Pollard v. Pollard, (1973) 7 N.B.R.(2d) 120 (CA)

• Judge: Hughes, C.J.N.B., Limerick and Ryan, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: November 02, 1973
• Jurisdiction: New Brunswick
• Citations: (1973), 7 N.B.R.(2d) 120 (CA)

Pollard v. Pollard (1973), 7 N.B.R.(2d) 120 (CA);

    7 R.N.-B.(2e) 120

MLB headnote and full text

Sommaire et texte intégral

Pollard v. Pollard

Indexed As: Pollard v. Pollard

Répertorié: Pollard v. Pollard

New Brunswick Court of Appeal

Hughes, C.J.N.B., Limerick and Ryan, JJ.A.

November 2, 1973.

Summary:

Résumé:

This case arose out of an application for the custody of the children of a marriage during a divorce hearing. The divorce was granted on the grounds of the mother's adultery. The New Brunswick Court of Queen's Bench awarded the custody of a 7 year old boy to the father and awarded the custody of a 2 year old girl to the mother. On appeal to the New Brunswick Court of Appeal the appeal was allowed with respect to the custody of a 2 year old girl. The judgment of the Court of Queen's Bench is set out immediately following the judgment of the Court of Appeal.

The Court of Appeal set aside the custody award by the trial court with respect to the 2 year old girl. The Court of Appeal stated that a mother is usually more capable of looking after a child of tender years. However, the Court of Appeal referred to the instability of the mother and her intention to marry an irresponsible man - see paragraph 42.

Family Law - Topic 1884

Custody of a 2 year old girl - Considerations in awarding custody - Tender years doctrine - The mother and the father of the girl were divorced - The New Brunswick Court of Appeal awarded custody of the girl to the father - The Court of Appeal referred to the mother's instability and her intention to marry an irresponsible man - See paragraph 42.

Family Law - Topic 3351

Separation agreement as a bar to a custody action - The New Brunswick Court of Appeal stated that in an action for custody of children a separation agreement should be disregarded - See paragraphs 50 and 66.

Cases Noticed:

Layton v. Layton (1973), 6 N.B.R.(2d) 68, dist. [para. 40].

Weeks v. Weeks, [1955] 3 D.L.R. 704, dist. [para. 40].

Hudson v. Hudson (1968), 68 D.L.R.(2d) 191, folld. [paras. 43, 54 and 67].

Philpott v. Philpott, [1954] O.R. 120, folld. [para. 67].

Weeks v. Weeks, [1955] 3 D.L.R. 704, folld. [para. 67].

Counsel:

Douglas L. Smith, for the petitioner, appellant;

Lyman, F.D. Purnell, Q.C., for the respondent.