T.L.M.B. v. P.J.W.B., (2011) 379 N.B.R.(2d) 122 (FD)

• Judge: Baird, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: August 10, 2011
• Jurisdiction: New Brunswick
• Citations: (2011), 379 N.B.R.(2d) 122 (FD);2011 NBQB 238

T.L.M.B. v. P.J.W.B. (2011), 379 N.B.R.(2d) 122 (FD);

    379 R.N.-B.(2e) 122; 978 A.P.R. 122

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Temp. Cite: [2011] N.B.R.(2d) TBEd. SE.012

Renvoi temp.: [2011] N.B.R.(2d) TBEd. SE.012

T.L.M.(S.)B. (petitioner) v. P.J.W.B. (respondent)

(FDF-420-09; 2011 NBQB 238; 2011 NBBR 238)

Indexed As: T.L.M.B. v. P.J.W.B.

Répertorié: T.L.M.B. v. P.J.W.B.

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Fredericton

Baird, J.

August 10, 2011.

Summary:

Résumé:

In a 2007 consent order, the parties agreed to joint custody of their son born in 2006. The child's primary residence was with the mother. The father filed a motion seeking a contempt remedy against the mother, alleging that she had denied him access to the child. In addition, he sought sole custody of the child. In her responding affidavit, the mother advised that she intended to move to Ontario and she sought a variation to the existing order on that basis. She requested sole custody of the child and a contempt order against the father for his failure to pay child support.

The New Brunswick Court of Queen's Bench, Family Division, did not alter the joint custody order, but it ordered that the mother would have the primary residential day-to-day care of the child and she was permitted to move to Ontario with the child. The father's obligation to pay child support was terminated because he would be bearing the cost of transporting the child to and from Ontario for access visits. The child support obligation was to be reviewed no later than August 30, 2012, at which time the father was to provide receipts for his travel costs associated with exercising access. On the issue of contempt, the court found that both parents had violated the corollary relief order. The court sentenced each parent to 20 days in jail for their contemptuous conduct. However, the passing of sentence was suspended on the condition that both parties were in full compliance with the order issued by the court. If either party was subsequently found in breach of the court's order, that party would be incarcerated for 20 days.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Contempt - Topic 3326

Punishment - Suspended sentence - In a 2007 consent order, the parties agreed to have joint custody of their son born in 2006 - The child's primary residence was with the mother - The father filed a motion seeking a contempt remedy against the mother, alleging that she had denied him access to the child - In addition, he sought sole custody of the child - In her responding affidavit, the mother advised that she intended to move to Ontario and she sought a variation to the existing order on that basis - She requested sole custody of the child and a contempt order against the father for his failure to pay child support - The New Brunswick Court of Queen's Bench, Family Division, found that there had been a change in the condition, means, needs or circumstances of the child since 2007 insofar as the ongoing parental conflict was concerned and the impact that conflict had had on access and visitation arrangements - The mother had met the burden to establish a material change and the father did not meet his obligation to prove that it would be in the child's best interests that custody be granted to him - The court did not alter the joint custody order, but it ordered that the mother would have the primary residential day-to-day care of the child and she was permitted to move to Ontario with the child - The father's obligation to pay child support was terminated because he would be bearing the cost of transporting the child to and from Ontario for access visits - Child support was to be reviewed no later than August 30, 2012, at which time the father was to provide receipts for his travel costs associated with exercising access - On the issue of contempt, the court found that both parents had violated the corollary relief order - The court sentenced each parent to 20 days in jail for their contemptuous conduct - However, the passing of sentence was suspended on the condition that both parties were in full compliance with the order issued by the court - If either party was subsequently found in breach of the court's order, that party would be incarcerated for 20 days.

Family Law - Topic 1898

Custody and access - Considerations in awarding custody - Custodial parent moving from jurisdiction - [See Contempt - Topic 3326 ].

Family Law - Topic 1950.1

Custody and access - Variation of custody and access rights - Changed circumstances of child - [See Contempt - Topic 3326 ].

Family Law - Topic 2175

Custody and access - Enforcement of orders - Contempt proceedings - [See Contempt - Topic 3326 ].

