Pudsey v. Pudsey, 2012 NSSC 282

SUPREME COURT OF NOVA SCOTIA Citation: Pudsey v. Pudsey, 2012 NSSC 282 Date: 20120724 Docket: 1204-004616 SKD 054107 Registry: Kentville Between: Christopher Blair Pudsey Applicant and Pamela Lynn Pudsey Respondent DECISION Judge: The Honourable Justice Gerald R. P. Moir Heard: November 17 and 22, 2011 and June 11, 2012 Counsel: R. Michael MacKenzie, for applicant Nicole J. Mahoney, for respondent

Moir, J. : [ 1 ] Introduction . I have to determine whether Kitrick Pudsey, an eleven-year-old boy, and Kacey Pudsey, a nine-year-old girl, should remain in the primary care of their mother, as has been the case since they were born, or should be primarily cared for by their father. [ 2 ] The change proposed by the father of the Pudsey children results from two serious complaints. Ms. Pudsey does not promote school attendance or access for Mr. Pudsey. [ 3 ] Evidence . Ms. and Mr. Pudsey provided affidavits. They also testified. The children's family physician, Dr.

William Doran, testified. [ 4 ] I am assisted by an assessment that was ordered by Justice Warner. The assessment was done by Dr. Doug Symons, a professor of psychology at Acadia. Dr. Symons produced an extensive report and he was cross-examined. His work is of much assistance to me. [ 5 ] I am also assisted by a speech-language assessment report on Kitrick Pudsey prepared by a speech-language pathologist with the Annapolis Valley School Board, Ms. Karen Friskney. [ 6 ] Findings . Kitrick Pudsey is eleven years old. Kacey Pudsey is nine. Their parents separated before either can remember.

They have spent their lives in the primary care of their mother, living with her in Kentville, going to the local school, and making neighbourhood friends. [ 7 ] Mr. Pudsey wants to change all that. He advances some reasons that I reject, and need not discuss further. As I said in an interim decision, with some exceptions, "Kitrick Pudsey and Kacey Pudsey have been brought up with such care that they are happy, healthy, and well socialized children." [ 8 ] There are, however, two strong reasons advanced by Mr. Pudsey for interfering with the status quo .

They have to do with school attendance and parental access. [ 9 ] After separation, Mr. Pudsey pursued a career in the military. As usual, this entailed time in training camp, postings at various places, and a lengthy deployment. Then, his career stabilized. He bought a home in Windsor and commutes to Halifax. He is unlikely to be transferred or deployed. [ 10 ] Mr. Pudsey remarried. The Pudsey household is made up of him, his wife, at second weekends and some holidays, her teenage son, and, when access is due and not impeded by Ms. Pudsey, Kitrick and Kacey. [ 11 ] I accept Mr.

Pudsey's evidence to the effect that Kitrick gets along well with Mr. Pudsey's stepson. I find that the children are looked after well when they are at the home in Windsor. [ 12 ] As I said, there are two serious problems with care for the children in Ms. Pudsey's home. [ 13 ] The children are chronically late for, or absent from, school. Despite this, Kacey is doing well enough so far. Kitrick is not.

[ 14 ] Both children suffer severely from asthma. Dr. Doran followed them since 2004. He agreed that their asthma is severe enough to account for some time lost from school. Chronic asthma could account for chronic absenteeism. [ 15 ] In Kitrick's case, the absences are very concerning. He was assessed in 2009 by Ms. Friskney as a result of reservations teachers expressed about his memory and his ability to communicate. Ms. Friskney found him to have "a severe delay for his age" in working memory and "a moderate delay for his age" in expressive language skills. [ 16 ] The school offered a tutor. Ms.

Pudsey declined. She has recently made arrangements to hire a tutor, but I am not confident that this signifies a change in attitude. It is something she did under the pressure of Mr. Pudsey's application. [ 17 ] Ms. Pudsey cannot deal directly with Kitrick's home room teacher. She says they "do not see eye to eye". The situation is so bad that communications go through a vice-principal. [ 18 ] Ms. Pudsey contends that she works with Kitrick on his homework. The objective evidence indicates that he never keeps up with it.

