A.D. v. B.B., (2015) 373 Nfld. & P.E.I.R. 205 (NLTD(F))

• Judge: LeBlanc, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: November 10, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 373 Nfld. & P.E.I.R. 205 (NLTD(F))

A.D. v. B.B. (2015), 373 Nfld. & P.E.I.R. 205 (NLTD(F));

    1161 A.P.R. 205

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. NO.023

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

(20102F0659; 2015 NLTD(F) 39)

Indexed As: A.D. v. B.B.

Newfoundland and Labrador Supreme Court

Trial Division (Family)

LeBlanc, J.

November 10, 2015.

Summary:

The parties separated and entered into a separation agreement which provided for a shared parenting regime of their three children, on a week on/week off basis. High parental conflict ensued. The mother applied to vary the parenting arrangements such that she be granted sole custody of the children. Child, Youth and Family Services applied for a second supervision order to restrict the father's access. On that application, it was determined that the children were being emotionally harmed, specifically based upon the problematic behaviours of the father. The six-month supervision order ended in August 2015. The father sought joint legal custody, and shared physical parenting.

The Newfoundland and Labrador Supreme Court, Trial Division (Family), found that there had been a material change in circumstances, such that it had jurisdiction to vary the parenting arrangement. Governed by the "best interests of the children", the Court granted sole legal custody to the mother, and two consecutive overnights per week of access to the father.

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 1889

Custody and access - Considerations in awarding custody - Capacity or conditions of parents - The parties' separation agreement provided for a shared parenting regime of their three children, ages 13, 11 and 8 - High parental conflict ensued - The mother applied to vary the parenting arrangements such that she be granted sole custody - Child, Youth and Family Services applied for a second supervision order to restrict the father's access - On that application, it was determined that the children were being emotionally harmed, based upon the problematic behaviours of the father - The six-month supervision order ended in August 2015 - The Newfoundland and Labrador Supreme Court, Trial Division (Family), held that an order granting sole legal custody to the mother was in the best interests of the children - The circumstances had materially changed such that, if known by the parties at the time, would have resulted in a different parenting arrangement - Ordering joint decision-making was too risky for the children, given the past conflict between the parents, much of which had been caused by the father - If the parents were unable to agree on major decisions, the mother's decision would prevail - A shared parenting regime was not in the best interests of the children, despite their stated preference for such an arrangement - While the father had participated in intensive counselling and therapy, the Court remained concerned about his level of insight and his ability to control his emotions for a sustained period of time - Detailed conditions of the parenting order included vacation and holiday schedules, communications between the parents (primarily by email), telephone access, the parents' counselling program regarding their parenting, and the children's counselling - See paragraphs 49 to 75.

Family Law - Topic 1890

Custody and access - Considerations in awarding custody - Child's preference - [See Family Law - Topic 1889 ].

Family Law - Topic 1947

Custody and access - Variation of custody and access rights - Changed circumstances - General - [See Family Law - Topic 1889 ].

Family Law - Topic 2073

Custody and access - Joint custody - Considerations - In this "high parental conflict" case, the issue was whether there should be a sole or joint custody order made as regarded decision-making - The Newfoundland and Labrador Supreme Court, Trial Division (Family), stated that "It is my view that what generally militates against joint decision-making are situations where there is an insurmountable inability of the parents to communicate appropriately to allow them to make joint decisions in the children's best interests, where there has been a history of abuse within the family, either physical or emotional harmful behaviour, or where there has been a disinterest on the part of a parent as regards the child. There are other circumstances that may also negate the ordering of joint custody. Each case must be considered on its own facts so as to ensure that a determination can be made that is workable in the child's best interests" - In the case at bar, the Court found that the mother was best able to decide in the children's best interests - See paragraph 15.

Family Law - Topic 2073

Custody and access - Joint custody - Considerations - The father in this "high parental conflict" case sought joint legal custody of the children - The Newfoundland and Labrador Supreme Court, Trial Division (Family), stated that "While courts are of recent times increasingly prepared to order joint legal custody, even in cases involving high parental conflict, such occurs generally only where it is established that the parents have been able to insulate the children to a significant degree from the conflict and where measures can be put in place, or already exist, to make joint decision-making workable. Other approaches, parallel parenting for example as opposed to cooperative parenting, can be an option to consider in such circumstances as can the idea of having each parent have final decision-making authority on specific matters." - In this case, the Court granted sole legal custody to the mother - See paragraph 16.

Family Law - Topic 2082

Custody and access - Shared parenting - Considerations (incl. best interests of the child) - Aside from joint legal custody, the father in this "high parental conflict" case sought shared physical parenting of the children - The Newfoundland and Labrador Supreme Court, Trial Division (Family), stated that "There are many reported cases that stand for the proposition that shared parenting is not a viable solution when parents are unable to communicate effectively or to cooperate on matters involving their children. However, where the parent objecting to shared parenting is found to be 'ratcheting up the conflict' in order to stymie a shared parenting arrangement, this will sometimes lead to a shared parenting order notwithstanding the parents' conflict level. In such cases, courts have acted so as to preserve the active involvement by both parents in the lives of their children." - In the case at bar, the Court concluded that a shared parenting regime would not be in the best interests of the children - See paragraph 17.

Cases Noticed:

Dedes v. Dedes (2015), 372 B.C.A.C. 70; 640 W.A.C. 70; 58 R.F.L.(7th) 261; 2015 BCCA 194, refd to. [para. 12].

L.A.R. v. R.J.C., [2012] Nfld. & P.E.I.R. Uned. 54; [2013] W.D.F.L. 546; 2012 NLTD(F) 24, refd to. [para. 13].

Moreira v. Garcia Dominguez, [2012] W.D.F.L. 6226; 2012 ONCJ 128, refd to. [para. 15].

Ackerman v. Ackerman (2014), 442 Sask.R. 113; 616 W.A.C. 113; 48 R.F.L.(7th) 1; 2014 SKCA 86, refd to. [para. 17].

Counsel:

Linda M. Rose, Q.C., and Darlene P. Butler, for the applicant;

Brian D. Wentzell, for the respondent.

This application was heard at St. John's, N.L., on various dates between November 2014 and October 2015, before LeBlanc, J., of the Newfoundland and Labrador Supreme Court, Trial Division (Family), who delivered the following judgment and reasons, dated November 10, 2015.