P.W. v. M.W., 2021 NSSC 72

SUPREME COURT OF Nova Scotia Citation: P.W. v. M.W. , 2021 NSSC 72 Date: 20210225 Docket: 1207-004796 Registry: Truro Between: P.W. Petitioner v. M.W. Respondent DECISION Restriction on Publication Section 94 (1) of the Children and Family Services Act, S.N.S. 1990, c. 5 states: No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or a relative of the child.

This decision has been redacted to comply with this restriction so that it may be published. Judge: The Honourable Justice Darlene A. Jamieson Heard: September 21 and 22, 2020, in Truro, Nova Scotia Counsel: Tara Smith, for the Petitioner Lloyd Berliner, for the Respondent By the Court: Background [ 1 ] The parties were married on October 18, 2012. They separated in September, 2016. There are two children of the marriage, namely, A.W., born […], 2012 (hereinafter “A.”) and M.W. born […], 2015 (hereinafter “M.”).

M. is on the autism spectrum. [ 2 ] The parties purchased a home in Cumberland County, Nova Scotia, where they resided until their separation. Mr. W. resides in the matrimonial home. Ms. W. remained in the matrimonial home with the children from November 2016 until January 2017. Mr. W. moved into the home in April 2017 after Ms. W. had moved into her parent’s home. [ 3 ] Throughout the marriage Ms. W. was primarily a stay at home mother looking after the parties’ two children.

[ 4 ] When the parties separated in September of 2016, the Department of Community Service (hereinafter “DCS” or the “Agency”) was involved with the family and had been involved since 2014. Their involvement in 2016 was as a result of domestic violence allegations against Mr. W. Both children were taken into care from September 2016 until November 2016 because a direction of DCS that the parents not be present together in front of the children was not followed. In November of 2016 Ms. W. was given interim sole custody and primary care of the children. Mr.

W. had supervised parenting time. [ 5 ] The DCS investigation continued for some time with a Termination Order issued on April 6, 2018 to terminate the disposition orders relating to the children. This was on the consent of Mr. W. to continue with supervised parenting time. Mr. W.’s parenting time with the children was supervised until the Second Interim Order of January 21, 2020 (issued February 4, 2020). [ 6 ] Mr. W.’s parenting time was initially supervised by DCS. After DCS terminated their involvement in February 2018, Mr. W.’s supervised visits took place at the Veith House in Halifax.

When Veith House terminated their involvement, Mr. W. hired the “Nurse Next Door” company to supervise his visits. Mr. W.’s mother, and his new partner, K.R., also acted as supervisors. Mr. W.’s parenting time was supervised until January 2020. At the date of trial he had been exercising unsupervised parenting time for a little over eight months. [ 7 ] Ms. W. filed a Petition for Divorce on December 16, 2019. Mr. W. filed an Answer to the Petition for Divorce on January 28, 2020. [ 8 ] An Interim Order was issued on December 20, 2019, which provided Mr.

W. with reasonable supervised parenting time with A. and M. every Tuesday from 3:00 p.m. until 7:00 p.m., supervised by K.R. who is Mr. W.’s partner. The order also provided for specified parenting time over the 2019 Christmas holiday. [ 9 ] A Second Interim Order dated January 21, 2020, was issued on February 4, 2020 (the “Second Interim Order”), and provided for joint custody of the children, with Ms. W. having final decision-making authority after meaningful consultation with Mr. W. on all issues regarding health, education, and general wellbeing.

This Order was by consent of the parties and on a reservation of rights. It further provided Mr. W. with unsupervised parenting time every second weekend from Friday at 4:00 p.m. until Sunday at 4:00 p.m., and Monday during the alternate week from 3:00 p.m. until 7:00 p.m. All pick-ups and drop-offs were to take place at the Irving Big Stop in Enfield, Nova Scotia. The Second Interim Order also provided that A. was permitted to initiate phone and Facetime contact with either parent while in the other parent’s care. Such contact was to be “driven” by A.’s wishes. The Order also required Mr.

W. to pay monthly Child Support of $536 commencing February 1, 2020. [ 10 ] A Third Interim Order (“Third Interim Order”) was granted on March 3, 2020, whereby both parties agreed all communication would be through the Our Family Wizard App (“OFW”). The Order required both parties to check the OFW app at least once every 24 hours. [ 11 ] The parties followed the parenting arrangement found in the Second Interim Order from January 21, 2020, until March 22, 2020. At that time the parties agreed to a 2/2/3 shared parenting “Covid” schedule. Ms. W. unilaterally terminated the 2/2/3/ Covid

schedule in mid-April, and the parties returned to the parenting plan outlined in the Second Interim Order. [ 12 ] On May 22, 2020, Mr. W. filed a Notice of Motion seeking to reinstate the 2/2/3 Covid schedule. The parties attended a Binding Settlement Conference before Justice Ann Smith on June 23, 2020. The parties agreed to continue the joint custody arrangement, with Mr. W. having parenting time based on a two-week rotating

schedule as follows: Week 1: Monday at 12:00 noon until Tuesday at 4:00 p.m.; and every second weekend from Friday at 12:00 noon until the following Monday at 2:00 p.m. Week 2: Every Wednesday from 12:00 noon until Thursday at 4:00 p.m. [ 13 ] When A. returned to school on September 3, 2020, Mr. W. began having parenting time every second weekend and on the off week on Monday from 3:00 p.m. until 7:00 p.m. [ 14 ] The Hearing into the issues in dispute was held on September 21 and 22, 2020. In addition to the evidence of the parties, the Court heard testimony from Mr. M.D., partner of Ms. W., and Ms. Havshykova, a DCS social worker. Issues 1. What is the appropriate parenting order? (

a) What factors are applied when determining the best interests of the two children? (

b) What parenting plan is in the best interests of the children? 2. What is the appropriate order for child support ? 3. Is retroactive child support owing? If so, in what amounts? 4. What is the appropriate division of assets? (

a) What is the appropriate order in respect of the household contents? (

b) Has Mr. W. proven that the claimed debts, including the Visa debt, line of credit, overdraft and CRA debt, were incurred for family purposes? 5. What is the appropriate spousal support order?

Divorce and Name Change Application [ 15 ] I have determined that there is no possibility of reconciliation between the parties. There was no contest and I am satisfied that all requirements have been met to grant a divorce. I hereby grant the divorce based upon the ground of a permanent breakdown of the marriage as evidenced by the fact that the parties have been separated for a period in excess of one year immediately preceding the determination of the divorce pursuant to s. 8 of the Divorce Act , R.S.C. 1985, c.3 (2nd Supp .), as am.

A Divorce Judgment shall issue. [ 16 ] I further grant the name change application of Ms. W. pursuant to the Change of Name Act , R.S.N.S. 1989, c.66 s. 7 (1) , such that upon the issuance of the certificate of divorce, the surname of the Petitioner shall be changed to her birth name. Custody and Parenting Time Ms. W.’s Position: [ 17 ] Ms. W. is seeking sole custody and primary day-to-day care of M. and A. She submits the appropriate parenting time for Mr. W. is as set out in the June 23, 2020 Interim Order. Ms. W. says that a joint custody arrangement is not in the children’s best interests.

She says she has made numerous attempts to communicate effectively with Mr. W., however communication consistently breaks down. [ 18 ] Ms. W. submits that M. and A. will require ongoing interventions from services providers and there will be numerous important decisions to be made in the future. She says the parties’ communication issues do not allow for a joint custody arrangement. She submits it is in the children’s best interests for her to have sole custody. Mr. W.’s Position: [ 19 ] Mr. W. is seeking joint custody and primary care of the children. Mr. W. submits that Ms.

W. should have parenting time every second weekend from Friday at 4:00 p.m. until Sunday at 4:00 p.m., and one night during the alternate week from 3:00 p.m. until 7:00 p.m. Mr. W. says that he recognizes the parties have had issues communicating after the breakdown of their marriage. He says that he has made consistent efforts to communicate with Ms. W. but has been met with opposition. However, Mr. W. submits that the parties are capable of communicating for the purposes of parenting the children, and maintaining a joint custody arrangement. [ 20 ] Mr.

