L.C.M. v. B.A.C.,

• Jurisdiction: New Brunswick
• Judge: Walsh, J.
• Neutral Citation: 2011 NBQB 283
• Citation: (2011), 380 N.B.R.(2d) 357 (FD),2011 NBQB 283,380 NBR(2d) 357,(2011), 380 NBR(2d) 357 (FD),380 N.B.R.(2d) 357
• Date: 20 September 2011
• Court: Court of Queen's Bench of New Brunswick (Canada)

L.C.M. v. B.A.C. (2011), 380 N.B.R.(2d) 357 (FD);

    380 R.N.-B.(2e) 357; 980 A.P.R. 357

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: [2011] N.B.R.(2d) TBEd. OC.031

Renvoi temp.: [2011] N.B.R.(2d) TBEd. OC.031

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

(FDSJ-664-09; 2011 NBQB 283; 2011 NBBR 283)

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.

October 12, 2011.

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, in a decision reported at 359 N.B.R.(2d) 300; 929 A.P.R. 300, 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. The mother sought to terminate the father's access.

The New Brunswick Court of Queen's Bench, Family Division, allowed the motion.

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 2004

Custody and access - Access - Grounds for refusal, restriction or variation of access - The unmarried parties separated after a six year relationship - They had a son (now age 9) - The mother had been the child's primary caregiver since birth - The father was described as eccentric and held strong religious beliefs - The mother was sexually assaulted by the father - She had restricted the father's contact with the child - The son then turned against the father - The mother was granted sole custody and the father was granted unsupervised access - There were incidental orders that neither parent speak ill of the other in the presence of the child, the parents' communication was to be for the purposes of sharing information respecting the child and, the father was restrained from molesting, annoying or interfering with the mother - The mother sought to terminate the father's access - The New Brunswick Court of Queen's Bench, Family Division, allowed the motion - The father's actions had been "outrageous" - He had persisted with his unfounded allegation that the mother had committed a sexual impropriety with the child - He had hounded the mother and son about it - He breached all of the incidental orders - The son no longer wanted anything to do with the father or his family - His emotional, psychological and physical well being would further suffer if access was continued in any form - The father/son relationship was "in tatters" - The court could not trust the father in the future given his almost total disregard for the court's orders and directions and his stated commitment to his cause.

Family Law - Topic 2029

Custody and access - Access - Termination or suspension - [See Family Law - Topic 2004 ].

Family Law - Topic 2189

Custody and access - Practice - Costs - The unmarried parties separated after a six year relationship - The mother applied for custody of their son with supervised access by the father - 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 trial judge granted the mother sole custody with unsupervised access by the father with several conditions (incidental orders) - 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 mother sought to terminate the father's access - The New Brunswick Court of Queen's Bench, Family Division, allowed the motion given that the father's subsequent actions had been "outrageous" - He had persisted with the unfounded sexual impropriety allegation and hounded the mother and son about it - He breached all of the incidental orders - The court contemplated continuing to mark its strong disapproval of the father's conduct by ordering solicitor/client costs again - However, the court declined to make such an award - The father had paid an extremely high price for his behaviour since the last order (denied any access to his son) - To also attach the inherent significant economic consequences of a solicitor/client costs award against the father, who was of modest means, would be an excessive use of the court's powers in all the circumstances - The court awarded the mother party and party costs fixed at $2,500 - See paragraphs 33 to 36.

Practice - Topic 7454

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

Droit de la famille - Cote 2004

Garde et accès - Accès - Motifs de refus, restriction ou modification des droits d'accès - [Voir Family Law - Topic 2004 ].

Droit de la famille - Cote 2029

Garde et accès - Accès - Suppression ou suspension des droits d'accès - [Voir Family Law - Topic 2029 ].

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 ].

Cases Noticed:

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 4].

Cairns v. Cairns (1995), 159 N.B.R.(2d) 264; 409 A.P.R. 264; 10 R.F.L.(4th) 234 (C.A.), refd to. [para. 4].

Neill v. Best (1995), 147 N.S.R.(2d) 54; 426 A.P.R. 54 (Fam. Ct.), refd to. [para. 27].

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. 27].

B.J.G. v. D.L.G., [2010] Yukon Cases Uned. 33; 2010 YKSC 33, refd to. [para. 29].

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. 34].

Paquet v. Getty (2002), 253 N.B.R.(2d) 256; 660 A.P.R. 256; 2002 NBQB 272 (T.D.), refd to. [para. 34].

Counsel:

Avocats:

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

B.A.C., per se.

This motion was heard on August 31 and September 20, 2011, 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 October 12, 2011.