Kennedy v. McNamara, (1997) 167 N.S.R.(2d) 331 (FC)

• Case Date: August 27, 1997
• Jurisdiction: Nova Scotia
• Citations: (1997), 167 N.S.R.(2d) 331 (FC)

Kennedy v. McNamara (1997), 167 N.S.R.(2d) 331 (FC);

    502 A.P.R. 331

MLB headnote and full text

Temp. Cite: [1998] N.S.R.(2d) TBEd. MR.019

Tieren Kennedy (applicant) v. Michael Walter McNamara (respondent)

(F.H. No. 92-176)

Indexed As: Kennedy v. McNamara

Nova Scotia Family Court

Dyer, J.F.C.

August 27, 1997.

Summary:

Tieren Kennedy commenced proceedings under the Family Maintenance Act against Michael McNamara for specification of the custody and access terms found in a written agreement between the parties. A hearing was scheduled for August 11, 1997. Both parties appeared but the case was adjourned to August 27, 1997. On August 27, McNa­mara appeared but not Kennedy. McNamara then applied ex parte for numerous remedies on the basis that Kennedy had surreptitiously left the jurisdiction with the child who was the subject of these pro­cee­dings. McNamara sought orders "declar­ing Kennedy in default of the written agree­ment between the parties, citing Kennedy in con­tempt of the Family Court, requiring Kennedy to bring the child in person before the court, requiring immed­iate return of the child under Article 8 of the Hague Conven­tion on the Civil Aspects of International Child Abduction, for interim sole custody of the child pending further review, for costs" and for such other appro­priate relief.

The Nova Scotia Family Court dismissed both parties' applications.

Family Law - Topic 1843

Custody and access - Custody agreements - Effect of - A court registered custody agreement provided for joint custody with the child residing with her father until August 1997 and with her mother, in the United States, for the second half of the summer holidays and for the 1997-98 school year - The mother applied for "specification" of the agreement's custody and access terms - Hearing was scheduled for August 11, 1997, but was adjourned to August 27, 1997, when the father appeared but not the mother - She had left for the United States with the child - The father applied for a contempt citation against the mother, for the immediate return of the child and for sole interim custody - The Nova Scotia Family Court dismissed both parties' applications, holding that the mother had not breached the agreement - See paragraphs 17 to 32.

Family Law - Topic 2055

Custody and access - Interim custody - Removal of child from jurisdiction - [See Family Law - Topic 1843 ].

Family Law - Topic 2175

Custody and access - Enforcement of orders - Contempt proceedings - [See Family Law - Topic 1843 ].

Cases Noticed:

Thomson v. Thomson, [1994] 3 S.C.R. 551; 173 N.R. 83; 97 Man.R.(2d) 81; 79 W.A.C. 81; 6 R.F.L.(4th) 290, refd to. [para. 23].

Sutton v. Sodhi (1989), 94 N.S.R.(2d) 126; 247 A.P.R. 126 (Fam. Ct.), refd to. [para. 25].

R. v. Bunn (T.A.) (1994), 97 Man.R.(2d) 20; 79 W.A.C. 20 (C.A.), refd to. [para. 29].

Statutes Noticed:

Family Maintenance Act, R.S.N.S. 1989, c. 160, sect. 20 [para. 24]; sect. 52(3) [para. 24].

Authors and Works Noticed:

McLeod, James G., Annotation to K.(M.M.) v. M.(P.R.) (1997), 27 R.F.L.(4th) 285 (Ont. H.C.), generally [para. 23].

Counsel:

None, for the applicant;

Jody C. Rice, for the respondent.

These applications were heard on August 27, 1997, by Dyer, J.F.C., of the Nova Scotia Family Court.

Dyer, J.F.C., delivered an oral decision on August 27, 1997, and released writ­ten rea­sons on September 16, 1997.