Hefter v. Hefter, 2011 NSSC 385

Editor’s Note : Erratum released on October 24, 2011. Original judgment has been corrected, with text of erratum appended. SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Hefter v. Hefter, 2011 NSSC 385 Date: 20111024 Docket: 1201-066519 Registry: Halifax Between: Alexis Anne Hefter Petitioner v. Aaron Charles Hefter Respondent LIBRARY HEADING Judge: The Honourable Justice Moira C. Legere Sers Heard: September 28, 2011 in Halifax, Nova Scotia Subject: Interim custody and parenting arrangement.

Summary: Parents separated in British Columbia. Mother returned to Nova Scotia to have their child. Efforts at reconciliation failed. Jurisdiction issue heard in BC. Matter transferred to Nova Scotia. Mother lives in Truro and father moved to Halifax, Nova Scotia. Parenting

schedule in issue with mother authorizing restricted access between father and child. Father seeking shared parenting agreement. Result: Joint custody with primary care with the mother. A transitional parenting

schedule ordered to transition the father and child to increased and unsupervised weekly parenting schedule.

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: Hefter v. Hefter, 2011 NSSC 385 Date: 20111024 Docket: SFHMCA075674 Registry: Halifax Between: Alexis Anne Hefter Petitioner v. Aaron Charles Hefter Respondent Judge: The Honourable Justice Moira C. Legere Sers Heard: September 28, 2011 in Halifax, Nova Scotia

Counsel: Mary Jane McGinty and Michelle Rogers for the Petitioner Gordon Kelly and Adrienne Bowers for the Respondent By the Court: [ 1 ] This is an interim decision with respect to a parenting

schedule in the matter between Alexis Anne Hefter ("the mother") and Aaron Charles Hefter ("the father"). [ 2 ] The parties began to live together in May of 2006, were married on June 28, 2009 and separated on May 10, 2010. [ 3 ] At separation they were living in Vancouver, British Columbia. The petitioner was eight months' pregnant. Due to the conflict between the parties, they agreed to a temporary separation which would allow the mother to return to her parents home in Truro, Nova Scotia to have her baby.

Neither believed the relationship was over. [ 4 ] Their child, Adley Jacob Hefter, was born on May 26, 2010. [ 5 ] The father came to Nova Scotia a week before the child was born and was present for the birth, staying for a further week to arrange and attend a church related ceremony. The father flew in a church official from Montreal for this purpose. [ 6 ] On October 19, 2010, the mother commenced a divorce proceeding in the Supreme Court of British Columbia. A response was filed on November 23, 2010.

Their applications requested relief with respect to interim parenting and support arrangements. [ 7 ] The father filed an application to transfer the proceedings in their entirety to Nova Scotia. That motion to transfer application was heard first before a Master in British Columbia. [ 8 ] The mother's family and support system reside in Nova Scotia.

Even though the mother intended to remain in Nova Scotia, she refused to consent to having the matter referred to Nova Scotia for resolution. [ 9 ] On April 8, 2011 after a contested hearing, the Master Taylor of the Supreme Court of British Columbia ( 2011 BCSC 433 ) decided that Nova Scotia was the more appropriate jurisdiction for the divorce and related claims of custody, division of property and support. [ 10 ] In his written decision, the Master questioned the mother opposition to transfer the proceedings to Nova Scotia from British Columbia.

She advised the court that she spent in excess of $60,000 in legal fees in British Columbia. [ 11 ] The Master referred to paragraph eight of the mother's affidavit in which she indicated she wanted to draw on witnesses in Vancouver to speak to the negotiations around the signing of the marriage contract. [ 12 ] The Master determined that the financial benefit respecting the marriage contract was the driving force for her opposition, not the best interests of the child.

[ 13 ] Master Taylor concluded at paragraph 12 that the agreement for the claimant to go to Nova Scotia initially for the birth of their child was, at that time, not an agreement that the claimant remain in Nova Scotia permanently; rather it was more like a cooling off period with a potential of reconciliation later. [ 14 ] The Master further concluded: This was not a marriage of long duration. The parties were married on June 28, 2009, and the claimant has not resided with the respondent since May 10, 2010.

The only reason, in my view, to continue the proceedings in British Columbia would be for the claimant to prosecute her claim for a share of the respondent's assets, but based on the balance of convenience question as expressed by McEwan, J., I hold it would not be convenient to continue the proceedings in British Columbia for determination of that single issue.

In fact, it would be far more convenient to all concerned to have the claimant's applications for sole custody and guardianship, interim child and spousal support, and an order that the child not be removed from Nova Scotia without prior written consent or court order, heard in Nova Scotia.

The custody, guardianship and access issues will be better addressed by the Nova Scotia court, especially if the respondent relocates there. [ 15 ] The father agreed to pay $5,000 per month on a without prejudice basis consisting of child support in the amount of $1,761 and spousal support in the amount of $3,239 for the months of April, May and June.

This was incorporated into the March 22, 2011 court order. [ 16 ] Those payments have been made from April through to September of 2011. [ 17 ] The file was transferred to the Truro office of the Supreme Court of Nova Scotia. [ 18 ] The subsequent conflict between the parties and the mother's wish to have the child remain with her in Nova Scotia set in motion the father's move from Vancouver from his well-established business to Nova Scotia in order to be close to his son. [ 19 ] This was triggered by a multitude of difficulties the father encountered trying to negotiate his parental access with his son in Nova Scotia.

History [ 20 ] The mother is 28 years old. She lived in Nova Scotia for the majority of her life from birth until age 17; leaving home at 17 to attend university; graduating from Queen's University with a Bachelor of Science degree and Eastern Ontario School of Xray with a Xray Diploma in 2005. [ 21 ] In January 2008, the mother moved to British Columbia, where she remained until May 2010. In Vancouver she earned an income of $55,000. [ 22 ] The father is 31 years old. He was born in Toronto and moved to British Columbia in 2003.

He graduated from high school with some post secondary education and is the owner of two successful enterprises. [ 23 ] The parties lived together from about May of 2006 until the date of separation. They were together approximately three years before he proposed marriage to her. [ 24 ] The first major conflict arose when the respondent sought to have the applicant sign a marriage agreement, the terms of which

did not meet with the applicant's approval. [ 25 ] The mother signed an agreement on June 12, 2009. Subsequently, she claimed to be under tremendous pressure. The validity of this agreement is not the issue before the Court. [ 26 ] The mother advises she became pregnant some time in mid-September 2009. [ 27 ] The conflict between the parties continued to escalate. In January 2010, after a heated argument, the mother travelled to Nova Scotia for a week, returning to Vancouver where the parties commenced marriage counselling. [ 28 ] The parties were separated while the father was travelled on business.

The mother visited her parents in Florida. They separated again in April 2010 while the father was in Germany, both agreeing that they would have a break in the relationship. [ 29 ] In about April or May the mother gained access to the father's email account and discovered he was involved in another relationship.

The extent of the involvement is not clear or necessarily relevant other than it confirms the fragility of the parties' marriage further aggravating their lack of trust by this discovery. [ 30 ] The father denies that he had a relationship with another individual until after the separation occurred on September 20, 2010. Certainly, the bulk of the evidence would suggest some sort of liaison existed between the father and another person. [ 31 ] The mother confronted the father with the information she found while searching his computer. In this confrontation, she alleges he pushed her to the floor.

He denies this and confirms she confronted him and he tried to grab his cell phone from her. What actually transpired is unclear. [ 32 ] According to the parties, they agreed because of the marital difficulties that the mother would temporarily absent herself from the household and return to live with her parents in Truro to have the child, very shortly before her due date.

The mother’s father is a medical specialist and the family support would obviously assist the mother. [ 33 ] On May 7, 2010 and they agreed that it would be in the child's best interest to be born in Halifax and to have the mother nearer to her support group. [ 34 ] While the mother was to visit Nova Scotia, there was no certainty that reconciliation was not possible.

This conclusion I have reached on the evidence before me is supports the conclusion Master Taylor reached in the British Columbia proceedings. [ 35 ] There was an attempt at reconciliation in mid-September which failed. [ 36 ] The parties discussed the possibility of a separation agreement initially looking at having the mother and child in Nova Scotia with the father in Vancouver with a right to visit. [ 37 ] The father wished to retain joint custody in order to continue to be significantly involved in his son's life. Current living circumstances

[ 38 ] Initially, the mother lived with her parents in Truro, Nova Scotia. She then wanted to live on her own. In December 2010, her parents purchased a home for her to live nearby.

The home is a four-bedroom home, close to her parents and elementary school. [ 39 ] The rent that the mother pays is, according to them, significantly below market value. [ 40 ] They are providing a financial safety net for their daughter and grandchild. [ 41 ] They also provide her with the use of a fully insured car so "she and A. can be independent." [ 42 ] I have reviewed the affidavits of the maternal grandparents and ascertain that they have in fact been a significant financial and emotional support for the petitioner mother. [ 43 ] The father speaks highly of the maternal grandparents and is capable of maintaining a peaceful relationship with them. [ 44 ] The maternal grandfather is 52 years old and in a position of significant responsibility in the local regional hospital.

