AAO nka TLK v NOO et al, 2022 MBCA 58

Citation: AAO nka TLK v NOO et al, 2022 MBCA 58 Date: 20220622 Docket: AF21-30-09559 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Christopher J. Mainella Madam Justice Karen I. Simonsen Madam Justice Lori T. Spivak BETWEEN : N. O. O. ) T. L. K. ) on her own behalf (Petitioner) Respondent ) ) N. O. O. - and - ) on his own behalf ) A. A. O. now known as T. L. K. ) K. J. Janovcik and ) R. J.

Nolan (Respondent) Appellant ) for the Intervener ) - and - ) Appeal heard and ) Decision pronounced: the director of child and family ) June 17, 2022 services ) ) Written reasons: Intervener ) June 22, 2022 NOTICE OF RESTRICTION ON PUBLICATION: No press, radio or television report shall disclose the name or any information likely to identify any person involved in the proceedings as a party or a witness (see section 75(2) of The Child and Family Services Act , CCSM c C80 ). Mainella JA (for the Court) : [ 1 ] The trial judge heard a combined trial as to matters relating to divorce and child protection.

The respondent appeals from an order granting the petitioner sole custody of the parties’ seven-year-old son (the child), setting the amount of child and spousal support, and apportioning daycare expenses for the child between the parties. She also seeks to introduce further evidence on her appeal. At the conclusion of the hearing, we dismissed the motion for further evidence and the appeal with reasons to follow.

These are those reasons. [ 2 ] Key to the order of sole custody is the fact that the respondent has been charged criminally with aggravated assault in relation to an infant, approximately six months old at the time of the incident, who was in her care at her home daycare (the infant). It is undisputed that the infant suffered a “traumatic event” resulting in injuries to his brain. He had to be admitted to hospital and will suffer permanent injuries as a result. The respondent’s criminal trial is scheduled for the fall of 2022.

There is no allegation that the respondent has physically abused the child. [ 3 ] The trial judge heard significant evidence about the daycare incident. He disbelieved the respondent’s version of events in light of expert evidence as to the nature of the infant’s injuries; observations of police officers who had been in the daycare on the day in question and had seen the infant in a healthy state before the injury took place; evidence from the infant’s mother; and a surveillance video as to the infant’s behaviour after he left the daycare.

The trial judge was satisfied, on the balance of probabilities, that the injuries to the infant occurred while he was under the respondent’s care at the daycare. [ 4 ] The trial judge concluded that, in light of the serious criminal charge against the respondent, the fact that she had chosen not to see the child for six months, her general erratic behaviour, the contrasting stability and reasonable parenting skills of the petitioner, and the non-existent working relationship of the parties, it was in the best interests of the child that the petitioner have sole custody of him and that the respondent have supervised access.

[5] The respondent challenges the trial judge’s findings of fact and credibility in relation to his determination of custody.

She seeks to introduce further evidence which she says establishes that there was an “alliance” to make false claims against her by thepetitioner, the apprehending agency and the police; information about the health of the infant was withheld from the trial judge; the trialjudge was misled as to the parenting of the child by the petitioner and the respondent; the respondent’s trial counsel deliberately“sabotaged” her case and provided her with ineffective assistance; the mother of the infant caused the injuries to the infant; therespondent had difficulty obtaining employment; delays in the respondent obtaining a lawyer prejudiced her case; supervised visitation isharmful to the respondent and the child; and one of the counsel for the agency was in a conflict of interest.

The respondent also says thatthe trial judge was wrong to impute income to her for the purposes of the calculation of child and spousal support for the period of 2018onward and that he made other errors as to the calculation of spousal support and apportioning daycare expenses. [6] While there is some flexibility to the rules as to the admission of further evidence on an appeal involving the bestinterests of a child, we are not persuaded that the respondent has established a proper basis to admit further evidence on her appeal inlight of the criteria set out in Palmer v The Queen, (SCC), [1980] 1 SCR 759 (see G (JD) v G (SL), 2017 MBCA 117 atparas 34-36).

Much of what the respondent refers to is not admissible evidence—particularly her assertions as to the parenting of thechild by her and the petitioner which are simply arguments that the trial judge did, and was entitled to, reject. There is also no credibleevidence of an illicit alliance, material non-disclosure, sabotage or any of the other myriad of claims that the respondent makes.

Inparticular, there is no reason for us to have any concern that the custody and access order the trial judge made is not in the best interestsof the child. [7] Some of the claims of the respondent relate not to the custody order made by the trial judge per se, but to the overallfairness of the family trial itself. The criteria in Palmer do not govern the admissibility of further evidence on an appeal in such matters(see R v Richard (DR) et al, 2013 MBCA 105 at para 204). However, that different legal standard does not assist the respondent.

Therespondent has not adduced any credible admissible evidence that a miscarriage of justice occurred in relation to the family trial. [8] As was explained in Horch v Horch, 2017 MBCA 97, family law orders are entitled to considerable deference onappeal absent an error in principle, a significant misapprehension of the evidence or an award that is clearly wrong. Our role is not toretry the evidence which is the main thrust of the respondent’s submissions. [9] We are not persuaded that the trial judge made any error that would allow us to interfere with his decision.

The trialjudge fully considered the arguments of the respondent, even after she discharged her counsel. He did not misdirect himself on the lawand there was ample evidence before him to support the conclusions he reached as to the issues of credibility, custody, access,imputation of income, child support, spousal support and apportioning daycare expenses. Finally, there is no merit to the respondent’sattempt to impugn the effectiveness of the representation provided to her by counsel at the trial or that a miscarriage of justice otherwiseoccurred in the family law trial. [10] One final comment.

While the traumatic event in relation to the infant was relevant to the parties’ family law trial, thetrial judge understood he was not deciding the substance of the criminal allegations against the respondent and he was applying a lesserand different standard of proof than proof beyond a reasonable doubt.

It will be for the criminal court hearing the respondent’s trial foraggravated assault to consider and interpret the evidence as to what happened to the infant in light of the applicable law and criminalstandard of proof. [11] In the result, the motion to introduce further evidence and the appeal are dismissed with costs. JA JA JA