Barnhart v. Murphy, 2023 NSSC 31

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Barnhart v. Murphy, 2023 NSSC 31 Date: 2023-02-07 Docket: 1201-072098 Registry: Halifax Between: Justine Barnhart Petitioner v. Conor Murphy Respondent Judge: The Honourable Justice R. Lester Jesudason Heard: Written Release: June 15, June 20, September 30, and December 19, 2022, in Halifax, Nova Scotia February 7, 2023 Counsel: Tess Panzarasa for Justine Barnhart Bryen E. Mooney for Conor Murphy By the Court: 1.0 INTRODUCTION [ 1 ] This decision is about Auggie.

He’s seven years old and is in Grade 2 at the Hawthorne Elementary School. [ 2 ] Auggie’s parents, Justine Barnhart and Conor Murphy, clearly love him dearly. Ms. Barnhart says Auggie is “kind, funny and playful”, “amazing” and a “great joy” in her life. Similarly, Mr. Murphy says that Auggie is “a wonderful kid” who is “very smart” and “kind to all”. [ 3 ] Unfortunately, despite the great joy Auggie has brought to his parents, he has found himself squarely immersed in the centre of repeated litigation between them since they separated in January 2019.

Specifically: • On September 1, 2020, they required a hearing before Justice Pamela MacKeigan because they couldn’t agree on where he should go to primary; • On June 11, 2021, they required a hearing before me because they couldn’t agree over his summer parenting arrangements; • On December 21, 2021, they required a hearing because they couldn’t agree on where he should go to school for Grade 1; and

• The parties had a final multi-day divorce trial before me in 2022 with the most contentious issue being his ongoing parenting arrangements. [ 4 ] The fact that they have required four parenting trials since they separated in 2019 is most unfortunate. As I emphasized to them on several occasions, it is less than desirable to repeatedly ask a judge to make parenting decisions for them.

Not only does it result in additional stress and conflict for both of them, but having multiple hearings before multiple judges has meant they have given up a fundamental right as parents – the right to make parenting decisions on their own.

Instead, they have given that authority to judges who, despite being strangers to their and Auggie’s lives, get to tell them how they must parent Auggie. [ 5 ] I sincerely hope that this is the last time these parents find themselves in court asking for a judge to tell them how they must parent Auggie. [ 6 ] In delivering my decision, I will: • Provide an overview of the relevant family and litigation background; • State the issues I must decide; • Outline the parties’ positions and arguments in relation to the issues; • Discuss the relevant law; and • Do my analysis and give my conclusion on each of the issues. 2.0 FAMILY AND LITIGATION HISTORY 2.1 Family History [ 7 ] The parties met in 2012 and began living together in early 2013.

They married in August 2014 with Auggie subsequently being born in August 2015. [ 8 ] The agree that their relationship was unhealthy. Both describe it as “toxic”. They separated in January 2019 although they continued to live together in the same residence until Mr. Murphy physically moved out in August 2019. [ 9 ] Ms. Barnhart is a self-employed photographer and works on a part-time basis from home. Mr. Murphy is a full-time teacher at the Central Spryfield Elementary School. [ 10 ] Both parties have re-partnered. Ms.

Barnhart says she began a romantic relationship with her current partner, James Fraser, in early 2019. They live together in a home in Dartmouth and have a child, “S”, who was born in June 2020. [ 11 ] Mr. Murphy says he began a romantic relationship with his current partner, Erin Lundrigan, in March 2019. Mr. Murphy says they have separate residences although Ms. Lundrigan stays at his place regularly. 2.2. Litigation History [ 12 ] This divorce proceeding was commenced shortly after the parties separated.

On September 1, 2020, the parties had a hearing over where Auggie would go to primary before Justice MacKeigan. Both parties were represented by lawyers. Ms. Barnhart sought for Auggie to go to primary at the William King Elementary School (“William King”) which, at the time, was in her school catchment area. Mr. Murphy sought for Auggie to go to primary at the Elizabeth Sutherland Elementary School (“Elizabeth Sutherland”) which was in his school catchment area.

Justice MacKeigan ordered that Auggie attend primary at William King for the September 2020 to June 2021 school year. [ 13 ] The parties participated in a settlement conference before Justice Robert Gregan in October 2020. Again, both had lawyers. It resulted in a Consent Order issued on May 31, 2021, in which the parties agreed to several terms in relation to parenting and financial issues. This included how the parties would make major decisions for Auggie.

Specifically, they agreed that: “ The parties shall have joint custody and shared decision making for Auggie for all major decisions in relation to the child including but not limited to his health, education , extracurricular activities, social and moral upbringing.” [Emphasis added]. [ 14 ] A two-day divorce trial was scheduled before me on May 17 and 18, 2021. A few weeks before the trial, Ms. Barnhart advised that she may seek to adjourn it because her former lawyer’s representation ended and she wanted to time to retain a new lawyer for the trial. Mr. Murphy objected. I encouraged Ms.

Barnhart to try to secure a new lawyer quickly so that the trial would not be delayed. [ 15 ] In early May 2021, Ms. Barnhart confirmed she was still unable to retain a new lawyer for the trial and requested that it be adjourned. I therefore scheduled an appearance on May 10, 2021, to deal with her adjournment request. [ 16 ] After hearing from the parties, I reluctantly agreed to adjourn the trial on the condition that a shorter hearing would be scheduled before the summer to deal with Auggie’s summer parenting arrangements. I did so because Mr. Murphy was seeking an equal sharing of time over the summer and Ms.

Barnhart wasn’t agreeable to same. I also advised that both parties could be heard on the issue of costs arising from the adjournment after a final trial. I made it clear to Ms. Barnhart that I expected the rescheduled final trial to proceed regardless of whether she was able to retain a new lawyer. [ 17 ] A hearing over summer parenting arrangements was scheduled for June 11, 2021. Filing dates were given for same. Ms. Barnhart did not meet her filing dates and again sought to adjourn the hearing. Specifically, on June 1, 2021, she emailed the court and advised:

• She had been granted a Legal Aid certificate but was unable to retain a lawyer yet and expected it could take up to 2 months to get one; • She had no arrangements made to pick Auggie up from school during the date of the hearing; • While she recognized that Mr. Murphy would likely be opposed to the adjournment request, and felt badly about that, Auggie had always spent weekdays during the summers with her and she had a hard time understanding the urgency on Mr.

Murphy’s part to request such a “big change” for Auggie; and • Auggie was already looking forward to spending his summer days with her at the lake near her home. [ 18 ] I declined Ms. Barnhart’s adjournment request and the hearing over summer parenting arrangements proceeded. I determined that it was in Auggie’s best interests to spend equal time with his parents over the summer. [ 19 ] On September 17, 2021, Mr. Murphy filed a motion for interim relief seeking an order requiring Auggie to continue his schooling at William King. He brought the motion because, despite initially leading Mr.

Murphy to believe that Auggie would continue at William King, Ms. Barnhart relocated from Herring Cove to Dartmouth to live with Mr. Fraser and then unilaterally enrolled Auggie in the Hawthorne Elementary School (“Hawthorne Elementary”). She only advised Mr. Murphy of her move and the unilateral change to Auggie’s school on September 2, 2021. [ 20 ] A hearing over interim schooling arrangements was held on December 21, 2021, to determine where Auggie would go to school in January 2022 to complete Grade 1. Despite me disapproving of Ms.

Barnhart’s unilateral decision to enroll Auggie at Hawthorne Elementary over Mr. Murphy’s objection, particularly because the existing Consent Order required joint decision-making over educational matters, I didn’t find it in Auggie’s best interests to change his school for the remainder of his Grade 1 school year. I reached this conclusion largely for the following reasons: • The hearing in December 2021 was an interim hearing on schooling only. By the time of the hearing, Auggie had already spent close to half of his Grade 1 year at Hawthorne Elementary and had the support of a speech therapist at that school.

