COURT OF APPEAL FOR BRITISH COLUMBIADate: 20100204
Docket: CA037278
Between:S.S.L.
Appellant
(Plaintiff)
AndJ.W.W.
Respondent
(Defendant)
On appeal from: Supreme Court of British Columbia, 19 June 2009
(S.S.L. v. J.W.W., 2009 BCSC 924, Victoria Docket 08-5378)
Citation: S.S.L. v. J.W.W.,
2010 BCCA 55
Before: The Honourable Madam Justice Newbury
The Honourable Madam Justice Huddart
The Honourable Mr. Justice Tysoe
Counsel for the Appellant: J. J. Arvay, Q.C.
A. Latimer
Counsel for the Respondent: D. F. Tracy
Place and Date of Hearing: Victoria, British Columbia
January 5, 2010
Place and Date of Judgment: Vancouver, British Columbia
February 4, 2010Written Reasons by:
The Honourable Madam Justice HuddartConcurred in by:
The Honourable Madam Justice Newbury
The Honourable Mr. Justice Tysoe
2010 BCCA 55 S.S.L. v. J.W.W. Page 1 of 10
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[1] This appeal requires this Court to clarify the approach to be taken by a trial judge on an
original application for custody and guardianship under s. 16(1) of the Divorce Act, R.S.C. 1985, c. 3
(2nd Supp.) and s. 30(1) of the Family Relations Act, R.S.B.C. 1996, c. 128 where one parent seeks
to vary existing consensual shared parenting of school-age children to permit a move for personal or
employment reasons. In particular, it requires this Court to consider the appropriate weight to give to
parents’ testimony about their intentions if their preferred parenting arrangement is rejected.
[2] In this case, the parents shared guardianship and custody of their son and daughter under a
written agreement. Because of the result that I have reached, and in order to preserve the privacy of
the parties and their children, the discussion of the facts is limited to that necessary for the reader to
follow my reasoning.
[3] For approximately five years, the children had spent about 60% of their time with their mother
and 40% with their father. Both had homes in the same community near Victoria. When the mother
became engaged to marry, she applied for an order establishing the children’s residence in London,
Ontario, so she might live with her fiancé and his two daughters, whose custody he shares with their
mother. His children and business responsibilities preclude his moving to Victoria. The move would
also ensure the mother’s continued successful career, which is centred in Ontario, less travel to earn
her living and thus more time for her with the children, and increased contact for her and the children
with her family and for the children with their father’s extended family. The mother believed she could
provide a happy family life and better schooling for the children in London, given the resources she
would enjoy with her fiancé.
[4] The mother’s plan was to marry in the summer of 2010 and, thereafter, provide the children’s
primary home with her fiancé and his two daughters in Ontario. Nevertheless, when asked by her
counsel what she would do if the court favoured one of the father’s proposed plans, she replied that
she would reconsider her plans “to marry next summer”; that her children’s lifestyle would be “in for a
reality check” unless both she and their father started “making a lot more money”; and that she felt
“strong” and “would keep going.” On cross-examination, she confirmed she would not leave her
children. Her fiancé testified he would not ask her to do that. Both agreed they would try to sustain
their loving and committed relationship long distance.
[5] On the other hand, the respondent father was “adamant” he would not move to London,
although he acknowledged a job offer with a sports organization that was aligned with his interest in
Ironman competition would pay him well and permit him to reside in south western Ontario. Without
paid employment for about seven months, he intended to look for new work that would permit him to
continue to live in Victoria, where he believed it would be in the best interests of the children to
continue to live and go to school, whether or not their mother moved. He also wanted to remain
relatively close to his five-year old daughter of another relationship, who lives with her mother in
Calgary. He offered the Court two proposals for care of the children, then 12 and 9: equally shared
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parenting in Victoria or primary residence with him.
[6] Because the father’s application for a s. 15 report was refused, there was no evidence before
the trial judge as to either child’s thoughts about the current or proposed care arrangements, nor any
independent assessment of the nature and quality of their emotional and psychological dependence
on their parents.
[7] The parents agreed they should continue to share joint guardianship and joint custody of the
children. Each spoke highly of the other’s parenting abilities and relationship with the children. Each
was deeply persuaded of the importance of supporting the close relationship the children have with
the other and the primacy of their parental role over that of any step-parent. Their fundamental
disagreement was about where the children should have their primary residence – Victoria or London.
