Court File and Parties

Court File No.: 5866/15 Date: 2016/09/19 Ontario Superior Court of Justice

Between:

Claude Morneault, Applicant (Respondent on Appeal) Emilie Chamaillard, for the Applicant (Respondent on Appeal)

- and -

Karly Boudreau, Respondent (Appellant on Appeal) Jacqueline Strybos, for the Respondent (Appellant on Appeal)

Heard: August 31, 2016

Ellies J.

Reasons for Decision

Overview

[1] Ms. Boudreau appeals the decision of Maille J. of the Ontario Court of Justice in which he ordered that Mr. Morneault have primary residence of the parties’ child in the event that Ms. Boudreau relocates to Pembroke from Kirkland Lake, as she would like to do.

[2] Ms. Boudreau argues that the trial judge committed a number of errors which, when looked at in their totality, require this court to quash the judge’s order, award Ms. Boudreau primary residence, and allow her to move to Pembroke with the child.

[3] In my view, the appeal must fail. As I will explain, the trial judge committed no legal or factual error in arriving at his decision.

Background Facts

[4] The parties began a common-law relationship in 2009 and separated in 2011. The child at the heart of this case, Chloe Boudreau, was born on June 26, 2010.

[5] At the time of the trial, both parties lived in Kirkland Lake. Mr. Morneault was born and raised there. Ms. Boudreau moved to Kirkland Lake as a result of her relationship with Mr. Morneault. Chloe has lived in Kirkland Lake since shortly after her birth.

[6] Mr. Morneault works as a miner. At the time of the trial, Ms. Boudreau was on maternity leave.

[7] Mr. Morneault’s parents reside in Kirkland Lake. The maternal grandmother and her husband reside in North Bay and have frequent contact with Chloe. The maternal grandfather often travels to Kirkland Lake.

[8] Like Mr. Morneault, Ms. Boudreau’s new partner, Landon Lavictoire, was raised in Kirkland Lake. His parents continue to reside there. Ms. Boudreau and Mr. Lavictoire have one child together, Hunter Boudreau-Lavictoire, who was born on October 5, 2014. Ms. Boudreau wishes to move to Pembroke to be with Mr. Lavictoire and their child.

[9] According to the affidavit he swore in support of the application, Mr. Morneault commenced the application after he learned of Ms. Boudreau’s intention to relocate with the child to Pembroke. In the application, he sought an order that Chloe not be moved from Kirkland Lake.

[10] The application proceeded on August 7, 2015, before Maille J. On consent, the evidence was adduced entirely on paper. It consisted of the affidavits of the witnesses, together with transcripts of the cross-examination of some of those witnesses on their affidavits, including Ms. Boudreau, Mr. Morneault, and Mr. Lavictoire. In addition, a report that had been prepared by Sharon Crawford, a clinical investigator with the Office of the Children’s Lawyer (“OCL”), was filed and formed part of the evidence pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[11] For reasons released on October 16, 2015, Maille J. concluded that it was in the child’s best interests that both parents be given joint custody, with Ms. Boudreau making major decisions regarding the child’s education, health and recreational activities, following consultation with Mr. Morneault. This had been the situation at the time the trial began.

[12] Maille J. also concluded that the parties should continue custody on a week-about basis, as they had also been doing since about September, 2013.

[13] The trial judge further concluded that it was not in the child’s best interests to permit Ms. Boudreau to relocate the child anywhere outside of the Kirkland Lake area, including Pembroke. He ordered that, in the event that Ms. Boudreau relocated to Pembroke, the parties would continue to share joint custody, but the child’s primary residence would be with Mr. Morneault, who would then have authority to make all major decisions, in the way that Ms. Boudreau would have such authority in the event she remained in Kirkland Lake. In the event that Ms. Boudreau moved to Pembroke, the trial judge ordered that she would have generous and reasonable access to Chloe.

[14] It is from this order that Ms. Boudreau appeals.

