Marshall v. Marshall, (1998) 168 N.S.R.(2d) 48 (CA)

Judge:Roscoe, Pugsley and Bateman, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:May 06, 1998
Jurisdiction:Nova Scotia
Citations:(1998), 168 N.S.R.(2d) 48 (CA)
 
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Marshall v. Marshall (1998), 168 N.S.R.(2d) 48 (CA);

    505 A.P.R. 48

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Temp. Cite: [1998] N.S.R.(2d) TBEd. MY.007

John Brenton Marshall (appellant) v. Susan Pauline Marshall (respondent)

(C.A. 136541)

Indexed As: Marshall v. Marshall

Nova Scotia Court of Appeal

Roscoe, Pugsley and Bateman, JJ.A.

May 6, 1998.

Summary:

A self-represented father applied to vary an interim consent order regarding custody and child support. At the hearing of the applica­tion, the trial judge suggested that he make a final as opposed to an interim order. Both parties agreed.

The Nova Scotia Supreme Court, in a judgment reported 157 N.S.R. 102; 462 A.P.R. 102, granted the divorce, awarded sole custody to the mother and determined the amount of child support. The father appealed, asserting that the trial judge erred in changing an interlocutory application into a trial and that his consent was ineffective as it was based on improper information as to the difference between an interim and final order.

The Nova Scotia Court of Appeal allowed the appeal, set aside the corollary relief judgment and ordered that the previous interim order continue in effect until further order of the Supreme Court.

Courts - Topic 589

Judges - Duties - To self-represented party - A self-represented father applied to vary an interim consent order regarding custody and child support - At the hear­ing, the trial judge suggested that he make a final as opposed to an interim order - Both parties agreed - The father appealed - He argued that the trial judge erred in converting the interlocutory application into a trial and that his consent was ineffective as it was based on improper information respecting the differences between an interim and final order - The Nova Scotia Court of Appeal allowed the appeal and set aside the corollary relief judgment - The father's consent was tainted by the trial judge's misleading statements respecting interim and final orders - Crucial differences between the two types of orders were not explained to the father before he consented to the change in the nature of the proceeding - This amounted to procedural unfairness and injustice.

Family Law - Topic 4059

Divorce - Corollary relief - Custody of children - Interim custody - A trial judge converted an application to vary an interim order respecting custody and child support to a trial and made final orders - The father, self-represented at the hearing, had relied on the trial judge's statements respecting the differences between interim and final orders - He appealed the trial judge's orders - In allowing the father's appeal, the Nova Scotia Court of Appeal discussed the differences between interim and final orders under the Divorce Act and identified misleading statements made by the trial judge - See paragraphs 23 to 29.

Family Law - Topic 4076

Divorce - Corollary relief - Interim main­tenance - General - [See Family Law - Topic 4059 ].

Family Law - Topic 4191

Divorce - Practice - Judgments and orders - General - [See Courts - Topic 589 ].

Practice - Topic 2493

Writ of summons, endorsements, originat­ing summons and originating notices - Originating notices - Conversion to formal action - [See Courts - Topic 589 ].

Cases Noticed:

Gorham v. Gorham (1994), 131 N.S.R.(2d) 7; 371 A.P.R. 7 (C.A.), refd to. [para. 20].

Routledge v. Routledge (1987), 75 N.S.R.(2d) 103; 186 A.P.R. 103 (C.A.), refd to. [para. 21].

Keddy v. Keddy (1974), 8 N.S.R.(2d) 158 (C.A.), refd to. [para. 21].

Pye v. Pye (1992), 112 N.S.R.(2d) 109; 307 A.P.R. 109 (S.C.), refd to. [para. 25].

Foley v. Foley (1994), 124 N.S.R.(2d) 198; 345 A.P.R. 198 (S.C.), refd to. [para. 26].

Stefanyk v. Clancy (1996), 156 N.S.R.(2d) 161; 461 A.P.R. 161 (S.C.), refd to. [para. 27].

White v. White (1995), 144 N.S.R.(2d) 41; 416 A.P.R. 41 (S.C.), refd to. [para. 28].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 37.10(d), rule 37.10(e), rule 57.17(1) [para. 17].

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 21 [para. 19].

Counsel:

Duncan Beveridge, Q.C., for the appellant;

Deborah E. Gillis, for the respondent

This appeal was heard on March 25, 1998, before Roscoe, Pugsley and Bateman, JJ.A., of the Nova Scotia Court of Appeal.

On May 6, 1998, Roscoe, J.A., delivered the following judgment for the court.

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