Martin v. Bignell, 2012 NSSC 112

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Martin v. Bignell 2012 NSSC 112 Date: 20120316 Docket: SFHMCA-058405 Registry: Halifax Between: Stacey Lloyd Bignell Applicant (on this motion) and Trudy Ann Martin Respondent (on this motion) Judge: Associate Chief Justice Lawrence I. O’Neil Heard: November 18, 2011 Counsel: D. Mark Gardiner for the Applicant Fergus Ford for the Respondent By the Court : Introduction [ 1 ] The parties have three children born in 1999, 2003 and 2004. By Notice of Motion filed on September 30, 2011 Mr. Stacey Bignell seeks a custody and access assessment.

In support of the motion, he offers his affidavit sworn August 16, 2011 and a supplementary affidavit sworn September 28 (filed September 30, 2011). [ 2 ] Ms. Martin is opposed to the assessment. She did not offer documentary, sworn or oral evidence. Her counsel filed a written argument in opposition to the motion. [ 3 ] The matter was argued based on the filed material on November 18, 2011. Mr. Bignell was represented by Mr. Mark Gardiner. Ms. Trudy Martin was represented by Mr. Fergus Ford.

Legal Principals [ 4 ]

Section 32 (

f) of the Judicature Act, R.S.N.S. 1989, c.240 , provides that the court may order a custody and access assessment in a wide range of circumstances. The

section provides: 32(f)

(1) Upon application or on the judge's own motion, a judge of the Supreme Court (Family Division) may direct a family counsellor, social worker, probation officer or other person to make a report concerning any matter that, in the opinion of the judge, is a subject of the proceeding.

(2) A person directed to make a report pursuant to subsection (1) shall file a written report with the Supreme Court (Family Division) together with a copy of the report for each party to the proceeding and for the judge.

(3) The contents of a report filed pursuant to subsection (2) may be received in evidence in the proceeding.

(4) A person filing a report pursuant to subsection (2) is a competent and compellable witness.

(5) Any party, including the party calling the person as a witness, may cross-examine the person referred to in subsection (4).

(6) No action lies or shall be instituted against a person who prepares a report pursuant to subsection (1) for any loss or damage suffered by a person by reason of anything in good faith done, caused, permitted or authorized to be done, attempted to be done or omitted to be done by that person in the carrying out or supposed carrying out of that duty.

(7) A judge may, subject to the regulations, specify in an order made pursuant to subsection (1) the amount of any charge for the report that each party is required to pay. 1997 (2nd Sess.), c. 5, s. 6; 1998, c. 12, s. 9 . [ 5 ] Justice Jollimore’s decision in MacLean v. Boylan 2011 NSSC 314 beginning at paragraph 38 contains a good review of case law relevant to the question before me. [ 6 ] The burden to establish the need for an assessment is on Mr. Bignell. It is to establish the same on a balance of probabilities. The mere fact that an assessment would benefit or assist the Court is not enough.

The type of information sought, or opinion sought must be outside the scope of what would be or could be reasonably understood to be within the purview of a hearing or result from it. The information or opinion sought must not be otherwise available than from an expert. [ 7 ] Herein, Mr. Bignell reviews in detail circumstances of parenting by Ms. Martin that raise a concern about her level of parenting. There was no oral evidence. This is how the parties choose to have the application considered. [ 8 ] By order dated September 3, 2008, the children’s primary care was entrusted to their mother, Ms. Martin. Mr.

Bignell now expresses concern about the stability of the home provided to the children by Ms. Martin. His concerns also flow from alleged abuse of alcohol by Ms. Martin and her inability to meet the basic needs of the children, including their need for food. He also expresses concerns about the adequacy of the children’s clothing. [ 9 ] Mr. Bignell seeks primary care of the children. [ 10 ] The concerns raised by the evidence are similar to those raised in many proceedings in the context of disputes about custody and access.

Courts are regularly called upon to make decisions on the allocation of parenting time after considering the evidence and the

best interests of the children. [ 11 ] I am satisfied that this proceeding is no different. A custody and access assessment is not required. The court is well positioned to make the decision on custody and access that is placed before it. [ 12 ] A custody and access assessment order will therefore not be issued. [ 13 ] The matter will be scheduled for a pre-trial and hearing. A staff member from scheduling office at Devonshire will call counsel to arrange a date for a pre-trial. A.C.J.