[8] After a review of the factors set down in Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 49, the
trial judge made these orders to “maintain the status quo”:
The Defendant’s counterclaim is allowed and the Plaintiff and Defendant shall have joint
custody and joint guardianship of the said children of the marriage [names and birthdates
omitted], with the said children continuing to spend approximately 60% of the time with the
Plaintiff and approximately 40% of the time with the Defendant.
[The trial judge] shall remain seized for the purposes of any applications with respect to
clarification or directions relating to joint custody and guardianship of the said children as
provided herein or in the event that the Plaintiff decides to move to London without the children,
but shall not be seized of any applications to vary this Order.
[9] Thus, the trial judge acknowledged the reality that he could not prevent the mother from
changing her residence to London. Effectively, as counsel for the father suggests, the trial judge was
determining that the best interests of these children at the time of the trial required them to live in
Victoria, whether their mother moved or not.
[10] The probability that the mother would stay in Victoria undoubtedly was fundamental to that
decision. The trial judge did not explicitly consider the effect on the children of a disruption in their
relationship with their mother, move or no move, given her emotional attachment to her fiancé and the
requirements of the career that had long provided her with a substantial income. Nor did he explore
the reasons behind the father’s “adamant” refusal to return to Ontario where he and the mother had
grown up, gone to school, and met, and where he could not only apply his determination to obtain a
job, but where his children could enjoy closer relationships with his extended family and their
maternal grandfather and his wife. There was no discussion of the support system available to the
father and children if he were to obtain employment in Victoria and the mother were to move to or
spend increasing amounts of time in Ontario for work or to maintain her relationship with her fiancé.
[11] The trial judge explained his reasoning at paras. 77 to 79 of his reasons for judgment: 2009
BCSC 924.
[77] The move to Ontario proposed by [the mother] offers the children continued contact with
their mother there, all of the material benefits that may flow from [her] new relationship with [her
fiancé], and the opportunity to attend a private school which may provide the children with
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educational opportunities superior to those available at [the daughter’s] Elementary and [the
son’s] Middle School. What the children will lose if they move to Ontario is constant contact with
a dedicated father who until now has had joint custody with [the mother] and with whom they
have spent about 40 percent of their time.
[78] In my view, the disruption of that relationship for these children, at ages 12 and 9,
together with the disruption of their strong social connections to their friends and their
community, outweigh the potential advantages to them of the proposed move. At this stage, it is
not in the best interests of the children for them to move with their mother to London, Ontario.
[79] In reaching that conclusion, I take into account [the father’s] present financial
circumstances and lack of paid employment. I accept his assurance that he intends to find new
employment and anticipate that with his background, promotional sales and entrepreneurial
experience, and obvious determination, he will do so.
[12] In my view, the trial judge fell into what is an easy error in difficult parental mobility cases, to
prefer what is seen as the status quo, if, in response to the other parent’s proposed parenting plans,
the parent seeking to move offers what some judges have called the “third option” of not moving, if
moving means leaving the children behind. The status quo is allowed to supersede the balancing of
other relevant factors. That is not the correct approach: see Chera v. Chera, 2008 BCCA 374 at
para. 60; Spencer v. Spencer, 2005 ABCA 262 at paras. 15-19. This error led him to make
inconsistent orders, which is the error this Court found the trial judge to have made in Nunweiler v.
Nunweiler, 2000 BCCA 300 at para. 30, and comparable to that made in Falvai v. Falvai, 2008 BCCA
503.
[13] Opting to maintain what is perceived as the status quo, without more, avoids the difficult
decision of having to prefer one parent’s plan to the other’s, without acknowledgment that the status
quo is ephemeral in any family. In this case, the mother’s income was declining; the father’s job had
terminated in December; and the emotional attachment the older child in particular had formed with
the father’s third child was disrupted when that young girl returned with her mother to Calgary to a
new relationship after her parents’ unsuccessful attempt at reconciliation in the fall of 2008. The
reality of the mother’s new relationship and employment opportunities were essentially ignored, as
was the fourth option put forward by the mother, that the father move to south western Ontario so the
children could continue to enjoy two proximate homes.
