Morrill v. Morrill, 2016 MBCA 93

• Judge: Hamilton, J.A.
• Court: Court of Appeal (Manitoba)
• Case Date: Thursday September 22, 2016
• Jurisdiction: Manitoba
• Citations: 2016 MBCA 93;(2016), 330 Man.R.(2d) 328 (CA)

Morrill v. Morrill (2016), 330 Man.R.(2d) 328 (CA);

      675 W.A.C. 328

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. OC.002

Nadine Nicole Morrill (petitioner/appellant) v. Kevin Karl Morrill (respondent/respondent)

(AF 15-30-08468; 2016 MBCA 93)

Indexed As: Morrill v. Morrill

Manitoba Court of Appeal

Hamilton, J.A.

September 27, 2016.

Summary:

At issue in these divorce proceedings was (1) whether the mother should be permitted to relocate to California with the parties' two youngest children; (2) periods of care and control of the two youngest children for the father; (3) imputation of the father's income; (4) child support payable by the father; and (5) spousal support payable by the father to the mother.

The Manitoba Court of Queen's Bench, Family Division, in a decision reported at 308 Man.R.(2d) 223, held that it would be contrary to the children's best interests for the mother to be permitted to relocate with them to California. The parties were granted joint custody with the mother having primary care and control and the father having specific periods of care and control for the youngest child. The father was ordered to pay retroactive and ongoing child support based on an imputed income of $60,000/year. The mother's claim for spousal support was dismissed. The mother appealed the court's refusal to allow her to relocate with the children.

The Manitoba Court of Appeal, in a decision reported at 330 Man.R.(2d) 165; 675 W.A.C. 165, allowed the appeal. The trial judge erred in introducing into the trial process, and thereafter relying on, commentary by a social scientist and the theories that he propounded to justify her decision and by relying on opinion evidence from a witness who was not qualified as an expert. The appeal court reconsidered the relocation issue and ruled that the mother should be allowed to relocate to California with the children. The court noted that relocation was not to occur unless and until the parties came to an agreement on access. If the parties could not agree, the matter was to be returned to the trial court before a different judge. The father applied for leave to appeal to the Supreme Court of Canada and moved for a stay of the Court of Appeal judgment under s. 65.1 of the Supreme Court Act.

The Manitoba Court of Appeal, per Hamilton, J.A., granted the stay.

Family Law - Topic 1865

Custody and access - Duties and rights of custodian - To remove child from jurisdiction - [See Practice - Topic 9096].

Family Law - Topic 1948

Custody and access - Variation of custody and access rights - Change of residence of child - [See Practice - Topic 9096].

Practice - Topic 8881

Appeals - Leave to appeal - Stay of proceedings pending - [See Practice - Topic 9096].

Practice - Topic 9096

Appeals - Supreme Court of Canada - Stay of proceedings pending appeal - A father applied for leave to appeal to the Supreme Court of Canada from a family law decision of the Manitoba Court of Appeal which permitted a mother to relocate from Winnipeg to California with their two children (ages 9 (son) and 17 (daughter)) - The father sought leave on two questions, namely: "1. What is the scope of the Court's gatekeeping function in mobility cases to ensure the child's best interests are adequately considered? 2. On what basis can an appellate court substitute their finding on mobility for that of the court below?" - The Manitoba Court of Appeal, per Hamilton, J.A., reviewed when a stay could be granted and granted the stay in this case - Both parties demonstrated irreparable harm - The father had persuaded the court that the proposed questions raised serious questions to be argued which could qualify for leave to appeal - The least harmful scenario for the son was to remain in Winnipeg until the leave application was decided - See paragraphs 14 to 43.

Counsel:

D.R. Kropp, for the appellant;

M.L. Karpiak, for the respondent.

This Chambers motion was heard on September 22, 2016, before Hamilton, J.A., of the Manitoba Court of Appeal, who delivered the following decision on September 27, 2016.