Butler v. Snelgrove

Date: 20151104 Docket: 14/83 & 14/89 Citation: Butler v. Snelgrove, 2015 NLCA 53 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: CLAIRE LOUISE BUTLER APPELLANT/APPLICANT AND: NORMAN GRAHAM SNELGROVE RESPONDENT Coram: Green C.J.N.L., Welsh and White JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division 200702U0996 (2014 NLTD (F) 11 and 2013 NLTD (F) 24 Application Heard: October 29, 2015 Decision Rendered: November 4, 2015 Reasons for Decision by the Court Counsel for the Appellant/Applicant: Self Represented (by teleconference) Counsel for the Respondent: Self Represented Counsel for Support Enforcement Agency: Derrick Oldford Page: 2 By the Court: [1] Ms. Butler has filed notices of appeal against decisions of Dunn and McGrath JJ. dealing with spousal and child support, division of matrimonial property, and custody of and access to the children of her marriage to Mr. Snelgrove. Earlier applications by Ms. Butler to stay the enforcement of Dunn J.’s order were denied by decisions dated December 15, 2014 (2014 NLCA 51) and January 26, 2015 (2015 NLCA 5). Several months of delay followed as a result of Ms. Butler’s request for an exemption from the payment of fees and costs for the appeals. By decision dated October 6, 2015, this Court set out legal principles regarding exemption from the payment of fees and costs and gave directions as to Ms. Butler’s application (2015 NLCA 46). [2] Two events triggered a third request by Ms. Butler for a stay of Dunn J.’s order. First, by letter dated September 12, 2015, the Alberta Maintenance Enforcement Program advised her of its intention to proceed with enforcement of the child support order and collection of arrears. Second, Ms. Butler is scheduled to have Christmas access this year which she planned to exercise by bringing the children to Alberta. Under Dunn J.’s order, Ms. Butler is responsible for the access costs. If that order is stayed, McGrath J.’s earlier order would be reinstated, with the result that Mr. Snelgrove would be responsible for those costs. [3] As to the first issue, Mr. Snelgrove agreed to have enforcement of the order suspended pending disposition of the appeals or until June 30, 2016, whichever occurs first. While there was some uncertainty as to the position the Alberta Maintenance Enforcement Program would take, the Court was satisfied, based on submissions from counsel for the Newfoundland and Labrador Support Enforcement Agency, that Mr. Snelgrove’s request to suspend enforcement of the order would be acted upon by the Alberta Agency. The Court concluded that in order to remove any doubt as to the status of enforcement, it would be appropriate to make an order suspending enforcement. [4] With respect to the second issue, the order regarding Ms. Butler’s access to the children, who live in this Province with their father, provides for three visits in one year and two visits in the alternating year; that is, every Easter and summer and every second Christmas. This year Ms. Butler was scheduled to have the Christmas visit. However, she says that she cannot afford the cost. Page: 3 [5] The test to be applied in determining whether a stay should be granted where custody of and access to a child are at issue is set out in the earlier decision of this Court between these parties, 2014 NLCA 51 (the “first stay decision”): [11] … The test for a stay generally has three prongs: (1) Is there a serious issue to be tried in the sense that the appeal is not frivolous? (2) Will a party suffer irreparable harm if the stay is denied? (3) Where does the balance of convenience lie? When the decision under appeal relates to a child, as stated in N.G. [2010 NLCA 60, 301 Nfld. & P.E.I.R. 240], paramountcy of the best interests of the child is engaged, with the result that the test will be applied from that perspective. I note in this case that the stay relates not to custody and access directly, but to the costs involved which may impact the ability of the parent to exercise access. However, the same approach applies. [6] It has been accepted that the appeal against Dunn J.’s order cannot be dismissed as frivolous (the first stay decision, at paragraph 12). Regarding irreparable harm, I refer again to the first stay decision: [13] … if Ms. B.’s appeal is successful, and the Easter visit is missed, it could be made up at a future time. From the children’s perspective, while it is desirable that they have the Easter visit, there is no basis on which to conclude that they will suffer irreparable harm if it does not occur. [7] The same can be said about the 2015 Christmas visit. In fact, the order provides that every second year Ms. Butler will have only Easter and summer access visits. If the appeal should succeed on the question of Mr. Snelgrove’s obligation to pay access costs every second Christmas, and if this visit is missed due to Ms. Butler’s inability to fund the costs, it could be made up by giving Ms. Butler access for two consecutive Christmases. Ms. Butler has daily phone and web-cam contact with the children. While a visit would be preferred, it cannot be said that the children would suffer irreparable harm if Ms. Butler missed this Christmas access visit. [8] Regarding the balance of convenience, Ms. Butler submits that Mr. Snelgrove is financially able to pay the travel expenses of the children while she is not. However, Ms. Butler has refused to accept the principle that, Page: 4 having remarried, her family finances are relevant to the determination of her ability to fund the children’s access visit as such costs would be regarded as undue hardship expenditures. Acceding to requests of this Court, she provided information regarding her husband’s annual income of approximately $92,000 as a teacher. Ms. Butler continues to state that she has virtually no income, having only recently obtained a work permit. She is well qualified as a music teacher and is seeking private students since she is not permitted to work within the school system. As of October 29 th, she had just one student. [9] An additional consideration under this prong of the test is the likely effect on the respondent if the appeal is unsuccessful. In most such cases, a stay will merely delay the respondent’s access to the relief granted at trial. However, in this case, a stay as requested by Ms. Butler would result in Mr. Snelgrove being required to fund the Christmas access, with, as indicated by Ms. Butler, no reasonable expectation that those costs would be reimbursed should the appeal be dismissed. [10] By contrast, should Ms. Butler pay the costs of the Christmas visit and succeed with her appeal, there is no indication that Mr. Snelgrove would fail to reimburse her, assuming there would be no amounts owing by Ms. Butler to Mr. Snelgrove against which there would be a setoff. [11] In the circumstances, the balance of convenience weighs in favour of refusing the application for a stay. Taken together with the determination that refusing a stay would not result in irreparable harm, the conclusion follows that Ms. Butler’s application for a stay must be denied. The result is that, if Ms. Butler is to exercise access to the children this Christmas, she will have to bear the associated cost. [12] Given the history between these parties and the concern set out in the first stay decision regarding whether Ms. Butler will return the children should they have a Christmas visit in Alberta, it is appropriate to make an order similar to that made by Fry J. with respect to the children’s visit to Alberta this past summer. That is, if Ms. Butler is to exercise access to the children this Christmas in Alberta, she must provide Mr. Snelgrove with a detailed travel itinerary for the children, including a copy of return airline tickets. Given the ages of the children, Ms. Butler may decide whether adult accompaniment is required. All costs associated with the access shall be paid by Ms. Butler. Page: 5 [13] In summary, 1. It is ordered that enforcement regarding child support and collection of arrears is suspended until disposition of the appeals or June 30, 2016, whichever occurs first; 2. Ms. Butler’s application for a stay of Dunn J.’s order specifying that she must pay the costs associated with exercise of her access to the children for Christmas 2015 is denied; 3. If Ms. Butler exercises access to the children in Alberta this Christmas, she (a) must provide Mr. Snelgrove with a detailed travel itinerary for the children, including a copy of return airline tickets, (b) may decide whether adult accompaniment is required, (c) is required to pay all costs associated with access; and 4. The parties will bear their own costs. ____________________________________ J. D. Green C.J.N.L. ____________________________________ B. G. Welsh J.A. ____________________________________ C. W. White J.A.