Talbot v. Henry, (1990) 84 Sask.R. 170 (CA)

• Judge: Bayda, C.J.S., Vancise and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: December 07, 1989
• Jurisdiction: Saskatchewan
• Citations: (1990), 84 Sask.R. 170 (CA);1990 CanLII 2648 (SK CA);[1990] 5 WWR 251;25 RFL (3d) 415;[1990] CarswellSask 161;[1990] SJ No 159 (QL);84 Sask R 170

Talbot v. Henry (1990), 84 Sask.R. 170 (CA)

MLB headnote and full text

Dale James Talbot (applicant/respondent by counterclaim/appellant) v. Katherine Louise Henry (respondent/applicant by counterclaim/respondent)

(No. 338)

Indexed As: Talbot v. Henry

Saskatchewan Court of Appeal

Bayda, C.J.S., Vancise and Sherstobitoff, JJ.A.

April 9, 1990.

Summary:

A husband/father left the marital home, taking his two young children with him, upon learning his wife was planning to leave him. The wife/mother subsequently obtained an ex parte interim custody order until trial of the issue of custody. Approximately one year later the wife agreed that she was unable to care for the children and voluntarily delivered them to the husband, who had custody of them ever since. By separation agreement the parties agreed on joint custody, with the husband being the custodial parent. A May 1985 divorce decree confirmed the separation agreement. Things proceeded fairly smoothly until the summer of 1988. The parties agreed that the wife would exercise her access rights from July 17 - September 3. Fearful that the wife would not return the children, the husband obtained an ex parte order terminating the wife's access on August 28, 1988. She failed to return the children, whom she had taken to Ontario. The husband travelled there, returned the children to Saskatchewan with him and applied to vary the joint custody order pursuant to s. 17(1)(b) of the Divorce Act 1985, claiming sole custody and maintenance for the children under s. 17(1)(a). The wife cross-claimed, seeking the same relief.

The Saskatchewan Court of Queen's Bench, in a decision reported in paragraphs 49 to 70 below, awarded sole custody of the children to the wife. The husband appealed.

The Saskatchewan Court of Appeal held that the trial judge misapplied the appropriate principles. The court dismissed both parents' applications and restored the joint custody order, with physical custody to the husband.

Family Law - Topic 4064

Divorce - Corollary relief - Custody of children - Variation of custody order - The Saskatchewan Court of Appeal set out seven principles to be applied by trial courts on an application to vary a custody order pursuant to s. 11(2) of the Divorce Act, R.S.C. 1970, c. D-8 - The court noted that the Divorce Act 1985 altered the basis for variation, referring to a change in the condition, means, needs and other circumstances of the "child", rather than of the "parties" - The court held that this change did not alter the governing principles on a custody variation application under the new Act - The court set out nine principles to be applied on a variation under s. 17(1)(b) of the new Act - See paragraphs 12 to 25, 42 to 46.

Family Law - Topic 4064

Divorce - Corollary relief - Custody of children - Variation of custody order - The Saskatchewan Court of appeal set out the standard of review in appeals under the Divorce Act respecting custody - See paragraphs 26 to 28.

Cases Noticed:

Breau v. Breau (1973), 10 R.F.L. 391 (Ont. S.C.), refd to. [para. 15].

Tobin v. Tobin (1974), 19 R.F.L. 18 (Ont. S.C.), refd to. [para. 16].

Garrett v. Garrett (1982), 36 Nfld. & P.E.I.R. 479; 101 A.P.R. 479 (P.E.I.S.C.), refd to. [para. 16].

Roher v. Roher (1976), 27 R.F.L. 218 (Ont. S.C.), refd to. [para. 17].

McCallum v. McCallum (1978), 30 R.F.L. 32 (P.E.I.S.C.), refd to. [para. 17].

Wittal v. Himmelspach (1983), 27 Sask.R. 143 (Q.B.), refd to. [para. 18].

Roode v. Roode (1985), 42 Sask.R. 307 (Q.B.), refd to. [para. 18].

Bathurst Paper Ltd. v. Minister of Municipal Affairs, [1972] S.C.R. 471; 22 D.L.R.(3d) 115, refd to. [para. 23].

Carter v. Yablonski (1989), 75 Sask.R. 269, refd to. [para. 24].

Thomson v. Thomson (1988), 69 Sask.R. 62; 52 D.L.R.(4th) 221; 14 R.F.L.(3d) 347 (C.A.), refd to. [para. 26].

Pelech v. Pelech, [1987] 1 S.C.R. 801; [1987] 4 W.W.R. 481; 76 N.R. 81; 7 R.F.L.(3d) 225, appld. [para. 27].

Harrington v. Harrington (1981), 33 O.R.(2d) 150 (C.A.), refd to. [para. 27].

Statutes Noticed:

Divorce Act, R.S.C. 1970, c. D-8, sect. 11(2) [paras. 12, 14-15, 21, 24].

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 17(1)(a) [paras. 10, 24]; sect. 17(1)(b) [paras. 10, 13]; sect. 17(5) [paras. 13, 42, 45, 47]; sect. 17(9) [paras. 13, 32]; sect. 21(5) [para. 26].

Authors and Works Noticed:

Canada Law Reform Commission, Divorce Working Paper 13, generally [para. 21]; p. 47 [para. 22].

Counsel:

J. Horner, for the appellant;

D. Halvorsen, for the respondent.

This appeal was heard before Bayda, C.J.S., Vancise and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal on December 7, 1989. The decision of the Court of Appeal was delivered on April 9, 1990, when the following opinions were filed:

Vancise, J.A. (Sherstobitoff, J.A., concurring) - See paragraphs 1 to 40;

Bayda, C.J.S. - See paragraphs 41 to 48.