A.N.H. v. M.K.C., (2010) 359 N.B.R.(2d) 1 (FD)

• Judge: Walsh, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: April 07, 2010
• Jurisdiction: New Brunswick
• Citations: (2010), 359 N.B.R.(2d) 1 (FD);2010 NBQB 120

A.N.H. v. M.K.C. (2010), 359 N.B.R.(2d) 1 (FD);

    359 R.N.-B.(2e) 1; 929 A.P.R. 1

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]

.........................

Temp. Cite: [2010] N.B.R.(2d) TBEd. AP.006

Renvoi temp.: [2010] N.B.R.(2d) TBEd. AP.006

A.N.H. (applicant) v. M.K.C. (respondent)

(FDSJ 174-08; 2010 NBQB 120; 2010 NBBR 120)

Indexed As: A.N.H. v. M.K.C.

Répertorié: A.N.H. v. M.K.C.

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Saint John

Walsh, J.

April 7, 2010.

Summary:

Résumé:

A father applied for shared custody of his two year old son, who was conceived during a short relationship between the parties in 2007. The father also sought a declaration of paternity, an order adding the father's name to the child's birth certificate, and an incidental order that the father's surname be added to the child's surname. The mother did not oppose a declaration of paternity and consented to the father's name being registered on the child's birth registration. However, she opposed having the father's name added to the child's surname. The mother sought continuing child support.

The New Brunswick Court of Queen's Bench, Family Division, made a declaration of paternity and ordered that the father's name be recorded on the child's birth registration certificate and that the child's surname be amended to include the father's surname, by way of a hyphenated style with the father's surname first followed by the mother's surname. The court granted the mother sole custody of the child with access to the father. The father was ordered to pay child support of $701 per month and retroactive child support of $618. The mother was awarded costs of $7,500 inclusive of HST and disbursements, and the father was to indemnify the mother for the expense of her share of the cost of a Parenting Capacity Report.

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 1881

Custody and access - Considerations in awarding custody - Welfare or best interests of child paramount - A father applied for shared custody of his two year old son, who was conceived during a short relationship between the parties - The father had shared custody of three children from a prior marriage - The New Brunswick Court of Queen's Bench, Family Division, awarded sole custody of the child to the mother with access to the father - The father had the care of three other children - The mother only had the one child and had the capacity to devote her child rearing time to only him - The child's attachment with the father and with his step siblings could be fostered without custodial sharing through age appropriate access - The mother was the "psychological parent" and the child's needs were best met by her - It was not appropriate to grant joint custody given the high conflict between the parents - See paragraphs 31 to 98.

Family Law - Topic 1895

Custody and access - Considerations in awarding custody - Changing child's residence - A father applied for shared custody of his two year old son - Both parents lived in Saint John - The mother was considering moving to an area in French Village, on the northeastern edge of Saint John - The reasons she gave were related to costs, the presence of friends in the area, familiarity with the area and the proximity to east Saint John where she grew up - The father argued that the court should prevent the mother from moving to French Village as a condition or term of any custody order - The New Brunswick Court of Queen's Bench, Family Division, found no improper motive for the proposed move and that the reasons for the move were logical - The court also considered the proposed move in the context of the child's best interests, including consideration of the factors outlined in Gordon v. Goertz - The move would have little impact on the child's best interests - The child was only two - He was not being taken a distance that removed him from family, school, friends or a community he had come to know - At most it would be a little more inconvenient for the father - See paragraphs 50 to 61.

Family Law - Topic 1900

Custody and access - Considerations in awarding custody - Maximum contact with each parent - Counsel for the father relied on the "maximum contact principle" in support of a shared custody award with respect to the parties' child - The New Brunswick Court of Queen's Bench, Family Division, stated that "a judge is to provide as much contact as is consistent with the best interest of the child. The principle is not that maximum contact is always in the best interest of the child. Such an interpretation would represent a cloaked presumption of shared custody and would ignore the plethora of factors that must be considered within the definition of 'best interests of the child' under the Family Services Act. It can only be a factor, not the factor" - See paragraphs 45 to 49.

Family Law - Topic 2073

Custody and access - Joint custody - Considerations - [See Family Law - Topic 1881 ].

