J.M.H. v. T.J.A., 2012 NSSC 103

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: J.M.H. v. T.J.A., 2012 NSSC 103 Date: 20120309 Docket: 1201-59220 Registry: Halifax Between: J. M. H. Petitioner v. T. J. A. Respondent Editorial Notice Identifying information has been removed from this electronic version of the judgment. Revised Decision: The trial date should read 2011 rather than 2012. This revised decision of March 29, 2012 replaces the previously released decision. Judge: The Honourable Justice Robert F. Ferguson Heard: November 21, 22, 23 & 24, 2011, in Halifax, Nova Scotia Counsel: Kim A.

Johnson, for the Respondent By the Court: [ 1 ] J. H. and T. A. are the parents of J. A., age 14, and J. A., age 9. As ordered in the Corollary Relief Judgment issued in 2005, the parents have joint custody and shared care of their children, who alternate between the parents’ residences on a weekly basis. [ 2 ] In 2010 Ms. H. applied to vary the current Order. She seeks sole custody of the children, to have them reside primarily with her with modified access and involvement with Mr. A.. There is also a request for child support. Mr.

A. opposes the application, submitting the parental arrangements should not to be altered. Further, in the event a change is required, he suggests he be designated as sole custodian and primary provider for J. and J.

Background [ 3 ] The parents married in September of 1996 and separated in March of 2003. On December 8, 2004 Ms. H. made an application pursuant to the Maintenance and Custody Act . A day later, December 9 th , Mr. A. petitioned for divorce. Both matters sought a determination as to the parenting of the children. An Interim Order, issued in February 2005, provided the parents would have joint custody and shared care of the children. The order further specified Mr. A. would provide the primary care for the children with them residing with their mother from Thursday evening to Tuesday morning every second week.

The order also stated that the resolution of the outstanding issues would be dealt with pursuant to the Divorce Act and three days were set aside for trial in November 2005. The trial did not take place. A Corollary Relief Judgment was provided to the Court and issued on December 6, 2005. The Judgment noted the parties’ annual incomes, Mr. A.’s being $36,000.00 and Ms. H.’s being $17,000.00. It further stated in part: 1. T. J. A. and J. M. A. shall have joint custody and shared care of the two children of the marriage, J. S. A. A., born June *, 1997 and J. P. A., born May *, 2002. 2.

Unless that parents have previously agreed otherwise, the children shall alternate between households on a weekly basis, every Sunday evening between 6:00 p.m. and 7:30 p.m., unless it is a long weekend, in which case the children shall change households at the same time on the Monday evening. 3. Unless previously arranged otherwise, the parent who would usually have the children will pick them up from the other parent, and will be solely responsible for all transportation to and from school and to all normally scheduled activities during the week. 4.

In the event that either parent plans to move far enough away that the shared parenting arrangements would be inconvenient or impossible to continue, the other parent shall be provided with sufficient notice so that a new parenting arrangement can be determined, via negotiations or otherwise. 5. Holidays, vacation days, and other special days will be equally shared or alternated from year to year, with the details of the scheduled to be agreed upon between the parents. 6.

Both parents shall have the ability to access all information about the children directly from their teachers, school officials, health providers, etc. Both parents will also, however, make every effort to keep the other parent informed in a timely manner of all important information regarding the children. 7. Each parent shall consult with the other on all major decisions involving the children of the marriage. In the event of a disagreement, T. J. A. shall make the final decision, subject to the review of the court on application by J. M. A.. 8.

In the event of the death of one parent, the other parent shall be the sole guardian of the children and any Last Will and Testament executed by either parent shall so provide.

9. In recognition of the shared nature of the parenting arrangements as defined by the Federal Child Support Guidelines, neither parent shall pay any table amount of child support to the other. [ 4 ] It would appear from the waiver of independent legal advice that Ms. H. was self-represented and Mr. A. had legal counsel when the document was prepared. [ 5 ] In August of 2010, Ms. H. applied to vary the existing order as it related to the children’s care. There were numerous court appearances and resulting court orders prior to the application being heard over three days in late November 2011. [ 6 ] Ms.