Issues

[15] On behalf of Ms. Boudreau, counsel raises five issues. Although dealt with in a different order in her factum and in her oral argument, counsel submits:

(1) that the trial judge “erred in fact in determining that there were credibility issues which prevented him from accepting either party’s facts where there was conflicting evidence”;

(2) that the trial judge’s order was the result of ineffective representation by Ms. Boudreau’s trial counsel, who failed to file an objection to the OCL report or to cross-examine the author thereof;

(3) that the trial judge erred by relying too heavily on the OCL report;

(4) that the trial judge erred in law by misapplying the best interests of the child test; and

(5) that the trial judge erred in law by misapplying the threshold test as it relates to mobility issues.

[16] I will deal with the issues in the order of which I have listed them.

Analysis

Issue 1: Credibility

[17] I have set this issue out in quotes in the summary above because it is not clear to me whether Ms. Boudreau’s principle concern relates to the fact that the trial judge found there was a credibility issue or to the way in which he resolved it. In either case, I would dismiss this ground of appeal. Before I explain why, I believe it would be helpful to address the standard of review applicable in appeals of custody cases such as this one.

[18] It is trite to say that an appeal is not a re-trial. This point was made by Iacobucci and Major JJ. on behalf of a majority of the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 3, where they wrote:

The role of an appellate court was aptly defined in Underwood v. Ocean City Realty Ltd. (1987), 12 B.C.L.R. (2d) 199 (C.A.), at p. 204, where it was stated:

The appellate court must not retry a case and must not substitute its views for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities.

[19] The need for deference to the decisions of trial judges and the importance of finality in the context of custody cases was explained by Bastarache J. on behalf of the Supreme Court of Canada in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13, where, after referring to the decision in Hickey v. Hickey, [1999] 2 S.C.R. 518, he wrote:

As I have stated, the Court of Appeal was incorrect to imply that Hickey, supra, and the narrow scope of appellate review it advocates are not applicable to custodial determinations where the best interests of the child come into play. Its reasoning cannot be accepted. First, finality is not merely a social interest; rather, it is particularly important for the parties and children involved in custodial disputes. A child should not be unsure of his or her home for four years, as in this case. Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judge’s decision. Second, an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts. [Emphasis added.]

[20] Van de Perre was referred to in the subsequent decision in Housen, referred to earlier, in which the Supreme Court of Canada explained that alleged errors of fact are reviewable on a “palpable and overriding error” standard only: see para. 10.

[21] In the case at bar, the trial judge began his reasons by outlining the evidence he had before him and the positions of the parties. He then set out what he quite properly referred to as the “undisputed facts”, with which no issue is taken. After next setting out the recommendations made in the OCL report, he turned to the disputed facts. At para. 30 of his reasons, he wrote:

I have concerns with the credibility of both parties and their witnesses with respect to the conflicting evidence.

[22] The trial judge then went on to set out some of his concerns with the evidence of Mr. Morneault, his grandmother, Ms. Boudreau, her grandmother, and Mr. Lavictoire. The judge’s concerns about the credibility of Ms. Boudreau included her sworn evidence that Mr. Morneault had been convicted of impaired driving and dangerous driving and imprisoned for eight months, whereas the OCL report indicated that no such convictions or sentence appeared on police records.

[23] Ultimately, the trial judge rejected the evidence of both parties where it conflicted, and rejected the evidence of all the witnesses with respect to comments allegedly made by Chloe. Instead, he preferred the evidence of the OCL’s clinical investigator. At para. 37 of his reasons, he wrote:

I find that the most objective and reliable evidence regarding each party’s parenting ability and relationship with the child is contained in the OCL report. The OCL clinical investigator has no apparent motive to fabricate or manipulate the evidence. She has no apparent personal interest in the outcome of this case.

[24] Ms. Boudreau contends that the trial judge was wrong to conclude that Ms. Boudreau’s evidence of impaired driving was false. She contends that, had the trial judge looked closely at Mr. Morneault’s record, he would have seen that the convictions included two counts of breaching a court order. She argues that the trial judge would then have known that there must have been an earlier charge, which Ms. Boudreau says in her factum was an impaired charge for which Mr. Morneault later received a pardon. [^1]

[25] I do not accept Ms. Boudreau’s argument, for several reasons.

[26] First, even if the trial judge had looked more closely at the record, it does not necessarily mean that he would have concluded that Ms. Boudreau was being truthful. It would have been pure speculation on the part of the trial judge for him to have concluded that the earlier conviction was for impaired driving, as opposed to any other offence.

