(FAMILY DIVISION)
Citation: Feltmate v. Cool, 2010 NSSC 166
Date: 20100422
Docket: 1201-061947
Registry: Halifax
Between:
Crystal Dawn Feltmate
Applicant
v.
Pierre-Olivier Cool
Respondent
Judge: The Honourable Justice Deborah Gass
Heard: April 6, 2010, in Halifax, Nova Scotia
Counsel: Angela Walker, for the Applicant
Kim Johnson, for the Respondent
By the Court:
[1] This is an application to strike a variation application brought by Crystal Dawn Feltmate pursuant to Rule 14.25.
[2] The variation application is with respect to a decision of Lynch, J. in which with mother was seeking to move to Ontario with the parties then 3 ½ year old son, Mason. The father opposed the application and, following a trial, the court determined that the move was not in the child’s best interests. An order was issued for joint custody and primary care to the father, with specific parenting times for the mother.
[3] Three months after the decision was made, the father advised the mother he was moving from the community in which he resided in the Halifax Regional Municipality to Enfield, Hants County, which, among other things, resulted in a change in the provision of day care for the child.
[4] The mother then brought another application to change primary care to her and for the child to reside with her in Ontario, and with it an interim application to deal with Christmas access.
[5] The court dismissed her application regarding Christmas access, determining that it had been addressed in the decision rendered just seven months earlier.
[6] It is argued by the Applicant in this application to strike the variation application, that all of the issues raised by the variation application were addressed by the court following a contested hearing and this is an attempt to re-litigate the matter.
[7] The difference between an application to strike an application, and a determination of whether or not one has met the threshold test for a variation on the merits, is significant.
[8] For an application to strike an application under Rule 14 the court must be satisfied that there is insufficient evidence apparent on the face of the application to warrant a hearing at all as to whether the threshold test has been met. The evidence must prima facie support the conclusion that the application is obviously unsustainable; that there is obviously no chance of success.
[9] There are some acknowledged changes in circumstances, some upon which it appears the original decision was made. Whether they are sufficient to warrant a full review as contemplated by Gordon v. Goertz [1996] S.C.J. No. 52 is a matter for the trial judge. Whether those changes, had they been in existence at the time of the trial, would have resulted in a different outcome, is really only something the original trial judge could know.
[10] I could only dismiss at this stage if I am satisfied on the face of the evidence before me that there is no chance of success. Whether the changes are so significant to meet the threshold and go on to determine if the order no longer is in the child’s best interests, is a matter for determination after a hearing on the merits.
[11] I do not conclude that the provisions of Rule 25 regarding the determination of a question are applicable, in that changes in circumstances are statutorily provided for under the Divorce Act and the Maintenance and Custody Act and are an inherent part of the application to vary process. Thus, the issue must be dealt with accordingly and cannot be disposed of in the manner provided for in that rule.
[12] The preliminary motion to strike the application is dismissed.
J.