H., who began this Application to Vary with counsel, filed a Notice on December 10, 2010 of intention to act on her own. A consent order of March 14, 2011 required the production of the records of the Halifax District Office of the Department of Community Services as pertaining to the parties and their children.

An Interim Order, June 21, 2011, indicated the care the parents would provide the children pending a hearing scheduled for three days to begin September 6, 2011. [ 7 ] A second Order of June 12, 2011 required an assessment to “determine the wishes of the children with respect to the parenting arrangements”. [ 8 ] The September trial was rescheduled and begin on November 21, 2011. The following testified: - Martin P. Whitzman, M. Sc. - Author of the Wishes of the Child Report - Courtney Malcolm - agent for Minister of Community Services - T.J. - friend of Ms. H. - E.R. - partner of Ms. H. - J. H. - Applicant - W.

A. - mother of the Respondent - C.A.B. and D.B. - acquaintances of the Respondent - L. A. - wife of the Respondent - T. A. - Respondent

Issues Change of Circumstances [ 9 ] The Applicant has the responsibility to establish, in accordance with the Divorce Act , a change of circumstance of the children since the issuance of the current order. Joint vs. Sole Custody [ 10 ] Ms. H. seeks to become the sole custodian of the children with the right to make unilateral decisions that affect their lives. [ 11 ] Mr. A. submits he and Ms. H. maintain their current roles as joint custodians. However, in the event of a change of circumstances is required, he seeks to be the sole custodian. Parenting Time [ 12 ] Ms.

H. seeks to be primary caregiver for J. and J. with Mr. A. having access primarily every second weekend. [ 13 ] Mr. A. submits the parents continue to share the children’s time on a weekly basis. Again, in the event that a change is required, that he provide the primary care. Child Support [ 14 ] Ms. H., along with her request that she provide primary care, seeks child support from Mr. A.. Mr.

A. opposes any change in the current child maintenance provisions. [ 15 ] The parties were informed, prior to the commencement of the hearing, of the court’s obligation pursuant to the Divorce Act to be satisfied that reasonable arrangements have been made for child support. That in accordance with that obligation, an order for child

support was a possibility even if the current shared parenting arrangement was not altered. Relevant Legislation [ 16 ] The Divorce Act , particularly, paragraphs 15, 16 and 17. These paragraphs provide the court with the authority to make orders and vary existing orders as to child support and custody and access. These paragraphs also provide direction as to the applicability of child support guidelines and the factors to be considered when making or varying an order regarding custody and access or child support. [ 17 ] The Federal Child Support Guidelines, particularly paragraphs 3, 7, 9, 14, 15 and 16.

These paragraphs provide the court with guidance in determining the annual income of the parties, the appropriate amount of maintenance to be paid, both as to the Guideline table amount and special or extraordinary expenses. They further refer to situation where the parents share custody of one or more of their children. Submissions Ms. H. [ 18 ] The Applicant, in her initial affidavit (August 13, 2010), under the heading of Purpose states: 1. I am requesting sole custody of my children J. A. and J. A. with visitation rights to Mr. A. because J. and J. A., minor children of myself and T. J.

A. are being abused by L. A.. 2. I am requesting table monetary amounts for child support for each child. [ 19 ] Ms. H. submits the following: [ 20 ] In March of 2003 she moved to * with J., with J. soon following, on the understanding she was to provide the primary care for the children. [ 21 ] In June of 2004 while the children were “visiting” their father for the summer, she made a decision to relocate to Halifax. As a result, the children had an extended stay with their father while she finalized her relocation to Nova Scotia.

In November, when she had secured appropriate accommodations and was awaiting the return of the children, Mr. A. unilaterally made a decision to retain custody of the children, contrary to their previous understanding. At that time Mr. A. sought court intervention resulting in an interim order which preserved what was then the status quo. Mr. A. was designated as the parent to provide primary care, the children being Ms. H.’s responsibility for four or five days in a fourteen day cycle.

