Hubley v. MacRae, 2011 NSCA 25

NOVA SCOTIA COURT OF APPEAL Citation: Hubley v. MacRae, 2011 NSCA 25 Date: 20110301 Docket: CA 333519 Registry: Halifax Between: Mark Nelson Hubley Appellant v. Laura Marie MacRae Respondent Judge: The Honourable Justice M. Jill Hamilton Appeal Heard: January 24, 2011 Subject: Family Law; Custody

Summary: The father who lived near Halifax appealed the trial judge’s order awarding primary care of the parties’ two children to the mother who moved to Glace Bay following separation, with access every second week to him. He alleged that the judge erred by applying wrong principles of law, by failing to give appropriate weight to certain evidence and by making erroneous findings of fact. Issue: Did the trial judge err? Result: Appeal dismissed. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 12 pages.

NOVA SCOTIA COURT OF APPEAL Citation: Hubley v. MacRae, 2011 NSCA 25 Date: 20110301 Docket: CA 333519 Registry: Halifax Between: Mark Nelson Hubley Appellant v. Laura Marie MacRae Respondent Judges: Hamilton, Beveridge and Bryson, JJ.A. Appeal Heard: January 24, 2011, in Halifax, Nova Scotia Held: Appeal is dismissed, per reasons for judgment of Hamilton, J.A., Beveridge and Bryson, JJ.A. concurring. Counsel: Terrance G. Sheppard and Bryen E. Hebert, for the appellant Angelina D. Cunningham and Kai Glasgow (Articled Clerk), for the respondent Reasons for judgment :

Reasons for judgment : [ 1 ] The appellant father, Mark Nelson Hubley, appeals the custody order of Justice Leslie J. Dellapinna, giving primary care of the parties’ two children to their mother, the respondent, Laura Marie MacRae. Given the deference owed to decisions of trial judges dealing with custody, I am satisfied this appeal should be dismissed. [ 2 ] The parties have two children, Landon (DOB August 19, 2006) and Emma (DOB May 15, 2008), from their four-year common law relationship. They lived in Upper Tantallon, near Halifax, until they separated in April 2009.

After separation, the mother moved back to Glace Bay, a five-hour drive from Halifax, to live with her parents. At that time, the parties agreed to a shared parenting arrangement whereby each parent would have the children for 10 days at a time. [ 3 ] Two months after separation, the mother applied for primary care of the children and for child maintenance. One month later, in July 2009, the father’s current partner and her two children moved into the father’s house that the parties had shared during their relationship. [ 4 ] An interim custody hearing was held on July 30, 2009.

An interim order was issued giving the parents joint custody, with interim primary care to the mother. The interim order specified that the father was to have access every second weekend from Thursday until Sunday, with the children being exchanged in Antigonish. [ 5 ] In March, 2010 a Limited Custody and Access Assessment was completed by Coleen Shepherd. In her report, the assessor indicated that because of the limited nature of her engagement, she only met with the father, spoke with both parents by telephone and spoke with the director of Landon’s pre-school, before she wrote her report.

She made no recommendation concerning the access

schedule once Landon starts school in September, 2011, but recommended that until then, the children spend a minimum of twelve days per month with the parent who is not awarded primary care. She also recommended that the responsibility for transporting the children continue to be shared. [ 6 ] The custody trial took place over four days in April 2010 with the judge granting joint custody to the parents, with primary care to the mother. The father was given access every second weekend from Thursday to Sunday until Landon starts school, and after that from Friday until Sunday.

There is provision for additional access time around holidays and time is to be shared equally during the summer.

The decision is reported at 2010 NSSC 178 . [ 7 ] The father argues that the judge erred by: (1) relying on the provisions of the interim order as setting the status quo, and thereby creating a presumption that the mother should continue to have primary care of the children; (2) finding that he had no jurisdiction to require the mother to move back to the Halifax area as a condition of granting her primary care of the children; (3) finding that the mother had been the primary care-giver of the children; (4) failing to give appropriate weight to Ms.

Shepherd’s recommendation that the access parent have at least 12 days per month with the children until Landon starts school; (5) failing to give appropriate weight to the legal principle that children should have maximum contact with both parents; (6) finding that the mother would promote maximum contact with him;

(7) ordering the parents to share the driving required for parenting time exchanges; and (8) making findings of fact not supported by the evidence and failing to consider relevant and material evidence. [8] Generally deference is owed to custody decisions of trial judges because of the fact-based discretionary nature of thesedecisions. This is explained by the Supreme Court of Canada in Van de Perre v.

