S.S. v. D. S., 2013 NSSC 384

SUPREME COURT OF NOVA SCOTIA Citation: S.S. v. D. S. , 2013 NSSC 384 Date: 20131206 Docket: 1217-000619 Registry: Port Hawkesbury Between: S. S. Petitioner v. D. S. Respondent LIBRARY HEADING Editorial Notice Identifying information has been removed from this electronic version of the library sheet. Judge : The Honourable Justice A.

David MacAdam Heard: May 24-27, July 11, 13-15, August 29-30, October 7, 11, 14, 17, 19, 25-28, 30, December 15-16, 2011, May 30- 31, June 1, 4-8, July 11-13, 23, September 27-28, October 29, November 29-30, December 12, 14, 2012, April 11-12, May 17, June 28, August 23, 2013, in Port Hawkesbury, Nova Scotia Final Written Submissions: September 10, 2013 Subject: Divorce; custody and access; child support; matrimonial property.

Summary: The parties began cohabiting in 2000, were married in 2001, and separated in 2007. There were two children of the marriage, both girls. The marriage breakdown resulted in a child protection proceeding which was ultimately dismissed, and the post- separation period was one of high conflict. As a result of a 2009 final disposition, the children were in the father ’ s primary custody, with access to the mother. The judge in that proceeding found that the mother was uncooperative and engaged in alienating behaviour. The

evidence in the divorce proceeding showed that the children were at serious risk of emotional and psychological harm in the present situation. The children strongly preferred to live with the mother, and the expert evidence indicated that they were not thriving in the father ’ s community or in their present school. Issue: Custody and access; child support; matrimonial property. Result: The divorce was granted. The evidence led to the conclusion that the custody status quo was not sustainable. As such, the court ordered primary custody to the mother, with liberal access to the father.

The father was ordered to pay the table amount of child support. Matrimonial assets were divided, including an unequal division of the pre-marriage portion of the mother ’ s teacher ’ s pension, with an equal division of the portion earned during the marriage. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: S.S. v.D.S. , 2013 NSSC 384 Date: 20131206 Docket: 1217-000619 Registry: Port Hawkesbury Between: S. S. Petitioner v. D. S.

Respondent Editorial Notice Identifying information has been removed from this electronic version of the judgment.

Judge: The Honourable Justice A. David MacAdam Heard: May 24-27, July 11, 13-15, August 29-30, October 7, 11, 14, 17, 19, 25-28, 30, December 15-16, 2011, May 30- 31, June 1, 4-8, July 11-13, 23, September 27-28, October 29, November 29-30, December 12, 14, 2012, April 11-12, May 17, June 28, August 23, 2013, in Port Hawkesbury, Nova Scotia Final Written Submissions: September 10, 2013 Counsel: S. S., on her own Coline Morrow, for the Respondent By the Court : Introduction [ 1 ] This is a divorce proceeding.

There are various issues relating to custody and access, child support, and division of matrimonial property. [ 2 ] The parties began living together in February 2000, and were married in July 2001. The date of their separation - August 2005 or June 2007 - is disputed. The two children, A and V, were born in September 2000 and July 2002, respectively. [ 3 ] The petition for divorce was filed in 2008. The ensuing years have been taken up by allegations, motions, hearings and rulings by several judges of this court, most recently a long-running proceeding before Legere-Sers J.

Now, at long last, they have reached the divorce stage of their contentious breakup. In order to understand the issues and their resolution at this trial, it is first necessary to review the findings and 2010 decision of Justice Legere-Sers. Background [ 4 ] The parties came before Justice Legere-Sers in the context of a proceeding under the Children and Family Services Act , S.N.S. 1990, c. 5. The CFSA proceeding arose out of allegations of sexual abuse against Mr. S. by the maternal grandparents. An emergency application brought by Ms. S. was heard in 2007.