It is in this hospital that the mother is working. [ 45 ] The maternal grandparents have been able to continue a relationship, although strained by the conflict between the mother and father, including inviting the father into their household and inviting the father's family members as they participated in a religious ceremony for the child. It is clear that they are supportive of their daughter and will abide by directions from the Court.

Conflict [ 46 ] The mother blames a number of pivotal incidents that bring the couple to their current state of conflict. [ 47 ] The first event was the attempt by the father to get the mother to sign a marriage agreement prior to the relationship commencing. [ 48 ] The second issue arose early in the relationship. She is unhappy with the father’s close relationship with his mother.

The paternal grandmother and the mother have not had a peaceful relationship even from the inception of their encounters. [ 49 ] The evidence confirms that the mother did not respond well to the paternal grandmother's interest in her son's and grandson’s life . [ 50 ] The father and his mother have a supportive relationship between themselves. The father's mother decided to move to Vancouver when she discovered in September of 2009 that she was to be a grandmother.

She moved to Vancouver in January and was decided to rent separate accommodations. [ 51 ] Prior to his mother's move, the applicant herein advised the father that she clearly did not want to have a relationship with his mother. She admits that she did not want the mother to stay at their house for longer than a week while she was looking for a place of her own.

[ 52 ] In January, when the paternal grandmother arrived at the house in pursuit of her own accommodations, the mother left to visit her family in Florida so as not to be in the same home with his mother. [ 53 ] She informed the father and grandmother that the grandmother would not be staying with them in future. [ 54 ] Without supporting the grandmother's reciprocal display of hostility and without determining whether it resulted or precipitated the mother’s position ; it is very clear the mother does not wish to have close contact with the father's mother. [ 55 ] The ongoing conflict escalated and the evidence does support some sort of mutual disdain for the other, further complicating the difficulties between the mother and the father. [ 56 ] The paternal grandmother did not testify.

It would be inappropriate to place the blame for this solely on the paternal grandmother based only on the mother's evidence. It is premature to conclude on the evidence before me that it is only the grandmother that has escalated the conflict. The mother has not been accommodating. [ 57 ] Unfortunately, the grandparents on both sides have been drawn into the conflict. [ 58 ] There is also evidence of conflict between the mother and her own mother. The mother has made certain allegations against her own mother.

None the less the maternal grandmother and father are clearly emotionally and financially supportive of their daughter. Allegations [ 59 ] In her affidavit of September 22, 2010, Exhibit "A" at paragraph 86 the mother criticizes the father for having minimal contact with his child, having visited on limited occasions while in Vancouver. [ 60 ] In his September 2011 affidavit the father advises he made every attempt to travel to Nova Scotia. Prior to his move he travelled from Vancouver to Nova Scotia to attempt to spend time with his son on six occasions.

He advises that closing his business and personal matters before his move to Nova Scotia took a number of months. [ 61 ] The number of his visits in these circumstances does not cause me to suspect any lack of interest by the father. [ 62 ] It is clear that the father has been, and continues to be, thrilled to be a father.

He has vigorously pursued his parental rights and responsibilities. [ 63 ] It is the mother's stated belief that the father would make a poor parent and role model and has a violent temper which has manifested itself on numerous occasions. [ 64 ] When arguing about the pre marriage contract, the mother alleges that the father punched a hole through the main floor bathroom door and another through the door to the laundry room. [ 65 ] The mother alleges drug abuse on one occasion in June of 2006.

She speaks to other incidents where alcohol misuse resulted in poor comportment in Las Vegas in 2007; in Vancouver in 2007; and at a New Year's party at which he proposed to her in December 2008.

[ 66 ] The father denies pushing her or the use or abuse of drugs. [ 67 ] He admits being intoxicated on an occasion in Las Vegas. [ 68 ] The mother has made various allegations about the father's appropriateness as a parent, most of which include problematic drinking. [ 69 ] All of these alleged incidents did not prevent her from agreeing to marry the respondent later in 2009. [ 70 ] The mother essentially has removed the child a significant distance from her and the father's last ordinary residence.

