Hustins v. Hustins, 2014 NSSC 185

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Hustins v. Hustins , 2014 NSSC 185 Date: 2014-June-26 Docket: No. 1201-063860 Registry: Halifax Between: Lorna Marie Hustins Petitioner v. James Dollahite Hustins Respondent Judge: The Honourable Justice Carole A. Beaton Heard: Written Decision: March 24, 27 and 28; April 25, 2014, in Halifax, Nova Scotia June 26, 2014 Counsel: Gordon R. Kelly and Adrienne Bowers, for the Petitioner C.

LouAnn Chaisson, Q.C., for the Respondent By the Court: Background [ 1 ] J.D.H., born June 21, 2005, is by all accounts a happy and active child who enjoys sports; his principal and teacher describe him as getting along well in school and his Mother says he enjoys his time with each parent. For over half of J.’s life his parents have resided in separate homes. Under the current parenting

schedule based on a two week rotation, J. spends three days out of seven with the Respondent (hereinafter the “Father”) and four days of out seven with the Petitioner (hereinafter the “Mother”) in week one, and then the reverse in week two, which requires several transitions by J. between households in that timeframe. [ 2 ] Recently, J.’s parents came to an agreement on parenting time for holidays and special occasions but they remain unable resolve the questions of an appropriate day-to-day parenting

schedule for J., and whether one parent should wield final decision-making authority regarding J. Child support and special expenses are also in issue. These questions came before me for trial pursuant to the Divorce Act, R.S.C. 1985 c.3, the parties’ five year marriage having ended over five years ago (June 2009). [ 3 ] The parties have been engaged in an ongoing and by times intense level of conflict over their child. Compromise has not been a feature of the history of their dealings with one another since separation.

The Mother’s position at trial was that the current parenting arrangement is unworkable and it is in the child’s best interests to be in her primary care, with parenting time for the Father altered from the present

schedule to every second weekend and every Wednesday overnight. The Mother also sought to have primary decision- making authority over the child. [ 4 ] The Father’s trial position was that despite their conflict, the parties have been able to work together in J.’s best interests and are capable of sustaining a shared parenting arrangement going forward. The Father maintained that the parents current equal time with J. should continue, but with a modification to the

schedule to move to a week on/week off timetable and thereby reduce the number of transitions for J. [ 5 ] The corollary relief issues for determination are: (

i) What parenting arrangement is in the best interests of the child? (ii) Which parent, if either, should have final decision-making authority over the child? (iii) Financial issues – child support and special expenses.

[6] Each party called witnesses at the trial. The Father called his roommate, his brother-in-law and his girlfriend. The Mothercalled her father, J.’s Grade 1 and current teachers, J.’s school principal, and psychologist Dr. Valerie Corkum. Dr. Corkum, who wasqualified as an expert witness in child psychology, has been counselling J. and meeting with his parents for approximately two years andover that time has made various recommendations about parenting of J. [7] The father urged the Court to treat Dr. Corkum’s recommendations concerning a prospective parenting

schedule with cautionas she has never conducted an assessment of the parents. Counsel for the Father pointed to matters such as a delay in acquiring ADHDtesting for J., certain inaccuracies in some of Dr. Corkum’s past letters to the parents (which then required follow up or correction) andan exaggeration of a disagreement between the parents about moving J. to a different hockey team, as examples of why the Court shouldbe circumspect about Dr. Corkum’s recommendations. The implication was that Dr.

Corkum has unreasonably favored the position ofthe Mother over that of the Father, which the evidence did not persuade me has been the case. [8] Dr. Corkum’s evidence was of assistance to the Court in providing an objective understanding of J.’s ADHD condition and hisneeds in light of that diagnosis. Dr. Corkum’s observations of each party provided some evidence, as did that of other witnesses,regarding past events or positions taken by each parent. However, Dr.

Corkum’s evidence could not displace the Court’s task ofdetermining the appropriate parenting model/schedule for J., arrived at through an assessment of J.’s best interests within the context ofthe whole of the evidence provided. [9] In their evidence each party recounted certain events in support of their respective positions regarding parenting of J.

Certainof those events will be discussed in more detail later herein, but the parties’ differing versions of them did lead the Court to makedeterminations concerning the credibility of each party, using the framework for analysis discussed by Forgeron, J. in Baker-Warren v.Denault, 2009 NSSC 59: [18] For the benefit of the parties, I will review some of the factors which I have considered when making credibility determinations. Itis important to note, however, that credibility assessment is not a science.