[ 22 ] This Interim Order was in anticipation of a later hearing allowing for a more detailed consideration of the provision of child care. [ 23 ] However, as the date of the hearing approached Ms. H. found herself without the financial ability to continue to retain legal counsel. As a result, she “feeling forced” reluctantly agreed to the provisions of the current Corollary Relief Judgment which included a sharing of the children on a week-about basis. [ 24 ] Since that time Mr. A.’s wife has assumed control of Mr. A.’s household. In so doing she has assumed control of the children’s lives to their detriment.

Mr. A. has abdicated his parental responsibilities. On the few occasions he does exert some control over the children it has not contributed to their well-being. [ 25 ] In her testimony and ten submitted affidavits, she refers to instances she believes establishes physical and emotional abuse of the children. Instance of: 1. Inappropriate provision of meals 2. Inappropriate interference with the children’s wardrobe, especially in the case of J. 3. Requiring completion of inappropriate household chores 4. Negative comments by Mr. and Mrs. A. about Ms. H. in the presence of the children 5.

Lack of encouragement and positive enforcement for the children 6. Failure to recognize presenting children’s problems 7. Not providing the children with the opportunity for an appropriate religious experience 8. Lack of cooperation with Ms. H. in instituting the current court-ordered parenting provisions 9. Threatening Ms. H.’s common-law partner with physical harm 10. Inappropriate physical discipline. [ 26 ] Ms. H. believes her current living arrangements provide more appropriately for the children than those of Mr. A.. [ 27 ] Further, the children have expressed a wish to reside primarily with their mother.

The Wishes of the Child Report is evidence of this preference which should be given considerable weight by the court. Mr. A. [ 28 ] Mr. A. submits the following: [ 29 ] He agrees that the children were residing with Ms. H. in * in 2003. He agrees the children, being with him in June of 2004, was initially intended as a summer visit with their anticipated return to their mother in *. He agrees retaining them in July was initially thought to be temporary, pending Ms. H. establishing a home in Halifax. [ 30 ] However, by the time Ms.

H. sought their return in November, he had developed doubts if such a move was in the children’s interests. He appropriately sought court intervention and direction resulting in him retaining primary care of the children with Ms. H. having extensive parenting time.

[ 31 ] The current Corollary Relief Judgment and resulting shared custody arrangement was the result of the parents reaching an agreement. During the negotiations Ms. H. was neither threatened nor coerced. [ 32 ] As to the many instances mentioned by Ms. H. as being abusive, many of them did not occur. As to those that did occur, they should not be considered abusive, merely a different manner of parenting children. While Mrs.

A. partners with him in the running of the household, he has not abdicated his responsibility of parenting J. and J.. [ 33 ] He agrees the Children’s Wishes Report, on its face, is supportive of Ms. H.’s position. However, a review of all the evidence establishes that Ms. H. has been inappropriately influencing the children’s views in that direction, almost since the date of the Corollary Relief Judgment. The children have and continue to thrive in their current arrangement.

Evidence [ 34 ] In addition to themselves, both parents put forward witnesses, friends, relatives or partners who provided evidence supportive of their positions. [ 35 ] However, most of this evidence referred to events related to them by the children. Quite often this relating occurred in the presence of the parent who was being supported. Further, most of the information provided by these witnesses was also made available by the testimony of the parents. [ 36 ] The most independent information was provided by Courtney Malcolm and Martin Whitzman. [ 37 ] Ms.

Malcolm testified as to the involvement of the Department of Community Services with the parents and the two children. [ 38 ] The Department in its capacity as a child protection agency became involved on four separate occasions. The four separate occasions, November 2004 prior to the issuance of the Corollary Relief Judgment; October 2006; January 2009 and August 2010. The Department’s file revealed the following: [ 39 ] November 3, 2004 - The referral was made by the police resulting from a 911 call made by Mr. A.. It was reported Mr. A. was assaulted by Ms. H. in the presence of the children.

On review, there was no investigation and the file was closed on December 1, 2004. [ 40 ] October 16, 2006 - The referral was made by an adult expressing concern on behalf of Mr. A. on his being told by the children that Ms. H. had struck J. in the face in the presence of J.. The Agency interviewed the children who expressed no complaints as to living with their father, but noted he did on occasion “spank them on the bum”. As to their mother, J. reported she hit him on the cheek and shook him like a rag doll. J. reported being aware of what had happened to J., but that nothing of that nature had happened to her.

She also expressed concern as to her mother finding out she spoke of such incidents. Mr. A. was contacted and interviewed in the investigation. The Agency made a number of attempts to speak to Ms. H. but she never made herself available. The file was closed on January 26, 2007.

[ 41 ] January 19, 2009 - The referral was made by Ms. H.. She reported being advised that J. was recently hit by Mr. A.; that the children fear their step-mother who yells at them and squeezes their hand and still further that J. did not wish to return to his father’s home. An investigation ensued. The children’s school principal indicated the children stood out only in that they presented so well in school.

Further, they presented as happy and well-adjusted, excelling socially as well as academically. [ 42 ] J., during an interview, stated he would not want to live all the time with either his mother or father and would miss whichever one he did not see all the time. He described being struck in the mouth by his father after, by mistake, sticking out his tongue to his step- mother. [ 43 ] J., during the interview, noted there were difficulties going back and forth between their parents.

However, she would not want to choose one parent over the other as she wants to be able to see both of them all of the time and just not for visits. [ 44 ] Mr. and Mrs. A. were interviewed and presented as forthcoming and cooperative. Mr. A. admitted tapping J. on the mouth with his two fingers on the occasion that J. had spit at Mrs. A.. Mr. A. has admitted on occasion when upset with J. he made reference to him staying full time with his mother.

He acknowledged such action was inappropriate and that he apologized to J.. [ 45 ] A conclusion was reached that there was no substantial risk of physical harm to the children and the case was terminated on April 2, 2009. [ 46 ] August 9, 2010 - The referral was made by Ms. H.. She reported the children were fearful of their step-mother who swears at them and hits them on the hand; that J. was showing signs of stress and had stomach cramps. A doctor had informed Ms. H. that such pains are due to stress and anxiety. Ms.

H. advised the Agency that she was applying for full custody of the children. [ 47 ] On the same date (August 9 th ) a call was received from the Office of the Ombudsman, reporting that Ms. H. had contacted that office voicing her belief that Mr. A. was verbally and mentally abusive to the children. [ 48 ] A few days later (August 30 th ) Ms. H.’s partner called the Agency voicing similar concerns. [ 49 ] The children were interviewed. When asked about a time of not feeling safe J. referred to being hit in the mouth by his father. This was the incident investigated in the January 2009 referral.

The children spoke of their dislike of their step-mother. The children presented as clean, articulate and engaging. J.’ teacher, on being contacted, had no child protection concerns to report. The investigation was terminated September 29, 2010. [ 50 ] Martin Whitzman, M.Sc., provided a court-ordered Wishes of the Child Report on August 12, 2011. He testified at the hearing. The report stated in part: J. presented as a mature, outspoken fourteen year old who will be attending Grade nine during the next school year.

She was aware that the purpose of my assessment was to provide the Court with information regarding her choice of living arrangements. When asked about the living arrangements, J. stated that she has always enjoyed her week with her Mother and E.. The week with her Father was described as problematic and related totally to L.. She indicated that things went quite well in the beginning but after some time passed, J. felt that L. was “picking” at her. J. was honest to note that she often responded to L.’s comments with rude responses. She stated, “She wanted to be the boss.

Dad would go through her.” J. described L. as the parent who was around the most and involved in providing discipline and consequences. At mom’s house, J. suggested that Mom was the boss and that E. was not involved with the rules or consequences. I asked J. if she tried to talk with her Father or L. about the problems in the family. She stated that she talked with her Father but it did not result in the necessary changes. She recalled an incident in February, 2011, when she went back to * for a funeral on her Father’s side.

The extended family apparently observed the manner in which L. was treating the children and her Paternal Grandfather talked with Dad about their observations. According to J., there was a change in L.’ behavior but it lasted for only a week.

J. concluded our first meeting by stating, “I want to stay with my Mom and see my Dad when L. is not around. She still has a say and is picking, just not as much.” At my second session, J. again noted that L. has backed off but she is still getting into arguments. She noted the following: “I do not believe that L.’s behavior will stay the way it is. She will go back to her old ways. She is the main parent a lot due to Dad’s work...I want to stay at Mom’s but see Dad when L. is not around. I am close to my Brother; I want him to stop also. He and L. don’t agree on stuff.