She uses the fact that he has not had a visitation with the child as a reason to justify restricting contact to the child. [ 71 ] In her May 31, 2011 affidavit, she proposed visits to be limited to three hours at a time so that the child could sleep in his own crib and these visits were to be supervised given what she perceived to be his lack of experience. [ 72 ] Despite what she perceived to be his lack of interest in the child the father continues his financial support to sustain his child and the mother in this period of transition. [ 73 ] The mother advises that she is willing to accommodate the father's access to their child and desires for them to have a close relationship. [ 74 ] However, the visits by the father while he lived in Vancouver, to the child in Nova Scotia, have been severely limited and laden with conditions. [ 75 ] She has requested that his mother not be there to support him and that the visits be supervised. [ 76 ] The prime example of the difficulties encountered in extracting the child from the middle of the conflict between the parents occurred on the morning of February 18, 2011 when the father flew in from Vancouver and contacted the mother for a prearranged visit at the Holiday Inn in Truro.

Both grandmother’s attended . [ 77 ] The conflict between the families quickly escalated. When the father attempted to hold his child, whom he had not seen for quite some time, he was prohibited from doing so. The conflict further escalated until the parties were asked to leave the Holiday Inn.

The father was denied contact that day and the next day. [ 78 ] On September 28, 2010, the father was advised that the mother did not intend to return to Vancouver. [ 79 ] Initially, when the father came to Truro to visit with his child he stayed with the maternal grandparents in Truro for the June 24 to 28, 2010 and August 4 to 9, 2010 visits. For the October 15 to 20, 2010 visit he stayed at the Holiday Inn. [ 80 ] In October, he gave the mother two weeks' notice of his trip to Nova Scotia from October 15 th to 20 th . He was permitted to spend one day alone with his child.

The mother made plans for the child for three of the five days. He was only entitled to see him on those three days for several hours each day.

[ 81 ] Further, when the father advised the mother three weeks in advance of his intended visit to see his child in December of 2010, the mother advised that his first week was unacceptable because the child would be visiting her grandmother and the third was unacceptable because her brother would be visiting that week. [ 82 ] The mother proposed a flight to Vancouver on November 25, 2010 for three or four days to pick up her personal possessions from the family residence.

She refused to bring the child to Vancouver with her to see the father. [ 83 ] Notwithstanding the difficulty the father was having with the mother, the father offered the mother, and she accepted his proposal, that while she was there, he would leave the former matrimonial home and she could stay there. Visiting

schedule [ 84 ] On June 5 th when the father arrived in Halifax after arranging to move his business and himself to Halifax, he sent the mother an email to make arrangements to see his child.

She would only agree to short visits and she would be required to be present. [ 85 ] The mother allowed the father to see the child for two hours on June 6 th and June 11 th while at a restaurant with the mother. [ 86 ] On June 13 th , the mother brought the child to Halifax and the father was allowed to see him for two hours for a birthday lunch and to have photographs taken. [ 87 ] On June 14 th , the father saw the child for two hours at a swimming pool in Truro and when the subject of money arose, the mother left with the child. [ 88 ] In order to obtain further contact, the parties had to engage their lawyers in a four-way meeting after which the father obtained what he considered to be extremely limited visits of a few hours between 2:00 and 4:00 for a maximum of three days each week starting June of 2011.

Since that time, arranging visitation has been problematic. [ 89 ] The father was able to obtain his first unsupervised visit on June 29, 2011 and he was permitted one hour, which was extended to 4:00 due to the fact that the lunch took a little longer. [ 90 ] The father was permitted a visit on July 6, 2011 in Truro at 2:30 pm. He took the child to Victoria Park. He took the child back to the home at 3:45 pm.

On the following dates in 2011 he was permitted limited time with his son as follows: - June 13 from 2:00 to 3:30 pm - June 15 from 2:00 to 3:30 pm - July 9 from 12:00 to 1:15 pm - July 20 from 9:30 to 11:15 am - July 23 from 12:00 to 1:45 pm - June 24 from 2:00 to 1:45 pm - July 26 from 11:00 to 1:00 pm

- August 5 from 1:00 to 3:30 pm - August 6 from 12:00 to 2:30 pm - August 10 from 2:00 to 5:00 pm - August 13 from 10:00 to 1:00 pm - August 16 from 2:00 to 5:00 pm - August 20 from 11:30 to 2:30 pm - August 27 from 9:30 to 1:30 pm - August 31 from 9:30 to 1:00 pm - September 3 from 2:30 to 4:30 pm - September 7 from 9:30 to 12:30 pm - September 10 from 11:00 to 3:00 pm - September 11 from 11:00 to 3:00 pm - September 12 from 9:50 to 1:00 pm [ 91 ] The father continued to deposit money from December 2010 to March 2011 in the amount of $2,500 per month into the mother's account as requested and agreed.