W. says that since the parties have had joint custody of the children, Ms. W. has failed to abide by the joint custodial provisions that were ordered, first by Justice Hunt, and then agreed upon by the parties at the Binding Settlement Conference with Justice Smith. He says that Ms. W. has not engaged in meaningful consultation with him before making decisions effecting the health, education and general wellbeing of A. and M. He further says the parties have a long history of mistrust and poor communication stemming from Ms. W.’s unsubstantiated allegations to DCS, which ultimately limited Mr.

W.’s time with the children for years. [ 21 ] Mr. W. says in particular the following are examples of Ms. W.’s failure to follow the interim orders, DCS direction, and generally her untruthfulness: • He says she has failed to engage in meaningful consultation before making decisions concerning the children, including as follows: o In relation to education decisions, he says there has been a repeated practice of Ms. W. informing Mr. W. of decisions after they are made.

He points to a failure to engage in conversation about M.’s return to daycare and pre-primary enrollment. o In relation to health care decisions, Mr. W. says there are various incidents of a lack of consultation, including A.’s mental health counselling. He says he learned through counsel at a docket appearance on May 8, 2020, that A. was exhibiting self-harming behaviors while in Ms. W.’s care. He says he was not consulted on this decision, nor was he advised that any appointments were taking place. o Mr.

W. further says that on June 22, 2020, the day before the parties attended the Binding Settlement Conference, Ms. W. advised him that A. had been diagnosed with ADHD the week before. Two days later when Mr. W. had parenting time, A. arrived with ADHD medication that she had been prescribed by a new pediatrician. Mr. W. was able to speak to A.’s family physician, who advised that A. was not diagnosed with ADHD, but that she was taking the medication to see how she reacted. o Mr. W. says Ms. W. has failed to check OFW every 24 hours as required by the Interim Order. For example, Mr.

W. says on May 27 th he asked for the name of A.’s counsellor and still had no response as of June 3, 2020. He says he messaged Ms. W. about a bruise on M.’s head on June 5, 2020, and that as of June 23 rd the message was still not viewed. Mr. W. contacted DCS on Saturday and Sunday to report the bruise. He says, in Exhibit 11, that he was worried about sending the children back to Ms. W.. Mr. W. ultimately decided on Sunday morning to message Ms. W. from their daughter’s iPad. o Mr. W. also points to Ms.

W.’s failure to follow the Interim Order regarding A. being the one to initiate contact with a parent when she is in the other parents care. Mr. W. says Ms. W. contacts A. incessantly while in his care. • Mr. W. says Ms. W. failed to follow the directive of DCS when she attended drop-off s/ pick-ups. • Mr. W. also raised issues with Ms. W.’s truthfulness saying that Ms. W. was not truthful in stating in her affidavit that Mr. W. had not supported them financially. Further, that she failed to note the mortgage debt on the matrimonial home and overvalued the household items in her Statement of Property.

Credibility [ 22 ] The parties’ evidence on various points is contradictory . As the parties have different recall of certain events, the Court is

called upon to assess their credibility. There are many different tools for assessing credibility. I refer to the helpful comments of JusticeForgeron in Gouthro v. Gouthro, 2017 NSSC 246, where she reviewed the law on credibility: 19 When assessing credibility and reliability in the civil context, I must apply the civil standard of proof, which is proof on a balanceof probabilities. The evidence, in its totality, must be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test:C. (R.) v.

McDougall, 2008 SCC 53 (S.C.C.). 20 Guidelines applicable to credibility assessment were canvassed by this court in paras. 18 to 21 of Baker-Warren v. Denault, 2009NSSC 59 (N.S. S.C.), as approved in Hurst v. Gill, 2011 NSCA 100 (N.S. C.A.), which guidelines include the following: • Credibility assessment is not a science. It is not always possible to "articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events:" R. c.Gagnon, 2006 SCC 17 (S.C.C.), para.20. ...

"[A]ssessing credibility is a difficult and delicate matter that does not always lend itself toprecise and complete verbalization:" R. v. M. (R.E.), 2008 SCC 51 (S.C.C.), para. 49. • There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety: Novak Estate, Re,2008 NSSC 283 (N.S. S.C.). On the contrary, a trier may believe none, part or all of a witness's evidence, and may attach differentweight to different parts of a witness's evidence, Novak Estate, Re, supra. • Demeanor is not a good indicator of credibility: R. v.

Norman (1993), (ON CA), 16 O.R. (3d) 295 (Ont. C.A.) atpara. 55. • Questions which should be addressed when assessing credibility include:

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: NovakEstate, Re, supra;

b) Did the witness have an interest in the outcome or were they 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 they 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. Chorny (1951), (BC CA), [1952] 2 D.L.R. 354 (B.C. C.A.);

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? 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 thecontrary, a trier may believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness'sevidence. (See R. v. D.R., [1966] 2 S.C.R. 291 at ¶ 93 and R. v. J.H. supra).

Evidence [23] The parties’ evidence concerning the high conflict events of May 4, 2020 and July 28, 2020 are examples of the conflictingnature of their evidence. May 4, 2020, Incident [24] On May 4, 2020, Ms. W. said she drove to the Big Stop in Enfield to drop off the children and during this interaction Mr. W.implied he was not going to return the children to her. This is only a few weeks after he said in a message to Ms. W. “If you ever have A.phone me again and say she is not allowed to come to see me, I will make sure that you never see those children again.” Ms. W. said shetold A. to get back in the car.

She went to get M. from Mr. W.’s car and, on finding the doors were locked, she called the police. Whileon the phone, Mr. W. put M. back in her car. The situation escalated with Mr. W. also calling police to report that Ms. W. hit him, whichshe denies. Ms. W. reports Mr. W. yelling at police. She said the police told her to take the children home. The police advised Ms. W.they would be reporting the matter to Children and Family Services. [25] Mr. W. said that on May 4th he drove to the Big Stop in Enfield, according to the Covid

schedule of 2/2/3, but Ms. W. did notshow up in the morning. It is noteworthy that on April 14, 2020 Ms. W. had said due to communication issues they would return to theparenting

schedule in the Interim Order so he knew this would be a 3 p.m. pick-up and not a morning pick-up. Mr. W. says when hereturned at 3:00 p.m., he got out of the car to help M. into his car seat when Ms. W. started screaming that he was not going to return thechildren. He said he then took M. out of his car seat to return him to Ms. W.’s vehicle. He said it was at this point that Ms. W. pushedhim into the side of the van. He said his partner also called police. He said Ms. W. was leaving the parking lot before police even spoketo him.

He denied being escalated on May 4, 2020. [26] He said a referral was made to the Agency and he was asked to give up his weekend until they completed the investigation. Hesaid he was advised by the case worker that Ms. W. would no longer attend pick-up / drop-off and it would be done by her father. Mr.

W. said that despite this Ms. W. continued to attend every drop-off for the next three months. Initially Ms. W. sat in the back of the van. After June 23 rd when they started meeting at Masstown, Ms. W. began sitting in the front seat of her father’s car. [ 27 ] Ms. W. said she received a call from a social worker with DCS on May 7, 2020, who indicated a referral had been made by RCMP. Ms. W. said that after Ms. W. answered all questions, she was later told a file would not be opened as she was acting as a protective parent. The social worker advised that she would be calling Mr. W.. [ 28 ] Ms.

W.’s evidence indicates that during a court conference call on May 8, 2020, Mr. W. confirmed he had agreed to cancel his parenting time that weekend. She said he later advised he was no longer in agreement with cancelling parenting time. Ms. W., through her lawyer, advised she would be following the advice of the Agency and cancelling the weekend visit. Later that same day, RCMP showed up at Ms. W.’s home for a wellness check. Mr. W. had called them. [ 29 ] Mr.

W. gave evidence that the reason for calling the RCMP was that at the May 8 th court appearance he learned A. had been self-harming and he called the RCMP for a wellness check. He said this was the first he had heard of self-harming. The RCMP spoke to the children and determined there were no safety concerns. On Mother’s Day, May 10 th , the RCMP attended again and further returned on May 11 th , all at Mr. W.’s request. July 29, 2020, Incident [ 30 ] On July 29, 2020, Ms. W. attended with her father to pick up the children at Masstown. She said Mr. W. became escalated and when her father tried to calm him, Mr.

