C., An Infant, Re, (1970) 2 N.B.R.(2d) 806 (CA)

• Judge: Bridges, C.J.N.B., Hughes, J.A., Limerick, J.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: March 23, 1970
• Jurisdiction: New Brunswick
• Citations: (1970), 2 N.B.R.(2d) 806 (CA)

C., Re (1970), 2 N.B.R.(2d) 806 (CA);

    2 R.N.-B.(2e) 806

MLB headnote and full text

Sommaire et texte intégral

Re C., An Infant

Indexed As: C., An Infant, Re

Répertorié: C., An Infant, Re

New Brunswick Court of Appeal

Bridges, C.J.N.B., Hughes, J.A., Limerick, J.A.

June 25, 1970.

Summary:

Résumé:

The New Brunswick Court of Appeal dismissed the appeal and affirmed the trial court award of custody of a three year old infant to a mother where the father was dead. The paternal grandmother had placed the child in her brother's home which provided a good family atmosphere and the brother was willing and able to provide the resources necessary for the proper upbringing of the child. The natural mother of the three year old infant was 18 years old and she had a limited education and limited resources.

The New Brunswick Court of Appeal held that the mother of a child of tender years has upon the death of the father of such child a common law right to its custody unless the mother has forfeited such right by misconduct. Held that the mother was not guilty of any misconduct which would make it improper that the infant should be allowed to remain with her.

Family Law - Topic 1884

Custody and access - Considerations in awarding custody - Tender years doctrine - Principles applicable to award of custody of an infant where contest is between 18 year old mother without appreciable resources and a non-parent with appreciable resources - Mother awarded custody (New Brunswick Court of Appeal).

Habeas Corpus - Topic 3061

Practice - Hearing on issue of writ - General - Application for writ of habeas corpus - Held by the New Brunswick Court of Appeal that judge was justified in holding a hearing on the merits on the return of the writ of habeas corpus.

Habeas Corpus - Topic 3065

Practice - Hearing on issue of writ - Affidavits - Application for writ of habeas corpus - Use of affidavits at hearing - Held by the New Brunswick Court of Appeal that application before judge is not an interlocutory motion and affidavits containing statements on information and belief are inadmissible - Rules of Court, Order 38, rule 3.

Cases Noticed:

Gilbert v. Endean (1878), 9 Ch. D. 259, folld.

Rossage v. Rossage and Others, [1960] 1 All E.R. 600, folld.

Re Agar-Ellis v. Lascelles (1883), 24 Ch. D. 317, folld.

Re O'Hara, [1900] 2 I.R. 232, folld.

Re Flynn, 2 DeG. & S. 457; 64 E.R. 205, folld.

Re J.M. Carroll (an infant), [1931] 1 K.B. 317, folld.

Re Hatfield, 1 N.B. Eq. 142, folld.

Re Cullinane (an infant), [1954] I.R. 270, folld.

R. v. Clarke, 7 E. & B. 186; 119 E.R. 1217, folld.

Mugford v. Children's Aid Society of Ottawa, [1969] S.C.R. 641, folld.

Statutes Noticed:

Judicature Act, R.S.N.B. 1952, c. 120, sect. 37.

Habeas Corpus Act, R.S.N.B. 1952, c. 101, sect. 2.

Rules of Court, Order 38, rule 3.

Counsel:

James D. Harper, in support of motion;

David Clark, with Donald Stevens, in opposition.

APPEAL from a judgment of Dixon, J., March 23, 1970, 2 N.B.R.(2d) 574.

Judgment of the Court was delivered by Hughes, J.A.: