Munroe v. Comeau, 2014 NSSC 327

SUPREME COURT OF NOVA SCOTIA (Family Division) Citation: Munroe v. Comeau, 2014 NSSC 327 Date: 20140909 Docket: 1201-066501 Registry: Halifax Between: Bradley Maxwell Munroe Applicant and Sonia Anne Comeau Respondent LIBRARY HEADING Judge: The Honourable Associate Chief Justice Lawrence I. O​Neil Hearing: August 12, 2014 in Halifax, Nova Scotia Issues: Relocation and primary care of the parties​ four (4) year old child

Summary: The Court held the best interests of the child required that the child be with the father inNova Scotia as contrasted with a move to New Jersey. Keywords: Mobility; Relocation; Custody; Access; Best Interests Legislation: Divorce Act, RSC 1985, c.3 (2nd Supp.) Cases Considered: Fedortchouk v. Boubnov, 2013 NSSC 277 Gordon v. Goertz, (SCC), [1996] S.C.J. 52 Myer v. Lyle, 2014 NSSC 233

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: Munroe v. Comeau, 2014 NSSC 327 Date: 20140909 Docket: 1201-066501 Registry: Halifax Between: Bradley Maxwell Munroe Applicant and Sonia Anne Comeau Respondent Judge: Associate Chief Justice Lawrence I. O ’ Neil Date of Hearing: August 12, 2014

Counsel: Deborah I. Conrad, counsel for Mr. Munroe LouAnn Chiasson, QC, counsel for Ms.

Comeau By the Court : Index: Introduction/Issues.................................................................... paragraph 1 Governing Legal Principles - Relocation..................................................................... paragraph 5 - Best Interests Defined.................................................... paragraph 7 Overview of the Evidence.......................................................... paragraph 8 Proposed Move........................................................................ paragraph 22 Conclusion.............................................................................. paragraph 32 Introduction/Issues [ 1 ] This is a decision in the matter of Bradley Maxwell Munroe and Sonia Anne Comeau.

Ms. Comeau would like to relocate to the state of New Jersey to join her fiancé and she would like to have the parties ’ child, born April 7, 2009, relocate with her. [ 2 ] The parties married July 28, 2007; separated July 2011 and divorced April 30, 2013. Also on April 30, 2013 a corollary relief order issued. It incorporated the parenting arrangement as agreed to between the parties in a separation agreement, also dated April 2013. [ 3 ] The current application to vary was initiated by Mr. Munroe in the fall of 2013 when he learned that Ms. Comeau was considering a move to the United States.

He wants primary care of their child, should this happen. [ 4 ] Mr. Munroe and his current partner, Shelagh Scott, gave evidence in support of Mr. Munroe ’ s application, in support of his request that the child remain in Nova Scotia under his care. Ms. Comeau and her fiancé, Michael Sorbera, gave evidence in support of Ms. Comeau ’ s request that she be permitted to relocate with the parties ’ son to New Jersey. Governing Legal Principles - Relocation [ 5 ] The law on the issue of mobility is frequently reviewed. [ 6 ] In the case of Fedortchouk v.

Boubnov , 2013 NSSC 277 , I outlined the principles that will guide a Court ’ s decision when relocation of a child is proposed:

[153] When relocation of a child is proposed by either parent, the analysis requires a consideration of the principles enunciated by theSupreme Court of Canada beginning with Gordon v. Goertz (SCC), [1996] S.C.J. 52: 49. The law can be summarized as follows: 1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child. 2.

If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child,having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitledto great respect. 5. Each case turns on its own unique circumstances.

The only issue is the best interest of the child in the particular circumstances of thecase. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs ofthe child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. 50. In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new locationmust be weighed against the continuance of full contact with the child's access parent, its extended family and its community. Theultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

[154] As stated, a parenting order has been in place since registration of the separation agreement on May 6, 2011. That orderessentially provided for shared parenting of the parties’ two middle children and for primary care of the youngest by Dr. Fedortchoukand primary care of the oldest by Mr. Boubnov. [155] The parties do not contest that a change of circumstances exists and the parenting arrangement must be revisited. [156] The Supreme Court of Canada in Gordon v. Goertz supra at paragraph 17 stated: 17.

The threshold condition of a material change in circumstance satisfied, the court should consider the matter afresh without defaultingto the existing arrangement: Francis v. Francis (1972), (SK CA), 8 R.F.L. 209 (Sask. C.A.), at p. 217.