W. threatened to start a fight with him. She said they left with the children and Mr. W. began following them. Ms. W. indicated being concerned for their safety. She said she called the police who made another referral to Children and Family Services. Ms. W. was contacted by social worker, Ms. Anya Havshykova. She said she was given direction that the parents were not to be together at pick-up / drop-off. She said Ms. Havshykova further indicated that both were to sign an MOU. [ 31 ] Mr. W. said the incident all happened over him indicating a cut on A.’s foot was serious and that Ms.

W. had dismissed his comments and called K.R. a fake nurse. Ms. W. acknowledges calling K.R. a fake nurse. He said Ms. W.’s father told him to shut up when he raised concern about the comment. He said the grandfather physically got between he and A. when he was trying to console his daughter who was upset and crying. He said they did not follow the vehicle but were driving to New Minas to pick up a bike for K.R. Mr. W. denied being escalated or physically threatening Ms. W.’s father. [ 32 ] After this incident Mr. W. said he received a call from Ms.

Havshykova with the Agency who said there was still ongoing conflict and that he needed to reduce the conflict (Trial Exhibit 11, para 126). As a result of the call he understood Ms. W. would no longer attend pick-up / drop-off. He was asked by Ms. Havshykova to sign an MOU. Mr. W. said he has never received the MOU, so has not signed it. He said the only direction he was given was much earlier by Stephanie Williams of the Agency, who said that Ms. W. was no longer to attend pick-up and drop-off, and if escalations didn’t stop after that, then Mr.

W. was going have to get a third party to do the pick-up and drop-off. He described the interaction with Ms. Havshykova by telephone as “great.” Ms. Havshykova ( Social worker, Department of Community Services) [ 33 ] Ms. Havshykova, who is a social worker with DCS, gave evidence. She indicated that she investigated the July 28 th incident involving conflict during the transfer of the children at Masstown Market. She indicated that the Agency has been receiving referrals in relation to the family since 2014.

Her role in the investigation was to interview the parents and children and others who could speak about the overall dynamic. She spoke with Ms. W. and the children. She indicated she spoke with A. alone. She also spoke with the children’s grandfather. She indicated there was a consistent story as between Ms. W., A. and Ms. W.’s father, which was that during the transfer Mr. W. became verbally aggressive. She indicated that Ms. W. did admit to referring to Mr. W.’s partner as a fake nurse. She further said that the concern for them was that Mr. W. got close to the grandfather’s face with his fist.

She said that A. had confirmed this to her. The grandfather indicated he felt he would be punched in the face. She indicated that all of this resulted in A. being upset. She said there was evidence that Mr. W. followed them and when Mr. W.’s car passed their vehicle, they thought he was going to their house. [ 34 ] Ms. Havshykova also spoke with Mr. W. and explained to him why child welfare were calling. Ms. Havshykova indicated her conversation with Mr. W. was not productive. He told her that he was tired of them. She said that during the conversation Mr. W. was very angry.

She asked him to be calm and then it escalated. She said he indicated that he felt she was dominating over him. She said she was unable to engage with him. She stated that Mr. W. use the words “f-you” and “shut up” during the call with her. She said it was like “ a yelling dominating match where I wasn’t able to put any words in.” The conversation ended as he hung up. She said when she tried to explain the basis of a Memorandum of Understanding to Mr. W., he indicated that he did not want to hear about it and that he wouldn’t sign it. He told her not to mail it to him because he would mail it back. Ms.

Havshykova confirmed that she mailed the MOU to Mr. W. [ 35 ] Ms. Havshykova said in her 11 years on the job this conversation was one of the top 10% of angry client calls she has experienced. [ 36 ] She indicated based on her investigation, the July incident was not instigated by Ms. W. She indicated her investigation centred on the risk of physical harm. She indicated that her interactions with Ms. W. have been pleasant and cooperative. There have been three home visits since July where she watched the family interactions. She said she has spoken multiple times with A..

She found the home atmosphere to be very positive and relaxing. She said she definitely didn’t have any concerns. [ 37 ] She said she provided the MOU to both mom and dad by mail. She said even if it is not signed she expects it to be followed. [ 38 ] Ms. Havshykova, when asked on cross-examination whether in May 2020 Ms. W. was directed not to be present at drop-offs, said that was partially correct. She was not to get out of the car, however, her child has special needs. Prior to July of 2020 she said the file was not her file but that she has read the file. She said the worker in May 2020 was Ms. Williams.

She said recommendations like

this (regarding drop-off) usually go both ways. She indicated it was a mutual plan that the parties are not to have contact. The direction was that they have no contact so either both use a third party or one uses a third party. She said both parents have now been given direction by her that the “parents are not to have contact in front of the children.” As to which parent is present at drop-off, she said it is for them or the Court to decide. [ 39 ] Ms. Havshykova said she felt that Mr. W. was very angry with her.

She acknowledged that he asked if she wanted to meet but she did not want “ to have the children exposed to another situation when police are to come for my safety to the home.” Mr. W. [ 40 ] I have significant concerns about Mr. W.’s reliability and credibility for number of reasons. He was strategic in his evidence, evasive and argumentative. Mr. W. refused to accept any role in the communication and conflict issues between the parties, despite being shown highly inappropriate messages he sent. [ 41 ] I have significant difficulty with his evidence around his conduct and aggression with people.

While there was no evidence before me that Mr. W. was charged in relation to allegations by Ms. W. of domestic violence nor any findings by DCS, I have no hesitation in finding that Mr. W. has anger issues, easily escalates situations and responds inappropriately and aggressively to situations and incites conflict. [ 42 ] His evidence conflicted with Ms. Havshykova’s evidence. He said that the call with Ms. Havshykova went great. When it was put to him that it did not go well, he said that the call did not become escalated even though he admitted to hanging up on the second call with her.

He said while being told of a MOU he has not seen it and is not sure what it entails. He denied that Ms. Havshykova discussed an MOU with him, but simply said there was a MOU and that she wanted him to sign it. On cross-examination he denied that Ms. Havshykova gave any direction that he and Ms. W. were not to be present together in front of the children. He said the only direction was previous to July when Ms. Williams of DCS said Ms. W. was no longer to attend pick-ups and drop-offs, and if escalations didn’t stop after that, then he was going to have to get a third party. [ 43 ] As noted above, Ms.

Havshykova described the call with Mr. W. as being in the top 10% of all angry calls she has had in her 11 years with DCS. She said he was very angry, told her to shut up and hung up on her. I accept Ms. Havshykova’s evidence. [ 44 ] Mr. W. maintained that he played no role in the conflicts at drop-off and pick-up. He said that he did not become escalated and did not swear, yell or scream. I do not accept this evidence. In relation to Mr. W. failing to accept any role in the ongoing conflict between the parties, I refer to the following exchange during his cross-examination: Q.

You recognize the conflict between the parents has a significant effect on the children. A. Yes, yes Q. And that them being exposed conflict at drop off and pickup’s is, is not good for the children. A. And momma should know that by not attending. So momma’s attending, she’s the one causing the conflict, so yes. Q. So let’s talk a little bit about what you’ve done though. So, you recognize that that, that the children are being affected by the conflict. A. By the conflict that their mother causes, yes I am… I will agree to that. There’s no conflict on my part. Q.

And, but you, you make no effort to ensure the conflict doesn’t happen. A. The effort was, we came to court and Justice Jeffrey Hunt said that to get the conflict to stop, and all this stuff, that we had a court order, and then CPS stepped in and said that Ms. W. was not to attend any more visits, is that correct. That was in her affidavit… She was breaking court order ready for a conflict, so she wanted conflict because she was not following the court order. So she was anticipating conflict by showing up there she was ready to start conflict. … A.

