Mahaney v. Malone, 2013 NSSC 400

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Mahaney v. Malone, 2013 NSSC 400 Date: 20131206 Docket: 1201-060579 Registry: Halifax Between: Thomas Russell Mahaney Petitioner v. Andrea Gail Malone Respondent ______________________________________________________________________________ LIBRARY HEADING ______________________________________________________________________________ Judge: The Honourable Justice Beryl A. MacDonald Heard: November 20, 2013 Keywords: Family, Variation, Corollary Relief Order, Custody, Shared Parenting, Material Change Legislation: Divorce Act , R.S., c.3 s. 17

Summary: The Father applied to change the provisions of a previous order so there would be a shared parenting arrangement for the children. The Father had been requesting a shared parenting arrangement since he and the Mother separated in 2005. The Mother did not consider this an appropriate arrangement for the children and the court agreed with her after an interim hearing in October 2006, a Divorce hearing in May 2007 and a variation hearing in April 2009. The court considered whether there had been a material change of circumstances since the date of the last order.

The relevant questions to the material change analysis are - does the alleged change exist; does or will the change effect the child or the child’s life in a significant way; does or will the change effect the ability of the parent to meet the needs of the child in a significant way? The alleged changes were there no longer was conflict in the relationship between the - 2 -

Father and the Mother and the oldest child had been residing in the Father’s home one additional overnight every week. The court did not find there had been a material change. It accepted the Mother’s evidence about the conflict. The oldest child was “caught in the middle” of the parent’s conflict and his actions cannot be considered to be “independent” . The Father’s application was dismissed. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT’S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . IN THE SUPREME COURT OF NOVA SCOTIA Citation: Mahaney v.

Malone, 2013 NSSC 400 Date: 20131206 Docket: 1201-060579 Registry: Halifax Between: Thomas Russell Mahaney Petitioner and Andrea Gail Malone Respondent Judge: The Honourable Justice Beryl A. MacDonald Date of Hearing: November 20, 2013 Counsel: Terrance Sheppard, Counsel for the Petitioner Julia Cornish, Q.C., Counsel for the Respondent

By the Court: Introduction [1] On January 24, 2013 the Father filed a Notice of Variation Application under

section 17 of the Divorce Act, R. S. , 1985, c.3 . Hewanted to have the children in his care for one more overnight thus providing him with a shared parenting arrangement. If this requestwas granted he suggested neither parent should pay the other child support. The Mother objects to the change requested by the Fatherbut she does want a change to the summer parenting schedule. [2] The Father has been requesting a shared parenting arrangement since he and the Mother separated in 2005.

The Mother did notconsider this an appropriate arrangement for the children and the court agreed with her after an interim hearing in October 2006, aDivorce hearing in May 2007 and a variation hearing in April 2009. [3] Under the present Order the parties have joint custody but the Mother has the final say if a decision cannot be agreed upon. Thechildren are in the Father's care in Week 1 from Friday after school until Tuesday morning and in Week 2 from Monday after school untilTuesday morning. The father now wants to extend Week 2 from Monday after school until Wednesday morning.

The parties are to shareparenting time equally during the summer vacation break, Christmas and Easter. How the parties are to " equally share" these holidays isnot described in the Order. [4] The court cannot consider the merits of an application to vary the custodial provisions of an Order until it is satisfied there has beena material change in the circumstances of the child since the last custody order was made. A more specific discussion about thisrequirement has been provided by Justice McLachlin (as she then was) in Gordon v.

Goertz , (S.C.C.), at paragraph 13: 1. there must be a change in the condition, means, needs or circumstances of the child or the ability of the parents to meet the needsof the child; 2. the change must materially affect the child; 3. the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. [5] If the criteria set out by Justice McLachlin are proven on a balance of probabilities by the party alleging the change, the court mustthen determine what is in the child's best interest. [6] Not all changes in a child's life are "material" changes.

The fact that a child will age, a parent may move, a new partner may appearand step siblings introduced, may all be foreseen and reasonably contemplated. However, these common life changes often areconsidered sufficiently material for courts to rearrange parenting plans. This will occur when there is evidence that the change has or will"materially affect the child". [7] The reference to changes that were not foreseen or reasonably contemplated is a reference to a change that was not considered ortaken into account in making the previous order.

It is not, and cannot be a reference to all changes that might be contemplated in a life ifone took the time to consider what could happen. [8] Court orders are not to be treated as "suggestions" permitting parties to ignore their effect whenever they believe a change hasoccurred. The purpose of the development of the "material change" standard was to provide as much certainty as possible to parents andchildren about parenting arrangements. Lives were not to be frequently rearranged merely because something about the parties lives hadchanged.

