Canada: This Month In Family Law – June 2022

B.J.T v J.D., 2022 SCC 24

Justices Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud

Subject matter: Standard of review | Child protection | Biological ties

This appeal concerns a custody dispute over a child who was apprehended at the age of four by the Director of Child Protection in Prince Edward Island.

In 2017 the child was then apprehended from his mother's care by the Director of Child Protection. At the disposition hearing under s. 37 of the Child Protection Act, which occurred when the child was six, both his father in Alberta and his maternal grandmother in Prince Edward Island sought permanent custody. The hearing judge concluded that it was in the boy's best interests to be placed with his grandmother, who had cared for him extensively throughout his life. A majority of the Court of Appeal reversed this decision and granted custody to the father. Concluding that the hearing judge failed to consider the father's argument that as a biological parent, his custody claim should be favoured.

First, the Supreme Court of Canada (SCC) considered the applicable standard of review when assessing a hearing judge's conclusions concerning custody. The SCC relied on the leading decision on standard of review for custody and access decisions, Van de Perre v. Edwards, 2001 SCC 60, which found the guiding principle and paramount consideration in custody matters is the best interests of the child. The question of which factors are relevant, and what weight should be apportioned to them, is a matter of judicial discretion. As a result, significant deference is owed to a determination made by a judge at first instance. Accordingly, an appellate court must act with restraint and may only intervene where there has been "a material error, a serious misapprehension of the evidence, or an error in law". Citing Van de Perre, the SCC said that this narrow scope of appellate review means that, absent a material error, the Court of Appeal is not in a position to determine what it considers to be the correct conclusions from the evidence. This is the role of the trial judge. An appellate court is therefore not permitted to redo a lower court's analysis to achieve a result that it believes is preferable in the best interests of the child. The Court found that the Van de Perre standard reflects the significant deference that the decision of a judge at first instance has to a child's best interests and absent something specific in the governing legislation, this same standard applies to custody decisions pursuant to child protection legislation.

The SCC found the hearing judge's assessment of the best interests of the child was free of error. It was grounded in a thorough assessment of the extensive evidence and related this evidence to the statutory factors relevant to the child's best interests.

Next, the SCC addressed the grandmother's submission that the majority of the Court of Appeal erred in effectively resurrecting a presumption in favour of biology when it awarded custody to the father. The SCC agreed with the grandmother, finding that the Court of Appeal overstated the importance of the father's biological tie to the child. The Court found that a parent's biological tie is simply one factor among many that may be relevant in some cases to a child's best interests. Judges are not obliged to treat biology as a tiebreaker when two prospective custodial parents are otherwise equal.

For these reasons, the decision of the Prince Edward Island Court of Appeal was set aside, and the grandmother was awarded permanent custody and guardianship of the child.

Partridge v Bain, 2022 NSSC 155

Justice Elizabeth Jollimore

Subject matter: Costs

In March 2022, Justice Jollimore dismissed Ms. Bain's claim for unequal division of property under s. 13 of the Matrimonial Property Act. (2022 NSSC 125)

Mr. Partridge is sought costs of $89,750. Ms. Bain self-represented at trial. In her submissions, she acknowledged that this was an unwise and failed attempt to save costs. Mr. Partridge provided evidence of an offer to settle that was better than the result Ms. Bain received at trial.

Mr. Partridge's legal costs were $52, 644.92. The Tarrif A amount, based on the value of Ms. Bain's claim, was $34,750. Justice Jollimore accepted that this reflected a substantial contribution to Mr. Partridge's legal fees, and ordered Ms. Bain to pay Mr. Partridge costs of $34,750, inclusive of disbursements.

Williams v Power, 2022 NSSC 156

Justice C. LouAnn Chiasson

Subject matter: Relocation | Parenting | Parental alienation | Credibility

The parties separated in 2017 and have two children together (8 and 9). From 2017 until the fall of 2021, the parties parented the children equally, and in May 2020 consented to an order for week about parenting.

In September 2021, Ms. Power filed a Contempt Application because she was being denied court-ordered parenting time. Mr. Williams was found guilty of two counts, and acquitted of a third.

Mr. Williams filed a Variation Application seeking primary care of the children, and permission to relocate with them to Ottawa, where he was posted. Mr. Williams lives with his new spouse, and her three children.

Ms. Power sought an order that the children remain in Nova Scotia, in her primary care. Prior to the hearing of the mobility Application , Ms. Power brought two successful motions to establish Christmas parenting time, and for the children to be re-enrolled in public school (rather than homeschooled).

Justice Chiasson found that Mr. Williams bears the burden of showing that it is in the children's best interests to relocate to Ontario under s 18H(1A)(a) of the Parenting and Support Act (PSA), given that the children were in a shared parenting arrangement by court order, which Ms. Power has taken steps to enforce.

Justice Chiasson considered the factors set out in S.18H(4) of the PSA, noting that all of the children's extended family lives in Nova Scotia. Justice Chiasson considered the evidence relating to the contempt application, and also noted that Mr. Williams was in arrears in payment of child support.

