B.C. v. M.S., (2015) 438 N.B.R.(2d) 155 (CA)

• Judge: Quigg, Green and Baird, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 10, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 438 N.B.R.(2d) 155 (CA);2015 NBCA 46

B.C. v. M.S. (2015), 438 N.B.R.(2d) 155 (CA);

    438 R.N.-B.(2e) 155; 1141 A.P.R. 155

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. JL.029

Renvoi temp.: [2015] N.B.R.(2d) TBEd. JL.029

B.C. (appellant) v. M.S. (respondent)

(71-14-CA; 2015 NBCA 46)

Indexed As: B.C. v. M.S.

Répertorié: B.C. v. M.S.

New Brunswick Court of Appeal

Quigg, Green and Baird, JJ.A.

July 23, 2015.

Summary:

Résumé:

The respondent father filed a Motion to Change, seeking sole custody of the parties' two children. The motion judge found that there had been a material change in circumstances since the making of the previous order and that it was in the best interests of the children to reside with the father, to whom he granted sole custody. The mother appealed. She argued, inter alia, that the motion judge erred in fact and law in concluding there had been a material change in circumstances that would allow a variation of the existing order.

The New Brunswick Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The motion judge found that there had been a material change in circumstances since the making of the previous order and that it was in the best interests of the parties' two children to reside with the father, to whom he granted sole custody - The mother appealed, arguing, inter alia, that there were insufficient reasons provided to support the decision to grant custody to the father - The New Brunswick Court of Appeal stated that "when crafting reasons in custody cases, a trial judge is expected to 'consider all relevant factors, but it would be unreasonable to require a judge to discuss every piece of evidence in his or her reasons' ... In his 30-page decision, the judge clearly gave considerable weight to the factors expressed in Gordon v. Goertz and Young v. Young, ... in concluding 'a material change in circumstances [had] occurred in the manner contemplated in the authorities cited', and explicitly considered each criterion delineated in the definition in s. 1 of the [Family Services] Act in finding 'on the totality of the evidence presented, it is in the best interests of the children to live primarily with [the father]'. Overall, the judge undertook a comprehensive analysis of 'the best interests of the child' and provided a thorough, well-reasoned decision for altering custody. There is no merit to this ground of appeal" - See paragraphs 19 to 21.

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - [See Courts - Topic 691 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - In a June 4, 2014, decision, the motion judge found that there had been a material change in circumstances since the making of the previous order and that it was in the best interests of the parties' two children to reside with the father, to whom he granted sole custody - The judge directed that the parties could seek further guidance from the court to resolve the access schedule, which the parties did on August 14, 2014, resulting in a detailed order in that regard - The mother appealed - She argued, inter alia, that the motion judge erred by permitting the father's counsel to repeatedly give evidence of "purported facts" during his submissions in the continued hearing respecting the access schedule - The mother claimed the judge's failure to properly rule on her counsel's objections resulted in a reasonable apprehension of bias - The New Brunswick Court of Appeal stated that "A review of the record reveals the judge did attempt, during the August 14, 2014 hearing, to determine exactly what each party desired with respect to access. Both counsel made representations to the court as to what they would like to see occur and for what reasons. Prior to the August 14, 2014, hearing, the judge had determined that custody was going to change and the father would have sole custody of the children. This was made very clear to both parties, and the judge was explicit that he was only going to consider the evidence heard by him at the trial of the matter, as both sides had elected not to call any further evidence. In my view, the judge was fully aware of the position of each party as they had provided him with written submissions as to the access they desired, prior to the hearing. Sifting through the record revealed no bias, or grounds for any reasonable apprehension of bias, by the judge" - See paragraph 23.

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare or best interests of child paramount - [See Family Law - Topic 1950.1 ].

Family Law - Topic 1950.1

Custody and access - Variation of custody and access rights - Changed circumstances of child - A father filed a Motion to Change, seeking sole custody of the parties' two children - The father's basis for alleging a material change in circumstances included concerns related to denials of access, the children's safety and medical needs, poor academic performance, and potential sexual abuse by a neighbour - The motion judge agreed there had been a material change and found it was in the children's best interests to reside with the father, to whom he granted sole custody - The mother appealed - She argued that the motion judge erred in fact and law in concluding there had been a material change in circumstances that would allow a variation of the existing order - The New Brunswick Court of Appeal dismissed the appeal - The motion judge's decision was not tarnished by any errors of law or misapprehension of the evidence that would allow the court to intervene - See paragraphs 8 to 18.

Cases Noticed:

B.P. v. A.T. (2014), 423 N.B.R.(2d) 99; 1103 A.P.R. 99; 2014 NBCA 51, refd to. [para. 5].

N.E.R. v. J.D.M. (2011), 377 N.B.R.(2d) 147; 972 A.P.R. 147; 2011 NBCA 57, refd to. [para. 6].

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 11].

S.L.B. v. P.J.O. (2013), 408 N.B.R.(2d) 235; 1058 A.P.R. 235; 2013 NBCA 52, refd to. [para. 14].

P.R.H. v. M.E.L. (2009), 343 N.B.R.(2d) 100; 881 A.P.R. 100; 2009 NBCA 18, refd to. [para. 19].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 20].

Counsel:

Avocats:

David H. Dunsmuir, for the appellant;

Richard A. Northrup, for the respondent.

This appeal was heard on February 10, 2015, befor Quigg, Green and Baird, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered in both official languages by Quigg, J.A., on July 23, 2015.