She was told by Stephanie Williams not to attend pick up and drop offs. Q. But the court order itself didn’t say that A. No, but direction from CPS doesn’t matter? Q. And you spoke with Ms. Williams at that time. A. Yes, and Ms. Williams gave me the direction that she is to have a third party pick up and that was it. That I was not supposed to have a third party or nothing. Q. So you don’t think that you have any responsibility in the ongoing conflict. A. No I do not, no.

If, if momma followed the Court order, then there would have never been a conflict to begin with it would have been a great drop-off, like there has every time that its just me and [K.] and [K.R.]. There’s no conflict… [ 45 ] Despite Veith House clearly indicating in a letter that they terminated services due to “ongoing conflict on the phone, through email, and in-person between Mr. [M.W.] and Veith House staff…,” Mr. W. blamed the termination of service on him having caught Veith House staff in a lie and on Ms. W.’s actions.

[ 46 ] Mr. W. then hired a company called Nurse Next Door to supervise access at a library. He says Ms. W. did not show up at the three scheduled visits. Ms. W. says she attended the library for the first visit but no one was there. [ 47 ] Mr. W.’s mother was later supervising access, but due to an altercation with Mr. W. she refused to continue (Trial Exhibit 1, para. 32). Mr. W. in his affidavit filed May 11, 2020 (Trial Exhibit 8) states: 35. I am unaware of what “altercation” happened with my mother and I on September 24, 2019.

I was supposed to take A. to swimming lessons until I received a phone call and text message from [P.W.] and my mother. One telling me not to come anymore, one telling me to go pick up A.. 36. After that I opened a file with the Supreme Court of Nova Scotia Exhibit I. Mr. W.’s Behaviour with Healthcare Professionals [ 48 ] Ms. W. gave evidence that on January 15, 2020, Mr. W. contacted their son’s speech pathologist and became verbally hostile toward her.

This resulted in the speech pathologist’s office implementing a safety plan and M. had to attend his first few sessions at the office rather than in their home, as planned. [ 49 ] On July 27, 2020, A. had an appointment with her pediatrician Dr. Szudek. Mr. W. also attended. Ms. W. said that as a result of Mr. W.’s actions, Dr. Szudek has advised that Mr. and Ms. W. cannot attend together in the future. One parent must attend by telephone. Ms. W. said that Mr. W. was angry and spoke over both she and Dr. Szudek. Mr.

W. denies being escalated at that meeting or being asked to leave the office or storming out. [ 50 ] Ms. W. further noted an incident where A. described her father yelling at walk in health clinic staff. [ 51 ] Mr. W. says in his affidavit (Exhibit 8) the following: 71. My behaviour is “passion.” I only get passionate when people stand in the way of our children’s health, well-being and happiness, when court orders are not followed and our children suffer. 72. I contacted M.’s speech pathologist to gather health information.

I was then told there was a legal document that doesn’t allow me access. [P.W.] told me that when I was called by them, it was a “mistake” a “ new guy” made. 73-74. I did not scream at the walk in staff. I told them I called them, they told me to come right in with our sick little girl then to be told we had an hour and a half wait. … 81. My “behaviour” will never affect either of my children. I need to be involved in M.’s care. We need to be informed and involved of every aspect and decision, especially M. being autistic and needing consistency. [ 52 ] I accept that there were verbal altercations between Mr.

W. and medical professionals/offices including the office of the speech pathologist and also Dr. Szudek. This conduct has the potential to impact the healthcare services needed by the children. [ 53 ] When presented with inappropriate messages he sent to Ms. W. he acknowledged that “..sometimes she pushes my buttons.” He further said that “on a few occasions” he has responded inappropriately. The following question-and-answer occurred during Mr. Walsh’s cross-examination: Q. You know communication is an issue between the two of you. A. That’s her.

Not on my end, on her end. [ 54 ] When referred to comments he made about Ms. W.’s recently deceased mother he indicated “I had no idea.” The following question was put to Mr. W.: Q. The majority of this correspondence is insulting to Ms. W. and you attack her for various reasons. A. I was stating the obvious. [ 55 ] An exchange of messages in February of 2020 illustrates the inappropriate manner in which Mr. W. has corresponded with Ms. W.. Exhibit D to the March affidavit (Trial Exhibit 1) of Ms. W. contains an exchange of e-mails with Mr. W.. On February 16 th Mr.

W. says “Thank you so much for having us blocked. A. wanted to call you and she can’t. Great work”. Ms. W. responded on February 16 th with “She can call on her Ipad or on [K.R.’s] phone.” Then on February 18 th Mr.

W. sent the following e-mail titled “You’re an idiot.” The message says: Hello [P.W.] you’re a an idiot I know for a fact that even never said any of that and I know for a fact that even tried to call you every night I know this for a fact I also know for a fact that A. texted you back whenever she wanted to A. had her Ipad all weekend so you’re lying right now I know you’re lying and yes A. can call or text me whenever she want that’s what it says in the court order so and I never said that she supposed to text or call when it all the time I said whenever she has the time or she feels like she needs to you can tell your fucking idiot lawyer to send a fucking letter cause I don’t fucking care what the letter says you are a fucking bitch you have ruined A. you’re a fucking liar you’re a fuck Fucking idiot for making up all these lies I know this for a fact I know this for a fact you’re making this up and making A. say it just like you make A. say everything A. had a great time at the party even never said anything about address I never said anything to A. about

address do you know why I never said anything to her about address because I fucking record conversations you fucking bitch. [ 56 ] Things changed for a short time during the first wave of the pandemic. On March 22, 2020, Ms. W. offered for Mr. W. to have parenting time with the children Monday to Wednesday and Friday to Sunday and then they would switch. She said “and you can continue seeing the kids more since no one knows when school goes back in as long as you’re still ok with that.” [ 57 ] On March 24, 2020, at 8:22 Mr. W. again sent an insulting message to Ms.

W. that included the words “It’s not my fault you can’t keep your legs closed. That you have a kid with every person you go out with. Third time is the charm is it? lol.” It is purely a personal attack on Ms. W.. He seems to have been responding to something he believed Ms. W. had said, regardless the message is problematic and further illustrates how Mr. W. communicates with Ms. W.. (Exhibit B to affidavit of Ms. W. (Trial Exhibit 2)). Despite this message, the parties were able to work together until approximately mid-April. A further series of messages from Mr.

W. on April 14, 2020 highlight the unacceptable and unfortunate manner in which he addresses Ms. W.. Ultimately Ms. W. responds “ Since you can’t communicate properly, we are sticking with court ordered parenting times. You are insulting my mother who passed away not even a year ago. Could you be any more abusive or mean? Pretty low, even for you….” [ 58 ] Communication was to be child focused and not as a vehicle for Mr. W. to berate and insult Ms. W.. There are other inappropriate messages/e-mails. Ms. W. continues to ask that he stop sending messages that are unproductive, mean and outright abusive. Mr.

W. responds with things like, April 15, 2020 (Exhibit B of Ms. W.’s affidavit): A. lies because of you and you’re a terrible influence on her…Your lawyer is like you, she can’t even send out the order from the lady (sic) emergency hearing. You can’t even pay me for this app. That’s how great your lawyer is. Pays attention like you. … To make it easier please don’t ever speak to me again. Thank you. [ 59 ] On April 26, 2020, when Ms. W. picked up A., the child is reported to have said “Mommy, Daddy told me to tell you that you’re a fucking bitch.” Ms.

W. indicated in her affidavit (Trial Exhibit 2) this resulted in Mr. W. yelling and calling their daughter a liar. A. is also reported to have told something similar to the psychologist she saw as the report dated May 28, 2020, says: A. was eager to share about a recent visit she had with her father where there was a disagreement and the police were contacted. A. shared that she felt worried that the police were going to hurt her dad and, asked permission from her mother before sharing feelings of being heartbroken when her father called her mother a “fucking idiot”… [ 60 ] Ms.

W. had arranged for A. to see this psychologist due to an increase in anger and aggression. Ms. W. relayed having received e-mails from school involving concerns about aggression and indicated this was especially so after visits with her father. [ 61 ] On cross-examination Mr. W. refused to admit that the children, aged 8 and 5, love their mother. Q. Okay, Ms. W. loves her children. A. I’m not denying that one bit. Of course she does. Q. Okay, and the children love her. A. I’m not sure. [ 62 ] Clearly Mr. W. does not believe this. In Trial Exhibit 11, Tab N, Mr.

