C.B. v. N.S., 2015 NLCA 5

Date: 20150126 Docket: 14/83 & 14/89 Citation: C.B. v. N.S. , 2015 NLCA 5 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : C.B. APPELLANT/APPLICANT AND : N.S. RESPONDENT Coram: Green C.J.N.L., Welsh and White JJ.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 200702U0996 (2014 NLTD(F) 11) Application Heard: January 26, 2015 Decision Rendered: January 26, 2015 (Orally) Memorandum of Disposition Filed: January 27, 2015 Counsel for the Appellant/Applicant: Self Represented (Teleconference) Counsel for the Respondent: Self Represented MEMORANDUM OF DISPOSITION Welsh J.A.: [ 1 ] By order dated December 15, 2014, this Court dismissed Ms.

C.B ’s application for a stay pending her appeal against the decision of Dunn J., dated May 5, 2014, regarding child and spousal support, division of matrimonial property and occupation rent ( 2014 NLCA 51 ). Since that time, there have been additional hearings to deal with procedural matters. At the hearing on this date, Ms. C.B asked the Court to reconsider the earlier order and grant a stay with respect to just one aspect of Dunn J.’s decision, the children’s Easter visit. The Court denied Ms. C.B.’s request.

Following are the reasons. [ 2 ] The background and the reasons for refusing to stay Dunn J.’s order pending the appeal are set out in the earlier decision. The following passages are relevant to the issue of the Easter visit: [13] The next scheduled access visit for the children with Ms. B. is Easter which occurs in early April 2015. Under Dunn J.’s order,

Ms. B. would have to pay the travel costs. If that order is stayed, the earlier order requiring Mr. S. to pay those costs would be reinstated. Ms. B. submitted that it would be harmful to the children to miss this visit. She also submitted that it would be expensive and inconvenient for her to have the visit in this Province because she would have to bring her young child and her husband while leaving her husband’s two children in Calgary. Ms. B. stressed the need for all the children to have contact with each other. [14] These submissions must be considered in light of the following.

While there have been some scheduling issues, Ms. B. has regular telephone and web-cam contact with the children. She chooses not to come alone, entailing less expense, to visit the children in this Province. This is the only access visit until next Christmas which Mr. S. would be required to fund if Dunn J.’s order was stayed. Depending on the circumstances, it is possible that a decision on the appeal will be made in time to deal with the issue of Easter access costs. Further, if Ms. B.’s appeal is successful, and the Easter visit is missed, it could be made up at a future time.

From the children’s perspective, while it is desirable that they have the Easter visit, there is no basis on which to conclude that they will suffer irreparable harm if it does not occur. [15] An additional consideration is the possible concern that, should the children travel to Alberta, they would not be returned to Newfoundland and Labrador as required. In August 2014, when the children’s summer visiting time had expired and they were expected at the airport, Ms. B. indicated to Mr. S. that she would not be returning the children. Ms.

B. said she had reason for keeping the children as she had reported possible abuse to social services. As it turned out, Mr. S., having obtained an ex parte order for return of the children, was required to fly out to Calgary to bring the children home. [ 3 ] The only thing that has changed since the December 15, 2014 dismissal of Ms. C.B.’s application for a stay is that we are closer to the date originally set for the appeal, March 11, 2015. This would not be an appropriate or adequate reason for varying the earlier decision of the Court. [ 4 ] At the hearing, Ms. C.B. submitted that she believes that Mr.

N.S. could fund the children’s visit while she cannot. She points to earlier decisions, particularly that of McGrath J., that the parties were to share the expense of access visits, with Easter being the responsibility of Mr. N.S.. (In the subsequent decision of Dunn J., all access costs subsequent to the summer of 2011 were ordered to be borne by Ms. C.B..) In any event, Ms. C.B. did not take the position that she could not fund the upcoming summer access visit. It is difficult, then, to understand why she would be unable to fund the Easter visit.

This is a matter of choice, much as her decision not to visit the children in this Province. [ 5 ] Ms. C.B. explained her failure to return the children as required at the end of their 2014 summer access visit on the basis that she had reported possible child abuse to social services. Mr. N.S. asserted that this was the third time Ms. C.B. had made such a complaint, and that the complaints had not resulted in any intervention by social services and had been dismissed by the Court. Mr. N.S. stated that Ms.

C.B. had purchased just one-way tickets for the children and that, after obtaining an order for their return, he was required to pay for his ticket to bring the children home as well as the return tickets for the children. In effect, therefore, Mr. N.S. was required to bear half the cost of the children’s summer access visit even though, in accordance with McGrath J.’s order, Ms. C.B. was responsible for the total cost. [ 6 ] In light of all the circumstances, even if the appeal is not disposed of before the scheduled Easter visit, that would not be a sufficient reason to grant the stay requested by Ms. C.B..

Accordingly, the Court dismissed Ms. C.B.’s request and affirmed the earlier order refusing to stay Dunn J.’s order, including the order regarding funding of the Easter access visit. ___________________________________ B. G. Welsh J.A.