D.P. v. R.B., (2009) 285 Nfld. & P.E.I.R. 61 (PEICA)

• Judge: Jenkins, C.J.P.E.I., Murphy and McQuaid, JJ.A.
• Case Date: March 17, 2009
• Jurisdiction: Prince Edward Island
• Citations: (2009), 285 Nfld. & P.E.I.R. 61 (PEICA);2009 PECA 12;285 Nfld & PEIR 61;66 RFL (6th) 21;[2009] QJ No 28 (QL)

D.P. v. R.B. (2009), 285 Nfld. & P.E.I.R. 61 (PEICA);

    879 A.P.R. 61

MLB headnote and full text

Temp. Cite: [2009] Nfld. & P.E.I.R. TBEd. MY.016

R.B. (appellant) v. D.P. (respondent)

(S1-AD-1159; 2009 PECA 12)

Indexed As: D.P. v. R.B.

Prince Edward Island Court of Appeal

Jenkins, C.J.P.E.I., Murphy and McQuaid, JJ.A.

May 28, 2009.

Summary:

Parents of three children separated. The mother filed for divorce. At issue on the mother's interim motion was the mother's desire to relocate to Quebec, where she had been born and raised, to continue her teaching profession and to raise the children in a Francophone environment near her extended family.

The Prince Edward Island Supreme Court, Trial Division, in a decision reported at (2007), 269 Nfld. & P.E.I.R. 1; 817 A.P.R. 1, ordered that the parties were to have interim joint custody. The mother was to have primary care and control. The children were to remain in the mother's custody as she moved to Quebec. The father appealed and moved for a stay of the custody order pending the appeal.

The Prince Edward Island Court of Appeal, per Mitchell, C.J.P.E.I., in a decision reported at (2007), 269 Nfld. & P.E.I.R. 190; 817 A.P.R. 190, denied the motion. The appeal proceeded.

The Prince Edward Island Court of Appeal, in a decision reported at (2007), 271 Nfld. & P.E.I.R. 344; 826 A.P.R. 344, allowed the appeal. The return of the children to Prince Edward Island was to be delayed until the end of the school year. The trial proceeded.

The Prince Edward Island Supreme Court, Trial Division, in a decision reported at (2008), 277 Nfld. & P.E.I.R. 131; 850 A.P.R. 131, held that the parties were to have joint custody of the children with day to day custody, care and control to remain with the mother residing in Quebec. The father appealed.

The Prince Edward Island Court of Appeal, McQuaid, J.A., dissenting, 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.

Family Law - Topic 1865

Custody and access - Duties and rights of custodian - To remove child from jurisdiction - Parents of three children separated - The mother filed for divorce - At issue was the mother's desire to relocate to Quebec, where she had been born and raised, to continue her teaching profession and to raise the children in a Francophone environment near her extended family - The mother obtained an interim order allowing her to relocate to Quebec with the children - Finding that the children had been in the de facto custody of the mother since birth and that she was the primary parent since separation, the trial judge awarded joint custody of the children with day to day custody, care and control to remain with the mother residing in Quebec - The Prince Edward Island Court of Appeal dismissed the father's appeal - Because custody decisions were inherently exercises in discretion, they were not to be readily overturned - The trial judge approached the relocation issue from the perspective of respect for the parent's decision to live and work where he or she chose, barring an improper motive - The trial judge had not erred in his assessment or application of the appropriate factors - While he had placed substantial weight on the factors contained in Gordon v. Goertz (1996 S.C.C.), this was not a misapplication of the law - He had given sufficient weight to all of the relevant considerations as stipulated by s. 16 of the Divorce Act - See paragraphs 13 to 26.

Family Law - Topic 1898

Custody and access - Considerations in awarding custody - Custodial parent moving from jurisdiction - [See Family Law - Topic 1865 ].

Family Law - Topic 1916

Custody and access - Appeals - Standard of review - [See Family Law - Topic 1865 ].

Cases Noticed:

D.P. v. R.B. (2008), 277 Nfld. & P.E.I.R. 131; 850 A.P.R. 131; 2008 PESCTD 33, refd to. [para. 1].

D.P. v. R.B. (2007), 269 Nfld. & P.E.I.R. 1; 817 A.P.R. 1; 2007 PESCTD 25, refd to. [paras. 7, 38].

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. [paras. 13, 39].

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

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [paras. 18, 41].

Nunweiler v. Nunweiler (2000), 137 B.C.A.C. 1; 223 W.A.C. 1; 186 D.L.R.(4th) 323; 2000 BCCA 300, refd to. [paras. 21, 52].

Falvai v. Falvai (2008), 263 B.C.A.C. 74; 443 W.A.C. 74; 2008 BCCA 503, refd to. [paras. 23, 52].

Spencer v. Spencer (2005), 371 A.R. 78; 354 W.A.C. 78; 257 D.L.R.(4th) 115; 2005 ABCA 262, refd to. [para. 23].

C.B. v. E.C.C. (2002), 166 O.A.C. 44; 62 O.R.(3d) 236 (C.A.), refd to. [para. 24].

Bjornson v. Creighton - see C.B. v. E.C.C.

N.R. v. B.B. et al. (2009), 385 N.R. 85; (2009), 266 B.C.A.C. 1 (S.C.C.), refd to. [para. 31].

Rick v. Brandsema - see N.R. v. B.B. et al.

D.P. v. R.B. (2007), 271 Nfld. & P.E.I.R. 344; 826 A.P.R. 344; 289 D.L.R.(4th) 177; 44 R.F.L.(6th) 9; 2007 PESCAD 25, refd to. [para. 38].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 39].

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. 39].

Counsel:

Gregory B. Collins, for the appellant;

R. Brendan Hubley, for the respondent.

This appeal was heard at Charlottetown, Prince Edward Island, on March 17, 2009, by Jenkins, C.J.P.E.I., Murphy and McQuaid, JJ.A., of the Prince Edward Island Court of Appeal. On May 28, 2009, the court released the following judgment with the following opinions:

Murphy, J.A. (Jenkins, C.J.P.E.I., concurring) - see paragraphs 1 to 36;

McQuaid, J.A., dissenting - see paragraphs 37 to 68.