D.P. v. R.B.,

• Jurisdiction: Prince Edward Island
• Judge: Mitchell, C.J.P.E.I., McQuaid and MacDonald, JJ.A.
• Neutral Citation: 2007 PESCAD 25
• Court: Supreme Court, Appeal Division (Prince Edward Island)
• Date: 23 October 2007

D.P. v. R.B. (2007), 271 Nfld. & P.E.I.R. 344 (PEICA);

    826 A.P.R. 344

MLB headnote and full text

Temp. Cite: [2007] Nfld. & P.E.I.R. TBEd. NO.020

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

(S1-AD-1134; 2007 PESCAD 25)

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

Prince Edward Island Supreme Court

Appeal Division

Mitchell, C.J.P.E.I., McQuaid and MacDonald, JJ.A.

November 21, 2007.

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 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 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 allowed 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 4059

Divorce - Corollary relief - Custody of children - Interim custody - Parents of three young children separated - The children resided with the mother - The father had liberal access under an informal arrangement - The mother filed for divorce and obtained an interim order permitting her to move with the children to Quebec, where she had been born and raised, to continue her teaching profession - The Prince Edward Island Court of Appeal allowed the father's appeal - The party seeking an interim order that varied the status quo regarding custody and access had to prove that compelling circumstances existed - The mother's reasons were not compelling - While the mother had de facto custody after separation, the father was also very involved in the children's lives - This arrangement appeared to be benefiting the children - As the mother did not have a job yet in Quebec, it could not be said that the move would benefit her and the children economically - The move meant less frequent contact for the children with both parents - Removing the children from their schools and community caused significant disruption - While a network of family support existed in Prince Edward Island, there was no evidence of such in Quebec - The order could have permanent and long-term effects, creating a new status quo that would be difficult to alter at the trial for the permanent order - This underlined the need to preserve the status quo unless there were compelling reasons to do otherwise - See paragraphs 26 to 57.

Family Law - Topic 4059

Divorce - Corollary relief - Custody of children - Interim custody - Parents of three young children separated - The children resided with the mother - The father had liberal access under an informal arrangement - The mother filed for divorce and obtained an interim order permitting her to move with the children to Quebec, where she had been born and raised, to continue her teaching profession - The Prince Edward Island Court of Appeal allowed the father's appeal - The motions judge erred in failing to give consideration to the principle that, on an interim motion, the status quo regarding custody and access was to be disturbed only where there were compelling reasons to do so - In granting the mother de facto custody and permitting her to move to Quebec, the motions judge relied on the fact that the mother was the primary caregiver and that to terminate her role would disrupt the lives of the children - These were not compelling reasons - The motions judge failed to consider giving the mother de facto custody on the condition that she not move to Quebec - He placed too much emphasis on the mother's role as primary caregiver during the short period of time between separation and the interim motion - This was unjustified and completely overlooked other important aspects of the status quo - See paragraph 56.

Family Law - Topic 4059

Divorce - Corollary relief - Custody of children - Interim custody - On a father's appeal of an interim order which granted a separated mother de facto custody of three young children and allowed her to move to another province with the children, the Prince Edward Island Court of Appeal stated that the most fundamental principle underlying the assessment of the children's best interests on such an interim motion was the need to maintain some semblance of stability in the children's lives before the trial - The status quo situation regarding custody and access to which the children were accustomed, either before or after the separation, was to be disturbed only where there were compelling reasons to do so - See paragraph 27.

Cases Noticed:

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. 23].

Kimpton v. Kimpton, [2002] O.T.C. 1070 (Sup. Ct.), refd to. [para. 28].

MacDonald v. Burns, [2005] N.S.R.(2d) Uned. 137; 2005 NSSC 352 (Fam. Ct.), refd to. [para. 29].

Lewis v. Lewis (2005), 236 N.S.R.(2d) 245; 749 A.P.R. 245 (Fam. Div.), refd to. [para. 31].

Norland v. Norland, [2006] O.T.C. Uned. D73 (Sup. Ct.), refd to. [para. 31].

White v. Richardson, [2005] O.T.C. Uned. 416; 18 R.F.L.(6th) 229 (Sup. Ct.), refd to. [para. 37].

Scott v. Scott (1993), 111 Nfld. & P.E.I.R. 122; 348 A.P.R. 122; 49 R.F.L.(3d) 405 (P.E.I.T.D.), refd to. [para. 38].

Peters v. Peters (2005), 232 N.S.R.(2d) 393; 737 A.P.R. 393 (Fam. Div.), refd to. [para. 39].

Holt v. Anderson, [1995] O.J. No. 4494 (Sup. Ct.), refd to. [para. 40].

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. 41].

Rafuse v. Handspiker (2001), 190 N.S.R.(2d) 64; 594 A.P.R. 64; 11 R.F.L.(5th) 363; 2001 NSCA 1, refd to. [para. 41].

Woodhouse v. Woodhouse (1996), 91 O.A.C. 91; 20 R.F.L.(4th) 337 (C.A.), refd to. [para. 41].

Nunweiler v. Nunweiler (2000), 137 B.C.A.C. 1; 223 W.A.C. 1; 5 R.F.L.(5th) 442 (C.A.), refd to. [para. 41].

C.B. v. E.C.C. (2002), 166 O.A.C. 44; 62 O.R.(3d) 236; 31 R.F.L.(5th) 242; 221 D.L.R.(4th) 489 (C.A.), refd to. [para. 41].

Counsel:

Gregory B. Collins, for the appellant;

Ronald J. Profit, Q.C., for the respondent.

This appeal was heard at Charlottetown, Prince Edward Island, on October 23, 2007, by Mitchell, C.J.P.E.I., McQuaid and MacDonald, JJ.A., of the Prince Edward Island Court of Appeal. McQuaid, J.A., delivered the following written reasons for judgment for the court on November 21, 2007.