Court of Appeal

NOVA SCOTIA COURT OF APPEAL

Citation:  Slade-McLellan v. Brophy, 2012 NSCA 80  

Date:  20120731

Docket:  CA 355883

                                                  Registry:  Halifax

Between:

Emilie Slade-McLellan

Appellant

v.

Justin Brian Brophy

Respondent

Judge:                  The Honourable Justice David P.S. Farrar

Appeal Heard:     March 21, 2012, in Halifax, Nova Scotia

Subject:                Family Law - Mobility - Material Change in Circumstances, Custody and Access

Summary:            The appellant appeals alleging that the trial judge erred in changing the primary care of the child from her to the child’s father.  The appellant had applied to vary access so that she could move Alberta to be with her new partner.  However, she testified she would not move if her application was dismissed.  The mobility application was dismissed and the judge then reviewed the custody arrangement and ordered it be varied. 

Issue:                   Did the judge err in reviewing the custody arrangement after having dismissed the mobility application.

Result:                  Appeal dismissed without costs.  Once the material change in circumstances threshold had been crossed, it was open to the trial judge to review the custody arrangement.