J.H. v. A.C., 2020 NSCA 54

Nova Scotia Court of Appeal Citation: J.H. v. A.C. , 2020 NSCA 54 Date: 20200817 Docket: CA 499095 Registry: Halifax Between: J.H. Applicant v. A.C. Respondent Judge: Derrick, J.A. Motion Heard: August 12, 2020, in Halifax, Nova Scotia in Chambers Held: Motion dismissed. Counsel: Tanya Jones, for the Applicant Sharon Cochrane, for the respondent Decision: Introduction [ 1 ] J.H. has appealed the Order of Judge Jean Dewolfe of the Family Court of Nova Scotia dated June 29, 2020 permitting A.C. to relocate with the couple’s children to the Halifax Regional Municipality from the Annapolis Valley.

The Order had an effective date of August 15. J.H. applied to stay its enforcement. [ 2 ] Due to the ongoing pandemic, J.H.’s application was heard by telephone on August 12. On August 13 the parties were informed by email from the Deputy Registrar for the Court of Appeal that the application was dismissed with written reasons to follow. These are those reasons. The Application by A.C. in the Family Court for Permission to Relocate with the Children [ 3 ] The children involved are 9, 7 and 6 years old. J.H. and A.C. separated in the fall of 2019.

Both parents have been actively involved with the care of the children, as a couple and since the separation. [ 4 ] A.C. sought an order permitting her to relocate primarily because of the commute associated with her job. A.C. works full- time in HRM at the shipyard as an electrician. She has been working there since 2007. She began commuting four hours a day in 2009 when she and J.H. moved to the Valley from HRM before they had children.

Other than maternity and adoption leaves and a hiatus due to the pandemic, A.C. has continued her daily commute. [ 5 ] In an affidavit filed with her relocation application, A.C. noted it was J.H. who wanted to move to the Valley. Even though the commute was very hard on her, she reluctantly agreed. [ 6 ] Throughout the relationship, A.C. has been the parent with the steady employment and good income. J.H. had various full- time jobs until October 2015 and then part-time work since sometime in 2018/19. He was off work for most of a four-year period.

During that time the children were at various times in daycare, pre-school, and in the care of the parents. The oldest child started school in 2016. The children have all now started school. The Relocation Application in the Family Court [ 7 ] A.C. made her application for relocation on January 31, 2020 pursuant to s. 18H of the Parenting and Support Act , R.S.N.S. 1989, c. 160 . Because of the COVID-19 pandemic, an April hearing date was adjourned without date. The parties agreed in May to have the matter proceed by way of a “Document Only” process.

Telephone pre-trials were held on May 20 and June 15. [ 8 ] The judge rendered an oral decision by telephone on June 29. She said she had had the benefit of “…very detailed Affidavits and…very good submissions from Counsel…” She made a number of factual findings:

• J.H.’s claim of being the primary care parent was rejected. He did not have primary care of the children either during the relationship or since it ended.

There has been significant involvement by A.C. in the care of the children notwithstanding her four-hour daily commute; • there is a shared parenting arrangement with both parents contributing to caring for the children; • when both parents were working full-time they juggled the responsibilities associated with the children’s care and their activities “as best they could”; • A.C.’s employment provides her with lots of flexibility to attend to the children’s needs.

It offers a very good income, excellent benefits and long-term security; • A.C. has been the parent who organized the children’s activities, appointments, social events, birthday parties, and is the only parent able to assist with their French Immersion homework. She did a lot of housework and cooking and has been responsible for organizing the family’s finances; • A.C. has been wanting to move to HRM for some time to avoid having a tiring daily commute to work; and • since the separation, J.H.’s attitude has been one of fault-finding, negativity and rigidity.

He has insisted on daily contact with the children before and after school, causing constant friction and stress between the parties. [ 9 ] At the conclusion of the judge’s oral reasons, counsel for J.H. advised that his client intended to appeal. [ 10 ] In her oral reasons, the judge made a statement that has given rise to one of J.H.’s grounds of appeal. She said the following: In the circumstances, I cannot characterize the relationship while the parties were together as Mr. [H.] having primary care. And in fact, even though he was there on the ground much, many more hours than she was during the week.

