Parsons v. Parsons, 2011 NSSC 347

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Parsons v. Parsons, 2011 NSSC 347 Date: 2011/09/15 Docket: 1206-006019 Registry: Sydney Between: Vanessa Parsons Petitioner v. Gregory Parsons Respondent Judge: The Honourable Justice Theresa M. Forgeron Heard: April 6, 7, and 8; June 3 and 8, 2011, in Sydney, Nova Scotia Oral Decision: September 15, 2011 Written Decision: October 4, 2011 Counsel: Vanessa Parsons, on her own behalf Gregory Parsons, on his own behalf By the Court: I. Introduction [ 1 ] This divorce trial involves two intelligent, motivated, and competent parents.

These parents share similar values and beliefs. In addition, they both love and cherish their children, Nicholas and Allie. They both want their children to be happy, healthy, and accomplished. Despite these shared values and goals, Vanessa and Greg Parsons have been unable to resolve the parenting and maintenance issues affecting their children. Why? The answer is found in the word, “ hubris. ” [ 2 ] Hubris refers to extreme haughtiness, pride, and arrogance. It is usually associated with a person ’ s distorted confidence in

their own abilities. Hubristic actions are frequently connected with poor and unfortunate outcomes. [ 3 ] Hubristic is the adjective which best describes much of Ms. Parsons ’ conduct. Arrogance has led Ms. Parsons to minimize the meaningful role that Mr. Parsons has played, and must continue to play, in the lives of Nicholas and Allie. Pride has prevented Ms. Parsons from understanding that the well-being of Nicholas and Allie is intricately linked to the relationship that the children must have with their father, as well as their mother.

Given this backdrop, it is not surprising that the parties were unable to reach agreement on the parenting and child support issues. [ 4 ] This decision will therefore examine the needs of the children, and the ability of the parties to meet those needs. The court will fashion a parenting arrangement that is in the best interests of Nicholas and Allie, given the unique circumstances of both children, including the special needs of Nicholas, who is diagnosed with an autistic spectrum disorder. Further, the plans put forth by both parties will be reviewed in the context of the evidence and the governing law. II.

I ssues [ 5 ] The following issues will be addressed in this decision: (

a) How do burden of proof and credibility principles impact upon the decision? (

b) Should the joint custody arrangement be subject to a final decision making provision? (

c) Should Ms. Parsons be permitted to relocate the children to the Annapolis Valley? (

d) Is shared parenting in the best interests of the children? (

e) What parenting

schedule is in the best interests of the children? (

f) What is the appropriate maintenance order? III. Background [ 6 ] The parties were involved in a long term relationship that began when they were teenagers. They married in Sydney on July 21, 2001. Two beautiful children were born of their union: Nicholas who is 9, and Allie who is 4. [ 7 ] Ms. Parsons is an educated and articulate woman. She is a teacher employed with the Conseil Scolaire Acadien Provincial in Sydney, N.S. Ms. Parsons took a sabbatical from her job in Sydney to work as a teacher in the Valley under a term contract from August 2010 until June 2011. [ 8 ] Mr. Parsons is a fisherman.

In the past, Mr. Parsons fished with his brother; he now fishes with his father. His work is seasonal. [ 9 ] When the parties initially separated in August 2008, Ms. Parsons hoped for reconciliation. She therefore maximized contact

between Mr. Parsons and the children, but subject to the transitional needs of Nicholas. As a result, Mr. Parsons attended the home every morning. He helped prepare the children for their day and transported them to school and preschool. In addition, Mr. Parsons cared for the children every Saturday, Sunday, Monday, and Wednesday, and on some Fridays. He picked them up after school, and helped with their supper, bathing, and bedtime routines. He left the home after the children were settled for the night. Mr.

Parsons later reduced the number of mornings that he spent at the house, but continued the after school care following the same pattern until fishing season began in late April 2009. Contact was then reduced because of Mr. Parsons ’ work schedule. [ 10 ] At the end of June 2009, Mr. Parsons was experiencing a crisis of conscience. He therefore advised Ms. Parsons that he had an affair. He also stated that around Christmas of 2008, he felt suicidal because of the double life that he had been leading. He confirmed that he was no longer experiencing suicidal ideation. Mr.

Parsons also expressed frustration with his mother-in-law ’ s interference. He further sought professional help. From June to November 2009, Mr. Parsons saw a spiritual counsellor. [ 11 ] Ms. Parsons ’ views on custody changed dramatically when she recognized that the marriage was over. Reconciliation was no longer a possibility. Ms. Parsons was understandably hurt and angry. Her trust had been betrayed. Ms. Parsons began to reduce the amount of time that Mr. Parsons had with the children. [ 12 ] After Ms. Parsons started to restrict contact, verbal arguments ensued. This culminated in October 2010. Ms.

Parsons became very angry because Mr. Parsons wanted to buy good clothing for the children. Ms. Parsons didn ’ t want Mr. Parsons to buy the clothes. Ms. Parsons ’ anger increased when Mr. Parsons said that he could spend his money however he wished. The parties engaged in a heated discussion. Thereafter, Ms. Parsons stopped contact between Mr. Parsons and the children for about two weeks. When access was resumed, it was restricted, and based upon whatever

schedule Ms. Parsons deemed appropriate. [ 13 ] Mr. Parsons therefore contacted a lawyer and filed an application for joint custody under the Maintenance and Custody Act in December 2009. Ms. Parsons later responded by filing for a divorce in March 2010. The parties locked horns over the parenting schedule, each hoping that the other would bend so that a resolution could be achieved without court involvement. [ 14 ] The impasse came to a head in August, 2010 when Ms. Parsons unilaterally moved the permanent residence of Nicholas and Allie to the Valley without Mr. Parsons ’ knowledge or consent. Further, Ms.

