Doncaster v. Field, (2014) 344 N.S.R.(2d) 63 (CA)

• Judge: MacDonald, C.J.N.S., Oland and Farrar, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 13, 2013
• Jurisdiction: Nova Scotia
• Citations: (2014), 344 N.S.R.(2d) 63 (CA);2014 NSCA 39

Doncaster v. Field (2014), 344 N.S.R.(2d) 63 (CA);

    1089 A.P.R. 63

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. AP.036

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

(CA 413485; 2014 NSCA 39)

Indexed As: Doncaster v. Field

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Oland and Farrar, JJ.A.

April 15, 2014.

Summary:

The Nova Scotia Supreme Court, in a decision reported at [2013] N.S.R.(2d) Uned. 51, ordered that Ms. Field have sole custody of the four children of the marriage, ranging from 13 to 8 years of age. The Court denied Mr. Doncaster any access or contact, or any information from third party providers regarding the children. The Court determined that Doncaster, who had not seen the children (by court order) in over a year, suffered from Attention Deficit Hyperactivity Disorder which led to "impulsivity, lack of tolerance and angry outbursts" which required appropriate medication and monitoring to control. In a decision reported at (2013), 332 N.S.R.(2d) 398; 1052 A.P.R. 398, Doncaster was ordered to pay costs of $16,745.60. Doncaster appealed regarding access and costs, and moved to introduce fresh evidence.

The Nova Scotia Court of Appeal dismissed the fresh evidence motion and the appeal.

Family Law - Topic 1900

Custody and access - Considerations in awarding custody - Maximum contact with each parent - [See first and second Family Law - Topic 2004 ].

Family Law - Topic 1916

Custody and access - Appeals - Standard of review - The Nova Scotia Court of Appeal stated that "[t]o a large extent, custody and access decisions are fact-based and discretionary. A trial judge has the enormous advantage of observing, hearing and assessing the parties and witnesses first hand. She or he must consider the unique circumstances of the particular child or children involved and the factors, both positive and negative, which can affect them. This Court does not retry the case. It will not interfere with custody and access decisions unless there is material error, a serious misapprehension of the evidence or an error in law." - See paragraph 53.

Family Law - Topic 1920

Custody and access - Appeals - Admission of "new evidence" - The grounds of appeal claimed legal error in failing to grant access - The Nova Scotia Court of Appeal dismissed the appellant's motion to admit fresh evidence - "Much of the case law in family law on the admissibility of fresh evidence after trial arises in child protection cases. ... This, however, is not a child protection case. Whether the modified Palmer test applies where an appellant seeks to demonstrate a change of circumstances following trial is less clear." - In this case, it was not necessary that the court determine whether the flexible Palmer test should be applied, as the contents of the fresh evidence were not relevant to the grounds of appeal nor could they have affected the result - See paragraphs 43 to 50.

Family Law - Topic 1991

Custody and access - Access - Considerations in awarding access - Welfare of child - [See all Family Law - Topic 2004 ].

Family Law - Topic 1991.2

Custody and access - Access - Considerations in awarding access - Risk of future harm - [See all Family Law - Topic 2004 ].

Family Law - Topic 1994

Custody and access - Access - Considerations in awarding access - Conduct of parents - [See all Family Law - Topic 2004 ].

Family Law - Topic 2004

Custody and access - Access - Grounds for refusal, restriction or variation of access - The Nova Scotia Court of Appeal stated that "Courts are hesitant to totally deny access to the non-custodial parent. ... [C]ontact between a child and each parent is seen as desirable. The significance of the maximum contact principle embedded in s. 16(10) is apparent: it is the single factor a judge must consider in deciding custody and access. A complete denial of access has been ordered only infrequently, where the behaviours of the parent seeking access were extreme, access would place the child at risk of emotional or physical harm, or access was otherwise not in the best interests of the child. Each case is unique and driven by its specific facts." - The Court referred to cases that illustrated the behaviours or situations that had led to the determination that access would not be in the child's best interests - See paragraphs 55 to 57.

Family Law - Topic 2004

Custody and access - Access - Grounds for refusal, restriction or variation of access - The order which was the subject of this appeal read in part that the appellant father "shall have no access or any contact, direct or indirect, with the children of the marriage or receive information from third party providers regarding the children of the marriage." - The appellant argued that the judge erred by failing to apply the maximum contact principle in s. 16(10) of the Divorce Act - The Nova Scotia Court of Appeal rejected the argument - The record showed that the judge "was well aware of s. 16(10) and strove to find a way to start normalizing relations between the children and their father" - The judge's decision was founded on evidence that the appellant had "acted in a volatile and unpredictable fashion towards, or in the presence of, the children" - The judge determined that the appellant suffered from Attention Deficit Hyperactivity Disorder which led to "impulsivity, lack of tolerance and angry outbursts" which required appropriate medication and monitoring to control - The appellant had caused physical or emotional harm to the children - The children were angry, frustrated and humiliated by their father's behaviour - The judge correctly stated that the best interests of the children was the Court's paramount consideration - See paragraphs 59 to 63.

Family Law - Topic 2004

Custody and access - Access - Grounds for refusal, restriction or variation of access - The appellant argued that, unless the trial judge had found that access would create a "substantial" risk of harm, there was no justification for denying him any access - The Nova Scotia Court of Appeal stated that it was not essential that the judge use the adjective "substantial" or similar wording in order to deny access - "Certainly, the risk of harm is one of the factors to be considered in deciding custody and access. However, it is not determinative. ... [W]hile reducing a child's risk of harm should be beneficial, 'the best interests of the child' concept is broader. It requires a more fulsome assessment than simply assessing whether there is any risk of harm and, if so, how great or small it may be" - The cases where access was completely prohibited often featured threats or acts of intentional violence - "However, the courts have not relied on a finding of 'substantial risk of harm' to ground their decisions. That phrase is often not explicit in the decisions. Even the word 'harm' does not always appear. Rather, each judge examined all the circumstances of the particular case, and ultimately determined that access was not in the best interests of the child." - See paragraphs 64 to 69.

Cases Noticed:

Haines v. Haines (2013), 343 N.S.R.(2d) 14; 1084 A.P.R. 14; 2013 NSCA 63, refd to. [para. 27].

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. 28].

MacKay v. Murray (2006), 245 N.S.R.(2d) 261; 777 A.P.R. 261; 2006 NSCA 84, refd to. [para. 29].

C.B. v. T.M., [2013] N.S.R.(2d) Uned. 87; 2013 NSCA 53, refd to. [para. 29].

T.G. v. Nova Scotia (Minister of Community Services) et al. (2012), 316 N.S.R.(2d) 202; 1002 A.P.R. 202; 2012 NSCA 43, leave to appeal denied (2012), 439 N.R. 392; 334 N.S.R.(2d) 400; 1059 A.P.R. 400 (S.C.C.), refd to. [para. 43].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 43].

Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165; 165 N.R. 161; 71 O.A.C. 81, refd to. [para. 46].

V.G. v. Catholic Children's Aid Society of Metropolitan Toronto (1985), 9 O.A.C. 398; 53 O.R.(2d) 163 (C.A.), refd to. [para. 46].

Genereux and Catholic Children's Aid Society of Metropolitan Toronto, Re - see V.G. v. Catholic Children's Aid Society of Metropolitan Toronto.

Children's Aid Society of Peel v. M.J.W. and W.W. (1995), 81 O.A.C. 56 (C.A.), refd to. [para. 47].

Shortridge-Tsuchiya v. Tsuchiya (2010), 283 B.C.A.C. 117; 480 W.A.C. 117; 2010 BCCA 61, refd to. [para. 47].

Irving v. Irving (1997), 164 N.S.R.(2d) 330; 491 A.P.R. 330 (C.A.), refd to. [para. 48].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 54].

Pereira v. Pereira, [1995] B.C.J. No. 2151 (S.C.), refd to. [para. 56].

Neill v. Best (1995), 147 N.S.R.(2d) 54; 426 A.P.R. 54 (Fam. Ct.), refd to. [para. 56].

DiMeco v. DiMeco, [1995] O.J. No. 3650 (Gen. Div.), refd to. [para. 56].

Bourque v. Jimmo, [1997] N.B.J. No. 523 (Q.B.), refd to. [para. 56].

Johnson v. Johnson, [1987] B.C.J. No. 2832 (S.C.), refd to. [para. 56].

P.F.G. v. P.D.C.L., 2000 BCSC 217, refd to. [para. 56].

Gorgichuk v. Gorgichuk (1997), 154 Sask.R. 273 (Q.B. Fam. Div.), affd. (1999), 180 Sask.R. 126; 205 W.A.C. 126 (C.A.), refd to. [para. 56].

Williams v. Ellul (1996), 88 O.A.C. 316 (C.A.), refd to. [para. 56].

R.A.T. v. I.R.D.J.T. (1990), 97 N.S.R.(2d) 176; 258 A.P.R. 176 (Fam. Ct.), refd to. [para. 57].

S.W. v. P.W., [1991] N.S.J. No. 637 (Fam. Ct.), refd to. [para. 57].

T.A.M. v. L.P.L., [2006] Sask.R. Uned. 126; 2006 SKQB 285 (Fam. Div.), refd to. [para. 57].

Nova Scotia (Minister of Community Services) v. N.L. et al., [2011] N.S.R.(2d) Uned. 228; 2011 NSSC 369 (Fam. Div.), refd to. [para. 58].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 16(10) [para. 52].

Counsel:

Ralph I. Doncaster, appellant in person;

Janet M. Stevenson, for the respondent.

This appeal was heard on November 13, 2013, in Halifax, Nova Scotia, before MacDonald, C.J.N.S., Oland and Farrar, JJ.A., of the Nova Scotia Court of Appeal. In reasons written by Oland, J.A., the Court delivered the following decision, dated April 15, 2014.