Given these parties’ circumstances, I find there was significant involvement by Ms. [C.] and that there was a shared responsibility for the children. Therefore, for the purposes of

section 18 [of the Parenting and Support Act ], there is no presumption against the relocation. I have to, to look at what is in the best interests of the children and both parties have the burden of proving that. [Emphasis added] [ 11 ] This statement was inaccurate, something the judge contacted the parties to acknowledge the next day. [ 12 ] The judge informed the parties on June 30 that after rendering her oral reasons she looked back over her notes and saw she had: …misidentified the requirement to, under

section 18H. 18H be the shared parenting and I have to say that when I was making the decision and when I was, when I wrote up my notes initially, I had, I had identified that requirement properly in that it was up to Ms.[C.] to rebut the presumption and when I rewrote the notes I misread them, or misspoke myself.

So, I believe I said there was no presumption which was clearly, what I meant to say or what I should have said, was that she had the burden and she met it and I want to make it clear that when I made the decision, when I put the decision together, I did use that burden and used the proper test. [ 13 ] The judge said she intended to provide this explanation in a written decision. She indicated she gave an oral decision so the parties could make decisions and move on with their lives. Expressing uncertainty about what to do, she proposed having the matter re- heard before a different Family Court judge.

J.H. accepted this offer; A.C. did not. J.H. proceeded with his appeal. [ 14 ] When the judge referred to s. 18 in her oral reasons, she was referring to s. 18H of the Parenting and Support Act . On June 20 she told counsel the

section she had meant to reference is s. 18H(1)(

b) which states that on a relocation application, the court is to be guided by the following: …that the relocation of the child is not in the best interests of the child if the person requesting the order and any person opposing the relocation have a substantially shared parenting arrangement, unless the person seeking to relocate can show that the relocation would be in the best interests of the child; [ 15 ]

Section 18H(3) and (4) require the judge considering a relocation application to examine actual parenting time, day-to-day care-giving responsibilities, ordinary decision-making responsibilities and all relevant circumstances, the enumeration of which I do not need to review for the purposes of this stay application. [ 16 ] The judge released a written decision on July 13, 2020 (unreported). Test on a Stay Application involving Children [ 17 ] A stay of a judgment under appeal can be granted pursuant to Civil Procedure Rule 90.41(2).

The traditional test applied by the Court on a stay application is the “ Fulton ” test ( Fulton Insurance Agencies Ltd. v. Purdy , 1990 NSCA 23 ). Under the “ Fulton ” test, the party seeking the stay must show: (1) an arguable issue for appeal; (2) they would experience irreparable harm if the stay were to be denied; (3) the balance of convenience favours a stay; or (4) there are exceptional circumstances. [ 18 ] However, the “ Fulton ” criteria are not the focus in a case involving children. The focus there is on the children’s best interests.

The fundamental question to be answered is whether the applicant has demonstrated circumstances of a special and persuasive nature that a stay would better serve, or cause less harm to, the children ( Young v. Stephens , 2015 NSCA 86 , para. 7 , per Bourgeois, J.A.). [ 19 ] Justice Bourgeois, in Young v. Stephens , explained the origins of the onus borne by an applicant for a stay in cases involving children citing Farrar, J.A. in Chiasson v. Sautiere , 2012 NSCA 91 :

[15] In Reeves v. Reeves, 2010 NSCA 6, Fichaud, J.A. succinctly summarized the principles from the authorities as follows: [21] I summarize the following principles from these authorities. The stay applicant must have an arguable issue for her appeal. But,when a child's custody, access or welfare is at issue, the consideration of irreparable harm and balance of convenience distils into ananalysis of whether the stay's issuance or denial would better serve, or cause less harm to, the child's interest.

The determination of thechild's interests is a delicate fact driven balance at the core of the rationale for appellate deference. So the judge on a stay applicationshows considerable deference to the findings of the trial judge. Of course, evidence of relevant events after the trial was not before thetrial judge, and may affect the analysis. The child's need for stability generally means that there should be special and persuasivecircumstances to justify a stay that would alter the status quo. [16] Saunders, J.A. more recently rearticulated the test in Slawter v. Bellefontaine, 2011 NSCA 90: [21] ...

In cases involving the welfare of a child where issues of custody or access arise, the test this Court applies when deciding whetherto grant a stay pending appeal is whether there are "circumstances of a special and persuasive nature" justifying the stay. This testoriginated in Routledge v. Routledge (1986), (NS CA), 74 N.S.R. (2d) 290 (NSCA) and the principle has beenconsistently applied ever since. ... The Notice of Appeal [20] J.H. has listed seven grounds in his Notice of Appeal.

He alleges the judge erred by: offering the re-hearing option; not knowingwhat Affidavits were before her; not referencing the operative presumptions under the Parenting and Support Act dealing withrelocation; failing to provide an analysis of the best interests of the children; not analyzing the case law; referring to and relying on factsin A.C.’s brief not included in her affidavit; and providing inadequate reasons. [21] There is an indication in J.H.’s brief of July 24 on the stay application that he will be seeking to amend his Notice of Appeal,filed before the judge’s written reasons were released, to include a ground that there are substantial differences between the judge’s oraland written decisions.

