Barnhill v. Barnhill, 2013 NSSC 313

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Barnhill v. Barnhill, 2013 NSSC 313 Date: 20131004 Docket: 1201-066625 Registry: Halifax Between: Jason Barnhill Petitioner v. Stephanie Barnhill Respondent Judge: The Honourable Justice Moira C. Legere Sers Heard: September 4, 2013 in Halifax, Nova Scotia Written Decision: October 4, 2013 Counsel: Coline Morrow for the petitioner Jason Barnhill Mark D. Gardiner for the respondent Stephanie Barnhill By the Court (Orally): [ 1 ] I reserve the right to edit this oral decision and direct that this be transcribed to have available for a full hearing on the matter.

[ 2 ] I recognize that you have had limited time to present your evidence. [ 3 ] This is an application by Mr. Barnhill to prohibit his wife, Ms. Stephanie Barnhill, from registering the children in a school in New Brunswick. This would be a significant change, and a material change, in the status quo. [ 4 ] He seeks to keep the children here pending his return to Nova Scotia in or about April at his next posting date with the RCMP. [ 5 ] This emergency application first came before Justice Campbell for thirty minutes.

He felt that it needed more court time. [ 6 ] The matter came before Justice Williams on August 27 th , 2013. The issue as delineated by Justice Williams was whether the children would be registered for and attend school this fall in the Municipality of Halifax or Chatham, New Brunswick. [ 7 ] This hearing, therefore, is restricted to this question of registration and a period of time. I recognize I only have the information that you have been able to give to me in this short period of time.

I have heard only from the principal parties and I certainly have not heard from their significant others, each party having now a new partner. [ 8 ] I also have not heard from family. [ 9 ] I ask you to recognize that this is, therefore, not a permanent decision; it is a limited decision that is to address the period of time between September 2013 and the time that you return to court to address the next school year, hopefully before May of 2014.

That will, therefore, not tie the hands of a court who hears the matter fully. [ 10 ] I have sufficient evidence in this circumstance to confirm that there has been a change in circumstance that is envisioned in the legislation and that has been agreed upon between the parties. [ 11 ] There has been a significant change in the circumstances of their lives and the potential circumstances of the children. [ 12 ] When there is a material change, the Court must review and may review custody in its entirety with recognition that it is in the best interests of the children. [ 13 ] The best interests of the children are paramount and parental rights give way to the best interests of the children. [ 14 ] In the full and complete hearing that will take place, the Court will not be restricted by issues of status quo or how to resolve this in an interim fashion and nor will the Court be restricted by a presumption in favour of a custodial parent.

That is something that both parents should keep clearly in mind as they move through the next year. [ 15 ] In this circumstance I must consider many factors.

The mother has delineated in her affidavit the factors that are outlined in Foley and Foley , 1993 CanL11 3400 (NSSC). [ 16 ] These include employment and financial security, physical environment, discipline, role model, religion and spiritual development, assistance of experts necessary in the circumstances, time available for the parent to the child, cultural development, physical and character development of children, and the financial contributions to the welfare of the child, the support of the family, and the willingness of the parent to facilitate contact with the other parent.

[ 17 ] Many of those are important in the sense that to the extent I have evidence that I can review them and they will be more significantly considered in the final hearing on the matter of custody. [ 18 ] I anticipate the hearing will be at a time when the father can confirm his posting in Nova Scotia and the parties can come back before the Court and determine which is the best plan that would address the two boys' best interests. [ 19 ] I want to identify for the parents something that is very significant for a Court when considering custody.