W. says in a message of June 30 th : Thank you for communicating so thoroughly through her and especially during pick ups and drop offs…. A. thinks the world of you, she talks very highly of you, and loves telling / sharing with us her very funny family stories. Ms. W. [ 63 ] There were also a number of issues with Ms. W.’s evidence. However, during cross-examination when she was presented with discrepancies in her affidavits she readily acknowledged the errors. She made concessions where appropriate.

For example, at para. 41 of her affidavit (Trial Exhibit 3) she says: “When the children were returned, I rebuilt our lives from scratch. Mr. W. provided no financial support.” Ms. W. in her March 2 nd affidavit (Trial exhibit 1) states: “ Prior to January 2020, Mr. W. had not paid any child support and I financially support the children myself.” However, during cross-examination, she acknowledged that between September 2016 and January of 2018, Mr. W. e-transferred funds to her and paid her car payment. She acknowledged receiving approximately $19,500 from Mr. W. between September 2016 and January 2018.

There is no evidence before the Court that Mr. W. paid any amounts to Ms. W. for child support between January 2018 and the Second Interim Order of January 21, 2020, when Mr. W. began paying $536 per month, with the first payment beginning February 1, 2020. [ 64 ] When presented in cross-examination with Trial Exhibit 15, a prior version of her Statement of Property, Ms. W. acknowledged that the first Statement of Property did not list household items. She further acknowledged that the amended Statement of Property didn’t list the mortgage on the home.

In arriving at the value she placed on the household contents, she acknowledged she had no documents substantiating the value as Mr. W. maintained all documentation. When receipts were put to Ms. W. indicating the difference between the actual receipts and her estimated values she indicated that her numbers were an estimate as she knew they would get figured out in court. She acknowledged that she had grossly overstated the values and was prepared to accept Mr. W.’s numbers other than for the Mac computer. [ 65 ] With regard to Mr. W.’s allegations that Ms. W. failed to follow the interim orders, Ms.

W. fully acknowledged the importance of complying with court orders. She also indicated she recognized the need to follow Department of Community Service

recommendations. However, she acknowledged on cross-examination not always doing so. [ 66 ] Ms. W. admitted that in the beginning (after the March 3, 2020, agreement (June 10, 2020, Order) to check OFW every 24 hours), she didn’t always do so. She said this was because she didn’t realize Mr. W. was going to be so mean. She indicated that she had tried to use the OFW application but Mr. W. was very aggressive. She said she would sometimes get ten messages a day from Mr. W.. She indicated that she was suffering from PTSD and anxiety.

She acknowledged she did not check OFW for several months until she got her anxiety in order. She agreed this was not in compliance with the Court Order that required her to check it every 24 hours. Ms. W. indicated that she did not seek to have the Order amended as she was waiting for this court date. [ 67 ] During cross-examination, when it was put to Ms. W. that it was clear she had not always kept Mr.

W. informed on matters concerning the children, she indicated she tried her best but acknowledged that she had not kept him informed on all issues in advance, for example she acknowledged that she did not tell Mr. W. in advance of A. seeing a counsellor. While Ms. W. acknowledged that in relation to several specific issues that there could have been earlier dialogue concerning things like M.’s return to daycare, she indicated she kept Mr. W. in the loop about everything going on in the children’s lives. She explained that it was extremely hard to communicate with him. She said that Mr.

W. was constantly calling the courts, calling for emergency hearings and was very angry. She said that Mr. W. gets upset over everything. She indicated she had complied with court orders to the best of her ability. [ 68 ] Ms. W. agreed that she contacted A. directly while in Mr. W.’s care. It was pointed out to Ms. W. in her cross-examination that the court order states “this contact is to be driven by A.’s wishes.” Ms. W. replied that her understanding had been that it was only contact with Mr. W. that was to be driven by A.’s wish and not contact with her. When the order was referred to her Ms.

W. readily agreed she had been non-compliant. She stated she did not realize that she was not supposed to call A. when she was with Mr. W.. She added that it was always up to her daughter whether she wished to message her father. [ 69 ] Mr. W. says Ms. W. failed to follow the directive of DCS when she attended drop-off / pick-ups. However, Ms. Havshykova indicated DCS recommendations were typically given to the family not just one person. Ms. W. in her evidence, indicated that in discussions with Ms. Williams, a DCS worker, she gave her the option of not going. It was decided that Ms.

W. would not attend pick- ups and drop-offs. She explained that because her son, M., who has autism, did not want to go in the vehicle for drop-off without her in the vehicle with him, she had followed up with Ms. Williams who indicated it was okay for her to stay in the van and not communicate. She acknowledged that she relayed to Mr. W. that she would not be attending drop-offs because she wanted him to understand that she would not be there which she hoped would avoid confrontation. When asked why she did not advise Mr.

W. when there was a change and that she would be present, she indicated he would have lost it and he would have called DCS and the police. She noted she stayed in the far back of the van so that he would not know she was there, but her son M. would know. She fully acknowledged it was a recommendation of DCS for Mr. and Ms. W. not to be present together at drop-offs. [ 70 ] I accept that it was a direction given to both parents that they were not to be present together for transfers. I further accept that despite this, it was Ms.

W. who took steps to accommodate the direction and also to try to make it work in light of the special needs of M.. [ 71 ] Once the drop-off moved to the Masstown location they switched to use of her father’s vehicle, which was a car, because of the cost of gas. She continued to attend the drop-offs until the incident on July 28, 2020. After that incident her father began attending drop-offs alone. [ 72 ] While there is no excuse for non-compliance with court orders, the evidence indicates that the chronic conflict, largely caused by Mr. W., created considerable anxiety for Ms. W..

She said that in these circumstances she did her best to comply with the orders in place. There is no question that there was some non-compliance however, in the circumstances of Mr. W.’s conduct, failure to respond to the type of messages he sent does warrant some level of understanding. The OFW app is for communication in relation to the wellbeing of the children. It is not a tool for Mr. W. to insult and berate Ms. W. In addition, the actions of Mr. W. in dealing with medical professionals assist the Court in understanding Ms. W. wishing to access medical care for her children without Mr.

W. creating difficulties. Ms. W. gave evidence that while she may not have consulted with Mr. W. in advance of every medical appointment, she did keep him informed as to the children’s ongoing medical care and treatment. I am satisfied this is so. [ 73 ] The fact that the Court recognizes the difficult position in which Ms. W. found herself, does not excuse her non-compliance. She was represented by counsel at the time and could have addressed the issues with counsel. In short, the Court’s understanding of the circumstances should not be taken as an endorsement of Ms. W.’s conduct.

Failure to follow Court Orders can have grave consequences, including impact on parenting time. It must not be repeated. [ 74 ] I accept the evidence of Ms. W. where it conflicts with the evidence of Mr. W. Her evidence is in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions: Faryna v. Chorny , supra . Her evidence had an internal consistency and logical flow. Mr. W.'s evidence did not. When she made an error in her affidavit, she readily acknowledged it. She was not hesitant or strategic. Analysis [ 75 ] Ms.

W. is seeking sole custody and primary day-to-day care of M. and A.. She further proposes that Mr. W. have unsupervised parenting time every second weekend and every second Monday from 3:00 p.m. to 7:00 p.m., with additional time during summer months. [ 76 ] Mr. W. is seeking joint custody and primary care of the children. He further says Ms.

W. should have parenting time every second weekend from Friday at 4:00 p.m. until Sunday at 4:00 p.m., and one night during the alternate week from 3:00 p.m. until 7:00 p.m. [ 77 ] Section 16(8) of the Divorce Act, RSC 1985 c3 (2 nd Supp ), the (“ Divorce Act ” ) directs that the best interests of the child are the paramount consideration in all matters involving custody and parenting. Parental preferences play no role. Each case turns on its own

unique circumstances. 16.

