Davis v. Davis, (2016) 379 Nfld. & P.E.I.R. 58 (NLTD(F))

JudgeFitzpatrick, J.
CourtSupreme Court of Newfoundland and Labrador (Canada)
Case DateNovember 13, 2015
JurisdictionNewfoundland and Labrador
Citations(2016), 379 Nfld. & P.E.I.R. 58 (NLTD(F))

Davis v. Davis (2016), 379 Nfld. & P.E.I.R. 58 (NLTD(F));

    1176 A.P.R. 58

MLB headnote and full text

Temp. Cite: [2016] Nfld. & P.E.I.R. TBEd. JA.038

Scottina Davis (applicant) v. Scott Davis (respondent)

(201302F0411; 2016 NLTD(F) 2)

Indexed As: Davis v. Davis

Newfoundland and Labrador Supreme Court

Trial Division (Family)

Fitzpatrick, J.

January 29, 2016.

Summary:

The parties were married in 1999 and separated in 2013. Their three children (aged 15, 13 and 12) had lived with the mother since separation. Both parties sought sole custody of the youngest child. The father sought joint custody of the two oldest children and an order encouraging them to have access with him. Also at issue were child support and the disposition of a cabin property.

The Newfoundland and Labrador Supreme Court, Trial Division (Family), granted the mother sole custody of all three children. The father was granted access to the youngest child three out of every four weekends. The father was ordered to pay the Guidelines amount of child support. The court ordered that the market value for the cabin property be determined and that the wife be given the first opportunity to purchase the property.

Contracts - Topic 1464

Formation of contract - Intention - Family agreements - [See Family Law - Topic 3202 ].

Family Law - Topic 2002

Custody and access - Access - Access to teenagers - [See Family Law - Topic 2072 ].

Family Law - Topic 2009

Custody and access - Access - Access awards - General - [See Family Law - Topic 2072 ].

Family Law - Topic 2072

Custody and access - Joint custody - When available - The parties separated in 2013 - Their three children (aged 15, 13 and 12) had lived with the mother since separation - They relocated from Conception Bay South to Mount Pearl - The parties' relationship was extremely acrimonious - They only communicated by email or text - Both parties sought sole custody of the youngest child (Jesse) - The father sought joint custody of the two oldest children and an order encouraging them to have access with him - The Newfoundland and Labrador Supreme Court, Trial Division (Family), granted the mother sole custody of all three children - This was in the children's best interests given the high level of conflict and the children's ages - The court declined to add a clause regarding access to the two oldest children - They were not completely estranged from the father - They had recently completed counselling and were doing well - If they wanted to see the father, they could and would contact him - The father was granted access to Jesse three out of every four weekends - Although the mother suggested that the father have access every weekend, Jesse needed some weekend time with his siblings and new classmates in Mount Pearl - See paragraphs 59 to 73.

Family Law - Topic 3202

Separation agreements, domestic contracts and marriage contracts - General - What constitutes - The parties separated - At issue was the disposition of a cabin and adjoining land - The cabin had been in the wife's family since her childhood - Both parties conceded that it was matrimonial property - The husband argued that a series of emails exchanged between the parties formed a contract in which the wife agreed to sell the property to the husband for $6,500 - The Newfoundland and Labrador Supreme Court, Trial Division (Family), held that the email exchange did not form a contract because there was insufficient detail and it was not clear what was intended - The wife's language indicated that she believed that she was the purchaser - The court ordered that a market value for the property be determined and, as requested by the wife and supported by the husband, that the wife be given the first opportunity to purchase the property - See paragraphs 74 to 89.

Family Law - Topic 4045.6

Divorce - Corollary relief - Maintenance - Child support guidelines - Exceptions and exemptions (incl. undue hardship) - The parties separated in 2013 - Their three children had lived with the mother since separation - The father had not paid any child support - He claimed undue hardship - The father was a carpenter - He earned approximately $34,394 in 2014 - His expenses included, inter alia, a mortgage payment of $560/month and $500/month for gas - The Newfoundland and Labrador Supreme Court, Trial Division (Family), ordered the father to pay the Guidelines amount of child support - The father failed to establish undue hardship - He had no debts - His living expenses were quite typical for an average person - He received his share of proceeds from the sale of the matrimonial home and chose to purchase a two bedroom home requiring a down payment rather than renting accommodations or considering a roommate - See paragraphs 46 to 58.

Counsel:

Susan M. Day, for the applicant;

Brian D. Wentzell, for the respondent.

This matter was heard at St. John's, N.L., on October 20 and 21, and November 13, 2015, before Fitzpatrick, J., of the Newfoundland and Labrador Supreme Court, Trial Division (Family), who delivered the following reasons for judgment on January 29, 2016.

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