Cairns v. Cairns, (1995) 159 N.B.R.(2d) 264 (CA)

• Judge: Hoyt, C.J.N.B., Ayles and Turnbull, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 01, 1995
• Jurisdiction: New Brunswick
• Citations: (1995), 159 N.B.R.(2d) 264 (CA)

Cairns v. Cairns (1995), 159 N.B.R.(2d) 264 (CA);

    159 R.N.-B.(2e) 264; 409 A.P.R. 264

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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Dennis Cairns (respondent/appellant) v. Eileen Mae Cairns (applicant/respondent)

(117/94/CA)

Indexed As: Cairns v. Cairns

New Brunswick Court of Appeal

Hoyt, C.J.N.B., Ayles and Turnbull, JJ.A.

February 1, 1995.

Summary:

A custodial mother applied to have the father's access terminated or, alternatively, restricted. The father applied to enforce the existing order, claiming the mother was in contempt for denying him access.

The New Brunswick Court of Queen's Bench, Family Division, in a judgment reported 145 N.B.R.(2d) 86; 372 A.P.R. 86, restricted the father's weekly access to two hours under supervision. The court did not deal with the contempt applications. The father appealed.

The New Brunswick Court of Appeal dismissed the appeal. The court affirmed the result, where there was a material change in circumstances justifying the supervised access ordered. The trial judge did err in failing to deal with the contempt applica­tions. However, since the matter would be before the trial judge again shortly, the court directed that the trial judge rule on the contempt applications at that time.

Courts - Topic 584

Judges - Duties - To determine issues - A custodial mother applied to eliminate or reduce the father's access to their daughter - The father sought to enforce existing access, claiming the mother was in con­tempt for failing to comply - The trial judge allowed the mother's application, but did not deal with the contempt issue - The New Brunswick Court of Appeal held that the trial judge erred in failing to resolve the issue - However, since the matter was to be before the trial judge again very shortly, the court directed that the trial judge rule on the contempt applications at that time.

Family Law - Topic 1947

Custody and access - Variation of custody and access rights - Changed circumstances - [See Family Law - Topic 1951 ].

Family Law - Topic 1951

Custody and access - Variation of custody and access rights - Welfare of child - A father had access to his daughter on days off work plus specified access - The daughter often slept with her father, because she feared the dark - The father frequently used profane and degrading language towards the mother - The daughter witnessed an altercation between her parents and saw the father assault the mother - She refused to go with the father - Subsequent access was supervised - The trial judge restricted the father's access to two hours of supervised access per week, where the violence, verbal abuse and sleeping arrangements constituted a change in circumstances such that the best inter­ests of the child necessitated a change - The New Brunswick Court of Appeal affirmed the supervised access ordered, because it was justified by the material change in circumstances.

Counsel:

Howard T. Myatt, for the appellant;

Ann E. Wheeler, for the respondent.

This appeal was heard on January 24, 1995, before Hoyt, C.J.N.B., Ayles and Turnbull, JJ.A., of the New Brunswick Court of Appeal.

On February 1, 1995, the following judg­ment was delivered by the court.