What is the test for "express contradiction" between two separate laws on custody of a child?

New Brunswick, Canada


The following excerpt is from Brewer v. Brewer, 1981 CanLII 2864 (NB CA):

In Constitutional Law of Canada it is said at pp. 103-4 and 111: The clearest case of inconsistency, which I call express contradiction, occurs when one law expressly contradicts the other. For laws which directly regulate conduct, an express contradiction occurs when it is impossible for a person to obey both laws; or, as Martland J. put it in Smith v. The Queen, 1960 CanLII 12 (SCC), [1960] S.C.R. 776, 800, "compliance with one law involves breach of the other". For laws which operate at one remove from human conduct, that is to say, which operate only indirectly upon human conduct, the test of possible compliance with both laws may not be appropriate. But an express contradiction will occur if one law says x and the other law says not-x. • • • • • Where two spouses are separated, and a court order made under federal law grants custody of their child to the wife, while a court order made under provincial law grants custody to the husband, another direct contradiction occurs. • • • • • Whether the laws are inconsistent or not depends not on their dominant purpose or aspect but upon whether they are compatible in operation.

Other Questions


When a separated spouse is a custodial parent of a child, is the separated spouse considered to be a party to a claim of hardship? (New Brunswick, Canada)
What factors will the court consider in determining whether the mother of the child should continue to have access to the child? (New Brunswick, Canada)
What is the test for granting shared custody of a child? (New Brunswick, Canada)
What is the "best interests of the child" in a custody dispute? (New Brunswick, Canada)
Is a motion for an order to separate liability and damages separate from a motor vehicle accident trial? (New Brunswick, Canada)
What is the common law test for shared custody of a child? (New Brunswick, Canada)
What is the test for establishing that a child is still a child of the marriage when they are 18 years old? (New Brunswick, Canada)
What is the case law on the basis of a mother’s argument that a child is entitled to a reduction in the amount of child support if she stops working? (New Brunswick, Canada)
What is the test for a motion judge to award sole custody to the father of the child? (New Brunswick, Canada)
What is the "best interests of the child" test in determining custody and access? (New Brunswick, Canada)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.