Parents disagree on whether to grant consent order regarding their time with their child
In a dispute over whether to execute a consent interim order with a proposed parenting arrangement, the Nova Scotia Court of Appeal found an error in the judge’s failure to give the mother an opportunity to be heard.
In Stevens v. Stevens, 2026 NSCA 50, the parties had a child who was three and a half years old. They separated in early March. On Mar. 5, the father filed a notice of application under the Parenting and Support Act.
On Mar. 19, the trial judge issued an interim order on parenting time. On Apr. 16, the mother’s counsel sent the father’s counsel a consent interim order with a formal offer to settle. The father’s counsel advised the court of the parties’ settlement.
On Apr. 29, the mother’s counsel sent the court the signed consent order and asked the court to grant it. However, the father’s counsel requested that the court deny the order because she and her client discovered after signing it that they had misunderstood the proposed terms.
In a memorandum dated May 5, the judge found that she was not ready to grant the executed consent order or to hear evidence on the order’s enforceability.
The mother appealed from that memorandum. On the other hand, the father filed a notice of contention, which sought to uphold the judge’s memorandum because holding a hearing on the consent order’s enforceability would not serve the child’s best interests.
Matter remitted for hearing
The Nova Scotia Court of Appeal denied the father’s fresh evidence motion, which sought to submit an affidavit addressing the merits of whether the parties had reached a binding agreement. The appeal court noted that this issue was not before it, as the only issue before it was the procedural fairness of the process.
The appeal court also dismissed the father’s notice of contention and rejected his arguments about the child’s best interests. The appeal court pointed out that the child’s best interests would not automatically oust a party’s right to natural justice or prevent a hearing on the consent interim order’s enforceability.
The appeal court granted the mother’s fresh evidence motion, which requested an original remedy on appeal, specifically a hearing on the consent order’s enforceability.
The appeal court also granted the mother leave to appeal and allowed her appeal upon finding an arguable issue. The appeal court saw breaches of procedural fairness and natural justice principles. The appeal court ruled that the trial judge erred by:
- failing to give the mother an opportunity to be heard
- basing the decision on unilateral representations of the father’s lawyer without hearing both parties
- refusing to permit evidence and submissions on the consent order’s enforceability
The appeal court explained that the judge could not exercise any discretion to decline to grant an interim order to which a party did not consent, without first hearing the parties or accepting evidence on the issue.
The appeal court held that the lack of a fair hearing was fatal and invalidated the judge’s decision. Thus, the appeal court remitted the matter to another judge for an impartial hearing on the merits, specifically the consent order’s enforceability.
The appeal court said the consent order would govern the parties in the interim, pending further order of the Nova Scotia Supreme Court’s Family Division.
Lastly, the appeal court ordered the father to pay the mother, as the successful party, the appeal costs of $1,250, including disbursements.
