Boryskiewich v. Stuart, 2015 MBCA 23

• Judge: Beard, Cameron and Burnett, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 10, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 23;(2015), 315 Man.R.(2d) 182 (CA)

Boryskiewich v. Stuart (2015), 315 Man.R.(2d) 182 (CA);

      630 W.A.C. 182

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MR.009

Derek Stephen Boryskiewich (petitioner/respondent) v. Tara Stuart (respondent/appellant)

(AF 14-30-08131; 2015 MBCA 23)

Indexed As: Boryskiewich v. Stuart

Manitoba Court of Appeal

Beard, Cameron and Burnett, JJ.A.

February 10, 2015.

Summary:

The parties shared joint custody of their 7.5 year old son under a 2010 consent final order. The mother had primary care and control in Brandon. She decided to move to McCreary with the son. In March 2013, the father obtained an order preventing the move. The mother gave an undertaking that the child would remain in Brandon, pending a trial regarding relocation. In August 2013, she found a job in Dauphin and made arrangements to move there with the son. In September 2013, the father obtained an order preventing the move. In November 2013, the trial judge allowed the father's motion to vary the 2010 final order, granting the father primary care and control of the child. The mother appealed.

The Manitoba Court of Appeal dismissed the appeal.

Family Law - Topic 1947

Custody and access - Variation of custody and access rights - Changed circumstances - General - The parties shared joint custody of their 7.5 year old son under a 2010 consent final order - The mother had primary care and control in Brandon - She decided to move to McCreary with the son - In March 2013, the father obtained an order preventing the move - The mother gave an undertaking that the child would remain in Brandon, pending a trial regarding relocation - In August 2013, she found a job in Dauphin and made arrangements to move there with the son - In September 2013, the father obtained an order preventing the move - In November 2013, the trial judge allowed the father's motion to vary the 2010 final order, granting the father primary care and control of the child - The mother appealed, asserting, inter alia, that the trial judge had erred in failing to consider whether there had been a material change in circumstances - The Manitoba Court of Appeal dismissed the appeal - The parties had acknowledged that this was a mobility case - A material change in circumstances was not a live issue - The motion judge had not erred in not addressing whether the move to Dauphin constituted a material change in circumstances - Further, there was ample evidence that the proposed move constituted a material change in circumstances - See paragraphs 13 to 18.

Family Law - Topic 1948

Custody and access - Variation of custody and access rights - Change of residence of child - [See Family Law - Topic 1947 ].

Family Law - Topic 1951

Custody and access - Variation of custody and access rights - Welfare of child - The parties shared joint custody of their 7.5 year old son under a 2010 consent final order - The mother had primary care and control in Brandon - She decided to move to McCreary with the son - In March 2013, the father obtained an order preventing the move - The mother gave an undertaking that the child would remain in Brandon, pending a trial regarding relocation - In August 2013, she found a job in Dauphin and made arrangements to move there with the son - In September 2013, the father obtained an order preventing the move - In November 2013, the trial judge allowed the father's motion to vary the 2010 final order, granting the father primary care and control of the child - The mother appealed, asserting, inter alia, that the trial judge had erred in deciding that it was in the child's best interests to grant primary care and control to the father in Brandon - The Manitoba Court of Appeal dismissed the appeal - The trial judge considered and correctly reviewed the evidence as it related to the best interests test, noting the mother's "moves, job changes and reasons for them" and that she was not making decisions in the child's best interests - There was no material error or misapprehension of the evidence that would permit the court to interfere with the decision - See paragraphs 19 to 24.

Family Law - Topic 2076

Custody and access - Joint custody - Principal home - [See Family Law - Topic 1951 ].

Cases Noticed:

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. 14].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 19].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 20].

Van de Perre v. Edwards - see K.V.P. v. T.E.

Counsel:

K.L. Webb, for the appellant;

B.R. Murray, for the respondent.

This appeal was heard and determined on February 10, 2015, by Beard, Cameron and Burnett, JJ.A., of the Manitoba Court of Appeal. On February 27, 2015, Beard, J.A., delivered the following written reasons for the court.