Parsons also transferred Nicholas ’ educational and health files to the Valley, again, without Mr. Parsons ’ knowledge or consent. Mr. Parsons learned of the move in a mid-August 2010 telephone conversation initiated by Ms. Parsons. During this telephone conversation, Ms. Parsons advised that she and the children were now living in the Valley. [ 15 ] In response, Mr. Parsons filed an emergency motion.

On August 18, 2010, the court granted an Ex Parte Order requiring the children to be forthwith returned to CBRM, and an inter partes hearing was scheduled. [ 16 ] An Interim Consent Order was read into the record on September 28, 2010, whereby Mr. Parsons agreed to the temporary relocation of the children to the Valley until July 1, 2011 when the children were to move back to CBRM. Mr. Parsons agreed to this temporary move because it would take approximately six to eight months before the specialized services for Nicholas could be reactivated in Sydney given Ms. Parsons ’ decision to terminate services.

In addition, the interim, access

schedule was finalized during a hearing in October 2010. [ 17 ] On March 8, 2011, during the organizational conference, certain admissions were read into the record, including an agreement that no spousal or retroactive support would be payable, and that the matrimonial property issues had been resolved. [ 18 ] The trial was held on April 6, 7, 8, and June 3 and 8, 2011. The court heard from the following witnesses: Ms. Kazmel- Beresford, Ms. Hicks, Ms. Belliveau, Ms. Gardiner, Ms. Scott, Ms. Stone, Ms. Kalberlah, Ms. Parsons, Mr. John Glen Parsons, Mr. Robert Parsons, Ms. Linden, and Mr. Greg Parsons. IV.

Analysis [ 19 ] How do burden of proof and credibility principles impact upon the decision?

[20] In C.(R.) v. McDougall 2008 SCC 53, Rothstein J. confirmed that there is only one standard of proof in civil cases - that is,proof on a balance of probabilities. In every civil case, the court must scrutinize the evidence when deciding whether it is more likelythan not that an alleged event occurred. The evidence must not be considered in isolation, but must be based upon its totality.

Theevidence must always be clear, convincing, and cogent to satisfy the balance of probabilities’ test. [21] Further, the court must assess the impact of inconsistencies on questions of credibility and reliability, which relate to the coreissues. It is not necessary that every inconsistency be addressed, but rather a judge must address, in a general way, the argumentsadvanced by the parties: C.(R.) v. McDougall, supra, paras. 40, and 45 to 49. [22] In Baker-Warren v. Denault 2009 NSSC 59, this court reviewed the factors to be considered when making credibilitydeterminations at paras. 18 to 20.

I have applied this law which states as follows: 18 For the benefit of the parties, I will review some of the factors which I have considered when making credibility determinations. Itis important to note, however, that credibility assessment is not a science. It is not always possible to "articulate with precision thecomplex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the variousversions of events:" R. v. Gagnon 2006 SCC 17, para. 20.

I further note that "assessing credibility is a difficult and delicate matter thatdoes not always lend itself to precise and complete verbalization:" R. v. R.E.M. 2008 SCC 51, para. 49. 19 With these caveats in mind, the following are some of the factors which were balanced when the court assessed credibility:

a) What were the inconsistencies and weaknesses in the witness' evidence, which include internal inconsistencies, prior inconsistentstatements, inconsistencies between the witness' testimony, and the documentary evidence, and the testimony of other witnesses: Re:Novak Estate, 2008 NSSC 283 (S.C.);

b) Did the witness have an interest in the outcome or was he/she personally connected to either party;

c) Did the witness have a motive to deceive;

d) Did the witness have the ability to observe the factual matters about which he/she testified;

e) Did the witness have a sufficient power of recollection to provide the court with an accurate account;

f) Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonablegiven the particular place and conditions: Faryna v. Chorney (BC CA), [1952] 2 D.L.R. 354;

g) Was there an internal consistency and logical flow to the evidence;

h) Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased; and

i) Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving? 20 I have placed little weight on the demeanor of the witnesses because demeanor is often not a good indicator of credibility: R v.

Norman, (1993) (ON CA), 16 O.R. (3d) 295 (C.A.) at para. 55. In addition, I have also adopted the following rule,succinctly paraphrased by Warner J. in Re: Novak Estate, supra, at para 37: There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety. On the contrary, atrier may believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness's evidence. (SeeR. v. D.R., (SCC), [1996] 2 S.C.R. 291 at 93 and R. v. J.H., (ON CA), [2005] O.J. No. 39, supra). [23] I have reviewed the totality of the evidence.

As previously indicated to the parties, I have only considered the evidence thatwas properly before me by way of exhibits, or as elicited while a witness testified. I have not considered any additional, factualinformation that was provided by way of submissions or documentation filed. I have also considered the law and the legal submissionsof the parties. I have assigned the civil burden of proof to each party in respect of the plan of care that each proposes. [24] I also have made credibility findings given the conflicts in the evidence.

In this case, the professional witnesses providedfactual information within their purview. No expert evidence was adduced. For the most part, no credibility issues arose from theevidence of Ms. Kazmel-Beresford, Nicholas’ resource teacher in the Valley; Ms. Hicks, a speech language pathologist working withNicholas for about five months; Ms. Belliveau, the principal at L’Ecole de l’Acadie in Sydney; Ms. Gardiner, the executive director forthe Autism Society in the Sydney area; Ms. Scott, the autism interventionist who worked under the direction of Dr. Betsy Marcin; andMs.

Stone, the principal at Mountainview School in CBRM. [25] Further, there were no credibility problems arising from the evidence of Mr. Parsons’ siblings. They too answered in a straightforward, candid fashion. Although they are aligned with their brother, their evidence was not couched in exaggeration, nor did it attackMs. Parsons. They were not evasive, nor strategic. They also provided balanced evidence, such as confirming that Nicholas at timesacted out while with Mr. Parsons. [26] In contrast, credibility issues quickly emerged as Ms. Kalberlah and Ms. Parsons testified. Their evidence was not balanced.