Because there was a final hearing on parenting including schooling scheduled for May 2022, I didn’t believe that uprooting Auggie from Hawthorne Elementary to complete his Grade 1 year at a different school for possibly only a few months was in his best interests; • William King was no longer in either parents’ school catchment area given that Ms. Barnhart had relocated from Herring Cove to Dartmouth. Thus, it did not appear that this school was particularly convenient for either parent; and, • Mr.

Murphy acknowledged that, prior to the start of the hearing, he hadn’t followed up with William King to confirm whether Auggie could still be accepted as an out-of-area student at that school in January 2022; [ 21 ] The final divorce trial was scheduled for May 5 and 6, 2022. Ms. Barnhart did not meet her filing deadlines and, on the morning of May 3, 2022, sent an email to our Scheduling Office which stated that she had tested positive for Covid-19 and was seeking directions on how to proceed. [ 22 ] Despite advising she was waiting for directions from the Court, Ms.

Barnhart was initially unable to be reached despite multiple efforts by court staff. Eventually, she did participate in a telephone call on the first day of the scheduled trial. [ 23 ] After hearing from the parties, I again granted Ms. Barnhart an adjournment of the trial. However, to avoid a further lengthy delay, I rescheduled the trial for June 15 and June 20, 2022, by unfortunately having to reschedule other matters on my docket to ensure this trial could proceed without much delay. [ 24 ] Ms. Barnhart subsequently retained her current counsel to represent her and then, over the initial objection of Mr.

Murphy, filed lengthy materials for the trial. I had to convene an emergency conference on May 25, 2022, to deal with the late filing. It was agreed that Mr. Murphy could file materials in response by June 8, 2022, and still have the right to maintain objection to any of the late material filed by Ms. Barnhart. He could also be heard on the issue of costs. [ 25 ] The parties appeared on June 15, 2022, to commence the divorce trial.

They agreed that all the material filed by both parties could be considered by me without any objection on the understanding that both parties could be heard on costs after the trial concluded. [ 26 ] We proceeded with the trial on June 15, 2022 and June 16, 2022, but the evidence wasn’t completed. Another day was scheduled on September 20, 2022, on the understanding that the parties would again equally share parenting time with Auggie during the summer. [ 27 ] We completed the evidence on September 20, 2022. Counsel requested that they be allowed to file written post-trial submissions.

I granted that request and closing written submissions were subsequently filed with the last submission filed on October 24, 2022. The parties then appeared by telephone on December 19, 2022, to respond to questions I had based on their submissions. 3.0 AGREEMENTS OF THE PARTIES [ 28 ] The parties consent to a divorce and agree that all the jurisdictional and procedural requirements to grant a divorce have been met. The evidence establishes that the parties have been living separate and apart for over three years and that there has been a breakdown of the marriage with no possibility of reconciliation.

I grant their divorce. [ 29 ] When the parties and counsel appeared for the first day of the trial on June 15, 2022, they confirmed they had reached several agreements. They were reduced in writing and marked as Exhibit 1. [ 30 ] In an effort to further streamline the issues, and possibly narrow the focus of the parties’ evidence before they took the stand, I spent additional time on June 15, 2022, delving deeper into the parties’ positions and their underlying rationales for same. As a result of

those discussions, the parties were able to reach several additional agreements which were reduced in writing and marked as Exhibit 21. [ 31 ] The parties’ agreements cover many areas including, but not limited to, the following: Responsibilities to Auggie; Responsibilities to each other; Decision-making (with the exception of educational decisions); How they will communicate with each other; Communication with Auggie; No use of physical discipline; Holiday Parenting (with some exceptions); Holiday Transition times on non-school days other than the summer months; Attendance at school activities and extracurricular activities; Travel; Additional parenting time outside of the regular

schedule ordered; No relocation outside of the Halifax Regional Municipality without a written agreement or Order of the Court; Review of parenting with the indication they would explore shared parenting if both parties reside within a 10-minute drive of Auggie’s school; Mr. Barnhart’s and Ms.

Murphy’s income for child support purposes; Retroactive Child Support; Spousal Support (both retroactive and ongoing); Exchange of annual financial disclosure; Recalculation date following such disclosure; Proportionate sharing of special and extraordinary expenses proportionate to incomes; Medical and dental plans; and Manner in which to resolve ongoing child support should shared parenting be ordered. [ 32 ] The parties also previously resolved all property issues at the Settlement Conference held in October 2020. [ 33 ] I commend the parties for being able to reach so many agreements.

I order all of the terms agreed to by the parties. 4.0 DISPUTED ISSUES [ 34 ] The remaining disputed issues left for me to decide are: Issue 1: How should major educational decisions be made for Auggie? Issue 2: What parenting arrangement during the school year is in Auggie’s best interests? Issue 3: Holiday exchange times on days that are followed by a school day Issue 4: Ongoing child support [ 35 ] I will deal with the parenting issues (Issues 1, 2 and 3) before addressing child support (Issue 4).

In doing so, when the parties appeared on June 15, 2022, they requested that, even though there was an existing Order from the October 2020 settlement conference which included some parenting terms, that I determine the disputed parenting issues new without requiring either party to establish a material change of circumstances. I have agreed to proceed on that basis. 5.0 ISSUE 1: DECISION-MAKING 5.1 Agreements [ 36 ] As noted, the parties agree on most aspects of decision-making for Auggie.

Specifically, they agree: • They will have joint-decision making authority for major decisions involving Auggie with the exception of educational decisions; • They will make decisions in relation to Auggie and consider his best interests over their own; • They shall consult with one another via email for the purposes of making decisions for Auggie unless the matter is urgent in which case the parties shall consult with each other by telephone; • Day to day decisions affecting Auggie shall be made by the parent who has care of Auggie at the time; • Either parent is entitled to make emergency medical decisions, if necessary, and will notify the other parent as soon as practical thereafter; • The parties will notify each other of the name and contact information of any and all professionals involved in Auggie’s care and will maintain Auggie’s current care providers unless otherwise agreed upon by the parties; and • Each parent can request and obtain information directly from all third party service providers involved with Auggie including, but not limited to, teachers, medical professionals, doctors and dentists. 5.2 Educational Decisions [ 37 ] In light of the parties’ agreements, I will focus on their positions and arguments on the remaining disputed decision-making issue

of how should major educational decisions for Auggie be made. 5.3 Position of Ms. Barnhart [ 38 ] Ms. Barnhart seeks that the parties continue to have joint-decision making authority for all major educational decisions involving Auggie. She also wants Auggie to remain at Hawthorne Elementary and its feeder group of schools. [ 39 ] In support of her position, Ms. Barnhart makes various arguments including, but not limited to, the following: • Both parents are equally capable of and have valuable insight to add in order to make appropriate educational decisions for Auggie.

Both have been engaged and attuned to Auggie’s educational needs; • There’s insufficient evidence to suggest that either party has a superior ability to make appropriate or mature decisions regarding Auggie; • While she agrees that, in the past, she has regrettably sent Mr. Murphy inappropriate messages that “do not reflect her best self”, she submits that the interactions between the parties amidst conflict in their relationship, and during a difficult separation, should not be generalized to reflect their overall current ability to communicate now.

To the contrary, she suggests that their communication has improved and while she and Mr. Murphy may not agree on everything, the evidence shows that they can and do communicate with respect to Auggie on a regular basis; • She says that this isn’t a case where there is conflict such that violence ensues, or the parents are dragging Auggie into adult matters.

Both parents have re-partnered, moved on with their lives, and continue to make decisions and share information amicably; • She believes it’s in Auggie’s best interests to continue to go to Hawthorne Elementary and its feeder schools because Auggie has friends in his classes, is familiar with the teachers, has formed relationships with support staff including his speech therapist, and is “well-settled” at that school. She would agree to an order requiring Auggie to remain at Hawthorne Elementary and its feeder schools in the future unless both parents agree otherwise; and • To the extent Mr.

