John v. John, 2012 NSSC 324

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: John v. John, 2012 NSSC 324 Date: 20120914 Docket: 1201-064723; SFHD 071124 Registry: Halifax Between: Crystal Lynne John Petitioner v. Jean-Paul Maximillian John Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard: September 14, 2012

Summary: Father successfully applied for children’s wish report. Key words: Family, custody, Divorce Act , Judicature Act , children’s wish report Legislation: Civil Procedure Rules 59.40(6) and

(7) Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3,

section 16 Judicature Act , R.S.N.S. 1989, c. 240, subsection 32F(1) United Nations Convention on the Rights of the Child , Can. T.S. 1992 No. 3,

article 12 THIS INFORMATION SHEET DOESN’T 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: John v. John, 2012 NSSC 324

Date: 20120914 Docket: 1201-064723 SFHD 071124 Registry: Halifax Between: Crystal Lynne John Petitioner v. Jean-Paul Maximillian John Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard : September 14, 2012 Counsel: Lee Mitchell for Crystal John Kenneth Armour for Jean-Paul John By the Court: Introduction [ 1 ] This is Mr. John’s motion for an order compelling a children’s wish report.

It’s pursuant to subsection 32F(1) of the Judicature Act , R.S.N.S. 1989, c. 240, which allows that, on the motion of a party or on my own motion, I may direct a family counsellor, social worker, probation officer or someone else to make a report concerning any matter that is a subject of a proceeding. [ 2 ] One issue in the Johns’ divorce is the parenting arrangements for their son, Aidan, who is twelve, and their daughter, Chelsea, who will turn fourteen next month. Mr.

John applies to have a children’s wish report prepared because it would be “very unfair” to the children to deny them “input into what type of parenting regime they would enjoy and will have to live with for many years to come.” Ms. John believes the children are not sufficiently mature to make decisions about their parenting arrangements and that they are susceptible to pressure, overt and subtle, from their father. The evidence [ 3 ] Both parents filed affidavits and Ms. John was cross-examined. [ 4 ] In his affidavit, Mr.

John offers hearsay evidence in the form of remarks he attributes to the children about the time they’d like to spend with each parent. He gives examples of the children’s seriousness and maturity: Aidan and Chelsea don’t abuse the privilege of sleeping over at friends’ homes or having friends sleep over at their home; and Aidan can choose to attend soccer rather than church. Mr. John says that both parents have encouraged Aidan in his independent decision-making and that the children “are already making rational and logical decisions which concern aspects of there [sic] life” and that they “are responsible”. Mr.

John says it would seem to be very unfair [ . . . ] to deny two children with one been [sic] a teenager and one just one year shy of also been [sic] a teenager, who have shown by there [sic] actions the willingness to accept responsibility and make rational and logical decisions, to not have input into what type of parenting regime they would enjoy and will have to live with for many years to come. [ 5 ] In her affidavit, Ms.

John says that the children don’t make decisions about matters such sleepovers without her input and that if Aidan’s decides to play soccer rather than attend church it is not his independent decision, but made by Aidan in concert with her. Ms. John says that the children are “within the context of their respective ages, capable of making some responsible decisions” and that “any important decisions relating to the children” are “always made in the context of a discussion with me.” She believes the “children are

able to make decisions with regard to some matters, but, given their current ages, [they] do continue to require direction and advice”. Ms. John says that the children “don’t always understand the concept of consequences with respect to all decisions they make” and thatparental guidance is an important part of their maturing process. [6] As well as being concerned about the children’s ability to make responsible decisions, Ms.

John believes that her husband “isprompting the children and attempting to elicit the answers he wants to hear.” She thinks he “is quite capable of and does put pressure onthe children to obtain their approval for goals which are important to him”. She says Mr. John provides the children with few boundariesor limits and that he wants to give the impression that the children want input into their custody and access, but that Mr. John reallywants to delay the trial and evade his responsibility to pay child support. [7] I granted Mr.

John’s motion for a children’s wish report at the time of the hearing and explained my reasons for doing so. I saidthat I would provide written reasons and I do so now. The law [8]

Article 12 of the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3 states: 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in allmatters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrativeproceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with theprocedural rules of national law. [9] Canada signed the Convention on May 28, 1990 and ratified it on December 13, 1991. It came into force in Canada on January12, 1992.

The Convention has not been incorporated into our domestic law (it hasn’t been implemented by Parliament), but some (suchas the Standing Senate Committee on Human Rights in its November 2005 Interim Report “Who’s in Charge Here? EffectiveImplementation of Canada’s International Obligations with Respect to the Rights of Children”, Chair: The Honourable RaynellAndreychuk) have noted “a certain degree of openness by the Supreme Court of Canada to relying on the Convention on the Rights of theChild for

interpretation purposes”. This is a reference to the Supreme Court of Canada’s decision in Baker v. Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 SCR 817, where Justice L’Heureux-Dubé, who wrote the majorityreasons, said, at paragraphs 69 - 71, that despite Parliament’s failure to implement the Convention, “the values reflected in internationalhuman rights law may help inform the contextual approach to statutory

interpretation and judicial review” and the “values and principlesof the Convention recognize the importance of being attentive to the rights and best interests of children when decisions are made thatrelate to and affect their future.” [10] Parenting decisions are to be made in the best interests of the child. Formally, the custody issue in the Johns’ corollary relief proceeding arises under

section 16 under the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3. The Divorce Act doesn’t explicitly direct me toconsider children’s wishes, but Justice Goodfellow’s decision in Foley, (NS SC) does. At paragraph 17 one of theconsiderations His Lordship says I should have in determining custody is: Wishes of the children - if, at the time of the hearing such are ascertainable and, to the extent they are ascertainable, such wishes are butone 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. [12] There are various methods for hearing from a child. When the evidence meets the requirements of necessity and reliability,hearsay evidence of children’s wishes may be admitted.

