L.C.M. v. B.A.C., (2010) 359 N.B.R.(2d) 300 (FD)

• Judge: Walsh, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: April 13, 2010
• Jurisdiction: New Brunswick
• Citations: (2010), 359 N.B.R.(2d) 300 (FD);2010 NBQB 127

L.C.M. v. B.A.C. (2010), 359 N.B.R.(2d) 300 (FD);

    359 R.N.-B.(2e) 300; 929 A.P.R. 300

MLB headnote and full text

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: [2010] N.B.R.(2d) TBEd. AP.010

Renvoi temp.: [2010] N.B.R.(2d) TBEd. AP.010

L.C.M. (applicant) v. B.A.C. (respondent)

(FDSJ 664-09; 2010 NBQB 127; 2010 NBBR 127)

Indexed As: L.C.M. v. B.A.C.

Répertorié: L.C.M. v. B.A.C.

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Saint John

Walsh, J.

April 13, 2010.

Summary:

Résumé:

The unmarried parties separated after a six year relationship. They both sought sole custody of their seven year old son. The mother alleged that the father posed such a risk to the child that only supervised access should be given to him. The father alleged that the mother had alienated the child's feelings toward him.

The New Brunswick Court of Queen's Bench, Family Division, granted the mother sole custody and granted the father unsupervised access but with several conditions. The father was ordered to pay child support. The mother was awarded solicitor and client costs due the the father's conduct.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 1889

Custody and access - Considerations in awarding custody - Capacity or conditions of parents - The unmarried parties separated after a six year relationship - They had a seven year old son - The mother had been the child's primary caregiver since birth - The father was described as eccentric and held strong religious beliefs (incl. "end of world" beliefs) - The mother alleged that the father sexually assaulted her - She told the son that the father had hurt her and she restricted the father's contact with the child - The son then turned against the father - The mother sought sole custody with supervised access for the father - The father sought sole custody, alleging parental alienation - The New Brunswick Court of Queen's Bench, Family Division, found that the father had sexually assaulted the mother and that the mother had alienated the son - The mother was awarded sole custody - The child was well-cared for by the mother and, except for the alienation, had flourished in her care - The court was satisfied that the mother would take steps to help the son re-build his relationship with his father - The father's misconduct had led to an inability of the parents to communicate - That, plus the need to bring peace to these parties for the child's sake meant that the court could not consider shared or joint custody - The father was unable to provide the same level of care - He lived frugally in a relatively remote area - His plan involved taking the child out of the school that he thrived in, away from his circle of friends and immediate community, and home schooling him - The child's mental and emotional health would suffer under that plan - See paragraphs 48 to 61.

Family Law - Topic 1891

Custody and access - Considerations in awarding custody - Conduct of parents - [See Family Law - Topic 1889 ].

Family Law - Topic 1896

Custody and access - Considerations in awarding custody - Parent-child relationship - [See Family Law - Topic 1889 ].

Family Law - Topic 1993

Custody and access - Access - Considerations in awarding access - Religious upbringing - The unmarried parties separated after a six year relationship - They had a seven year old son - The mother had been the child's primary caregiver since birth - The father was described as eccentric and held strong religious beliefs (i.e., the end of world was imminent) - The mother was sexually assaulted by the father - She told the son that the father had hurt her and she restricted the father's contact with the child - The son then turned against the father - The mother was granted sole custody and requested that the father's access be supervised in order to shield the son from the father's religious beliefs and to protect him from the father permitting the son to use an axe and power tools without direct supervision - The New Brunswick Court of Queen's Bench, Family Division, granted the father unsupervised access, which would increase over time, but with several conditions - The mother was intent on shutting the father out of her life - It would not be in child's best interests to penalize the father for his behaviours towards the mother by ordering supervised access - The father's beliefs did not appear to be fanatical or inherently harmful - However, they would be very difficult for a seven year old child to conceptualize, assimilate, and balance - The court ordered that the father not discuss his religious beliefs or views with his son - The child was to have only age appropriate access to the father's tools under direct supervision - The father was restrained from molesting, annoying, harassing or interfering with the mother (Family Services Act, s. 128) - The father was to pick up and deliver the child in the mother's driveway, but the father was not otherwise to be on her property nor in her residence - Any communication between the parents was to only be in regard to the child and only for the purposes of sharing information in regard to the child - See paragraphs 62 to 80.

Family Law - Topic 1994

Custody and access - Access - Considerations in awarding access - Conduct of parents - [See Family Law - Topic 1993 ].

Family Law - Topic 2023

Custody and access - Access - Access awards - Supervised access - [See Family Law - Topic 1993 ].

Family Law - Topic 2072

Custody and access - Joint custody - When available - [See Family Law - Topic 1889 ].

Family Law - Topic 2082

Custody and access - Shared parenting - Considerations - [See Family Law - Topic 1889 ].

Family Law - Topic 2189

Custody and access - Practice - Costs - The unmarried parties separated after a six year relationship - They had a seven year old son - The mother had been the child's primary caregiver since birth - The mother was sexually assaulted by the father - She told the son that the father had hurt her and she restricted the father's contact with the child - The son then turned against the father - The mother applied for custody, supervised access by the father and child support - The father suggested that there was sexual impropriety between the mother and son - He sought sole custody - During the trial, he (self-represented) cross-examined the mother on the sexual impropriety topic - The New Brunswick Court of Queen's Bench, Family Division, granted the mother sole custody with unsupervised access by the father with several conditions - The court awarded the mother solicitor and client costs given the father's "reprehensible", "scandalous" and "outrageous" behaviour in his conduct triggering the initiation of these proceedings and in the manner in which he conducted the proceedings - The sexual impropriety accusation was baseless and a misguided defensive tactic - The stakes were high in child custody cases and the emotions at times were raw - The court stated that "... a family law courtroom cannot be permitted to be a 'free fire zone'. Acrimony between parties is one thing, B.C.'s [the father's] conduct quite another. A judge's duty extends to the protection of litigants and the law's processes. I find this necessary in this case." - See paragraphs 87 to 92.