I want to identify first that as the children's ages and stages of development change their needs may change. [ 20 ] The parental strategy or construct that you developed when you first separated may not have anything to do with their growing development and needs. [ 21 ] Children as they develop may turn to one parent or the other to your strengths at certain points in their lives and they may decide or you may decide that one of you can address a particular age and stage of development better than the other. [ 22 ] It is not unheard of for children to move back and forth between parents depending on the circumstances of the family. [ 23 ] You should also recognize that the Court must take into consideration, under the Divorce Act , Section 16(10), the following: In making an order under this

section the Court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child or children and for that purpose shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact meaning with the other parent. [ 24 ] That is a principle that the Court is obliged to consider both in short term and long term situations. [ 25 ] I will briefly set out the facts as I understand them. [ 26 ] The parties married on April 15 th , 2004. The father is a member of the RCMP.

The mother was trained as a chef. The petitioner was born on October 29 th , 1974 which I believe would make the petitioner 38 and the respondent is March 5 th , 1977 which would make her 36 years old. [ 27 ] The separation between these two parties occurred in or about June 2 nd , 2010 as they have agreed in their Separation Agreement. [ 28 ] They have two young children. Phelan was born on September 26 th , 2005 and he is seven years old and Payton was born on August 22 nd , 2008; he is five. [ 29 ] Both of these parties have strong roots in Nova Scotia.

Many of their extended family lives here. [ 30 ] The father's first posting was to Terrace, British Columbia in a Category 1 posting. [ 31 ] Both parties as husband and wife and parents or ultimately to become parents agreed that after he finished training they wanted to return to Nova Scotia to be close to their family.

[ 32 ] To do that, absent a compassionate posting, and I am satisfied that the father has indicated he as subsequently tried to obtain a compassionate posting; the best bet for a return was to accept an isolated posting which is termed a "limited duration" posting. [ 33 ] Once these postings are completed they then get an option of choosing one of three geographical locations in the Atlantic Region.

That was the plan the father is operating under. [ 34 ] That is also what the mother operated under when they functioned as a couple. [ 35 ] His hope is when the postings are finalized in April to be posted to Halifax and that would put him in extremely close contact with his boys at a time when he believed they would be living there. [ 36 ] His goal, and I take it, it was her goal too, was to ultimately obtain this posting and it was well known to both parties. [ 37 ] The father has worked hard to achieve this and by doing that he has had to qualify through extra courses for an emergency response team.

I understand that will put him in a category of people who will be specifically trained, which he believes, will elevate his options to be posted to Halifax in 2014. [ 38 ] In the spring of 2009 he was offered another posting to, I believe, Gabriola Island, British Columbia. They both agreed that he should accept this. However, shortly after in April of 2009 they separated for the first time.

With family intervention the parties reconciled and the mother returned to the family home shortly thereafter. [ 39 ] The father then declined the posting due to the marital difficulties. [ 40 ] In April 1 st , of 2010 the father was offered another posting for a four-year Category 1 to Ferryland, Newfoundland, which is on the extreme right of Newfoundland which is arguably closer to Nova Scotia than the British Columbia posting, but certainly isolated. [ 41 ] They both agreed to accept this and in the kind of marriage in which they existed it must have been well known with the RCMP that posting was something that both would be subject to and it was a well-known factor and they both appeared to be cognizant with the issues of attempting to get back to their home province and to be with their family to assist them and support them in their family life. [ 42 ] The father advised in his affidavit and his testimony that the respondent mother approached the move to Newfoundland in a positive manner by encouraging the children about the wonderful adventures that they would experience in their new home.

That is to be expected of a parent who is preparing their children for a move that was decided upon by both significant parents in their lives. [ 43 ] I attribute this behavior as similar behaviour in her approach to convince the children in her care now that this move to New Brunswick will be full of new adventures and to the extent that she has done that to eliminate the possible negatives effects of a move it is what one would expect. [ 44 ] I therefore do not presume that the children have any independent views or thoughts or preferences about this move other than that it will be a significant change in their lifestyle. [ 45 ] Their mother is attempting to transition them in a way in which she hopes will make the move a positive experience; however, the father has not been involved. [ 46 ] After encouraging and accepting the Newfoundland move in early June of 2010 the mother advised the father that she wanted a

divorce and this brought into the couple ’ s lives all of the financial pressure and stress conflict and the inevitable difficulties which children have to suffer when they separate from their parents due to what I consider to be irreconcilable differences between the couple; those differences not being able to be resolved by counselling. [ 47 ] I have insufficient evidence before me to draw any conclusions about the reasons for the dissolution of the marriage. Clearly the foundation was not solid.