[27] Second, even if I was to accept the statement contained in Ms. Boudreau’s factum about Mr. Morneault’s earlier charge as appropriately introduced fresh evidence on the appeal, which I do not, that evidence does not explain why there is no dangerous driving conviction on Mr. Morneault’s record, as Ms. Boudreau alleged in her affidavit.

[28] Third, even if there was a factual error made by the trial judge, it is not material. The trial judge’s concern about the absence of impaired driving and dangerous driving convictions on Mr. Morneault’s record was only one of his concerns about Ms. Boudreau’s evidence. The second concern expressed by the trial judge was that Ms. Boudreau’s plan to have Mr. Morneault drive Chloe halfway from Kirkland Lake to Pembroke every second weekend called into question her sworn evidence that Mr. Morneault drives with Chloe “while under the influence”. No argument has been put forward on behalf of Ms. Boudreau to the effect that the trial judge was wrong in this respect. The trial judge, therefore, had other reasons to be concerned about Ms. Boudreau’s credibility.

[29] More importantly, after rejecting the conflicting evidence, the trial judge concluded that each party was a good parent to Chloe, that each was capable of parenting Chloe appropriately, and that there was a strong mutual love and bond between Chloe and both parties. No issue is taken by Ms. Boudreau with respect to this conclusion.

[30] Counsel for Ms. Boudreau also argues that the trial judge made a material factual error in excluding the conflicting evidence, rather than in weighing it. In support of her argument, counsel refers to the decision in Francis v. Francis (1972), 8 R.F.L. 209, 1972 CarswellSask 12 (Sask. C.A.). In that case, the Saskatchewan Court of Appeal highlighted the advantage enjoyed by a trial judge in determining credibility where the trial judge can see and hear the parties testifying. Undoubtedly, that is true. However, in this case, the parties agreed to proceed without viva voce evidence. As a result, the trial judge was required to rely entirely on the substance of the evidence, and not on its form.

[31] Contrary to the submissions of counsel for Ms. Boudreau, the trial judge did weigh the evidence before rejecting it. That is precisely how he arrived at his conclusions that there were problems with parts of it.

[32] The trial judge committed no error, legal or factual, in rejecting the evidence of both parties and preferring that of the OCL clinical investigator.

Issue 2: Ineffective Representation of Counsel

[33] In R. v. B. (G.D.), 2000 SCC 22, [2000] 1 S.C.R. 520, the Supreme Court of Canada held that claims of ineffective assistance of counsel involve both a performance and a prejudice component. In order to succeed, it must be established, first, that counsel’s acts or omissions constituted incompetence and, second, that such incompetence resulted in prejudice to the client. In my view, neither the first nor the second component has been established here.

[34] Pursuant to Rule 21 (e) of the Family Law Rules O. Reg. 114/99, (as amended), a party who disputes anything in a report prepared by the OCL under s. 112 of the Courts of Justice Act may serve and file a statement to that effect within 30 days of receiving the report.

[35] Pursuant so s. 112(4) of the Courts of Justice Act, where a party disputes the facts set out in the report, the author may be compelled to attend court as a witness.

[36] Counsel for Ms. Boudreau contends that counsel representing her client at trial provided ineffective representation because he failed to file a dispute and to compel the attendance of the OCL investigator at trial. In my view, this ground of appeal ought not to succeed.

[37] Both the Ontario Court of Appeal and the Ontario Superior Court of Justice have adopted protocols to deal with allegations of ineffective representation of accused individuals where those allegations are raised in a criminal appeal (see http://www.ontariocourts.ca/coa/en/notices/adminadv/protocol.htm and Rule 40.19 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, and Schedule 1 thereto). Pursuant to these protocols, where appellate counsel intends to advance allegations of incompetence, trial counsel should be given notice and a reasonable opportunity to respond to the allegations.

[38] Although counsel for Ms. Boudreau referred to the protocols I have mentioned in her factum, it does not appear that trial counsel in this case was provided with notice of the allegations of incompetence, nor (as I have already mentioned) has any application been made on behalf of the appellant to admit fresh evidence. I believe this should have been done.

