Zilke v Epp, 2019 MBCA 114

Citation: Zilke v Epp, 2019 MBCA 114 Date: 20191031 Docket: AF19-30-09216 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner Madam Justice Janice L. leMaistre BETWEEN: JURI ZILKE ) G. R. Champagne ) for the Appellant (Petitioner) Respondent ) ) M. M.

Swerid- and - ) for the Respondent ) IRINA EPP ) Appeal heard and ) Decision pronounced: (Respondent) Appellant ) October 31, 2019 lemaistre JA (for the Court): [1] The respondent (mother) appeals the terms of a variation order that changed primary care and control of J.Z. from themother to the petitioner (father) and requires the mother to pay child support for J.Z. She also appeals the dismissal of her motion toincrease the spousal support payable by the father and the costs award.

Finally, while she did not appeal the custody and support ordersrelating to S.Z. and M.Z., she seeks custody of them and cancellation of the order requiring her to pay support for them. [2] The father seeks to admit as further evidence on appeal an affidavit from the reunification therapist (the expert), aswell as his own affidavit. The affidavits describe how J.Z. has adjusted to the change in primary care and control to the father.

We aresatisfied that the further evidence meets the test for admission where the best interests of a child are at stake (see JDB v DKM, 2019MBCA 68 at paras 27-31). [3] Regarding the merits of the appeal, we are not persuaded that the motion judge made a palpable and overriding errorin determining that there had been a material change in circumstances warranting a shift of primary care and control of J.Z. from themother to the father with a corresponding change to the child support order (see sections 17(4), 17(5) of the Divorce Act, RSC 1985, c 3(2nd Supp); and Gordon v Goertz, (SCC), [1996] 2 SCR 27 at para 12). [4] Nor are we persuaded that the motion judge erred when he concluded that it was not in J.Z.’s best interests to leaveher in the mother’s care and that doing so may place her at risk (see Young v Young, (SCC), [1993] 4 SCR 3 at 117-18).

In reaching this conclusion, the motion judge considered the lack of contact J.Z. had with her father while in her mother’s care after thefinal order was pronounced on June 8, 2018 (the final order) and the expert’s opinion at trial that the mother’s influence was not helpfulin terms of the relationship between J.Z. and the father. [5] The motion judge also considered the fact that the mother had withdrawn J.Z. from school in September 2018 withoutnotice to the father, as well as an adult child’s “unhealthy role” in the mother’s home and her lack of understanding of the effect of histemper, aggression and role in the home.

Moreover, according to the unchallenged further evidence from the expert, J.Z. is doing well inher father’s care and, at present, the mother continues to demonstrate “a proclivity to not act in [J.Z.’s] best interest” in several ways.

Wesee no error in principle or misapprehension of the evidence and, in our view, the order is not so clearly wrong that it amounts to aninjustice (see Van de Perre v Edwards, 2001 SCC 60 at paras 11-16; and Horch v Horch, 2017 MBCA 97 at para 50). [6] The mother argues that the motion judge erred by failing to reduce the amount of income imputed to her at trial basedon evidence of injuries she sustained prior to trial.

The motion judge found no material change in circumstances warranting a change tothe imputation of minimum-wage income to the mother and, in our view, made no error in doing so. [7] Regarding the mother’s request for custody of S.Z. and M.Z., they are in the primary care and control of the father bythe terms of the final order. The final order also requires the mother to pay child support to the father for S.Z. and M.Z. The variationorder did not change these two provisions and the final order has not been appealed.

[ 8 ] Finally, there is no merit to the mother’s argument that the motion judge erred in his award of costs to the father. [ 9 ] In the result, the appeal is dismissed with costs. JA JA JA