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CUSTODY AND ACCESS - Removal of child from jurisdiction - Practice and procedure - Courts - Jurisdiction

Wednesday, April 04, 2018 @ 5:23 AM  

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Appeal by the father from a decision setting aside a prohibition order prohibiting the mother from relocating the child. The child, who had special needs, was born in 2007. The parties had joint custody and joint guardianship with primary care and residence to the mother. Both parties resided in the Vancouver area and custodial time with the child was shared between them. In 2014, the mother proposed to relocate with the child to the Okanagan to live with her new partner. The father opposed the move and sought a prohibition order. The trial judge found that the mother had not adduced sufficient evidence to establish that the proposed relocation would enhance the quality of the child’s life or was in the best interests of the child. After the prohibition order was granted, the mother relocated to the Okanagan without the child and the father became the child’s primary caregiver. The mother appealed the prohibition order. The appeal judge held that the trial judge erred in law in failing to consider the child’s views and ordered a views of the child report. The judge did not conduct an analysis of the Palmer factors to determine the report’s admissibility but simply relied on the consent of the parties. He found the report inconclusive and proceeded to create a new evidentiary record based on post-trial events. He then made an interim order that the child be relocated to his mother’s residence in the Okanagan until further order of the Court. A supplementary views of the child report was completed and the matter was reviewed eight months later. The judge then found that the mother’s evidence in favour of the proposed relocation was vindicated by the post-trial developments and made a final order allowing the appeal and setting aside the prohibition order.

HELD: Appeal allowed. The prohibition order was reinstated. The appeal judge created a new evidentiary record based on post-trial events upon which he made new findings of fact to support his changing of the prohibition order under appeal. Had the judge applied the Palmer test, the views of the child report would not have been admissible as it was apparent that on its own, as found by the judge, it could not have reasonably changed the result at trial. The trial judge did not base his prohibition order on any incorrect assumptions about the child’s proposed relocation, but rather on the lack of evidence from the mother that would permit him to draw reasonable inferences on how the child would fare in the new community in light of his special needs. The appeal judge erred in law by creating a new evidentiary record upon which he made his own findings of fact to support making a different decision from that of the trial judge, after having accepted that the inferences drawn by the trial judge were open to him to make and in the absence of any material error. In doing so he effectively converted what should have been an appeal on the record into a continuation of the trial through the admission of new evidence. Such an approach exceeded the scope of the appellate review jurisdiction. The judge also erred in granting the interim order. Sections 233 and 234 of the Family Law Act did not authorize the Supreme Court to make an interim order subject to review, which effectively changed the order under appeal before the appeal was determined.

Kane v. Proffitt, [2018] B.C.J. No. 474, British Columbia Court of Appeal, D.M. Smith, P.M. Willcock and R. Goepel JJ.A., March 16, 2018. Digest No. TLD-April22018005