[39] I recognize that, in criminal cases, there are constitutional considerations relating to the effective assistance of counsel that are not present in civil cases: R. v. Silvini (1991), 50 O.A.C. 376, 5 O.R. (3d) 545 (Ont. C.A.); R. v. Joanisse (1995), 85 O.A.C. 186 at para. 63; R. v. B. (G.D.), at para. 24. However, I believe that many of the same motivating principles behind the protocols in criminal appeals exist in civil appeals. Unless trial counsel is provided with notice of the allegations of incompetence and fresh evidence admitted on the issue, it is not possible to know in many cases whether the alleged failures of counsel are actually the result of informed decisions made by the client.

[40] This is one of those cases. I think it is safe to infer from the fact that the parties agreed to proceed without hearing from witnesses during the trial that they were interested in abbreviating the trial process. In these circumstances, it is not possible to determine whether or not trial counsel’s alleged failures were decisions made with the informed instructions of his client. Ms. Boudreau, therefore, has not met her onus of establishing that the acts or omissions of counsel were not the result of reasonable professional judgment: R. v. B. (G.D.), at para. 37.

[41] Even if Ms. Boudreau could establish incompetence, it is my view that she has not established prejudice. As I will now explain, I do not believe that the report of OCL played the pivotal role in the judge’s decision alleged by Ms. Boudreau.

Issue 3: Reliance on the OCL Report

[42] The OCL report contained ten recommendations, which the trial judge set out at para. 28 of his reasons. These included:

1. That Ms. Boudreau and Mr. Morneault have shared custody and access of the child.
2. That the access between Ms. Boudreau and Mr. Morneault be on a 7 day, week-about, rotational basis with the exchange taking place on Sunday.
3. That all major decisions be made by Ms. Boudreau, including signing consents for education, medical, recreational and all extracurricular activities, that Mr. Morneault should have access to all the information, and that Ms. Boudreau is to advise Mr. Morneault of all major decisions in advance.
4. That if Ms. Boudreau decides to relocate to Pembroke, ON, or out of the Kirkland Lake school district, Mr. Morneault have sole custody and decision making power for the child and that Ms. Boudreau have access to the child when she is in the Kirkland Lake area.

[43] Ms. Boudreau contends that the OCL report suffered from various flaws and that the trial judge relied too heavily on that report in arriving at his decision.

[44] With respect to the flaws in the report, Ms. Boudreau submits that the author of the OCL report failed to interview Mr. Lavictoire, failed to give sufficient consideration to Chloe’s half-brother, Hunter, and failed to include any reference to Chloe`s wishes.

[45] In support of her argument that the trial judge relied too heavily on the OCL report, thereby abdicating his decision-making authority, counsel for Ms. Boudreau points to the fact that, ultimately, the trial judge`s order mirrored the recommendations of the OCL report. I am unable to accept this argument.

[46] It is clear from the trial judge’s reasons that he considered many, if not all, of the factors that Ms. Boudreau alleges the author of the OCL report failed to consider. For example, it is clear that he did give significant consideration to Chloe’s relationship with her step-brother, Hunter. At para. 48, the trial judge wrote:

I am also satisfied that the child has a normal sibling bond, given their respective age[s], with her brother, Hunter, and that this sibling bond is likely to develop as the children grow older.

[47] Further, at para. 60, the trial judge wrote:

The child’s relationship with her brother is an important consideration. Under [Mr. Morneault’s] plan, the child would have a similar amount of contact with her brother as she would with each of her parents. In my view, this would provide the child with a reasonable opportunity to develop her relationship with her brother.

[48] The trial judge also considered the issue of Chloe’s wishes. At para. 52 of his reasons, the trial judge wrote:

Due to her age, the child was not interviewed by the OCL clinical investigator. The OCL report does not identify the child’s views. Given the child’s age, I am satisfied that her views and preferences cannot be reasonably ascertained. I give this factor no weight.

[49] Lastly, it is also clear from the trial judge’s reasons that he gave due consideration to Mr. Lavictoire’s relationship with the child. At para. 49 of his reasons, the trial judge wrote:

I find that the child and Landon Lavictoire have developed a positive, loving child and step-parent relationship which is beneficial to the child. I give no weight to the hearsay evidence of Shelley Anne O’Reilly regarding utterances to the contrary allegedly made by the child. This evidence is uncorroborated and inconsistent with not only the evidence of [Ms. Boudreau] and of Landon Lavictoire, but also of the OCL clinical investigator who favourably described the interaction between the child and Landon Lavictoire during an observation visit, and concluded that the interactions between the child, [Ms. Boudreau] and Landon Lavictoire appeared “very positive”.