It is not always possible to “articulate with precision thecomplex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the variousversions of events:” R. v. Gagnon 2006 SCC 17, para. 20. I further note that “assessing credibility is a difficult and delicate matter thatdoes not always lend itself to precise and complete verbalization:” R. v. R. E. M. 2008 SCC 51, para. 49. [19] With these caveats in mind, the following are some of the factors which were balanced when the court assessed credibility:

a) What were the inconsistencies and weaknesses in the witness’ evidence, which include internal inconsistencies, prior inconsistentstatements, inconsistencies between the witness’ testimony, and the documentary evidence, and the testimony of other witnesses: Re:Novak Estate, 2008 NSSC 283 (S.C.);

b) Did the witness have an interest in the outcome or was he/she personally connected to either party;

c) Did the witness have a motive to deceive;

d) Did the witness have the ability to observe the factual matters about which he/she testified;

e) Did the witness have a sufficient power of recollection to provide the court with an accurate account;

f) Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonablegiven the particular place and conditions: Faryna v. Chorney (BC CA), [1952] 2 D.L.R 354;

g) Was there an internal consistency and logical flow to the evidence;

h) Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased; and

i) Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving? [20] I have placed little weight on the demeanor of the witnesses because demeanor is often not a good indicator of credibility: R v.Norman (1993) (ON CA), 16 O.R. (3d) 295 (C.A.) at para. 55. In addition, I have also adopted the following rule,succinctly paraphrased by Warner J. in Re: Novak Estate, supra, at para 37: • There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety. On the contrary, a

trier may believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness's evidence. (SeeR. v. D.R., [1966] 2 S.C.R. 291 at 93 and R. v. J.H. supra). [10] Counsel for the Father urged it was “untenable” that his credibility would be impeached solely on the basis of his evidence as tohaving exaggerated his Linkedin account profile, with which I agree.

However, the Court’s concern about the Father’s credibility is notlimited solely to that aspect of his evidence. [11] I did not accept the Father’s claim during cross-examination that he could not recall the authors of and contents of certain emailsput to him concerning communications with other females during the period when the parties’ marriage was ending.

The subject matterin the emails made it difficult to accept the Father’s amnesia as sincere, and while he did eventually volunteer his then-fresh recall of theemails during cross-examination, that too struck the Court as a disingenuous effort to rehabilitate his evidence on the point. [12] The Court was also troubled by the blatant lack of income disclosure by the Father when he failed to advise the Mother for oversix months between December 2012 and July 2013 that he was no longer employed. No explanation for that gap, much less a sufficientone, was provided.

The Father was also less than credible regarding his explanation for his inaction in pursuing Employment Insurancebenefits after December, 2012. Even more problematic was the Father’s claim he had simply forgotten to identify certain commissionincome he had earned during the period January to June 2013, despite having received two Court-issued Notices to Disclose during thattime. [13] The Father’s evidence as to his recall of the timing and chronology of events concerning J.’s switch out of the FrenchImmersion program contained in his letter to Dr.

Corkum dated November 25, 2013 (Exhibit 11) was but one example of why I agreedwith the suggestion made by counsel for the Mother that over time the Father has tried on more than one occasion to “re-write history” inhis documentation of events or his communications with other parties, apparently in an effort to redeem his original position or decision. [14] As the Father was cross-examined by counsel for the Mother, his deliberate and careful choice of words to describe hisdemeanour during a certain meeting with Dr.

Corkum was but one of several occasions during the Father’s evidence when I formed theimpression he was being unnecessarily cautious in his choice of words, seeming to unnecessarily engage in qualifying and wordsmittinghis responses. Overall, I had concerns about the Father’s credibility with respect to significant portions of his evidence. Issue No. 1- What parenting arrangement is in the best interests of the child? [15] In assessing what type of parenting arrangement will be in the best interests of a child,

section 16 of the Divorce Act (supra) c.3guides the Court:

(1) Order for custody - A court of competent jurisdiction may, on application by either or both spouses or by any other person, makean order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage. …

(4) Joint custody or access - The court may make an order under this

section granting custody of, or access to, any or all children of themarriage to any one or more persons. …

(8) Factors - In making an order under this section, the court shall take into consideration only the best interests of the child of themarriage as determined by reference to the condition, means, needs and other circumstances of the child. …

(10) Maximum contact - In making an order under this section, the court shall give effect to the principle that a child of the marriageshould have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take intoconsideration the willingness of the person for whom custody is sought to facilitate such contact. [16] The “best interests” concept was discussed in Young v. Young, 1993 4 SCR 31 wherein McLachlin, J. (as she then was) noted: [203] ...

Parliament has recognized that the variety of circumstances which may arise in disputes over custody and access is so diversethat predetermined rules, designed to resolve certain types of disputes in advance, may not be useful. Rather, it has been left to the judgeto decide what is in the “best interests of the child”, by reference to the “condition, means, needs and other circumstances” of thechild. … Parliament has established a legal test, albeit a flexible one. Like all legal tests it is to be applied according to the evidence inthe case, viewed objectively.

There is no room for the judge’s personal predilections and prejudices. The judge’s duty is to apply thelaw. He or she must not do what he or she wants to do but what he or she ought to do. [17] In Foley v. Foley, (1993) (NS SC), N.S.J. No. 347 “...which in this Province is often cited as the source of a

comprehensive listing of the factors which may assist a court in assessing a child’s best interests” (per Bateman, J. in Burgoyne v. Kenny2009 NSCA, 34 (para. 24)) Goodfellow, J. identified certain considerations in determining the best interests of a child (para. 16): 1. Statutory direction Divorce Act 16(8) and 16(9), 17(5) and 17(6); 2. Physical environment; 3. Discipline; 4. Role model; 5.

Wishes of the children – if, at the time of the hearing such are ascertainable and, to the extent they are ascertainable, such wishesare but one factor which may carry a great deal of weight in some cases and little, if any, in others. The weight to be attached is to bedetermined in the context of answering the question with whom would the best interests and welfare of the child be most likelyachieved. That question requires the weighing of all the relevant factors and an analysis of the circumstances in which there may havebeen some indication or, expression by the child of a preference; 6.

Religious and spiritual guidance; 7. Assistance of experts, such a s social workers, psychologists-psychiatrists-etcetera; 8. Time availability of a parent for a child; 9. The cultural development of a child; 10. The physical and character development of the child by such things as participation in sports; 11. The emotional support to assist in a child developing self- esteem and confidence; 12. The financial contribution to the welfare of the child; 13. The support of an extended family, uncles, aunts, grandparents, etcetera; 14. The willingness of a parent to facilitate contact with the other parent.

This is recognition of the child’s entitlement to access toparents and each parent’s obligation to promote and encourage access to the other parent. The Divorce Act s. 16(10) and s. 17(9); 15. The interim and long range plan for the welfare of the children; 16. The financial consequences of custody. Frequently the financial reality is the child must remain in the home or, perhaps alternateaccommodations provided by a member of the extended family. Any other alternative requiring two residence expenses will oftenadversely and severely impact on the ability to adequately meet the child’s reasonable needs; and 17.

Any other relevant factors [18] In Burgoyne (supra), Bateman, J.A. said this about the above list: [25] The list does not purport to be exhaustive nor will all factors be relevant in every case. Each case must be decided on theevidence presented. Nor is determining a child’s best interests simply a matter of scoring each parent on a generic list of factors. AsAbella J.A., as she then was, astutely observed in MacGyver v. Richards, 1995 ON CA, (1995), (ON CA), 11 R.F.L.(4th) 432 (Ont.

C.A.): [27] “Clearly, there is an inherent indeterminacy and elasticity to the ‘best interests’ test which makes it more useful as legalaspiration than as legal analysis. It can be no more than an informed opinion made at a moment in the life of a child about what seemslikely to prove to be in that child's best interests. Deciding what is in a child's best interests means deciding what, objectively appearsmost likely in the circumstances to be conducive to the kind of environment in which a particular child has the best opportunity forreceiving the needed care and attention.

Because there are stages to childhood, what is in a child's best interests may vary from child tochild, from year to year, and possibly from month to month.

This unavoidable fluidity makes it important to attempt to minimize theprospects for stress and instability. [28] . . . the only time courts scrutinize whether parental conduct is conducive to a child's best interests is when the parents areinvolved in the kind of fractious situation that is probably, in the inevitability of its stress and pain and ambiguity, least conducive to thechild's or anyone else's best interests. [29] Deciding what is best for a child is uniquely delicate.

The judge in a custody case is called upon to prognosticate about achild's future, and to speculate about which parenting proposal will turn out to be best for a child. Judges are left to do their best with theevidence, on the understanding that deciding what is best for a child is a judgment the accuracy of which may be unknowable until laterevents prove -- or disprove -- its wisdom.” [19] Reaching any conclusion about J.’s best interests must be done without the benefit of knowing how his future will unfold, all

the while avoiding the politics of the relationship between his parents. In formulating my conclusions about the appropriate parenting arrangement going forward, I have considered all of the evidence offered by each party in the context of both the statutory direction found in the Act (supra) and the factors listed in Foley (supra). [ 20 ] The Mother is employed full time in a managerial position and maintains a home for her and J. The Father has maintained accommodations with a friend of his for approximately the past year; J. has his own room in that home and also in the home of his Father’s girlfriend.

The Father was unemployed from December 2012 to very recently when he secured employment during the trial, between the close of evidence (March 28) and the final submissions (April 25). Details of his employment remuneration were put before the Court (Exhibit 39) from which it can be safely inferred the Father’s employment will require some travel however, in the absence of any evidence on the point, I can only assume the Father would be available to parent pursuant to the plan he asserted to be in J.’s best interests. [ 21 ] Dr.

Corkum testified that when she began her involvement with J. his presenting problems were difficulties at school and conflict between his parents. She has met with J., with his parents together and with each parent separately to give feedback. Upon being subpoenaed for trial, Dr. Corkum prepared a letter (Exhibit 9) so both parties would be fully aware of her opinions and recommendations, based on her two years of work with the family. Dr.

Corkum testified to a number of issues that have arisen between the parties concerning J., and she noted this was one of the highest conflict families she has seen in her practice, as a result of which she has had to incorporate certain accommodations in dealing with the parents. [ 22 ] Dr. Corkum testified about the particulars surrounding numerous parenting disagreements that have been vetted through her. It is not my intention to canvass here each instance and event recounted by Dr. Corkum and/or the parties, but I note in respect of some disagreements Dr.

Corkum has supported the position of the Mother (e.g. switching hockey teams) and regarding others she has supported the decision of the father (e.g. not over-scheduling J.’s activities). [ 23 ] Early in the counselling relationship, Dr. Corkum recommended preparation of a psycho/educational assessment of J. In September 2012 the Mother raised the possibility of postponing it because she was concerned J. was under a lot of stress. Dr. Corkum, noting J.’s stress and being concerned about it increasing the possibility of false positives in testing, postponed the testing until the spring of 2013.

