Elliott v. Elliott, 2012 NSSC 364

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Elliott v. Elliott, 2012 NSSC 364 Date: 20121018 Docket: 1201-059388 Registry: Halifax Between: Paula Angela Elliott Applicant v. Robert Levi Elliott Respondent LIBRARY HEADING Judge: The Honourable Justice Douglas C. Campbell Heard: February 1, 2012 and October 17, 2012 in Halifax, Nova Scotia Subject: Custodial, mother’s mobility with children.

Summary: An existing court order provided for the children to be in joint custody of their parents. Because of her employment in Alberta, the mother’s parenting time occurred when she was present in Nova Scotia and the father had parenting time for the balance. The father applied for custody. Mother gave up her job in Alberta returned to Nova Scotia and sought an order for custody. Her Alberta employer later offered employment to her in Newfoundland and Labrador which she accepted. Her application then changed to allow her to have custody notwithstanding her moving the children to Newfoundland.

Issue: Whether the father should be given custody or whether the mother should have custody with the right to move the children out of the province. Result: The mother was granted custody under a plan to move the children out of the province. The father was granted reasonable access. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET .

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Elliott v. Elliott, 2012 NSSC 364 Date: 20121018 Docket: 1201-059388 Registry: Halifax Between: Paula Angela Elliott Applicant v. Robert Levi Elliott Respondent Judge: The Honourable Justice Douglas C. Campbell Heard: February 1, 2012 and October 17, 2012, in Halifax, Nova Scotia Counsel: D.

Brian Newton, Q.C., for the applicant Robert Elliott, self-represented By the Court: [ 1 ] The parties to this Application to Vary (hereinafter referred to respectively as the “ mother ” and the “ father ” ), are the parents of two children, being Allison, born September 28, 2000 (now 12 years of age, hereinafter referred to as “ the female child ” ) and Ben, born April 24, 2003 (now nine years of age, hereinafter referred to as “ the male child ” ). [ 2 ] The parties separated in 2004, signed minutes of settlement dated May 30, 2005 and were divorced by a Divorce Judgment dated December 6, 2005 on terms outlined in the Corollary Relief Judgment of the same date. [ 3 ] The mother has a high school diploma and worked in roughly minimum wage jobs initially.

The husband sustained an injury

in May 2002 and has been in receipt of Workers Compensation benefits since then. He has also worked on a seasonal basis with his father ’ s companies and has been in receipt of Employment Insurance benefits following those periods of employment.

The father initially had primary care of the children following the separation. [ 4 ] In 2008 the mother obtained employment in Alberta providing her with an increased income which over time elevated to a salary of roughly $80,000. [ 5 ] By a Consent Variation Order dated July 11, 2008, the parties agreed to a parenting arrangement that would reflect the mother ’ s new employment by providing parenting time for portions of the time when she would be present in Nova Scotia for roughly 8 days following three weeks of work in Alberta.

Her evidence was that, despite the wording of that order, the parties agreed and operated under an arrangement where she had both children for the entire time that she could be present in Nova Scotia under that work schedule, except for arrival and departure arrangements. [ 6 ] In November 2011, the female child made certain disclosures to the mother that caused the mother to decline to return the child to the father ’ s primary care as contemplated.

These disclosures included an allegation by the female child that the father was drinking beer heavily during his caregiving time, that he called the child by derogatory names and that he physically touched her chest commenting that she was developing “ titties ” . As a result, the Minister of Community Services in the capacity of an Agency pursuant to the Children and Family Services Act investigated. The Agency ’ s file was provided to the Court and testimony was received from two of its employees.

Testimony from those individuals revealed a substantial degree of concern that the disclosures from the female child were both valid and un-coached (by the mother) in the opinion of this Court.

Counsel for the Agency was invited to participate at an earlier stage in the preceding and he indicated that the Minister would not be concerned as long as the mother had primary care of the children but that a return of the children to the father ’ s care would result in some form of Agency intervention. [ 7 ] These disclosures by the female child resulted in various Court Orders being issued in a temporary way leading to the within hearing. Initially, the focus of this application was the mother ’ s application to vary custody.

