Father v Mother

• Jurisdiction: Bermuda
• Court: Supreme Court (Bermuda)
• Judge: Wheatley, J.
• Judgment Date: 19 May 2025
• Year: 2025
• Docket Number: 2018: No. 9

Father

and

Mother

Wheatley, J. (Ag.)

2018: No. 9

Supreme Court

Appearances:

Sara Tucker of Trott & Duncan Limited, for the Respondent.

Alma Dismont of Marshall Diel & Myers Limited, for the Applicant.

RULING

INTRODUCTION

1 Wheatley, J. (AG.): 1. This is the Respondent's (hereinafter referred to as the Mother) application asking the court to grant her leave to relocate to Alberta, Canada, with the parties' six-year-old daughter (hereinafter referred to as A).

2 The Mother was born in Grenada and is a Grenadian citizen. She relocated to Bermuda in or about 2010, as she was in a relationship with a Bermudian, whom she later married. The Mother has a child from this relationship (who shall be referred to as ‘B’) and who is 11 years old. That relationship did not endure, and the Mother and her former spouse divorced in or about 2014. The Mother has an Extension of Spousal Rights Certificate (ESERC) permitting her to remain in Bermuda until B is either 18 years old or 25 years old if B remains in full-time education. The ESERC also affords her the right to work free from immigration control, as though she is Bermudian. The Mother is also entitled to obtain a PRC Certificate as the mother of Bermudian children once she has resided in Bermuda for 15 years, which she will be eligible for in 2025.

3 The Applicant (herein after referred to as the Father) is Bermudian. In August 2021, he married his wife and is the stepfather to her two children from a prior relationship, who shall be referred to as ‘Y’ and ‘Z’, who are aged 16 years old and 11 years old, respectively.

4 The Mother's application dated 10 June 2022 (Relocation Application), inter alia, seeks the following:

• (i) The Mother be granted leave to permanently remove A from the jurisdiction of Bermuda.

• (ii) The Mother be granted sole custody of A.

• (iii) The Mother be granted sole care and control of A.

• (iv) The Consent Order dated 5 February 2018 be varied.

5 The Mother's affidavit sworn on 26 August 2022 (Mother's Second Affidavit) confirmed that she was amending the relief set out in the Relocation Application. Whilst the Relocation Application was not amended, the parties accept this is the relief the Mother is now seeking:

• (i) Joint custody of A.

• (ii) Leave for A to reside with the Mother in Alberta, Canada, for a minimum of five years whilst she completes her studies.

• (iii) The Father will have access to A each summer and alternating Christmas holidays.

6 Due to the Mother making the Relocation Application, the Father filed an application on 22 June 2022 (the Opposing Application), inter alia, seeking the following relief:

• (i) On an interim basis, and until such time that the [Mother's] application for leave to remove has been determined, the joint care and control arrangement as set out at paragraph 6 of the Consent Order dated 5 February 2018 (the Consent Order) shall be varied so that the [Father] has the care of [A], on an alternating weekly basis.

• (ii) That the [Mother's] application be dismissed and there be a final order made confirming that the [Mother] and the [Father] have joint care and control of [A] on an alternating weekly basis.

• (iii) There be a social inquiry report conducted in relation to [Mother's] application for leave to [A] from Bermuda and to relocate to Canada, and the court social shall also contact the relevant social worker in Canada in order to investigate the proposed arrangements for [A] in Canada.

• (iv) That a joint Child psychologist pointed to prepare a joint expert report on the impact the relocation will have on [A] and specifically in relation to the possible impact it will have on [A]'s relationship/quality with the [Father] as well as friends and family in Bermuda.

7 It should be noted that the Opposing Application initially sought for the Father to be granted care and control of A with access to the Mother during the period the Mother would be overseas completing her studies. This was subsequently abandoned as the Mother had later confirmed in her affidavit evidence that if her Relocation Application was denied that she would not be pursuing her education in Canada as she would not leave [A] in Bermuda.

8 The evidence adduced and relied on by the parties for this hearing is as follows:

• (i) The Mother's affidavit sworn on 8 June 2022 (Mother's First Affidavit).

• (ii) The Father's wife's (hereinafter referred to as the Wife) affidavit sworn on 8 July 2022 (Wife's First Affidavit).

• (iii) The Father's affidavit sworn on 18 July 2022 (Father's Second Affidavit).

• (iv) The Mother's Second Affidavit.

• (v) The Father's affidavit sworn on 27 September 2022 (Father's Third Affidavit).

• (vi) The Wife's affidavit sworn on 27 September 2022 (Wife's Second Affidavit).

