Blanchette v. Blanchette, (1976) 1 A.R. 75 (CA)

• Judge: Clement, Moir and Haddad, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 28, 1976
• Citations: (1976), 1 A.R. 75 (CA)

Blanchette v. Blanchette (1976), 1 A.R. 75 (CA)

MLB headnote and full text

Blanchette v. Blanchette

Indexed As: Blanchette v. Blanchette

Alberta Supreme Court

Appellate Division

Clement, Moir and Haddad, JJ.A.

September 28, 1976.

Summary:

This case arose out of a divorce and an order granting corollary relief which awarded the custody of the only child of the marriage to the mother. The divorce proceedings were uncontested. Later the mother consented to a court order which granted custody of the child to the father. In a subsequent hearing a judge awarded custody of the child to the father. The mother then appealed.

On appeal to the Alberta Court of Appeal the appeal was dismissed and the order of the trial judge was affirmed.

The Alberta Court of Appeal stated that a court of appeal should interfere with an order of a trial judge in custody cases only for "the most impelling reasons" - see paragraph 10.

Family Law - Topic 4064

Divorce - Corollary relief - Custody of children - Variation of custody order - Divorce Act, s. 11(2) - The Alberta Court of Appeal stated that the jurisdiction of a court to vary a custody order under s. 11(2) must be based on a change in the conduct of the parties - The Alberta Court of Appeal stated that s. 11(2) does not confer on trial judges a right of rehearing respecting custody cases - See paragraph 7.

Family Law - Topic 4065

Divorce - Corollary relief - Custody of children - Conduct necessary to support a variation of a custody order - A wife successfully petitioned for divorce and was awarded custody of the only child of the marriage - The proceedings were uncontested - Later the wife consented to a court order granting custody of the child to the father - The Alberta Court of Appeal held that such a consent by the wife constituted a change in circumstances sufficient to support a variation of the custody order - See paragraphs 8 and 13.

Family Law - Topic 4071

Divorce - Corollary relief - Custody of children - Appeals - The Alberta Court of Appeal stated that a court of appeal should interfere with a custody order of a trial judge only for the "most impelling reasons" - See paragraph 10.

Cases Noticed:

Breau v. Breau (1973), 10 R.F.L. 391, folld. [para. 7].

Wesson v. Wesson (1973), 10 R.F.L. 193, folld. [para. 7].

Alty, Alty v. Phillips and Phillips (1961), 27 D.L.R. 298, folld. [para. 9].

Genest v. Genest (1970), 73 W.W.R. 81, folld. [para. 10].

Statutes Noticed:

Divorce Act, R.S.C. 1970, c. D-8, sect. 11(2) [para. 6].

Counsel:

J.M. McBean, for the appellant;

B.R. Game, for the respondent.

Judgment was delivered by the Alberta Court of Appeal on September 28, 1976 and the following opinions were filed:

MOIR, J.A. - see paragraphs 1 to 11.

CLEMENT, J.A. - see paragraphs 12 and 13.

HADDAD, J.A., concurred with CLEMENT, J.A.