[50] While it is true that the trial judge’s final order adopted many of the recommendations made in the OCL report, it is also clear from his reasons that he arrived at his conclusions through his own process of deliberation, free from the influence of any of the alleged errors in the OCL report.

[51] Moreover, although the trial judge found the OCL report to be a more credible source of information than many of the witnesses, he was also critical of the report in one important respect. At para. 89 of his reasons, he wrote:

I have considered the OCL report recommendation on the mobility issue. However, I am not satisfied that the OCL report sufficiently takes into account all of the Gordon v. Goertz factors in arriving at its recommendation on this issue. Accordingly, I do not rely on this recommendation.

[52] Instead, the trial judge engaged in his own, thoughtful analysis of each of the relevant factors set out by the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27, the leading case on mobility issues.

[53] In addition, the trial judge set out the relevant provisions of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”) and conducted a similarly thoughtful analysis of the factors set out in s. 24(2) of that Act concerning the best interests of the child, to which I will return in a moment.

[54] The trial judge applied the best interests test under s. 24(2) of the CLRA and the Gordon v. Goertz factors to the evidence. As I have pointed out, in the course of doing so, he considered factors that Ms. Boudreau’s counsel alleges were not considered by the author of the OCL report. In addition to those factors, he considered such things as Mr. Morneault’s decision not to pay the table amount of child support (see para. 54).

[55] In these circumstances, I do not see how it can be said that the trial judge abdicated his responsibility by relying too heavily on the OCL report. This is especially true when one considers Ms. Boudreau’s remaining grounds of appeal, namely that the trial judge misapplied both the best interests test under s. 24(2) of the CLRA and the Gordon v. Goertz factors, a contention that seems to conflict with her allegation that he failed to engage in his own analysis.

[56] I turn now to these last two grounds of appeal.

Issue 4: The Best Interests Test

[57] In Gordon v. Goertz, McLachlin J. (as she then was) set out the principles applicable where a court is called upon to determine whether one parent should be allowed to change the location of a child’s primary residence. At para. 19, she pointed out that the best interests of the child is not only a paramount consideration in such cases, but the only relevant consideration. At para. 49, she summarized the law relating to mobility issues, which the trial judge in this case also set out at para. 43 of his decision. The relevant parts of that summary are as follows:

6. The focus is on the best interests of the child, not the interests and rights of the parents.
7. More particularly the judge should consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child, (f) disruption to the child of a change in custody; (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[58] Counsel for Ms. Boudreau contends that the trial judge erred by placing too much emphasis on the desirability of maximizing contact between the child and both parents (set out above at para. 7(c)), when he ought to have considered only the child’s best interests. She submits that the trial judge failed to consider that, due to his work schedule, Mr. Morneault only has an hour and fifteen minutes with Chloe at night before she has to go to bed. As a result, counsel submits that Chloe would have more “beneficial” contact with Mr. Morneault if she were to move to Pembroke with Ms. Boudreau and Mr. Morneault was to exercise weekend access.

[59] I would dismiss this ground of appeal solely on the basis of the thoughtful analysis of each of the factors set out in s. 24(2) of the CLRA and in Gordon v. Goertz that I indicated above was undertaken by the trial judge. However, there are additional reasons for dismissing this ground of appeal.

[60] First, the trial judge found that Mr. Morneault only works approximately one out of every two days while Chloe is in his care (see para. 57 of his reasons). Ms. Boudreau has not demonstrated that the trial judge made any material or palpable and overriding error in this regard.

[61] Second, while the trial judge did consider the benefits of maximizing contact between Chloe and Hunter and between Chloe and Mr. Lavictoire (see para. 61), it is clear that the trial judge felt it was more in keeping with Chloe’s best interests to maximize contact between her and her father and to avoid the disruption necessary to maintain that contact. At paras. 62 and 63 of his reasons, the trial judge wrote:

However, in my view, the benefits to the child of greater contact with her brother and Landon Lavictoire under [Ms. Boudreau’s] plan are offset by the reduction in the child’s contact with [Mr. Morneault] that would inevitably result from this plan.