Family Law - Topic 2073

Custody and access - Joint custody - Considerations - A Parenting Capacity Report stated that "By the nature of being involved in a court-ordered assessment process, these parents are in high level of conflict and therefore joint custody is not recommended" - The New Brunswick Court of Queen's Bench, Family Division, stated that "I cannot accept those opinions. Taken to its logical extension, every case before a court would be 'high conflict'. This simply can't be. The fact of litigation does not necessarily mean that once a decision is made for parties by a court that the parties cannot thereafter collaborate in the 'best interests of the child'. Many parties do. I can understand, depending on the form and intensity, that a particular litigation per se may reflect 'high conflict'. But, generally, parents are entitled to disagree and have a court decide for them without the litigation being put on the scales. In this case I did not put the fact of litigation on the scale" - See paragraphs 96 to 98.

Family Law - Topic 2084

Custody and access - Shared parenting - Parallel parenting - The New Brunswick Court of Queen's Bench, Family Division, granted sole custody of the parties' two year old child to the mother with access to the father - The court held that joint custody was not appropriate given the high conflict between the parents - The father had argued that a shared custody arrangement, in the sense of "parallel custody", was appropriate even in high conflict situations - The court stated that "Whatever may be the merits of a 'parallel parenting' scheme, as a form of 'joint' custody or 'shared' custody arrangement in a particular case, this case is not one. First, 'shared/parallel' custody is still shared custody. The reasons heavily relied upon for giving the day to day care of the child to the respondent were the mother's greater capacity to parent [the child] and reliance on the concept of 'psychological parent'. A 'parallel/shared custody' regime would undermine that rationale. Second, as for a 'joint/parallel custody' regime, the parties themselves have recognized that their respective notions of 'normative behavior' are markedly different" - To put in effect a parallel parenting scheme, which would require division of decision making and some consistency in parenting approaches, would have disastrous consequences to the best interests of the child - See paragraphs 99 to 107.

Family Law - Topic 2143

Custody and access - Evidence - Expert evidence - [See both Family Law - Topic 2147 ].

Family Law - Topic 2147

Custody and access - Evidence - Report of family investigator, counsellor, etc. (incl. home study) - A Parenting Capacity Report recommended that the mother be granted sole custody of the parties' child - The New Brunswick Court of Queen's Bench, Family Division, stated that it could put no weight on the assessors' opinion on the "ultimate issue" - The court considered, inter alia, the use of the term "artistry" by one of the assessors in her testimony to explain the preparation of a custody evaluation - The court stated that "For a witness under the auspices of expert opinion to use the word 'artistry' raises red flags. If what she intended to convey, but poorly expressed, was that she relies on her experience in assigning and weighing all the factors in arriving at her global assessment, i.e., her ultimate opinion, that is one thing ... But, if what she was actually saying was that the results of her methods leading to her ultimate opinion are not reproducible, because the assessments are too subjective, too assessor prone, without objective measure, that is another matter all together. If the latter is the case, it could then be seriously questioned whether the opinion meets the criteria for the admission of expert evidence at all ... I am unable to discern which meaning was intended. Regardless, I exercise extreme caution in my approach to the 'Parenting Capacity Report' over all"- See paragraphs 13 to 17.

Family Law - Topic 2147

Custody and access - Evidence - Report of family investigator, counsellor, etc. (incl. home study) - A Parenting Capacity Report recommended that the mother be granted sole custody of the parties' two year old child - That "ultimate issue" opinion was founded upon the following: "[The mother's] parenting style best matches 'best interest of the child' as based on observation and the results of psychological testing" - The New Brunswick Court of Queen's Bench, Family Division, stated that it could put no weight on the assessors' opinion on the ultimate issue - The circumstances under which the parent-child observations were made of the father and child were unfair - The mother's observation period was with her and the child alone, while the father had his three other children present - The observation period was one occasion for approximately one and a half hours for the father and approximately one and three quarter hours for the mother - The court stated that "In all the circumstances I can put no weight on an opinion that favours one parent over the other partly based on parenting style derived from such limited observation" - The court also placed no weight on one of the two principal psychological tests administered as it was designed for use with parents of three to five year old children - See paragraphs 18 to 30.