One marked frailty of this option is inconsistency: a child may tell each parentwhat the child believes the parent wants to hear. [12] Civil Procedure Rules 59.40(6) and (7) govern child testimony in family law proceedings in the Family Division. It’s unusualthat children will testify and the adversarial process may create a loyalty conflict for them which undermines the candour of theirtestimony. In Ezurike, 2006 NSSC 73, Mr. Ezurike served sub poenas on his 19 year old daughter and 14 year old son.

JusticeDellapinna said, at paragraph 27, the daughter was “clearly uncomfortable in the role of a witness in a trial between her parents andappeared guarded in her responses” while the son “was very diplomatic”, crediting his parents approximately equally for their parentingefforts. [13] Rarely, a child may be interviewed, as Justice MacDonald recently did in Lubin, 2012 NSSC 31.

[14] Neither parent is proposing that the children testify or that I interview them. It’s common that hearsay is offered with noaccompanying evidence about the necessity for admitting the statement or its reliability, as required by R. v. Khan, (SCC), [1990] 2 SCR 531. The only proposal I have to hear about the children’s preferences is Mr. John’s proposal that a children’swish report be prepared. [15] Counsel have referred me to Farmakoulas v. McInnis, (NS SC) and to my own decisions in Jarvis v. Landry,2011 NSSC 116 and MacLean v. Boylan, 2011 NSSC 314. In Farmakoulas v.

McInnis, (NS SC), Justice Edwardssummarized the law relating to applications for reports, noting, at paragraph 15 of his decision, the burden is on the party requesting thereport to show that a professional opinion is required. Reports should be ordered where there’s a specific need for the type ofinformation they generate and the information would not otherwise be available because it falls within the special knowledge of theexpert. In Farmakoulas v. McInnis, (NS SC), the request for a report was dismissed on the basis that the assessmentreally was a fishing expedition.

I dismissed a request for a custody access assessment for the same reason in Jarvis v. Landry, 2011NSSC 116. [16] In MacLean v. Boylan, 2011 NSSC 314, I dismissed Mr. MacLean’s application for an assessment which would includepsychological testing. At issue in that case was whether liberal time-sharing arrangement should become a shared parentingarrangement and if the terms of the parents’ decision-making should be altered. I dismissed the application because Mr. MacLean failedto discharge the burden of proving that a professional opinion was needed. The change to parenting time Mr.

MacLean sought was fairlymodest and the real qualitative change he proposed had to do with decision-making. The information that would be generated by theassessment and testing Mr. MacLean wanted wouldn’t address how decision-making was best structured, whether there should beparallel parenting or if one parent should have decision-making authority in some domains while the other made decisions in others. Conclusion [17] Chelsea and Aidan are successful academically. They are active outside school.

They don’t bear excessive responsibility fortheir ages: they aren’t left at home alone while their parents work, they don’t have chores, or allowances to manage. Chelsea babysitsand has volunteered, under her father’s supervision, when he takes

part in a soccer program. Their level of maturity is typical for theirages. They can make some modest decisions. They require or benefit from parental guidance in making other more significantdecisions. [18] Mr. John’s affidavit makes clear that one basis for his parenting claim is his perception of what Chelsea and Aidan want. Ms.John challenges this, based on her view that Mr. John manipulates the children into wanting what he wants. Between the parents there isalso the issue of the children’s maturity and responsible decision-making.

Thus, there are two disputes about the children’s views:whether they are genuine and whether they are in the children’s own best interests. [19] A children’s wish report is one way of providing information about the children’s views to me. It does not allow the children todetermine what their parenting arrangement will be.

It does allow someone who is far more skilled than I, to elicit the children’s wishes,to assess whether children have been coached, manipulated, coerced or subtly influenced in their views, and to identify the basis for theirviews: whether their preference is genuine, mature and appropriate or motivated by inappropriate reasons. [20] I conclude that Mr. John has shown that a professional opinion is needed. Children’s wishes are a relevant factor to beconsidered in determining their parenting arrangement, according to Foley, (NS SC).

A children’s wish report willsatisfy the need for unbiased information about the children’s preferences. It will also provide unbiased information about whatmotivates those preferences and whether their views are uninfluenced. This information is not otherwise available. [21] Trial dates have been scheduled for the early months of 2013. A children’s wish report can be completed within three to fourmonths and should be completed before the trial is heard. [22] Mr. Armour will prepare the order for the report.

He, too, will arrange for the report’s author to attend at trial. __________________________________ Elizabeth Jollimore, J.S.C. (F.D.) Halifax, Nova Scotia