Bellefontaine v. Slawter, (2012) 318 N.S.R.(2d) 29 (CA)

• Judge: Saunders, Oland and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 25, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 318 N.S.R.(2d) 29 (CA);2012 NSCA 48

Bellefontaine v. Slawter (2012), 318 N.S.R.(2d) 29 (CA);

    1005 A.P.R. 29

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. MY.039

Leslie Michael Slawter (appellant) v. Amanda Lynn Rose Bellefontaine, Gerald Ernest Bellefontaine, and Mary Louise Bellefontaine (respondents)

(CA 355688; 2012 NSCA 48)

Indexed As: Bellefontaine v. Slawter

Nova Scotia Court of Appeal

Saunders, Oland and Beveridge, JJ.A.

May 11, 2012.

Summary:

A couple with two children, ages six and three, separated. A 2010 consent order established joint custody, but with primary care of the girls with the mother. According to the order neither parent would locate or seek to locate outside the province without the other's consent or permission of the court. In 2011, the mother filed an application to vary the consent seeking to move with the children to be with her parents who were moving to British Columbia.

The Nova Scotia Supreme Court, in a decision reported [2011] N.S.R.(2d) Uned. 227, allowed the application, and, inter alia, awarded sole custody to the mother with supervised access for the father. The father appealed.

The Nova Scotia Court of Appeal dismissed the appeal, except for striking any mention of supervised access from the applications judge's order. In the result, the mother was granted sole custody of the children and allowed to move to British Columbia.

Courts - Topic 561

Judges - Powers - To make order not requested - [See first Family Law - Topic 2023 ].

Courts - Topic 586

Judges - Duties - Duty to hear evidence and submissions on behalf of a litigant - [See first Family Law - Topic 2023 ].

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare or best interests of child paramount - [See second Family Law - Topic 2092 ].

Family Law - Topic 1947

Custody and access - Variation of custody and access rights - Changed circumstances - General - [See Family Law - Topic 1948 ].

Family Law - Topic 1948

Custody and access - Variation of custody and access rights - Change of residence of child - A mother applied to vary a joint custody order, seeking to move to British Columbia with the children - The applications judge found that a material change of circumstances had been established (i.e., father had not followed the parenting arrangement, had been convicted of uttering threats to the mother, the mother was emotionally and financially dependent on her parents who were moving to British Columbia and the father had diabetes and dementia) - The best interests of the children dictated that the mother be granted sole custody and be permitted to move with them to British Columbia - The father appealed, arguing that the applications judge erred in ordering sole custody and permitting the move - The Nova Scotia Court of Appeal rejected this ground of appeal - The applications judge directed himself on the appropriate principles - The findings were amply supported by the record - See paragraphs 1 to 19.

Family Law - Topic 1950

Custody and access - Variation of custody and access rights - Change circumstances of parents - [See Family Law - Topic 1948 ].

Family Law - Topic 1951

Custody and access - Variation of custody and access rights - Welfare of child - [See Family Law - Topic 1948 and second Family Law - Topic 2092 ].

Family Law - Topic 2023

Custody and access - Access - Access awards - Supervised access - A mother applied to vary a joint custody order, seeking to move to British Columbia with the children - The applications judge allowed the application, awarding sole custody to the mother with supervised access for the father at his mother's home for a minimum of two weeks each calendar year - The father appealed, arguing that he was denied procedural fairness as there was no indication at the hearing that the judge was considering supervised access - The Nova Scotia Court of Appeal accepted this ground of appeal and struck any mention of supervised access from the custody order - The court stated that while a court had jurisdiction to impose restrictions on access in the best interests of a child, it would be a rare and exceptional circumstance that restrictions would be ordered absent appropriate notice to the parties - It was an error of law for the judge not to have alerted the father that he was contemplating supervised access - The father was prejudiced by that oversight - He had no opportunity to cross examine, lead evidence or make submissions on that issue - See paragraphs 20 to 34 and 39 to 57.

Family Law - Topic 2023

Custody and access - Access - Access awards - Supervised access - The Nova Scotia Court of Appeal reviewed the considerations to be considered in awarding supervised access - See paragraphs 39 to 55.

Family Law - Topic 2092

Custody and access - The hearing - Procedural fairness - [See first Family Law - Topic 2023 ].

Family Law - Topic 2092

Custody and access - The hearing - Procedural fairness -The Nova Scotia Court of Appeal (Beveridge, J.A.) discussed the relationship between the best interests of the children and procedural fairness in the family law context - The court stated that "It stands to reason that if the best interests of the child are paramount then the interests of others, including parents, must be secondary. But, in my view, the ultimate goal of making a decision that promotes the best interests of the children does not make procedural fairness a poor cousin to be sacrificed along the way. There are important practical and policy reasons for this ..." - See paragraphs 21 to 33.

