Doncaster v. Field, (2013) 330 N.S.R.(2d) 105 (SC)

• Judge: Bourgeois, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 01, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 330 N.S.R.(2d) 105 (SC);2013 NSSC 149

Doncaster v. Field (2013), 330 N.S.R.(2d) 105 (SC);

    1046 A.P.R. 105

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. MY.038

Ralph Doncaster (applicant) v. Jennifer Field (respondent)

(Tru. No. 1207-003679 (079303); 2013 NSSC 149)

Indexed As: Doncaster v. Field

Nova Scotia Supreme Court

Bourgeois, J.

May 7, 2013.

Summary:

Doncaster was the petitioner in a divorce proceeding with his spouse, Field. The court undertook an interim hearing relating to custody and access issues. After hearing evidence and submissions over five days, the court addressed the parties on December 19, 2012 and reserved decision. A written decision was released on March 7, 2012. The re-initiation of access by Doncaster, via correspondence, was to be facilitated by the children's therapist (Bird). An order had not, as yet, been issued. Doncaster moved for an order directing Bird to comply with the Court's "decision". Field and Bird sought a dismissal of the motion.

The Nova Scotia Supreme Court dismissed the motion. There was no enforceable decision in place, either by virtue of the court's December 19, 2012 oral comments, or by virtue of the March 7, 2013 written decision. Rule 78.03(1) was ultimately determinative of the issue. The court varied the March 7, 2013 written decision by removing reference to Doncaster exercising access by letter. "A review of this access decision shall not be undertaken for at least a minimum of three months from the date of issuance of the Court's order."

Family Law - Topic 2160

Custody and access - Enforcement of orders - General - In the context of a divorce proceeding, an interim hearing related to custody and access issues - After hearing evidence and submissions, the court addressed the parties on December 19, 2012, and reserved decision - A written decision was released on March 7, 2012 - The re-initiation of the father's access, via correspondence, was to be facilitated by the children's therapist (Bird) - An order had not, as yet, been issued - The father moved for an order directing Bird to comply with the "decision" - The Nova Scotia Supreme Court dismissed the motion - Rule 78.03(1) was ultimately determinative: "78.03(1) An order must be in writing, except directions and a ruling may be given orally and other kinds of orders may be given orally if the order is to be enforced before a written order can be made." - "An oral direction can be enforceable if the Court intends it to be prior to a written decision being issued. Absent such intent, a decision or direction is enforceable upon a written order being issued. This is consistent not only with the above rule, but the jurisprudence." - The court's comments on December 19, 2012, were not intended to be enforceable against either party or Bird - Further, until a written order was issued, the written decision also remained unenforceable - See paragraphs 17 to 26.

Practice - Topic 5454

Judgments and orders - Operation and effect of judgment and orders - Oral judgments or orders - [See Family Law - Topic 2160 ].

Practice - Topic 5943

Judgments and orders - Enforcement of orders - Conditions precedent - [See Family Law - Topic 2160 ].

Cases Noticed:

MacDonald v. MacDonald - see MacLellan v. MacDonald.

MacLellan v. MacDonald (2010), 290 N.S.R.(2d) 317; 920 A.P.R. 317; 2010 NSCA 34, refd to. [para. 19].

Burke v. Sitser et al. (2002), 208 N.S.R.(2d) 337; 652 A.P.R. 337; 2002 NSCA 115, refd to. [para. 34].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 78.03(1) [para. 21].

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 Doncaster, applicant, on his own behalf;

Janet Stevenson, on behalf of the respondent;

Roderick (Rory) H. Rogers, Q.C., on behalf of Deborah Bird.

This motion was heard on May 1, 2013, in Truro, Nova Scotia, before Bourgeois, J., of the Nova Scotia Supreme Court, who delivered the following decision on May 7, 2013.