Murphy wants to change Auggie’s school to Elizabeth Sutherland, it would mean Auggie moving schools for a third time. She says that Mr. Murphy has provided insufficient evidence that a further change in Auggie’s school would be in his best interests; 5.4 Position of Mr. Murphy [ 40 ] Mr. Murphy seeks final-decision making authority in relation to educational matters for Auggie after meaningful consultation with Ms. Barnhart. He also wants to change Auggie’s school to Elizabeth Sutherland. [ 41 ] He originally sought the change in school to occur immediately.

However, on December 19, 2022, his counsel confirmed that, to minimize any disruption for Auggie this year, Mr. Murphy agrees to Auggie completing his Grade 2 year at Hawthorne Elementary. He would then seek to move Auggie to Elizabeth Sutherland for Grade 3 in September 2023. [ 42 ] In support of his position, Mr. Murphy makes various arguments including, but not limited to, the following: • In the past, Ms. Barnhart made unilateral decisions relating to Auggie’s education and other matters despite there being an existing Order which required joint decision-making. Examples include: (

a) Unilaterally enrolling Auggie at Saint Mary’s Elementary School in February 2020 when neither of the parties lived in the catchment area; (

b) Unilaterally trying to enrol Auggie at Hawthorne Elementary for the 2020 to 2021 school year when neither of the parties lived in the catchment area; (

c) Unilaterally enrolling Auggie at William King where he attended school for the 2020 to 2021 school year; (

d) Unilaterally relocating with Auggie to Dartmouth in a residence with Mr. Fraser in 2021; (

e) Unilaterally enrolling Auggie at Hawthorne Elementary in September 2021 on the Friday before school commencing over his objection and insistence that Auggie continue to be enrolled at William King. This happened despite him bringing up the topic of school enrollment in the spring and her telling him then that Auggie was thriving at William King and was well-settled there; (

f) Unilaterally removing Auggie from the Province of Nova Scotia in August 2021 without notice to him while COVID-19 restrictions were still in place; (

g) Enrolling Auggie in swimming lessons and refusing to communicate with him regarding the schedule; and (

h) Unilaterally taking Auggie to receive his COVID-19 vaccination without consultation or notice to him. • Mr. Murphy says that, throughout her testimony, Ms. Barnhart continued to show little to no acknowledgement that educational decisions were required to be made jointly under the existing Order. He says she has completely undermined his legal right to be involved in educational decisions for Auggie and continues to show no appreciation that she has acted in a manner which ensures he would have no input into Auggie’s educational decisions, despite him being an educator. • Ms.

Barnhart has moved a number of occasions since separation which has caused instability for Auggie and required him to attend two different schools despite being only in his third year of education. He says she shows continued instability as to where she lives and

has only resided at her current residence owned by the Frasers for a little over a year despite previously being advised by Mr. Fraser and his family that she would not be permitted to live in that residence. He believes that her relationship with Mr. Fraser is unstable and fears that if their relationship breaks down again, Ms. Barnhart would have to relocate again resulting in Hawthorne Elementary no longer being a viable school for Auggie. • He says that Ms. Barnhart has acted unilaterally and selfishly since separation.

She has failed to show why any of her relocations or the educational decisions she has made were in Auggie’s best interests. To the contrary, her decisions have been focussed on what she wants and wishes rather than what is best for Auggie. • He’s an elementary school teacher and has maintained a consistent residence since separation. He hopes to purchase a new residence in the area to ensure greater consistency for Auggie in the future. Should he be granted final decision-making authority for educational decisions, he will move Auggie to Elizabeth Sutherland which is in his catchment area.

Except for times when they were Covid restrictions, Auggie has been playing with children that attend that school every weekend since September 2019 when Mr. Murphy moved to the area. 6.0 ISSUE 2: ONGOING PARENTING ARRANGEMENTS [ 43 ] Mr. Murphy’s parenting time with Auggie since separation has been every Friday at noon (or after school) until Sunday evening, with additional summer and holiday parenting time. [ 44 ] Again, to the parties’ credit, they have agreed to several parenting terms to form part of a final Order.

These include that they will continue to share the summer break equally. [ 45 ] The main remaining area of dispute is parenting arrangements during the school year. 6.1 Ms. Barnhart’s Position [ 46 ] Ms. Barnhart’s position is that the existing parenting arrangement should continue. 6.2 Mr. Murphy’s Position [ 47 ] Mr. Murphy’s position has changed from before the trial to now. [ 48 ] In his pre-trial brief, he sought “primary care” of Auggie.

He proposed that, during the school year, he have Auggie in his care during the entire school week and that the parties would alternate weekends with him. [ 49 ] However, when asked by me when giving his oral evidence during the trial, he acknowledged that, despite putting forward a position to have primary care of Auggie, he didn’t believe this to be in Auggie’s best interests. He testified that it would concern him to significantly take away Auggie’s existing time with Ms. Barnhart and his brother, S, and that it was “third parties” who suggested the plan for primary care.

He then advised that he therefore believed that a shared parenting plan would be in Auggie’s best interests. [ 50 ] Despite this oral testimony, in his post-trial submissions filed on October 17, 2022, his counsel advised that he was again seeking primary care of Auggie with Ms. Barnhart’s parenting time being limited to every second weekend. His counsel also advised that if primary care was ordered, Mr. Murphy would also agree to Ms. Barnhart having a mid-week overnight visit so she could help Auggie with his homework and get familiar with his new school. Mr.

Murphy also put forward an “alternative position” that the parties have a week on/week off shared parenting arrangement but that he be given final decision-making authority in relation to schooling so that Auggie be allowed to attend Elizabeth Sutherland. [ 51 ] When I asked his counsel on December 19, 2022, about the apparent inconsistency between his oral evidence and his post-trial submissions, his counsel confirmed that, in an ideal world, Mr. Murphy still believes it’s in Auggie’s best interests to have a week about shared parenting arrangement. The problem, however, was that Ms.

Barnhart has made such an arrangement much more difficult given her relocation without notice from Herring Cove to Dartmouth in September 2021. Given that Auggie currently goes to Hawthorne Elementary, Mr. Murphy’s own work

schedule would make it extremely difficulty for him to drive Auggie to and back from school as part of a week about shared parenting arrangement. He could, however, make a week about shared parenting work if Auggie was going to Elizabeth Sutherland. [ 52 ] Mr. Murphy’s counsel further clarified that again, to maintain consistency for Auggie during this school year, Mr. Murphy was agreeable to continuing with the existing parenting arrangement for the rest of Auggie’s Grade 2 year.

Then, from the summer of 2023 onward, he was seeking for Auggie’s parenting arrangement to be changed and for Auggie to be enrolled in Elizabeth Sutherland in September 2023 for Grade 3. [ 53 ] In light of the clarification of the parties’ current positions, the parenting dispute now essentially boils down to what should be Auggie’s ongoing parenting arrangements when he enters Grade 3 in September 2023. 6.3 Parties’ Arguments

a) Ms. Barnhart [ 54 ] In support of her position, Ms. Barnhart makes several arguments. I have considered them all and summarize some of them as follows: • The current parenting arrangement has been in place since the parties separated in 2019. It’s the status quo and should not be changed as any other parenting arrangement interrupts Auggie’s established routine and isn’t in his best interests. • While both parents were historically involved in Auggie’s care, she was an at home full-time caregiver while Mr. Murphy was

working. She has been managing and providing Auggie with his day-to-day needs since he was born. She has kept him on a consistent routine and ensured he attends school. Her plan will continue to ensure Auggie’s day-to-day and long-term needs are met. • She’s better suited to meet Auggie’s day-to-day needs, particularly during the school week because she has a more flexible

schedule than Mr. Murphy so is more available than he is. She’s a stay-at-home parent who works small flexible contracts from home. She’s able to walk Auggie to school and pick him up at the end of the day. She can easily attend the school, take him to weekday appointments, or stay at home with him when he’s sick. Mr. Murphy, on the other hand, is a teacher who confirmed that he would require before and/or after school childcare for Auggie and does not have as much flexibility to be available for Auggie during the week. • She has concerns about Auggie when in Mr.

