C.W. v. E.R., (1987) 82 N.B.R.(2d) 34 (FD)

• Judge: Deschênes, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: August 12, 1987
• Jurisdiction: New Brunswick
• Citations: (1987), 82 N.B.R.(2d) 34 (FD)

C.W. v. E.R. (1987), 82 N.B.R.(2d) 34 (FD);

    82 R.N.-B.(2e) 34; 208 A.P.R. 34

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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C.W. v. E.R.

(FDN-197-86)

Indexed As: C.W. v. E.R.

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Newcastle

Deschênes, J.

August 12, 1987.

Summary:

C.W. gave birth to a daughter in 1981 at the age of 17 years. C.W. lived with her mother, E.R., in Ontario. Since the fall of 1981, when C.W. moved out of the house, E.R. had custody of the child. E.R. moved to New Brunswick with the child in 1982. C.W. subsequently married and applied for custody of the child in Ontario in 1984.

The Ontario Provincial Court awarded E.R. custody of the child.

In 1986 C.W. applied in New Brunswick for custody of the child. The New Brunswick Court of Queen's Bench, Family Division, in a decision unreported in this series of reports, allowed the application and granted C.W. custody of the child. E.R. applied for and was granted a stay of proceedings pending an appeal.

On appeal the trial judge's decision was set aside and a new trial ordered before another judge.

The New Brunswick Court of Queen's Bench, Family Division, in the following decision, awarded E.R. custody of the child. The court stated that it was in the best interest of the child that she live with E.R. The court stated that the benefits of the child's close relationship with E.R. outweighed the advantages of living with C.W., her natural mother.

Family Law - Topic 1881

Custody - Children - Considerations - Welfare of child paramount - C.W. gave birth to a daughter in 1981 at the age of 17 years - C.W.'s mother, E.R., had custody of the child for most of the child's first six years - Child had little attachment to C.W., considered E.R. her mother - C.W. married and applied for custody of the child in 1986 - The New Brunswick Court of Queen's Bench, Family Division, dismissed the application - The court held that it was in the best interest of the child that she reside with E.R.

Family Law - Topic 1881

Custody - Children - Considerations - Welfare of child paramount - The New Brunswick Court of Queen's Bench, Family Division, discussed the elements to consider when determining the best interest of a child pursuant to s. 1 of the Family Services Act - See paragraphs 54 to 78.

Family Law - Topic 1893

Custody - Children - Considerations - Contest between parents and non-parents - C.W. gave birth to a daughter in 1981 at the age of 17 years - C.W.'s mother, E.R. had custody of the child for most of the child's first six years - Child had little attachment to C.W., considered E.R. her mother - C.W. married and applied for custody of the child in 1986 - The New Brunswick Court of Queen's Bench, Family Division, dismissed the application - The court discussed principles applicable in a custody contest between parents and non-parents - The court stated that "in a case involving a contest for custody of a child between the mother of a child and a non-parent, the court has a statutory obligation to dispose of it solely on the best interests of the child as defined in s. 1 of the Family Services Act" - See paragraphs 42 to 53.

Family Law - Topic 1893

Custody - Children - Considerations - Contest between parents and non-parents - The New Brunswick Court of Queen's Bench, Family Division, stated that in a contest between parents and non-parents for the custody of a child, the court will consider the ties between a parent and child - The court stated that parents stand a risk of losing custody of their children if a non-parent can establish that it would be in the best interest of the child that the non-parent have custody - See paragraphs 48 to 53.

Cases Noticed:

Martin v. Duffell, [1950] S.C.R. 737, consd. [para. 43].

Hepton v. Maat, [1957] S.C.R. 606, consd. [para. 43].

Logue v. Burrell (1971), 3 R.F.L. 63 (C.A.), refd to. [para. 46].

Caruara, Re (1970), 3 R.F.L. 70 (C.A.), refd to. [para. 46].

Moores and Fieldstein, Re (1973), 38 D.L.R.(3d) 641, consd. [para. 47].

Wiltshire v. Wiltshire (1975), 20 R.F.L. 50, consd. [para. 48].

Levesque v. Levesque (1983), 46 N.B.R.(2d) 184; 121 A.P.R. 184, refd to. [para. 50].

Statutes Noticed:

Family Services Act, S.N.B. 1980, c. F-2.2, sect. 1 [paras. 50, 54]; sect. 129(2) [paras. 49, 52]; sect. 130.3(1)(a) [para. 83].

Counsel:

Barbara L. Baird, for the applicant, C.W.;

Denis Lordon, for the respondent, E.R.

This application was heard on July 20 to 22, 1987, before Deschênes, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Newcastle, who delivered the following judgment on August 12, 1987: