Green v. Green

Green v. Green Court Court of Appeal Date 2021-08-16 Citation 2021 NSCA 61 Docket CA 507627 Judge/Registrar/Adjudicator Bourgeois, Cindy A. (Honourable Justice) (CA) Document Type Decision Relations See also - Green v. Green - 2021 NSCA 15 - 2021-02-09 - Decision See also - Green v Green - 2022 NSSC 126 - 2022-05-05 - Decision Decision Content Nova Scotia Court of Appeal Citation: Green v. Green, 2021 NSCA 61 Date: 20210816 Docket: CA 507627 Registry: Halifax Between: Kelsey Green Appellant v. Heidi Green Respondent Judge: Bourgeois J.A. Motion Heard: July 21, 2021, in Halifax, Nova Scotia in Chambers Held: Motion for extension of time dismissed with costs Counsel: Kelsey Green, appellant in person Heidi Green, respondent in person Decision: [1] On July 21, 2021, I heard a motion in chambers brought by Kelsey Green seeking permission to extend the time for filing a Notice of Appeal. His request is opposed by Heidi Green. After hearing from both parties, including giving Mr. Green the opportunity to file supplemental written submissions, I am of the view the motion should be dismissed. Background [2] Mr. Green filed an affidavit in support of the motion. It attaches a copy of the Notice of Appeal he seeks permission to file. From the affidavit, it appears Mr. Green wants to appeal from a judgment of Justice Theresa Forgeron (the “trial judge”) dated February 16, 2021 and the resulting order of May 31, 2021. Neither the judgment nor order were included in Mr. Green’s motion materials. In considering the motion before me, I have reviewed the trial judge’s decision (2021 NSSC 43). [3] The parties have been litigants in what has been described as “high-conflict” divorce proceedings. From reviewing the judgment, it would appear a divorce hearing was held over six days in the fall of 2020. Both parties were represented by legal counsel. The contentious issue at the hearing was the parenting arrangement for the parties’ three children. A secondary consideration was child support. Mr. Green was of the view that the children ought to reside with him, and he should have sole decision-making authority in relation to their care. He advanced the position that Ms. Green was actively alienating the children from him, and this was having serious and negative consequences for the children and their relationship. Ms. Green denied the allegation of parental alienation, and asserted the children were afraid of their father because of his volatile and unpredictable behaviour. She sought primary care and sole decision-making authority. [4] The trial judge rejected Mr. Green’s claim of parental alienation. She identified three reasons for the children’s reluctance to engage with their father other than in a supervised public setting. The primary reason was the children were afraid of Mr. Green due to his concerning behaviour, which they had witnessed during the marriage. The trial judge determined the best interests of the children would be served in the primary care of their mother, with specified access to Mr. Green. Specific terms surrounding therapy for the parties and children were outlined. The trial judge then proceeded to address the issue of child support, including a retroactive claim which she awarded to Ms. Green. [5] Mr. Green attempted to file a Notice of Appeal to challenge the above decision. He missed the filing deadline by one day. Analysis [6] The legal principles governing a motion for extension of time to file a Notice of Appeal have been recently affirmed in Shupe v. Beaver Enviro Depot, 2021 NSCA 46. There, Justice Farrar succinctly explains: [14] Rule 90.37(12) gives a judge of this Court the authority to extend the time to file a Notice of Appeal: 90.37 (12) A judge of the Court of Appeal hearing a motion, in addition to any other powers, may order any of the following: … (h) that any time prescribed by this Rule 90 be extended or abridged before or after the expiration thereof. [15] In Farrell v. Casavant, 2010 NSCA 71, Beveridge, J.A., explained the test for granting an extension of time to appeal as, ultimately, a determination of whether it is in the interest of justice to grant the extension (¶17). In determining whether it is in the interest of justice, common factors to be considered are: • the length of the delay; • the reason for the delay; • the presence or absence of prejudice; • the apparent strength or merit in the proposed appeal; and • the good faith intention of the appellant to exercise his or her right of appeal within the prescribed time period. [16] The relative weight to be given to any of these factors may vary from case to case (Farrell, ¶17). [7] In considering the above factors, I note: • The length of the delay is minimal; • The reason for the delay is, in my view, of less importance here where the delay in filing was only one day; and • Mr. Green had a bona fide intention to appeal within the notice period. [8] All of the above factors weigh in favour of granting the motion to extend time to file the Notice of Appeal. However, my concern lies with the merits of the appeal and the element of prejudice. Mr. Green bears the onus of establishing there is some merit to the appeal. In my view he has failed to do so. I will explain. [9] In the proposed Notice of Appeal, Mr. Green set out a single ground of appeal. It reads: Failure of the Courts to follow Court Rule 89 – Contempt. [10] In the course of his oral submissions, Mr. Green sought permission to add an additional ground: That the Court did not consider all of the evidence. [11] Because I found neither of the proposed grounds of appeal to be clear, I asked Mr. Green during the course of the hearing to explain what he hoped to challenge before this Court. With respect to the ground relating to contempt, Mr. Green explained that in February 2020, he filed an application for contempt against Ms. Green in the Supreme Court of Nova Scotia (Family Division). He says there were numerous incidents where Ms. Green failed to abide by the conditions of the then-existing interim order, and he sought to have her held in contempt. Although a judge was assigned to the matter (not the trial judge) a hearing was never scheduled and the application is still outstanding. Mr. Green says the contempt hearing should have been dealt with expeditiously and the outcome would have been relevant to the issues the trial judge had to determine. [12] With respect, this is not a valid ground of appeal. This Court’s function is to assess the trial judge’s decision and determine if there is a demonstrable error of law or palpable and overriding error of fact. She did not make an order relating to contempt, nor was that issue before her. Our role is not to address general complaints about how other courts administer matters. [13] From a practical perspective, I also have difficulty with Mr. Green’s assertion that the lack of a contempt hearing negatively impacted upon the case he could advance at the trial. He was represented by counsel. If he had concerns about Ms. Green not abiding by the terms of an existing order, nothing prevented him from advancing this evidence at the trial if he felt it was relevant to the issues being determined. Other than a broad assertion, Mr. Green did not identify how he was disadvantaged from presenting evidence to the trial judge for her consideration. [14] I now turn to Mr. Green’s second proposed ground of appeal. In response to my inquiries, Mr. Green explained his assertion that “the Court did not consider all of the evidence” relates partly to the lack of a contempt hearing. I have already concluded there is no valid concern to be addressed on appeal in that regard. Mr. Green also explained this ground was meant to encompass his view that there was evidence before the trial judge that she should have considered, but did not. [15] Mr. Green did not particularize further. However, from her reasons, it is likely his concern relates to the trial judge’s conclusion regarding the allegation of alienation and her treatment of the evidence Mr. Green presented in relation thereto. It is helpful to set out the trial judge’s reasons for rejecting Mr. Green’s allegation of alienation: [84] I categorically dismiss the father’s alienation claim because it lacks both a legal and evidentiary foundation. I have no expert evidence that the mother alienated the children. All I have is the lay inadmissible belief of the father. [85] Expert evidence must be introduced according to the procedure established in Rule 55. The father did not adhere to this process. Instead, the father put forth his lay opinion based on social science literature and expert opinion that was accepted by other courts in other cases. Neither of these attempts meet with success for the following three reasons: • The father is not an expert in alienation theory. He is not a psychiatrist. He is not a psychologist. He is not a social worker. He is a lay person with no special training or experience. He does not become an expert because he reads literature on alienation theory. • The father is not an independent witness. The father is neither objective nor unbiased. He is a parent who is estranged from his children and is embroiled in a high conflict parenting dynamic. He is a litigant with a firm and entrenched position. • The Nova Scotia Court of Appeal confirmed that judges should not rely on extrinsic social science literature because such literature was not capable of judicial notice; could not substitute for expert opinion; or was not meaningfully considered by all parties: Nova Scotia (Minister of Community Services) v BF, 2003 NSCA 119; Children’s Aid Society of Cape Breton-Victoria v GL, 2003 NSCA 112; Children’s Aid Society and Family Services of Colchester County v EZ, 2007 NSCA 99; Gallant v Gallant, 2009 NSCA 56; and Nova Scotia (Minister of Community Services) v CKZ, 2016 NSCA 61. [86] Conversely, if I ought to have considered social science literature or the expert opinion accepted in other cases, my conclusion would not change. The father simply did not prove the following from the so-called four factor model that he espouses: • A prior positive relationship with the children: Although they love their father, the children were afraid of him. The relationship between the father and children was tainted well before separation. • A lack of serious deficiencies in the father’s parenting: To the contrary, the evidence confirms significant deficits in the father’s parenting as reviewed throughout much of this decision. • The mother engaged in all the types of alienating behaviours: Although the mother did draw the children into the parenting conflict, she did not alienate them. • Exhibition of eight behavioural manifestations of alienation: They were not exhibited. For example, all three children said they want to have a relationship with the father provided he is not angry. All three said they enjoy spending time with the father, especially when participating in outdoor activities, provided the father is not angry. The children do not reject the father’s family. In fact, they enjoy an excellent relationship with the paternal grandfather, paternal step grandmother, and paternal cousins. The children, especially T and A, remain hopeful that they will enjoy a positive relationship with the father in the future. [87] The father must let go of his alienation claims. Perseverating on the alienation theory prevents him from gaining insight, from appreciating the children’s perspective, or from making the necessary changes required to improve his relationship with the children. It is time for the father to move on. [16] Mr. Green has not articulated a clear error. The trial judge’s thorough analysis and strong factual conclusions do not disclose one. Mr. Green has not demonstrated the proposed appeal has merit. [17] With respect to the third factor outlined in Shupe, the delay of one day does not give rise to prejudice. However, compelling Ms. Green to respond to an appeal with no demonstrable merit certainly would. Conclusion [18] I am satisfied it is not in the interest of justice to grant the extension of time. Mr. Green’s motion is dismissed, and he shall pay costs to Ms. Green in the amount of $250.00. Bourgeois J.A.