D.C. v. T.H., 2015 NLCA 42

Date: 201509 15 Docket: 15/47 Citation: D.C. v. T.H. , 2015 NLCA 42 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL “THIS MATTER INVOLVES A CHILD” BETWEEN: D.C. APPELLANT AND: T.H. RESPONDENT Coram: Rowe J.A. Application Heard: September 11, 2015 Decision Rendered: September 15, 2015 Reasons for Decision by Rowe J.A. Counsel for Appellant: Benjamin P. Curties Counsel for Respondent: Mary L. Boulos Rowe, J.A.: FACTS [ 1 ] D.C. and T.H. have a daughter, A., who was born in […] 2011. Mr. D.C. and Ms. T.H. separated in February 2013. A shared custody arrangement was put in place. Both parents have disabilities: Mr. D.C. is a hemophiliac and is vision impaired; Ms. T.H. has

social interaction impairment and poor social judgment. A. has speech problems and (more recently diagnosed) autism. The parents had and continue to have an acrimonious relationship. [ 2 ] Ms. T.H. has received financial help and moral support from her parents, who live in Edmonton. Mr. D.C. was assisted in caring for A. by his mother, L.C.. [ 3 ] Ms. T.H. struggled to provide materially for A.; she was unable to work, as she could not obtain subsidized daycare. Mr. D.C. did not help Ms. T.H. in seeking subsidized daycare, under the shared custody arrangement. After the separation, Ms.

C.L. lived on social assistance, along with some financial help from her parents. Mr. D.C. (who is working, albeit in a low-paying job) has provided no child support. [ 4 ] Ms. T.H. sought to obtain therapy for A.' speech problems. She encountered wait times and limited availability of relevant services, but obtained some therapy for A.. Until recently, Mr. D.C. did not acknowledge that A. had speech problems. [ 5 ] A. has good personal relations with both parents, as well as with L.C., who cared for her often. Her contact with Ms. T.H.’s parents, while positive, was more limited. [ 6 ] In 2013, Ms.

T.H. made a mobility application, seeking to relocate to Edmonton to live with her parents, to obtain services for A.' special needs and to obtain employment. Her parents are in their early/mid 60s, have professional incomes and own a house suitable for Ms. T.H. and A. to live with them. [ 7 ] Mr. D.C. opposed the mobility application on the basis that the proposed move would not be in A.' best interests, in that: A. would have limited involvement with Mr.

D.C. and his mother; A. would be taken from familiar surroundings and placed in unfamiliar surroundings; and A.' needs could properly be met without moving to Edmonton. [ 8 ] The mobility case was heard in October 2014, January 2015 and February 2015. A judge of the Unified Family Court gave his decision in May 2015. The judge granted the mobility application. He also ordered that Ms. T.H. could not remove A. from Ms. T.H.’s parents’ home without a court order to do so. The judge made no order for Mr. D.C.’s access to A.; rather, he “encouraged [Mr. D.C.] to commence his own application for access.” [ 9 ] Mr.

D.C. is appealing the judge’s decision on three grounds: i. The judge made a palpable and over-riding error in finding that “neither [D.C.] nor [T.H.] were capable of caring for A. independently”; ii. The judge erred in law by “putting A. into the de facto custody of [Ms. T.H.’s parents]”; and iii. The judge erred in law by “granting the mobility application … without also making an order to provide for continuing access [for] D.C..” [ 10 ] Mr. D.C. brought this application for a stay of the judge’s mobility order pending the decision of this Court in the appeal against the mobility order.

The appeal is set for November 26. Given that such appeals are decided on an urgent basis, one can expect a decision by this Court by mid December. Thus, if the stay is granted, A. would return to St. John’s for the next three months; if the stay is denied, A. would remain in Edmonton for the next three months. LAW [ 11 ] The test for the granting of a stay in custody and access cases was set out by this Court in C.B. v. N.S. , 2014 NLCA 51 : [10] Rule 57.10(1) of the Rules of the Supreme Court, 1986 provides that “filing of a notice of appeal shall not operate as a stay of the order appealed from”.

However, pursuant to subsection (2), where a party applies, the Court may stay the order appealed from pending disposition of the appeal. [11] The test to be applied in determining whether a stay should be granted where custody of and access to a child are at issue is discussed in E. (R.) v. G. (N.) , 2010 NLCA 60 , 301 Nfld. & P.E.I.R. 240 (N.L. C.A.). The test for a stay generally has three prongs:

(1) Is there a serious issue to be tried in the sense that the appeal is not frivolous?

