Court of Appeal

CASE NO.                           VOL. NO.                                  PAGE

Jacklyn Marie Brown                             - and -                        Tyler Fergus Hughes

(Appellant)                                                                                         (Respondent)

CA 181116                                    Halifax, N.S.                    Freeman, J.A. (Orally)

Citation:  Brown v. Hughes, 2002 NSCA 158

APPEAL HEARD:                                         December 5, 2002

JUDGMENT DELIVERED:                           December 5, 2002

WRITTEN RELEASE OF ORAL: December 10, 2002

SUBJECT:       Family Law, Correction of Custody Order, Civil Procedure Rules 15:07 and 62:23.

SUMMARY:         A judge of the Provincial Family Court on an application to vary a shared custody order respecting a child born July 31, 2000, to unmarried parents was asked to determine the primary care and the access schedule for the alternate parent.  After considering various factors and noting a paucity of evidence on some of them, he awarded primary care to the father and fixed access for the mother.  He describing his task as a “difficult, close-call decision” and repeatedly made it clear that it was subject to review, which could be triggered by better evidence as to child care and the impact of a new baby expected by the father’s new partner.  The order did not reflect the provision that it be subject to review.  The mother appealed. 

ISSUE:                  The mother submitted that the judge had not given sufficient reasons, and sought a rehearing.

RESULT:         In light of the “accidental mistake or omission” in failing to designate the order as subject to review, which could have been remedied before the Family Court Judge under Civil Procedure Rule 15:07, the court allowed the appeal only to order that the Family Court Order be subject to review and dismissed the appeal as premature on the other grounds.