J.H. v. T.H., 2014 NBCA 52

• Judge: Larlee, Deschênes and Richard, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 23, 2014
• Jurisdiction: New Brunswick
• Citations: 2014 NBCA 52;(2014), 422 N.B.R.(2d) 388 (CA);422 NBR (2d) 388

J.H. v. T.H. (2014), 422 N.B.R.(2d) 388 (CA);

    422 R.N.-B.(2e) 388; 1096 A.P.R. 388

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] N.B.R.(2d) TBEd. AU.012

Renvoi temp.: [2014] N.B.R.(2d) TBEd. AU.012

J.H. (appellant) v. T.H. (respondent)

(55-14-CA; 2014 NBCA 52)

Indexed As: J.H. v. T.H.

Répertorié: J.H. v. T.H.

New Brunswick Court of Appeal

Larlee, Deschênes and Richard, JJ.A.

June 23, 2014.

Summary:

Résumé:

The parties married in October 2004, and separated in October 2013. There were three children of the marriage. On three occasions, a Queen's Bench judge had heard an interim motion pursuant to the Family Services Act with respect to custody and access of the two younger children. When the matter was first heard in December 2013, the judge granted the father liberal and generous access. In January 2014, the judge issued a second interim order granting the parties interim joint custody of the children. The mother was awarded primary care and residence of the children but the father was granted liberal and generous access to them between the hours of 10:00 a.m. and 8:00 p.m. each day. In April 2014, the judge heard the third motion. The parties were granted joint custody of the two younger children. However, the mother was awarded primary care and residence of the children and the father was granted access every second weekend. With leave, the father appealed the third order.

The New Brunswick Court of Appeal allowed the appeal. The court granted interim joint custody of the children with the children spending alternating weeks in the custody of each parent.

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.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The parties married in October 2004, and separated in October 2013 - There were three children of the marriage - On three occasions, a Queen's Bench judge had heard an interim motion pursuant to the Family Services Act with respect to custody and access of the two younger children - When the matter was first heard in December 2013, the judge granted the father liberal and generous access - In January 2014, the judge issued a second interim order granting the parties interim joint custody of the children - The mother was awarded primary care and residence of the children but the father was granted liberal and generous access to them between the hours of 10:00 a.m. and 8:00 p.m. each day - In April 2014, the judge heard the third motion - The parties were granted joint custody of the two younger children - However, the mother was awarded primary care and residence of the children and the father was granted access every second weekend - With leave, the father appealed the third order - The New Brunswick Court of Appeal allowed the appeal - The reasons for judgment were insufficient by their total absence - There was no discernable path leading from the evidence to factual findings and then to legal conclusions - There was no indication the judge applied the proper criteria and decided the matter on the basis of the "best interests of the children" - There was no explanation as to why the father, who, before the separation, had for some time been the children's primary caregiver, was now relegated to seeing his children only every second weekend - Considering the drastic change in the access provision between the judge's second and third orders, the context of the entire case (including the arguments) did not provide sufficient basis to discern the path followed - In other words, the total absence of reasons did not allow for meaningful appellate review - See paragraphs 4 to 7.

Family Law - Topic 2051

Custody and access - Interim custody - Considerations - The parties married in October 2004, and separated in October 2013 - There were three children of the marriage - On three occasions, a Queen's Bench judge had heard an interim motion pursuant to the Family Services Act with respect to custody and access of the two younger children - When the matter was first heard in December 2013, the judge granted the father liberal and generous access - In January 2014, the judge issued a second interim order granting the parties interim joint custody of the children - The mother was awarded primary care and residence of the children but the father was granted liberal and generous access to them between the hours of 10:00 a.m. and 8:00 p.m. each day - In April 2014, the judge heard the third motion - The parties were granted joint custody of the two younger children - However, the mother was awarded primary care and residence of the children and the father was granted access every second weekend - With leave, the father appealed the third order - The New Brunswick Court of Appeal allowed the appeal - The court granted interim joint custody of the children with the children spending alternating weeks in the custody of each parent - There was no reason why at this stage the parents could not equally share custody of and access to the children - Such an order would benefit the mental, emotional and physical health of the children; it would be less disruptive of the children's sense of continuity since they were used to spending time with both parents and would respect the love, affection and ties that existed between the children and both their parents - These factors weighed heavily toward an order that would maximize access to both parents - No other factor of relevance militated against such an outcome - See paragraphs 9 to 16.

Family Law - Topic 2054

Custody and access - Interim custody - Variation of - [See Family Law - Topic 2051 ].

Family Law - Topic 2057

Custody and access - Interim custody - Evidence (incl. oral evidence on motion) - The parties married in October 2004, and separated in October 2013 - There were three children of the marriage - On three occasions, a Queen's Bench judge had heard an interim motion pursuant to the Family Services Act with respect to custody and access of the two younger children - When the matter was first heard in December 2013, the judge granted the father liberal and generous access - In January 2014, the judge issued a second interim order granting the parties interim joint custody of the children - The mother was awarded primary care and residence of the children but the father was granted liberal and generous access to them between the hours of 10:00 a.m. and 8:00 p.m. each day - In April 2014, the judge heard the third motion - The parties were granted joint custody of the two younger children - However, the mother was awarded primary care and residence of the children and the father was granted access every second weekend - With leave, the father appealed the third order - The New Brunswick Court of Appeal allowed the appeal - The judge failed to consider evidence that was relevant and admissible, in particular text messages that were attached to the father's affidavit - The father claimed that the text messages demonstrated the mother's open disobedience of the second order - The judge stated "Oh, I don't even read the text messages", explaining that they often did not make any sense or might not be written in proper English, and adding "I have no time for text messages" - This was an error of law - While a motion judge could, for valid reasons, not place much weight on certain evidence that was properly before him, he could not refuse to even look at the evidence, especially when counsel was drawing his attention to it - See paragraph 8.

Droit de la famille - Cote 2051

Garde et accès - Garde provisoire - Facteurs considérés - [Voir Family Law - Topic 2051 ].

Droit de la famille - Cote 2054

Garde et accès - Garde provisoire - Modification - [Voir Family Law - Topic 2054 ].

Droit de la famille - Cote 2057

Garde et accès - Garde provisoire - Preuve (y compris la preuve orale sur la motion) - [Voir Family Law - Topic 2057 ].

Tribunaux - Cote 583

Juges - Devoirs - Motifs de décision - [Voir Courts - Topic 583 ].

Cases Noticed:

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 2].

P.R.H. v. M.E.L. (2009), 343 N.B.R.(2d) 100; 881 A.P.R. 100; 2009 NBCA 18, refd to. [para. 3].

Chiasson v. Doucet (2014), 422 N.B.R.(2d) 304; 1096 A.P.R. 304; 2014 NBCA 49, refd to. [para. 7].

Kovachis v. Kovachis et al. (2013), 311 O.A.C. 228; 2013 ONCA 663, refd to. [para. 10].

Rattray v. Legault, [2003] N.B.R.(2d) Uned. 152 (C.A.), refd to. [para. 12].

D.A. v. J.R. (2012), 387 N.B.R.(2d) 203; 1001 A.P.R. 203; 2012 NBCA 38, refd to. [para. 13].

Counsel:

Avocats:

Terence R. Connelly, for the appellant;

Martin J. Siscoe, for the respondent.

This appeal was heard on June 23, 2014, by Larlee, Deschênes and Richard, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered orally by Larlee, J.A., on the same date in both official languages.