B.H. v. A.H.H., (2015) 370 Nfld. & P.E.I.R. 158 (NLTD(F))

• Judge: Dunn, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: July 03, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 370 Nfld. & P.E.I.R. 158 (NLTD(F))

B.H. v. A.H.H. (2015), 370 Nfld. & P.E.I.R. 158 (NLTD(F));

    1153 A.P.R. 158

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. AU.031

B.H. (applicant) v. A.H.H. (respondent)

(201002U0113; 2015 NLTD(F) 30)

Indexed As: B.H. v. A.H.H.

Newfoundland and Labrador Supreme Court

Trial Division (Family)

Dunn, J.

August 20, 2015.

Summary:

Parents divorced. A 2011 consent order granted them joint custody of their two sons, born in 2004 and 2006, and designated their primary residence as the mother's residence. The father brought a variation application requesting that the designation of their primary residence be changed to his residence. If the request was granted, the children would move from Conception Bay South, Newfoundland and Labrador, to Saskatoon, Saskatchewan.

The Newfoundland and Labrador Supreme Court, Trial Division (Family), dismissed the application.

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.

Family Law - Topic 1900

Custody and access - Considerations in awarding custody - Maximum contact with each parent - Parents divorced - A 2011 consent order granted them joint custody of their two sons, born in 2004 and 2006, and designated their primary residence as the mother's residence - The father brought a variation application requesting that the designation of their primary residence be changed to his residence - If the request was granted, the children would move from Conception Bay South, Newfoundland and Labrador, to Saskatoon, Saskatchewan - The Newfoundland and Labrador Supreme Court, Trial Division (Family), dismissed the application - The court considered, inter alia, that the father seemed far less sensitive than the mother to the importance of the maximum contact principle mandated under the Divorce Act - He did not appreciate the mother's right to have consistent and ongoing telephone contact with the boys during their period of time in Saskatoon with him - The mother had demonstrated consistently a willingness to ensure maximum contact of the children with their father - The variation application itself was grounded in her request that he assume primary residence of the children temporarily - The first person she turned to aid her with respite time was the father - There was no suggestion that she ever deprived him of access to the children or acted in any way contrary to the maximum contact principle - See paragraphs 49 and 50.

Family Law - Topic 1947

Custody and access - Variation of custody and access rights - Changed circumstances - General - Parents divorced - A 2011 consent order granted them joint custody of their two sons, born in 2004 and 2006, and designated their primary residence as the mother's residence - The father brought a variation application requesting that the designation of their primary residence be changed to his residence - If the request was granted, the children would move from Conception Bay South, Newfoundland and Labrador, to Saskatoon, Saskatchewan - The father pointed to, inter alia, the mother's frequent moves and his purchase of a house in which the boys would each have their own bedroom in support of his application - The Newfoundland and Labrador Supreme Court, Trial Division (Family), stated that "[a] material change is a fundamental and continuing change. The change must not have been contemplated or foreseeable at the time the original order was pronounced. ... The consent order and the purchase of the home in Saskatoon both occurred in December of 2011. The home was bought by the Applicant and his spouse in the hope they would be able to effect permanent relocation there, working in the area for which each had trained, that is sheet metal. Despite their intentions they did not complete the move until after 2012 and continued to commute back and forth to Alberta for work purposes. In my view, taking up permanent residence in the home is a change of circumstances but one that was foreseeable in December, 2011, the same month in which the Applicant executed the consent order. It cannot be overlooked that upon taking up residency in Saskatoon the Applicant did not proceed with an application for change of primary residence of his sons despite being aware of the multiple moves made by the Respondent and her spouse prior to that and armed with the knowledge of her two previous requests to take the children. Instead, the Applicant continued, appropriately, to adhere to the provisions in the consent order. Even had the Applicant commenced such an application at an earlier date up to and including the present application, I find the accommodation offered by him is not of such a superior quality so as to warrant a change in residence, on this basis alone. Courts have recognized psychological needs are more important than the relative financial positions of parents." - See paragraphs 31 to 33.