Edwards, 2001 SCC 60: 11 In reviewing the decisions of trial judges in all cases, including family law cases involving custody, it is important that theappellate court remind itself of the narrow scope of appellate review. L’Heureux-Dubé J. stated in Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, at paras. 10 and 12: [Trial judges] must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciation ofthe particular facts of the case. It is a difficult but important determination, which is critical to the lives of the parties and to theirchildren.

Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts whensuch decisions are reviewed. . . . There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard ofappellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard theparties directly.

It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court willhave a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizesthe importance of the appreciation of the facts by the trial judge.

Though an appeal court must intervene when there is a material error, aserious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would havemade a different decision or balanced the factors differently. [Emphasis added.] 12 Hickey involved the appellate review of support orders, but the principles related to appellate review discussed therein are equallyapplicable to orders concerning child custody. ... [9] Despite this deference, if this Court is satisfied the judge applied incorrect legal principles, as the father alleges in grounds ofappeal (1), (2) and (5), or erred in law by making findings of fact not supported by the evidence or by failing to consider relevant andmaterial evidence, we may interfere with his decision. [10] It is also important to remember that an appeal is not a retrial, as set out in Children’s Aid Society of Cape Breton-Victoria v.A.M., 2005 NSCA 58: [26] This is an appeal.

It is not a retrial on the written record or a chance to second guess the judge's exercise of discretion. Theappellate court is not, therefore, to act on the basis of its own fresh assessment of the evidence or to substitute its own exercise ofdiscretion for that of the judge at first instance. This Court is to intervene only if the trial judge erred in legal principle or made apalpable and overriding error in finding the facts.

The advantages of the trial judge in appreciating the nuances of the evidence and inweighing the many dimensions of the relevant statutory considerations mean that his decision deserves considerable appellate deferenceexcept in the presence of clear and material error: [Citations omitted.] First ground of appeal [11] The first ground of appeal is that the judge erred by relying on the provisions of the interim order as setting the status quo andthereby creating a presumption that the mother should continue to have primary care of the children.

[12] The father points to the following statements in the judge’s reasons as support for his argument: “There is simply insufficientreason to disrupt the current parenting arrangement which is working for the children.”; “...The current custody and access arrangementis to be considered and if and how the children would be disrupted by an alteration to that arrangement.”; “...I have come to theconclusion that it is in the best interests of the children that they remain residing primarily with the [mother].”; and “...since the interimhearing in July 2009 the children have been in her primary care.” [13] These statements do not support the father’s argument.

Rather, they simply indicate that the judge considered, among otherfactors, the custody arrangements that were in place prior to and at the time of trial in reaching his conclusion as to which custodyarrangement was in the best interests of the children. Paragraph 49 of Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27,indicates this is a relevant factor for a judge to consider. [14] I am not satisfied the judge relied on the provisions of the interim order as creating a presumption that the mother should haveprimary care.

The judge specifically stated otherwise: [43] Gordon (supra), contemplated an application to vary an existing custody order. There is no previous order (other than the interimorder) in this case and therefore it is not necessary for either of the parties to demonstrate a material change in circumstance. The Court isto determine what is in the best interests of the children having regard to the existing relevant circumstances.

There is no legalpresumption in favour of either parent. (Emphasis added.) [15] Nor am I satisfied that the interim order created the status quo of the children being in the primary care of the mother. [16] The judge found as a fact that the children had been in the mother’s primary care from the time of their birth to the time ofseparation: [59] ...Instead I have come to the conclusion that it is in the best interests of the children that they remain residing primarily with the[mother].

From the time of their birth to the time of the parties’ separation in April of 2009 and since the interim hearing in July2009 the children have been in her primary care. Prior to their separation it was the [mother] who stayed home with the children themajority of the time.

She, more than the [father], was available to care for the children subsequent to the birth of their daughter. [Emphasis added.] [17] Accepting the judge’s finding of fact, which I do for the reasons hereinafter set out in paragraphs 27 to 30 of this decision, theinterim order, granted approximately three months after separation, did not create a new status quo but simply continued the status quothat existed prior to separation. [18] As required, the judge focussed on the best interests of the children in determining which party should have primary care.

Heconsidered the guiding principles in Gordon, supra, all of the factors in Foley v. Foley (1993) 123 N.S.R. (2d) 198, Ms. Shepherd’sreport, the evidence and the submissions of counsel in reaching his conclusion. In addition to considering that the mother had the primarycare of the children for most of their lives, he found the children were well settled in their new home and that it would be disruptive forthem to return to the father’s home, which was different now, with his current partner and her children living there.

