E. Types of Orders

Author:Julien D. Payne - Marilyn A. Payne

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1) General

Courts have an extremely wide discretion in making custody and access orders and attaching conditions thereto. They may grant interim or temporary orders, consent orders, joint custody orders, third-party custody and access orders, orders dividing the incidents of custody, non-molestation or restraining orders, supervision orders, orders restricting mobility or providing for notice of any intended change of residence, orders for the tracing of missing children, orders for the apprehension of children to prevent parental abduction, orders for the return of a child from outside the province or territory, orders for the enforcement of custody and access arrangements, and orders for the variation and termination of custody and access.

2) Interim Custody Orders

Section 16(2) of the Divorce Act expressly confers a discretionary jurisdiction on a court of competent jurisdiction to grant an interim order for the custody of or access to any child of the marriage pending a final determination.28A final determination can be made under the Divorce Act only upon the granting of a divorce judgment.29Any subsisting interim order made under section 16(2) of the Divorce Act will expire in the unlikely event of a dismissal of the divorce petition.30In SMS v TMP-S,31 Walsh J, of the New Brunswick Court of Queen’s Bench Family Division, characterized applications for interim custody in the following words:

Interim hearings such as this are different. They are limited by time and the nature of the evidence before it. The evidence is in affidavit form, and as usual, there is great conflict in the competing affidavits. In these circumstances, our Court of Appeal has directed judges to try to find "a reasonable temporary solution" to a very difficult problem from a host of options, pending the full hearing (See: Legault v. Rattray [2003] N.B.J. No. 442 (C.A.) at para. 4).

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Although the best interests of the child is the sole consideration in proceedings for interim and permanent custody or access, preservation of the status quo plays a more significant role in proceedings for interim custody than in proceedings for permanent custody. In the absence of material evidence that the child’s best interests demand an immediate change, the status quo will ordinarily be maintained until trial.32In the words of Laskin JA in Papp v Papp,33the "evidence to warrant an order for interim...

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