D.L.J. v. D.J.L., (2009) 284 Nfld. & P.E.I.R. 316 (PEICA)

JudgeJenkins, C.J.P.E.I., McQuaid and Murphy, JJ.A.
Case DateJanuary 21, 2009
JurisdictionPrince Edward Island
Citations(2009), 284 Nfld. & P.E.I.R. 316 (PEICA);2009 PECA 6

D.L.J. v. D.J.L. (2009), 284 Nfld. & P.E.I.R. 316 (PEICA);

    875 A.P.R. 316

MLB headnote and full text

Temp. Cite: [2009] Nfld. & P.E.I.R. TBEd. MR.013

J.(D.L.) (appellant) v. L.(D.J.) (respondent)

(S1-AD-1156; 2009 PECA 6)

Indexed As: D.L.J. v. D.J.L.

Prince Edward Island Court of Appeal

Jenkins, C.J.P.E.I., McQuaid and Murphy, JJ.A.

February 20, 2009.

Summary:

Parents of a seven week old child separated and made joint parenting arrangements based on approximately equal parenting time. However, when the child was seven months old, a dispute arose. A motions judge ordered that the parties have joint custody with the mother being the primary care-giver and the father having scheduled access. The order provided also that a new access schedule would become effective when the child was 18 months old. The father appealed, arguing that the motions judge erred in law and in fact by denying the infant child equal time with his father and erred in law and exceeded jurisdiction by imposing a schedule that inferred that the interim order had to remain in place for more than one year.

The Prince Edward Island Court of Appeal allowed the appeal respecting the first ground of appeal, but rejected the second ground.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 2051

Custody and access - Interim custody - Considerations - Parents of a seven week old child separated and made joint parenting arrangements based on approximately equal parenting time - However, when the child was seven months old, a dispute arose - A motions judge ordered that the parties would have joint custody with the mother being the primary care-giver and the father having scheduled access - The father appealed, arguing that the motions judge erred in law and in fact by denying the infant child equal time with his father - The Prince Edward Island Court of Appeal allowed the appeal on this ground - The court held that the motions judge erred in principle in not taking into account the legal status quo of shared parenting of the child - In the court's view the evidence did not show a compelling reason why, in the interests of the child, the status quo should be disturbed - See paragraphs 5 to 20.

Family Law - Topic 2052

Custody and access - Interim custody - Jurisdiction - Parents of a seven week old child separated and made joint parenting arrangements based on approximately equal parenting time - However, when the child was seven months old, a dispute arose - A motions judge ordered that the parties would have joint custody with the mother being the primary care-giver and the father having scheduled access - The order provided also that a new access schedule would become effective when the child was 18 months old - The father appealed, arguing that the motions judge erred in law and in fact by denying the infant child equal time with his father and erred in law and exceeded jurisdiction by imposing a schedule that inferred that the interim order had to remain in place for more than one year - The Prince Edward Island Court of Appeal allowed the appeal respecting the first ground of appeal, but rejected the second ground - The motions judge did not exceed her jurisdiction or make an error by including the new access schedule - The court rejected the father's suggestion that issue estoppel might operate to preclude him from raising the issue again at trial - This was an interim order only which would not fetter the parties from raising the matter at trial - See paragraphs 21 to 23.

Cases Noticed:

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 6].

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. 6].

D.P. v. R.B. (2007), 271 Nfld. & P.E.I.R. 344; 826 A.P.R. 344; 2007 PESCAD 25, refd to. [para. 6].

Sypher v. Sypher (1986), 2 R.F.L.(3d) 413 (Ont. C.A.), refd to. [para. 7].

J.A.M. v. D.L.M. (2008), 326 N.B.R.(2d) 111; 838 A.P.R. 111; 42 R.F.L.(6th) 37 (C.A.), refd to. [para. 7].

Marshall v. Marshall (1998), 168 N.S.R.(2d) 48; 505 A.P.R. 48 (C.A.), refd to. [para. 16].

Kimpton v. Kimpton, [2002] O.T.C. 1070 (Sup. Ct.), refd to. [para. 16].

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. 17].

Stuyt v. Stuyt, [2006] O.T.C. Uned. C86 (Sup. Ct.), refd to. [para. 18].

Moldowan v. Moldowan (1979), 1 Sask.R. 316 (C.A.), refd to. [para. 19].

Diamond v. Western Realty Co., [1924] S.C.R. 308, refd to. [para. 22].

Fidelitas Shipping Co. v. V/O Exportchleb, [1925] 2 All E.R. 4 (C.A.), refd to. [para. 22].

Authors and Works Noticed:

Lange, Donald J., The Doctrine of Res Judicata in Canada (2nd Ed. 2004), pp. 83, 84 [para. 22].

Counsel:

Nancy L. Key, Q.C., for the appellant;

James W. Macnutt, Q.C., for the respondent.

This appeal was heard in Charlottetown, Prince Edward Island, on January 21, 2009, by Jenkins, C.J.P.E.I., McQuaid and Murphy, JJ.A., of the Prince Edward Island Court of Appeal. The following decision of the court was delivered by Jenkins, C.J.P.E.I., on February 20, 2009.

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