Both extolled the tireless and unblemished parenting abilities of Ms. Parsons, while lamenting Mr. Parsons’ absence, as well as hismisguided, uninterested, harsh, and at times abusive, parenting techniques. Yet, objective evidence dispels their characterizations, andalso confirms credibility problems. The following are but a few examples that support my conclusion: (

a) Ms. Parsons admitted during cross examination that she told Heather Cross that Mr. Parsons was the primary care giver to thechildren during the nonfishing months. (

b) Exhibit 9 contains the notes from the autism intervention program. The June 10, 2009 record reveals that Ms. Parsons was notalways capable of delivering the consistent and appropriate discipline that she stated Nicholas requires, and that she stated that shealways delivered. To the contrary, it shows Ms. Parsons allowing Nicholas to engage in oppositional conduct, such as hitting, for asignificant period of time before finally putting him in time out. While in timeout, Ms. Parsons engaged in discussions with Nicholas,and also allowed him to emerge early, thus reinforcing his negative behaviour.

This is a far cry from the description provided by Ms.Parsons, and her mother, about Ms. Parsons’ ability to intuitively know and respond successfully to all of Nicholas’ problems byapplying model disciplinary techniques. (

c) Similar comments about Ms. Parsons lack of consistency were noted in the April 12, 2010 notes, also found in exhibit 9. Duringthis session, Ms. Parsons expressed frustration at the babysitter’s ability to get Nicholas to bed, in comparison to her own unsuccessfulefforts. In response, Ms. Scott stated that she “discussed as politely as I could that the babysitter gave expectations and followed throughand didn’t give in to Nicholas’ negotiations.” (

d) Although alleging that Mr. Parsons was an angry, absent father and husband, the evidence shows that when Ms. Parsonsexperienced difficulty she often turned to Mr. Parsons, who consistently provided aid and assistance after the separation had occurred. This included getting medication in the early hours of the morning; buying and installing locks to prevent Nicholas from bolting from thehouse; retrieving Ms. Parsons’ beloved cat who had died of old age; buying groceries and giving money to Ms. Parsons when requested;making substantial monetary payments to and on behalf of Ms.

Parsons that exceeded the Guidelines including paying for a car that wasleft in Ms. Parsons’ home, paying for day care, and making child support payments. Mr. Parsons’ actions are not those of an angry,

vindictive man, but reveal a father genuinely concerned about the welfare of his children. (

e) Ms. Kalberlah also stated during direct evidence that she left the Parsons ’ home because of the level of conflict that she observed. Ostensibly she could no longer tolerate this conflict. Yet, during cross examination, Ms. Kalberlah admitted that she had reunited with a former spouse, and returned to live with him immediately upon leaving the Parsons ’ residence. (

f) Ms. Parsons ’ evidence that defacto agreement had been reached on her decision to move the children to the Valley is not born out in the evidence. Exhibit 9 confirms discussions that Ms. Parsons had with Ms. Scott during which Ms. Parsons happily reported that Nicholas would have the same teacher and TA in grade three as he had in grade two. This conversation occurred on June 11, 2010. Further, if agreement had actually been reached, the children would not have been clandestinely removed without a good bye dinner or visit with their father. Certainly, Mr. Parsons would not have learned of the move during a telephone conversation which he had with Ms. Parsons after the fact. (

g) Ms. Parsons ’ concern that the behaviour intervention team was going to be discontinued in Sydney was likewise not supported by the evidence. Indeed, after Ms. Scott ’ s term had ended, Ms. Parsons began to see another interventionist, Ms. Capstick, as noted in exhibit 9. [ 27 ] These are but a few examples of the inconsistencies noted in the evidence of Ms. Parsons and her mother. In contrast, Mr. Parsons rarely took swipes at, or belittled Ms. Parsons.

His actions, while on the stand, and during the separation, showed a father desperately concerned about his children, and who, for the most part, was able to put their interests above his own. In addition, Mr. Parsons was not judgmental in his comments about Ms. Parsons. To the contrary, he showed a great deal of respect and empathy for many of her decisions, excluding the unilateral move to the Valley. Mr. Parsons also admitted his own wrong doings. He was not evasive or strategic. Mr. Parsons was credible. [ 28 ] Therefore, where the evidence of Ms.

Parsons and her witnesses is in conflict with the evidence of Mr. Parsons, I prefer the evidence of Mr. Parsons and his witnesses. I make this assessment given the law, and my review of the totality of the evidence. [ 29 ] Should the joint custody arrangement be subject to a final decision making provision? [ 30 ] Position of the Parties [ 31 ] Both parties agree that a joint custody order is in the best interests of the children. However, Ms. Parsons seeks to dilute this concept by having final decision making authority granted to her. Mr. Parsons is against any order which provides Ms.

Parsons with final decision making authority because he is wary that she will abuse the power in an effort to control his time with the children. [ 32 ] Ms. Parsons argues that it is in the best interests of the children that she have final decision making authority for a number of reasons, including the following: (

a) Mr. Parsons abdicated his parental role before separation, and this abdication continued after separation. Ms. Parsons has always acted as primary care giver, both before and after separation. Deference and respect should therefore flow to her decision making role. (

b) Ms. Parsons has always made decisions in the best interests of the children, and she should continue in this role. (

c) Mr. Parsons has consistently refused her intervention, and has refused to model her parenting techniques. (

d) Mr. Parsons drank, gambled, and had an affair, and thought about suicide. Ms. Parsons rose to the parenting challenge following his inappropriate behaviour.

(

e) She is the person best able to meet Nicholas’ special needs. [33] Decision [34] In making this finding, and all other parenting determinations in this decision, I must have recourse to the best interests of thechildren as noted in s. 16(8) of the Divorce Act, which states as follows:

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage asdetermined by reference to the condition, means, needs and other circumstances of the child. [35] The best interests of the child principle has been described as one which has an inherent indeterminancy and elasticity: MacGyver v. Richards (ON CA), 1995 11 R.F.L. (4th) 432 (Ont.C.A.) at paras. 27 to 29. To achieve the bestinterests of children, the Supreme Court of Canada in King v. Low (SCC), [1985] S.C.J.