Both of you are parties to the dissolution of the marriage and it is not very useful to determine at this point who is at fault. The marriage is ended and I do not presume one of you is any more at fault then the other. [ 48 ] I will, however, conclude that isolation, the employment in the RCMP with inherent stresses that brings with it to children, lack of your close family support clearly tip the scales to this foundation or shaky foundation that formed part of your marriage.

Fault finding is not going to get you any further in regrouping and building your lives anew. [ 49 ] When in British Columbia still, the mother took some time convincing the father to let her return to Nova Scotia. He did not do so immediately and without consideration. [ 50 ] The benefits were obvious to the Nova Scotia move if the parties were going to separate. The mother was unemployed and most of their extended family lived there and could and did rush in to support her and the children. [ 51 ] I would note that this included both sets of parents and extended family.

It is appropriate that both the mother and father have acknowledged in evidence the significant financial and emotional support both families have given and continue to give to these children and their parents. [ 52 ] Knowing of the support available to his wife and his children, the father agreed to the move to Nova Scotia in August of 2010. She returned to Dartmouth to live with her family.

He was left in the matrimonial home to sell the home and move to Newfoundland to begin his new posting. [ 53 ] His goal continued to be well known to her and to him and likely influenced his consent to have the children returned to Nova Scotia.

He would do what he had to do to fulfill the contract that they had agreed to so that he could increase his opportunity to return to Nova Scotia. [ 54 ] The downside of that was known to both parties with the separation would come the difficult access, the financial responsibilities and the isolation as well as the distance between himself and his children. [ 55 ] The father does acknowledge that she was the primary parent. [ 56 ] He was the person in the workforce and he continued to honor that obligation.

He acknowledges that she is a good mother and that it was her responsibility the role that she undertook to make sure that the children were cared for on a day to day basis. Whether that included working outside the home or not is irrelevant to my consideration but I do not see the mother as a victim here. [ 57 ] I see her as acknowledging that he was to do one role in the marriage and her responsibility, given she wanted to separate, was that she would return to her family, get their support and take care of the children on a full time basis and she has done that. [ 58 ] She has not done that as a single parent.

I would not classify her as a single parent within the traditional sense of the word. [ 59 ] She has had significant, consistent financial support from the father. She acknowledges that he wants to be a significant person in their lives and that it is not currently within his control to be present, like many Forces parents, on a day to day basis.

[ 60 ] He is doing what he can to make sure that now and in the long term he will be a significant father figure to his children. [ 61 ] She also has had significant support from her family and his family. And she has not, until this move, moved out and away from that support.

That is not a negative; it is just an indication that she has had the benefit of quite significant support from her own parents and from his and her extended family. [ 62 ] Both knew what the plan was and the mother likely obtained the father's consent to move to Nova Scotia knowing that the move and that the two children would be surrounded by strong and extended family. [ 63 ] Her affidavit is replete with her knowledge of these intentions.

I refer specifically to paragraph 10 and 11 of her affidavit in support of this. [ 64 ] With that as the background the parties entered into a separation agreement on the 21 st of June 2001 which set out his financial obligations, and the division of property between them. [ 65 ] While the plan was not incorporated into the agreement, it certainly might have been given the current circumstances.

One cannot predict what will happen in the future with any great certainty. [ 66 ] They both embarked on a separation agreement in which they acknowledged that both of them had joint legal custody of these children and this means that the father is not an access father, he is not a father who just has the right to visit and to facilitate visits. [ 67 ] It means that each of these parents continues to have all the rights and responsibilities of parents.