Murphy’s care including the amount of screen time he has, the quality of the food he’s fed, and Auggie being exposed to cigarette smoke. • Auggie has strong relationships with her, his brother, S, and his soon to be stepfather, Mr. Fraser, which are integral to his well- being. Mr. Murphy’s parenting plan during the school year would see Auggie go from spending 20 days each month in her home down to only 4 days each month. Such a reduction would have a detrimental impact on these relationships and is simply not in his best interests. • Mr.

Murphy’s oral evidence during the trial confirms that he doesn’t believe that placing Auggie in his primary care is in Auggie’s best interests. He confirmed that he would be concerned about the length of time Auggie was away from her and his brother and testified that he believed that a shared parenting plan would instead be in Auggie’s best interests. • While she and Mr. Fraser had struggles in their relationship in 2020 and 2021 which led to the involvement of the Department of Community Services, this was in the context of the Covid restrictions which placed additional stresses on them.

However, their relationship has greatly improved and they are now in a happy and healthy place. • Her proposed parenting plan would ensure educational stability for Auggie while also addressing his other needs. Her plan allows for ample parenting time with both parents which she says is in accordance with the “principle of maximum contact”.

b) Mr. Murphy [ 55 ] In support of his position, Mr. Murphy makes several arguments. I have considered them all and summarize some of them as follows: • Ms. Barnhart has provided no consistency for Auggie. Her actions have caused him to reside in four different locations since August 2019 and attend two different schools. She has demonstrated instability in her lifestyle and in her relationship with Mr. Fraser. • He has been a stable figure in Auggie’s life and provides him with a more structured environment. He was actively involved in Auggie’s life since birth and shared care of him except for periods where Ms.

Barnhart sought to exclude or limit him from Auggie’s life. He has occupied the same residence since 2019 and his intention is to remain in the same area as he wants to continue to provide stability for Auggie. Auggie is familiar with his neighborhood and plays with children in the area. His plan provides more consistency and stability for Auggie than Ms. Barnhart’s plan. • He has concerns about violence and instability in the relationship between Ms. Barnhart and Mr. Murphy. While Ms.

Barnhart attributes some of her past behaviour to challenges she faced with her own mental health, she has failed to outline any steps she has taken to address her mental health but appears to put the obligation to seek help on others. Thus, he has concerns about how Ms. Barnhart’s mental health impacts on her future ability to meet Auggie’s needs. • Even under his proposed plan for primary care, this still would allow Auggie to spend significant time with Ms. Barnhart and his brother, S. During the summers, Auggie would continue to spend 50% of the time in Ms. Barnhart’s home.

The current parenting arrangement sees Auggie away from Ms. Barnhart and S every weekend and only get to spend evenings with them from Monday to Thursday before going to bed. However, under his plan, Auggie would get to spend alternating full weekends with Ms. Barnhart and S so would have considerable quality time with them. • Ms. Barnhart concerns about his parenting is unwarranted. He has given up smoking and ensures Auggie’s needs are well met when in his care. • Ms. Barnhart, through her past actions, has belittled his involvement and his importance in Auggie’s life.

He’s very concerned that this will continue in the future especially if the existing parenting arrangement continues.

c) Ms. Barnhart’s Reply [ 56 ] In her response submissions filed on October 24, 2022, Ms. Barnhart disagrees that there are any concerns about her mental health which negatively impact on her ability to parent Auggie. She also says that Mr. Murphy’s assertions completely fail to acknowledge the evidence of steps she has personally taken to positively address her mental health challenges including: 1) seeking therapy; 2) taking prescribed medication; 3) doing her own research; and 4) expanding her support system.

7.0 ISSUE 3: HOLIDAY EXCHANGE TIMES [ 57 ] The parties agree that regular exchanges during the school year occur at the parties’ homes. They agree that should the day following the holiday not be a school day, the transition will be at 10:00 a.m. They disagree on where and when exchanges should occur for holidays during the school year if the day following the holiday is a school day. 7.1 Ms. Barnhart’s Position [ 58 ] Ms. Barnhart proposes that parenting transitions following weekends or holidays occur at 6:00 p.m. on the day prior to a school day.

She says her position is grounded in her concern that Auggie needs time to wind down and adjust before and after parenting exchanges and that, if exchanges take place at school the next day, this would not give Auggie the time he needs for his adjustment. Further, if parenting exchanges occur at school, Auggie will be responsible for transporting his overnight items to and from school. She believes this places too much of a burden on Auggie and would not be in his best interests. 7.2 Mr. Murphy’s Position [ 59 ] Mr.

Murphy is seeking that exchanges after holidays occur the next day at school rather than the prior evening. 8.0 ANALYSIS FOR PARENTING ISSUES (i.e. Issues 1, 2 and 3) 8.1 Credibility [ 60 ] Before delving into my analysis on the disputed parenting issues, I will address the issue of credibility because Mr. Murphy’s counsel suggests it’s a significant issue when determining the parenting issues. She says Ms. Barnhart and her partner, Mr. Fraser, lack credibility and were not forthcoming with their evidence. She gives various examples in Mr.

Murphy’s post-trial submissions and submits that where their evidence is not consistent with Mr. Murphy’s, his evidence should be accepted as the truth over theirs. [ 61 ] Ms. Barnhart’s counsel disagrees. In her post-trial submissions, she addresses the various examples raised by Mr. Murphy’s counsel in relation to Mr. Fraser’s and Ms. Barnhart’s credibility. [ 62 ] With respect to Mr. Fraser, she suggests he presented “as impressionable and as a people pleaser” who sometimes may have said things to simply go along with what people said to whom his loyalties lay at the time.

This included times when he and his family were supporting Mr. Murphy and he made allegations against Ms. Barnhart during “off periods” in their relationship. [ 63 ] With respect to Ms. Barnhart, her counsel says she provided “clear and candid answers during the trial” and “did not evade answering questions and she maintained a consistent and appropriate composure throughout”. [ 64 ] When considering the arguments each party had made on the issue of credibility, it should be emphasized that assessing credibility isn’t a science.

As the judge, I am not required to believe or disbelieve either of the parties’ evidence in their entirety. I am to assess the totality of the evidence and can believe none, part of, or all of the witnesses’ evidence and attach different weight to different parts of their evidence. [ 65 ] Guidance on assessing credibility comes from cases such as Baker-Warren v Denault , 2009 NSSC 59 , as approved in Hurst v. Gill , 2011 NSCA 100 , where various factors are outlined. I won’t list them but have considered all of them. [ 66 [ In this case, I agree with Ms. Barnhart’s counsel’s characterization that Mr.

Fraser presented as a people pleaser which, at times, influenced what he was willing to say depending on who he was supporting. During his trial evidence, he clearly came across as someone who was devoted to Ms. Barnhart and was reluctant to say anything which he felt could damage her position on parenting. This is somewhat understandable given that he and Ms. Barnhart are in a relationship, share their own son together, and advise that they are in a better place now in their relationship than they were in the past. [ 67 ] With respect to Ms.

Barnhart, I have more concerns about her credibility in relation to several of her past actions. Those actions include, but are not limited to, the following: • During the September 1, 2020, interim schooling hearing conducted by Justice MacKeigan by telephone, she attempted to have Mr. Fraser not answer his phone to give evidence when called by the Court.

She further proceeded to text him throughout this testimony in an attempt to dissuade him from speaking. • As I indicated in my oral decision on schooling given on December 12, 2021, I conclude that she was content to knowingly disregard the terms of the existing Consent Order which required joint-decision making and instead do what she subjectively felt was best for Auggie. She was purposefully vague to Mr. Murphy about the fact that she had relocated from Herring Cove to Dartmouth and unilaterally changed Auggie’s school to Hawthorne Elementary knowing that Mr. Murphy would likely object to same.