(2) Will a party suffer irreparable harm if the stay is denied?

(3) Where does the balance of convenience lie? When the decision under appeal relates to a child, as stated in G. (N.) , paramountcy of the best interests of the child is engaged, with the result that the test will be applied from that perspective. See also C.B. v. N.S , 2015 NLCA 5 . ANALYSIS [ 12 ] Concerning the first question, “Is there a serious issue to be tried,” I conclude that there is, having regard to the second ground of appeal, that being whether it was open to the Family Court judge to incorporate in his decision a requirement that A. could not be moved from the house of Ms.

T.H.’s parents unless a court so ordered. I make no comment concerning the first and third grounds of appeal referred to above. [ 13 ] Regarding the best interests of the child for the next three months, the affidavits of Ms. T.H. and Mr. D.C. are of central

importance. [ 14 ] In Ms. T.H.’s affidavit, she stated: • Since May 2015, Ms. T.H. and A. have resided with her parents in Edmonton. • Alberta health insurance has been obtained for Ms.

T.H. and A.. • A case worker has been assigned to A. at Glenrose Autism Clinic. • A. has been diagnosed with extreme near-sightedness and eyeglasses have been ordered. • On September 2, A. commenced at the Namao School Headstart Program, a half-day program, with specialized services provided by a teacher; as well, a speech language pathologist, an occupational therapist, psychologists and a social worker are “part of A.' consultant team.” • This follows a speech-language-pathology screening assessment report, which set out detailed recommendations to address A.' special needs; the report states: “A. would benefit from an intensive, language rich intervention program directed at improving her speech and language skills.

She will require extra support in the classroom to ensure a positive and successful Headstart experience and increased readiness for kindergarten. Without appropriate support and intervention, A. is at risk for academic and social difficulties.” • From late May to September 2, on the advice of the speech language pathologist and the Headstart program staff, A. participated in playschool and other group activities with children to prepare her for attending five days a week the Headstart program referred to above. • Ms. T.H. has a job in the food service industry. • Mr.

D.C. has had contact with A. via Skype on 42 occasions; L.C. has had contact with A. via Skype on four to five occasions. • Efforts to agree on access for Mr. D.C. have not borne fruit. Ms. T.H. is open to the use of the Unified Family Court’s mediation services concerning access issues. [ 15 ] In his affidavit, Mr. D.C. states: • He would be able to avail of the services of the Autism Society in St. John’s. Programming would be conducted by an Applied Behavior Analysis Therapist under the supervision of a child Management Specialist. • Mr.

D.C. has been in contact with Ashleigh Noel, a speech language pathologist, who is willing to continue her work with A. in St. John’s; appended to Mr. D.C.’s affidavit are two receipts from Ms. Noel for a therapy session in March 2015 and another in April 2015. • Mr. D.C. has confirmed availability at Rainbow Daycare, which has a full-time preschool preparatory program; however, Mr. D.C. did not address whether he had secured a daycare subsidy for A. to attend the Rainbow Daycare. • Mr. D.C. would have family support, notably from L.C., should A. return to St. John’s. • Mr.

D.C. is “agreeable to mediation [concerning access] if it is fair and impartial.” [ 16 ] In assessing the foregoing, I would make the following points: i. Good arrangements are currently in place for A.' special needs in Edmonton; ii. While I am confident that Mr. D.C. would use his best effort to put in place suitable arrangements for A. if she were now to return to St. John’s, as a practical matter it would not be possible rapidly to put in place arrangements comparable to those currently in place in Edmonton; iii.

The period during which this stay decision will decide where A. lives is roughly the next 90 days; in light of (

i) and (ii) above, given A.' special needs, it is in her best interests to remain in Edmonton for the next 90 days where good arrangements to meet those needs are now in place, rather than for her to face the inevitable delays and uncertainties of seeking to put in place comparable arrangements in St. John’s. [ 17 ] I would underline that my conclusions above are not meant to address the longer-term situation; those matters will be dealt with as part of the appeal to be heard on November 26. Rather, my decision focuses on the situation for the next 90 days. [ 18 ] As to access by Mr.

D.C. for the next 90 days, I have not been asked to make any order. I can only encourage both parents to avail of the Unified Family Court’s mediation services on an urgent basis, bearing in mind that A. will benefit through continued contact with her father. CONCLUSION [ 19 ] For the foregoing reasons, the application for a stay of the mobility order is denied. ______________________________

M.H. Rowe J.A.