The Father was critical of that delay in testing in his submissions to the Court. The testing resulted in a diagnosis of ADHD and Dr. Corkum found J.’s intellectual potential was not being reached due to academic underachievement. As a result, she recommended certain learning adaptations at school and the possibility of medication (eventually prescribed by J.’s family physician). Dr. Corkum reported that over time J. has become more focused, settled and happy and has responded well to ADHD medication. [ 24 ] Dr.

Corkum also recommended tutoring, to help with learning gaps, which the Mother arranged but the Father resisted. Curiously, the Father’s evidence was that he was in favor of tutoring but only if J.’s marks were to fall below a certain level, which would seem to contradict his past unsuccessful attempt to secure from J.’s teacher, Ms. Daye, a letter refuting the need for academic tutoring, about which Ms. Daye testified teachers do not make any recommendations. [ 25 ] Dr. Corkum’s evidence was that the appropriate parenting

schedule for J. would be to reside primarily with the Mother and spend overnight Wednesdays and every second weekend with the Father. Dr. Corkum testified it is her impression J. has a more stable routine with the Mother, based upon all of the information she has gathered in her work with the family. The

schedule proposed by the Mother would allow J. more time with the Mother, whom Dr. Corkum believes has imposed a more consistent routine for J., but would still allow J. to have time with the Father, albeit with more of it focused on weekends. Dr. Corkum testified such a

schedule would assist in stabilizing J. by helping to bring his symptoms under control (short term) and teaching him how to follow structure and routine (long term). The Mother advocated that Dr. Corkum’s recommendation be the parenting plan imposed by the Court. [ 26 ] Dr. Corkum expressed concern about the number of times the Father has moved since separation, given J.’s need for consistency and stability.

She testified she had discussed with the Father that it was important to have one place J. would call home with the Father, and why weeknight stays with J. at the Father’s girlfriend’s home would properly be in the minority. At one point the Father provided her with a tally of where he had spent his nights with J. over a given period, which she testified may have contributed to J.’s present concept of home as being wherever one happens to be at any given time, and which would also have served to exacerbate J.’s ADHD symptoms. Dr.

Corkum noted that even in summer a child such as J., with ADHD, requires a high degree of structure, contrary to the Father’s expressed view that summer is a time for a relaxed routine and frequent travel to spend time with friends and family. [ 27 ] The Father expressed concern that a parenting

schedule as recommended by Dr. Corkum would have the effect of drastically reducing the amount of time he currently spends with J., thereby marginalizing his parental role. With respect, the esteem in which J. would hold his Father should not be equated to days on a calendar; the emphasis must be on what is best for J. I discerned from the Father’s evidence that he is not as committed to a disciplined

schedule or routine for J. as is the Mother. [ 28 ] Neither party appears to be prepared to let the other parent without having the “last word”.

While there is nothing in the evidence which persuaded me the Father is wholly unsuited to caring for J., the two chief problems as borne out in the evidence are that these parents cannot co-parent at the level needed to effect the shared parenting arrangement advocated by the Father, and that the Father has demonstrated he cannot always respond to J.’s needs in a manner that puts J.’s needs ahead of his own. [ 29 ] Lest these observations be interpreted as unduly focussed on the Father, the evidence also established the Mother has not always avoided unnecessary conflict.

This can be seen in the inappropriate approach of avoidance of the Father which the Mother took regarding the parties’ dispute about the 2012 Christmas holiday

schedule and the parties’ dispute about the 2013 March Break

schedule which could have been and ultimately was easily resolved once the Mother gave the Father sufficient information about a trip with J. which she had clearly planned well in advance. In January 2013 the Father, through Dr.

Corkum, put forward a suggestion as to how to resolve the holiday issues, but despite that the Mother continued to try to deal with holidays on a piecemeal basis, which did nothing to alleviate the on-going struggle between the parties. [ 30 ] It has been almost five years since the parties separated and not only is there no evidence to support a suggestion that the conflict between them will be reduced now that the litigation is at an end, there is nothing in the tenor of the evidence that could

generate even a spark of optimism on the part of the Court that such might be possible. The evidence established that in many instances the parties have taken weeks to work through a parenting issue, even when they have received assistance from Dr. Corkum. The Mother has been more quickly and readily accepting of recommendations made by Dr. Corkum and other professionals who have interacted with J. than has the Father, who has been slower and/or more resistant to accepting them.

If the parties are unable to manage with little fanfare the usual or more routine parenting challenges, it creates concern about their ability to work together in a shared parenting construct. [ 31 ] Both parties referred the Court to C.(J.R.) v. C.(S.J.) 2010 NSSC 85 . In that decision MacDonald, J. discussed the common strengths parents must exhibit a shared parenting arrangement: 20. Parents in a shared parenting arrangement must exhibit an ability to cooperate and jointly plan for their children.

They must be able to do so on a continuous basis, far more frequently than is expected from parents who have other parenting arrangements. Conflict and the potential for conflict must be at a minimum. Each parent must respect the other and their value systems and methods of discipline should not be substantially dissimilar. They must be able to communicate face-to-face . They must respond quickly to inquiries from the other parent about issues involving the child, focusing on the child’s need not on the parent’s issues.