Family Law - Topic 2189

Custody and access - Practice - Costs - A father applied for shared custody of his two year old son and other incidental relief - The New Brunswick Court of Queen's Bench, Family Division, awarded the mother sole custody of the child with access to the father - The court noted that in New Brunswick it appeared that the normal rule that costs followed the event did not have the same weight in custody/access cases as in other types of civil cases - However, the court held that a party and party costs award should follow the result here - Although there had been mixed results on some issues, on the major issue of custody the mother's position had been vindicated - The father had also contributed to the length of the proceedings - The court awarded the mother costs of $7,500 inclusive of HST and disbursements - The father was also to indemnify the mother for her share of the cost of a Parenting Capacity Report - See paragraphs 146 to 154.

Names - Topic 306

Change of name - Child of unmarried parents - The parties' two year old son was conceived during their short relationship in 2007 - The father sought an order adding his surname to the child's name so that the child's surname would become the hyphenated last names of the parties - The New Brunswick Court of Queen's Bench, Family Division, made a declaration of the father's paternity and directed pursuant to s. 9(4) of the Vital Statistics Act that the child's surname be registered in the hyphenated style with the father's surname first, followed by the mother's surname - The father would be playing a meaningful role in the child's life and he had articulated a pragmatic reason for wanting his surname added - He had three other children and wanted the child connected to them - The change of surname was in the child's best interest - See paragraphs 114 to 124.

Droit de la famille - Cote 1881

Garde et accès - Facteurs considérés lors de l'attribution de la garde - Primauté du bien-être ou du meilleur intérêt de l'enfant - [Voir Family Law - Topic 1881 ].

Droit de la famille - Cote 1895

Garde et accès - Facteurs considérés lors de l'attribution de la garde - Changement de la résidence de l'enfant - [Voir Family Law - Topic 1895 ].

Droit de la famille - Cote 1900

Garde et accès - Facteurs considérés lors de l'attribution de la garde - Maximum de communication avec chaque parent - [Voir Family Law - Topic 1900 ].

Droit de la famille - Cote 2073

Garde et accès - Garde conjointe - Facteurs considérés - [Voir Family Law - Topic 2073 ].

Droit de la famille - Cote 2084

Garde et accès - Partage des responsabilités parentales - Garde parallèle - [Voir Family Law - Topic 2084 ].

Droit de la famille - Cote 2143

Garde et accès - Preuve - Preuve d'expert - [Voir Family Law - Topic 2143 ].

Droit de la famille - Cote 2147

Garde et accès - Preuve - Rapport d'un enquêteur familial, conseiller familial, etc. (y compris étude de foyer) - [Voir Family Law - Topic 2147 ].

Droit de la famille - Cote 2189

Garde et accès - Procédure - Dépens - [Voir Family Law - Topic 2189 ].

Noms - Cote 306

Changement de nom - Enfant de parents non mariés - [Voir Names - Topic 306 ].

Cases Noticed:

P.R.H. v. M.E.L., [2009] N.B.R.(2d) Uned. 18; 2009 NBCA 18, refd to. [para. 10].

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. 10].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 16].

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 42].

A.L. v. M.M. (2009), 351 N.B.R.(2d) 86; 904 A.P.R. 86; 2009 NBQB 316 (Fam. Div.), refd to. [para. 42].

S.C. v. M.A., [2009] N.B.R.(2d) Uned. 110; 2009 NBQB 290 (Fam. Div.), refd to. [para. 42].

A.M.K.H. v. K.A.M. (2003), 259 N.B.R.(2d) 291; 681 A.P.R. 291; 2003 NBCA 33, refd to. [para. 46].

Falvai v. Falvai (2008), 263 B.C.A.C. 74; 443 W.A.C. 74; 2008 BCCA 503, refd to. [para. 56].

C.J.G. v. L.T.-G., [2008] N.B.R.(2d) Uned. 45; 2008 NBQB 30 (Fam. Div.), refd to. [para. 58].

J.S. v. J.M. (2009), 345 N.B.R.(2d) 303; 889 A.P.R. 303; 2009 NBQB 169 (Fam. Div.), refd to. [para. 61].

T.E.T. v. J.D.L., [2003] Sask.R. Uned. 270; 2003 SKQB 517 (Fam. Div.), affd. [2004] Sask.R. Uned. 107; 2004 SKCA 75, refd to. [para. 65].