Family Law - Topic 2349

Maintenance of wives and children - Maintenance of children - Termination of obligation - General - [See Contempt - Topic 3326 ].

Family Law - Topic 2537

Maintenance of wives and children - Enforcement - Orders - Contempt proceedings - [See Contempt - Topic 3326 ].

Family Law - Topic 4054.2

Divorce - Corollary relief - Maintenance - Enforcement - Contempt proceedings - [See Contempt - Topic 3326 ].

Outrage - Cote 3326

Sanctions - Sentence suspendue - [Voir Contempt - Topic 3326 ].

Droit de la famille - Cote 1898

Garde et accès - Facteurs considérés lors de l'attribution de la garde - Déménagement du parent gardien hors du ressort - [Voir Family Law - Topic 1898 ].

Droit de la famille - Cote 1950.1

Garde et accès - Modification des droits de garde et d'accès - Changement de circonstances de l'enfant - [Voir Family Law - Topic 1950.1 ].

Droit de la famille - Cote 2175

Garde et accès - Exécution des ordonnances - Procédure pour outrage au tribunal - [Voir Family Law - Topic 2175 ].

Droit de la famille - Cote 2349

Entretien des épouses et des enfants - Entretien des enfants - Cessation de l'obligation généralités - [Voir Family Law - Topic 2349 ].

Droit de la famille - Cote 2537

Entretien des épouses et des enfants - Exécution - Ordonnances - Procédures pour outrage au tribunal - [Voir Family Law - Topic 2537 ].

Droit de la famille - Cote 4054.2

Divorce - Mesures accessoires - Ordonnances alimentaires - Exécution - Procédures pour outrage au tribunal - [Voir Family Law - Topic 4054.2 ].

Cases Noticed:

Druet v. Druet (2002), 253 N.B.R.(2d) 317; 660 A.P.R. 317; 2002 NBCA 88, refd to. [para. 4].

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 10].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81; 1994 CanLII 28, refd to. [para. 17].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; 1993 CanLII 34, refd to. [para. 20].

C.M.B.E. v. D.J.E. (2006), 304 N.B.R.(2d) 191; 788 A.P.R. 191; 2006 NBCA 88, refd to. [para. 25].

E.A.L. v. H.M.G. - see Glase v. Glase.

Glase v. Glase (2011), 303 B.C.A.C. 167; 512 W.A.C. 167; 2011 BCCA 167, refd to. [para. 27].

Spencer v. Spencer (2005), 371 A.R. 78; 354 W.A.C. 78; 2005 ABCA 262, refd to. [para. 28].

P.R.H. v. M.E.L. (2009), 343 N.B.R.(2d) 100; 881 A.P.R. 100 (C.A.), refd to. [para. 29].

Nunweiler v. Nunweiler (2000), 137 B.C.A.C. 1; 223 W.A.C. 1; 2000 BCCA 300, refd to. [para. 32].

Shaw v. Shaw (1997), 189 N.B.R.(2d) 84; 482 A.P.R. 84; 1997 CarswellNB 227 (Fam. Div.), refd to. [para. 35].

Legris v. Legris, [2001] N.B.R.(2d) (Supp.) No. 54; 2001 NBQB 14 (Fam. Div.), refd to. [para. 53].

Bourque v. Bourque, [1989] N.B.J. No. 1023, refd to. [para. 55].

MacWilliam v. Dennis, [1993] N.B.J. No. 87 (Fam. Div.), refd to. [para. 55].

Léger v. Léger (1994), 146 N.B.R.(2d) 32; 374 A.P.R. 32 (Fam. Div.), refd to. [para. 55].

Mombourquette v. Mombourquette (1996), 174 N.B.R.(2d) 1; 444 A.P.R. 1 (Fam. Div.), refd to. [para. 55].

Garrett v. Lawson, [1993] N.B.J. No. 481 (C.A.), refd to. [para. 55].

Harding v. Harding, [1999] N.B.R.(2d) Uned. 114 (Fam. Div.), refd to. [para. 55].

Counsel:

Avocats:

Francis Atkinson, Q.C., for the petitioner;

Peter White, Esq., for the respondent.

This matter was heard on June 12 and 13, 2011, before Baird, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Fredericton, who delivered the following oral decision on August 10, 2011.