Boland v. Cashin, 2014 NLCA 7

Date: 201 40210 Docket: 13/10 and 13/23 Citation: Boland v. Cashin , 2014 NLCA 07 PUBLICATION BAN: THERE IS A PUBLICATION BAN ON THE NAMES OF ALL CHILDREN REFERRED TO HEREIN AS WELL AS THE NAMES OF ANY PERSON WHO COULD IDENTIFY THE SAID CHILDREN. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: LESLEY BOLAND APPELLANT AND: JASON CASHIN RESPONDENT Coram: Welsh, Rowe and Harrington JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Family Division (U) 200902U0500 Memorandum of Disposition Filed: February 10, 2014 Counsel for the Appellant: Linda M. Rose, Q.C. Counsel for the Respondent: Douglas Moores, Q.C.

MEMORANDUM OF DISPOSITION Welsh J.A.: [ 1 ] The parties to this appeal agree that the order of the family court judge filed on March 1, 2013 should be set aside on the following grounds, as set out in the factum of the Appellant: 33. … The Appellant requested the right to be heard on the issue of an equal-time parenting schedule. This proceeding was important and the outcome was adverse to the Appellant’s interests. The Trial Judge recognized the parents’ right to determine a

schedule that worked for them. When they could not come to agreement on their own he ordered a week-about

schedule without hearing from the parties. More importantly, he did this after granting them leave to return to the court for a determination of the issue. The parties were seeking a judicial determination regarding the issue of scheduling because of unique circumstances. [ 2 ] The parties agree that the family court judge failed to provide them with a fair hearing and, in particular, the right to adduce the necessary evidence on which a determination would be made.

Accordingly, by consent, pursuant to rule 57.26 of the Rules of the Supreme Court, 1986 , the parties seek an order of this Court, reversing the family court judge’s order.

Rule 57.26 provides: The parties or counsel for the parties may consent to the reversal or variation of the judgment, order or proceeding appealed from by giving to the Registrar a notice of consent signed by the parties or counsel for the parties and thereupon the Court may, subject to such conditions as the Court may impose, pronounce judgment of reversal or variation accordingly. [ 3 ] The parties have filed the necessary, endorsed Notice of Consent.

Upon a review of the information filed, and concluding that there is a case to be made that a fair hearing was not accorded the parties, the Court is satisfied that an order, pursuant to rule 57.26, should issue, reversing the order of the family court judge filed on March 1, 2013 (Court File No. 09-500). [ 4 ] Accordingly, pursuant to rule 57.26, the consent order requested by the parties is granted. The decision of the trial judge is reversed.

The matter is remitted to the family division of the Supreme Court, Trial Division for a new hearing before a different judge. [ 5 ] There will be no order as to costs. ______________________ B. G. Welsh J.A. ______________________ M. H. Rowe J.A. ______________________ M. F. Harrington J.A.