Noble v. Hoyt, (1986) 74 N.B.R.(2d) 411 (CA)

JudgeRyan, Angers and Hoyt, JJ.A.
CourtCourt of Appeal (New Brunswick)
Case DateFebruary 18, 1986
JurisdictionNew Brunswick
Citations(1986), 74 N.B.R.(2d) 411 (CA)

Noble v. Hoyt (1986), 74 N.B.R.(2d) 411 (CA);

    74 R.N.-B.(2e) 411; 187 A.P.R. 411

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]

.........................

Noble v. Hoyt

(102/85/CA)

Indexed As: Noble v. Hoyt

Répertorié: Noble v. Hoyt

New Brunswick Court of Appeal

Ryan, Angers and Hoyt, JJ.A.

October 24, 1986.

Summary:

Résumé:

Hoyt was declared to be the father of Noble's child under s. 100(4) of the Family Services Act. The court also ordered Hoyt to pay maintenance of $150.00 per month. Hoyt appealed on the grounds, inter alia, that an application for paternity and maintenance brought eight years after the birth of the child was outside the limitation period and that the judge drew a wrong inference from Hoyt's refusal to take a blood test under s. 110 of the Act.

The New Brunswick Court of Appeal dismissed the appeal.

Infants - Topic 2503

Illegitimate children - Determination of parentage - Effect of - The New Brunswick Court of Appeal stated that an application for a paternity order under s. 100 of the Family Services Act, S.N.B. 1980, c. F-2.2, determines parentage for "all purposes" - The court discussed the two concepts which developed in relation to the identification of parents: paternity for legitimacy purposes and paternity for maintenance purposes, and how they relate to parentage under the Family Services Act - See paragraphs 9 to 11; 33 and 34.

Infants - Topic 2520

Illegitimate children - Filiation proceedings - Evidence - Blood tests - A woman brought an application to have a man declared the father of her child - The trial judge ordered the man to take a blood test pursuant to s. 110 of the Family Services Act - The man refused to take the test and the trial judge drew an inference adverse to the man pursuant to s. 110(4) of the Act - A judge of the New Brunswick Court of Appeal stated that the trial judge was wrong to draw the inference where there was no evidence of the sophistication and accuracy of the blood tests - See paragraphs 15 to 21 - Another judge of the New Brunswick Court of Appeal stated that absent an explanation by the man of his failure to submit to the tests, it was difficult to see what other inference the trial judge could draw - See paragraphs 41 to 45.

Infants - Topic 2569

Illegitimate children - Support and other claims - Limitation of actions - A woman brought an action in 1984 for an order declaring a man to be the father of her child born in 1976 - The man accepted the child up until 1979 when the relationship between the man and woman ended - The man alleged that the application eight years after the birth of the child was outside the limitation period - Angers, J.A., of the New Brunswick Court of Appeal stated that the six year limitation period for the civil action began to run at the time the man "specifically or by his conduct denied the paternity" - See paragraphs 3 to 14 - Hoyt, J.A., of the New Brunswick Court of Appeal stated that the child's right to have its parentage determined and to support was a continuing one and that the loss of entitlement to those remedies did not depend on the actions of anyone else - The judge stated that "there was no limitation to the time when a declaration of parentage may be made or, as long as the child has not attained majority or married, when support may be sought" - See paragraphs 28 to 40.

Statutes - Topic 1630

Interpretation - Extrinsic aids - Other statutes - Prior related statutes - In determining the limitation period for applying for a paternity order and maintenance of a child under the Family Services Act, the New Brunswick Court of Appeal discussed the limitation period under the Act's predecessor, Children of Unmarried Parents Act, R.S.N.B. 1973, c. C-3 - See paragraphs 5 and 33.

Cases Noticed:

Ampthill Peerage Case, [1976] 2 All E.R. 411, refd to. [para. 9].

Pinay v. Dawson (1961), 28 D.L.R.(2d) 109, refd to. [para. 10].

Rowe v. Mazerolle (1984), 49 N.B.R.(2d) 404; 129 A.P.R. 404, refd to. [para. 33].

Bagaric v. Juric and Bagaric (1984), 2 O.A.C. 35; 5 D.L.R.(4th) 78, refd to. [para. 39].

Statutes Noticed:

Children of Unmarried Parents Act, R.S.N.B. 1973, c. C-3 [paras. 5, 33].

Family Services Act, S.N.B. 1980, c. F-2.2, sect. 99 [paras. 4, 38]; sect. 100(1) [paras. 13, 29, 30, 38]; sect. 100(4) [para. 1]; sect. 100(6) [paras. 7, 31, 34]; sect. 101 [para. 7]; sect. 110 [paras. 41, 44]; sect. 110(4) [paras. 18, 21]; sect. 113 [paras. 32, 36, 38]; sect. 115(1) [paras. 29, 32].

Judicature Act, R.S.N.B. 1973, c. J-2, sect. 11(4) [para. 11].

