Gallant v. Gallant, (2009) 277 N.S.R.(2d) 265 (CA)

• Judge: Bateman, Hamilton and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 02, 2009
• Jurisdiction: Nova Scotia
• Citations: (2009), 277 N.S.R.(2d) 265 (CA);2009 NSCA 56

Gallant v. Gallant (2009), 277 N.S.R.(2d) 265 (CA);

    882 A.P.R. 265

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. JN.006

Darrell Gallant (appellant) v. Lucille Gallant (respondent)

(CA303368; 2009 NSCA 56)

Indexed As: Gallant v. Gallant

Nova Scotia Court of Appeal

Bateman, Hamilton and Fichaud, JJ.A.

June 2, 2009.

Summary:

Spouses married in 1997 and separated in 2006. The spouses entered a de facto shared custody arrangement for their three year old son. At the divorce hearing, the spouses agreed to joint custody. However, the wife sought primary care, submitting that equal sharing of their son was contrary to his best interests as, inter alia, he was exhibiting behavioural problems.

The Nova Scotia Supreme Court, in a judgment reported [2008] N.S.R.(2d) Uned. 197, awarded joint custody with primary care to the wife. The husband's time with the child was reduced to every other weekend and every Wednesday evening. The husband appealed, submitting that the trial judge erred in limiting his time with his son.

The Nova Scotia Court of Appeal dismissed the appeal.

Evidence - Topic 2266

Special modes of proof - Judicial notice - Particular matters - Books, newspapers, articles, studies, etc. - [See Evidence - Topic 7014 ].

Evidence - Topic 7014

Opinion evidence - Expert evidence - General - Textbooks and treatises and literature - Parents of a three year old son separated after nine years' marriage - They agreed to de facto shared custody (equal time sharing) - The son displayed behavioural problems which the mother attributed to equal time sharing not working - At the divorce hearing, the mother agreed to joint custody, but sought primary care and reduced time with the father - The trial judge awarded joint custody, with primary care to the mother and reduced time with the father - The Nova Scotia Court of Appeal dismissed the father's appeal - Notwithstanding that the trial judge erred in referencing textual authority not referred to by either party, there was no material error in the trial judge's ultimate decision as the textual authority had minimal impact on the decision - However, the court cautioned judges that "decisions must be based upon the evidence before the court and not influenced by resort to extrinsic aids not forming a part of the evidence" - Here, there was a single reference to the text, the text was not used as a substitute for an expert opinion and the trial judge's decision was based on the admissible evidence (i.e. text not central to the decision) - The trial judge properly considered the relevant factors and did not err in determining that it was not in the best interests of the child to continue the shared parenting regime.

Family Law - Topic 2082

Custody and access - Shared parenting - Considerations (incl. best interests of the child) - [See Evidence - Topic 7014 ].

Cases Noticed:

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; 2001 SCC 60, refd to. [para. 9].

Children's Aid Society of Cape Breton-Victoria v. A.M. (2005), 232 N.S.R.(2d) 121; 737 A.P.R. 121; 2005 NSCA 58, refd to. [para. 10].

Godfrey-Smith v. Godfrey-Smith (1997), 165 N.S.R.(2d) 245; 495 A.P.R. 245 (S.C.), refd to. [para. 11].

Nova Scotia (Minister of Community Services) v. B.F. and B.W. (2003), 219 N.S.R.(2d) 41; 692 A.P.R. 41; 2003 NSCA 119, refd to. [para. 12].

Children's Aid Society of Cape Breton-Victoria v. G.L., 2003 NSCA 112, refd to. [para. 12].

Children's Aid Society and Family Services of Colchester County v. E.Z. et al. (2007), 258 N.S.R.(2d) 311; 824 A.P.R. 311; 2007 NSCA 99, refd to. [para. 12].

Foley v. Foley (1993), 124 N.S.R.(2d) 198; 345 A.P.R. 198 (S.C.), refd to. [para. 23].

Burgoyne v. Kenny (2009), 276 N.S.R.(2d) 229; 880 A.P.R. 229; 2009 NSCA 34, refd to. [para. 24].

Counsel:

Ralph W. Ripley, for the appellant;

Candee McCarthy, for the respondent.

This appeal was heard on May 13, 2009, at Halifax, N.S., before Bateman, Hamilton and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On June 2, 2009, Bateman, J.A., delivered the following judgment for the Court of Appeal.