He has not relinquished because of the move any obligations or responsibilities he has in the short term. [ 68 ] You must as parents and the Court must in these matters look prospectively at the long term and so what must be clear to the mother in this circumstance is this is not just a facilitation of father involvement in the children's lives; consultation is mandatory. [ 69 ] Consultation is required with respect to all major decisions.

So it is not a statement of an ideal picture, it is a concrete statement that you are both parents, you are both significant to these children in different ways and you must each recognize that consultation must be meaningful. [ 70 ] In the event of dispute, there is a clause in this agreement that identifies that the mother has the final decision making authority. I have not had an opportunity to hear extensive evidence on this point but in the foundation that I have laid I agree with the comments of Ms.

Morrow that it makes sense when one parent overseas or is away with their job, that the primary caretaker has the ability to make the necessary decisions on a day to day basis which the agreement provides for the mother, but also in the event of emergencies etc. that any significant decisions must be made where there is a disagreement. [ 71 ] This contract that they have entered into also identifies that each may act in an emergency and it anticipates at times the children may be with the father when an emergency arises and each has the power to act and to then immediately as soon as practicable identify for the other that there is an emergency and bring them in on that.

It's a sharing of information. It's keeping each other updated. So there has been no contractual diminution of the father's rights and responsibilities. [ 72 ] In the picture that I have, I believe that the final decision making related more to the fact that they were living separate and apart due to employment and that the on-site person must practically exercise decisions in certain circumstances.

[ 73 ] That she was the primary parent is not disputed and that she is a good mother is not disputed. [ 74 ] Both agree that they are significant in the lives of their children. [ 75 ] He has fashioned a clause with liberal access which rests more on the practical difficulties of their current circumstance but more importantly they were to share information about the children's health, education, recreation and the like and they were to make reasonable efforts to keep each other informed. [ 76 ] Given the primary parent was the one with all the information on-site it seems to be that the burden was on the mother to keep the father updated. [ 77 ] They must work co-operatively in making future plans consistent with the children's best interests and to do so amicably.

And that of course, is the intention in joint legal custodial arrangements that there is much consultation done between the parties. [ 78 ] In paragraphs G and H they recognize the importance of the other parent and the importance to facilitate and foster a good positive relationship and to foster a feeling of affection. [ 79 ] Paragraph K is particularly important in that there were to be no important decisions affecting the children including but not limited to non emergency medical treatment, change of religion or change of educational institution to be undertaken by either party without consultation with the other but in the event of disagreement the final decision shall be made by the wife. [ 80 ] The responsibilities of the father were absorbed as well when he agreed to pay the cost of child care in full while the mother pursued her Nova Scotia firefighting school between August 8 th of 2011 and January of 2012. [ 81 ] The parties made some long term plans here as to what should happen in the future. [ 82 ] It was clear that Mr.

Barnhill has never detracted from his intent to apply and to be posted to Halifax, Nova Scotia in April of 2014; even though it has been a long term plan, he has never deviated from that. [ 83 ] Suddenly on April 7 th , 2013, one of his sons informs him, during a visit, that they were moving to New Brunswick.

This was his first notice. [ 84 ] He received information about an address where they were intending to go in June of 2013 when she moved their possession to the home of her current partner. [ 85 ] The children left school in June of 2013; they spent July with their father and his family and August with their mother in their new home. On May 20 th of 2013, the mother sent the father a message "I just wanted to let you know that we have decided to move to New Brunswick and this will be taking place this summer." [ 86 ] The mother met her current partner, Mr. Fowler, and began a long-distance relationship.

I am not certain how they met whether it was online but they began to have a long-distance relationship and they began to visit one another and apparently they became engaged after one of the court appearances in this matter. [ 87 ] This engagement may be significant in their lives but it is certainly not a weighty consideration in this proceeding.

[ 88 ] Mr. Fowler is an entrepreneur in New Brunswick. He has experienced some degree of success. He has suffered a bankruptcy and is reestablishing his business in Chatham.

