This Month In Family Law ' December 2021

• Published date: 11 January 2022
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Family Law, Trials & Appeals & Compensation
• Law Firm: Cox & Palmer
• Author: Ms Jocelyn Campbell, Michelle Axworthy, Andrea Pierce, Kelcie N. White and Dominique Perinchief

BJT V JD, 2021 SCC (neutral citation to follow)
Justices Wagner, C.J. and Moldaver, Karakatsanis, Cote, Brown, Rowe, Martin, Kasirer and Jamal

Issues: Parenting

The parents separated in 2012, after which the mother left Alberta to return to Prince Edward Island. At that time, the father was unaware that the mother was pregnant with their child. Four years later, the child was in the care of the applicant maternal grandmother when the father learned of the child's existence and applied for permanent custody.

The trial judge held that the child should remain with his grandmother in Prince Edward Island. The Prince Edward Island Court of Appeal held that the child should be permanently placed in his father's custody in Alberta.

The Supreme Court of Canada unanimously set aside the Court of Appeal's decision, awarded the child's maternal grandmother custody, and ordered the child be returned to her on or before March 21, 2022.

Reasons to follow.

Wintrup v Adams, 2021 NSCA 88
Justice Cindy A. Bourgeois

Issues: Stay Pending Appeal

In May 2021, the Nova Scotia Supreme Court dismissed Ms. Wintrup's claim for retroactive and prospective spousal support and made several determinations concerning the categorization of assets as either matrimonial or non-matrimonial. A major issue at trial was Ms. Wintrup's withdrawal of $200,000 and Ms. Wintrup's subsequent purchase of a property in Halifax.

A Corollary Relief Judgment was issued on August 20, 2021, that directed Ms. Wintrup to pay $268,019 to Mr. Adams. Since the decision and judgment, Ms. Wintrup has filed a Notice of Appeal and a Motion for Stay.

The Court of Appeal dismissed Ms. Wintrup's Motion for Stay because she failed to establish a probability that she would suffer irreparable harm if the stay was not granted. Ms. Wintrup argued that if she is successful on appeal, there is a risk that Mr. Adams would not repay the $268,019 because he lives in Saudi Arabia, which is not a party to any reciprocal enforcement arrangements with Canada. The Court of Appeal considered the circumstances of the case and found that since Mr. Adams attorned to the jurisdiction of Nova Scotia and has otherwise complied with the court processes, it is unlikely that he would not repay Ms. Wintrup. The Court of Appeal reiterated that the possibility of irreparable harm is insufficient to grant a stay. Rather, probability of suffering such harm must exist.

JD v CB, 2021 NSSC 345
Justice Theresa M. Forgeron

Issues: Parenting - Child...