Levesque v. Levesque, (1983) 46 N.B.R.(2d) 184 (CA)

• Court: Court of Appeal (New Brunswick)
• Case Date: April 11, 1983
• Jurisdiction: New Brunswick
• Citations: (1983), 46 N.B.R.(2d) 184 (CA)

Levesque v. Levesque (1983), 46 N.B.R.(2d) 184 (CA);

    46 R.N.-B.(2e) 184; 121 A.P.R. 184

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Levesque v. Levesque

(235/82/CA)

Indexed As: Levesque v. Levesque

Répertorié: Levesque v. Levesque

New Brunswick Court of Appeal

La Forest and Angers, JJ.A., and Richard, C.J.Q.B.

April 11, 1983.

Summary:

Résumé:

A mother applied under the Child and Family Services and Family Relations Act for custody of her daughter. The father opposed the application.

The New Brunswick Provincial Court, Family Division, in a decision unreported in this series of reports, awarded custody to the father. The mother appealed.

The New Brunswick Court of Appeal allowed the appeal and ordered a new trial, because of errors by the trial judge.

Family Law - Topic 1828

Custody and access to children - Right to custody - Rights of a father - The New Brunswick Court of Appeal held that by virtue of s. 129 of the Child and Family Services and Family Relations Act, a father in New Brunswick no longer has the primary right to custody where all other factors are equal - See paragraph 10.

Practice - Topic 8804

Appeals - Duty of appellate court regarding discretionary orders - Custody matters - The New Brunswick Court of Appeal discussed the duty of an appellate court in child custody cases - See paragraph 5.

Practice - Topic 9224

Appeals - New trials - Grounds - General - In a custody application under the Child and Family Services and Family Relations Act, the trial judge considered the best interests of the child according to common law principles and case law existing before the coming into force of the Act - The New Brunswick Court of Appeal held that the trial judge's error constituted a miscarriage of justice and ordered a new trial - See paragraphs 7 to 15.

Cases Noticed:

Adams v. McLeod, [1978] 2 S.C.R. 621; 20 N.R. 203, appld. [para. 5].

Oakes v. Oakes (1975), 11 N.B.R.(2d) 170; 7 A.P.R. 170, ref'd to. [para. 9].

Layton v. Layton (1973), 6 N.B.R.(2d) 68, ref'd to. [para. 9].

Digiacinto v. Digiacinto (1975), 9 N.B.R.(2d) 604; 1 A.P.R. 604, ref'd to. [para. 9].

Fullerton v. Fullerton (1980), 31 N.B.R.(2d) 661; 75 A.P.R. 661, ref'd to. [para. 9].

Statutes Noticed:

Child and Family Services and Family Relations Act, S.N.B. 1980, c. 2.1, sect. 129 [para. 10]; sect. 133 [para. 14].

Counsel:

Thomas E. Cyr, for the appellant.

This appeal was heard before La FOREST and ANGERS, JJ.A., and RICHARD, C.J.Q. B. The decision of the Court of Appeal was delivered by ANGERS, J.A., on April 11, 1983.