No. 7, directs trial judges toreview the plans of rival claimants and choose the course which will best provide for the healthy development of the children whenapplying the best interests test at para. 27: ...the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. This is not tosay that the question of custody will be determined by weighing the economic circumstances of the contending parties.

The matter willnot be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contenderor the other. The welfare of the child must be decided on a consideration of these and all other relevant factors, including a generalpsychological, spiritual, and emotional welfare of the child.

It must be the aim of the Court, when resolving disputes between rivalclaimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education ofthe child so that he will be equipped to face the problems of life as a mature adult ..." [36] The parties have indicated to the court, and to each other, that they are committed to a joint custody arrangement. They haveprovided examples where positive communication has occurred even during the acrimonious separation.

However, I must nonethelessaddress the submission that final decision making authority is necessary in this joint custody regime. [37] I refuse to grant either party final decision making authority as such would be contrary to the best interests of Nicholas andAllie for a number of reasons, including the following: (

a) I am concerned that Ms. Parsons will use final decision making authority as a means to limit Mr. Parsons’ parenting time with thechildren. In the past, she lied about the children being ill to limit access when she felt that access should not occur. The school recordsconfirm that Nicholas attended school on at least one of the days that Ms. Parsons alleged that he was sick. (

b) I am also concerned that Ms. Parsons will use final decision making authority as a means to control the quality of the contactbetween Mr. Parsons and the children. Ms. Parsons believes that only she knows what is best and frequently attempts to impose herviews on Mr. Parsons. Ms. Parsons will, on a balance of probabilities, use final decision making authority to attempt to control Mr.Parsons. This will create more conflict between the parties. Conflict has a negative effect on children. In Harvey v. Harvey 2004BCSC 514, Cohen J. refused to grant sole custody where such would be interpreted as giving one parent control over the child’srelationship with the other parent at paras. 48 - 52. (

c) Ms. Parsons has not always made decisions which have, in fact, been in the best interests of the children despite her love anddedication. Such an example is found in Ms. Parsons’ unilateral move to the Valley and the termination of special services for Nicholasin CBRM without the consent of Mr. Parsons. Another example is found in Ms. Parsons’ decision to refuse autism screening forNicholas when it was first suggested by the Hearing and Speech Clinic. Thus, Nicholas was robbed of much needed early treatment. Interestingly, this is one of the few decisions that Ms. Parsons states was jointly made with Mr.

Parsons. Ms. Parsons’ exaggerated faithin her own abilities has, and will likely continue to have, negative consequences for the children.

(

d) It is also inappropriate for Mr. Parsons to have final decision making authority. Although Mr. Parsons will, on a balance ofprobabilities, always consult and seek Ms. Parsons’ opinion, he does not have the advocacy skills that Ms. Parsons has. A strongadvocate is essential for any special needs child. (

e) It is in the best interests of Nicholas and Allie to have the benefit of the collective wisdom of two parents, and not just one. Mr.and Ms. Parsons each have different backgrounds, skills, and abilities. It would be contrary to the best interests of the children to removeone of the parents from the decision making process. Both children deserve better. Joint decision making is in the best interests of thechildren. [38] I am also ordering the parties to attend counselling so that they can better hone their communication skills. Ms. Parsons mustlearn to ask, consider, balance, and respect the views of Mr.

Parsons. Mr. Parsons must learn to communicate in a more effectivefashion. This direction will form part of the corollary relief order. [39] Should Ms. Parsons be permitted to relocate the children to the Annapolis Valley? [40] Position of the Parties [41] Mr. Parsons wants the children to live in CBRM. Such will maximize both parties’ contact with the children. CBRM hasalways been the home of the children, until Ms. Parsons’ unilateral move. The needs of the children are best met in CBRM, includingspecial services for Nicholas. [42] Ms.

Parsons wants the children to make their home in the Valley where they resided from August 2010 until July 2011. Shestates that the children are thriving in the Valley, and that any further transitions and moves would be too difficult for the children,especially Nicholas. She further notes that there are better and more services available for Nicholas in the Valley than in CBRM. Shesuggests that quality contact between Mr. Parsons and the children can be maintained despite the distance. [43] Decision [44] In Gordon v.

Goertz (SCC), [1996] 2 S.C.R. 27, McLachlin, J., as she then was, summarized the applicableprinciples to be applied in a mobility application at para. 49. The relevant portion of para. 49 states as follows: 49 The law can be summarized as follows: ... 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitledto great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of thecase. 6.

The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia:

(

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs ofthe child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [45] Ms. Parsons submission that she is the custodial parent and her views must be accorded great respect pursuant to para 49 (4) ofGordon v. Goertz , supra, is erroneous. In the present case, both parties were equal care givers of the children before separation. Mr.Parsons was an involved and loving caregiver after separation until contact was unilaterally restricted by Ms. Parsons. The interim orderis not a final order. It also calls for joint and shared parenting.

The interim move to the Valley was achieved because of Ms. Parsons’clandestine and manipulative conduct. Such a situation does not create a preferential status for the Valley, or for Ms. Parsons’ position. In Burgoyne v. Kenny, 2009 NSCA 34 , 2009 N.S.C.A. 34, Bateman, J.A. confirmed that an interim custody order does notbestow the status of a custodial parent at para. 22, which states as follows: 22 Where there is no prior order or custody agreement, as is the case here, the parents are "equally entitled to custody" with neitherbeing considered the "custodial" or "access" parent (MCA, s.18(4)).

The interim orders, which permitted the children to reside with themother in Quebec pending the custody hearing, do not bestow the status of custodial parent. Thus, to the extent that Gordon v. Goertzreferences, as relevant, the status, interests or wishes of the custodial parent, the factors must be modified. [46] Further, the status quo which is referenced and maintained at an interim level is that which existed prior to the unilateralconduct of one parent, unless the best interests of a child dictate otherwise: Kimpton v. Kimpton 2002CarswellOnt 5030 (Ont.

