Roebuck v. Roebuck, (1983) 45 A.R. 180 (CA)

• Judge: McGillivray, C.J.A., Laycraft and Kerans, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 25, 1983
• Citations: (1983), 45 A.R. 180 (CA);1983 ABCA 156;148 DLR (3d) 131;[1983] 5 WWR 385;26 Alta LR (2d) 289;45 AR 180;34 RFL (2d) 277;[1983] AJ No 12 (QL)

Roebuck v. Roebuck (1983), 45 A.R. 180 (CA)

MLB headnote and full text

Roebuck v. Roebuck

Indexed As: Roebuck v. Roebuck

Alberta Court of Appeal

McGillivray, C.J.A., Laycraft and Kerans, JJ.A.

May 25, 1983

Summary:

The Alberta Court of Queen's Bench in a judgment unreported in this series of reports allowed a woman's divorce petition, but awarded custody of their 4.5 year old daughter to her father. The mother and father were fit parents, but the father, a farmer, was able to spend much more time with his daughter then the working mother. The mother appealed.

The Alberta Court of Appeal, McGillivray, C.J.A. dissenting, dismissed the appeal.

Family Law - Topic 1881

Custody - Considerations - Welfare of child paramount - The parents of a 4.5 year old girl were divorced - The father was a farmer, who was able to spend much more time with the girl than her working mother - Both were good parents - The Alberta Court of Appeal refused to disturb the award of custody to the father by the trial judge.

Family Law - Topic 1884

Custody - Considerations - Tender years doctrine - The Alberta Court of Appeal discussed the tender years doctrine and concluded that it was outmoded, where it was no longer conventional wisdom that mothers were better able to care for very young children than fathers - The court held that parental ability was a question of fact to be determined in each case and affirmed the award of custody of a 4.5 year old girl to her father - See paragraphs 23 to 36.

Family Law - Topic 1897

Custody - Considerations - Status quo - The Alberta Court of Appeal held that it is at the time of an interim disposition of custody that one should not lightly disturb de facto arrangements - The court stated that an interim custody order is a make-shift solution pending more complete consideration and is designed to minimize conflict between parents and cause the least harm to the child pending determination - The court stated that at the final determination the status quo should not govern unless it is in the best interest of the child - See paragraphs 19 to 22.

Family Law - Topic 1910

Custody - Appeals - General - The Alberta Court of Appeal refused to disturb an award of custody of a 4.5 year old girl to her father, where the trial judge made no manifest error - See paragraphs 43 to 45.

Cases Noticed:

Cropper v. Cropper (1974), 16 R.F.L. 113 (Ont. C.A.), appld. [para. 19].

Spencer v. Spencer (1980), 20 R.F.L.(2d) 91, consd. [para. 21].

Re Orr, [1933] 2 D.L.R. 77 (Ont. C.A.), disapproved. [para. 24].

Talsky v. Talsky (1975), 7 N.R. 246; 21 R.F.L. 27 (S.C.C.), appld. [paras. 25, 27, 56, 57, 61 and 64].

Bell v. Bell, [1955] O.W.N. 341 (Ont. C.A., disapproved. [paras. 28 and 62].

Adams et al. v. McLeod and Ramstead, [1978] 2 S.C.R. 621; 20 N.R. 203, [paras 43, 57].

Singh v. Singh (1982), 34 A.R. 271, appld. [paras. 44, 58].

McKee v. McKee, [1951] A.C. 352, consd. [para. 56].

Miron v. Miron (1978), 10 A.R. 550, consd. [para. 63].

Gordon v. Gordon (1981), 23 R.F.L. 267, consd. [para. 65].

Counsel:

R.F. Babki, for the appellant;

R.W. Elander, for the respondent.

This case was heard before McGILLIVRAY, C.J.A., LAYCRAFT and KERANS, JJ.A., of the Alberta Court of Appeal.

On May 25, 1983 the judgment of the Court of Appeal was delivered and the following opinions were filed:

KERANS J.A. - See paragraphs 1 to 46; McGILLIVRAY, C.J.A., dissenting - See paragraphs 47 to 70.

LAYCRAFT, J.A., concurred with Kerans J.A.