He has trouble listening to her and gets in more trouble.” J. stated that she would have no trouble continuing the week on and off

schedule if L. left. She had little trouble suggesting that she did not like L. mainly because she does not respect “us”. J. is a nine-year-old youth who will be attending Grade four during the next school term. I was initially anxious about interviewing J., as a typical nine year old tends to lack the maturity or ability to partake in a wishes assessment. J. is not a typical nine year old as he was very mature and quite capable of expressing himself in a very concise manner. His comments included the following: “I want to be at my Mom’s. When I am at my Dad’s, my step-mom is mean to me.

I would like to see my Dad when my step-mom is not there. If I want to do things with my Dad, she stops it.” “There is a lot of arguing at Dads. She gets mad at me and my sister for things we did not do. She has lied to us. She has slapped my hands. She has dragged me into my room. She hit my arm off the door handle.” “I missed my sister in April (when she stopped going to Dad’s home). L. was not nice since my sister stopped coming.” “I do not believe that anything has changed since J. has returned home.” “If L. were to leave, Dad might be mad.

I would have to see how things went.” CONCLUSION J. and J. have consistently suggested that they would like to live primarily with their Mother and visit with their Father when L. is not present. Both children tended to see L. in a negative light while their Mother was viewed only as positive. Dad was depicted as a man who tended to follow L.’s lead while picking his partner over his children. The children, while both being mature and outspoken, have described a classic step-parenting issue.

L. is technically with the children more than their Father and in many ways has been forced into the role of primary parent. While the research clearly suggests that the biological parent must be viewed as the rule maker and disciplinarian, it is not true in this particular case. The Court order has asked for the recommendations of the assessor, which is not usually the case with Wishes Assessment. Changes are required but it is my understanding that family therapy has not been an option for the family.

While the children are clearly voicing their wishes, a few sessions with a trained family therapist could be of value to this family. I would suggest that family therapy be introduced and that a follow-up session occur to see if the children’s wishes have been altered. Conclusion

[51] Section 17(5) of the Divorce Act states: Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in thecondition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the lastvariation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take intoconsideration only the best interests of the child as determined by reference to that change. [52] In Harrison v.

MacKinnon, 2010 NSSC 445 , Jolllimore, J., under the heading, Applying to vary a parental order,states: [4] I’m governed by Gordon v. Goertz, 1996 Can LII 191 (S.C.C.), 1996 Can LII 191 (S.C.C.) in making a decision to varyparenting arrangements. At paragraph 10 of the majority reasons in Gordon v.

Goertz, (S.C.C.), (S.C.C.), then-Justice McLachlin instructs me that before I can consider the merits of a variation application, I must be satisfied there hasbeen a material change in the child’s circumstances that has occurred since the last custody order was made. [5] At paragraph 13, Justice McLachlin was more specific in identifying the three requirements that must be satisfied before I canconsider an application to vary a parenting order.

The requirements are: 1. there must be a change in the condition, means, needs or circumstances of the child or the ability of the parents to meet the needsof the child; 2. the change must materially affect the child; and 3. the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. [53] Some six years have passed since the making of the current order outlining parenting responsibilities. Mr. A.’s wife had justrecently become involved in the children’s lives. Since then Ms.

H. has acquired a new partner and there have been three investigationsby a child care agency. The children have had numerous adults questioning them as to their lives, the most recently being a familytherapist. The intense and continued conflict between the parents could not have been reasonably contemplated when the initial orderwas made.

The current parents’ relationship does materially affect the children. [54] There has been a change in circumstances as required by the Divorce Act. [55] The material change of circumstances having been established , the competing parenting plans must be examined to ensure thecourt’s decision reflects the children’s best interests. [56] Both parents are basically putting forth the same plan of care they provided since 2005. However, Ms. H. suggests herparenting continue on a full time rather than a half-time basis. Mr.