Family Law - Topic 1947

Custody and access - Variation of custody and access rights - Changed circumstances - General - Parents divorced - A 2011 consent order granted them joint custody of their two sons, born in 2004 and 2006, and designated their primary residence as the mother's residence - The father brought a variation application requesting that the primary residence designation be changed to his residence - If the request was granted, the children would move from Conception Bay South, Newfoundland and Labrador, to Saskatoon, Saskatchewan - The main issue giving rise to the application began on December 9, 2014 when the mother messaged the father requesting that the children come live with him as she was under a lot of stress - Her mother was terminally ill in Labrador - The mother indicated that she was agreeable to enrolling the children in school in Saskatoon but felt that it would be preferable to have the boys registered at the beginning of the school year (September 2015) or, at the very least, the beginning of a school term (earliest date, January 2015) - No specific date was arrived at during this conversation - On December 30, 2014, while the children were in Saskatoon for Christmas access, the mother, contacted the father indicating that she wished to move to Labrador with the children - She stated that she would allow the children to choose whether they wished to go to Labrador with her or stay in Saskatoon with the father - The following day the mother called the children for their decision - They informed her they wanted to stay in Saskatoon with the father, at which point she indicated to the father that she wanted the children to return to Newfoundland and Labrador and accompany her to Labrador - This plan envisaged the mother's husband staying in the St. John's region for employment reasons - In light of this, and the father's testimony that in the fall of 2009 and again in November 2010 the mother had requested that he take the children or one of them as she could not deal with them, the father unilaterally did not return the boys to their mother at the end of the access period, enrolling them in school in Saskatoon instead - The mother took out a contempt application which resulted in an order, filed April 16, 2015, requiring the father to, inter alia, return the children to the mother at the end of the school year - The Newfoundland and Labrador Supreme Court, Trial Division (Family), dismissed the variation application - The court found that the events in the summer and December of 2014 were unique to a single occurrence of a non-continuing nature happening in the mother's life - There was insufficient evidence to conclude she was either emotionally unstable or that there was instability in her lifestyle - Admittedly, she was very stressed at the time and the household was financially challenged but there was no evidence that this had been detrimental to the boys - See paragraphs 44 to 46.

Family Law - Topic 1950

Custody and access - Variation of custody and access rights - Changed circumstances of parents - [See both Family Law - Topic 1947 ].

Family Law - Topic 4063

Divorce - Corollary relief - Custody of children - Variation - Jurisdiction - [See both Family Law - Topic 1947 ].

Family Law - Topic 4064

Divorce - Corollary relief - Custody of children - Variation of custody order - [See Family Law - Topic 1900 and both Family Law - Topic 1947 ].

Cases Noticed:

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, appld. [para. 14].

Theriault v. Theriault, [2008] N.S.R.(2d) Uned. 87; 2008 NSSC 227, refd to. [para. 17].

J.W.M. v. J.L.M. (2012), 326 B.C.A.C. 18; 554 W.A.C. 18; 2012 BCCA 324, refd to. [para. 18].

M.M.K. v. U.K. (1990), 76 Alta. L.R.(2d) 216 (C.A), leave to appeal denied (1991), 31 R.F.L.(3d) 366 (S.C.C.), refd to. [para. 33].

Negard v. Negard (1991), 121 A.R. 279 (Q.B.), refd to. [para. 34].

Keyuk v. Keyuk (1993), 114 Sask. R. 222; 43 A.C.W.S.(3d) (Q.B.), refd to. [para. 34].

Counsel:

Lisa L. Baker, for the applicant;

Amanda Barfitt, for the respondent.

This application was heard at St. John's, N.L, on June 24-26, 29 and July 3, 2015, by Dunn, J., of the Newfoundland and Labrador Supreme Court, Trial Division (Family), who delivered the following decision on August 20, 2015.