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Improper, irresponsible or unconscionable conduct - [See Family Law - Topic 2189 ].

Practice - Topic 7462.1

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Unproven allegations of dishonest or improper conduct - [See Family Law - Topic 2189 ].

Droit de la famille - Cote 1889

Garde et accès - Facteurs considérés lors de l'attribution de la garde - Capacité ou moyens des parents - [Voir Family Law - Topic 1889 ].

Droit de la famille - Cote 1891

Garde et accès - Facteurs considérés lors de l'attribution de la garde - Conduite des parents - [Voir Family Law - Topic 1891 ].

Droit de la famille - Cote 1896

Garde et accès - Facteurs considérés lors de l'attribution de la garde - Relation parent-enfant - [Voir Family Law - Topic 1896 ].

Droit de la famille - Cote 1993

Garde et accès - Accès - Facteurs considérés lors de l'attribution de l'accès - Instruction religieuse - [Voir Family Law - Topic 1993 ].

Droit de la famille - Cote 1994

Garde et accès - Accès - Facteurs considérés lors de l'attribution de l'accès - Conduite des parents - [Voir Family Law - Topic 1994 ].

Droit de la famille - Cote 2023

Garde et accès - Accès - Facteurs considérés lors de l'attribution de l'accès - Accès surveillé - [Voir Family Law - Topic 2023 ].

Droit de la famille - Cote 2072

Garde et accès - Garde conjointe - Conditions d'ouverture - [Voir Family Law - Topic 2072 ].

Droit de la famille - Cote 2082

Garde et accès - Partage des responsabilités parentales - Facteurs considérés - [Voir Family Law - Topic 2082 ].

Droit de la famille - Cote 2189

Garde et accès - Procédure - Dépens - [Voir Family Law - Topic 2189 ].

Procédure - Cote 7454

Dépens - Frais entre avocat et client - Droit aux frais entre avocat et client - Conduite impropre, irresponsable ou déraisonnable - [Voir Practice - Topic 7454 ].

Procédure - Cote 7462.1

Dépens - Frais entre avocat et client - Droit aux frais entre avocat et client - Allégations non prouvées de conduite malhonnête ou impropre - [Voir Practice - Topic 7462.1 ].

Cases Noticed:

R. v. Ewanchuk (S.B.) (1999), 235 N.R. 323; 232 A.R. 1; 195 W.A.C. 1; 131 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 12].

F.H. v. McDougall (2008), 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 12].

Weeks v. Weeks, [1955] 3 D.L.R. 704 (B.C.C.A.), refd to. [para. 19].

Randall v. Hare - see Burns Estate, Re.

Burns Estate, Re (2010), 356 N.B.R.(2d) 263; 919 A.P.R. 263; 2010 NBQB 85 (Prob. Ct.), refd to. [para. 19].

Geremia v. Harb, [2007] O.T.C. 141; 154 A.C.W.S.(3d) 1128 (Sup. Ct.), refd to. [para. 31].

Rideout v. Rideout (1998), 201 N.B.R.(2d) 249; 514 A.P.R. 249 (Fam. Div.), refd to. [para. 42].

Neill v. Best (1995), 147 N.S.R.(2d) 54; 426 A.P.R. 54 (Fam. Ct.), refd to. [para. 47].

J.W. v. D.W. - see Wedsworth v. Wedsworth.

Wedsworth v. Wedsworth (2005), 229 N.S.R.(2d) 168; 725 A.P.R. 168; 2005 NSSF 2, refd to. [para. 47].

P.B. v. C.B. (2010), 357 N.B.R.(2d) 381; 923 A.P.R. 381; 2010 NBQB 77 (Fam. Div.), refd to. [para. 48].

Roy v. Roy, [2006] O.A.C. Uned. 215 (C.A.), refd to. [para. 48].

Rogerson v. Tessaro, [2006] O.A.C. Uned. 211 (C.A.), refd to. [para. 55].

C.M.B.E. v. D.J.E. (2006), 304 N.B.R.(2d) 191; 788 A.P.R. 191; 2006 NBCA 88, refd to. [para. 55].

A.L. v. C.M., [2010] N.B.R.(2d) Uned. 7; 2010 NBQB 46 (Fam. Div.), refd to. [para. 55].

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. 69].

Henry - see D.B.S. v. S.R.G.

Hiemstra - see D.B.S. v. S.R.G.

T.A.R. V. L.J.W. - see D.B.S. v. S.R.G.

D.B.S. v. S.R.G. (2006), 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 83].

Rademaker v. Rademaker (2002), 251 N.B.R.(2d) 177; 654 A.P.R. 177; 2002 NBCA 47, refd to. [para. 88].

J.S. v. J.M. (2009), 345 N.B.R.(2d) 303; 889 A.P.R. 303; 2009 NBQB 169 (Fam. Div.), refd to. [para. 88].

A.N.H. v. M.K.C. (2010), 359 N.B.R.(2d) 1; 929 A.P.R. 1; 2010 NBQB 120 (Fam. Div.), refd to. [para. 88].

Paquet v. Getty (2002), 253 N.B.R.(2d) 256; 660 A.P.R. 256; 2002 NBQB 272 (T.D.), refd to. [para. 89].

Counsel:

Avocats:

Elizabeth McLeod, Q.C., for the applicant;

For the respondent, per se.

This matter was heard on March 22-24, 2010, by Walsh, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Saint John, who delivered the following decision on April 13, 2010.