Routines in each household should be similar to ensure the child is not confused by or encouraged to become oppositional because of different standards and expectations in each home (emphasis added). I agree with those observations, and note the absence of evidence of those same capacities as between these two parties. [ 32 ] The Father argued any change in the current parenting

schedule beyond moving to a week on/week off rotation (to reduce the number of transitions) could be “devastating” to J. under all of the circumstances. The Father asserts that despite a history of some unilateral actions by the Mother and difficulties in securing a regular

schedule regarding holidays and special occasions, the parties have been co-parenting for over four and a half years and J. has adjusted well. The Father also referred to Murphy v. Hancock , 2011 NSSC 197 in support of the argument this Court must look at the relationship of each parent to the child and assess parenting styles in order to determine the appropriateness of a shared parenting arrangement. The Father maintains that as both parents have been actively involved in providing for J.’s needs, to change the

schedule to that advocated by the Mother would have the effect of reducing him to a “weekend dad” which is inappropriate given the amount of time that has passed and J.’s current circumstances. [ 33 ] There was no evidence before me that adjusting the current parenting

schedule to that advocated by the Mother as opposed to that advocated by the Father will be harmful to J. To the contrary, J.’s treating psychologist testified J. requires even greater routine and stability than he now experiences. As to whether J. will be negatively affected by having to adjust to a new parenting schedule, the evidence of Dr. Corkum was that the new

schedule advocated by the Mother would ultimately create even greater stability for J. Even if it can be presumed that J. will undergo an adjustment period, the intention behind the adjustment is to achieve a

schedule that will provide him with even greater stability and structure. Even the Father’s plan as put to the Court was going to require some adjustment by J. [ 34 ] The Court is also concerned about the Father’s evidence and submissions to the Court that it would be best for J. if the other parent did not have contact with the child during one parent’s time. I am not persuaded the Father is sufficiently committed to promoting the Mother’s involvement in J.’s life under his proposal, much less adhering to the maximum contact principle set out in section 16(10) of the Act (supra).

The Father’s suggestion was ironic in light of his girlfriend Ms. Quigley’s evidence that J. phones her daily during the Father’s parenting time, which led me to conclude her evidence to that effect was either untrue, or in the alternative, intended to gratuitously emphasize the close bond between J. and Ms. Quigley. [ 35 ] Dr. Corkum testified it would be helpful for J. to have the possibility of contact with the other parent during parenting time and she encouraged that flexibility, whereas the Father felt his parenting time was his alone. Dr.

Corkum testified if J. cannot have contact with his Mother while with his Father it puts pressure on J. with the message the Father does not like Mom and it is not okay to have contact with her. [ 36 ] Counsel for the Mother submitted in closing argument that the Mother would be in agreement with the Father’s position there should not be telephone calls to the non-resident parent during parenting time because it is too disruptive.

I do not see it as acceptable, regardless of what type of parenting plan is justified, that J., just as any other child should, would not have the opportunity for phone contact with one parent while with the other. [ 37 ] The evidence of both parties regarding a very recent disagreement about J.’s medication serves to illustrate the challenges these parties face in trying to parent together. The Mother controls the purchase of the medication and delivers to the Father the amount of medication needed during his parenting time.

Shortly before trial the Father, knowing he was running low on his supply of J.’s medication, took it upon himself to secure a new supply from the dispensing pharmacy, which then contacted the Mother, who had no idea why she was being “lectured” by the pharmacy about attempting to refill the prescription early. A volley of charged emails between the parents ensued, each insisting the other was being unreasonable. Meanwhile, the Father had secured his own prescription, contrary to the protocol for refills required by J.’s physician (who required a physical examination of J.).

How the Father was able to secure such a prescription from another physician who never met with J. remains a mystery. [ 38 ] Not to her credit, the Mother testified she was aware the Father was likely running low on medication but had made no efforts to offer him additional medication. Not to his credit, the Father testified he made no effort to simply contact the Mother and obtain more medication, but instead took it upon himself to secure a new prescription and attempted to engage the Mother’s health plan to pay for it.

The episode portrayed with clarity the ongoing power struggle between these parties over their child and their failure to be reasonable with one another to accomplish what should have been a routine matter. [ 39 ] The history of conflict between the parents as documented in the evidence makes a workable shared parenting designation

unrealistic. The Mother’s evidence that “there is basically no communication between us except by email …” (Exhibit 4, para. 36) was not challenged by the Father. What contact there is does not resemble productive communication. To list but two items, given the number of times the parties have had to threaten one another with court action or have made it to the courthouse door before reaching an interim solution to a particular issue, and given their most recent disagreement over J.’s medication, I am not persuaded there is any justification for the type of optimism expressed in Gibney v.

Conohan , 2011 NSSC 268 , and Clarke-Boudreau v. Boudreau, 2013 NSSC 173 that a cessation of litigation and focus on the resultant court order could assist in reducing parental conflict. [ 40 ] Recent caselaw in this jurisdiction speaks to a common recognition by trial judges that shared parenting requires, at a minimum, a functional level of communication, ideally coupled with respect for the role of the other parent: Baker-Warren v. Denault (supra); Hewitt v. McGrath , 2010 NSSC 278 ; Harrison v. MacKinnon, 2010 NSSC 445 ; Murphy v. Hancock (supra ) ; Gibney v. Conohan , (supra); Hammond v.