He found the childrenwere with their mother most of the time in Glace Bay because of the mother’s job at the day care, whereas if they lived with the fatherthey would be in the care of others while he worked. He noted the strong support network the mother had in Glace Bay. He was satisfiedthe mother would foster a good relationship with the father. [19] There is nothing in the judge’s analysis that supports the father’s argument that the judge erred in the use he made of theinterim order. I would dismiss this ground of appeal.

Second ground of appeal [20] The second ground of appeal is that the judge erred in finding that he had no jurisdiction to require the mother to move back tothe Halifax area as a condition of granting her primary care of the children.

[ 21 ] The father focuses on the following statement in the judge’s reasons to support this argument: [53] It comes down to the Court deciding which of two capable parents should have primary care of their children after considering their respective plans. It is not within the Court’s jurisdiction to order the Applicant to return to Halifax.

She has made her decision where she wants to live and it is for the Court to determine what parenting arrangement would be best for the children taking that decision into account. [Emphasis added.] [ 22 ] I am satisfied this statement does not mean that the judge made his decision based on a belief that he did not have jurisdiction to award primary care to the mother on condition she move to the Halifax area. He doesn’t say that. The judge’s comment is made in the context of him evaluating the parenting plans of each party to see which is in the best interests of the children.

I am satisfied that what the judge meant by this statement is that he would evaluate the mother’s plan on the basis she would be living in Glace Bay. He would take this factor into account in determining if her plan was in the children’s best interests. [ 23 ] The judge satisfied himself that the mother’s plan to have primary care of the children in Glace Bay, where she had grown up and had a strong support system of family and friends, was in their best interests.

Having accepted this, he is not required to go further and create a different plan imposing the rare and highly unusual condition of requiring the mother to relocate to a particular community in order to continue to have primary care of the children. [ 24 ] This Court in Reeves v. Reeves , 2010 NSCA 35 , confirmed that a trial judge has jurisdiction to put restrictions on an imminent relocation of the custodial parent, but makes it clear that such a condition is highly unusual and is only to be imposed in rare circumstances (para. 37).

In Reeves , supra , the trial judge rejected the custody plans of both parents as not being in the best interests of the children. He then crafted a custody order imposing restrictions on where the mother, who had to relocate anyway because of the severe financial circumstances of the parties, could live if she wanted custody of the children.

It was not necessary for the judge in this case to take that additional step as he was satisfied the mother’s plan to have primary care of the children in Glace Bay was in their best interests. [ 25 ] I am satisfied the judge did not find that he did not have jurisdiction to require the mother to relocate to the Halifax area as a condition of granting her primary care of the children. He wasn’t required to address this issue as he found the mother’s plan of care was in their best interests. [ 26 ] I would dismiss this ground of appeal.

Third ground of appeal [ 27 ] The essence of the father’s third ground of appeal is that the judge erred in finding that the mother was the primary care-giver of the children. He argues that this finding was tainted because the mother’s testimony was not credible. [ 28 ] In support of his position that the mother’s testimony was not credible and should not have been accepted by the judge, the father points to discrepancies among her affidavits, direct evidence and cross-examination.

He notes she lied about having stomach cancer, using profanities during her August 23, 2009 telephone conversation with him, whether she had a cell phone, whether she had moved and whether she was involved in a new relationship. [ 29 ] Determining credibility is a function squarely within the competence of trial judges. They are called to make such determinations on a daily basis. They have the advantage of seeing and hearing the parties testify.

They are entitled to accept all, some or none of any witness’s testimony. [ 30 ] I would dismiss this ground of appeal as I am satisfied the judge did not make a palpable and overriding error in concluding the

mother provided the primary care to the children while the parties lived together. Fourth ground of appeal [ 31 ] The fourth ground of appeal is that the judge erred by failing to give appropriate weight to Ms. Shepherd’s recommendation that the access parent have at least 12 days per month with the children until Landon starts school. The judge’s decision gives the father approximately 8 days of access per month. [ 32 ] It is clear that the judge considered Ms. Shepherd’s report.

He referred to it in four separate paragraphs of his decision, specifically noting in paragraph 58 that she recommended more access time each month for the non-custodial parent than the eight days provided for in the interim order. The weight to be given to recommendations in such a report is for the judge. It is not for this Court to second-guess him and retry this issue.

This alone is sufficient to dispose of this ground of appeal. [ 33 ] I also note however, that this was a limited assessment report where the assessor only spoke with each parent on the telephone, met the father in person and spoke with the director of Landon’s day care by phone, before making her recommendations. By comparison, the trial lasted four days, with the judge hearing eight witnesses and reviewing eighteen affidavits, among other documents. The judge had more evidence before him and was in a better position to evaluate the amount of access the children should have with their father than Ms.