A. suggests his parenting continue as has been provided since theissuance of the Corollary Relief Judgment. [57] The evidence provided to the court does not lead to a conclusion that the children, while in the care of Mr. and Mrs. A., wereabused, either physically or psychologically. The primary allegations of abuse have been investigated by the local child welfare agencywho have come to a similar conclusion. [58] The many allegations of abuse suggested by Ms.

H. may have been instances that made the children unhappy, evenuncomfortable, but fall short of being abusive. [59] The Wishes of the Child Report establishes both children as mature and capable of expressing their preference to reside withtheir mother. [60] The children have provided information to the investigating child care agency indicating both parents have, on occasion,

engaged in inappropriate parenting. [ 61 ] Ms. H., since returning to Nova Scotia from * in 2004, believes she should have had the children primarily in her care. Since that time she has been actively seeking reasons to support such a conclusion. In her quest she has seized on Mrs. A.’s involvement in parenting the children. [ 62 ] Ms. H.’s own words are most revealing on this point. In her testimony she mentioned questioning J. as to how she got along during a week spent at her father’s. On being told that things went “okay” she further inquired how that could be the case.

Her reasoning for the additional inquiry was her belief that her child could not be happy in that situation. [ 63 ] Mr. A. allowed Mrs. A. to have considerable involvement in the parenting of J. and J.. Mrs. A. readily accepted this responsibility. In doing so, the A.s had to be aware they were helping Ms. H. create what Mr. Whitzman termed the “classic step- parenting issue”. [ 64 ] Ms. H., if acting in her children’s best interests, would have sought to be supportive of their on-going relationship with their father and step-mother. In fact, she looked for problems to exploit the relationship. [ 65 ] Mr.

A., being aware of Ms. H.’s agenda, should have assumed and maintained a more prominent role in the parenting of his children while in his home. Mrs. A., being aware of the conflict, should have assumed a less prominent role in the parenting of J. and J.. This did not happen. [ 66 ] Ms. H.’s plan of care would greatly reduce the time the children would spend with their father. The children have shown no interest in reducing their established involvement with their father. Ms. H. states she would encourage a relationship between the children and their father. I conclude quite the opposite, and that Ms.

H. as the custodial parent would encourage the children to spend as little time as possible in the A. home. [ 67 ] I conclude the strongest wish of the children is not to reside primarily with their mother and decrease the time they are with their father, but to get out from the direction and guidance of their step-mother. This view may have been created with the encouragement of their mother, the heavy-handed treatment of Mrs. A., or a bit of both, but it is the children’s stated choice.

A choice that can be accommodated without them being deprived of their desired time with their father. [ 68 ] As previously noted, Mr. Whitzman, in his conclusion stated in homes such as the A.s the biological parent must be viewed as the rule-maker and disciplinarian. In his opinion this was not the case with the A.s. The A.s would suggest otherwise. Regardless of what was actually taking place (I conclude Mrs. A. was more involved than admitted) it is obvious Mr. A. was not viewed by his children as the rule-maker. Mr. and Mrs. A. have stated, on becoming aware of the children’s concerns, that Mr.

A. has assumed most, if not all, of the parenting role while the children reside in his home. [ 69 ] I find the children continuing in the current joint custody, shared parenting relationship, to be the best option available to them at this time. In spite of the disruption created by the parents’ relationship the children, according to all independent reports, are doing very well academically and socially. [ 70 ] As suggested by Mr.

Whitzman, the introduction of family therapy with further follow up would be of benefit to the parents and the children. [ 71 ] A consideration of the payment of child support requires adherence to the Divorce Act and the Federal Child Support Guidelines .

[ 72 ] In contemplating a child support order that is different than would be determined in accordance with the Guidelines , one is required to be satisfied that reasonable arrangements have been made for the children’s support. [ 73 ] From the information provided I find, for the purposes of considering an order for child support, Mr. A.’s annual income to be $66,996.00 and Ms. H.’s to be $25,535.00. [ 74 ] If Paragraph 9 of the Federal Child Support Guidelines is followed, Mr. A. would be required to provide Ms. H. with a payment of $591.00 per month.

I believe the Guidelines should be followed in this instance and order such a payment to begin on May 1, 2012. [ 75 ] I request counsel for the Respondent, Mr. A., to prepare the appropriate order. J.S.C. (F.D.)