She blames the school for not telling her about missing assignments and her son for lying about doing his homework in school. I find that Ms. Pudsey does not supervise Kitrick's homework. [ 19 ] The most serious problem is absence from school School officials have pressed Ms. Pudsey to deal with the children's frequent absences and their lateness when they do attend. The children miss so much school that it is difficult to follow their progress and to assess their needs. [ 20 ] I do not believe that asthma is the only factor affecting poor school attendance. Ms.

Pudsey's judgmental approach to those with whom she does not see eye to eye, and her own desire to have her children with her much of the time, are also causes of the absences. [ 21 ] Mr. Pudsey is alarmed by his children's poor attendance at school. His interaction with the school has been positive, and he shows a desire to cause his children to succeed. He has a rational plan for getting them to school at Windsor, child care after school, and getting them home after work. [ 22 ] I find that Ms. Pudsey does not appreciate the damage absence from school will do to her son.

Aside from the general advantages of academic progress, one has to be very concerned for Kitrick's emotional health and confidence as he falls further and further behind his peers. One has also to be very concerned about both children developing their social skills and independence. [ 23 ] I find that Mr. Pudsey does understand the academic, social, and developmental necessities of school and of society outside the home.

I am satisfied that he will try to secure the best for his children in that regard. [ 24 ] Concerns about developing independence also arise when one considers the evidence of obstructed parental access. [ 25 ] The corollary relief judgment provides for joint custody with Ms. Pudsey's home as the primary day-to-day residence. Mr. Pudsey is to have the children with him on a rotation of two consecutive weekends, followed by one weekend with Ms. Pudsey.

The judgment also provides in detail for holidays and calculation of access time. [ 26 ] The judgment requires that missed access be made up and that the parties make every effort to maintain free access and unhampered contact.

[ 27 ] In recent years, Ms. Pudsey cancelled numerous access weekends on the ground that the children were ill. Few were made up, although Mr. Pudsey wished otherwise. [ 28 ] Kacey started refusing to go to her father's home. It became clear, through Dr. Symons' work, that the cause was pressure felt by the child to stay with her mother. [ 29 ] I do not intend to repeat in this decision what Kacey told Dr. Symons. I accept his findings as follows: It was found that while Kacey in particular refuses access with her father, this was for no substantive reason.

Instead, Kacey was found to be preoccupied with her mother's feelings, wishes, and well-being. It is unreasonable to expect and 8-year-old girl to bear these burdens, and equally unreasonable to accept her wish to decline access with her father given these issues. The fact that Kacey is stubborn, secretive, and can be "gossipy" makes her even more susceptible to parental emotional pressure. There was no evidence Mr. Pudsey behaves in this way, in fact, he does not seem to give in to unrealistic concerns of Kacey's.

These findings are well supported by what the child told the psychologist, and by the surrounding evidence. I adopt them as my own. [ 30 ] The situation improved greatly after I made an interim decision last November. That shows that it was possible for Ms. Pudsey to get her daughter to spend time with her father when she supposedly refused to do so. I do not have confidence that access would continue, absent the pressure of an application. [ 31 ] Ms. Pudsey has provided the children with a good home as their primary residence, but with two serious exceptions.

I fear they will not grow independent in the status quo . [ 32 ] It is most unlikely that the children will be deprived of schooling, or of parenting by the access parent, if Mr. Pudsey is responsible for their primary day-to-day care. He has a rational plan for discharging such a responsibility. [ 33 ] Accordingly, I have no alternative but to order a change in primary residence from Ms. Pudsey to Mr. Pudsey. This is necessary to secure the children's best interests. [ 34 ] The terms could mirror the present relief judgment with the positions reversed.

Counsel are free to contact my office if they require direction. J.