Shepherd. [ 34 ] I would dismiss this ground of appeal as I am satisfied the judge gave the assessment report the legal deference it deserved. Fifth and sixth grounds of appeal [ 35 ] The fifth and sixth grounds of appeal concern the importance of children having maximum contact with both parents. The father argues that the judge failed to give appropriate weight to this principle.

He argues that the judge’s finding that the mother would promote maximum contact with the father is not supported by the evidence. [ 36 ] In his decision, after reviewing the facts and the positions of the parties, the judge reviews the applicable law. He quotes from Gordon , supra , in which it states in paragraphs 49 and 50 that when considering the best interests of the children, the judge should consider the desirability of maximizing contact between the children and both parents.

He notes this factor in paragraph 44 of his decision: “The Court is also to consider the desirability of maximizing the contact between the children and both of their parents.” [ 37 ] In paragraph 66 he states: “I believe that the [mother] will continue to foster a good relationship between the children and their father.” [ 38 ] It is clear from his decision that the judge was aware of the principle that contact between the children and both parents should be maximized to the extent appropriate in the best interests of the children.

Nothing in his reasons suggests he did not properly apply this principle and give it the appropriate weight. Maximum contact is only one of several factors that the judge had to, and did, consider when determining what was in the best interests of the children. [ 39 ] As to the father’s argument that the judge erred in finding the mother would foster a good relationship between the children and him, he again argues that the judge improperly weighed the evidence before him. Again, the weight to be given to the evidence is for the trial judge.

It is not for us to retry this aspect of the case, which is what the father is asking us to do. [ 40 ] I would dismiss this ground of appeal.

Seventh ground of appeal [41] The seventh ground of appeal is that the judge erred when he ordered the parents to share the driving required for parentingtime exchanges. It is interesting that in this regard the judge followed one of Ms. Shepherd’s recommendations. The father argues thatthe mother should have been required to do all the driving and bear all costs related to it as it was her decision to move away from theHalifax area. [42] There is no merit to this argument.

The mere fact that the Respondent chose to return to her home in Glace Bay after the parties'separation does not support the conclusion that she should bear the entire cost of facilitating access. As the primary caregiver of thechildren, it is questionable whether it would be in their best interests if she were required to bear this cost alone. The judge did notimpose an extra burden upon either party as the meeting place is an approximate middle ground between them.

His decision to order theparties to continue to meet halfway between their households and thereby share the cost of transportation was appropriate andreasonable. Again, for us to interfere with this aspect of the decision would amount to this Court retrying a portion of the case. [43] I would dismiss this ground of appeal. Eighth ground of appeal [44] The last ground of appeal challenges the judge’s overall conclusion that it was in the best interests of the children to be in themother’s primary care in Glace Bay.

The father argues that the judge’s findings of fact that led him to this conclusion were not supportedby the evidence and that he failed to consider relevant and material evidence that would have led him to a different conclusion. [45] For instance, the father argues that the judge failed to consider that (1) it would be easier for the mother to move back to theHalifax area than it would be for him to move to Glace Bay, (2) there would not be much disruption to the children if they moved backto the Halifax area because they had only recently been enrolled in day care and other activities in Glace Bay, (3) the mother indicatedthat while she did not want to move from Glace Bay (where she had so much financial and emotional support which she would not havein the Halifax area), she would move if that were the only way to have primary care of the children, (4) the mother had a history of notfollowing through with her plans, (5) that he owns a house in the Halifax area and (6) has a permanent, part-time job there. [46] As stated previously, this Court defers to custody decisions of trial judges unless there is a material error, a seriousmisapprehension of the evidence, or an error in law.

We are not to overturn a custody order simply because we may have made adifferent decision or balanced the factors differently than the judge. That is what the father is asking us to do here. My review of therecord satisfies me that there was evidence supporting the judge’s findings of fact. The fact the judge did not address every aspect of theevidence in his decision does not, here, give rise to a reasoned belief that he failed to consider relevant and material evidence; R. v.Burns, (SCC), [1994] S.C.J. No. 30 at para. 17; Canada Photofax Ltd. v. Cuddeback, 2003 BCSC 51 at para. 15;Willick v.

Willick, (SCC), [1994] 3 S.C.R. 670 at para. 118. [47] I am not satisfied the judge made a material error, seriously misapprehended the evidence or made an error in law.Accordingly, I would dismiss the appeal without costs. Hamilton, J.A.

Concurred in: Beveridge, J.A. Bryson, J.A.