In February he deposited an additional $5,000 into her account, at her request. [ 92 ] The father has demonstrated his financial commitment to support his child and to continue to ensure his child's financial stability in spite of the difficulty he has encountered obtaining access to his child. [ 93 ] The mother has not facilitated communication of information about the child to the respondent's family which would indicate that without court intervention or unless the father enters into an agreement suitable to the mother, it is unlikely that this child will have access to his paternal and extended family. [ 94 ] When asked for contact, the mother advises the grandparent Abe Hefter that: skyping would be a good idea when things with Aaron and I get sorted out, I would be happy to video conference with you.

I also need to get a new computer which isn't over six years old.

Have a great night. [ 95 ] The numerous affidavits between the mother and the father indicate there is a tenor to the communication that is not conducive to facilitating contact between the child and parents. [ 96 ] One of the more clear examples of this tone is contained in an email from the mother to the father on Wednesday, August 3, 2011. [ 97 ] It began with an August 3 rd message at 12:38 in the morning of Wednesday where in the father advised the mother that he was in Charlottetown on business and his flight back to Halifax was rerouted because of thunder storms.

He advised her that the airline would not fly him back into Halifax on that evening. [ 98 ] The delay in flight would require that he either took a bus to Halifax from his current location in Charlottetown or a flight the

following evening. As a result of the thunder storm, he did not anticipate that he would be back in Truro by the prescheduled visiting time of 2:30. He asked: Are you ok if we switch tomorrow's parenting date to Thursday (or Friday) whichever works best for you. Please let me know, I would appreciate it. Thanks. Aaron. [ 99 ] Not receiving a response from her, the father wrote the mother again on 9:58 am the same Wednesday asking for confirmation that she received his email and confirming that he was getting on a bus to go from Charlottetown back to Halifax as there were no flights.

Again, he advised her that he would not be back in Halifax for another 4.5 to 5 hours and confirmed that he would not be able to get to Truro in time. [ 100 ] The father asked for confirmation that she read the email and: ... let me know if tomorrow or Friday would work for the switch of parenting times, whichever works best for you. If you have plans already for today my mom would be happy to watch A. (if you'd like). Please let me know. Thank you. [ 101 ] Her response is as follows on Wednesday, August 3, 2011 at 13:17: This is quite last minute and inconvenient.

I may be agreeable to another day this week if you are agreeable to switch a couple of days in September. Can we switch September 13 for September 11 and switch September 21 for the 23? As agreed you will be present at all access times and be the primary care giver. Your time with A. is for the two of you to build a bond and relationship. I will never agree to your mother caring for A. nor do I ever want to have any personal contact with her. No matter what my plans may be any day ever your mother will not "watch" A.

It may be in your best interests not to mention this thought again to me. due to its controversial nature; unless you do want to fight with me over a decision that has already been made. Please confirm. Alexis [ 102 ] There are other examples of the mother attempting to restrict and control the father's contact, to make sure that information about the child is not given to the father and that her options for a caretaker take precedents over the father's. [ 103 ] For example, the mother arranged a trip to Vancouver between September 13 th and 22 nd and arranged for her parents to care for the child.

[ 104 ] The father was available as a caregiver for a portion of her trip September 13 th , 21 st , and 22 nd . Rather than have a discussion about ensuring that the child had an opportunity with his father and provide an occasion for the father to participate in a meaningful way with caring for his child, the mother kept the trip fairly secret. [ 105 ] She placed the child with her parents so as to avoid having the child with the father. [ 106 ] In her affidavit sworn on September 22, 2011 the mother admits that she intentionally scheduled her trip to Vancouver for a time when she knew the father would be away.

She notes: I knew that he would bully me and insist A. spend this time living in his home, even though A. is not ready for this. I was also worried that he would bully my parents if A. was in their care and Aaron was in town. [ 107 ] The mother admits enrolling the child in daycare and having him attend two ½ days at daycare before the father knew about it.

Apparently the mother has less difficulties having the child in a daycare than with the father. [ 108 ] When the father attempted to get information initially from the daycare, they were informed not to release the information; rather, to have him through the lawyers. [ 109 ] This approach to parenting in these circumstances is simply not practical.

