Carter v. Howie, 2014 MBQB 219

• Judge: Thomson, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: November 10, 2014
• Jurisdiction: Manitoba
• Citations: 2014 MBQB 219;(2014), 312 Man.R.(2d) 1 (QBFD)

Carter v. Howie (2014), 312 Man.R.(2d) 1 (QBFD)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. NO.027

Scott Derrick Carter (petitioner) v. Sara Ann Howie (respondent)

(FD 04-01-74195; 2014 MBQB 219)

Indexed As: Carter v. Howie

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Thomson, J.

November 10, 2014.

Summary:

The parties' three year common-law relationship ended in 2004, one month after the birth of their child. A consent final order pronounced under the Family Maintenance Act in 2005 granted the parties joint custody with the mother having primary care and control. In 2013, the mother moved to vary the final order so that she could change the child's residence from Manitoba to Ontario. The father also moved to vary the order by requesting expanded periods of care and control.

The Manitoba Court of Queen's Bench, Family Division, dismissed the mother's motion and granted the father's motion.

Family Law - Topic 1891

Custody and access - Considerations in awarding custody - Conduct of parents - [See Family Law - Topic 1948 ].

Family Law - Topic 1895

Custody and access - Considerations on awarding custody - Changing child's residence - [See Family Law - Topic 1948 ].

Family Law - Topic 1896

Custody and access - Considerations in awarding custody - Parent-child relationship - [See Family Law - Topic 1948 ].

Family Law - Topic 1898

Custody and access - Considerations in awarding custody - Custodial parent moving from jurisdiction - [See Family Law - Topic 1948 ].

Family Law - Topic 1900

Custody and access - Considerations in awarding custody - Maximum contact with each parent - [See Family Law - Topic 1948 ].

Family Law - Topic 1942

Custody and access - Variation of custody and access rights - Test for variation - Provincial statutes - The Manitoba Court of Queen's Bench, Family Division, stated "Regarding the threshold requirement of a change in circumstances, [Gordon v. Goertz, 1996 S.C.C.] involved an application for variation of an order under the Divorce Act (R.S.C. 1985, c. 3 (2nd Supp.)). The case before me is brought under the Family Maintenance Act, as previously noted, and the threshold test is therefore different; the court may vary the order 'if the court thinks it fit and just to do so, having regard to any material change in circumstances that has occurred since the order was made ...' Thus, I will be attentive to evidence regarding changed circumstances in this matter, but my assessment of what may be fit and just in terms of my disposition will not hinge upon that evidence." - See paragraphs 48 and 49.

Family Law - Topic 1946

Custody and access - Variation of custody and access rights - Variation of consent order - [See Family Law - Topic 1948 ].

Family Law - Topic 1947

Custody and access - Variation of custody and access rights - Changed circumstances - General - [See Family Law - Topic 1942 ].

Family Law - Topic 1948

Custody and access - Variation of custody and access rights - Change of residence of child - The parties' common-law relationship ended in 2004, one month after the birth of their child (Liam) - At that time, the mother surreptitiously took Liam from Manitoba to Ontario where her extended family lived - The father brought legal proceedings and the mother was ordered to return to Manitoba with Liam - A 2005 consent final order granted the parties joint custody with the mother having primary care and control - In 2013, the mother's husband relocated to Ontario after obtaining employment there - The mother moved to vary the final order so that she could change Liam's residence from Manitoba to Ontario - The father moved for expanded periods of care and control - The Manitoba Court of Queen's Bench, Family Division, dismissed the mother's motion and granted the father's motion - There would be a substantial effect on the consistency, quality and quantity of time that Liam would spend with his father if the move to Ontario was sanctioned - Despite the mother's reluctance and/or unwillingness to accept the significance of the father in Liam's life, Liam's relationship with the father had remained strong and close - It was plain and obvious that it was in Liam's best interests to have more time and more overnights with the father.

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. 47].

Zeaton v. Zeaton (1999), 142 Man.R.(2d) 36; 212 W.A.C. 36; 3 R.F.L.(5th) 320 (C.A.), refd to. [para. 50].

Desrochers v. Desrochers (1999), 142 Man.R.(2d) 107; 212 W.A.C. 107; 3 R.F.L.(5th) 30 (C.A.), refd to. [para. 50].

Gamble v. Dyck-Gamble, [2000] Man.R.(2d) Uned. 164; 11 R.F.L.(5th) 99; 2000 MBCA 141, refd to. [para. 50].

Delichte v. Rogers - see Rogers v. Rogers.

Rogers v. Rogers (2011), 268 Man.R.(2d) 77; 520 W.A.C. 77; 2011 MBCA 50, refd to. [para. 50].

Leis v. Leis, [2011] Man.R.(2d) Uned. 89; 2011 MBCA 99, refd to. [para. 50].

Kozub v. Burgess, [2013] Man.R.(2d) Uned. 34; 2013 MBCA 64, refd to. [para. 50].

Bjornson v. Creighton, [2002] 62 O.R.(3d) 236 (C.A.), refd to. [para. 50].

Rushinko v. Rushinko (2002), 161 O.A.C. 85 (C.A.), refd to. [para. 50].

Orring v. Orring (2006), 232 B.C.A.C. 232; 385 W.A.C. 232; 2006 BCCA 523, refd to. [para. 50].

S.S.L. v. J.W.W. (2010), 284 B.C.A.C. 27; 481 W.A.C. 27; 2010 BCCA 55, refd to. [para. 50].

Berry v. Berry (2011), 285 O.A.C. 366; 7 R.F.L.(7th) 1; 2011 ONCA 705, refd to. [para. 50].

Counsel:

R. Grenville Waugh, for the petitioner;

Alex Steigerwald and Shasta Benaim, for the respondent.

These motions were heard before Thomson, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on November 10, 2014.