Weatherby v. Muise, 2015 NSCA 42

• Judge: Fichaud, Bryson and Bourgeois, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 15, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSCA 42;(2015), 359 N.S.R.(2d) 107 (CA)

Weatherby v. Muise (2015), 359 N.S.R.(2d) 107 (CA);

    1133 A.P.R. 107

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. MY.002

Stacey Marie Weatherby (appellant) v. Gilles Arthur Thomas Muise (respondent)

(CA 431382; 2015 NSCA 42)

Indexed As: Weatherby v. Muise

Nova Scotia Court of Appeal

Fichaud, Bryson and Bourgeois, JJ.A.

May 5, 2015.

Summary:

Married parents of two young children (born in 2009 and 2011) separated in 2013. Post separation, the parties shared parenting with the father having the children approximately four days out of every nine. The mother sought an order for joint custody and primary care of the children with permission for her to relocate with the children from Yarmouth to Fall River (approximately three hours away by car). The trial judge granted joint custody but declined the mother's mobility request. The parties' informal parenting schedule was to continue. The mother appealed from the mobility decision.

The Nova Scotia Court of Appeal dismissed the appeal.

Evidence - Topic 200

Inferences and weight of evidence - Inferences - Whether reasonable inference or speculation - [See second Family Law - Topic 1948 ].

Family Law - Topic 1895

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

Family Law - Topic 1916

Custody and access - Appeals - Standard of review - [See first Family Law - Topic 1948 ].

Family Law - Topic 1948

Custody and access - Variation of custody and access rights - Change of residence of child - Married parents of two young children (born in 2009 and 2011) separated in 2013 - Post separation, the parties shared parenting with the father having the children approximately four days out of every nine - The mother sought an order for joint custody and primary care of the children with permission for her to relocate with the children from Yarmouth to Fall River (approximately three hours away by car) - The trial judge granted joint custody but declined the mother's mobility request - The Nova Scotia Court of Appeal dismissed the mother's appeal - The court rejected the mother's argument that the trial judge had erred in failing to refer specifically to s. 18(6) of the Maintenance and Custody Act - Although the trial judge did not cite s. 18(6) nor use the precise wording in the Act, she had fully considered the "relevant circumstances" as outlined in the Act - Assessing a child's best interests was not a rigid exercise that obligated a judge to undertake a magical incantation of strictly worded considerations - While the trial judge may have failed to weigh the factors as the mother would have liked, it was not the court's function to critique the weight assigned to the factors - See paragraphs 16 to 22.

Family Law - Topic 1948

Custody and access - Variation of custody and access rights - Change of residence of child - Married parents of two young children (born in 2009 and 2011) separated in 2013 - Post separation, the parties shared parenting with the father having the children approximately four days out of every nine - The mother sought an order for joint custody and primary care of the children with permission for her to relocate with the children from Yarmouth to Fall River (approximately three hours away by car) - The trial judge granted joint custody but declined the mother's mobility request - The Nova Scotia Court of Appeal dismissed the mother's appeal - The court rejected the mother's argument that the trial judge had erred in engaging in speculation and making findings of fact in the absence of evidence when she concluded (1) that the mother's plan to undertake a Master's program would impact on her time with the children; (2) that the children would not enjoy a three hour car ride and (3) that there was a potential for an increased cost of living in Fall River - A court considering a parenting plan had to engage in a degree of speculation - There were always unknowns - Speculation became problematic when there was no evidentiary basis for it - Here, there was an ample evidentiary basis on which the judge could reach her conclusions, either directly or by inference - See paragraphs 23 to 25.

Family Law - Topic 2139

Custody and access - Evidence - General - [See second Family Law - Topic 1948 ].

Cases Noticed:

Doncaster v. Field (2014), 344 N.S.R.(2d) 63; 1089 A.P.R. 63; 2014 NSCA 39, refd to. [para. 14].

Children's Aid Society of Cape Breton-Victoria v. A.M. (2005), 232 N.S.R.(2d) 121; 737 A.P.R. 121; 2005 NSCA 58, refd to. [para. 15].

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. 17].

Foley v. Foley (1993), 124 N.S.R.(2d) 198; 345 A.P.R. 198 (S.C.), refd to. [para. 17].

Burgoyne v. Kenny (2009), 276 N.S.R.(2d) 229; 880 A.P.R. 229; 2009 NSCA 34, refd to. [para. 21].

Counsel:

Celia J. Melanson, for the appellant;

Alexander L. Pink, for the respondent.

This appeal was heard at Halifax, N.S., on April 15, 2015, by Fichaud, Bryson and Bourgeois, JJ.A., of the Nova Scotia Court of Appeal. On May 5, 2015, Bourgeois, J.A., delivered the following reasons for judgment for the court.