It escalates the costs and conflict unnecessarily. [ 110 ] While clearly their perspectives are different, there are many areas in the mother's affidavit that corroborate the father's evidence. [ 111 ] This is a short-term marriage, very short-term cohabitation period fraught with difficulty from the beginning. [ 112 ] As it relates to the child , throughout the history of these proceedings in British Columbia and in Nova Scotia, the mother has acted unilaterally to the exclusion of the father. [ 113 ] In British Columbia and in Nova Scotia, the mother has had significant financial support from the father and from her parents, to the extent that she is receiving child support and spousal support from the father, denying him access, living in a home owned by her parents, driving a car owned by her parents, and having obtained a job at a hospital where her father works. [ 114 ] She is a young mother who has received significant emotional and financial support not only from her family but from the father. [ 115 ] In spite of the conflict between the two, the father has shown that he has every intention of pursuing a relationship with his child and does not hold or cause the child to suffer financially, notwithstanding he has had to fight tooth and nail for time with his child. [ 116 ] Both parents are responsible for the conflict between them.

The breakdown of the relationship is certainly a matter for which both must take responsibility. [ 117 ] They are first-time parents and this is their first child. [ 118 ] Each has raised concerns about the other from their prior life without children. I cannot conclude that either of these parents are

unable to address the safety and health needs of their child. [ 119 ] Other than lack of knowledge about parenting issues and their significant communication difficulties, there is nothing in the evidence and their conduct that would suggest that the father ought not to be able to develop a significant relationship with his child. [ 120 ] Of the two on the evidence before me, at this time the father is more likely to foster a relationship between the child and the mother than the mother between the child and the father. [ 121 ] The totality of the evidence supports the notion that the mother considers the child hers first and foremost.

While she verbalizes her intention to facilitate a relationship between the child and father, it is a relationship that is based on "look but don't touch." [ 122 ] The mother sends the father photos, organizes him time, limits it, supervises it and critiques it.

It is her own unilateral conduct that has put the father in a situation where he is not able to experience and learn to address the physical daily needs of the child. [ 123 ] The conduct of the mother illustrates a lack of insight and knowledge about the custodial parents' rights and responsibility to truly facilitate a relationship between the child and the other parent. [ 124 ] There are many considerations that are involved in determining rights and responsibilities.

One parent is not prima facie entitled more than the other. [ 125 ] It is apparent there is a misguided sense of entitlement that one parent can arbitrarily restrict contact between the child and the other parent without just cause. [ 126 ] When introducing such a limited and sometimes supervised visitation schedule, the burden of proof is on the person requesting the limitations and/or supervision to provide a factual foundation for such restriction. In this case, that burden has not been met. [ 127 ] The only difficulty with the

schedule now is that the father has to be transitioned into a more significant role with his 16-month- old child. [ 128 ] There is also a geographical distance between Truro and Halifax accounting for a two-hour return trip, one hour each way. As we approach winter, this will become problematic. [ 129 ] The goal will be to reduce the number of transitions that place this child on the road and at the same time design a

schedule appropriate to this child's age and stage of development keeping him in contact with both parents frequently and reducing lengthy periods of time out of the other parent's care. [ 130 ] Much of the conflict arises out of the lack of a court order to state and facilitate an appropriate relationship with both parents. There is no reason to change what should be the ordinary order of joint custody, notwithstanding the conflict. [ 131 ] To grant sole custody to the mother because of lack of communication would be rewarding her for her part of the conflict. This would detract from enhancing the possibility for providing a stable and reliable

schedule of contact designed to ensure that the father and the child have an opportunity to develop a significant relationship. [ 132 ] The father has the financial means and ability to provide short-term and long-term relationship stability. That should not be lost

to the child. [ 133 ] I place this child in the joint custody of both parents to invest the parents with the right and responsibility to be consulted on and make consensual decisions with respect to the child's education, spiritual, emotional, physical well-being. [ 134 ] They shall consult one another on any major issues and come to a consensus or seek a second opinion from an appropriate professional to arrive at consensus, depending on the subject matter of their concerns. [ 135 ] Failing consensus, one may apply to the court for an order, either addressing the issue or altering the custody arrangement to facilitate decision-making. [ 136 ] They shall be reasonable with one another recognizing that the Court, in accordance with section 16(10) of the Divorce Act , requires that the parties facilitate appropriate contact with the other parent in a healthy manner. [ 137 ] As this is an interim decision, there is a requirement that the Court address the status quo. [ 138 ] The status quo here has been arbitrarily created because of the circumstances of conflict between the two parties and the mother's unilateral decision to remain in Nova Scotia. [ 139 ] Now that the father is in Nova Scotia, an appropriate

schedule should facilitate this child having the significant benefit of two parents. A delay in this at this child's age and stage of development may simply make transition more difficult and impede early development of a nurturing relationship with the father. [ 140 ] The mother's counsel refers to Marshall v.

