Doncaster v. Field, 2013 NSCA 122

• Judge: Beveridge, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 24, 2013
• Jurisdiction: Nova Scotia
• Citations: 2013 NSCA 122;(2013), 336 N.S.R.(2d) 45 (CA)

Doncaster v. Field (2013), 336 N.S.R.(2d) 45 (CA);

    1063 A.P.R. 45

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. OC.072

Ralph Ivan Doncaster (appellant) v. Jennifer Lynn Field (respondent)

(CA 413485; 415700; 2013 NSCA 122)

Indexed As: Doncaster v. Field

Nova Scotia Court of Appeal

Beveridge, J.A.

October 29, 2013.

Summary:

An interim hearing related to custody and access issues in relation to the parties' four children. On July 5, 2013, Bourgeois, J., issued her formal order for interim custody and access. Sole custody was awarded to Field on an interim basis. Doncaster was denied any access or contact with the children. He was ordered to continue treatment with his family physician and psychiatrist and to follow their recommendations regarding treatment. Doncaster moved for a stay of the order, pending his appeal.

The Nova Scotia Court of Appeal, per Beveridge, J.A., dismissed the motion.

Family Law - Topic 1918

Custody and access - Appeals - Stay pending appeal - An interim hearing under the Divorce Act related to custody and access issues in relation to the parties' four children - Sole custody was awarded to the mother - The father was denied any access or contact with the children - He was ordered to continue treatment with his family physician and psychiatrist and to follow their recommendations regarding treatment - Pending his appeal, the father moved for a stay of the interim order - The Nova Scotia Court of Appeal, per Beveridge, J.A., dismissed the motion - The "three part test" was not the only test; where requests were made for stays of custody orders, a stay should only be ordered if special circumstances existed such that it would be harmful to a child's welfare if the order was acted on before the appeal could be heard - Assuming that the father had raised an arguable issue, there were two hurdles to his request for relief that he had not overcome - First, he was asking for the very relief he might be able to obtain should he ultimately be successful on his appeal; i.e., access - The second hurdle was the trial judge's decision that it was not in the best interests of the children to re-initiate access - "It is not my function on a stay motion to re-interpret, re-weigh or otherwise substitute my opinion as to what is in the children's best interests for that of the trial judge." - See paragraphs 26 to 43.

Practice - Topic 5854

Judgments and orders - Enforcement of judgments - Stay of - [See Family Law - Topic 1918 ].

Cases Noticed:

Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R.(2d) 341; 272 A.P.R. 341 (C.A.), refd to. [para. 28].

Reeves v. Reeves, [2010] N.S.R.(2d) Uned. 11; 2010 NSCA 6, refd to. [para. 30].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 90.41 [para. 27].

Rules of Civil Procedure (N.S.) - see Civil Procedure Rules (N.S.).

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.).

Counsel:

Ralph Ivan Doncaster, in person, for the appellant;

Janet Stevenson, for the respondent.

This motion was heard on October 24, 2013, in Halifax, Nova Scotia, before Beveridge, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment, with reasons, released on October 29, 2013.