[Ms. Boudreau’s] plan would provide the child with weekday stability and routine, but would add some weekend disruption to the child from substantial travel for access.

[62] The trial judge committed no error in reaching the conclusion that he did. His decision must be given deference.

Issue 5: The Threshold Test for Mobility

[63] Counsel for Ms. Boudreau contends that the trial judge did not fully consider what Chloe’s life would be like if she remains with Ms. Boudreau and lives with her in Pembroke. She submits that the trial judge failed to consider the impact on the child that would result from a change in the custodial parent if Ms. Boudreau moved to Pembroke without Chloe. She argues that the trial judge erred by placing greater emphasis on the parents’ interests than those of the child.

[64] I see no merit to this ground of appeal.

[65] I have already referred to the trial judge’s thoughtful consideration of each of the relevant parts of s. 24(2) of the CLRA and of the relevant factors from Gordon v. Goertz. Under s. 24(2), the trial judge considered:

• the love, affection and emotional ties between the child, her mother, her father, Mr. Lavictoire, the grandparents, and the babysitter that cares for Chloe when her father works;
• the child’s views and preferences (although he gave them no weight);
• the time the child had lived in a stable home;
• the parenting ability and willingness to provide guidance, education, necessaries of life and to provide for the special needs of the child;
• each parent’s plan of care;
• the permanence and stability of each family unit; and
• the blood relationships between the child and her parents.

[66] The trial judge also considered the following factors from Gordon v. Goertz, all of which pertain to the child’s best interests in mobility cases:

• the existing custody and access arrangements;
• the relationship between the child and her parents;
• the principle of maximizing contact between the child and both parents;
• the custodial parent’s reasons for moving;
• disruption to the child of a change in custody;
• disruption to the child consequent on removal from family, school and community; and
• the impact on the mother of denying her proposed relocation with the child.

[67] Many of the factors listed above were neutral in the analysis. However, several were not.

[68] Contrary to the submissions of counsel, the trial judge did consider fully what Chloe’s life would be like if she remains with Ms. Boudreau. At para. 81 of his reasons, under the heading, “custodial parent’s reason for moving”, he wrote:

I find nothing about this reason that is particularly compelling with respect to [Ms. Boudreau’s] ability to meet the child’s needs. There is no compelling evidence that the child’s needs can be better met or accommodated in Pembroke.

[69] The trial judge also considered what life would be like for Chloe if she moved to Pembroke with her mother when he considered the plans of care, the maximum contact principle, and the disruption consequent on removal from Kirkland Lake. With respect to each of these factors, the trial judge expressed concerns about the reduction in contact between the child and her father and paternal grandparents if she were to be moved to Pembroke.

[70] Finally, before he undertook his analysis of the relevant factors from the CLRA and from Gordon v. Goertz, the trial judge properly instructed himself on the importance of the child’s best interests. At para. 46, he wrote:

I must determine what is in the child’s best interests, having regard to all the relevant circumstances. In doing so, I will consider the factors set out in s. 24(2) of the Act, and the Gordon v. Goertz mobility factors. I will begin with the former.

[71] Following his analysis of these factors, the trial judge wrote, at para. 90:

There is no perfect solution to this case. Whatever the outcome, one of the parties will be adversely affected. However, the ultimate issue is not what is in the best interests of the parents, but rather what is in the child’s best interests.

[72] It is clear from his reasons that, contrary to the submissions of counsel for Ms. Boudreau, the trial judge’s concerns were for the child, not for the parents.

[^1]: No application to introduce fresh evidence has been made in support of the appeal.

Conclusion

[73] For the foregoing reasons, the appeal is dismissed.

[74] If the parties cannot agree on the issue of costs, written submissions may be made as follows:

(a) the applicant (respondent on appeal) may make submissions, limited to five typewritten pages, exclusive of attachments, within 10 days of the date of the release of these reasons;

(b) the respondent (appellant on appeal) may make submissions, similarly limited, within 20 days of the receipt of the applicant’s (respondent on appeal) written submissions; and

(c) the applicant may make any necessary reply, similarly limited in length, within 10 days of the date of receipt of the respondent’s written submissions.

Ellies J. Released: September 19, 2016