• (vii) The Father's affidavit sworn on 12 October 2022 (Father's Prohibition Affidavit).

• (viii) The Mother's affidavit sworn on 14 October 2022 (Mother's Prohibition Affidavit).

• (ix) Home Study Report conducted in Edmonton, Alberta, Canada, dated 22 November 2022 (Home Study Report).

• (x) Social Inquiry Report dated 8 December 2022 (2022 SIR).

• (xi) An updated social inquiry report dated 16 August 2024 (2024 SIR).

9 Both parties and the Wife attended the hearing and provided viva voce updating evidence and were each cross-examined by opposing counsel. The Court Appointed Social Worker, Ms. Nichole Saunders (CASW), also attended and was cross-examined by both Counsel.

HISTORY OF CARE AND CONTROL AND ACCESS

10 These proceedings were initially commenced by the Father in January 2018 (the Initiating Application) seeking, inter alia, the following orders in relation to A:

• (i) The [Mother] or her agents be prohibited from taking or sending out of Bermuda the child, namely [A].

• (ii) The [Mother] shall not be permitted to apply for the issue or renewal of [A's] passport.

• (iii) Joint custody and joint care and control of [A].

• (iv) Interim access with [A] each Monday and Thursday from 5:30 p.m. until 8 p.m., as well as each Sunday from 10 a.m. until 5 p.m.

11 The parties were able to agree on a resolution of the Initiating Application by way of Consent Order dated 5 February 2018 (the 2018 Consent Order). The 2018 Consent Order provided that, inter alia, the parties were to have joint custody and joint care and control. Albeit, at this time the Mother was the primary carer with the Father exercising access each Monday and Thursday from 5:30 p.m. until 8 p.m. and each Sunday from 2 p.m. until 7 p.m. There was also provision for the “care arrangement” to be reviewed in six months, “for the purpose of increasing the time that the Applicant has care of [A], it being accepted that the parties will gradually work towards both parties having equal care of her”. The 2018 Consent Order was not listed for review, and neither party made a request to the Court for such a review to be listed.

12 The Father commenced having overnight access with A in 2019. The overnight access was from Thursday afternoons/evenings until Saturday mornings, i.e. two nights per week. No applications were made to the Court regarding care and control or access between the time the 2018 Consent Order was made and when the Mother filed the Relocation Application.

13 On 9 June 2022, the Mother's former attorneys, Bruce Swan & Associates, filed the Relocation Application along with the Mother's First Affidavit. The first return date for the Relocation Application was 23 June 2022. The Opposing Application that was filed the day prior, 22 June 2022, was also listed on 23 June 2022 at the same time as the Relocation Application. The Father did not submit any evidence in support of the Opposing Application by way of affidavit or otherwise.

14 At the first appearance of these applications (23 June 2022), without any evidence being submitted by the Father in either the Relocation Application or the Opposing Application, the Judge varied the care arrangement of A from the Father having her care each Thursday to Saturday to a week on/week off care schedule commencing on 3 July 2024 (23 June 2022 Order). The Mother was not given an opportunity to file any evidence in relation to the Father seeking to vary access to a week-on/week-off schedule. At this time, A was four years old.

15 On 12 October 2022, the Father filed an Ex-Parte Summons (the Prohibition Application) seeking an order that “during the week that [A] is in his care, the Mother be prohibited from attending [A]'s school”, “for the purpose of attending her drop-off or collection or visiting her in school”. The Father's Prohibition Affidavit was filed in support of the Prohibition Application as well as the Wife's First Affidavit. The Mother's Prohibition Affidavit was filed in opposition to the Prohibition Application but was not in response to the Father's Prohibition Affidavit or the Wife's First Affidavit.

16 The Father's reason for making the Prohibition Application was that he said, after the alternating week schedule was granted and A returned to school, the Mother was exhibiting increasingly frequent behaviours that were inappropriate and causing A to suffer emotionally. The Prohibition Application was listed for an Ex-Parte, On Notice hearing via audio-visual means on 14 October 2022. Ms. Tucker attended for the Mother; however, she made an application for an adjournment for the hearing to be listed on an inter partes basis the following week. The adjournment request was denied, and the matter continued to be heard on the basis that it was listed Ex-Parte, On Notice, which meant that the judge only heard from Mrs. Dismont for the Father. The Mother was given no opportunity to respond viva voce or by way of affidavit to the evidence being relied on by the Father. The Judge found that the Mother's behaviour was concerning and negatively impacting A. As such, it was ordered that the Mother be prohibited from attending A's school...