S.C.J.)at para. 1. [47] I have applied the law, in the context of the evidence, and find that it is not in the best interests of the children to have theirpermanent residence in the Valley for the following reasons: (

a) The desirability of maximizing contact between the children and their parents can best be achieved in CBRM. Both parties haveemployment in the area. The children know CBRM as their home. It is not a strange or novel place for them. Their roots are inCBRM. If Nicholas and Allie are to achieve their potential, they must have maximum contact with two parents, not one. (

b) Nicholas and Allie love each of their parents, and have excellent relationships with their mother and their father. They do not loveMs. Parsons more than they love Mr. Parsons. The evidence establishes that both children are equally at home and comfortable in thecare of both parents. I reject the evidence of Ms. Parsons and her mother to the contrary. I accept the evidence of Mr. Parsons, hissiblings, as well as the evidence of Ms. Scott. Ms. Scott noted in exhibit 9 that Nicholas was “very comfortable and relaxed, and was histypical self” when he was in his father’s care.

Nicholas responded well to the routine, structure, consistency, and discipline that had beenestablished by Mr. Parsons. This is also supported by the fact that Nicholas does not undress inappropriately while under Mr. Parsons’care, that Nicholas uses the correct utensils to eat, and that Nicholas engages in interaction with other children. I also accept that Allieand Nicholas love spending time with their father, and their second family. The have integrated well into the second family unit whichMr. Parsons formed with Ms. Simms.

(

c) I do not have direct evidence as to the views of Nicholas and Allie. I find, however, from the evidence of Mr. Parsons that the children are happy and comfortable in his care. I reject Ms. Parsons ’ evidence, and that of her mother, where it attempts to diminish the children ’ s desire to spend time with their father. If, in fact, the children are acting up before contact with their father, such is attributed to the following: (

i) the negative comments which Ms. Parsons ’ mother has made about Mr. Parsons in the presence of the children; (ii) Ms. Parsons and Ms. Kalberlah misreading cues, and misinterpreting the conduct of the children to conform with their own views; (iii) the children not enjoying the lengthy trip that is required to travel between the Valley and CBRM; and (iv) Ms. Parsons advising the children that she will miss them when they leave and that they should tell their father that they want to return early. (

d) Ms. Parsons states that she wishes to move to facilitate services for Nicholas. Ms. Parson believes that services are better and more readily available in the Valley than in CBRM. I do not accept this statement. It is clear that Nicholas did have the benefit of a behavioural interventionist team while living in CBRM. Although Ms. Scott was leaving her position with the team in July 2010, another behavioural interventionist had commenced working with the family as of July 2010.

Nicholas also had the benefit of speech language services, consults from an occupational therapist, and social programming while living in CBRM. Ms. Stone testified as to available services and resources for autistic children at Mountain View School. The evidence does not satisfy me, whatsoever, that services are better or more readily available in the Valley than in CBRM, although the court has no difficulty with the level of service provided to Nicholas in the Valley. Indeed the witnesses who testified were caring and professional. The services are not, however, better. Ms.

Parsons ’ argument fails on this point. (

e) There would be significant disruption to the health and well being of both Nicholas and Allie if they were permanently moved to the Valley. Their home, prior to Ms. Parsons ’ unilateral move, was in CBRM. There they had the benefit of contact with both parents, and their extended families. The children did not have to drive lengthy periods of time to be with either parent, and had many services and resources available to meet their emotional, recreational, and social needs. Ms.

Parsons disrupted the lives of their children to unnecessarily move them to the Valley in August of 2010 in a bid to gain control over the parenting of the children. Ms. Parsons moved to the Valley to ensure she had control over the children. Ms. Parsons did not want to share custody of the children with Mr. Parsons. The move to the Valley would limit Mr. Parsons ’ involvement and control. (

f) I find that there will be few adjustments for the children to return to CBRM. Indeed, the interim consent order contemplates their return effective July 1, 2011. Further, the children have been living with their father in CBRM when they have contact with him. The children have also lived in CBRM is the past. Transitional issues are not insurmountable. On balance, the harm that will be occasioned by not returning to CBRM exceeds the transitional difficulties that may occur. Difficulties will be reduced if Ms. Parsons will cooperate as a loving parent should. [ 48 ] In

summary, it is in the best interests of the children to have maximum contact with both parents, to remain in the community which has been their home, and to live with two active, loving, nurturing, parents. The request of Ms. Parsons to move the permanent residence of the children to the Valley is refused. [ 49 ] Is shared parenting in the best interests of the children? [ 50 ] Position of the Parties

[51] Ms. Parsons states that it is in the best interests of the children to be placed in her primary care and custody because she hasalways been the primary care giver, and is better suited to this role given her past experience, abilities, and talents. Mr. Parsonsdisagrees. He states that the children have two involved and loving parents. Shared custody is best for the children. [52] Decision [53] In determining whether a shared parenting arrangement is appropriate, it is important to address the factors that compose thebest interests test.

These factors are varied, and are dependent upon the unique circumstances of each case. Goodfellow, J. in Foley v.Foley (NS SC), 1993 N.S.J. No. 347 enumerates a number of elements which courts typically examine whendetermining a contested custody dispute. A number of these points loom more important than others in the custodial determinationbefore me today. [54] Further, in the recent decision of Gibney v. Conohan 2011 NSSC 268 , 2011 N.S.S.C. 268, O’Neil, A.C.J. reviewedthe law surrounding shared parenting.

He notes that although there is no presumption in favour of joint custody, Parliament hasnonetheless recognized the importance of children having maximum contact with both parents. This presupposes that both parents arecompetent, caring and loving. O’Neil, A.C.J. further notes that jurisprudence on shared parenting has evolved based upon the changingdynamics of family life and parental roles. There is an increased acceptance that fathers have the ability to parent their children.

