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CUSTODY AND ACCESS - Appeals and judicial review

Wednesday, April 29, 2020 @ 9:31 AM  


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Appeal by the husband from a corollary relief judgment. The parties married in 2001. They had three children, ages 12, 14 and 17. The youngest child had lifelong disabilities. The wife worked as a registered nurse during the marriage but was currently medically unable to work due to disability. The husband was self-employed in real estate development and construction. The date of separation was uncertain. Co-parenting agreements were referenced by the parties during pretrial hearings in 2017 and at an interim hearing in 2018. A trial was held to determine issues related to child support and division of family property. The parties both confirmed at trial that they sought continuation of the co-parenting arrangement, as it gave the oldest child desired flexibility. However, the trial judge based the overall decision on an erroneous ruling giving the wife day-to-day care and responsibility for the children. The judge's finding on custody directly tied into the award for retroactive and prospective child support, and informed the reasoning related to division of family property. The husband appealed.

HELD: Appeal allowed. The trial judge misapprehended the evidence and erred by overlooking the agreed-upon custody arrangement that existed prior to the most recent interim hearing. The judge’s finding of a lack of agreement on a caregiving schedule failed to recognize that the parties sought to continue the extant arrangement with slight modifications. The interim order reflected the parties’ co-operation to continue co-parenting. The trial judge gave no indication that he contemplated not endorsing the parties’ parenting proposal. No opportunity was given to the parties to address whether the parenting arrangement was in the best interests of the children. The error had a substantial and cascading impact on the child support and property division awards. The judgment was set aside, and a new trial was ordered to occur before a different judge.

Novak v. Novak, [2020] N.S.J. No. 117, Nova Scotia Court of Appeal, E. Van den Eynden, J.E. Scanlan and C.A. Beaton JJ.A., March 13, 2020. Digest No. TLD-April272020006