always feasible or affordable.

He says that in this case, the updated information came from counsel and that the panel relied on outdated evidence presented at trial with respect to the father’s mental health and relationship with the son. [ 28 ] The father says that direction is needed about how a court of appeal, if it ventures into a fresh reconsideration, gives effect to findings of fact of the trial judge that are not impugned, and the impact of outdated evidence by the time of appeal. [ 29 ] The mother’s response is that, under section 21(5) of the Divorce Act , a court of appeal has the power to substitute its decision for that of the trial judge and that is what the panel did, all in accordance with the principles set out in Gordon .

Decision [ 30 ] I do not accept the mother’s assertion that the father’s application for leave to appeal to the Supreme Court of Canada is frivolous and vexatious. [ 31 ] I accept that the parties have each demonstrated irreparable harm. It is self-evident in a mobility case such as this. The father will suffer harm if a stay is not granted because he will not be able to see the son on an ongoing basis or be involved in the son’s daily life, as he has been up to now.

The mother will suffer harm if a stay is granted because her plans to move to California for personal and employment reasons will be, at minimum, delayed for several months until the Supreme Court of Canada decides the leave application. However, her life with the son in Winnipeg will not change.

Between the two of them, I am of the view that the balance of convenience favours the father. [ 32 ] My decision mostly turns on whether the father has shown that either of the proposed questions is an arguable issue that could qualify for leave to appeal to the Supreme Court of Canada and, if so, whether the granting of a stay is in the best interests of the son. Arguable Issue

[ 33 ] While Leis is a mobility case and important with respect to the test for a stay pending an application for leave to the Supreme Court of Canada, I do not agree with the mother that the circumstances here are the same as those in that case. I distinguish the circumstances of this motion from those in Leis in two important ways. First, in Leis this Court showed deference to the trial court judge and upheld the trial court decision, which is not the case here.

Second, in Leis , Chartier JA stated that the law with respect to mobility was settled in Gordon “and the father has not succeeded in suitably explaining which principles of this area of this law should be revisited by the Supreme Court” (at para 9). Here, the proposed questions arise from the panel’s findings of error by the trial judge and are more nuanced, as a result.

They are not just an attempt to revisit how the trial judge applied the factors in Gordon to the facts, as was the case in Leis . [ 34 ] I am satisfied that answers to the proposed questions would provide welcome guidance to lawyers and judges on difficult issues that present themselves in not only mobility cases, but other family law contexts as well. [ 35 ] I am also satisfied that further guidance on the application of Gordon is desired by many.

The fact that the Supreme Court of Canada has not granted leave on a mobility case since Gordon was decided can be viewed as supporting the positions of both the father and the mother, as evidenced by their submissions. However, I find that fact is more persuasive for the father’s position that further guidance from the Supreme Court of Canada on mobility cases is both timely and desirable. [ 36 ] The father has persuaded me that the proposed questions raise serious questions to be argued which could qualify for leave to appeal to the Supreme Court of Canada.

Best Interests of the Son [ 37 ] In determining the son’s best interests, I acknowledge that he will suffer harm whatever decision I make. Therefore, I must consider what harm he will suffer if the stay is not granted compared to the harm that he will suffer if the stay is granted. [ 38 ] The son is in Grade 4. He attends the school he has attended since Grade 1. His family lives in Winnipeg. He has two sisters: the daughter referred to in these reasons and an older sister. His maternal grandparents have a significant presence in his life. He has a strong relationship with the father.

The affidavit evidence speaks to how the uncertainty about the move has affected him in a negative way. [ 39 ] If the stay is granted, the son’s life will continue in the same pattern and with the same family members and friends present in his life. There will be that stability until the Supreme Court of Canada decides the father’s leave application. If the Supreme Court of Canada denies leave, he will move to California with the mother, but without the possibility that they will have to return to Winnipeg.

There will be finality. [ 40 ] If the stay is not granted, the son will move to California with the mother, not knowing whether the move will be permanent or not. If the Supreme Court of Canada denies leave, there will, of course, be finality. However, if the Supreme Court of Canada grants leave, there will be uncertainty as to the future and the possibility that the mother will be required to relocate to Winnipeg. [ 41 ] None of these scenarios are without harm for the son.

However, I am of the view that the least harmful is for him to remain in Winnipeg for, at least, the next several months until the Supreme Court of Canada decides the leave application. Conclusion [ 42 ] I am satisfied that the father has met the test for a stay. I therefore order that the judgment arising from the CA decision be stayed until the Supreme Court of Canada disposes of the father’s application for leave to appeal.

If leave is granted, the matter of a stay is appropriate for the Supreme Court of Canada to address. [ 43 ] I order that costs be in the cause of the application for leave to appeal to the Supreme Court of Canada. JA