Betts v Porsan, 2021 MBCA 57

Citation: Betts v Porsan, 2021 MBCA 57 Date: 20210607 Docket: AF21-30-09557; AF21-30-09558 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice William J. Burnett Madam Justice Janice L. leMaistre BETWEEN : ) J. Porsan BRANDI ALEXANDRA BETTS ) on his own behalf ) (via videoconference) ) (Petitioner) Respondent ) S. L.

Maltz ) for the Respondent - and - ) (via videoconference) ) JONATHAN PORSAN ) Appeals heard and ) Decision pronounced: ) June 1, 2021 (Respondent) Appellant ) ) Written reasons: ) June 7, 2021 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , this appeal was heard remotely by videoconference. LEMAISTRE JA (for the Court) : [ 1 ] The respondent appeals orders dismissing his motion to vary a protection order and for shared care and control, and granting

summary judgment in favour of the petitioner regarding his interest in the family home. [ 2 ] After hearing the appeals, we dismissed them with brief reasons to follow. These are our reasons. [ 3 ] The parties cohabited for approximately 11 years and had one child together. The petitioner obtained a protection order prohibiting the respondent from communicating with her and the child and attending the family home. [ 4 ] With the consent of both parties, the triage judge made an interim custody order.

The interim custody order provided for joint custody with primary care and control to the petitioner and supervised access to the respondent, and was reviewable at or after an upcoming case conference. It also required the parties to “cooperate fully in therapy or programming recommended by Aulneau Renewal Centre”.

In order to facilitate the respondent’s access to the child, the triage judge varied the protection order. [ 5 ] The parties also agreed that the respondent would transfer his interest in the family home to the petitioner upon payment by her of a sum of money that reflected an equal division of the value of the home (the proposed separation agreement). Despite efforts by counsel for the petitioner, the respondent refused to sign the proposed separation agreement. [ 6 ] The respondent filed a motion seeking joint custody with shared care and control of the child.

He also requested a variation of the protection order to remove the child. [ 7 ] The petitioner filed a motion for

summary judgment to enforce the terms agreed to under the proposed separation agreement regarding the respondent’s interest in the family home.

[ 8 ] The motion judge dismissed the respondent’s motion. In doing so, he noted that the interim custody order pronounced by the triage judge was made with the respondent’s consent, that the child had remained in the primary care and control of the petitioner since the parties separated and that the assessment report of the Family Resolution Service (the assessment report) identified “a number of significant concerns with respect to the respondent’s ability to meet the needs of the child, to safely parent the child, and to make appropriate judgments about what may be in the child’s best interests.” [ 9 ] The motion judge granted the petitioner’s motion for

summary judgment. He concluded that there was no evidence contradicting the existence of the proposed separation agreement requiring the respondent to sell his interest in the family home to the petitioner. [ 10 ] Shortly after the motion judge decided the motions, the respondent filed a “request for motion or subsequent case conference” in which he sought to have the protection order varied or set aside, as well as “care and control”, “child support” and “amount from former property”.

The motion judge denied his request as the issues had “recently [been] adjudicated”. [ 11 ] The respondent raises a number of issues on the appeals. His main arguments are that the motion judge: 1) should not have presided over the contested motions; 2) failed to properly consider the evidence; 3) erred by awarding the petitioner primary care and control of the child; 4) failed to consider his request for costs; and 5) denied him the right to be heard.

He also argues that the motion judge wrongly ordered him to sign the proposed separation agreement and failed to ensure that his responsibilities under the mortgage would be discharged. [ 12 ] The standard of review for an interim custody order is highly deferential (see Gale v Gale , 2007 MBCA 162 at para 6 ). Interim appeals are strongly discouraged (see Dillon v Dillon , 2016 MBCA 125 at para 3 ).

As explained by Chartier JA (as he then was) in Martin v Orris , 2010 MBCA 59 (at para 6 ): It is well understood that orders granted on an interim basis are often made without the benefit of a full record and the careful judicial analysis that is possible following a trial. They often do not provide the best legal and evidentiary foundation for appellate review. There is unease about deciding important legal issues without the benefit of a full record.

That is the reason why appellate courts prefer to review matters after a final decision has been reached. [ 13 ] We are of the view that the respondent’s appeals have no merit. [ 14 ] As the case conference judge, the motion judge was required to hear the contested motions pursuant to r 70.24(31) of the MB, Court of Queen’s Bench Rules , MR 553/88 , which provides: Case conference judge seized 70.24(31) Unless otherwise directed by the Chief Justice or his or her designate on the request of the case conference judge or a party to the family proceeding, the case conference judge must (

a) preside at all subsequent case conferences; and (

b) hear all motions arising in the family proceeding. [ 15 ] The motion judge’s decision to dismiss the respondent’s motion is supported by the evidence. Importantly, he carefully considered the best interests of the child and the “uncontroverted” assessment report which made “strong recommendations, including that the petitioner have primary care, and that the respondent’s contact with the child be subject [to] supervision”. The record demonstrates that options are available for the respondent to exercise the supervised access he has under the existing order.

We agree with the petitioner that the factual issues raised by the respondent are best dealt with at a trial. [ 16 ] We have not been persuaded that the motion judge erred by granting

summary judgment. We see no error of law or fact warranting appellate intervention, nor has the respondent established that the decision is so clearly wrong as to be unjust (see Business Development Bank of Canada v Cohen , 2021 MBCA 41 at paras 31-33 ). The motion judge did not order the respondent to sign the proposed separation agreement. Rather, he made an order reflecting the parties’ agreement. The respondent did not raise his concern that the proposed separation agreement did not address his responsibilities under the mortgage with the motion judge and we are not convinced that this is a basis to overturn the order for

summary judgment. [ 17 ] We fail to see any error in the motion judge’s decision to deny the respondent’s request for motion or subsequent case conference.

The motion judge had just dealt with the issues raised by the respondent and, despite the respondent’s assertions regarding his renewed efforts to attend attachment-based therapy at the Aulneau Renewal Centre, he did not provide any reports regarding the therapy sessions he attended with his own therapist or arrange to attend attachment-based therapy with the child. [ 18 ] Finally, although there is no evidence before us regarding an award of costs, we see no reason to deviate from the general rule that costs follow the success in litigation (see Horch v Horch , 2017 MBCA 97 at para 150 ).

The petitioner was successful

on both motions. [ 19 ] At the hearing, we were told that the trial which had been scheduled for May 2021 was cancelled due to COVID-19. It is our hope that the Court will be able to

schedule an early trial date so that the outstanding issues, particularly regarding parenting time, can be resolved in a timely fashion. [ 20 ] In the result, the appeals were dismissed with one set of costs for both appeals to the petitioner. JA JA JA