The earlierconclusion that the custodial parent was the best person to have custody is no longer determinative, since the existence of materialchange presupposes that the terms of the earlier order might have been different had the change been known at the time. (Willick v.Willick, supra, at p. 688, per Sopinka J.) The judge on the variation application must consider the findings of fact made by the first judgeas well as the evidence of changed circumstances (Wesson v. Wesson, supra, at p. 194) to decide what custody arrangement now accordswith the best interests of the child.

The threshold of material change met, it is error for the judge on a variation application simply todefer to the views of the judge who made the earlier order. The judge on the variation application must consider the matter anew, in thecircumstances that presently exist. [157] An assessment of the child’s best interests will determine the Court’s ruling on the application to permit the children to relocatefor the coming academic year.

I am mandated to consider inter alia the existing custody arrangement and the children’s relationship withboth parents and his wishes. - Best Interests Defined [7] An assessment of what is in a child’s best interest results in consideration of a wide range of factors. This was also discussedin Fedortchouk v. Boubnov, supra and more recently in Myer v. Lyle, 2014 NSSC 233. I will repeat the language I frequently use tosummarize those principles. At paragraph 18 in Myer v.

Lyle supra, I summarized the governing legal principles: [18] The parenting issue I must decide is to be disposed of after a determination of what is in the best interests of the parties' child. The principles that govern this determination were commented upon in Dorey v. MacNutt, 2013 NSSC 267. I stated the following atparagraphs 6 through 13; this is the law that will guide my decision making herein: [6] The Divorce Act, RSC 1985, c 3 (2nd Supp)at s.16(1), (2) and (8), (9) and (10) provides: Order for custody 16.

(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respectingthe custody of or the access to, or the custody of and access to, any or all children of the marriage. Interim order for custody

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person,make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriagepending determination of the application under subsection (1).

. . . . . Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage asdetermined by reference to the condition, means, needs and other circumstances of the child. Past conduct

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct isrelevant to the ability of that person to act as a parent of a child. Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as muchcontact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration thewillingness of the person for whom custody is sought to facilitate such contact. [7] Justice Goodfellow, in his often quoted decision Foley v. Foley (NS SC), [1993] N.S.J. No. 347, outlined factorsgenerally relevant to an assessment of what parenting arrangement is in a child's best interest.

At paras. 16-20, he wrote: 16 Nevertheless, there has emerged a number of areas of parenting that bear consideration in most cases including in no particular orderthe following: 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 wishes arebut 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 likely achieved.That question requires the weighing of all the relevant factors and an analysis of the circumstances in which there may have been someindication or, expression by the child of a preference; 6. Religious and spiritual guidance; 7. Assistance of experts, such as 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 a 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 a recognition of the child's entitlement to access to parents 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 alternate accommodations provided by a member of the extended family. Any other alternative requiring two residence expenses will often adversely and severely impact on the ability to adequately meet the child's reasonable needs; and 17. Any other relevant factors. 17.

The duty of the court in any custody application is to consider all of the relevant factors so as to answer the question. With whom would the best interest and welfare of the child be most likely achieved? 18. The weight to be attached to any particular factor would vary from case to case as each factor must be considered in relation to all the other factors that are relevant in a particular case. 19. Nevertheless, some of the factors generally do not carry too much, if any, weight. For example, number 12, the financial contribution to the child.

In many cases one parent is the vital bread winner, without which the welfare of the child would be severely limited. However, in making this important financial contribution that parent may be required to work long hours or be absent for long periods, such as a member of the Merchant Navy, so that as important as the financial contribution is to the welfare of that child, there would not likely be any real appreciation of such until long after the maturity of the child makes the question of custody mute. 20.

On the other hand, underlying many of the other relevant factors is the parent making herself or, himself available to the child. The act of being there is often crucial to the development and welfare of the child. [8] Recent amendments (2012) to the Maintenance and Custody Act, R.S.N.S. 1989, c.160 (‘MCA') give us statutory guidance on how the best interests of a child are to be determined.