(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respectingthe custody of or the access to, or the custody of and access to, any or all children of the marriage. . . .

(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to begiven information, as to the health, education and welfare of the child.

(6) The court may ... impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. 16(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. [78] Section 16(9) indicates I can only consider past conduct to the extent that it impacts parenting ability: Past conduct 16

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conductis relevant to the ability of that person to act as a parent of a child. [79] When considering the best interests of the children, I must consider the Principle of Maximum contact in s. 16(10) of theDivorce Act. The NSCA in Doncaster v.

Field, 2019 NSCA 61, said the maximum contact principle is a significant consideration as it isthe only specific factor which Parliament has seen fit to single out as being something which a judge must consider when determining thebest interests of a child.

Section 16(10) states: Maximum contact 16(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as muchcontact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration thewillingness of the person for whom custody is sought to facilitate such contact. [80] There is no dispute between the parties as to the factors for consideration when analyzing what would be in the best interests ofthe children. In Foley v.

Foley, (1993), (NS SC), 124 NSR (2d) 198, Justice Goodfellow identifies a number of factorswhich must be considered when analysing what would be in the best interests of a child: 1. statutory direction, i.e. ss. 16(8), 16(9), 17(5) and 17(6) of the Divorce Act; 2. the physical environment; 3. matters of discipline; 4. role models for the children; 5. the wishes of the children (the weight to be attached is to be determined in the context of answering the question with whom wouldthe best interests and welfare of the child be most likely achieved - that question requires the weighing of all the relevant factors and ananalysis of the circumstances in which there may have been some indication or, expression by the child of a preference); 6. religious and spiritual guidance; 7. assistance of experts, such as social workers, psychologists, etc. 8. time availability of a parent for a child; 9. the cultural development of a child; 10. the physical and character development of the child; 11. the emotional support to assist in a child developing self esteem and confidence; 12. the financial contribution to the welfare of a child; 13. the support of an extended family; 14. the willingness of a parent to facilitate contact with the other parent re: ss. 16(10) and 17(9); 15. the interim and long range plan for the welfare of the children; 16. the financial consequences of custody; and 17. any other relevant factors. [81] As indicated above, both parties point to incidents they say illustrate the other is unwilling to effectively communicate with the

other. However, Mr. W. says the parties are capable of communicating for the purposes of joint custody and parenting the children. [82] Ms. W. says the parties’ communication issues do not allow for a joint custody arrangement and that she should have solecustody. She says the lack of communication has begun to affect the treatment the children are receiving from treatment providers andrefers to the verbal altercation with M.’s speech pathologist as an example. She says that Mr.

W. is never satisfied with the medicalinformation that she provides to him. [83] I will begin with a consideration of whether joint custody is appropriate. Conflict between parents does not necessarily meanthat joint custody is inappropriate. However, joint custody requires communication and cooperation – it is essential. Joint custodyrequires that the parents can make decisions together and co-parent despite their conflict. It is unusual to order joint custody when theparties disrespect or mistrust one another and there is no reasonable expectation the situation will improve.

Forgeron, J. stated in Mo v.Ma, 2012 NSSC 159, at para. 96, that: Joint custody is usually not appropriate where parental relationships are rift with mistrust, disrespect, and poor communication, andwhere there is little hope that the situation will change: Roy v. Roy, (ON CA), 2006 CarswellOnt 2898, (C.A.). Thislack of effective communication, however, must be balanced against the realistic expectation, based upon the evidence, thatcommunication between the parties will improve once the litigation has concluded.

If there is a reasonable expectation thatcommunication will improve despite the differences, then joint custody may be ordered: Godfrey-Smith v. Godfrey- Smith (1997), (NS SC), 165 N.S.R. (2d) 245 (S.C.). [84] In Godfrey-Smith v.

Godfrey-Smith, (1997), (NS SC), 165 N.S.R. (2d) 245 (S.C.), the Court distinguishedbetween the parties’ inability to communicate and their unwillingness to communicate, at para. 20: 20 It seems to me that when facing a contested application for joint custody a court should make a distinction between the parties'inability to communicate as opposed to the parties' unwillingness to communicate.

To do so it will be necessary to explore theirrelationship both pre- and post-separation with a view to determining how they have historically handled parenting issues. [85] Unfortunately an analysis of the nature and extent of the conflict and communication issues between these parents leads me toconclude that joint custody is not in the best interests of these children. Having regard to the statutory direction provided in the DivorceAct, and the factors outlined in Foley v. Foley, I find that sole custody and primary care should be with Ms. W., with parenting time toMr.

W. for the reasons set out below. [86] First of all, I am confident that M. and A. love both parents and enjoy time spent with each parent. There is no question Mr. W.loves his children and wants to maximize his time with them. The children have a strong relationship with his partner, K.R.. [87] Both parties are supportive of A.’s extra curricular activities and I believe this will also be so for M. as he starts to participate insuch activities. [88] In relation to the wishes of the children: no evidence was led with regard to this factor.

The children are young. [89] The parties live approximately 1½ hours by car from each other. This is complicating, given the ages of the children. [90] There is no concern regarding either parties’ physical homes. The children appear to be comfortable in both homes. [91] Both parties are available for the children as neither work outside the home. [92] The children require ongoing intervention as M. is on the autism spectrum and A. is being assessed for ADHD and has beeninvolved with counselling. M. was diagnosed with autism in July 2019. He is non-verbal and requires a high amount of care.

He has beenattending Early Intervention, seeing a speech pathologist and an early intervention therapist. He was recently accepted into the EarlyIntervention Behavioural Therapy program after having been waitlisted for several years. All of these services have been set up by Ms.W. and are in the Enfield or Truro areas. A. has attended […] school for the past several years and teachers and support staff know her. [93] Ms.

W. has a proven history of providing the stability, routine and care that the children need to develop to their true potential.The children have been in her primary care since the parties separated. I am satisfied that the mother has made decisions in the past thatwere in the children's best interests. She has, until recently, solely addressed their educational and medical needs. For example, throughMs. W.’s insight into M., she identified at a very early age difficulties he was having, resulting in him being referred, at age two,regarding possible autism. [94] Ms.

W. has the support of her extended family, as is evident in the role her father plays, including at drop-off and pick-uppoints. The evidence also indicated Ms. W. has ensured the children have a relationship with Mr. W.’s mother and extended family. It isunclear from the evidence what Mr. W.’s relationship is with his extended family. There was reference to an altercation with his motherand e-mail comments by Mr. W. about his parents where he stated that he does not talk to his parents. [95] As stated above, I do not accept Mr. W.'s allegations that Ms.

W. is solely responsible for communication and cooperationproblems. I recognize Mr. W. wishes more parenting time. However, his attitude and behaviours have been difficult. He lacks insight. He attempted to paint Ms. W. as the cause of all of the issues. The evidence illustrates otherwise. He took absolutely no blame for any ofthe communication issues and failed to acknowledge his escalation of situations. Mr. W.’s denials prevent him from employing healthyproblem-solving with Ms. W. when issues arise. Mr.

W.'s denials prevent him from recognizing the need for problem-solving techniquesto effectively manage his frustration and upset. Ms. W. is not blameless in the conflict, as is evident in her calling Mr. W.’s partner afake nurse at the drop-off (July 28, 2020, incident). [96] The conflict between the parties is chronic and I see no immediate prospect for improvement. They cannot have face-to-facecontact. DCS and police are regularly involved and it is the children who are impacted by these actions.

The parental cooperationnecessary for a successful joint custody arrangement has been completely eroded, if it ever existed in the first place. There is a lack of

cooperation and worsening conflict between the parties. The evidence illustrate that the parties cannot maintain a basic level of cooperation and civil communication. [ 97 ] They have not demonstrated the ability to cooperate or communicate on parenting issues in a respectful and understanding manner. There have been very brief periods of civil communication, but they are short-lived. The parties are not able to work together or communicate effectively. [ 98 ] Mr. W. views Ms. W. in an extremely negative light. He is hypercritical of her. Mr. W.’s underlying resentment of Ms. W. permeates his dealings with her.

