Hurst v. Carey, (2015) 366 Nfld. & P.E.I.R. 178 (NLTD(F))

• Judge: Fowler, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: February 04, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 366 Nfld. & P.E.I.R. 178 (NLTD(F))

Hurst v. Carey (2015), 366 Nfld. & P.E.I.R. 178 (NLTD(F));

    1144 A.P.R. 178

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. MY.018

Tegan Hurst (applicant) v. Dale Carey (respondent)

(201302F0205; 2015 NLTD(G) 16)

Indexed As: Hurst v. Carey

Newfoundland and Labrador Supreme Court

Trial Division (Family)

Fowler, J.

May 12, 2015.

Summary:

Hurst and Carey (unmarried and separated) were the parents of Alexis, born in 2011. Alexis had a diagnosed speech problem requiring therapy. Hurst applied to relocate with the child to Alberta, where they would be cared for by her parents who had the financial means and desire to do so as well as provide for the child's therapeutic needs. Carey opposed the application on the basis that it would result in his losing all contact and communication with his daughter.

The Newfoundland and Labrador Supreme Court, Trial Division (Family), granted the application to relocate to Alberta, where Hurst "will live with her parents ... indefinitely." The Court also added that Hurst was prohibited from removing the child from the home and care of Hurst's parents without a court order.

Family Law - Topic 1865

Custody and access - Duties and rights of custodian - To remove child from jurisdiction - [See Family Law - Topic 1895 ].

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare or best interests of child paramount - [See Family Law - Topic 1895 ].

Family Law - Topic 1895

Custody and access - Considerations on awarding custody - Changing child's residence - Hurst and Carey (unmarried and separated) were the parents of a 3.5 year old girl (Alexis) - Alexis had a diagnosed speech problem requiring therapy - The parents had a dysfunctional relationship - Carey paid no child support - During Carey's access times his mother predominately cared for Alexis - Hurst (26 years old; poor social judgment; currently unemployed; supported by government assistance and her parents) applied to relocate with Alexis from Newfoundland and Labrador to Alberta, where they would be cared for by Hurst's parents - The Newfoundland and Labrador Supreme Court, Trial Division (Family), granted the application to relocate to Alberta, in the best interests of the child, where Hurst "will live with her parents ... indefinitely." - The Court considered the factors mandated under the Children's Law Act, as well as the criteria in Gordon v. Goertz (S.C.C.) - A serious concern was the child's future well-being - The "present poverty regime" did not speak well to the child's best interests when there was a more supportive alternative presented - Carey's attitude toward Hurst and his reluctance to communicate with her negatively affected the child's best interests - As well, Carey failed to appreciate the inappropriateness of having the child's bath pictures posted on Facebook (by his mother) over captions of adult sexual jokes - Pursuant to ss. 33(b) and 53(c) of the Act, the Court prohibited Hurst from removing Alexis from the home and care of Hurst's parents without a court order - See paragraphs 150 to 167.

Family Law - Topic 1902

Custody and access - Considerations in awarding custody - Parent's residence - [See Family Law - Topic 1895 ].

Cases Noticed:

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241; 135 D.L.R.(4th) 321, refd to. [para. 12].

A.M. v. S.M. (2013), 344 Nfld. & P.E.I.R. 106; 1068 A.P.R. 106; 2013 NLTD(F) 39, refd to. [para. 13].

Whalen v. Whalen (2005), 247 Nfld. & P.E.I.R. 344; 735 A.P.R. 344; 2005 NLCA 35, refd to. [para. 15].

D.M.M. v. T.C.M. (2011), 305 N.S.R.(2d) 202; 966 A.P.R. 202; 1 R.F.L.(7th) 443; 2011 NSSC 261, refd to. [para. 116].

Robles v. Kuhn, [2012] B.C.T.C. Uned. 752; 215 A.C.W.S.(3d) 908; 2012 BCSC 752, refd to. [para. 122].

Woods v. Racine, [1983] 2 S.C.R. 173; 48 N.R. 362; 24 Man.R.(2d) 314; 1 D.L.R.(4th) 193, refd to. [para. 150].

Statutes Noticed:

Children's Law Act, R.S.N.L. 1990, c. C-13, sect. 26 [para. 10]; sect. 31 [para. 11]; sect. 33(b), sect. 53(c) [para. 167].

Counsel:

Mary Boulos, for the applicant;

Catherine Boyd, for the respondent.

This application was heard at St. John's, NL, on October 20-22, 2014, and on January 5-7 and February 4, 2015, before Fowler, J., of the Newfoundland and Labrador Supreme Court, Trial Division (Family), who delivered the following decision, dated May 12, 2015.