Lewis v. Lewis, 2005 NSSC 256

• Judge: Forgeron, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: August 23, 2005
• Jurisdiction: Nova Scotia
• Citations: 2005 NSSC 256;(2005), 236 N.S.R.(2d) 245 (SC)

Lewis v. Lewis (2005), 236 N.S.R.(2d) 245 (SC);

    749 A.P.R. 245

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. SE.012

Alison Lewis (applicant/respondent) v. Gordon Lewis (respondent/applicant)

(1206-004620; 2005 NSSC 256)

Indexed As: Lewis v. Lewis

Nova Scotia Supreme Court

Family Division

Forgeron, J.

August 23, 2005.

Summary:

The parties separated after three years of marriage. They had two children. In an interim consent order, the parties agreed that they would have joint custody of the children with the mother having primary care and the father having liberal access. The mother cut off all access by the father. The father applied to enforce access and agreed to supervised access in the meantime. The mother sought to vary the father's access to supervised access and sought a parental capacity assessment of him.

The Nova Scotia Supreme Court, Family Division, ordered that the mother have custody of the children as the parties could not communicate to the extent necessary for a joint custody order to operate effectively. The court granted the father unsupervised access and refused to order a parental capacity assessment of him.

Family Law - Topic 2023

Custody and access - Access - Access awards - Supervised access - The Nova Scotia Supreme Court, Family Division, stated that supervised access was appropriate in specific situations, some of which include the following: a) where the child required protection from physical, sexual or emotional abuse; b) where the child was being introduced or reintroduced into the life of a parent after a significant absence; c) where there were substance abuse issues; or d) where there were clinical issues involving the access parent - Supervised access was not appropriate if its sole purpose was to provide comfort to the custodial parent - See paragraphs 24 and 25.

Family Law - Topic 2050

Custody and access - Interim custody - General - The Nova Scotia Supreme Court, Family Division, stated that interim custody orders were designed to meet the best interests of the children for a relatively brief period of time - As such, emphasis was placed upon the preservation of the status quo - Interim orders were not binding upon the trial judge and no change in circumstance was necessary to be proven at the time of trial - See paragraph 10.

Family Law - Topic 2051

Custody and access - Interim custody - Considerations - [See Family Law - Topic 2050 ].

Family Law - Topic 2072

Custody and access - Joint custody - When available - The parties separated after three years of marriage - They had two children - In an interim consent order, the parties agreed that they would have interim joint custody of the children with the mother having primary care - Difficulties ensued - The Nova Scotia Supreme Court, Family Division, granted the mother custody as the parties could not communicate to the extent necessary for a joint custody order to operate effectively - It was not in the children's best interests to be placed in parental conflict as a result of court imposed and forced communication - The court ordered that the parties have no direct communication with each other - Information respecting the children was to be conveyed by email which would be sent in a format that could be saved with the understanding that such communication could be used in future court proceedings - If parties did not have access to email, a written notebook was to be purchased for communication purposes - See paragraphs 55 and 61 and 62.

Family Law - Topic 2147

Custody and access - Evidence - Report of family investigator, counsellor, etc. (incl. home study) - A mother requested that a parental capacity assessment be done on the father - The Nova Scotia Supreme Court, Family Division, denied the application as the mother failed to prove that it was necessary or in the children's best interests - Such an assessment should not be ordered as a matter of course - It should not be used as a fishing expedition - An assessment was appropriate where clinical information would not otherwise be available to the court on a germane issue - The court was also concerned with the costs and delay associated with an assessment - The court also stated that parental capacity assessments were intrusive upon the lives of the children who were required to participate in a direct way - See paragraphs 69 to 73.

Cases Noticed:

Marshall v. Marshall (1998), 168 N.S.R.(2d) 48; 505 A.P.R. 48 (C.A.), refd to. [para. 15].

Foley v. Foley (1993), 124 N.S.R.(2d) 198; 345 A.P.R. 198; 1993 CarswellNS 328 (S.C.), refd to. [para. 16].

Pye v. Pye (1992), 112 N.S.R.(2d) 109; 307 A.P.R. 109 (T.D.), refd to. [para. 18].

Kimpton v. Kimpton, [2002] O.T.C. 1070; 2002 CarswellOnt 5030 (Sup. Ct.), refd to. [para. 20].

Young v. Young et al. (1993), 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161 (S.C.C.), refd to. [para. 23].

Abdo v. Abdo (1993), 126 N.S.R.(2d) 1; 352 A.P.R. 1 (C.A.), refd to. [para. 23].

Farmakoulas v. McInnis (1996), 152 N.S.R.(2d) 52; 442 A.P.R. 52 (S.C.), refd to. [para. 70].

Authors and Works Noticed:

McLeod, James G., Annotation to Moggey v. Moggey, 1990 CarswellSask 72, generally [para. 21].

McLeod, James G., Annotation to Sheikh v. Sheikh, 2004 CarswellOnt 4395, generally [para. 70].

Counsel:

Christopher Conohan, for the applicant;

Tony Mozvik, for the respondent.

These applications were heard at Sydney, Nova Scotia, by Forgeron, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following decision on August 23, 2005, and released written reasons on September 16, 2005.