She only disclosed these things to him after she knew it was effectively too late for him to do anything about the change of school in September 2021 thereby requiring him to bring an urgent schooling motion. • Having been in the unique position to preside over this case for many months, I conclude that, at times, Ms. Barnhart deliberately sought to delay the matter proceeding to trial because she did not want Mr. Murphy’s parenting time to be potentially expanded at the

expense of her own wishes and preferences. For example, when I granted her adjournment request of the final trial originally scheduled for May 2021 because she wanted additional time to retain new counsel to represent her, she then sought another adjournment over the scheduled hearing to determine summer parenting arrangements knowing Mr. Murphy wanted to spend more time with Auggie that summer. When the hearing proceeded, she adamantly opposed any expansion of Mr.

Murphy’s parenting time for that summer largely because she had already made her own plans for Auggie to spend time with her and her family. [ 68 ] Notwithstanding these concerns I had over Ms. Barnhart’s past actions, I kept an open mind when it came to hearing and evaluating both parties’ evidence during the final trial. Having listened carefully to Ms. Barnhart testimony during the trial itself, I wouldn’t characterize her as being dishonest as suggested by Mr. Murphy’s counsel. For the most part, I believe that, when testifying under oath at the trial, Ms.

Barnhart said things which she believed or perceived to be true. I accept that she was taking positions which she subjectively believed were in Auggie’s best interests. [ 69 ] Furthermore, while her past actions and conduct trouble me, I also acknowledge that Ms. Barnhart faced some difficult personal challenges in the past including post-partum depression following the births of both Auggie and her other son, S, while navigating through a separation with Mr. Murphy and the struggles with her new relationship with Mr. Fraser.

While those challenges don’t justify all her actions, they provide context and explanation for at least some of her actions. Furthermore, none of the past actions by Ms. Barnhart which trouble me, take away from the fact that she clearly is a loving and devoted mother to Auggie. [ 70 ] With respect to Mr. Murphy, I found him to largely be a credible witness even though I do not necessarily fully accept all of his evidence. To his credit however, when asked directly by me, he made a significant concession on the stand that he didn’t believe that his pre-trial position of having Auggie’s time with Ms.

Barnhart significantly reduced by placing Auggie in his primary care was in Auggie’s best interests. This concession speaks positively about his ability to focus on what is best for Auggie, as opposed to what he may subjectively want. It also suggests he was being candid under oath when testifying on the stand. [ 71 ] Thus, in conclusion, I have considered the various examples and issues of credibility raised by both parties.

Having carefully considered and weighed all the evidence, I don’t conclude that either parent should be characterized as being dishonest, at least when giving their evidence under oath during the final trial. I recognize that the past many months following the parties’ separation has been an extremely difficult and tumultuous period for both. Thus, except to the extent I discuss further below in relation to specific factors which go to Auggie’s best interests, I don’t conclude that the ongoing parenting arrangements significantly turns on any alleged lack of credibility of either of the parties.

Rather, the ongoing parenting arrangements turns on a children-centred focussed assessment as to what ongoing parenting arrangement is in Auggie’s best interests based on all the evidence and all of the relevant factors. Thus, I will move to that child-centred focussed assessment now. 8.2 Legislation and Law

a) Divorce Act [ 72 ] The legislation which governs my decision on parenting is the Divorce Act , RSC, 1985, c. 3 (2 nd Supp ). [ 73 ] Section 16(1) of the Act provides that when making a parenting order, I must take into consideration only Auggie’s best interests. [ 74 ] Section 16(2) notes that I must give primary consideration to the Auggie’s physical, emotional and psychological safety, security, and well-being. [ 75 ] Section 16(3) provides a lengthy list of factors which must be considered when determining Auggie’s best interests.

I will summarize them as covering areas such as Auggie’s needs, Auggie’s relationship with each parent and other family members, each parent’s willingness to foster the Auggie’s relationship with the other parent, the history of child care, Auggie’s views and preferences giving due weight to his age and maturity, Auggie’s cultural, linguistic, religious and spiritual upbringing and heritage, each parents’ parenting plan, the ability and willingness of each parent to care for and meet Auggie’s needs, each parents’ ability and willingness to communicate with the other on matters affecting Auggie, and the impact of any family violence. [ 76 ] Section 16(5) directs that when determining Auggie’s best interests, I shall not take into consideration the past conduct of either parent unless the conduct is relevant to the exercise of their parenting time. [ 77 ] Section 16(6) directs that when allocating parenting time, I shall give effect to the principle that Auggie should have as much time with each parent as is consistent with his best interests.

While many have referred to this

section as the “maximum contact principle”, in the recent Supreme Court of Canada case of Barendregt v Grebliunas, 2022 SCC 22 , Justice Karakatsanis suggests that the maximum contact principle is more appropriately referenced as a “parenting time factor” which is more neutral and that the focus must continue to be a child-centric inquiry of what is in a child’s best interests: para. 135. [ 78 ] Conducting a best interests analysis is highly contextual given that many factors may “impinge on the child’s best interests”: para 97 of Barendregt.

Furthermore, determining best interests simply isn’t a matter of scoring each parent on a generic list of factors. Rather, the court must analyze the best interests factors using a balanced and comparative approach: DAM v CJB, 2017 NSCA 91 .

b) Shared Parenting Considerations [ 79 ] While both parents’ pre-trial positions were that Auggie should live mostly with them during the school year, both also testified that they would rather see Auggie be in a shared parenting arrangement than in the primary care of the other parent.

Both parties’ counsel also agreed that I’m not limited solely to the positions put forth by the parties but, as part of my overall duty to Auggie, can impose any parenting arrangements which I ultimately determine to be in his best interests. [ 80 ] When considering requests for shared parenting, courts in decisions such as Hammond v. Nelson , 2012 NSSC 27 and Gibney v. Conohan , 2011 NSSC 268 have provided several considerations when assessing whether shared parenting is in a child’s best interests.

[ 81 ] I won’t list all of the factors but they broadly include things such as proximity of the parents’ homes, availability of each parent, whether a reduction in transitions between households can be achieved through a shared parenting arrangement, disruption to the children, the level of conflict between the parties, each parent’s motivation and capability to realize their parenting opportunity for the best interests of the children, and other factors. [ 82 ] In A.N. v. J.S. , 2018 NSSC 146 , Justice Beaton provided a helpful

summary of some key considerations when faced with a request for shared parenting. She stated: [8] Over the past ten years, the Court has produced a number of decisions identifying the conditions needed to support the implementation of a shared parenting regime.

Reflecting the circumstances of many different families, these decisions, whether approving or rejecting in any given case the sought-after shared parenting construct, have recognized the importance of key characteristics: a shared parenting arrangement requires the Court to be confident that the parents are committed to, have demonstrated and will be able to continue with a high degree of integration, cooperation, respect and flexibility in and for their respective parenting styles.

The parents’ approaches need to leave the Court confident that the application of the requirements…to the particular circumstances, along with the ultimate assessment of what is in the best interests of the child(ren), can lead to a conclusion that a shared 2parenting arrangement is reasonable, realistic and workable. [9] Central to the question of whether shared parenting will be ordered is a consideration of the parties’ ability to communicate in a timely, meaningful and respectful way, an ingredient which is the backbone of the key characteristics referred to above, and crucial to their operation in a manner that best suits the needs of the child(ren).

Courts are not looking for shared parenting arrangements of perfection – as borne out in decisions such as Gibney v. Conohan 2011 NSSC 268 and Clarke-Boudreau v. Boudreau 2013 NSSC 173 – however parents do need to satisfy the Court that it is realistic to expect they can put the child(ren)’s needs first and foremost in their communication and decision-making. [Emphasis added]. 8.3 Review of Best Interests Factors (

a) Auggie’s needs, given his age and stage of development, such as his need for stability; [ 83 ] Since his parents’ separation, Auggie has had to change schools and homes on multiple occasions largely due to Ms. Barnhart’s moves. Clearly, this has resulted in a significant amount of instability in his young life. [ 84 ] On the other hand, by all accounts, he is a delightful little boy who is doing well. He’s 7 and in Grade 2. He has required some additional supports in school including a speech therapist but has adjusted quite well.