The following in s.18(6) of the ‘MCA' is of persuasive value when interpreting s.16(8) of the Divorce Act supra: s.18(6) In determining the best interests of the child, the court shall consider all relevant circumstances, including (

a) the child's physical, emotional, social and educational needs, including the child's need for stability and safety, taking into account the child's age and stage of development;

(

b) each parent's or guardian's willingness to support the development and maintenance of the child's relationship with the other parent or guardian; (

c) the history of care for the child, having regard to the child's physical, emotional, social and educational needs; (

d) the plans proposed for the child's care and upbringing, having regard to the child's physical, emotional, social and educational needs; (

e) the child's cultural, linguistic, religious and spiritual upbringing and heritage; (

f) the child's views and preferences, if the court considers it necessary and appropriate to ascertain them given the child's age and stage of development and if the views and preferences can reasonably be ascertained; (

g) the nature, strength and stability of the relationship between the child and each parent or guardian; (

h) the nature, strength and stability of the relationship between the child and each sibling, grandparent and other significant person in the child's life; (

i) the ability of each parent, guardian or other person in respect of whom the order would apply to communicate and co-operate on issues affecting the child; and (

j) the impact of any family violence, abuse or intimidation, regardless of whether the child has been directly exposed, including any impact on (

i) the ability of the person causing the family violence, abuse or intimidation to care for and meet the needs of the child, and (ii) the appropriateness of an arrangement that would require co-operation on issues affecting the child, including whether requiring such co-operation would threaten the safety or security of the child or of any other person. [9] Clearly there is significant overlap in the ‘MCA' when compared to the checklist developed by Justice Goodfellow two decades ago. Overview of the Evidence [ 8 ] Ms. Comeau, in her oral evidence and in her affidavit evidence argues that Mr.

Munroe was not an involved parent when they were together, nor was he an involved parent after their separation. She testified that this only changed in early 2014 or late 2013 when he learned that she might move to the United States. [ 9 ] Mr. Munroe testified that throughout their cohabitation he was an involved parent, participated in the child ’ s activities and cared for the child. He testified that following their separation he wanted to be more involved but Ms.

Comeau limited his time with his child. [ 10 ] The parties ’ corollary relief order, as it relates to parenting, has remained unchanged since it was issued. That corollary relief order provided that Mr. Munroe would have liberal access to the child.

[ 11 ] Ms. Comeau explained the restrictions she placed on Mr. Munroe ’ s time with his child on the basis that he was inconsistent in his participation as a parent and she decided that only if he became consistent was she prepared to permit overnight access. Ms. Comeau kept detailed records of what his involvement was. The spreadsheets are a

summary from these notes. The spreadsheets are, in part, attached to her affidavit. [ 12 ] Mr. Munroe and Ms. Scott have been living together since November 2011 and own a home together. Mr. Munroe testified that he did not keep notes but he regularly requested extra time with his son and felt that he could not gain extra time and had to go along. [ 13 ] Mr. Munroe says that his December 2013 Court application, even before it was heard, resulted in his having increased parenting time with his son including every other weekend; a pattern that began in January of 2014. [ 14 ] Ms.

Comeau offered e-mails to support her claim that Mr. Munroe was not an involved parent. Mr. Munroe offered e-mails to support his claim that his frequent requests for overnight access were either not responded to or were not agreed to by Ms. Comeau. [ 15 ] The parties do agree, however, that since January of 2014, almost eight or nine months ago, the child has been with his father, Mr. Munroe, every other weekend. They agree that the child is doing well.

I am satisfied that the child has a positive relationship with his father. [ 16 ] With respect to the period when the parents lived together, I am satisfied that Ms. Comeau was the more involved parent. I am not satisfied, however, that Mr. Munroe was a disinterested parent during that period. It is clear from the evidence that Ms. Comeau is an organizer and likes to direct matters and is a capable person in this respect. The detailed notes she kept following their separation is evidence of her approach. [ 17 ] In contrast, Mr.

Munroe appeared to be, by nature, a passive person with a desire to avoid conflict and I am satisfied he did not fully appreciate the extent to which he could challenge decisions made by Ms. Comeau on the issue of post separation parenting. I am satisfied he was unhappy with many of her decisions limiting his parenting time. When asked several times why he did not propose a parenting schedule, he asked how can you have a

schedule if she is going to deny access? He was bewildered by the question. A person of more sophistication might say, there was no prospect of any

schedule being adhered to. A person might say that there was no prospect of a structure being put in place that would meet his objectives, given what he understood to be his lack of empowerment in the parenting arrangement. I am satisfied, given the context of his answers, that was the message he was conveying. [ 18 ] I conclude Mr. Munroe was not assertive and was passive in the face of this reality. I am also satisfied that had he been more assertive, Ms. Comeau would not have been so clearly in charge of all parenting decisions. Mr. Munroe did not enjoy the liberal access the parties agreed to.

He did want more time with his son, however. [ 19 ] Notwithstanding the difficulties, I am satisfied that the parties ’ child did have a bond with Mr. Munroe into the fall of 2013 when his time with the child dramatically increased. As stated, Mr. Munroe filed his application on December 17, 2013. In her oral evidence, Ms. Comeau testified that Mr. Munroe ’ s time with the child dramatically increased in the October/November period of 2013 and that change ultimately persuaded her to agree to overnight access in January. However, as pointed out by counsel for Mr.

Munroe, her affidavit filed in this proceeding on July 23, 2014 at paragraph 72 contains the following: 72. I had been reluctant to increase Brad’s access time given the difficult changes in Alex’s behaviour (including the incident at his daycare noted herein). Brad had requested a week of parenting time with Alex when he had not been able to follow through on a consistent

schedule of access up to January 2014. [emphasis added] [ 20 ] Clearly, the initiative of Mr. Munroe in seeking intervention of the Court had a positive impact on the parties ’ parenting arrangement from the child ’ s perspective. Mr. Munroe received more parenting time.

[ 21 ] The result of the evidence on this point is that the ultimate decision on relocation of the child will not turn on the accusation of either party with respect to parenting time that Mr. Munroe had with his son prior to January 2014. I conclude that each parent could have been more child centred in meeting their obligations to their son as far as ensuring their child had time with both parents. The parenting arrangement in place since January 2014 has been a more traditional one as far as separated parents are concerned. Proposed Move [ 22 ] Ms.

Comeau is employed in Halifax, earning approximately $36,000 and Mr. Munroe earns approximately the same. Mr. Munroe has worked with the same employer for approximately 17 years and Ms. Comeau has been with her current employer for most of the past year. Mr. Munroe ’ s partner, Ms. Scott, did work with Mr. Munroe ’ s current employer but works elsewhere at this time. Ms. Comeau ’ s fiancé testified that he is leaving his employment with the Staples Corporation in New Jersey to work with another company at a higher rate of pay but in the same community.

He testified that his income will increase from the mid sixties to the low six figure range. [ 23 ] In his affidavit and in his oral evidence Mr. Sorbera describes the circumstances in which he lives in New Jersey and his work history. [ 24 ] In his affidavit, Mr. Sorbera at paragraph 17 states: 17. Given my income, we have planned that Sonia would be able to be a stay at home mother to Alex for at least two years. [ 25 ] Ms. Comeau, at paragraph 46 of her affidavit (Exhibit 6) painted a similar picture: 46. For the first two years after the move, I intend to be a full time stay at home Mother.

Michael’s yearly income will provide for both Alex and I comfortably. This would allow me to be available to volunteer at Alex’s school and keep him involved in similar activities as he has been doing in Nova Scotia. [ 26 ] However, in his oral evidence, Mr. Sorbera testified that, in fact, Ms. Comeau is not permitted to work in the United States and would not be for a year and a half or longer. This being the best case scenario for her to obtain legal residency status in the United States for employment purposes. The immigration and legal status of Ms.

Comeau and her son while in the United States is not addressed by Ms. Comeau or Mr. Sorbera in their affidavits. [ 27 ] As stated, Mr. Sorbera confirmed that Ms. Comeau will be ineligible to work in the United States for approximately a year and a half or longer pending her gaining the necessary permission of the US Immigration authorities. Ms. Comeau currently has no right to work in the United States. [ 28 ] In her oral evidence, Ms. Comeau addressed the issue of her immigration status.

It was clear that she has little or no understanding of what legal obstacles will prevent her from working or living in the United States. I interpret the answers of both Mr. Sorbera and Ms. Comeau on this issue as based on their reading of publicly available material. Neither indicated that they have consulted government authorities or legal counsel to assist them in understanding Ms. Comeau ’ s legal status or that of her son in terms of immigration to the United States as a result of marrying Mr. Sorbera or not marrying him.

The plan they have proposed for the parties ’ son is woefully deficient as a result. [ 29 ] In their affidavits filed in late July 2014, both Mr. Sorbera and Ms. Comeau stated they were to be married on August 24, 2014 in New Jersey. Ms. Comeau clarified this in her oral evidence and said that the wedding is no longer scheduled for August 24, 2014 and they hope to reschedule it to late September 2014. She offered an explanation which was that more family members wanted to attend the wedding and to facilitate this, the date was changed. [ 30 ] The Court does not accept that explanation.

It is obvious that in the absence of permission to relocate the child to the United

States, the wedding might not occur. Scheduling the wedding, particularly given that Ms. Comeau says she will not move to the United States without her child is premature. Given these two facts, not getting married or revisiting the decision to get married is prudent on her part. [ 31 ] I must now turn to an assessment of the best interests of this child. Conclusion [ 32 ] I am satisfied a change of circumstances does exist by virtue of Ms. Comeau ’ s plan to relocate to the United States and her plans to marry Mr. Sorbera. [ 33 ] Mr. Munroe has a good relationship with his son and Ms. Comeau does as well.

I have already commented on this. [ 34 ] Relocation of the child to New Jersey will have a very detrimental impact on the child ’ s relationship with his father. Ms. Comeau will not place a priority on the need for the child to have contact with his father. The move will also disrupt the child ’ s world in its entirety save for his relationship with his mother which is a significant positive feature of his life. I am not confident that the plans for the child to return to Canada for visits are well thought out; costed and secure.

Nor am I satisfied that the plan for the child to live in the United States is secure. [ 35 ] A party wishing to relocate a child to another national jurisdiction has the responsibility of demonstrating that the plan proposed is achievable. Ms. Comeau ’ s evidence on this point is lacking. She did not offer any evidence that she has or will have a right to live in the United States with or without her son. [ 36 ] Ms. Comeau did what she could to avoid answering basic questions she will be required to answer when she is interviewed by U.S. immigration authorities.

The conclusion one must draw as a consequence is that she does not know if she can legally move to the United States. [ 37 ] The lack of preparation in this respect creates uncertainty for the parties child and calls into question the degree of planning for other aspects of the move. [ 38 ] In her e-mail to Mr. Munroe dated November 15, 2013 (Exhibit 18), Ms. Comeau describes their son ’ s state of anxiety and observes that “ Alex has had a lot of changes in his life for a four-year old ” .

She then describes her concerns about the impact of change on their son. [ 39 ] Less than a year later, she presents a move to New Jersey as a positive change for their son.

It is difficult to reconcile these points of view. [ 40 ] Turning to the enumerated factors the Court must consider when assessing the best interests of the parties ’ son, I offer the following: - I have commented on the existing custody arrangement and the child’s relationship with both parents. - I have commented on the relationship between the child and his father. - I have concluded that a high priority must be placed on preserving and enriching the relationship between the child and his extended

family in the Maritimes. - I am concerned about the security of the move given the uncertainty surrounding Ms. Comeau’s right to live and work in the United States. - I am satisfied that the move will result in a significant disruption of the child’s relationships. The adjustment made necessary should Ms. Comeau decide to relocate without the child will be a lesser adjustment for the child than that which will occur should Ms. Comeau be permitted to leave with the child. The best opportunity to lessen disruption for the child is for the child to remain.

Weighing these competing costs forces a conclusion that it is in the child’s best interest to remain in Nova Scotia. [ 41 ] The better opportunity for maximizing the relationship between the child and both parents is for the child to remain here. Ms. Comeau has a strong connection to the Maritimes and many reasons to return and I am satisfied will do so if her son lives in Nova Scotia. Should he develop a busy life in New Jersey, the opportunity for Mr. Munroe to be a part of his son ’ s life will be lost. [ 42 ] Mr.

Munroe will support and nurture his son ’ s relationship with his mother and step-father. [ 43 ] It is not in the best interest of the subject child to be made subject to the deficient plan offered by Ms. Comeau. He is doing well currently - is bonded to his father and has a large extended family in the Maritimes. [ 44 ] Should Ms. Comeau move, the parties ’ child will be placed in Mr. Munroe ’ s primary care. In the event that Ms. Comeau remains in Canada, the parties are directed to develop a more structured and detailed parenting plan reflecting a joint custody situation with primary care remaining with Ms.

Comeau. That plan must recognize the obligation of each parent to maximize the child ’ s time with the other parent and it must maximize the opportunity for both parents to be involved in the child ’ s life and to be informed of issues and activities of the child. [ 45 ] I retain jurisdiction to decide on those details should the parties be unable to do so whether Ms. Comeau remains in Canada or not. ACJ