Court of Appeal

                                NOVA SCOTIA COURT OF APPEAL

Citation: Wedsworth v. Wedsworth, 2005 NSCA 102

Date:  20050630

Docket:  CA 238283

Registry: Halifax

Between:

Deborah Louise Wedsworth

Appellant

v.

John James MacLeod Wedsworth

Respondent

Judge:                   The Honourable Justice Freeman

Appeal Heard:      May 11, 2005

Subject:       Divorce Act;  Custody of Children; Variation of Corollary Relief Judgment; Material Change in Circumstances; Judicial Bias; Standard of Review. 

Summary:   Seven years after the mother of three boys was granted custody in a corollary relief judgment, the Family Division of the Supreme Court of Nova Scotia varied the order because the mother’s frustration of access provisions and her emotional demands on the boys had resulted in a material change of circumstances. The trial judge found that despite the boys’ expressed wishes and expectation of short term trauma, their best interests required that they be placed in the custody of the father in his new family setting, with restricted access to the mother. The mother appealed. 

Issues:         Was the family division judge biased, did he err with respect to finding a material change of circumstances, and did he place undue emphasis on the evidence of the court-appointed assessor?

Result:        The appeal was dismissed with costs. No reasonable person, reasonably informed of the circumstances, would conclude that the trial judge was biased.  His finding of a material change of circumstances was firmly based on the evidence and jurisprudence.   Assessment of the weight of the evidence was for the trial judge; the court of appeal had no jurisdiction to intervene in the absence of material error.