Justice Legere-Sers later described the allegations as "false." After an interim hearing she ordered shared parenting, with a "two week on, two week off cycle," with Mr. S.'s parents supervising his two week cycle. The interim order was followed by a parental capacity assessment. The assessor concluded in October 2007 that there was no evidence of child protection concerns. [ 5 ] Justice Legere-Sers issued a protection decision ( 2009 NSSC 155 ); a review decision ( 2009 NSSC 288 ); and a final disposition order ( 2010 NSSC 308 ).

The final disposition order dismissed the CFSA proceeding and granted sole custody to Mr. S. under s. 16 of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.), with access to Ms. S.. The temporary disposition order arising out of the review decision was affirmed by the Court of Appeal ( 2010 NSCA 11 ). An appeal of the final disposition order was dismissed on a Registrar's motion, for failure to perfect the appeal within the required timelines ( 2011 NSCA 14 ).

[ 6 ] The first disposition decision, released in May 2009, lifted the father's supervision requirement and ordered joint custody. Justice Legere-Sers ordered ongoing agency supervision along with an immediate transition to joint parenting, with equal time sharing, in order to reestablish the father's role in the children's lives after the alienation caused by the mother and grandparents. The children were moved to the father's primary custody in September 2009, after the court concluded that the mother would not comply with the plan of care.

Once away from the mother's family and friends, Justice Legere-Sers found, the children and the father managed well, and the father complied with the court's requirements. The mother did not maintain contact with the agency and did not pursue the counselling services offered by the agency. She concluded that the mother had not grasped the effect of parental conflict on the children. [ 7 ] After being ordered to disclose her parenting plan in September 2009, and again in December 2009, Ms. S. failed to do so until February 2010. She then amended it repeatedly without notice.

She also took a teaching position in the children ’ s school, contrary to the advice of the assessor, who believed this would increase the risk of returning to a toxic situation. Ms. S. did this without notice to the agency or the father, who only learned of this in May 2010.

Justice Legere-Sers found the timing of this disclosure to be "perplexing". [ 8 ] Justice Legere-Sers concluded that after "multiple investigative interviews with police and the child protection agency followed by significant involvement from psychologists, psychiatrists and social workers," there was no basis to suggest that the father was a risk to the children. While the father and his family had cooperated and provided stability for the children, the mother and her family had maintained the allegations against the father and resisted agency intervention.

They had escalated the conflict to the point that the children had to be removed from the community and the school they were attending. [ 9 ] Justice Legere-Sers found that Ms. S. did not communicate forthrightly with Mr. S., and did not exchange information and discuss the children's needs in a timely fashion. While she was satisfied that both parents loved the children, she found that Ms. S. continued to act arbitrarily, creating an environment of conflict that caused emotional harm and confusion to the children. As an example, she cited Ms.

S. secretly obtaining a teaching position in the children's new school, to which they had been moved precisely in order to remove them from the environment of conflict. [ 10 ] Justice Legere-Sers found regular behaviour by the mother that amounted to the creation of "crises," as described by the children's therapist. For instance, when she changed schools, she took the children to a ceremony in her honour at the old school, contrary to the court's order that she not discuss the move with the children until the therapist and the father had a chance to address the issue.

She claimed not to be in violation of these directions because she did not discuss the move, the people at the ceremony did. Justice Legere-Sers observed that Ms. S. believed, contrary to the evidence, that she was the only person who understood the children; "[i]n the moment," she observed, there is no stopping her. [ 11 ] According to Justice Legere-Sers, the children's therapist, Dr.

Patricia Gerrior, was the professional with "the most objective and independent evidence of the children's progress." Initially, it appeared, the children were well adjusted in a stable, calm and consistent environment while living with their father. Later, however, Dr. Gerrior observed a regression in their behaviour, as they exhibited distortions and disconnection between what she observed when they were with their father, and what they described verbally. The children suggested to Dr.