Nelson , 2012 NSSC 27 ; Conrad v. Skerry , 2012 NSSC 77 ; and M.A.B. v. L.A.B., 2013 NSSC 89 .

Each of these cases discuss specific factors important to maintaining a shared parenting arrangement, and while each and every factor identified need not necessarily exist in each circumstance where shared parenting may be found to be appropriate, and while some factors might be more prevalent or pronounced in some cases than others (each situation being fact specific), it is difficult to accept that shared parenting would be workable in the instant case given all of the evidence before me as to the absence of cooperation coupled with minimal communication. [ 41 ] Going forward, the parties shall have joint custody of J. who will have a primary residence with the Mother.

The parenting

schedule shall be as proposed by the Mother, as I am satisfied that

schedule is in the best interests of the child. The change shall be effective on the first day following July 1, 2014 when J. has been returned to the Mother pursuant to the

schedule last in place. The new

schedule is not intended to interfere with the details of parenting time for holidays and special occasions as previously agreed between the parties. Issue No. 2: Which parent, if either, should have final decision-making authority? [ 42 ] Closer examination of several past decision-making processes that have vexed these parties helps to illustrate the need for a mechanism to reduce the conflict between these parties for the sake of their child [ 43 ] Ms. L. Corkum, the Principal at J.’s school, testified it had been identified in term 1 of Grade Primary that J. was struggling in the French immersion program.

Mid-year the suggestion was made to the parents they might want to switch J to the English program. Over time the school became increasingly concerned because they were not seeing progress in literacy. The Mother was open to exploring a switch but the Father wanted to keep J. in French Immersion “a bit longer”, on the basis that he too had been in French immersion until Grade 4, and he wanted to give J. more time to “adjust”.

The recommendation for a switch was made at the end of that year because the school was concerned about J.’s lack of progress; because the parents disagreed there was no switch made. [ 44 ] Ms. C. Besner was J.’s homeroom and literacy support teacher in Grade 1. She testified the majority of J.’s classroom challenges involved lack of focus and inattention; had the school been aware of J.’s ADHD condition at that time, they would have done learning adaptions in addition to those already being done.

She met with the parents on November 9, 2011 to discuss J.’s performance in French immersion and the concern about his reading level. At that meeting it was strongly recommended that J. be moved to the English program. Again, the Mother wanted him to leave and the Father wanted him to stay. Ms.

Besner sent the Father a follow up email on November 18 and the Father sent her an email on the last school day of November, providing his consent to move J. out of the program before December 1. [ 45 ] The Father’s evidence was that he waited so long to agree to a switch because he wanted to give J. sufficient time and opportunity to improve. In a letter the Father had written to Dr. Corkum after the fact (Exhibit 11), he stated it was “obvious by late October” that J. was struggling in the French immersion program and while the Father was disappointed, the decision to affect a switch needed to be made.

This would appear to contradict the fact the Father did not advise the school he agreed to the switch until late November, or in the alternative, suggests the Father was prepared to make J. wait even longer before giving consent. As established in cross-examination, the Father would have known he was incorrect in writing to Dr. Corkum that “the school did not tell us at any point that J. needed to be switched to English” because he had attended all the school meetings where the school was suggesting the opposite.

I do not accept the Father’s assertion to the Court he followed the school’s recommendations at every step. The documentary evidence and testimony before the Court from the school, the parents and Dr. Corkum suggests otherwise.

The evidence persuades me the Father’s agreement to the switch came a full year after the topic was first broached by the school, during which time the Father put his own feelings or wishes ahead of J.’s learning needs. [ 46 ] In 2012 the parents disagreed about where J. should play hockey after J. wore his Bedford hockey team jacket to his Halifax school on one occasion, and was teased by another child about playing on a Bedford hockey team. Dr. Corkum was concerned the incident stressed J. and impacted upon his self- esteem and self-confidence.

The Mother’s evidence was that the “bullying” J. experienced necessitated switching him from a Bedford team (where he resided) to a Halifax team (where he went to school). The Father’s evidence was that the Mother had over-reacted to an incident that was merely part and parcel of children’s normal interactions and the Mother was to blame by permitting J. to wear his hockey jacket to school. The Father advised Dr.

Corkum he was resistant to have J. switched to a Halifax team because Bedford was where the Father grew up and he wanted J. to reconnect with that community, and the Father felt the switch would be disruptive to J. Had that been the entirety of the matter the Court might well have been persuaded the incident had been somewhat blown out of proportion by the Mother. Regrettably, however, part of the Father’s response to the incident was to instruct J. to be untruthful with friends about where he played hockey, and to avoid wearing the jacket to school. Not surprisingly, Dr.

Corkum testified that encouraging J. to be dishonest with his friends and in effect discouraging J.’s capacity to take pride in the sport was not a good solution to the problem. In my view, the Father’s suggestions to J. demonstrated poor decision-making on his part. [ 47 ] In the spring of 2013 the Mother contacted the Father to seek his agreement to enroll J. in summer baseball after the child experienced a strong interest in participating. (Dr. Corkum testified that in her opinion it was important for J.’s self-esteem to be

involved in sports which would also help him burn energy, given his ADHD and that if he was registered for a sport he should be taken, subject to a caution about over -committing his schedule.) The Father was opposed because he wanted J. to have a less structured

schedule during the summer months. The Mother’s inappropriate solution was to unilaterally enroll J. in the activity, and the Father’s inappropriate and selfish response was to then refuse to attend to or participate in any of J.’s baseball activities regardless of where they fell on the parenting schedule, which Dr. Corkum described as something that “could have been” confusing and stressful for J. While the Mother cannot be applauded for acting unilaterally, that action could easily have gone undetected by the child and remained an issue between the parties.