Just because a parent may have arranged his or her life to be able to parent under a

schedule that was not practical at the date ofthe last hearing does not mean a change should be made. The change, as it would effect the child, must have considerable significance - itmust be "material" or as some courts have said "substantial". Only when a court has concluded that this threshold has been reached is thecourt to inquire into the child's best interests which then includes consideration of section 16 (10) of the Divorce Act - the provision

relating to "maximum contact" with a parent. The argument must not be reversed by applying this type of analysis - it is in the best interest of children to have "maximum contact" therefore anything that will permit a parent to have more contact with a child is a material change. This analysis presupposes more contact is in the best interest of children without recognizing the requirement that the best interest must be proven by evidence after a material change has been found to exist.

The relevant questions to the material change analysis are - does the alleged change exist; does or will the change effect the child or the child’s life in a significant way; does or will the change effect the ability of the parent to meet the needs of the child in a significant way? [ 9 ] When considering whether there has been a material change in this proceeding I must first examine the factual situation that existed at the time the last order was made.

At that time the Father asserted the previous order should be changed because: - he lived five minutes from the Mother's residence and was in a position to share parenting of the children - he was in a new relationship for over a year and his partner also had children - the oldest child asked to spend more time with him - the back and forth of the current

schedule created difficulties - the Tuesday/Thursday

schedule during the week was "hectic" [ 10 ] The findings made in Justice Williams decision, Mahaney v Malone , 2009 NSSC 217 that I consider relevant to this proceeding are: [24].....At the end of the day, the record would indicate that both of the parties have had mis-communications or incomplete communications and at times even inappropriate communications with each other. [30] (The Father'

s) concerns about communication and some of the examples of such problems came with little or no examination or recognition of his own role in such events or the limits in his own behaviour and life. (The Father ) presents as being rather self-righteous concerning his own circumstances, while all too anxious to – and I use a phrase used by (the Mother'

s) counsel, "to mine (the Mother'

s) circumstances for negative concerns. He does son both directly and by innuendo...... [34] (The Father'

s) concerns are diverse and seem even to this court unrelenting. He indicated at one point in his evidence "he would not stop until he got what he wanted". I believe (the Father is a well-intended and good parent who has simply gotten off track.... [41] I conclude that Justice MacDonald contemplated (the Father'

s) move into his current home with (his current partner) in the same area and school district as (the Mother). I conclude that there is no material change in circumstance arising from that move. I conclude that the mere aging of the children since the divorce trial 23 months ago is not a material change in circumstances contemplated by the Divorce Act . [42] Justice MacDonald hoped the conflict between the parties would subside. It has not. She did not foresee that it would not. In fact, she assumed it would. I conclude that there is a material change in circumstance that was not foreseen.........

I conclude the conflict is exacerbated by the back and forth of the current schedule....... [43] (The Father ) has sought a shared parenting, a 50/50 parenting relationship. The courts in Nova Scotia have been rather consistent in considering shared parenting arrangements and expressing the view that a greater degree of communication and cooperation is needed for

those relationships to work than in more traditional custody arrangements. XI. Justice Williams concluded that these parents would not be able to make decisions together or "separate their feelings for each other to focus on the children's need for a relationship with both parents." (para. 45) He also noted the comment of Justice Coady in Bryden v. Bryden , [2005] NSSF 9 that shared parenting will only work if both parents are committed to such an arrangement. (para. 46). XII.

In this case the Father alleges there has been a material change because: - there is no longer conflict in his relationship with the Mother - the oldest child has been residing in his home overnight on Tuesday every week XIII. The Mother alleges the conflict continues and the oldest child has not been returning to her home on Tuesday evening because of the Father's pressure upon him to stay in his home. The Mother has never agreed to this arrangement although she permitted it to exist in order to put less pressure on the oldest child who she believes is caught in a loyalty bind between her and the Father. XIV.

Credibility is an issue. In reaching my decision I have considered and applied the criteria for assessing credibility set out in Novak Estate, Re , 2008 NSSC 283 . XV. Conflict comes in many forms but often the most damaging to children is unresolved parental conflict about the child or which directly involves the child. The expression of this conflict is damaging whether it is physical, emotional or psychological. Children know when their parents are in conflict and that conflict often creates a climate of tension, chaos, disruption and unpredictability that is stressful for children.

They may be invited, inappropriately, either overtly or covertly, to take sides and disobey court orders. They become caught in the middle and may feel forced to comply with the wishes of the parent who appears to hold the stronger hand. They may be manipulated into this compliance. Their wishes cannot be considered to be "independent" or "mature". XVI. The Father suggests there is little conflict in his relationship with the Mother. He sites the many instances when he has accommodated the Mother's requests. He has kept notes he has provided to the court to confirm his testimony.