He does not trust her and believes she lies constantly. Mr. W. stated in cross-examination that whatever information Ms. W. provides is not correct in his opinion. He confirmed that he does not believe any information Ms. W. provides, stating “no because once you catch somebody, once you’re a liar, you’re always a liar. So now once I catch her in a lie how am I supposed to be able to believe it, it’s hard it’s hard to believe it.” The following exchange occurred during his cross-examination: Q. So you’re, you would prefer to be able to just contact the third party service providers yourself? A. I do that now.

That was written in the court order Ms. Smith. I do that now. Q. So regardless of what Ms. W. tells you, you don’t believe the information she provides. A. No because she’s always lied to me. So I called the third party provider and then I get totally different information from them. Like she said in her affidavit that they only provide services in home, that they don’t go anywhere else, while I know that’s a lie because Melanie’s coming to our house. Melanie’s coming to pars Borough to watch M. play with us outside. That’s not at Patricia’s house.

So I knew that was a lie, as soon as Melanie told me that, and I showed Melanie that she said that I could not have any part of this and Melanie’s like “why not.” [ 99 ] Mr. W. allows his conflict with Ms. W. to affect his judgement. As noted above, Mr. W. when questioned about his calling the police for wellness checks on three occasions (May 8, 10 and 11, 2020), indicated that he does not have any concern with the police showing up multiple times and questioning his children. These visits which were orchestrated by Mr.

W. after he was denied parenting time, illustrate that he is more concerned with how situations impact him than the effect of three RCMP visits on his children. On each of the three occasions the children were faced with answering questions posed by police. [ 100 ] Any concern about A. self-harming was alleviated by the first RCMP visit. There was no need for two additional visits within days. When questioned about this Mr. W. indicated Ms. W. had not responded to him and his concern continued: Q.

Okay, were you concerned at all the impact this would have, on Mother’s Day, to have the police show up… A: No… it’s Mother’s Day, its no concern. You don’t make one day special, it should be Mother’s Day everyday. Q: I’m gonna suggest you called the police that day to cause anxiety and anguish to Ms. W.. A: That’s your suggestion, do you have any proof of that? Q: Would you agree with that? A: No I would not. I called because I was worried about my daughter. Q: And you don’t see any concern with the police showing up multiple times at the home. A: No I do not see any concerns with that.

After I was told in court, by you Ms. Smith, that my daughter was self harming I became concerned as a parent, and then when mother does not return or reply back to my Our Family Wizard messages, which is court ordered as well… [ 101 ] The children have been witness to ongoing hostility between their parents. They can't have missed it. Both were present during both the May and July incidents. Seeing aggressive conduct as was seen by the children at both the May and July incidents is never in a child’s best interests. ( Desrosiers v. Pastuck , 2016 NSSC 308 ). [ 102 ] The evidence illustrates that Mr.

W. and / or his partner have posted information about Ms. W. and the children on social media. In particular, in relation to the May 4, 2020, incident at the Big Stop, which names the children. This clearly is not in the children’s best interests. [ 103 ] Despite M. being autistic, nonverbal and requiring a great deal of care, Mr. W. indicated on cross-examination that it would “absolutely not” be a huge change for M. to relocate to another location (being Mr. W.’s home as he is seeking primary care).

He further stated that it would not be a significant impact on M.’s day-to-day life, even though he has resided with his mother since the children were returned from care in November 2016. This defies logic given his son’s difficulties and the need for consistency in his life. Mr. W. himself gave evidence that consistency is important for his son. [ 104 ] A change in primary care, as requested by Mr. W., would be a significant change in the children's lives and what has been their day-to-day routine for a long time. It would be a major adjustment for M. who has autism.

A change in primary care in favor of the father, is not in the children's best interest having regard to all the children's needs and the circumstances . [ 105 ] Supporting the relationship between the children and the other parent is an important factor to consider. A parent’s ability and willingness to do so is an indication of their ability to give priority to the best interests of the children. [ 106 ] I have concern that if Mr. W. had primary care of the children he would not encourage time with Ms. W. He said in cross- examination that he does not believe that Ms. W. can provide care for the children.

In addition, I accept that the children have been

subjected to their father making derogatory comments about their mother. Mr. W. has used profanity to describe Ms. W. in front of his children. I believe they are at further risk of being exposed to negative comments about their mother. [ 107 ] I believe Ms. W. will continue to foster a relationship between the children and their father. She has done so for much of the time since the separation. I am comfortable that she will not use her authority to control the quality of Mr. W. and his children's relationship. She has consistently consented to orders expanding access for Mr.

W., including consenting to a joint custody arrangement despite issues with communication, and during the first wave of the pandemic suggested a 2/2/3 parenting schedule. Despite the difficulty communicating with Mr. W., largely created by Mr. W., she has ensured the children see their father. She readily recognized the children love their father and that he loves them.

She has no concerns for the children’s safety with their father. [ 108 ] The interim joint custody regime agreed to by the parties has proven not to be in the best interests of the children due to chronic conflict and there is currently no prospect of improvement. I do not believe the parties can cooperate in order to have meaningful discussion about the educational and healthcare needs of the children. Their needs are significant and, especially M., will have a high degree of ongoing intervention. Given the chronic conflict, sole custody for Ms.

W. in these exceptional circumstances is necessary and in the best interests of these children. [ 109 ] As primary care giver, Ms. W. has a history of making appropriate decisions for children. I find that she is better positioned to make decisions in the best interests of the children. I will not require her to consult with the father before making important decisions, given the level of conflict. I am comfortable that Ms. W. will not abuse the authority entrusted to her. She has provided the children with stability and ensured that their physical, emotional, social and educational needs were met.

She is attentive and interested. They are doing well in her primary care. [ 110 ] Ms. W. has two other children. Her youngest child is an infant and lives with her and her partner. She also has an older child who visits regularly. It is important the siblings are able to spend time together. The children and their half-siblings should continue to share their childhoods and be able to support one another. [ 111 ] While Ms. W. does not have any concerns about Mr. W. harming the children and none were expressed by DCS, his angry outbursts towards her and others is concerning and has been seen by the children.

This must stop. I have concerns about Mr. W.’s conduct, actions, behaviour and attitude, and the impact on the children. Ms. W. spoke of negative outcomes for the children (exhibiting increased outbursts and M.’s speech regressing) after spending longer periods of time with Mr. W. during the Covid lockdown (2/2/3 schedule).

It is recommended that the father engage with a therapist to gain skills to manage anger and frustrations in a healthy fashion and to gain skills to communicate effectively with the mother and with professionals in a nonconflictual and respectful manner. [ 112 ] As stated above, I find it to be in the best interests of the children to be in the sole custody and care of their mother. Mr. W. will have liberal parenting time. I have set out below the parenting

schedule that I am satisfied is in the best interests of the children, taking into consideration the children’s physical, emotional, educational, health and social welfare needs. I am further satisfied that the parenting

schedule complies with the principle of maximum contact. The Court should promote and foster as much contact as possible between Mr. W. and his children that is in the children's best interest. In arriving at a parenting plan that I believe is in each child’s best interest, I have taken into account the importance of the children spending time with Mr. W. on a weekly basis. [ 113 ] Parenting time for Mr. W. will be as follows (which is the same as set out in the interim order issued July 27, 2020): During the school year: ▪ Week 1: Friday from 4pm until Sunday at 4pm ▪ Week 2: Monday from 3pm until 7pm ▪ As this is the

schedule in place currently it will continue on the anticipated set weeks. During the summer months (summer school break): ▪ Week 1: Monday at 12:00 noon until Tuesday at 4:00 pm, and ▪ Every second weekend from Friday at 12:00 noon until the following Monday at 2:00 pm ▪ Week 2 - Wednesday from 12 noon until Thursday at 4pm [ 114 ] The order shall also include a provision stating “any other additional parenting time as agreed to in writing between the parties.” [ 115 ] Annually, each parent may spend one uninterrupted week with the children each summer.