Marshall , NSR (2d) 48 (NSCA) (March 25, 1998), in which the Court directed in interim hearings the status quo governs unless there is significant reason to do otherwise. [ 141 ] In this case, following the status quo arbitrarily constructed would essentially prohibit appropriate contact between the father and the child and would require significant intervention to step up the father's contact with the child in circumstances in which the mother created the status quo by denying the father appropriate contact with his child. [ 142 ] The test identified by the Court of Appeal suggested that if there was no reason to change the existing situation, the situation should continue until the trial. [ 143 ] In this case, there is every reason to change the existing situation because it has been arbitrarily imposed contrary to the best interests of the child. [ 144 ] The father moved to Nova Scotia after her unilateral decision to stay in Nova Scotia and has placed himself in a situation where he can and ought to be in a significant relationship with his son. [ 145 ] Waiting for a trial would only increase the separation between the father and the child and make the transition into an appropriate and more normalized

schedule much more difficult. [ 146 ] The allegations of violence made by the mother are dated. There is no corroboration and it is clear that the conflict between the two continues. [ 147 ] The father has denied the description of events as proposed by the mother.

[ 148 ] I am not able to conclude that there was violence between them. [ 149 ] The conflict described arises when the two parents are together and were engaged in a relationship and that has now terminated. There is no suggestion that the father exhibits violence in other settings any more than the mother has exhibited violence in previous settings.

Conditions of the Interim Order [ 150 ] The mother has been, by virtue of the de facto circumstances, the primary parent and she will continue to be the primary care giver and make day to day decisions while the child is in her care. [ 151 ] The past and current circumstances of this child's life from birth to 16 months would dictate that shared parenting at this time in terms of time share is not a decision to be made at an interim level. [ 152 ] The parties shall have joint custody of the child and each shall consult with the other on all major decisions including medical, religious, educational and physical aspects of the child's needs. [ 153 ] They shall discuss and arrive at an agreement respecting all major decision. [ 154 ] The

schedule of parenting time will be set out in order to transition the child into more significant contact with his father and while the child is with him, he shall make the day-to-day decisions. [ 155 ] The parties will consult with one another on any health issues and ensure that the other is aware of any urgency relating to the child's health or medical well-being. [ 156 ] Aside from emergencies when each shall address the emergency forthwith and as soon as practicable, contact the other; the parties will attempt to keep the child at one medical facility to ensure continuity of care when possible. [ 157 ] The father shall ensure he has access to the family doctor and other medical intervention should he continue to reside in Halifax. [ 158 ] The parties shall ensure each other are current as to the name and address of the medical services used by each of them for the child's benefit.

The Father's Interim Parenting Time [ 159 ] The mother proposes that the father have parenting time for six to eight daytime hours on Saturday and Sunday of every other weekend and four hours each Wednesday. That is not an appropriate

schedule to facilitate the kind of relationship that would most benefit the child or facilitate the development of a father-child relationship. [ 160 ] At the same time, the father wants equal parenting time and that would not be appropriate at this time given his limited contact with his child.

[ 161 ] The mother indicates she is concerned about the father's inexperience with children, frequent travel and other issues. [ 162 ] His inexperience can be addressed through time, experience, courses and the assistance of his mother and family. These were equally available to the mother when she became a parent. [ 163 ] The mother was concerned about the child travelling with the father for work.

I have little to no corroborating evidence that this is likely. [ 164 ] The mother would like the Court to restrict contact between the paternal grandmother and the child and prohibit the paternal grandmother from caring for the child while the child is with the father. [ 165 ] There is no evidence on which I would be justified in making such a prohibition.

It is clear that there is conflict between the mother and the paternal grandmother and that can be resolved by reducing, if not eliminating, any contact between these two adults. [ 166 ] The father and child may profit from the presence of his mother and family during his parenting times. [ 167 ] Each addressed their concerns about alcohol and/or drug use by the other. There will be a prohibition against either parent engaging in recreational drug use or being under the influence of alcohol while the child is in their care. Interim

Schedule [ 168 ] The

schedule will be a transition

schedule for the months of October, November and December with a review in January. [ 169 ] The father has proposed a transition that would move from six hours three times a week to eight hours three times a week for the month of October and the first week of November. [ 170 ] All October visits will be in Truro, for six hours on October 24 th , 26 th , 28 th , 31 st increasing to eight hours on November 1 st , 2 nd and 4 th . [ 171 ] Commencing Monday, November 7 th , the father shall pick the child up at 10:00 am and return the child to either the mother's place or the daycare as determined in advance by the mother at 10:00 am on Tuesday, November 8 th .