His parents describe his as “funny and playful”, “a great joy” and “kind to all”. Creating a more stable long-term parenting arrangement for Auggie which minimizes conflict between his parents while ensure his needs are positively met must be a priority. (

b) the nature and strength of Auggie’s relationship with each parent, each of his siblings and grandparents and any other person who plays an important role in his life; [ 85 ] Both parents acknowledge that Auggie has a strong bond with the other parent. Their love for him was evident when they testified. Auggie is blessed to have two loving and supportive parents who are, in turn, blessed to have him as their child. [ 86 ] Auggie is also clearly close to his younger brother, S. He has also bonded with Mr. Fraser and Ms. Barnhart says Auggie calls him “Dada Jamie” although she makes it clear to Auggie that Mr.

Murphy is his father. [ 87 ] To a lesser extent, it appears Auggie has been introduced to Mr. Murphy’s partner, Erin Lundrigan, although Mr. Murphy says that he has been very intentional about how he has introduced Ms. Lundrigan to Auggie as he wanted to ensure any introduction happened at Auggie’s pace and that Auggie felt comfortable with Ms. Lundrigan being around. [ 88 ] Both parents also have extended family who Auggie spends time with. (

c) each parent’s willingness to support the development and maintenance of the Auggie’s relationship with the other parent; [ 89 ] I conclude that, despite the challenges he has had in the past with their co-parenting relationship, Mr. Murphy has been largely willing to support the development and maintenance of Auggie having a positive relationship with Ms. Barnhart. Indeed, his testimony that he would be concerned that his plan for placing Auggie in his primary care wouldn’t be in Auggie’s best interests because it would mean too much time away from Ms.

Barnhart and S shows that he understands the importance of supporting Auggie developing and maintaining a positive relationship with Ms. Barnhart. [ 90 ] Ms. Barnhart also asserts that she supports Auggie’s relationship with Mr. Murphy. She testified that she understands that it wouldn’t be in Auggie’s best interests not to have a relationship with Mr. Murphy and said that Auggie loves Mr. Murphy and that Mr. Murphy loves him. [ 91 ] While I accept that Ms. Barnhart understands that it is important for Auggie to develop and maintain his relationship with Mr.

Murphy, some of her past actions have, in my view, demonstrated that she has sometimes prioritized her own plans and desires over supporting Mr. Murphy being meaningfully involved in Auggie’s life. It is therefore understandable why Mr. Murphy would feel that she has belittled the importance of his parental relationship. [ 92 ] I have already given some examples and could give others some of which are outlined in Mr. Murphy’s pre-trial brief. However, I see little to be gained by doing so. I recognize my decision is public and could some day be read by Auggie himself. Thus, rather than

outline every example which supports my conclusion, I will say that I’m satisfied that there is ample evidence that supports my factual conclusion that Ms. Barnhart has, at times, diminished Mr. Murphy’s role in Auggie’s life, and has chosen to make unilateral parenting decisions. [ 93 ] I don’t say this to be unkind to Ms. Barnhart. Again, by her own admission, she has struggled with a number of challenges following the births of both of her children and acknowledged struggles and communication difficulties she had with Mr. Murphy following the breakdown of her relationship.

To her credit, she acknowledged that, at the end of her marriage with Mr. Murphy, she was “hurt and very angry” and wasn’t the “best version of herself”. While I sympathize with the challenges she has faced, my focus is on helping ensure that Auggie gets the best from both of his parents now. It is incumbent on both parents to place his needs above their own wants and preferences. (

d) the history of care for Auggie; [ 94 ] From the time Auggie was born, Ms. Barnhart was a stay-at-home caregiver for him. She acknowledges, however, that Mr. Murphy was also very involved in Auggie’s care as an infant despite there being times he was attending school and working two jobs to support the family. This included assisting with childcare in the morning before he left and on evenings and weekends. [ 95 ] After the parties physically separated in August 2019, the parenting arrangement has Auggie staying with Ms. Barnhart during weekdays and staying with Mr.

Murphy on weekends from Friday at noon (or after school) until Sunday evening with additional time during the summer and holidays. For the last two summers, Auggie has spent approximately equal time with both parents. (

e) Auggie’s views and preferences, giving due weight to his age and maturity, unless they cannot be ascertained; [ 96 ] Given Auggie’s young age, this is not a significant factor. Even if it was, clearly Auggie enjoys spending time with both parents so this is a neutral factor. (

f) Auggie’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; [ 97 ] Auggie is acknowledged by the parents as being Caucasian. Neither party has suggested that his culture, linguistic, religious and spiritual upbringing and heritage are significant factors when it comes to determining his ongoing parenting arrangements. (

g) any plans for Auggie’s care; [ 98 ] I have already discussed each parties’ position and plans for Auggie’s ongoing parenting arrangements. I have also summarized many of their arguments in support of same. I therefore will not repeat them again except to say that Ms. Barnhart’s plan is largely to keep everything the same for Auggie because she believes Auggie’s life and routine should now not be changed, while Mr.

Murphy’s plan obviously would result in a change to Auggie’s current care arrangements and to his school in September 2023. [ 99 ] While I compare and weigh the positives and negatives of the parent’s competing plans, I don’t conclude that change itself is the trumping factor which dictates which parenting plan is superior. Furthermore, while I accept Ms. Barnhart’s argument that Mr. Murphy’s plan would represent a change to Auggie’s existing routine, it should be noted that Ms.

Barnhart herself caused Auggie’s life and routine to be uprooted and rearranged on more than one occasion through her multiple moves and unilateral changes of schools. While she may have done so for reasons which she believed were compelling ones at the time, now that she has effectively created a situation which she wishes to continue, her assertions that no changes should now be made to Auggie’s life and routine are, with respect, somewhat self- serving. [ 100 ] Simply put, Auggie deserves to have the parenting arrangement which best meets his needs now.

If this involves changing the existing parenting arrangements, then my obligation is to do what is best for him even if it does result in changes. (

h) the ability and willingness of parent to care for and meet Auggie’s needs; [ 101 ] Despite both parents raising some concerns about the other’s ability to care for Auggie, the objective evidence establishes that both parents have demonstrated that they have the ability and willingness to care for and meet Auggie’s needs in a positive way. I have no significant ongoing concerns about Auggie being in the care of either parent. (

i) the ability and willingness of each parent to communicate and cooperate, in particular with one another, on matters affecting Auggie; [ 102 ] In the past, the parties clearly had significant challenges in their communication. However, at trial, both acknowledged that their communication has improved. For example, Ms. Barnhart testified that while the parties “fought over everything” after the end of their marriage, communication is “good” now. She testified that the parties communicate largely be text or email with each other and that, while they don’t always agree, their communication is respectful. In Ms.

Barnhart’s post-trial submissions, her counsel says, “clearly the parties are now able to and communicate effectively to address Auggie’s needs”. [ 103 ] Similarly, Mr. Murphy also acknowledges that communication has improved between the parties although he believes “it is far from ideal” and should be even better.

However, he agreed that both are able to discuss issues involving Auggie and also agreed that there were no incidents with respect to the parties’ communication or parenting time during their week about parenting arrangement for the Summer of 2022. [ 104 ] Thus, while I consider all the evidence, I conclude that the parties’ communication in the past has been quite poor particularly during tumultuous times following their separation or when one or both were facing challenges in their own lives. I also conclude that, at times, Ms.

Barnhart chose to make parenting decisions unilaterally without meaningfully communicating with Mr. Murphy to obtain his input.

[ 105 ] Notwithstanding these past communication difficulties, I also make a finding of fact that the parties’ communication has significant improved over the last many months. I agree with Ms. Barnhart that the parties’ interactions amidst conflict in their relationship, and their difficult separation, should not be generalized to reflect their current ability to communicate now.