This week will not impede any health- related services being provided to the children. In odd-numbered years, the father will have first choice of dates with the children during the summer. In even-numbered years, the mother will have first choice. The parent with first choice must provide the other with notice of the week he or she will spend with the children prior to April 30 th . The other parent will provide notice of her or his selected dates by May 14 th . During summer block access, the regular access

schedule will be suspended. [ 116 ] The only other period when the regular parenting

schedule will be suspended is from December 23 at noon until December 27 at noon, each year. In 2021, the children will be with their father from December 23 at noon until December 25 at noon, and with their mother from noon on December 25 until December 27 at noon. This will be the pattern for Christmas in odd-numbered years. The reverse will be the pattern for even-numbered years. [ 117 ] A. (and M. when this becomes possible) can initiate contact (phone / Facetime / other electronic contact) with either parent while in the care of the other parent. This contact will be driven by the children’s wishes.

[ 118 ] Transfers (drop-offs / pick-ups) will continue to take place at Masstown unless otherwise agreed in writing by the parties. The parties will not attend the transfers at the same time. Each will arrange for third parties to do the transfers as follows: in week one Ms. W. will arrange for a third party to attend the transfers and in week two Mr. W. will arrange for a third party to attend the transfers. [ 119 ] I confirm that Mr.

W. is entitled to make inquiries and obtain information relating to the children from the children's care-givers, teachers, health-care providers and others involved with the children, such as coaches: subsection 16(5) of the Divorce Act , R.S.C. 1985 (2nd Supp.), c. 3. This order for third party information will be separate from the Corollary Relief Order so the parties may provide it to the information-holders without disclosing unnecessary information to them. [ 120 ] Mr.

W. is to have the authority to consult with all third party service providers so that he may be informed about their recommendations and understand the reasons for their recommendations. If these recommendations require a parent to follow a course of action when parenting a child, then Mr. W. shall comply with the recommendations when that child is in his care. [ 121 ] In order for Mr. W. to know who to contact with inquiries about the children, Ms.

W. will annually provide him with a list of the names, addresses, phone numbers and email addresses, where available, for the children’s care-givers, teachers, health-care providers and others involved with the children. This information will be provided between April 1 and 15 of each year, starting in 2021. If any of the information on the list changes, Ms. W. is required to provide Mr. W. with the new information within 14 days of the change occurring. Copies of all reports, including health-care reports and school report cards, received are to be given to Mr.

W. [ 122 ] Except in the case of an emergency, the parties will communicate through OFW (or other parenting app agreed to by the parties). Their communication should not be lengthy or demanding and must be polite and child-focused. In the event of an emergency, the parent having the children will contact the other by telephone (at a number designated by each parent) as soon as is reasonably practical and advise of the emergency details.

Child Support What is the appropriate Child Support Order? [ 123 ] The following sections of the Divorce Act, RSC 1985, c 3 (2nd Supp .) are applicable in this matter: Child support order 15.1

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage. Guidelines apply

(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines [ 124 ] It is always helpful to emphasize the child-focused principles from the child support cases.

They are: • child support is the right of children; • the children's right to support survives the breakdown of the relationship between the children's parents; • child support should, as much as possible, continue the standard of living the children experienced before the parents' relationship broke down; and • the amount of child support varies, based upon the parent's income. [ 125 ] Mr. W. was not successful in his claim for primary care and must pay the table amount of support. His income is not in dispute. Mr.

W.’s most recent Statement of Income sworn on September 4, 2020, indicates a yearly income of $90,071.16. The Federal Child Support Guidelines table amount based on Mr. W.’s yearly income is $1,260.91. On a prospective basis, Mr. W. shall pay the table amount of child support, being $1,260.91 per month. Child Support: Retroactive Child Support [ 126 ] Ms. W. is seeking retroactive child support to the date this Application was filed, being December 2019. Ms. W. says that Mr. W. should have paid the table amount of $1,260.91 retroactive to the commencement of this application in December 2019.

This would set the arrears at $ 5,074.37 . [ 127 ] Mr. W. submits that a retroactive award is inappropriate in the circumstances. He says there was delay in bringing the claim forward. He says the Second Interim Order, dated January 21, 2020, provides that Mr. W. shall pay child support in the amount of $536 per month. Mr. W. was self-represented when this Order was granted. He says since that time, a Third Interim Order was issued, and an Interim Consent Order was agreed to between the parties and there is no reasonable excuse for Ms. W.’s delay in seeking a variation.

He further says that after being ordered by the Court to pay child support, he has not missed a payment and has honoured his child support obligation in good faith. He says Ms. W. has provided no evidence that the children were detrimentally affected as a result of the child support payment. [ 128 ] D.B.S. v. S.R.G. , L.J.W. v. T.A.R. , Henry v. Henry , Hiemstra v. Hiemstra , 2006 SCC 37 , at para. 38 , sets out the considerations regarding requests for retroactive child support. Retroactive claims for child support are treated differently than prospective ones as they are discretionary.

In determining whether a retroactive award is appropriate, I am to consider: • why child support was not sought earlier / the reason for the delay;

• the conduct of the payor; • the children’s past and present circumstances; and • whether a retroactive award would result in hardship. All of these factors must be considered and none is decisive on its own: D.B.S. , at para. 99 . Delay in Seeking Child Support [ 129 ] The caselaw is clear that delay in seeking child support is not presumptively justifiable ( DBS , supra , at para. 101). For example, a recipient parent who accepts child support payments without raising any problem invites the payor parent to feel that his/her obligations have been met ( DBS , supra , at para. 102). [ 130 ] Although Mr.

W. indicates he did pay for things directly for the children, including in relation to daycare, etc., it appears from the evidence (Trial Exhibit 11, paras. 239 to 243) no financial support for the children was paid to Ms. W. by Mr. W. from January 2018 to February 2020 when the Second Interim Order provided for monthly payments of $536. Ms. W. seeks retroactive child support from the date of her application in December 2019. [ 131 ] I do not see the intervening time from December 2019 to trial as a delay. I note that Ms.

W. states in her affidavit (Trial Exhibit 2), that the Interim Order for $536 in child support was based on Mr. W.’s estimate of his income at $36,000. She then says “Mr. W.’s income statement indicates that his income is significantly higher.” Mr. W. filed a Second Statement of Income on September 4, 2020, attaching his 2019 Income Tax Return. In any event, I do not consider the months that intervened between filing the application in December and the trial in September, a delay of a sufficient nature to lead Mr. W. to assume and to operate on the basis that his obligations were being met.

The child support ordered in the amount of $536 was based on his numbers, which were not accurate. Conduct of the Payor Parent [ 132 ] The Court should not hesitate to take into account the payor parent’s blameworthy conduct in considering the propriety of a retroactive award. Further, I believe I should take an expansive view of what constitutes blameworthy conduct in this context. I would characterize as blameworthy conduct anything that privileges the payor parents own interests over his/her children’s right to an appropriate amount of support.

Thus, a payor parent cannot mislead a recipient parent into believing that his/her child support obligations are being met when he knows they that they are not. (See DBS , supra , para. 106) [ 133 ] Mr. W.’s Answer to the Petition dated January 28, 2020, inserts $536 as the amount of child support payable. This is the amount from the Second Interim Order issued February 4, 2020, and arising from a court appearance on January 21, 2020. Mr. W.’s 2019 tax return indicates his income was $83,376.27 and in 2018 was $65,650. The amount of $536 would be the table amount payable if Mr. W.’s income were $36,000.

Clearly it was not accurate. Circumstance of the Children [ 134 ] Although the children have lived a relatively comfortable lifestyle even absent the retroactive amount which the mother requests, the evidence indicates there have been financial issues. Ms. W. refers in messages to Mr. W. of having issues paying for groceries and also paying for internet for the children in order for A. to utilize the iPad that Mr. W. bought for her.

Hardship Occasioned by Retroactive Award [ 135 ] A broad consideration of hardship is also appropriate in determining whether a retroactive award is justified (see DBS , supra , at para. 114). There is no evidence before me that a retroactive award in the amount of $5,074.37 would create hardship for Mr. W. [ 136 ] When I consider all the factors in the approach set out in D.B.S. , I find that it is appropriate in the present circumstances to award child support on a retroactive basis for the period requested i

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