He is recently separated in May of 2012 and shares custody of his child with his partner. [ 89 ] Clearly the mother has seriously breached the spirit and intent of this agreement. [ 90 ] She blames the father, alleging he was controlling and abusive and indeed his communication after separation was unacceptable and demeaning. [ 91 ] She, however, has engaged in a war of words with him demeaning his position as father, degrading him, demanding information about his own personal life and his new partner after a separation chosen by her. [ 92 ] More problematic for the Court now and in the future is the threat that if he causes a problem she will terminate his relationship with the children.

That is a serious threat and a serious misunderstanding of what your agreement is all about. [ 93 ] In the event this matter is fully heard before the Court, the mother's responsibility to foster and facilitate and relationship between the father and the children (when he is able) will be a consideration. [ 94 ] The father has agreed that up until now, subject to a number of serious exceptions, the mother has facilitated contact while she was in Halifax, Nova Scotia. [ 95 ] However, apparently they do not Skype anymore because the level of conflict between the parents is too high.

This a direct loss to the children. [ 96 ] The mother faults the father for taking a course through March Break for his employment which reduces his contact with the children.

It is this job that is in large part supporting the children and providing child support on a regular basis. [ 97 ] Seen in a larger perspective the father was left to fill out the terms of the employment contract something they both accepted and his employment has allowed for consistent and fairly decent child support payment to assist the mother in her care of the children. [ 98 ] I am troubled by the mother's behaviour and by the contrast between the intention stated in the affidavit about what her belief's and perspectives as a parent and her behaviour.

When conflict exists between the two, I am more inclined to rely on behaviour as the better indicator of future actions. [ 99 ] The mother suggests, as I have indicated, she is a single parent and as it exists between the two parents she has been the primary parent. He is the parent living in an isolated village in Newfoundland. [ 100 ] However, it is very clear that her stability has been enhanced by the support of multiple members of both families and she has the benefit of this support. [ 101 ] When she returned to Nova Scotia, she lived with her parents.

Both extended families reached out to her and the children. She planned to move from her family home once before. She lived with a friend, moved the children but then had to move back because her friend got married. [ 102 ] This is the second planned move away from her support base and a different province into a relatively new relationship and one that has not by any means stood the test of time.

[ 103 ] This will be a blended family. One child, the oldest, suffers from ADD. I have read the report; he requires special interventions, attention, consistency, understanding and stability. [ 104 ] There is no doubt the mother is on site to arrange and provide for his special needs.

These supports have been firmly in place in Nova Scotia through the assistance of the mother and her supports and the father's family. [ 105 ] The move will make more complicated the already difficult and costly efforts made and absorbed by the father and his family to maintain contact. [ 106 ] The suggestion that this will not be more difficult for the children is simply incorrect.

It is a longer distance, more difficult travel and we must acknowledge on not very nice roads. [ 107 ] Keeping the father in their lives as a constant is extremely important as they approach new circumstances in their lives. [ 108 ] There are many benefits to children having two significant persons in their lives.

No one replaces the mother and father in these circumstances. [ 109 ] As the mother has indicated you may add other people who love your children but it is difficult to replace the gaps when a parent is missing. [ 110 ] It would benefit both parents to educate themselves about the significance of the father's importance in a child's life.

In this case they already have the mother on site. [ 111 ] The recent research underscores the improvement in test scores and educational possibilities for children when their fathers are directly involved in their lives and the long term prospects for children and their success in life when both parents, mother and father, have a role and are able to be in their children's lives. Whether it be at a young stage or an older stage. [ 112 ] The mother might benefit from education on this point so that she will understand how significant it is to maintain this contact. His skills may be different from hers.

What he gives to the children may be very different from what she gives to them but these children need both parents in their lives. [ 113 ] The move will also put the children in a car far more, reducing parenting time by absorbing more travel time at least while the father resides in Newfoundland. [ 114 ] The mother will lose her employment although she appears to be able to obtain employment in another jurisdiction.