This shall occur each Monday to Tuesday. [ 172 ] The father will have another overnight each and every Friday from 10:00 am Friday to noon on Saturday, returning the child Saturday. [ 173 ] For the two days in between, the father shall have the right to select either the Wednesday or the Thursday, and to agree with the mother to either have four hours in Truro with the child on each of those days or to have eight hours straight on one of those days. [ 174 ] If the mother and father do not agree on an alternate schedule, the father shall be entitled to have the child on the Wednesday of each week for an eight hour visit. [ 175 ] During these visits in Truro, the father shall be responsible for meal times and pick up and return.

[ 176 ] On the Monday to Tuesday and Friday to Saturday overnight visits, the father will be fully responsible for making the day-to- day decisions and fully responsible for the care of the child. [ 177 ] The father is not restricted from having his mother with him (except for pick up or drop off) or other family members in order to assist him as he transitions into a full

schedule with the child. [ 178 ] Thereafter, in December the father shall continue on the Mondays to pick up the child at 10:00 am and return the child to the mother or daycare at 10:00 am the following morning and likewise, each Friday to return the child at noon on the Saturdays. [ 179 ] In the event of bad weather or driving conditions, an alternate night must be chosen within the first half of the following week. This is not to be in substitution for the regular schedule. [ 180 ] All midweek visits will currently occur in Truro during the winter. This is an attempt to minimize some of the driving.

The weekday visits shall be from 10:00 am to 6:00 pm. [ 181 ] The parties will ensure that they, where possible, use one medical doctor in the Truro area familiar with the child as much as possible.

Obviously this does not include emergencies or visits to the doctor when the child is in Halifax with the father. [ 182 ] The father shall ensure that he has his household set up for the child, properly addressing all safety issues and the child shall have a room to sleep in on the same floor level as he. [ 183 ] Daycare, medical facilities and all third-party service providers shall be informed and free to discuss any issues regarding their provision of services to the child with either parent. [ 184 ] Each parent shall ensure that the other parent is kept up to date with a current address and phone number. [ 185 ] The child's ordinary residence shall not be changed without the written consent of both parents or court order, save and except only if the mother decides to move closer in proximity to the father's residence. [ 186 ] The parties will recognize that given winter conditions, there is a margin of error that must be recognized and will make every reasonable arrangement to inform the other in the event of any lateness in pick up or drop offs. [ 187 ] The paternal grandmother shall not be involved in the pick up or delivery of the child to and from the mother. [ 188 ] While the child is in the household with the father, the mother will be entitled to have reasonable phone contact simply to update herself on the child's well-being and she shall make herself available as well and respond to any request regarding information about the child while the child is with the father and likewise for the father while the child is with the mother. [ 189 ] The parties shall keep each other informed of their cell phone numbers, land line numbers, if any, and place of residence. [ 190 ] The child shall be transported in an appropriate car seat, affixed in the car in the designated position in accordance with the regulations.

The father shall inform himself of these regulations.

[ 191 ] The child shall be transported in an appropriate safety-inspected vehicle with appropriate snow tires in winter . [ 192 ] In the event the father is unable to attend to his regularly scheduled parenting time, he shall advise the mother in advance by email and ensure that she has sufficient advance notice to obtain daycare. [ 193 ] Any issue of retroactive child support shall be dealt with at a later date. [ 194 ] Mr. Kelly shall prepare the order. Legere Sers, J.

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Hefter v. Hefter , 2011 NSSC 385 Date: 20111024 Docket: SFHMCA075674 Registry: Halifax Between: Alexis Anne Hefter Petitioner v. Aaron Charles Hefter Respondent Revised Decision : The text of the original decision has been corrected according to the erratum below, dated November 7, 2011 Judge: The Honourable Justice Moira C. Legere Sers Heard: September 28, 2011 in Halifax, Nova Scotia

Counsel: Mary Jane McGinty and Michelle Rogers for the Petitioner Gordon Kelly and Adrienne Bowers for the Respondent ERRATUM The docket number SFHMCA075674 is replaced by the correct docket number 1201-066519.