However, the Father’s boycott, in response to the Mother’s decision, then impacted J. directly as he did not participate in baseball during the Father’s parenting time. [ 48 ] In the fall of 2013 the parties were in a dispute about the holiday

schedule and on a long weekend the Father told J. he would be going with the Mother on the Sunday, which the Father knew to be untrue. Dr. Corkum testified as to her concern about the Father having created a false expectation for J. and not being truthful with J. which would make it hard for J. to know who to trust. In that instance the Father was prepared to put his own position in his ongoing argument with the Mother ahead of J.’s interests. [ 49 ] In December 2013 the parties asked Dr.

Corkum which parent should have primary decision-making authority over J. and she recommended the Mother be the primary decision-maker because she felt the Father had demonstrated a past pattern of not making good decisions for J. Dr. Corkum testified about her observation that each time there was a decision to be made by the parents it became a prolonged event with a lot of conflict, usually ending up in legal process, which created added stress for J. The evidence supports Dr.

Corkum’s observation to that effect. [ 50 ] The Mother pointed to a number of decisions the Father has made which she argued illustrate the Father is unable to put J.’s well-being at the forefront and fails to distinguish between his own interests and J.’s interests. The Mother asserted that despite the ongoing involvement of Dr. Corkum the Father is unable to adjust his decision-making to focus to the child.

The Father asserted permitting the Mother to be the sole decision maker would marginalize his role as the Father and create further conflict between the parties if the Mother was to abuse that decision-making authority. [ 51 ] There is little the Court can do to assist these parties with their fundamental problem, which is an absence of ability to cooperate. Rather, the Court’s primary focus must be the child. While the Court should be reluctant to unduly “empower” one parent over the other the parenting arrangement going forward needs to reduce the opportunities for conflict between the parents.

Based on the evidence before me I am satisfied it is in J.’s best interests for the Mother to have ultimate decision making authority over J. The evidence satisfies me that historically the Father has been unable to put J.’s best interests before his own preferences or views.

Even when the Father has come to the preferred decision by ultimately agreeing to recommendations made to him concerning the best interests of J., his agreement has only been secured after much delay and/or difficulty that has negatively impacted J. [ 52 ] On those occasions when the Mother has exercised poor judgement in decision-making it has been with respect to her relationship with the Father, and while that ultimately affects J., the poor decision-making by the Father has been regarding matters that have had more direct or immediate impact upon J. [ 53 ] Going forward, the Mother shall be required to consult with the Father in relation to all major educational, social, recreational, religious and health/medical matters concerning J.

If the parties cannot agree on the decision to be made, then the Mother shall have final authority to make the decision. This assumes that the making of any such decisions will be predicated upon sufficient prior exchange of information and prior meaningful consultation before any “veto” by the Mother would be reasonably and fittingly exercised. Obviously, the exception to this would be emergency medical decisions, the nature of which might require them to be made by the parent then having the child in their care, but with notice to the other parent as quickly as practicable under the then existing circumstances.

Regardless of the Mother having final decision-making authority, both parents shall be entitled to access directly all information concerning J. held by third parties (e.g. school; physician). [ 54 ] The Court would be remiss in not commenting on a collateral matter that arose in the evidence which in my view goes to the heart of the child’s best interests. It concerns a confrontation in the summer of 2010 between the Father and the Mother’s father. The Father, the Mother and her father, Mr. L.

Burchill, testified about the event which began when the Father arrived unexpectedly at the Mother’s home and accused Mr. Burchill of defacing his girlfriend’s car. Mr. Burchill described to the Court the Father had his chest out and his fists clenched and approached Mr. Burchill in the living room where J. was playing on the floor. In his evidence, the Father agreed he was frustrated but maintained his hands were by his sides and he never approached Mr. Burchill. Notably, when the Father recounted the incident to Dr.

Corkum several years later, she too observed his clenched fists and aggressive manner as he did so. [ 55 ] As the confrontation unfolded J. began to cry and went to the Mother in the kitchen. Mr. Burchill described the Father as loud, abusive and aggressive and he asked the Father to go outside to discuss the matter. Mr. Burchill agreed he was very upset at the accusations being made by the Father and conceded it was “possible” that during the incident he had made comments about the Father’s sexuality and used profanity toward him. I have no doubt the same occurred, as during his evidence Mr.

Burchill hardly struck me as “a shrinking violet”. It was abundantly clear that Mr. Burchill was unable, even four years later at trial, to hide his disdain for the Father. [ 56 ] On cross-examination Mr. Burchill denied he and his wife had followed the Father out of the house; rather he stated he had told the Father to go outside and not “do this” in front of J. Mr. Burchill denied that once outside, his wife had accused the Father of being involved in their adult son’s death. [ 57 ] I conclude from the evidence of both Mr. Burchill and the Father that the Father was aggressive and accusatory, and Mr.