Afterfinding that the parties were comparable as parents, O’Neil, A.C.J. ordered shared parenting for children who were nine and seven. [55] I have reviewed the law, the evidence, and the legal submissions. I have based the court’s parenting decision on what is bestfor Nicholas and Allie. I have examined the plans of each party. I have determined that a shared parenting arrangement, although not a50/50 split, will ensure that the best interests of Nicholas and Allie are met. My decision will be discussed under the followingsubheadings: (

a) Past Experience as Primary Care Parent; (

b) Parental Misconduct; (

c) Parent/Child Relationship; (

d) Physical and Financial Environment; (

e) Social, Cultural, and Moral Development; (

f) Educational Needs; (

g) Time Availability; (

h) Willingness to Facilitate Contact; (

i) Family Connections. [56] Past Experience As Primary Care Parent

[ 57 ] Despite Ms. Parsons repeated protestations to the contrary, I find that both Mr. and Ms. Parsons were active and involved parents. At times, Mr. Parsons acted as the primary care parent. At times, Ms. Parsons acted as primary care parent. The role of primary care parent was often dictated by the demands of work, and in the case of Ms. Parsons, the demands of upgrading her education. Further, while Ms. Parsons was engaged in advocacy, Mr. Parsons cared for the children. As the marriage was breaking down, Ms. Parsons, and her mother, created road blocks to prevent Mr.

Parsons from engaging in the parenting role that he had assumed in the past. This was corrected to some extent with court intervention. [ 58 ] Both parents offered their children their unconditional love and support. Because they are human, at times each made mistakes. I find, however, that both parties are competent, caring, and nurturing parents who are well-equipped to ensure that the primary needs of the children are met. Both parents can, and will ensure that the children are nutritiously fed, well rested, cleaned, and properly clothed. Both will ensure routines are implemented and maintained.

Both will attend to the needs of the children. [ 59 ] Parental Misconduct [ 60 ] I reject the evidence of Ms. Parsons, and her mother, which suggests that Mr. Parsons was in any way abusive, rough, or inappropriate with the children, or with Ms. Parsons. Mr. Parsons is not a violent person, and he has not been violent with the children or Ms. Parsons. He is not abusive. [ 61 ] The affair and suicidal ideation no longer impact upon parenting. The suicide issue was time specific. Further, Mr. Parsons is neither an alcoholic, nor gambler.

A handful of visits to a local bar when a marriage is breaking down does not a gambler, nor alcoholic make. Further, although an extramarital affair betrays the vows of marriage, it is not determinative of the appropriate parenting plan: Gibney v. Conohan , supra. [ 62 ] The only parental misconduct that impacts upon parenting is Ms. Parsons ’ attitude towards Mr. Parsons. This issue has been previously identified and will not be repeated here. It is hoped that with some professional intervention, Ms. Parsons will learn to respect Mr.

Parsons as a parent. [ 63 ] Parent/Child Relationship [ 64 ] Both parties have solid relationships with their children. Both parties are attuned to the emotional needs of the children, although Ms. Parsons must learn to understand the importance of the father child bond. Hopefully improvement will be gleaned through counselling. [ 65 ] Contrary to what has been stated, Ms. Parsons does not have a stronger emotional connection to the children than does Mr. Parsons. No doubt the parental relationships are different, given the parties ’ personality differences, but each connects emotionally to their children.

Nicholas and Allie know that each parent values them as unique and important individuals. Nicholas and Allie know they are loved. Nicholas and Allie find security with both parents. For example, when the family pet died, the children were able to discuss their feelings and questions with both parents. Both parents responded appropriately. [ 66 ] Physical and Financial Environment s [ 67 ] I find that both parties have, and will continue to have clean and appropriate homes for the children. Ms. Parsons ’ home in the Valley appears to meet their needs.

I also am confident that when she returns to Cape Breton, she will be able to secure a home that will likewise meet the needs of the children. [ 68 ] Mr. Parsons lives in a safe and comfortable home in a family neighbourhood in Sydney. It has a large back and front yard. Other children live in the area and the children will likely form friendships with some of them. Mr. Parsons ’ home is close to Mountain View School and the school bus has a drop off on the street to take Allie to her school.

[ 69 ] Both parties are able to provide financially for the children. Although Ms. Parsons earns a higher salary than Mr. Parsons, Mr. Parsons shares expenses with his common law spouse. The evidence further suggests that Mr. Parsons is able to budget properly. The court has no concern about either party meeting the financial needs of the children. [ 70 ] Social, Cultural, and Moral Development [ 71 ] Both parties are equipped to provide and ensure the social, cultural, and moral development of the children. Mr. Parsons recognizes the individual personalities of the children.

He notes that Allie enjoys groups, and would like to get her involved with dodgeball, T-ball, and soccer. He also talked about horseback riding because Allie likes animals. For Nicholas, Mr. Parsons recognizes that Nicholas loves to swim. The piano or Tai Kwon Do are also activities that Nicholas may enjoy. Mr. Parsons recognizes that activities are important and will gauge the activity around the talents and wishes of the children. This is appropriate. [ 72 ] Mr. Parsons will also ensure that Nicholas attends special services to address his unique needs.

He took Nicholas to Unique Kids in the past and will enroll Nicholas again once Nicholas has relocated to the Sydney area. [ 73 ] Likewise, Ms. Parsons is also interested in ensuring that the children become involved in extracurricular activities. Her limitation arises from her inability to drive a motor vehicle. For some inexplicable reason, Ms. Parsons has elected not to get a license, and, therefore, is dependent upon others to drive for her. Hopefully, Ms.

Parsons will soon apply for a license, so she too can transport the children. [ 74 ] Educational Needs [ 75 ] Both parents are committed to the educational needs of their children. Mr. Parsons is at somewhat of a deficit because of his reading struggles, and inability to speak french. Mr. Parsons recognizes these challenges and will seek the assistance of family if the children require. I do not have concerns about the educational needs of either child in the care of either parent.

