M.D. v. C.A.K.
No binding agreement existed because the respondent refused to instruct counsel to sign the prepared order and the court did not have adequate evidence to conclude the terms were in the child's best interests; therefore the proceeding will continue as an initial application rather than an application to vary.
Source-derived case information.
- Citation
- 2004 NSFC 16
- Parties
- Respondent: M.D.; Applicant: C.A.K.
- Court
- Nova Scotia Family Court
- Jurisdiction
- Canada
- Judgment Date
- 15 November 2004
- Procedural Posture
- Family Court Maintenance and Custody Proceeding / Interlocutory Application to Determine Whether the Proceeding Is an Initial Application or an Application to Vary
- Outcome
- Proceeding to continue as an initial application; no binding agreement for court purposes.
- Legal Topics
- Binding Agreements, Court Orders, Best Interests of the Child, Variation of Orders, Interlocutory Determination
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
M.D.
Respondent
C.A.K.
Applicant
Procedural Posture
Family Court Maintenance and Custody Proceeding / Interlocutory Application to Determine Whether the Proceeding Is an Initial Application or an Application to Vary
Legal Issues
- 1 Whether representations made on the record on July 13, 2004 constituted a binding agreement forming a court order
- 2 Whether the court is bound by the parties' agreement absent a finding that terms are in the child's best interest
- 3 Whether the proceeding should proceed as an initial application or as an application to vary
Ratio Decidendi
No binding agreement existed because the respondent refused to instruct counsel to sign the prepared order and the court did not have adequate evidence to conclude the terms were in the child's best interests; therefore the proceeding will continue as an initial application rather than an application to vary.
Court Disposition
Proceeding to continue as an initial application; no binding agreement for court purposes.
Orders
- The interlocutory application is dismissed to the extent it sought a declaration that a binding agreement and court order existed; the proceeding will continue as an initial application rather than an application to vary.
- For court purposes there is no binding agreement between the parties.
Full Case Text
Judgment text and source record
1 paragraphs
M.D. v. C.A.K. Court Family Court Date 2004-11-15 Citation 2004 NSFC 16 Docket 04D031769 Judge/Registrar/Adjudicator Comeau, John D. (Honourable Judge) Document Type Decision Decision Content IN THE FAMILY COURT OF NOVA SCOTIA Citation: M.D. v. C.A.K., 2004 NSFC 16 Date: November 15, 2004 Docket: 04D031769 Registry: Yarmouth Between: M.D. APPLICANT /RESPONDENT v. C.A.K. RESPONDENT /APPLICANT Editorial Notice Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Chief Judge John D. Comeau Heard: September 21, 2004, in Digby, Nova Scotia Written Decision: November 15, 2004 Counsel: Corinne R. Corbett, Q.C., for the Applicant Martin J. Pink, Q.C., for the Respondent THE APPLICATION: [1] This is an interlocutory application to determine whether the court will be dealing with this proceeding as an initial application or an application to vary which would require proof of a change in circumstances. ISSUE: [2] Whether the parties, during their representations to the court on July 13th, 2004, entered into a binding agreement that formed a court order. FACTS: [3] The court has had the benefit of reviewing the audio tape of the proceedings held on July 13th, 2004. Ms. Reardon, counsel for M.D., and Mr. Pink, counsel for C.K., were both present. Ms. Reardon was to prepare the court order and have Mr. Pink review it. Mr. Pink said, “What we want to do is prepare an order making the applicant (C.K.) primary caregiver.” He also referred to child support and conditions of access. The order was never issued by the court because the Respondent, M.D., did not agree to some of the terms incorporated in the draft. THE LAW: [4] The Maintenance and Custody Act sets out how agreements between parties may be dealt with: 31 In proceedings under this Act, a court may consider the terms of any agreement respecting maintenance payable for a party or respecting custody of or access to a child but the court is not bound by the agreement if the court is of the opinion that the terms of the agreement are not in the best interest of a party or the child. R.S., c. 160, s.31. CONCLUSIONS/DECISION: [5] The parties set out the terms of an agreement with respect to custody, access and child support on the record. Once the order was prepared to be issued, the Respondent, M.D., refused to instruct his counsel to confirm (sign) the order for issuance. This was due to the fact that the Respondent, M.D., who is the natural father of the child, the subject of the proceeding, did not agree to joint custody between the Applicant, C. K., her husband and himself. [6] The court finds that an agreement between the parties is not binding. In particular, the Respondent, M.D., through counsel, has indicated he feels the terms of the agreement are not in his best interests. The court does not have enough evidence to determine whether it is not in the child’s best interest. [7] Consequently, the continuation of this proceeding will be on an initial application and not as an application to vary. For court purposes, there is no binding agreement. ___________________________________ Judge John D. Comeau Chief Judge for the Province of Nova Scotia