As no such application to amend has been made to date, this ground is not before me. Findings of Fact by the Judge [22] It is relevant to the analysis required to decide this application that the judge made a number of strong findings of fact thatrelocation is in the best interests of the children.

Her findings include: • A.C.’s significant involvement in all aspects of the children’s lives and activities; • the rejection of J.H.’s claim that he was the children’s primary care provider, during the relationship or since theseparation; • the acceptance of A.C.’s claim that there are no jobs with comparable benefits, flexibility and remuneration nearer to wherethe couple and the children have been living in the Annapolis Valley; • the children’s best interests would not be served by A.C. quitting her job; • the role of A.C. as the parent who organizes the children’s lives and activities, does the necessary financial planning, andhas flexible, stable employment enabling her to support them.

The judge found that A.C. is “very important in their daily lives in terms oftheir organization and motivation”; • A.C.’s ability to very thoroughly plan what the children need and how to navigate their relocation, including promoting andsupporting access with J.H.; and • the distance from where the children have been living to HRM, a relocation of only two hours away. [23] The judge also made findings that the relocation would serve the children’s best interests by reducing the friction and stressbetween the parties caused by daily contact.

She found J.H.’s attitude, as revealed in his affidavits, was infused with fault-finding andnegativity toward A.C., and rigidity. She saw J.H.’s attitude as detrimental to communications between the parties. She noted that one ofthe children was in counselling and said she would be “very surprised” if the children were not affected by the dynamics between theirparents.

Best Interests of the Children [24] The judge’s decision of June 29 indicates she carefully considered the best interests of the children in granting A.C.’s relocationapplication. [25] The judge’s findings are entitled to considerable deference (Reeves v. Reeves, 2010 NSCA 6, at para. 21, per Fichaud, J.A.). [26] The children are relocating with A.C. only to HRM. A.C. submitted a comprehensive description to the judge of her relocationplan, which she attached to her affidavit in response to the stay application.

The details included: the geographical area where she intendsto buy a home, prospective housing stock in the area, schooling and childcare, financial details relevant to the relocation, includingpayment of joint debts, a plan for activities and playdates with the children of friends and co-workers to ease the transition, and whatA.C. intends to do to maintain contact with the children’s friends in the Valley. She also provided a detailed description of her plan forJ.H.’s parenting time. [27] It is understandable that the judge found she was “impressed by Ms. [C.]’s ability to plan”.

In her oral reasons, she describedA.C. as “very thorough in terms of looking at what the children need and making sure the transition can be planned properly”.

[ 28 ] Before me, counsel for J.H. submitted that if a stay is not granted, by the time the appeal is heard in January 2021, new facts will apply as the children will have been resettled in HRM. Ms. Jones argued the judge’s analysis was flawed and that the children’s best interests are served by the status quo. [ 29 ] J.H. filed two affidavits in support of his application for a stay. In them he made assertions the judge had rejected. For example, he says “…historically, I was the children’s primary care parent”.

He also expresses concern about who will care for the children if they relocate with A.C. and states that the relocation will “adversely affect the children” and “does not appear to be in their best interests”. Allegations he makes against A.C. are refuted in her affidavit.

He does not address the detailed planning A.C. set out in the affidavit she provided in support of her relocation application. [ 30 ] The judge considered the “downside” of relocating the children from “their friendships and their activities in their school, in their community, and there are some relatives there on his side” and was satisfied it “can be managed”. She found the children “can adapt to a move without losing the relationships they have”. She plainly had confidence in A.C.’s ability and willingness to preserve the children’s connections in the Valley, including their relationships with their father.

I am satisfied there was a solid foundation in the evidence before her for that confidence. [ 31 ] J.H. has not satisfied me there are “circumstances of a special and persuasive nature” that justify a stay of the relocation order of June 29, 2020. He has not established that a stay of the order would better serve or cause less harm to the children. [ 32 ] An appeal is not an opportunity to re-litigate. Having said that, were J.H. to be successful on appeal, there is nothing to indicate the best interests of the children will have been irreparably impaired by the relocation to HRM.

I am satisfied their relationships with their father, their friends and relatives in the Valley, and their connection to the community there, will still be intact. Disposition [ 33 ] The application for a stay is dismissed. Neither party sought costs on this application and none are ordered. Derrick, J.A.