Limitation of Actions Act, R.S.N.B. 1973, c. L-8, sect. 8 [para. 35]; sect. 9 [paras. 4, 35, 36, 37].

Authors and Works Noticed:

Halsbury's Laws of England (3rd Ed.), vol. 24, p. 181, para. 330 [para. 5].

Sopinka and Lederman, Law of Evidence in Civil Cases, p. 377 [para. 20].

Counsel:

D. Leslie Smith, for the appellant;

Mary B. Beaton, for the respondent.

This appeal was heard on February 18, 1986, before Ryan, Angers and Hoyt, JJ.A., of the New Brunswick Court of Appeal. The decision of the Court of Appeal was delivered on October 24, 1986, when the following judgments were delivered:

Angers, J.A. - see paragraphs 1 to 27;

Hoyt, J.A. - see paragraphs 28 to 46.

Ryan, J.A., due to his death, took no part in the decision.

To continue reading

Request your trial
3 practice notes
  • R. v. Sanchez-Ruiz, (1991) 121 N.B.R.(2d) 106 (CA)
    • Canada
    • New Brunswick Court of Appeal (New Brunswick)
    • November 29, 1991
    ...54 C.C.C.(2d) 65, consd. [para. 10]. R. v. Collicott (1990), 105 N.B.R.(2d) 355; 264 A.P.R. 355, refd to. [para. 11]. Noble v. Hoyt (1986), 74 N.B.R.(2d) 411; 187 A.P.R. 411, refd to. [para. 12]. R. v. Charrette (1982), 67 C.C.C.(2d) 357, refd to. [para. 13]. R. v. Koffman and Hirschler (19......
  • L.P. v. W.J., (1989) 99 N.B.R.(2d) 386 (FD)
    • Canada
    • New Brunswick Court of Queen's Bench of New Brunswick (Canada)
    • June 27, 1989
    ...(1986), 67 N.B.R.(2d) 35; 172 A.P.R. 35, folld. [para. 9]. Re H and H (1980), 25 O.R.(2d) 219, folld. [para. 9]. Noble v. Hoyt (1987), 74 N.B.R.(2d) 411; 187 A.P.R. 411, folld. [para. Statutes Noticed: Family Services Act, S.N.B. 1980, c. F-2.2, sect. 100(4), sect. 110(3), sect. 110(4). Cou......
  • B.G.S. v. New Brunswick (Minister of Health and Community Services) and L.M.B., (1992) 124 N.B.R.(2d) 245 (FD)
    • Canada
    • New Brunswick Court of Queen's Bench of New Brunswick (Canada)
    • March 4, 1992
    ...preamble of the Family Services Act in construing the meaning of the Act - See paragraphs 22 to 23. Cases Noticed: Noble v. Hoyt (1986), 74 N.B.R.(2d) 411; 187 A.P.R. 411, appld. [para. Bagaric v. Juric and Bagaric (1984), 2 O.A.C. 35; 5 D.L.R.(4th) 78, appld. [para. 13]. Frame v. Smith, [1......
3 cases
  • R. v. Sanchez-Ruiz, (1991) 121 N.B.R.(2d) 106 (CA)
    • Canada
    • New Brunswick Court of Appeal (New Brunswick)
    • November 29, 1991
    ...54 C.C.C.(2d) 65, consd. [para. 10]. R. v. Collicott (1990), 105 N.B.R.(2d) 355; 264 A.P.R. 355, refd to. [para. 11]. Noble v. Hoyt (1986), 74 N.B.R.(2d) 411; 187 A.P.R. 411, refd to. [para. 12]. R. v. Charrette (1982), 67 C.C.C.(2d) 357, refd to. [para. 13]. R. v. Koffman and Hirschler (19......
  • L.P. v. W.J., (1989) 99 N.B.R.(2d) 386 (FD)
    • Canada
    • New Brunswick Court of Queen's Bench of New Brunswick (Canada)
    • June 27, 1989
    ...(1986), 67 N.B.R.(2d) 35; 172 A.P.R. 35, folld. [para. 9]. Re H and H (1980), 25 O.R.(2d) 219, folld. [para. 9]. Noble v. Hoyt (1987), 74 N.B.R.(2d) 411; 187 A.P.R. 411, folld. [para. Statutes Noticed: Family Services Act, S.N.B. 1980, c. F-2.2, sect. 100(4), sect. 110(3), sect. 110(4). Cou......
  • B.G.S. v. New Brunswick (Minister of Health and Community Services) and L.M.B., (1992) 124 N.B.R.(2d) 245 (FD)
    • Canada
    • New Brunswick Court of Queen's Bench of New Brunswick (Canada)
    • March 4, 1992
    ...preamble of the Family Services Act in construing the meaning of the Act - See paragraphs 22 to 23. Cases Noticed: Noble v. Hoyt (1986), 74 N.B.R.(2d) 411; 187 A.P.R. 411, appld. [para. Bagaric v. Juric and Bagaric (1984), 2 O.A.C. 35; 5 D.L.R.(4th) 78, appld. [para. 13]. Frame v. Smith, [1......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT