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CUSTODY AND ACCESS - Conduct of parents - Primary caregiver

Monday, July 15, 2019 @ 9:42 AM  


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Appeal by the mother from a 2018 final trial order and a subsequent review order. The parties separated in 2009. Their children were then four and six. The children remained in the primary care of the mother after separation. In 2012, the father moved to another city with his new spouse. Disputes arose respecting the father’s access. The children began refusing to visit with their father in his home since August 2016, and by the summer of 2017, the daughter was having only short visits with her father and not in his home. The final trial order provided that the mother was to retain primary care and control of both children, but that the father would have expanded access to the daughter. The trial judge ordered that the issue of custody would be reviewable in three months if the daughter did not attend the father’s periods of access. While the daughter initially participated in the access as ordered, eventually, she refused to attend to or sleep at the father’s home. On review, the trial judge had evidence to infer that the mother’s actions, whether intentional or unintentional, had the impact of making her children disinclined to visit with their father. The trial judge then ordered a reversal of primary care and control of the daughter from the mother to the father, resulting in the relocation of the daughter, on an interim basis. He also ordered that there be a period of 30 days of no contact between the mother and daughter, followed by reasonable care and control as agreed upon with the father. He made the reversal order reviewable without proof of a material change in circumstances and ordered that the final determination of the review order be adjourned to the fall.

HELD: Appeal allowed. The final trial order was varied by deleting the provision that allowed it to be reviewed without a material change in circumstances. The court confirmed joint custody of the children with primary care and control to the mother and with access to the father one evening per week in the city where the mother resided and upon times as agreed upon jointly by the daughter and her father. While the trial judge did not err in making his final order reviewable, he erred in changing the status quo five months later and substituting another reviewable order. The trial judge erred in law when making the review order for failing to consider the best interests of the child and focusing primarily on the remediation of the relationship between the father and the daughter. The final order, with its provision for a review after three months if visitation by the daughter with her father was not taking place, was appropriate in the circumstances of this family and was within the discretion of the trial judge. The review order, however, was vague and raised much trepidation in the daughter. The trial judge varied a long-standing status quo arrangement of primary care and control to the mother on an interim basis of indeterminate length, when that interim variation involved not only a change in homes without the companionship of her older brother, but a change in cities with all that involved for a young-teenage girl who had already undergone years of conflict between her parents. Such a remedy did not consider all the relevant factors and had a significantly detrimental impact on the daughter.

J.D.B. v. D.K.M., [2019] M.J. No. 155, Manitoba Court of Appeal, F.M. Steel, D.M. Cameron and C.J. Mainella JJ.A., June 7, 2019. Digest No. TLD-July152019001