Justice Chiasson reviewed Mr. Williams' credibility, and found that she preferred Ms. Power's evidence. She detailed concerns with Mr. Williams' credibility and inconsistencies in his evidence.

Justice Chiasson found that Mr. Williams alienated the children from Ms. Powers. She defined parental alienation as a process where systematically one parent's role for the child is eroded over the course of time. She found that Mr. Williams engaged in several incidents that confirmed his alienating behaviour such as permitting the children to make decisions about contact with Ms. Power, isolating the children from extended family, portraying Ms. Power as dangerous, and promoting himself as the children's protector.

Justice Chiasson found that given the finding of parental alienation, the relocation of the children would not be in their best interests. She found Mr. Williams had not discharged the presumptive burden set out in s. 18H(1A)(a) of the PSA and denied his request relocation.

Justice Chiasson determined that the children would remain in Nova Scotia with Ms. Power, who will have sole decision making. Mr. Williams will have specified parenting time with the children in Nova Scotia on specific terms.

Burns v Burns, 2022 NSSC 162

Justice Samuel Moreau

Subject matter: Spousal support | Termination | Change in circumstances | Provisional hearing

Mr. Burns filed an Interjurisdictional Support Variation Application under the Divorce Act to terminate his spousal support obligation to Ms. Burns. The proceeding proceeded by way of the Provisional Hearing Process.

The parties had two children (now grown), and divorced in 2020 after being married for 25 years. Their marriage was a traditional one.

The parties' February 13, 2020 Corollary Relief Order required Mr. Burns pays spousal support of $1,600 a month to Ms. Burns. The basis of Mr. Burns' request to terminate spousal support was his medical discharge from the RCMP effective December 9, 2020. He requested termination of support as of that date.

Justice Moreau first considered if there had been a change in the conditions, means, needs or other circumstances of either party since the Order for Corollary Relief. He concluded that Mr. Burns' medical discharge from the RCMP constitutes a change in circumstances as contemplated by section 17(4.1) of the Divorce Act.

Next, he considered if Mr. Burn's spousal support obligation should be varied or terminated. Justice Moreau found it undisputed that Ms. Burns' entitlement to spousal support is grounded in a compensatory claim. During their marriage, Ms. Burns relocated multiple times for Mr. Burns' employment, was not employed outside the home for a 10-year period, and was the children's primary care giver. Justice Moreau found further that Ms. Burns suffered, and still suffers, economic hardship as a result of the prioritization of Mr. Burns' career. Though Mr. Burns is currently no longer able to be employed as an RCMP officer, it does not substantiate his capability of holding employment in other occupations. It should be noted that in Justice Moreau's review of Mr. Burns income source from pension and disability benefits – his income continued to be similar to his income before his discharge.

The Court also considered the double recovery principle, questioning if Mr. Burns' pension income from 1990-2018, having already been divided equally between the two parties, should be considered when determining variations to spousal support. Justice Moreau found that the circumstances in this case establish an exception to the double recovery principle. Ms. Burns has taken reasonable steps towards self sufficiency however, she still suffers economic hardship.

Mr. Burns' Application was dismissed.

Green v Green, 2022 NSSC 164

Justice Theresa Forgeron

Subject matter: Best interests of children | Parenting order

Kelsey Green and Heidi Green are divorced spouses and the parents of three children. The parties have an extensive litigation history. In 2018, Mr. Green initiated divorce proceedings and applied for an interim parenting order. In 2019, an agreement on the interim parenting arrangements was reached. The parties then filed contempt applications alleging that the other was not following the interim parenting order. The divorce decisions, along with an interim variation order, were completed in February 2021. Various other motions and applications have been recently decided.

Justice Forgeron noted that she had made prior evidentiary findings related to evidence tendered in this Application.

Both parties asked to vary the CRO. Mr. Green sought an order requiring the family to participate in reunification therapy for alienated children at Ms. Green's expense, followed by a 50/50 parallel parting schedule, final decision making, and various financial relief. Ms. Green sought (among a few other things) sole decision making about the children, adjustment to clauses setting out communication between the children.

To re-establish a healthy father-child parenting dynamic, the Corollary Relief Order itemized therapeutic interventions, with specific goals which party and the children were to accomplish. Ms. Green and the children completed the therapeutic goals however, Mr. Green did not.

Justice Forgeron found that there had been a material change in the circumstances, as the relationship between Mr. Green and his children deteriorated further when he did not complete the court-ordered therapy.

Justice Forgeron found that it was in the children's best interests to vary many provisions of the CRO, such as specifically permitting Ms. Green the ability to obtain passports and travel internationally with the children. Justice Forgeron ended Ms. Green's requirement to provide updates to Mr. Green about the children, limiting the communication between the parties, and providing for Mr. Green's parenting time at Ms. Green's sole discretion, terms and conditions. His parenting time is to occur in public places, with no overnights, or leaving HRM.

Justice Forgeron further required Mr. Green to apply for and receive leave of the court before filing any further application or motion.

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