[14] The trial judge considered the fourth option only in passing during his discussion of the
mother’s access proposal were the children to move with her (at para. 66):
[66] The difficulty in exercising the proposed access and quality of the proposed access if the
move is allowed is the next factor. The [mother’s] proposal that [the father] relocate to London,
Ontario, with some assistance from herself and [her fiancé], while well intended, is impractical,
given [the father’s] firm desire to continue to make his home in Victoria and to have his children
there. [The mother] has also offered to facilitate [the father’s] access to the children if the move
is permitted, by assisting to pay for his accommodation and airfare for trips to London. In
addition, the plaintiff has offered to assist with the cost of flying the children to and from Victoria
and to pay for web camera equipment to facilitate communications between [their father] while
he is in Victoria and when the children are in London, Ontario. As I have already found, the
exigencies of earning a living would likely prevent [the father] from making regular monthly visits
to London, Ontario, as proposed by the plaintiff. Under the proposed arrangements, as I have
noted, the children would not have anything like the same access to their father as they do
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under the current joint custody arrangement.
[15] Once the trial judge accepted the father would not move and that the mother would stay if the
children were not permitted to move, there was only one possible outcome: the children would stay. If
their mother moved, the children would have their primary residence with their father in Victoria. If
their mother stayed in Victoria, they would live with her 60% of the time. As the trial judge affirmed at
para. 24 of his reasons for costs (2009 BCSC 1390), the potential for the children’s move to disrupt
their close relationship with their father was the “determinative factor” in the case. The trial judge did
not explain why he found the father’s proposed relocation any more impractical than the mother’s not
moving in the circumstances of this case as he found them.
[16] The father’s explanation of the reasons he wanted the children to stay in Victoria does not
suggest the move is “impractical.” On 2 December 2008, he wrote this email message to the mother
(edited to preclude identification of the family):
While I understand you want a speedy answer and wish to move on with your agenda, I have
taken my time to consider your proposal that you be permitted to move to Ontario with [our
children] as this is the most significant issue that we have faced since our separation.
As you know our children mean the world to me and you and I are both blessed with close
relationships with both of them. I can’t imagine moving them away from you, and although I
have thought long and hard about this, I simply cannot see the benefit to you moving them away
from me. I know in your heart you appreciate the importance of my involvement and influence in
their lives and I suspect that is why you have offered to provide me with a financial
cushion/incentive to move to Ontario as well.
Although I know this is not what you want to hear ..., I cannot agree to you moving to Ontario
with [our children]. My reasons are many and likely best addressed in mediation, but I will
provide you some explanation.
My understanding is that you have been romantically involved with [your fiancé] for only a few
months. While that may seem like a lifetime at the honeymoon stage of any relationship, it is
not, from my perspective, enough time to base a life altering decision like moving our children
from the only life they have ever known. I have to say I even wonder how many times he has
actually even been around them? Even if he were living here in Victoria, I would question you
wanting to move in together after only six months. While this may be the best option for you, I
don’t believe it is in the best for them. To move them away from their home is at best premature,
and at worst completely against their best interests.
As well, and I really do not want to offend you, but this is not the first time I have heard you say
“this is the one.” I remember you saying that you thought that [named person] was also
marriage material and of course that relationship ended after a year. Only time will tell if you and
[your fiancé] have the ability to maintain your commitment, and six months simply isn’t long
enough for me to agree to move my life as well as the Children’s to the other side of Canada.
I understand that [your fiancé] has the funds to fly here whenever he wants and that if you
moved without the Children he could fly you home frequently to see them. (This is what you
have asked me to consider with respect to [my other daughter]). If that was an option of interest,
I would fully support the Children seeing you as much as possible. Perhaps that would give you
the opportunity to test the waters with [your fiancé] rather than uprooting the kids.
Again, I am not trying to upset or offend you, and I really do not want our relationship to
deteriorate as I believe that we have always been able to put our differences and history aside
for the benefits of the kids. [Our children] have benefited from this and I really do not want to
see either of us in a court room.
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...
[17] Mediation failed. The trial followed six months later. The trial judge gave his reasons promptly.