While they currently still do not have perfect communication, they have satisfied me that they will be able to communicate and cooperate in a timely, meaningful and reasonably respectful way. [ 106 ] Indeed, to the parties’ credit, during this adversarial trial process, they were able to reach many agreements on decision-making and parenting arrangements. The fact that they could now reach so many agreements on parenting during a stressful trial speaks positively to current their ability to put the well-being of Auggie ahead of their own feelings and emotions.

It gives me more confidence that they will be able to continue to successfully communicate and cooperate on issues involving Auggie particularly once the litigation has subsided and the parties and Auggie get to turn the page and enter the next

chapter of their lives. (

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet Auggie’s needs, and (ii) the appropriateness of making an order that would require the parents to cooperate on issues affecting Auggie [ 107 ] As was underscored in the recent Supreme Court of Canada case of Barendregt v. Grebliunas , 2022 SCC 22 , family violence, in any of its forms, whether physical, emotional, psychological or financial abuse is a significant factor to consider when determining the best interests of children. [ 108 ] The parties both describe their past relationship as being “toxic”. Ms.

Barnhart testified that, during the course of their relationship, she felt Mr. Murphy would “gaslight” her and was guilty of financial abuse. She denied any physical altercations between them although she did say there were times when she felt like “slapping him”. [ 109 ] She acknowledged that there have been issues in her relationship with Mr. Fraser resulting in involvement by the Department of Community Services but denied that she ever hit him despite a referral being made by Mr.

Fraser to the Department of Community Services in March 2021 that she has been “aggressive and violent” with him and that there had been “punching and kicking”. [ 110 ] In her counsel’s closing post-trial submissions, she states that Ms. Barnhart denied intentionally physically harming either Mr. Murphy or Mr. Fraser in the past and that even if this assertion is not believed, “the evidence supports nothing more than minor, potentially isolated outbursts” and “does not support that Ms. Barnhart is a violent, or dangerous person that Auggie needs protection from”. [ 111 ] Mr. Fraser testified during the trial.

He agreed that he and Ms. Barnhart had, in the past, a “rocky relationship’ and both had their separate issues with challenges to their mental health after their son, S, was born. They lived separately for a period of time. He also acknowledged that he shared with Mr. Murphy that Ms. Barnhart had hit him. He described Ms. Barnhart as being “very direct and stubborn” in 2020. [ 112 ] However, he said that he and Ms. Barnhart have both worked hard to overcome their challenges and are now in a “happy and healthy” place as a family and both have become better partners to each other. [ 113 ] Mr.

Fraser’s mother, Cheryl Fraser, also gave evidence. She swore an affidavit in August 2020 in which she accused Ms. Barnhart of causing $7000 to her family’s condo and accused her of being mentally abusive to her son. She also agreed that she had, in the past, referred to Ms. Barnhart as a “master manipulator”. However, Ms. Fraser testified that she attributed this to Ms. Barnhart suffering from trauma which has been “repaired” and that she and Ms. Barnhart now have a very positive relationship as Ms. Barnhart has “done the hard work and has gotten better”. [ 114 ] Mr.

Murphy denied that he was guilty of “gaslighting” or was financially abusive to Ms. Barnhart. He testified, however, that Ms. Barnhart was both verbally and physically abusive to him and made him never feel good enough as a parent or partner. He also testified about concerns about the ongoing stability in Ms. Barnhart’s relationship with Mr. Fraser. [ 115 ] Mr. Murphy was also asked by Ms. Barnhart’s counsel about an incident which of alleged family violence which happened in his home in March 2020 involving Ms. Lundrigan allegedly screaming and punching the walls and doors. Mr.

Murphy called the police who, in turn, made a referral to the Department of Community Services which resulted in her and Auggie being interviewed. Mr. Murphy’s file was eventually closed with the Agency noting there was an existing open file with respect to Ms. Barnhart. It assessed the future level of risk in Mr. Murphy’s home as being “moderately low”. Both parents were given a direction that they were required to be in a sober caregiving role. [ 116 ] Having carefully considered the evidence, I don’t diminish the concerns with respect to family violence raised by the parties.

However, I conclude that family violence isn’t currently a significant factor which negatively impacts on either parent’s ability to care for and meet Auggie’s needs or the parents’ ability to cooperate on issues involving Auggie. I come to this conclusion for several reasons including: • After the separation, both parties had to navigate the breakdown of the relationship during what clearly was a tumultuous time for both. This increased conflict between them.

However, they have both now have re-partnered in what each says is a healthy relationship and both appear to be committed to moving forward in a positive way with their lives. • During their oral testimony, neither parent suggested or presented any persuasive evidence of ongoing concerns of family violence. Indeed, as noted earlier, in her closing submissions in support of her request for joint-decision making over educational issues, Ms. Barnhart argues that this “isn’t a case where there is conflict such that violence ensues or the parents are dragging Auggie into adult matters”.

• There have been no allegations of family violence in either party’s home for many months. The week about summer parenting arrangement appears to have worked well without any incidents. (

k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of Auggie. [ 117 ] Neither party has presented any evidence which suggests this is a relevant factor. 9.0 CONCLUSIONS ON PARENTING ISSUES [ 118 ] I have considered the evidence, the law and the submissions of the parties.

After applying a holistic and child-centered focus for Auggie, I will now give my conclusion in relation to the disputed parenting issues . 9.1 Issue 1: Final Decision-Making Authority for Educational Decisions [ 119 ] I order all the terms with respect to decision-making agreed to by the parties. [ 120 ] With respect to educational decisions for Auggie, I order that parties must meaningfully consult on same but if they are unable to agree on a major educational decision involving Auggie, Mr.

Murphy is given final decision-making authority. [ 121 ] I find this decision-making arrangement to be in Auggie’s best interests for the following reasons: • Auggie shouldn’t be stuck in limbo if his parents are unable to agree on major educational decisions. Unfortunately, this has already happened more than once. Despite there being an existing Consent Order which provides for joint-decision making authority, the parties haven’t been able to agree on schooling arrangements which has necessitated two interim hearings. Clearly, joint decision-making for educational decisions hasn’t worked.

Thus, if they now cannot agree on a major educational decision after meaningful consultation, it’s in Auggie’s best interests that one of his parents make the decision on a timely basis as opposed to the delay which would occur from requiring both parents to have to come to Court yet again and ask a judge to determine the issue for them. This is particularly so because the parties again cannot agree on where Auggie should go to school for Grade 3. • Between the two parents, I’m more satisfied that Mr.

Murphy will consistently make educational decisions for Auggie which are in Auggie’s best interests and be able to put Auggie’s best interests ahead of his own. Indeed, while I can understand why relocating from Herring Cove to Dartmouth served Ms. Barnhart’s own personal interests, doing so and unilaterally changing Auggie’s school from William King to Hawthorne Elementary without telling Mr. Murphy wasn’t consistent with Auggie’s best interests when, by her own evidence, Auggie was already well-settled at William King having spent his primary year there. • As noted earlier, Ms.

Barnhart has made several major unilateral decisions in relation to Auggie despite the existing Order requiring the parties to make those decisions together. Ms. Barnhart has, in the past, shown a lack of recognition that doing so not only violates the terms of that Order, but minimizes the importance of involving Mr. Murphy in the decision-making process. I have far more confidence that Mr. Murphy will meaningfully include Ms.

Murphy in educational decisions for Auggie rather than make them unilaterally. • Given the ongoing parenting arrangement I have ordered during the school year which I will elaborate upon shortly, I find that Mr.

Murphy should be entitled, should he wish, to enroll Auggie at Elizabeth Sutherland for his Grade 3 year to make the parenting arrangement I have ordered more optimal for Auggie and both parents. 9.2 Issue 2: Ongoing Parenting Arrangements [ 122 ] Again, I order all the terms with respect to parenting arrangements agreed to by the parties which I agree are in Auggie’s best interests. [ 123 ] With respect to the remaining issue of regular parenting arrangements during the school year beginning September 2023, I find that it’s in Auggie’s best interests that he be in a week about parenting arrangement with exchanges occurring during the current Sunday evening exchange time or such other time as the parties both agree. [ 124 ] I find that such a parenting arrangement to be in Auggie’s best interests for several reasons including, but not limited to, the following: • I make a finding of fact that both parties can meet Auggie’s needs in a positive way.

