T.D.C. v. A.D.C.,

• Jurisdiction: Nova Scotia
• Judge: Levy
• Neutral Citation: 2002 NSFC 11
• Citation: (2002), 207 N.S.R.(2d) 17 (FC),2002 NSFC 11,207 NSR(2d) 17,(2002), 207 NSR(2d) 17 (FC),207 N.S.R.(2d) 17
• Date: 02 July 2002
• Court: Specific Claims Tribunal

T.D.C. v. A.D.C. (2002), 207 N.S.R.(2d) 17 (FC);

 649 A.P.R. 17

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. AU.008

In the Matter Of: An application by T.D.C. against A.D.C. under the Maintenance and Custody Act respecting custody of the child T.

And In the Matter Of: An application by Family and Children's Services of Kings County under the Children and Family Services Act against T.D.C. and A.D.C. respecting the child T.

(F.K. 89-0196; F.K. CFSA-015313; 2002 NSFC 11)

Indexed As: T.D.C. v. A.D.C.

Nova Scotia Family Court

Levy, J.F.C.

July 2, 2002.

Summary:

In 1992, married parents separated and the Family Court granted custody to the mother. In 2001, the father applied under the Main­tenance and Custody Act for a change in custody. A court ordered assessment ex­pressed serious concerns about both parents. Family and Children's Services initiated pro­tection proceedings under the Children and Family Services Act. At the hearing of the matter, the mother's new counsel sought an adjournment. It was re­fused. The next day, the mother's counsel filed a divorce petition in the Supreme Court. At the start of the hearing in Family Court, the mother's coun­sel brought a motion that the Family Court defer to the Supreme Court.

The Nova Scotia Family Court dismissed the motion. The court held that it had juris­diction and should exercise it. The child's best interests required an expeditious resolu­tion. Further, the integrity of the court pro­cess and fairness to the other party required that one party should not be allowed, on the eve of a much delayed hearing for which numerous witnesses were all subpoenaed and present, to throw a spanner into the works by the simple expedient of filing a divorce petition.

Family Law - Topic 2121

Custody and access - Jurisdiction - Where divorce proceedings commenced - In 1992, married parents separated and the Family Court granted custody to the mother - In 2001, the father applied under the Main­tenance and Custody Act for a change in custody - A court ordered assessment ex­pressed serious concerns about both parents - Family and Children's Services initiated protection proceedings under the Children and Family Services Act - The mother's new counsel was refused an adjournment - He filed a divorce petition in the Supreme Court and moved that the Family Court de­fer to the Supreme Court - The Nova Scotia Family Court held that it had juris­diction and should exercise it - The child's best interests required an ex­peditious reso­lution - Further, one party should not be allowed, on the eve of a much delayed hearing for which numerous witnesses were all subpoenaed and present, to throw a spanner into the works by the simple ex­pedient of filing a divorce pe­tition.

Guardian and Ward - Topic 822

Public trustee or guardian - Appointment - Jurisdiction - [See Family Law - Topic 2121 ].

Cases Noticed:

Lor v. Lor (1978), 25 N.S.R.(2d) 243; 36 A.P.R. 243 (C.A.), refd to. [para. 12].

McGregor v. McGregor, [1990] N.S.J. No. 351 (C.A.), dist. [para. 12].

R.M. v. S.G. (1999), 174 N.S.R.(2d) 101; 532 A.P.R. 101 (S.C.), dist. [para. 12].

Smith v. Smith (1994), 139 N.S.R.(2d) 81; 397 A.P.R. 81 (Fam. Ct.), refd to. [para. 12].

Timms v. Timms, 1992 CarswellNS 459 (Fam. Ct.), refd to. [para. 12].

Gillespie v. Gillespie (1973), 6 N.B.R.(2d) 227; 13 R.F.L. 344 (N.B.C.A.), refd to. [para. 12].

Husband v. Husband (1987), 7 R.F.L.(3d) 380 (B.C.S.C.), refd to. [para. 12].

Rousson v. Rousson, [1981] O.J. No. 1327 (Fam. Div.), refd to. [para. 12].

Morton v. Morton, [1984] O.J. No. 796 (Fam. Div.), refd to. [para. 12].

MacDonald v. MacDonald (1985), 60 A.R. 53; 44 R.F.L.(2d) 316 (Q.B.), refd to. [para. 12].

Craig v. Craig, [1998] B.C.J. No. 2126 (S.C.), refd to. [para. 12].

Family and Children's Services of Kings County v. T.G. and R.G. (1998), 171 N.S.R.(2d) 96; 519 A.P.R. 96 (Fam. Ct.), folld. [para. 27].

Statutes Noticed:

Maintenance and Custody Act, R.S.N.S. 1989, c. 160, sect. 18(3) [para. 11].

Counsel:

Lynn Connors, for T.D.C.;

Byron Balcom and Bernard Conway, for A.D.C.;

Donald MacMillan, for Family and Chil­dren's Services.

This matter was heard by Levy, J.F.C., of the Nova Scotia Family Court, who de­livered the following decision on July 2, 2002.