[18] Perhaps the trial judge wanted to delay a move because, as the father’s counsel pointed out
on this appeal, his focus in cross-examination of the mother and her fiancé was on leaving the
children in Victoria while their relationship “continued and stabilized”. In both his reasons for judgment
and his reasons on costs, the trial judge was careful to say it was not in the children’s best interests to
move “at this stage” and “at the end of the 2008/2009 school year.” In his reasons on costs, at
para. 30, he observed that “it was unnecessary to address the custody and access arrangements that
would apply if [the mother] relocated to Ontario.” The combination of those comments with his
rejection of the equal sharing the father sought if the mother were to remain in Victoria, suggests he
intended to acknowledge the primacy of the mother’s care-giving role, to give some weight to the
father’s concern about the relative newness of the mother’s relationship with her fiancé, and leave the
decision about primary residence to be determined as that relationship matured. His orders can be
read that way. He would have understood that the relationship would be tested by his order and that
his order was unlikely to endure if the relationship survived. The transcript reveals a deep underlying
tension between very different parents whose demonstrated respect for the other and extraordinary
efforts to work together for their children would inevitably falter as their personal sacrifices mounted.
Sooner or later, a choice of a primary residence would have to be made. But his reasons do not
support that interpretation, nor does either parent suggest it does.
[19] The mother argued that the trial judge placed inordinate weight on the mother’s testimony that
she would not move to London without the children, and that three problems flow from attaching any
or much weight to such testimony. First, it creates an inappropriate presumption in favour of the
status quo. Second, it puts parents in a double bind and encourages them to be tactical rather than
focussing on the best interests of their children. Finally, it undermines the Charter values of equality
and autonomy, and disproportionately affects women’s mobility. By attaching so much weight to the
impugned testimony, the judge failed to consider whether it was in the best interests of the children to
live without the mother and new family in London. He compounded that error by treating as
“determinative” the fact that if the children were to move with their mother their relationship with their
father would be disrupted. This approach made maintenance of the status quo the inevitable
outcome, rather than simply a factor in evaluating how the decision to move or not move will affect
the children. There are no presumptions in mobility applications: both parties must demonstrate how
their position advances the best interests of the children by reference to all four scenarios.
[20] The father argued that it is incumbent upon the party seeking to move to bring evidence and
make argument about what would happen if he or she were to move without the children. That, he
says, the mother did not do in this case. The trial judge correctly applied the test from Gordon v.
Goertz, and did not place inordinate weight on the mother’s testimony that she would not move
without the children, nor did he create a presumption in favour of the status quo. His conclusions
were supported by findings of fact, and this Court should not interfere with them.
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[21] The point of departure in Canada for any parental mobility case must be the Supreme Court’s
decision in Gordon. In Nunweiler, this Court was clear that the approach set down in Gordon to a
custodial parent’s variation application was to be taken, insofar as applicable, to an original
application regarding children whose parenting they had been sharing.
[22] However, as the plethora of judgments that have applied Gordon demonstrate, the factors
listed at para. 49 in the judgment of McLachlin J. (as she then was) provide insufficient guidance for
two good parents, their counsel, and the trial court as they face the agonizing decision required in two
circumstances: (1) a pre-school age child who has been in the primary care of one parent (usually the
mother) where age-appropriate access is unworkable if one parent moves away (Karpodinis v.
Kantas, 2006 BCCA 272, leave to appeal refused [2006] S.C.C.A. No. 318; Hanna v. Hanna, 2002
BCCA 702), and (2) a joint parenting situation where one or both parents’ needs (economic,
educational or personal) are seen as requiring a change.
[23] This case falls within the second group, in some of which, as here, the only issue is the child’s
primary residence, because the parents agree that joint guardianship and joint custody should
continue.
[24] In my view, the court’s task in these joint parenting cases is to analyze the evidence in four
possible scenarios, in this case, (i) primary residence with mother (London, Ontario); (ii) primary
residence with father (Victoria, B.C.); (iii) shared parenting in Victoria; and (iv) shared parenting in
London, but to do so knowing the court’s first task will be to determine which parent is to have primary
residence. When the question of primary residence is evenly balanced and the court finds the best
interests of the children require both parents to be in the same locale, then the court will need to
choose between the shared parenting options offered by the parents, without presuming the current
care-giving and residential arrangement is to be the preferred one.
[25] Proximity of parental homes will usually be in the best interests of children with two good
parents. But proximity may be achieved in either proposed location. The choice of the existing
location cannot be the default position. In Woodhouse v. Woodhouse (1996), 136 D.L.R. (4th) 577
(Ont. C.A.) at para. 89, Osborne J.A. observed in dissent (at para. 89):
[89] ... Balancing the relevant factors is required in order to accommodate the broad postseparation
spectrum of parenting arrangements with which courts will be confronted. It is
essential, I think, that the process be flexible and realistic. In some cases, when the relevant
factors are balanced, it will be appropriate to deny the custodial parent the right to move with the
children. In other cases, asking the non-custodial parent to move may be more in the children’s
best interests than requiring the custodial parent to stay. Consistent with the majority judgment
in Gordon, I do not think that any one of the relevant factors should be viewed as dispositive so
as to automatically determine the outcome. [Emphasis added.]
[26] Authorities in other jurisdictions reveal similar views. In U. v. U, [2002] HCA 36 at paras. 175-
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76, Hayne J. wrote, in concurring reasons for the High Court of Australia:
[175] When one parent (for whatever reason) wishes a child who is, or is to be, resident with
that parent to move to a place distant from the other parent, it should not be assumed that that
other parent cannot, or should not, contemplate moving to be near the child. There may be (and
for all that is known, in this case there was) compelling reason for that other parent (here, the
father) not to move, but it would ordinarily be expected that these reasons would be explored in
evidence and the validity of any assumption that the other parent will not move would be
examined. Just as, in this case, the mother was asked what she would do, if she could not have
the child reside with her in India, so too it might have been expected that the father would be
asked what he would do, if the mother were to have the child reside with her in India. Such
questions should not be treated as mere forensic tests of parental devotion, to which only one
answer is seen as being satisfactory proof of being a loving parent. Rather, they are no more
than a prelude to a deeper inquiry about where the best interests of the child may lie and what
arrangements will best serve those interests.
[176] It is now recognised as self-evidently true that, apart from some cases of abusive
relationships, children benefit from the development of good relationships with both their
parents. The right to know and be cared for by both parents and the right of contact on a regular
basis with both parents are said to be principles underlying the objects of Pt VII of the Act. If
effect is to be given to those principles, it must not be assumed that one parent (the father)
cannot move and that the mother must, in every case, subordinate her ambitions and wishes,
not to the needs of the child, but to the wishes of the father to pursue his life in a place of his
choosing. It is the interests of the child which are paramount, not the interests or needs of the
parents, let alone the interests of one of them.
[Italic emphasis in original; underlining emphasis added.]
[27] See also Tropea v. Tropea, 87 N.Y.2d 727 (1996) (N.Y. C.A.); and Payne v. Payne, [2001]
EWCA Civ 166 (U.K. C.A.).
[28] This approach to the evidence of both parents avoids the problem of the “double bind”
described recently in Bourgeois v. Plante, 2009 PEICA 12 at para. 32:
... Various courts have cautioned that it is problematic to rely on representations made by the
custodial parent that he or she will not move without the children should an application to
relocate be denied. This inquiry is commonly called the “classic double bind.” If a parent
responds by stating they are not willing to remain behind with the children, this raises the
prospect of the parent looking after their own interests and not having the interests of the
children paramount. Then, on the other side of the equation, if a parent advises the court that
they are willing to forego a move if unsuccessful, this suggests that such a move is not
necessary for the well being of the parent or the children. If a trial judge mistakenly relies on a
parent's willingness to stay behind “for the sake of the children”, the status quo becomes an
attractive option for a judge to favour because it avoids the difficult decision the application
presents. See: Spencer v. Spencer, supra.
[29] In cases like this where courts are called upon to make what one judge has called an
“educated prediction” (McArthur v. Brown, 2008 BCSC 1061 at para. 161) as to the best interests of
the children, based not only on evidence of their old life, but also evidence of what parents believe will
transpire in their new life, the parents’ evidence should focus on all of the four possible scenarios.
[30] Such an approach takes into account the court’s inability to order a parent to stay or move and
the unfairness of preferring the obstinate over the more flexible. It requires the court to set down his
or her analysis of the evidence and the decision path so the parents (and ultimately the children) can
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understand not only the result but how one of the most important decisions in their lives was made.
[31] In evenly balanced shared parenting situations, careful and transparent analysis of the
evidence and reasoning is especially important, if courts are to encourage joint parenting following
separation and discourage jockeying for position by the parent in a favoured position (very often
mothers because of their historic role in a family) who wants to avoid being frozen in a current
location by the co-operative approach generally thought ideal for young children, particularly those
not yet well bonded to their father. It acknowledges that the lives of families must accommodate
change.
[32] This approach takes the focus away from the time factor that bedevils so much of family postseparation
litigation. While courts have said consistently for years that the amount of time, measured
in days, over-nights, and sometimes hours, is only one of many factors to be considered in
determining care-giver roles, this case exemplifies how it can come to dominate a trial to the
exclusion of more important child-centred evidence as to the best parenting arrangements in the
circumstances as they are and can reasonably be foreseen to be. Far more significant is the role
each parent has played in the children’s lives; which parent has taken primary responsibility for their
health, safety, education and overall welfare; which parent deals with the mundane but necessary
arrangements of their lives – clothing, haircuts, extracurricular activities, gifts for friends, doctors’ and
dentists’ appointments, contact with their extended family; and which parent has the best perception
of the emotional needs of the children. In sum, what it is that each parent contributes to the children,
as care-giver. Only when those contributions are made clear will an understanding be reached as to
what arrangements will work best for the children going forward. The analysis of the parent’s role is
fundamental to the determination of a primary care-giver, whether continued shared parenting is in
the children’s best interests, and where they should live.
[33] I note that in this assessment of each parent’s contributions to the care of their children, it is
inevitable the court will be required to assess the resources available to each, in personal and
economic terms that permit them to make those contributions, and the potential effect on those
resources in each proposed scenario. As many courts have noted, this may require an assessment of
a parent’s emotional and economic prospects because children’s interests are necessarily intertwined
with those of their parents: Burns v. Burns, 2000 NSCA 1.
[34] Finally, this approach permits the decisions of each parent to receive the respect to which his
or her parenting roles entitles them.Remedy
[35] While I agree with counsel for the mother that there were no issues of credibility at the 10-day
trial and that neither parent challenges the trial judge’s findings of fact, I do not agree this is a case
where it would be appropriate for this Court to make a decision based on the trial judge’s findings of
fact and our view of the proper approach to the determination of the children’s residence. I
acknowledge there was little evidence of the father’s plan for parenting in Victoria should the mother
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move, and that, having claimed primary residence in Victoria, it was his responsibility to put forward
evidence in support of that parenting plan. That provides no more reason to exclude consideration of
the father’s primary residence in Victoria proposal than does the failure of the mother’s trial counsel to
include in his closing submissions the mother’s shared parenting in London proposal provide reason
to exclude consideration of her proposal..
[36] My reading of the entire transcript suggests two fully involved parents both of whom have at
different times on different issues taken the lead on significant health and educational issues and both
of whom have dealt as required, at least in recent years, with the mundane details of the children’s
daily lives. But so much of the evidence was given in the context of the time factor, that no clear
picture emerges of the benefits these children receive from each parent, how each parent perceives
and meets their needs, and what care arrangements will be best as they move forward into their teenage
years with parents whose lives are changing for both economic and personal reasons.
[37] Although the trial judge allocated the children’s care 60/40 in favour of the mother while she
remains in Victoria, he made no finding she was or should be the primary care-giver. Although his
order suggests the father would be the primary care-giver were the mother to move, he made no
finding the father had ever or should fulfill that role. Indeed, he made almost no findings as to the
parents’ respective roles in their children’s lives, looking backward or forward in any of the four
scenarios. The absence of those findings makes a reasoned and fair decision by this Court
impossible. All of these issues must be addressed in a new trial.
[38] Consequently, I would direct a new trial, at which time the father may adduce the fresh and
new evidence he sought to have admitted on this appeal.
“The Honourable Madam Justice Huddart”
I AGREE:
“The Honourable Madam Justice Newbury”
I AGREE:
“The Honourable Mr. Justice Tysoe”
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