So the financial reasons, in terms of what she can provide, have not changed although it appears the combination of her finances and her new partner's is a positive. [ 115 ] My conclusion based on what I have is that this was not a move that was initially and primarily focused on the best interests of the children. [ 116 ] The mother wishes to get on with her life and enter into a new relationship. That is completely understandable. [ 117 ] She has chosen someone in New Brunswick whom she has corresponded with and met over a ten to twelve-month period. And

she has satisfied herself that he offers a home, some financial stability and an environment that will enhance her children's lives at least in the short term and that they will benefit from this new relationship. [ 118 ] It may be so but there are no guarantees that this blended family, this new relationship will succeed. And there are no guarantees other than hope that this will offer the children strong foundations within which the primary parent, their mother, can care for them. [ 119 ] Certainly if the mother obtains employment their finances may be more stable she will be independent from her family.

I see that neither as a negative nor a positive except that they have been your significant support. [ 120 ] But it is an independence that you achieve by becoming more reliant on Mr.

Fowler and whether that is true independence will remain to be seen. [ 121 ] There is the loss of the extended family for support on which you have heavily relied. [ 122 ] As I look at the factors there is no positive gain on the physical environment. [ 123 ] I am not in a position to say that Miramichi is better than Halifax and you have not provided any evidence specially to identify why a Court should conclude that. [ 124 ] They have the same role models except that their father will be there possibly less and their extended family.

But there is no indication that they are going to have more role models except that Mr. Fowler, if this continues to be healthy relationship, is just an additional positive. [ 125 ] Religion and culture are not an issue. [ 126 ] Character of the children relates more to the environment in which they are brought up. [ 127 ] But there are losses that are potential including the availability of revenue and employment and the availability of resources in a small community to deal with ADHD. [ 128 ] I cannot determine in the long term whether this is going to be benefit to your children. [ 129 ] Were Mr.

Barnhill living in Nova Scotia and available, in all likelihood this move would be considered premature without a Court having the ability to weigh all of the factors with more evidence as to what is in the best interests of the children. That is what you will face when you come back before the Court in the future. [ 130 ] Mr. Fowler could move but he is not prepared to jeopardize his 50/50 shared parenting arrangement with his one child. [ 131 ] Mr. Barnhill going to New Brunswick does not sound like a realistic possibility in a bilingual province where he is uni lingual.

In any event, suggesting that he move to New Brunswick when this is a new relationship that he should pin the family's financial stability and his career on something that is yet to be determined to be stable is not necessarily a good option. What he decides to do in the future is another question. [ 132 ] Unfortunately, the father is not in this province. I am not in a position to conclude that the mother's move, to facilitate what may be a very positive relationship for her and ultimately for the children, is the best plan.

[ 133 ] The father's new relationship may create an environment in his household which will be yet another positive experience for his children and provide more foundations so that they can get on with their lives. [ 134 ] Were he in the province, I may well decide that the children should stay here until more of this was fleshed out so that the Court could judge in the long run. [ 135 ] But the mother has been the primary parent since 2010 and the father will not be present in the province until April 2014. [ 136 ] It would be somewhat arbitrary for me to say that the mother cannot register the children for this short period of time while she is working on a relationship. [ 137 ] She has not shown herself to be terribly impulsive, it is not within the month or two months that they have decided this. [ 138 ] This relationship may not work.

This move may not work for the children. The mother may be setting up a situation where she has to return to her family's home.

I am assuming by what I have heard from them that they will be available for her. [ 139 ] If this does not work, the downside of this move for the children is another change of school. [ 140 ] But to hold her in limbo from September 2013 to April 2014 simply because we are waiting on the father to return, in my view, is arbitrarily imposing on her the Court's view of what she should do as an adult and as a primary parent. [ 141 ] I say that in the context of all of the other conclusions I have reached that would not necessarily favor a move this quickly without the Court having heard the whole story. [ 142 ] While I am going to permit the mother to register the children in the school and attend, she must understand that this is not a permanent decision, that the trial judge will not be limited by my conclusion about what has happened. [ 143 ] This decision will be available for the parties to tender. [ 144 ] The father will be in a better position by April 2014 to know where he is going to be. [ 145 ] The Court will be weighing the entire context of what is in the best interests of these children.