These are his notes and he admits he did not write down the occasions when he did not accommodate. His incomplete notes are of little use in satisfying me that he has been as easy to deal with as he would have me believe. The undercurrent in his evidence, and in submissions from his counsel, is that the Mother's responsibility is to keep her own notes and because she has not I should not accept her evidence that the conflict is ongoing and relentless. The Mother is not responsible to keep notes. Self serving “notes” are of little probative value to the court. XVII.

The Mother has not provided a detailed list of conflict events in her evidence. She provided some examples. The Father submits he has answered the allegations contained in those examples and that his responses to the events described were reasonable. On the rare occasions when this was not the case he argues the events were not of recent time. The Father's version of what is reasonable is very different from the Mother's.

I accept her version of what happened in October 2013 when he insisted his present spouse care for the youngest child instead of the child’s Mother who was ready, willing and able to care for her. I accept the Mother’s information about what happened in respect to her care of the youngest child on the occasion of the hockey tournament in PEI. These examples indicate to me the Father prefers his present spouse to care for the children and will manipulate situations to achieve this result. The evidence taken as a whole confirms the Father has little respect for the Mother and she knows this is his opinion. XVIII.

The Father is a master at innuendo as is evidenced in the text message sent to the Mother entered as Exhibit #3, "The children told me that you and Martin broke up; I trust that you handled it appropriately ." (my emphasis) The underlying message is that she may not have handled it appropriately and needed a reminder to do so. XIX. These parents have not established the respectful, responsive, co-operative parenting arrangement required for a successful shared parenting schedule.

One might ask what difference will one overnight for both children make given that the children seem to be coping with the arrangements made by the parents from time to time even though there is conflict? The difference is rooted in the requirement that I must find there is a material change to justify a new parenting arrangement. The parties remain in conflict. Nothing has

changed in their relationship since the last variation proceeding. XX. Is the fact that the oldest child has been spending an additional overnight a week a material change? It is not. I accept the Mother's evidence that the oldest child is caught in the middle and as a result his actions cannot form the basis of a proven material change. In addition, I am disturbed by how quickly the Father permitted this child to "disobey" an order. If this child wanted to stop attending school I doubt he would agree. He justifies what has happened by placing the responsibility upon the Mother to require the chid's return.

He knew or should have known this would require court proceedings the Mother would be reluctant to initiate. Further court proceedings are of no benefit to these children and contribute to the stress experienced by everyone. Even worse than placing the Mother in this untenable situation , the Father had the oldest child contact the Mother to ask if staying in the Father’s home overnight was ok. This placed an inappropriate burden on the child. It placed the child directly in the middle of his parents disagreement about the parenting arrangement. XXI. The Father's application for a variation is dismissed. XXII.

The Mother wants to change the wording of the order to clearly indicate she has final decision making authority notwithstanding the wording in the order that the parties have "joint custody". Under the order she is to have "the final decision making authority that normally flows from the designation of primary caregiver". The parties, she asserts, have not agreed that the oldest child should have a continuing relationship with a counselor. She wants to be able to access this counseling but those who provide this service require the Father's consent based upon the present wording of the Order.

I too find the wording in the Order confusing. The parties have informed me they understand final decisions are to be made by the Mother if joint agreement cannot be obtained. The Order is to be changed to make this clear.

The wording shall be as follows: Subject to clause # (below) the Father and the Mother shall have joint custody of the children meaning that both parents must agree about decisions that have significant or long lasting implications for the child or that impose responsibilities on a parent - for example, decisions about physical or mental health; dental care; counseling; education; recreational activities.

In the event that the parents are unable to agree about a decision that is to be made jointly the Mother shall have the right to make the final decision and service providers are not required by this order to obtain and receive the Father's consent to provide their services. XXIII. The Mother also wants to change the way the parents have been "sharing parenting" during the children's summer school break. The mother wants the regular parenting

schedule to apply. The Order requires that they share parenting time equally during the summer vacation break. The regular parenting arrangement is not an arrangement in which the parents "share parenting time equally". Those words suggest an adding up of days or time and an apportionment to each parent on a 50/50 basis. In fact this appears to be what the parents have done moving to a week on/week off parenting arrangement during the summer months. XXIV. The Mother must convince me there is a material change that justifies her request.

The only change she has suggested is the Father's unwillingness to ensure the children will participate in the summer camps that occur during the time when the children are in his care. The Father suggests he has taken them to their camps but he only makes reference to a camp his daughter attended. However, the Mother has not provided sufficient evidence of the Father's unwillingness to convince me this is a substantial concern negatively affecting the children. XXV. I dismiss the Mother's request for a variation. XXVI.

Because I have not varied the previous order, there will be no change to the child support provisions. Beryl A. MacDonald, J.