Both parties understand the importance of an education, and will encourage this commitment with their children. [ 76 ] I also find that both parents will meet the special educational needs of Nicholas. Both parties were properly utilizing story boards, social stories, and other strategies to help Nicholas acquire skills. Mr. Parsons is likely more consistent with routine and rules than Ms. Parsons. Both however, are committed parents. Nicholas and Allie are fortunate to have such parents. [ 77 ] Likewise, both parents act as appropriate role models. They are good workers and caring parents.

They attempt to teach values to their children by word and example. They are not perfect; noone is. They nonetheless will provide the children with a sound foundation from which the children can learn to explore the world and become independent. [ 78 ] Time Availability [ 79 ] Both parents are available to meet the needs of the children. Mr. Parsons tends to work seasonal, and has less time available when he is fishing. Ms. Parsons is employed during the school year. [ 80 ] Willingness To Facilitate Contact [ 81 ] Mr. Parsons is more willing than Ms. Parsons to facilitate maximum contact. Ms.

Parsons attempted to restrict access when she realized that reconciliation was not a possibility, and when she felt that she was losing control. Despite these findings, it is likely that Ms. Parsons will follow the court order. Maximum contact that is in the best interests of the children will therefore be achieved. I am also hopeful that Ms. Parsons will make changes upon the completion of counselling.

[ 82 ] Family Connections [ 83 ] Both parties have family members who have been involved in a secondary way with the children. For the most part, family involvement has been positive, although Ms. Kalberlah has said negative things about Mr. Parsons, and called him vulgar names in the presence of the children. To her credit, Ms. Parsons spoke to her mother and advised that this should not happen again. However, children are not blind to unspoken messages. It is important that Mr. and Ms. Parsons immediately remove the children from the company of extended family members who speak or act derogatorily around the children. [ 84 ]

Summary [ 85 ] Given these findings, I find that a shared parenting arrangement is in the best interests of the children. The parties ’ strengths complement, rather than compete, with each other. If the parties work together, the children will likely become happy, well-adjusted adults. The shared parenting arrangement is in the best interests of the children. [ 86 ] What parenting

schedule is in the best interests of the children? [ 87 ] Given the needs of the children and the abilities of the parents, the following parenting arrangement will be put into place in the best interests of Nicholas and Allie: (

a) Joint Custody - Vanessa Parsons and Gregory Parsons will share joint legal custody of Nicholas Alexander Parson and Alexandria Emm Parsons in a shared parenting regime. (

b) Regular

Schedule - The children will be in the physical care of Mr. Parsons every Saturday at 11:00 a.m. until Tuesday at 11:00 a.m. The children will be in the physical care of Ms. Parsons from 11:00 a.m. every Tuesday until Saturday at 11:00 a.m. (

c) Special Occasions and Holidays - The regular

schedule will be suspended for special occasions and holidays, and the following parenting

schedule will be followed in its stead: (

i) Labour Day Weekend - The children will spend every Labour Day Weekend commencing Friday at 11:00 a.m. until Tuesday at 11:00 a.m. with Ms. Parsons, at which time the parties will revert back to the regular schedule. (ii) Thanksgiving - The children will spend every Thanksgiving weekend with Mr.

Parsons commencing at 11:00 a.m. on Friday and continuing until Tuesday at 11:00 a.m.,at which time the parties will revert back to the regular schedule. (iii) Halloween - The children will spend Halloween with the parent in whose care the children are regularly scheduled to be. (iv) Christmas - Christmas is deemed to cover the period from 2:00 p.m. on December 23rd until 2:00 p.m. on January 3rd. During the odd numbered years, the children will be in care of Ms. Parsons from 2:00 p.m. on December 23rd until 2:00 p.m. on December 25; and from 2:00 p.m. on December 28th until 2:00 on December 31.

During the odd numbered years the children will be in the care of Mr. Parsons from 2:00 p.m. on December 25 until 2:00 p.m. on December 28; and from 2:00 p.m. on December 31 until 2:00 on January 3rd, at which time the parties will revert back to the regular schedule. During the even numbered years the children will be in the care of Mr. Parsons from 2:00 p.m. on December 23rd until 2:00 p.m. on December 25; and from 2:00 p.m. on December 28th until 2:00 p.m. on December 31. During the even numbered years the children will be in the care of Ms.

Parsons from 2:00 p.m. on December 25 until 2:00 p.m. on December 28; and from 2:00 p.m. on December 31 until 2:00 on January 3rd, at which time the parties will revert back to the regular schedule.

(

v) Spring Break - Spring break is deemed to cover a nine day period from 9:00 a.m. on Friday of the last day of school until 9:00 a.m. on Sunday before school recommences. The children will be with Mr. Parsons during the even numbered years. The children will be with Ms. Parsons during the odd numbered years. The parties will revert back to the regular

schedule after the conclusion of the Spring break holiday. (vi) Easter - Easter is deemed to cover the period from after school on Holy Thursday until Easter Monday at 2:00 p.m. The children will be in the care of Ms. Parsons during the even numbered years. The children will be in the care of Mr. Parsons during the Easters of the odd numbered years, at which time the parties will revert back to the regular schedule. (vii) Long May Weekend - The long May weekend is deemed to cover the period from 2:00 p.m. on the Friday before the long May weekend until Monday at 2:00 p.m. The children will be in the care of Mr.