They are not moving to be with Mr.

Fowler's child who is only going to be there 50 percent of the time. [ 146 ] So, what is going to be in their best interests will be an unrestricted custodial review of plans. [ 147 ] It is entirely realistic that the father would anticipate that if he let you come to Nova Scotia with the children and consented to that move in 2010 that he anticipated that when he got back to Nova Scotia he would be in a very good position to be very significantly involved. [ 148 ] What you should understand about custody orders is they change; that what you designed as a liberal order in British Columbia will very significantly change in Nova Scotia as he becomes much more available to them in summer and in winter.

His move back will put him in their lives physically as well as financially. So do not anticipate that anything is written in stone.

[ 149 ] I am concerned that you acted so unilaterally and that you did not set aside both of you, your difficulties and really discuss this major change. [ 150 ] Having been given the power to make the final decisions, your behavior shows that you were prepared to cut the father out of a very significant portion of decision making in the children's lives. [ 151 ] As a consequence I am going to revoke the "final decision" clause and indicate that no final decision shall be made without the consultation and agreement of the father on any major issues, including mobility for the future, until this matter can be heard in full. [ 152 ] I wish to give you the clear message that consultation means meaningful consultation and consensus must be reached or you need to both find a way to resolve the disputes. [ 153 ] I do not want to be giving you a message that if this does not work out you can move into another relationship or place because that is clearly not going to be in the best interests of the children. [ 154 ] I am going to prohibit you from moving from the Miramichi area with the children without the consent of the father or Court order except only for returning to Nova Scotia in the event that this relationship does not work. [ 155 ] All other changes of residence outside the Miramichi he must have 90 days advance notice and his consent. [ 156 ] If you move from house to house in Miramichi, you must give them your name and your address, the telephone number, he must be registered in the school with the father as the parent. [ 157 ] There will be a clause that allows him direct contact with the right to receive information from all third party service providers. [ 158 ] You will advise him of the doctor and other therapists involved in his care. [ 159 ] So that will rebalance what has happened here to make it very clear that he must be a consenting party to major decisions with respect to the children and that includes spiritual, education, emotional, and physical welfare.

He is going to be a participating parent in the whole spectrum. [ 160 ] You are to keep him informed of their medical, significant school events, the progress that he makes and what is in place for your son's ADD. [ 161 ] You are to facilitate private discussions on Skype and I am sure Ms.

Morrow will go over how to keep these Skype conversations devoid of family conflict and issues that facilitate his relationship with his boys until he is able to see them and to facilitate any other technological communication. [ 162 ] From September 2013 to April 2014 is the period of time with which I am dealing. [ 163 ] I am presuming by April he will have some idea of his new posting.

[ 164 ] I have noted that the drive for the children will be significant. [ 165 ] I am going to give him the first choice this Christmas 2013 of the seven days that he is able to take regardless of where they fall in the children's vacation. [ 166 ] And I am not certain, perhaps counsel can identify for me, what's the difference because he has parents who live in Cape Breton and he flies into Halifax what the difference is in terms of whether they meet in Halifax or Truro if that saves them. MS. MORROW: Truro, My Lady. THE COURT: Truro is your best bet. Okay.

Unless you work out flight differences, you will be driving the children to Truro at Christmas and for parenting times. [ 167 ] He will advise you as soon as he can, by no later than November 15 th when he gets his seven days at Christmas.