Burchill was aggressive and defensive. Whether the Father took Mr. Burchill up on a suggestion to move the matter outside or was instead followed out by Mr. Burchill, I am satisfied an accusation was made to the Father regarding the death of the Burchills’ son. In her evidence the Mother reluctantly acknowledged she has in the past heard her mother, Ms. Burchill make the same accusation in J.’s presence although she could not recall when it had occurred. [ 58 ] Approximately a year ago J. revealed to Dr.

Corkum he believes his Father is responsible for his uncle’s death which is a tremendous burden for a child to bear. The situation has in my view been exacerbated by the very inadequate explanation in the evidence

as to why it presently remains unaddressed in the counselling process. In my view the Father has every reason to harbour concern about this matter. As suggested by counsel for the Father, it is difficult to reconcile the evidence about the Mother’s reaction to her perception her son had been bullied about his hockey team affiliation with her apparent acquiescence to an absence of effort to address this matter.

Indeed, there was no suggestion any witness involved actually believes J.’s perception is correct, which underscores the ongoing responsibility of both parents to police not only their own commentary about the other parent but also that of others in J.’s presence. Issue No. 3 – Financial issues of child support and special expenses [ 59 ] As to the quantum of child support, the Father advocated the application of

section 9 of the Child Support Guidelines , SOR/97- 175 , to provide for a set-off of child support based upon a shared parenting arrangement. As a shared parenting regime is not in J.’s best interests, the parenting arrangement directed by the Court does not meet the forty percent threshold set out in

section 9.

As the parent maintaining the primary residence of the child the Mother shall be entitled to receive child support from the Father. [ 60 ] While the Father had initially agreed with the Mother that imputation of income would likely be undertaken by the Court, which the evidence supported, it became a moot point when the Father filed, following the close of evidence but prior to the date of final submissions, Exhibit 39 outlining the remuneration details of his newly secured employment. [ 61 ] The contents of Exhibit 39 reveal the Father’s new income level will be $50,000.00 per year initially, reducing over time as the Father’s percentage of sales commission increases (and may be eventually capped), with the potential for a bonus.

This leaves much open to be determined at a future time when the Father’s actual sales performance is able to be known. Therefore, it is appropriate that the Father’s actual income must be determined by June 1 of each year and the child support payments adjusted upward or downward as the case may be effective each July 1.

This requirement is intended to reflect the potentially changing annual employment income of the Father for the purpose of calculating the correct amount of support, and will undoubtedly have the effect of having the Father pay, for six months of each year, a Table amount that is greater or less than the Table amount that would otherwise be calculated based on the Father’s actual income. Effective July 1, 2014 and continuing until the first annual adjustment occurs on July 1, 2015 child support is set at $420.00 per month based on employment income of $50,000.00 per year.

The Father must provide his complete Income Tax Return and Notice of Assessment to the Mother on or before June 1 of each year to allow the proper adjustment to be made. [ 62 ] There was no suggestion the parties disagree as to what expenditure(

s) constitute a

section 7 expense. To his credit the Father submitted that the parties should, despite a disparity in incomes, share equally in special or extra-ordinary expenses for the child. Not surprisingly the Mother did not disagree, but this would be inappropriate to endorse given the Court did not accept the Father’s position on both a shared parenting regime and a child support setoff amount. If the Father is still of the same view in light of this decision, then the Corollary Relief Judgment may reflect an equal sharing of

section 7 expenses. If not,

section 7 expenses shall be shared proportionate to the parties’ respective incomes.

Summary [ 63 ] The Order to be prepared by counsel for the Mother, consented to as to form only by counsel for the Father, shall provide: (

a) Joint custody with a primary residence with the Mother, and parenting time for the Father overnight each Wednesday from after school until school the next morning, and every second weekend from after school on Friday to Sunday at 6:00 p.m. (unless the parties agree to a different time). If the Friday or Monday of the Father’s weekend is a non-school day, to the extent that it does not conflict with any other agreement the parties have previously made about holidays, the pick-up time shall be Thursday after school and/or the return time shall be Monday at 6:00 p.m. (

b) The Mother shall be required to consult with the Father in relation to all major educational, social, recreational, religious and health/medical matters concerning J. and each party shall be entitled to access directly information or records concerning J. as held by third parties. (

c) Child support shall be payable by the Father pursuant to the Guidelines (supra) based upon an annual income of $50,000.00 effective July 1, 2014 and continuing on the first day of each month thereafter, with the appropriate exchange of financial information each June 1 of each year and adjustments to the Table amount accordingly.

Section 7 Guidelines (supra) expenses unless otherwise agreed between the parties, shall be shared proportionate to their incomes. [ 64 ] Counsel for the Mother sought to reserve the right to address the Court on the matter of costs. If the parties are unable to agree on the matter of costs by July 25, 2014, counsel are authorized to contact the Scheduling Office to request one hour on my docket to present oral argument on the matter.

In anticipation of the same, counsel for the Mother would be required to file written submissions 7 days in advance of the docketed appearance and counsel for the Father would be required to file written submissions 3 days in advance of the docketed appearance. Beaton, Carole A., J.