Court of Appeal

Judges:

Oland, Beveridge and Scanlan, JJ.A.

Appeal Heard:

November 29, 2013, in Halifax, Nova Scotia

Subject:

Mobility – Maintenance and Custody Act, R.S.N.S. 1989, c. 160, s. 18(6)

Summary:

For most of the time following their separation, the parties had a shared parenting arrangement whereby their two children spent alternating weeks with each parent.  The mother applied for primary care and permission to relocate the children from Yarmouth to Halifax where she had found work.   The evidence included a home study by a clinical social worker who reported that the children preferred to live with their mother.  The motion was successful and the father appeals.

Issues:

Whether the judge erred by relying on case law that dealt with a primary caregiving seeking mobility rather than a shared parenting arrangement, and by failing to incorporate that arrangement in his analysis.  Whether he erred by considering the wishes of the children who were then ages nine and six.

Result:

Appeal denied.  The judge made repeated references to co-parenting throughout his reasons.  The statements in case law he quoted did not amount to an error which calls for appellate intervention.  It was for the judge to decide the weight to be given to the wishes of the children.  Nothing in his decision indicates that his determination of their best interests was influenced unduly, or at all, by his references to their stated preference.