Glaspy v. Glaspy, 2011 NBCA 101

• Judge: Larlee, Bell and Quigg, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: September 13, 2011
• Jurisdiction: New Brunswick
• Citations: 2011 NBCA 101;(2011), 381 N.B.R.(2d) 137 (CA)

Glaspy v. Glaspy (2011), 381 N.B.R.(2d) 137 (CA);

    381 R.N.-B.(2e) 137; 984 A.P.R. 137

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2011] N.B.R.(2d) TBEd. NO.015

Renvoi temp.: [2011] N.B.R.(2d) TBEd. NO.015

Eddy Joseph Glaspy (appellant) v. Lynn Helen Glaspy (respondent)

(21-11-CA; 2011 NBCA 101)

Indexed As: Glaspy v. Glaspy

Répertorié: Glaspy v. Glaspy

New Brunswick Court of Appeal

Larlee, Bell and Quigg, JJ.A.

November 17, 2011.

Summary:

Résumé:

The appellant brought a motion seeking permission to pay child support directly to the parties' daughter. A motion by the respondent sought arrears of child and spousal support based on increases in the appellant's income. The appellant represented himself at the motion hearing. The motion judge converted the matter, with consent, to a settlement conference. The motion judge adjourned the hearing and directed the appellant and the respondent's counsel to another room in the courthouse with instructions to attempt to reach a settlement. The appellant and respondent's counsel emerged from their meeting with minutes of settlement they wished to place on the record. Immediately after leaving the courthouse the appellant questioned his judgment in agreeing to the settlement. He sought legal advice and filed an appeal.

The New Brunswick Court of Appeal held that the motion judge's failure to respect the audi alteram partem rule and his failure to accord the appellant the protections inherent in a judicially-directed settlement conference, resulted in an agreement to which the appellant would not have otherwise agreed. The court allowed the appeal and ordered a new hearing. The appellant was awarded costs of $2,500.

Courts - Topic 560.2

Judges - Powers - To order settlement negotiations - The appellant brought a motion seeking permission to pay child support directly to the parties' daughter - The respondent sought arrears of child and spousal support based on increases in the appellant's income - The appellant represented himself at the motion hearing - The motion judge converted the matter, with consent, to a settlement conference - The motion judge adjourned the hearing and directed the appellant and the respondent's counsel to another room in the courthouse with instructions to attempt to reach a settlement - The appellant and respondent's counsel emerged from their meeting with minutes of settlement they wished to place on the record - Immediately after leaving the courthouse the appellant questioned his judgment in agreeing to the settlement - He sought legal advice and filed an appeal - The New Brunswick Court of Appeal allowed the appeal and ordered a new hearing - The motion judge's failure to respect the audi alteram partem rule and his failure to accord the appellant the protections inherent in a judicially-directed settlement conference, resulted in an agreement to which the appellant would not have otherwise agreed - The motion judge concluded, without having heard from the appellant, that payments could not be made directly to his daughter - The appellant had the right to expect the motion judge to hear his submission before making a decision - That failure on the part of the motion judge contributed to the creation of a situation in which the appellant, a self-represented litigant, might feel unduly pressured to reach an agreement - The second error occurred when the motion judge advised the parties he was converting the hearing into a settlement conference when, in fact, no settlement conference was held - The court stated that "Settlement conferences are to be conducted under the direction of a judge in a fair manner. While that direction should not be interpreted to require the judge's presence with the parties during all of their discussions, it certainly does not permit the judge to adjourn a hearing, task an unrepresented litigant to meet with experienced legal counsel, proceed to conduct other cases and then simply endorse that which the parties subsequently agree upon".

Courts - Topic 586

Judges - Duties - Duty to hear evidence and submissions of a litigant - [See Courts - Topic 560.2 ].

Courts - Topic 588

Judges - Duties - Respecting negotiations for settlement - [See Courts - Topic 560.2 ].

Practice - Topic 9854

Settlements - Enforceability - General - [See Courts - Topic 560.2 ].

Procédure - Cote 9854

Règlements amiables - Exécution - Généralités - [Voir Practice - Topic 9854 ].

Tribunaux - Cote 560.2

Juges - Pouvoirs - Ordonner des négotiations de rེglements - [Voir Courts - Topic 560.2 ].

Tribunaux - Cote 586

Juges - Devoirs - Devoir d'entendre la preuve et les observations au nom des parties - [Voir Courts - Topic 586 ].

Tribunaux - Cote 588

Juges - Devoirs - Négociations en vue d'un rེglement - [Voir Courts - Topic 588 ].

Cases Noticed:

R. v. F.Y. (2011), 378 N.B.R.(2d) 37; 973 A.P.R. 37; 2011 NBCA 86, refd to. [para. 10].

Legal Aid Services Commission (N.B.) v. Comeau (2009), 351 N.B.R.(2d) 269; 904 A.P.R. 269; 2009 NBCA 78, refd to. [para. 10].

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201; 2002 SCC 11, refd to. [para. 10].

Moreau-Bérubé v. New Brunswick (Judicial Council) - see Conseil de la magistrature (N.-B.) v. Moreau-Bérubé.

Québec (Ministre de la Justice) v. Therrien, J., [2001] 2 S.C.R. 3; 270 N.R. 1; 2001 SCC 35, refd to. [para. 10].

Moyer v. Workplace Health, Safety and Compensation Commission (N.B.), (2008), 331 N.B.R.(2d) 122; 849 A.P.R. 122; 2008 NBCA 41, refd to. [para. 10].

Smith v. Smith (2010), 365 N.B.R.(2d) 165; 939 A.P.R. 165; 2010 NBQB 304, refd to. [para. 11].

Bell v. Bell, [2011] B.C.T.C. Uned. 212; 2011 BCSC 212, refd to. [para. 11].

Statutes Noticed:

Rules of Court (N.B.), rule 50.07, rule 50.08, rule 50.09, rule 50.14 [para. 12].

Authors and Works Noticed:

Coleman, Gene C., Procedural Fairness and Case Conferences (2004), 20 Can. J. Fam. L. 379, generally [para. 13].

Counsel:

Avocats:

David Lutz, Q.C., for the appellant;

W.S. Reid Chedore, for the respondent.

This appeal was heard on September 13, 2011, before Larlee, Bell and Quigg, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered by Bell, J.A., in both official languages, on November 17, 2011.