The father then applied for custody of the children. [ 8 ] The Mother gave up her job in Alberta in order to be available to both children in Nova Scotia. For a short period of time she was unemployed. She then obtained a six month contract with her Alberta employer to work from Nova Scotia at a reduced salary. [ 9 ] At the father ’ s request, hearing dates were adjourned from the late spring of 2012 to yesterday ’ s date.

He wanted time to obtain Counsel and agreed to pay child support in the meantime under an arrangement whereby he would have specified access to the male child and access to the female child only after taking into account that child ’ s wishes. In fact, he paid no child support. He commented that he tried to do so.

Given that the court order required him to direct the support to the Maintenance Enforcement Program, his suggestion that he made an effort to pay is not an excuse because the obligation to pay was to that Program and not to the mother and that was clear. [ 10 ] The Court heard evidence from the two witnesses from the Minister of Community Services at a previous court session on February 1, 2012 and that was adjourned to the late spring and then concluded yesterday. [ 11 ] During the period of that adjournment, the mother ’ s six-month employment contract expired but she was offered more permanent employment to manage a remote site to which her employer offered services in the Province of Newfoundland and Labrador.

She accepted that offer and commenced that employment in September 2012 while making arrangements for the children to be cared for in Nova Scotia pending yesterday ’ s hearing. This contract pays her a salary of approximately $85,000. [ 12 ] In the meantime between the end of her six month contract and her new employment, the mother has traveled to Newfoundland to perform the services of that new job.

The child care arrangements she has had in Nova Scotia have now expired and she must either take the children to Newfoundland and resume her employment there or lose that employment opportunity by staying in Nova Scotia. She has only a day or two to remain in Nova Scotia. As a result, I am asked to give my decision immediately at the risk of causing her the potential loss of employment. She testified that she has no available employment in Nova Scotia Her expertise is in serving industries with food and lodging services in remote locations.

[ 13 ] Accordingly, this case has changed from one of competing claims for custody of the children to one in which mobility with the children is sought by one parent and resisted by the other. [ 14 ] As a result of this time squeeze, it is required of me that I give a decision quickly. I do not have sufficient time to articulate my reasons as fully as I would do in other circumstances. Counsel for the mother has referred me to a number of decisions of various Courts including the Supreme Court of Canada on issues of mobility in the context of child custody.

I do not have sufficient time to quote from those cases or to refer to them in this discussion but I wish to assure both parties that I am fully familiar with all of the cases cited to me and of the principles enunciated therein. [ 15 ] I am being asked to choose between two parenting plans. The father ’ s plan is to defer custody until he can have a stable residence in which to provide for his children. He has no current home and only the hope of a lump sum settlement with the Workers Compensation Board to provide him with the funds to secure a suitable home.

He concedes that in the next few days he cannot offer a plan that provides for an appropriate home for the two children. He denies the allegations of the female child above noted but there is substantial evidence from the two employees of the Agency to corroborate that child ’ s allegations. Simply put, the father has no viable plan. Additionally, the allegations at the very least raised concerns about the propriety of the father offering a plan for either or both children. [ 16 ] Alternatively, the mother has a viable plan. She has the clear financial resource to provide for the children.

She faces a deadline in terms of her employment. She has no reasonable alternative employment in Nova Scotia that would allow for the father to have regular access with the children and there is no reasonable prospect that the female child will accept contact with her father. The mother has been the main breadwinner for the separated family and she must be given the opportunity to pursue her accepted obligation in that regard. [ 17 ] The only viable outcome of this application is to permit the mother to continue to be in a primary care giving role for both children.

Notwithstanding her intention to live in the province of Newfoundland and Labrador and to resume her employment there, I will sign an order which provides for her to have custody of both children. [ 18 ] It is impossible for this court to detail the father ’ s parenting time (in light of my decision awarding custody to the mother) because the female child refuses to have contact with him and because the father has not presented an access plan that would envisage the mother being in custody of the children.

Therefore, I hereby order that the father shall have reasonable access to both children as the circumstances may permit and I would direct that the mother should provide for an arrangement by which she assists with the cost and the fact of the transportation of the children from Newfoundland to Nova Scotia at various available times for the children to be in the care of their father during school breaks such as Christmas, spring break and summer break and any other access that is feasible. [ 19 ] In the event that the father is not satisfied with arrangements offered by the mother, he shall be at liberty to apply to the court for specific direction in this regard after filing a detailed plan for parenting time.

CAMPBELL, J.