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CUSTODY AND ACCESS - Primary residence - Practice and procedure

Wednesday, March 28, 2018 @ 8:36 AM  


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Appeal by the father from refusal of summary judgment granting him primary care and control of the parties' eldest child. The parties separated in 2013. They had four children. An interim order provided for joint custody. The eldest child, presently age 17, resided with the father post-separation pursuant to a family assessment recommendation, due to a difficult relationship with the mother. The other three children resided primarily with the mother, but also spent significant time with the father. A family assessment recommended shared custody in respect of the three youngest children, as reflected in a 2015 variation order. Shortly thereafter, another variation order further adjusted child support and refused the mother's request for shared custody of the oldest child. In 2017, the father moved for summary judgment on the mother's petition for divorce and corollary relief. He sought a final order for primary care and control of the parties' oldest child with related relief in respect of support. The motion judge refused the relief sought due to a lack of agreement between the parties on key facts. The father appealed. The mother cross-appealed the motion judge's refusal to grant an order for shared custody based on an alleged agreement between the parties.

HELD: Appeal allowed in part and cross-appeal dismissed. The motion judge erred in law in dismissing the father’s motion for summary judgment by failing to apply the correct legal test. The motion judge's concern with the volume of material filed resulted in a failure to consider whether the father had established a prima facie case, or whether the mother had raised a genuine issue for trial. A fresh review of the matter favoured determination of the merits based on the evidence filed. The material was insufficiently current to determine matters related to support. It followed that a divorce was not currently available, nor could any corollary relief be granted. The evidence supported a final judgment granting the father primary care and control of the oldest child under the Family Maintenance Act. In addition, judgment was granted in respect of agreed-upon matters related to family property and disposition of the family home.

Knee v. Knee, [2018] M.J. No. 49, Manitoba Court of Appeal, J.A. Pfuetzner, H.C. Beard and J. leMaistre J.A., March 6, 2018. Digest No. TLD-March262018008