C.A. No. 133169
NOVA SCOTIA COURT OF APPEAL
Cite as: Shephard v. Schwenker, 1997 NSCA 44
Chipman, Matthews and Flinn, JJ.A.
BETWEEN:
MELODI D. (SCHWENKER) SHEPHARD ) Yvonne M.R. LaHaye and
) Judith A. Schoen
Appellant ) for the Appellant
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- and - )
) Gordon R. Kelly
) for the Respondent
KEVIN R. SCHWENKER )
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Respondent ) Appeal Heard:
) February 5, 1997
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) Judgment Delivered:
) February 5, 1997
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THE COURT: Appeal dismissed per oral reasons for judgment of Flinn, J.A.; Matthews and Chipman, JJ.A. concurring.
The reasons for judgment of the Court were delivered orally by:
FLINN, J.A.:
When the appellant and the respondent were divorced in 1990, the corollary relief judgment provided that the parties share joint custody of, and access to, their son, who was at that time approximately three years of age.
When the boy started school in 1992, the parties, themselves, settled on a new arrangement. During the school year, the boy would spend ten days per month with his mother, and the balance of the month with his father. There were other arrangements for summer vacation and school holidays. These arrangements continued until the hearing, which is the subject of this appeal. The boy will be ten years of age in May.
The appellant and the respondent have both remarried.
On an application by the father, respondent, to vary the custody provisions of the corollary relief judgment, issued in 1990, Justice Hood awarded sole custody of the child to the respondent, with liberal access to the appellant, other than access that would interfere with his schooling.
The appellant appeals that decision.
The appellant submits that Justice Hood erred in not granting an adjournment to enable counsel to cross-examine the child's teacher, an affidavit of the teacher having been filed on behalf of the respondent. Whether or not to grant an adjournment, is a matter of discretion for the trial judge. Having reviewed the record of this proceeding. we are unable to conclude that Justice Hood erred in any way in the exercise of her discretion in that regard.
The appellant further submits that Justice Hood erred in relying on the
affidavit evidence of the child's teacher. The appellant submits that certain of the depositions in the affidavit are inadmissible because they are either hearsay or the source of the information deposed to was not disclosed. It is clear from reviewing Justice Hood's decision, and the record, that the critical matters upon which she relied, which were contained in the affidavit of the child's teacher, were confirmed by the appellant's viva voce evidence, and by the affidavits of the respondent and his present wife, both of whom were subject to cross-examination by the appellant's counsel.
In Gorham v. Gorham (1994), 131 N.S.R. (2d) 7 (N.S.C.A.), Matthews J.A. said the following at p. 8:
"The question of custody is one which lies particularly within the discretion of the trial judge. That discretion should not be disturbed unless the trial judge clearly acted upon some wrong principle or disregarded material evidence. An appellate court does not have the advantage given a trial judge of seeing the parties, hearing them and evaluating the character of each."
(See also Routledge v. Routledge (1987), 75 N.S.R. (2d) 103 (N.S.C.A.) per Clarke C.J.N.S. at pp. 104-105).
In her decision, Justice Hood sought to determine what was in the child's best interests, considering his age and his need for security and stability, particularly during the school year. She said in her decision:
"Stability and structure in order to keep [the child] focused at school is in his best interests..... it is clear that those needs can best
be met by [the child] having his principal residence with his father during the school year and being in that residence on school nights and Sunday evenings after 6 p.m."
Justice Hood then made provision for liberal access by the respondent, ensuring, however, that such access would not interfere with the boy's schooling.
We are of the unanimous opinion that Justice Hood made no reviewable error in coming to her conclusion in this matter. Her primary focus, as it should have been, was to determine what was in the best interests of the child at this time. We find no basis upon which we should interfere with her findings.
The appeal is dismissed without costs.
Flinn, J.A.
Concurred in:
Matthews, J.A.
Chipman, J.A.
C.A. No. 133169
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
MELODI D. (SCHWENKER) SHEPHARD
)
Appellant )
- and - ) REASONS FOR
) JUDGMENT BY:
KEVIN R. SCHWENKER )
) FLINN, J.A.
) (Orally)
Respondent )
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