You will have them in Truro for him when he arrives and you will be in Truro to pick them up at the end of this seven days. [ 168 ] Again on March Break he shall have from Friday of March Break until the Sunday that they return to school and again you will drive them to Truro and he can pick them up if he gets March break or his parents or his girlfriend to the end of that date and that will at least give him to solid blocks of time. [ 169 ] The alternate is if he wishes in March break to fly them into Newfoundland. [ 170 ] I do not know if that's a possibility, but you will pay for one child to go and he will pay for the other so that you will share the costs of any flight to get the children into Newfoundland.

That is something you can agree upon between the parties. [ 171 ] It would be my recommendation that if they are going to fly into Newfoundland or St. John's that they fly with a family member.

I am sure there are enough family members who could absorb the cost but that the children do not fly alone during those periods of time because oftentimes there are some changes in scheduling. [ 172 ] For the two major pieces December and March I am going to apportion $1,000.00 cost to you for each of these trips. [ 173 ] I have reviewed the cost of the trips that he has made and will make over the course, possibly make over the course of the next seven or eight months and most of his trips are costing $1,000.00 to $1,200.00. [ 174 ] You will give him a credit against child support and provide him with a receipt so he can deduct that from his child support. [ 175 ] Maintenance Enforcement will not negotiate between the two of you so you will have to make sure that if you agree on something you provide him a receipt against child support if you prefer to do it that way then to have the actual airfare paid for by one or the other. [ 176 ] Between September 2013 and December 2013 he shall also have the other option of having in addition to this two, four-day weekends.

[ 177 ] Now I know you have children that you want to be in school but in my experience it does not hurt children to be away from school to see a parent for one or two days during the course of a semester. [ 178 ] My recommendation is you contact the school, find out when you are available for these four day weekends, if you can take them and work with the teacher on what would be the best and what homework can be identified not a whole lot of homework for a four- day trip if the father is flying in but just to make sure that here is not disadvantage to him for pulling him out twice between September and December, twice between January and May or June. [ 179 ] That will be a full four day weekend which you will facilitate by meeting him in Truro and again having him pick the children up in Truro so that you are sharing the costs you are absorbing some of the consequences of this move. [ 180 ] The children unfortunately have to absorb them as well. [ 181 ] I anticipate when the father is back in Nova Scotia that there is going to be a major review not only of custodial review but a review of his parenting plan so that you can prepare for a hearing in that matter. [ 182 ] The father will advise the mother within 48 hours of finding out what his posting is. [ 183 ] I think that is an interim order that, with the changes to the decision making that I think are necessary and the mobility clause which will be the additional one.

THE COURT: Now with respect to setting this matter down I am prepared to set it down for a hearing but I am also prepared to set it down for a docket day sometime in February. Scheduling in Halifax, Mr. Gardiner. I don ’ t know whether you know how far ahead they're scheduling in Halifax. Ms. O'Keefe? MR. GARDINER: I am not sure, My Lady. COURT REPORTER: I believe there were some dates this morning for February. THE COURT: February? That probably a little bit early. Will we set it down for a pre-trial which can go by way of Ms.

Morrow you can be in attendance by phone if that ’ s necessary and then what two days for a hearing in April, May? May? MS. MORROW: Perhaps, maybe three days in May or June? THE COURT: Okay. MS. MORROW: Three days in May or June. THE COURT: So what I am saying is you are going for short period of time by no means should that be an indication that I am suggesting that this is a good move. That you may well have to move back after the final hearing but because the father is not here, it seems to me to be an arbitrary imposition of keeping you here but not, this is not a long term decision. Okay?

MS. MORROW: Maybe three days in May or June? THE COURT: Okay let us go to scheduling if they are there. . . . THE COURT: As the docket stands and it can change, Justice Dellapinna is the Judge so Ms. Morrow, you should contact his office, scheduling, to determine whether he would allow you to appear on the pre-trial by way of phone. MS. MORROW: Yes, I will My Lady. THE COURT: Alright and who will be drafting the order? You will be drafting the order. MR. GARDINER: That's fine. THE COURT: Okay, anything further? MS. MORROW: No, My Lady. THE COURT: Thank you very much. Legere Sers, J.