P.D.P. v. D.T.W.

P.D.P. v. D.T.W.

Court held the ex parte affidavits contained material misrepresentations and service requirements were not followed so an ex parte order can be vacated for non-disclosure, but because the ex parte order had been made final by another judge the Family Court lacked inherent jurisdiction to vacate that final order; respondent nevertheless qualified as a guardian or had standing to apply; on a fresh best interests inquiry the child’s primary care was awarded to the mother and relocation to Alberta was denied while regular contact with respondent was ordered.

Citation
2014 NSFC 22
Parties
Applicant: P.D.P.; Respondent: D.T.W.
Court
Nova Scotia Family Court
Jurisdiction
Canada
Judgment Date
30 June 2014
Procedural Posture
Family Law Custody and Parenting Time / Variation Application Following Ex Parte and Final Order (inter Partes Hearing)
Outcome
Variation granted in part: child placed in primary care of mother; relocation to Alberta denied; respondent's contact preserved; ex parte findings of misrepresentation noted but final order not vacated by this Court.
Legal Topics
Ex Parte Orders, Vacatur/setting Aside Orders, Jurisdiction of Statutory Courts, Standing/leave to Apply, Best Interests of the Child, Mobility/relocation
Source Language
English
Family Law Child Custody and Access Civil Procedure Ex Parte Orders Vacatur/setting Aside Orders Jurisdiction of Statutory Courts Standing/leave to Apply Best Interests of the Child +1 more

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Parties

P.D.P.

Applicant

D.T.W.

Respondent

Procedural Posture

Family Law Custody and Parenting Time / Variation Application Following Ex Parte and Final Order (inter Partes Hearing)

Legal Issues

  1. 1 Whether an ex parte order can be vacated or set aside
  2. 2 Whether a statutory Family Court has jurisdiction to vacate a final order
  3. 3 Whether respondent required leave or was a guardian with standing to seek custody/parenting time

Ratio Decidendi

Court held the ex parte affidavits contained material misrepresentations and service requirements were not followed so an ex parte order can be vacated for non-disclosure, but because the ex parte order had been made final by another judge the Family Court lacked inherent jurisdiction to vacate that final order; respondent nevertheless qualified as a guardian or had standing to apply; on a fresh best interests inquiry the child’s primary care was awarded to the mother and relocation to Alberta was denied while regular contact with respondent was ordered.

Court Disposition

Variation granted in part: child placed in primary care of mother; relocation to Alberta denied; respondent's contact preserved; ex parte findings of misrepresentation noted but final order not vacated by this Court.

Orders

  • Child to be in the primary care of P.D.P.
  • Child is not to be removed from Nova Scotia except for vacation purposes