A shared parenting arrangement will allow him to maintain and develop his bond with both parents in a way consistent with his best interests. • The parties already had a week about shared parenting arrangement for the 2021 and 2022 summers. Both agree that it has worked for Auggie and should continue for future summers. Neither has suggested that Auggie being away from either parent for a week at a time has been a problem.

This gives me some comfort that they have already “demonstrated and will be able to continue with a high degree of integration, cooperation, respect and flexibility in and for their respective parenting styles” to make a week about shared parenting arrangement work in Auggie’s best interests during the school year also. • As noted earlier, while I accept that there were clear problems in the parties’ communication in the past, I conclude that their communication has significantly improved .

While they currently still do not have perfect communication, they have satisfied me that they will be able to communicate and cooperate in a timely, meaningful, and reasonably respectful way to make shared parenting work in a way consistent with Auggie’s best interests. Indeed, during this adversarial litigation, and despite having a history of several prior contested hearings, the parties were able to reach a number of agreements on parenting. They include:

o They will have joint decision-making on all major non-educational issues involving Auggie; o They will notify each other of all professionals involved in Auggie’s care and maintain his current care providers including doctors, his dentist and speech therapist unless they agree otherwise; o Both will agree to reasonable requests for additional parenting time by the other parent; o Both will be equally responsible and contribute to Auggie’s care and upbringing; o Both will make decisions in relation to Auggie considering only his best interests over their own interests; o Both will keep each other informed and advise of any circumstances when they become known in relation to all important issues that will affect Auggie; o Both shall encourage Auggie to have a good relationship with the other parent and do anything reasonable to facilitate that; and o Both will promote a positive relationship between Auggie and the other parent.

The fact that they could reach so many agreements on parenting in the midst of a stressful trial speaks to their current ability to put Auggie’s well-being ahead of their own feelings and emotions. It gives me confidence that these parents will be able to continue to successfully co-parent in a manner which puts Auggie’s needs first under a shared parenting arrangement particularly once this litigation has ended. • Both parents acknowledge that shared parenting is a potentially desirable goal particularly if they lived in closer proximity to each other.

Indeed, they agreed to put in a final Order that if they both resided within a 10-minute drive of Auggie’s school, they would review the parenting arrangements and explore a shared parenting arrangement without having to demonstrate a material change of circumstances. Furthermore, Mr. Murphy acknowledged that, in an ideal world, a shared parenting arrangement would be best for Auggie. Similarly, Ms. Barnhart, in one of her affidavits, expressed a willingness to have Mr.

Murphy live in the same neighbourhood with her and even sent him a home listing to consider whereby they both would live in separate condos in the same building. During the oral evidence during the trial, she said she hoped that, if that were to occur, Auggie could easily spend time with both parents if they were communicating well. She said she hoped that, once the “awfulness of the divorce” was over, they would be able to “suck it up” to co- parent amicably and that it would be “amazing”. She also testified in response to questioning from me that she agreed that shared parenting was a better option than Mr.

Murphy’s plan for primary care and felt that a shared parenting plan which limits the amount of transitions would be best because “Auggie likes his stuff and wants to bring them back and forth”. • While I acknowledge that the parties do not currently live in the same neighbourhood, I don’t find that the geographical distance itself presents an insurmountable barrier which would prevent a shared parenting work in a manner consistent with Auggie’s best interests. The parties agree that their homes are approximately only 15-20 km apart.

The commute is somewhere between 30-40 minutes between their homes depending on traffic. Ms. Barnhart indicated that, on school days, Auggie typically gets up by 7:30 a.m. and that Elizabeth Sutherland starts school at around 8:50 a.m. She agreed that the commute from her home to Elizabeth Sutherland could take as little as 20-30 minutes if there was no traffic and, while it would take longer in rush hour, even by her timing estimates, getting Auggie to school on time appears workable perhaps with a slight adjustment to Auggie’s daytime routine. Mr.

Murphy also testified that he could make a week about parenting arrangement work if Auggie was enrolled at Elizabeth Sutherland. While I acknowledge this would result in additional driving time for Ms. Barnhart, by her own evidence, she has a flexible

schedule during the day which leaves her available for Auggie during the day, as needed. She testified that she can book any part-time work she takes on around her own

schedule and that she has the ability to drive Auggie. She hasn’t persuaded me that the geographical distance she herself created by moving from Herring Cove to Dartmouth is an impediment to making a week about shared parenting work. To the contrary, I find that such an arrangement is workable and in Auggie’s best interests. • Given that Mr. Murphy agrees to the existing parenting arrangement continuing for the remainder of this school year, starting the new shared parenting arrangement in September 2023 will give both parties several months to plan and prepare Auggie for the new

schedule to minimize any disruption. It will start directly after Auggie has already spent the summer of 2023 in a week about parenting arrangement so should be an easier transition for him. • I conclude that the parenting arrangement I have ordered appropriately balances all the relevant factors within the context and lens of an overall child-focussed consideration of Auggie’s best interests. This arrangement ensures Auggie spends a meaningful amount of time with both parents during the school year, the summer, and during the holidays.

It allows Auggie to continue to foster and develop positive relationship with both parents in a manner consistent with his best interests. • I make a finding of fact that this parenting arrangement best meets Auggie’s physical, emotional, social and educational needs at this stage of his life . 9.3 Issue 3: Holiday Exchange Times on Days that are Followed by a School Day [ 125 ] I conclude, as Ms.

Barnhart requests, that the exchange time should occur at 6:00 p.m. for the reasons she articulated – i.e. it would give Auggie time to adjust and would avoid placing a burden on Auggie to have to transport his belongings to the school.

9.4 Conclusion on Parenting [ 126 ] In closing, it was a privilege for me to meet two parents who clearly share a common deep love for their son. I hope that, despite the rocky path these parents have found themselves on litigating parenting issues for much of Auggie’s life, they will now chart a better path forward recognizing that they have a long road ahead of them when it comes to co-parenting him. I hope that this decision represents the last time they will have to resort to Court and ask a stranger like me to determine parenting issues for them.

Instead, I encourage them to work together to solve the many parenting issues which will inevitably arise in the future while ensuring Auggie gets the best from what each of them has to offer. If this happens, they will reap the great reward of seeing their young son, who they both love very much, grow up and flourish at each stage of his childhood. I wish them all the best on that journey. 10.0 ISSUE 4: ONGOING CHILD SUPPORT [ 127 ] Given that I have ordered shared parenting effective the summer of 2023, as noted earlier, counsel have asked to be given the opportunity to resolve all issues of child support.

I will therefore give them 30 days to attempt to resolve any issues of child support failing which they should write to me with their respective suggestions on how to proceed to have that issue determined. I expressly reserve the jurisdiction to deal with any issues of child support not agreed to by the parties and not addressed in this decision. 11.0 ORDER [ 128 ] I reserve the jurisdiction to deal with any implementation issues arising from my decision.

I also direct that counsel prepare the appropriate form of Order reflecting my decision which should be consented to as to form only by counsel with respect to the issues I have decided, and also consented to both as to form and content for any provisions I have ordered which were agreed to by the parties. The Order should be sent to me no later than 3 weeks from today’s date. 12.0 COSTS [ 129 ] Both parties have asked to be heard on costs after receiving my decision. I encourage counsel to see if they can assist the parties in resolving same.

While I recognize that the two issues are legally distinct, the parties may wish to consider whether it is possible to resolve the issue of costs in the context of their ongoing discussions with respect to resolving the issue of child support to avoid either party incurring further litigation costs. If the parties cannot agree, counsel should also advise in 30 days and I will provide further direction on how the issue of costs will be determined. [ 130 ] Finally, I thank both counsel for their able and professional efforts. Both clients were well-served by those efforts. Jesudason, J.