Lamont-Daneault v. Daneault (2003), 177 Man.R.(2d) 235; 304 W.A.C. 235; 2003 MBCA 111, refd to. [para. 66].

Giri v. Wentges, [2009] O.A.C. Uned. 411; 2009 ONCA 606, refd to. [para. 67].

Roy v. Roy, [2006] O.A.C. Uned. 215; 27 R.F.L.(6th) 44 (C.A.), refd to. [para. 67].

P.B. v. C.B. (2010), 357 N.B.R.(2d) 381; 923 A.P.R. 381; 2010 NBQB 77, refd to. [para. 67].

R.W. v. H.W. (1995), 158 N.B.R.(2d) 321; 406 A.P.R. 321 (Fam. Div.), refd to. [para. 67].

Simmchen v. Potter (1991), 119 N.B.R.(2d) 325; 300 A.P.R. 325 (Fam. Div.), refd to. [para. 67].

C.C. v. A.W., [2007] A.R. Uned. 667; 2007 ABQB 732, refd to. [para. 99].

Lane v. Hustins-Lane (2005), 253 Nfld. & P.E.I.R. 45; 759 A.P.R. 45; 2005 NLUFC 42, refd to. [para. 107].

Colwell v. Colwell (1992), 128 A.R. 4; 38 R.F.L.(3d) 345 (Q.B.), refd to. [para. 107].

D.W.T. v. British Columbia (Attorney General) et al. (2003), 304 N.R. 201; 183 B.C.A.C. 1; 301 W.A.C. 1; 2003 SCC 34, consd. [para. 117].

Gallant v. Lewis, [2008] O.T.C. Uned. F13; 57 R.F.L.(6th) 345 (Sup. Ct. Fam. Ct.), refd to. [para. 122].

H.F.G. v. C.G. (2003), 264 N.B.R.(2d) 277; 691 A.P.R. 277; 2003 NBCA 72, refd to. [para. 126].

Ewing v. Mallette (2009), 448 A.R. 360; 447 W.A.C. 360; 2009 ABCA 128, refd to. [para. 128].

Contino v. Leonelli-Contino (2005), 341 N.R. 1; 204 O.A.C. 311; 2005 SCC 63, refd to. [para. 130].

Young v. Young (2000), 225 N.B.R.(2d) 272; 578 A.P.R. 272 (C.A.), refd to. [para. 135].

Yeates v. Yeates, [2008] O.A.C. Uned. 372; 2008 ONCA 519, refd to. [para. 137].

S.J.C. v. S.-J.C.A. (2010), 283 B.C.A.C. 62; 480 W.A.C. 62; 2010 BCCA 31, refd to. [para. 146].

J.M.M. v. K.A.M. (2005), 251 Nfld. & P.E.I.R. 349; 752 A.P.R. 349; 2005 NLCA 64, refd to. [para. 146].

S.D.W. v. C.W.W. et al., [2006] B.C.T.C. 162; 2006 BCSC 162, refd to. [para. 146].

Rademaker v. Rademaker (2002), 251 N.B.R.(2d) 177; 654 A.P.R. 177; 2002 NBCA 47, refd to. [para. 146].

Goodrick v. Goodrick (2009), 276 N.S.R.(2d) 317; 880 A.P.R. 317; 2009 NSSC 119, refd to. [para. 146].

Authors and Works Noticed:

Larlee, Margaret, and Colwell, Clark, Child Custody and Access in Mobility Cases: Getting It Right the First Time (2010), 26:1 Sol. J. 1, p. 10 [para. 151].

MacDonald, James C., and Wilton, Ann C., The 2010 Annotated Divorce Act, pp. 382 [para. 136]; 646, 647 [para. 100].

Payne, Julien D., and Payne, Marilyn A., Canadian Family Law (3rd Ed. 2008), c. 10, pp. 479 to 482 [para. 100].

Counsel:

Avocats:

Mary Ann Holland, for the petitioner;

Brenda Noble, Q.C., for the respondent.

This application was heard on December 7 to 9, 2009, January 4, 6, 7, 12 and February 17, 18, 22, 25, 2010, before Walsh, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Saint John, who delivered the following judgment on April 7, 2010.