Parsons during the long May weekend of the even numbered years, and with Ms. Parsons during the long May weekend of the odd numbered years. (viii) Summer Vacation - Each party will have the children for two consecutive weeks during the summer school vacation. At all other times, the regular

schedule will be followed. Mr. Parsons will provide Ms. Parsons with notice of the two weeks he intends to take for summer vacation no later than May 1st of each odd numbered year. Ms. Parsons will provide Mr. Parsons with notice of the two weeks she will take by May 15th of each odd numbered year. Ms. Parsons will provide Mr. Parsons with notice of the two weeks she intends to take for summer vacation no later than May 1st of each even numbered year. Mr. Parsons will provide Ms. Parsons with notice of the two weeks he will take by May 15th of each even numbered year. (ix) Mother ’ s Day - The children will spend Mother ’ s Day with Ms. Parsons from 10:00 a.m. until 5:00 p.m. (

d) Ad Hoc Special Family Events - The parties will use their best efforts to accommodate any special family reunion, wedding, or event, which is scheduled at a time when the children are in the care of the other party. Written notice will be provided, well in advance of the scheduled event, to determine if the regular

schedule can be altered to permit the childrens ’ attendance at the special function. The parties will be as flexible as possible in such circumstances, however, no change in the

schedule will occur without the express and written authorization of the party in whose care the children are scheduled to be at the time of the special family function. If accommodation cannot be made, the party refusing must provide the other party with written reasons for the refusal. Make up time will be provided to the party who agrees to rearrange the

schedule as that party requests. (

e) Make Up Parenting Time - On occasion when the children are too sick to be moved between households, make up time will be supplied to the other party at times to be decided by the parent who lost the parenting time with the child or children. The parent who is scheduled to have the child will make the determination whether the child is too sick to be moved. (

f) Travel - Each party will notify the other of travel plans. Notice will include dates of travel, location, address, and telephone numbers where the children can be reached, and any applicable flight details. Both parties will accommodate any requirements for passport documentation to allow the children to vacation with the other parent outside Canada. (

g) Telephone contact - If a party does not have physical contact with the children on a given day, telephone access will be arranged with the other party at 7:00 p.m. unless previously scheduled plans make such contact impossible, in which case another time will be scheduled. (

h) Decision Making Authority - Each party will have routine, day to day decision making authority and control when the children are in his or her physical care, including any child care decisions. Each party will notify the other by email of the following routine decisions made while the children are in his or her care: particulars of minor illnesses, and any medication that has been administered; particulars of homework assignments, projects, and tests; and particulars relating to significant social welfare matters. (

i) Emergency Decisions - In the event of a medical emergency, the party having physical care of the children will be entitled to make decisions which are necessary to alleviate the emergency, and will notify the other party as soon as possible and practical as to the nature of the emergency, and as to the nature of the emergency treatment.

(

j) Educational Matters - Both parties will determine major educational decisions affecting the children, including the choice of school and educational programs. (

k) Meeting, Concerts, and Activities - Both parties are entitled to attend parent teacher meetings, and major school events such as concerts, programs, and activities. In the event tickets are limited to such performances, each parent will have priority for tickets. The use of any additional tickets will be determined by the parent who has residential care of the children on the day the special event occurs. (

l) Parental Contact With School - The parent who is providing the residential care for the children will be responsible for attending at the school should either child become ill. The school will be provided with the

schedule and contact information for each party for such purposes. (

m) Education Assistance - Each party is responsible for assisting with homework and any special needs training related to either child while the children are in his or her residential care. Each parent will cooperate with all professionals to learn strategies, to assist Nicholas with any special learning requirements. (

n) Medical and Dental Treatment, Health Card and Insurance Forms - Both parents will have the Health Card number for each child, and both parents will share particulars, and forms, of any health plan which covers the children. (

o) Family Physician, Dentist, and Other Health Professionals - Both parties will attend all appointments which are made on behalf of the children, if possible, and the party who has scheduled the appointment will provide timely notification to the other parent. (

p) Information Sharing - The parties will keep each other informed of all medical and dental decisions that are made, and any and all treatment in a timely and regular fashion through email communication, or telephone communication. (

q) Extracurricular Activities - Each party may chose and enroll the children in extracurricular activities which occur during their regular scheduled time. The party who has physical care of the children will be responsible for his or her transportation to and from the activity. The cost of any special activity will be born by the party enrolling the child. Each party will keep the other party apprised of any extracurricular activities in which the children are enrolled. (

r) Access to Professional Records and Information - Each party has the right to communicate with all professionals involved with the children ’ s care, and each has the right to obtain information and documentation respecting the children from all medical professionals, educators, and health professionals, and social welfare professionals without the further consent from the other party. (

s) Communication Between the Parties - Matters respecting the health, education, or general welfare of the children will be subject to communication between the parties. All communication will be respectful and child focussed, and will be facilitated by email communication and telephone communication. Each party will speak respectfully of the other, and of his or her extended family, in the presence of the children, or within the hearing distance of the children. Each party will immediately remove the children from the presence of any third party who is speaking disrespectfully of the other, or of his or her extended family. The children will not be used as messengers between the parties. (

t) Therapeutic Interventions - The parties will attend counselling to learn better communication skills for parties who have separated and divorced. The purpose of such counselling is to learn techniques to ensure that the children are not placed in the middle of the parental conflict, and to enhance communication between the parties. In addition, Ms. Parsons will acquire skills to learn to respect and consider the view points of Mr. Parsons. [ 88 ] What is the appropriate maintenance order?

[ 89 ] I have fashioned a shared parenting arrangement. Shared parenting triggers

section 9 of the federal Child Support Guidelines . The parties provided written submissions on this issue. Each party purposes that no child support be payable in all of the circumstances. I agree with their submissions given their unique circumstances, the parties ’ income earning capacity, their conditions, means, and needs, and those of their children, and based upon the factors outlined in s. 9 of the Guidelines. V. Conclusion [ 90 ] The following relief is hereby ordered: (

a) a divorce based upon a marriage break down as evidenced by the parties ’ separation in excess of one year; (

b) a joint custody order without a final decision making designation; (

c) a shared parenting regime that is subject to the schedule, terms, and conditions previously outlined; (

d) a division of matrimonial property such that each party will retain all personal property held in his or her possession; and that each will be solely responsible for the payment of any debt held in his or her name; and that neither party will pay the other an equalization payment; and (

e) an order which eliminates child support given the shared parenting regime; and (

f) the name change application of Ms. Parsons. [ 91 ] The court will prepare and circulate the decision, and the divorce and corollary relief orders. Thank you. Forgeron, J.