Family Law - Topic 2181

Custody and access to children - Practice - Parties - A mother applied to vary a joint custody order, seeking to move to British Columbia with the children - The applications judge allowed the application, awarding sole custody to the mother with access for the father - The order was conditional on the maternal grandparents becoming parties to the proceedings as a way to address the fact that neither the father or mother had the financial ability to cover travel costs of exercising access - The father appealed, arguing that the joinder of the grandparents constituted an error - He complained that he was unaware that the trial judge intended to do this until the end of the hearing and therefore was not able to seek production of the grandparents' financial information - The Nova Scotia Court of Appeal rejected this ground of appeal - The evidence was clear that the grandparents had provided financial assistance to the mother and children and would continue to do so - There was no prejudice to the father - In any event, the father consented to the joinder - See paragraphs 35 to 38.

Cases Noticed:

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161, refd to. [para. 17].

Cameron v. Cameron (2006), 245 N.S.R.(2d) 85; 777 A.P.R. 85; 2006 NSCA 76, refd to. [para. 17].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 18].

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201, refd to. [para. 18].

Homburg Canada Inc. v. Nova Scotia Utility and Review Board et al. (2010), 289 N.S.R.(2d) 250; 916 A.P.R. 250; 2010 NSCA 24, refd to. [para. 18].

Nova Scotia (Minister of Community Services) v. N.N.M. and R.D.M. (2008), 268 N.S.R.(2d) 109; 857 A.P.R. 109; 2008 NSCA 69, refd to. [para. 18].

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 19].

Goslin v. Goslin (1986), 4 R.F.L.(3d) 223 (Ont. C.A.), refd to. [para. 21].

K.M.W. v. L.J.W. (2010), 297 B.C.A.C. 262; 504 W.A.C. 262; 2010 BCCA 572 (C.A.), refd to. [para. 23].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 24].

Children and Family Services for York Region v. E.T. et al., [2009] O.T.C. Uned. V57 (Sup. Ct.), refd to. [para. 24].

Brundrett v. Brundrett (1998), 212 A.R. 11; 168 W.A.C. 11; 1998 ABCA 2, refd to. [para. 26].

Ferrara v. Trafford (1987), 77 N.B.R.(2d) 358; 195 A.P.R. 358; 7 R.F.L.(3d) 151 (C.A.), refd to. [para. 27].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 39].

Rafuse v. Handspiker (2001), 190 N.S.R.(2d) 64; 594 A.P.R. 64; 2001 NSCA 1, refd to. [para. 42].

MacKay v. Murray (2006), 245 N.S.R.(2d) 261; 777 A.P.R. 261; 2006 NSCA 84, refd to. [para. 42].

Weeks v. Weeks (2009), 286 Nfld. & P.E.I.R. 78; 883 A.P.R. 78; 2009 PECA 13, refd to. [para. 42].

C.B. v. E.C.C. (2002), 166 O.A.C. 44; 31 R.F.L.(5th) 242 (C.A.), leave to appeal refused [2003] S.C.C.A. No. 14; 314 N.R. 398, refd to. [para. 42].

Paul v. Pettie, [2009] N.S.R.(2d) Uned. 199; 2009 NSSC 334, refd to. [para. 42].

V.S.J. v. L.J.G., [2004] O.T.C. 460 (Sup. Ct.), refd to. [para. 44].

K.M.E. v. D.M.Z., [1996] B.C.J. No. 464 (S.C.), refd to. [para. 44].

B.P.M. v. B.L.D.E.M. (1992), 59 O.A.C. 19; 42 R.F.L.(3d) 349 (C.A.), leave to appeal refused (1993) 157 N.R. 348; 65 O.A.C. 290 (S.C.C.), refd to. [para. 44].

Merkand v. Merkand, [2006] O.A.C. Uned. 48 (C.A.), leave to appeal refused (2006), 356 N.R. 398 (S.C.C.), refd to. [para. 44].

Crews v. Daigle (1992), 110 N.S.R.(2d) 75; 299 A.P.R. 75 (N.S. Fam. Ct.), refd to. [para. 45].

Lewis v. Lewis (2005), 236 N.S.R.(2d) 245; 749 A.P.R. 245; 2005 NSSC 256, refd to. [para. 47].

A.L.M. v. K.H., [2004] B.C.T.C. 1420; 2004 BCSC 1420, refd to. [para. 53].

Greenough v. Greenough, [2003] O.J. No. 4415 (Sup. Ct.), refd to. [para. 54].

Murphy v. Wyatt, [2011] E.W.C.A. Civ. 408, refd to. [para. 55].

Counsel:

Alex Embree, for the appellant;

Shelley Hounsell-Gray, for the respondent, Amanda Lynn Rose Bellefontaine;

Gerald Ernest Bellefontaine and Mary Louise Bellefontaine, no one appearing.

This appeal was heard on January 25, 2012, before Saunders, Oland and Beveridge, JJ.A., of the Nova Scotia Court of Appeal. The decision of the court was delivered on May 11, 2012, by Beveridge, J.A.