Morrill v. Morrill, (2016) 330 Man.R.(2d) 165 (CA)

• Judge: Monnin, Mainella and leMaistre, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: April 13, 2016
• Jurisdiction: Manitoba
• Citations: (2016), 330 Man.R.(2d) 165 (CA);2016 MBCA 66

Morrill v. Morrill (2016), 330 Man.R.(2d) 165 (CA);

      675 W.A.C. 165

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. JN.031

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

(AF 15-30-08468; 2016 MBCA 66)

Indexed As: Morrill v. Morrill

Manitoba Court of Appeal

Monnin, Mainella and leMaistre, JJ.A.

June 20, 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 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.

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - [See third Family Law - Topic 1948 ].

Evidence - Topic 7014

Opinion evidence - Expert evidence - General - Textbooks, treatises and literature - [See second Family Law - Topic 1948 ].

Family Law - Topic 1895

Custody and access - Considerations in awarding custody - Changing child's residence - [See all Family Law - Topic 1948 ].

Family Law - Topic 1898

Custody and access - Considerations in awarding custody - Custodial parent moving from jurisdiction - [See all Family Law - Topic 1948 ].

Family Law - Topic 1948

Custody and access - Variation of custody and access rights - Change of residence of child - A trial judge refused a mother's request to relocate from Winnipeg to California with the parties' two youngest children - The mother appealed, arguing that the trial judge erred when she asked the mother whether she would remain in Winnipeg if her request to relocate the children was denied (i.e., the double bind question) - The Manitoba Court of Appeal stated that the law was well settled - The question should not be asked of the parent seeking the relocation, as it opened the door to simply maintaining the status quo - However, in this case, it was clear from the transcripts that the trial judge was aware of the caution not to canvass that issue, but justified having done so because she was also dealing with a spousal support issue and, therefore, knowledge of the mother's future intentions was necessary for the trial judge to address that issue - The Court of Appeal accepted the trial judge's reasoning and, in the context of this case, held that she did not err when she asked the question of the mother - In any event, the court was satisfied that very little turned on the mother's answer - The court rejected this ground of appeal - See paragraphs 11 to 14.

Family Law - Topic 1948

Custody and access - Variation of custody and access rights - Change of residence of child - A trial judge refused a mother's request to relocate from Winnipeg to California with the parties' two youngest children - The mother appealed, alleging that the trial judge introduced into the trial process, and thereafter relied on, commentary by a social scientist and the theories that he propounded to justify the decision she arrived at - In particular, the mother argued that the trial judge erred in introducing, and then relying on, the concepts of "gatekeeping" and "social capital" in arriving at her decision - The Manitoba Court of Appeal stated that it was not the role of the trial judge to introduce evidence, information or concepts into a trial on his or her own initiative - For the judge to rely on professional literature or introduce such material into trial, on her own motion, and thereafter rely on that opinion in arriving at her decision was an error - See paragraphs 24 to 36.

Family Law - Topic 1948

Custody and access - Variation of custody and access rights - Change of residence of child - A trial judge refused a mother's request to relocate from Winnipeg to California with the parties' two youngest children - The mother appealed, alleging that the trial judge relied on opinion evidence from a witness who was not qualified as an expert - The Manitoba Court of Appeal agreed that the trial judge erred in treating the witness as an expert, when she was not qualified as such - The court stated it was important to note that a trial judge had to perform a gatekeeper function with respect to expert evidence to ensure that the fact-finding process was not distorted by the potential dangers of expert evidence - Abdication of that gatekeeper function was an error of law - See paragraphs 37 to 46.

Family Law - Topic 1948

Custody and access - Variation of custody and access rights - Change of residence of child - A trial judge refused a mother's request to relocate from Winnipeg to California with the parties' two youngest children - The mother appealed - The Manitoba Court of Appeal allowed the appeal and ruled that the mother should be allowed to relocate to California with the children - The court held that the mother had placed before the court valid and reasonable reasons justifying her desire to relocate along with her children - That desire was fueled both by employment and financial reasons (she had lost her job in Winnipeg but found a job at a similar salary in California), and a new romantic relationship - The court considered that the children's relationship with their grandmother and father might change, however, found that the mother had made out her case - In certain circumstances relocation was to be permitted - Before relocation could take place, the parties had to come to an agreement on access or have the matter determined by the trial court - See paragraphs 46 to 59.

Counsel:

D.R. Kropp and A.M. Griffin, for the appellant;

M.L. Karpiak, for the respondent.

This appeal was heard on April 13, 2016, before Monnin, Mainella and leMaistre, JJ.A., of the Manitoba Court of Appeal. The following decision was delivered for the court by Monnin, J.A., on June 20, 2016.