Court of Appeal

NOVA SCOTIA COURT OF APPEAL

Citation:  Slawter v. Bellefontaine, 2012 NSCA 48

Date:  20120511

Docket:  CA 355688

Registry: Halifax

Between:

Leslie Michael Slawter

Appellant

v.

Amanda Lynn Rose Bellefontiane,

Gerald Ernest Bellefontaine, and

Mary Louise Bellefontaine

Respondents

Revised Library Sheet:   This library sheet of May 22, 2012 replaces the previously released library sheet.

Judge:                   The Honourable Justice Duncan R. Beveridge

Appeal Heard:      January 25, 2012

Subject:                Family Law.  Duty of fairness when contemplating an order in the best interests of the child not requested by the parties.

Summary:             The respondent sought to vary a consent order from joint to sole custody for their two children, and permission to move the children to British Columbia.  The desire to move was caused by the respondent’s grandparents’ retirement to a small city in B.C. The respondent offered liberal access arrangements but the parties’ financial resources presented difficulties in effectively being able to exercise access.  The trial judge requested the unanimous consent of the parties and the grandparents to add the latter as formal parties.  All consented.  The trial judge granted the requested changes and ordered the respondents to be responsible for the cost of access visits, but also decided that access for the appellant would only be supervised access at his mother’s residence.  The appellant appealed claiming the trial judge erred in finding it was in the best interests of the children to vary the custody order and to permit the planned move to B.C., and denying him procedural fairness by adding parties after the fact, and in ordering supervised access.

Issue:           Did the trial judge deny procedural fairness to the appellant by adding the grandparents as parties or by ordering supervised access, a remedy not formally sought by the pleadings or argued during the hearing; and did he commit error in ordering the requested change to the custody order? 

Result:                  The trial judge made no reversible error in deciding that the requested change in the custody order and consequent move to British Columbia were in the best interests of the children.  Even if the consent order could be appealed adding the grandparents as formal parties, the initiative of the Court to add them did not cause any prejudice to the appellant’s right to a fundamentally fair procedure.  An order for supervised access is a relatively rare occurrence.  Here such relief was not pled nor sought at any time throughout the hearing.  The trial judge made no mention of any concern that he was even contemplating making such an order.  The appellant had no opportunity to cross-examine, lead evidence or make submissions on this issue.  In the circumstances of this case, it was an error of law to make such an order.  This aspect of his order was quashed.