Gerroir that "everything was horrible and awful with the father and wonderful with the mother." She expressed concern about "subtle messages the children may be getting from their mother with respect to their father." Justice Legere-Sers noted that there was potential for parental alienation. Dr. Gerrior was of the opinion that Mr. S. was providing stability in the midst of the crises caused by Ms. S..

Other experts, such as Valerie Rule, who prepared the original Parental Capacity Assessment, expressed similar concerns. [ 12 ] The parties proceeded to mediation, which the mediator discontinued in January 2010, finding that the process was becoming counterproductive. [ 13 ] Dr. Susan Hartley gave evidence before Justice Legere-Sers as an expert in the psychological assessment of children and therapeutic intervention with children. Justice Legere-Sers had ordered collaboration of various professionals, overseen by Dr. Hartley, to develop strategies for co-parenting. Dr.

Hartley stated, as other service providers had, that the parents were individually cooperative and each was capable of understanding what was required, but the obstacle remaining was Ms. S.'s inability to address the emotional issues and gain insight.

[ 14 ] Justice Legere-Sers found that the mother ’ s “ refusal to take advice or counsel, inability to agree on a process of communication and resolution for large and small issues from medical intervention to school resource issues ” had created the need for “ significant intervention from third party service providers and the court. ” Day-to-day decisions were “ either entered into arbitrarily and without consultation by the mother or delayed resulting in the children's needs not being addressed, ” adding that the children were “ inevitably engaged in the middle of this ongoing conflict that had undermined their stability. ” [ 15 ] As to Ms.

S.'s parents, Justice Legere-Sers concluded that they deliberately avoided court-ordered counselling while misinforming their preferred counsellor about the actual state of affairs.

They had failed to address their role in "the creation and perpetuation of false allegations of sexual abuse by the father against the children." She found that their conduct was "antagonistic and harmful to the father and his relationship with the children." She refused to allow unsupervised contact with the children by the maternal grandparents. [ 16 ] In contrasting the different approaches taken by the two parents, Justice Legere-Sers emphasized Mr. S.'s willingness - and Ms. S.'s unwillingness - to cooperate with the other parent and to ensure the other parent was included in the children's lives.

She said, at paras. 762-763: The father has agreed to consult, the mother takes unilateral action. When consultation does take place in advance (which is rare), if she disagrees with a particular course of action, she acts on her own advice regardless of opposition. This leaves everyone else dealing with the consequences of her decisions. The mother continues a pattern in her daily life which attempts to push the father away from substantial involvement in the children's lives. [ 17 ] Justice Legere-Sers went on to state that Ms.

S. ’ s decision to work in the children's school, against all advice, significantly affected the court's options. Agreeing with professional opinions that Ms. S.'s "behavior is difficult to contain," she said, at paras. 782-786: Regarding the test in

Section 45 of the Children and Family Services Act , the mother had not and is unlikely to make sufficient gains in understanding and applying the elements that made a co-parenting strategy operable in the near future. The conclusion of Ms. Rule, Dr. Gerrior and the Court is the children will not thrive or be free from parental conduct largely due to the mother's comportment and inability to consider and incorporate an opinion other than her own in a joint or shared custody situation.

Since these proceedings began when the parents separated (pre child protection involvement) to date, the parents have not successfully negotiated or formulated a co-parenting strategy that did not involve repetitive false allegations against the father, significant child welfare and police involvement and multiple court applications in the Supreme Court (Family Division) and Provincial Criminal Court. Both the mother and her father unsuccessfully sought Peace Bonds against the father. According to all the involved therapists, litigation is one of the elements that exacerbates the conflict.

The mother suggests her combative behavior is caused by the need to represent herself in court and because both the agency and the father are united against her position. She suggested to the witnesses (Dr. Hartley and Dr. Gerrior) and the Court that her behavior outside of court is different, more amenable to a joint parenting arrangement. She suggests repeatedly that once child protection is out of her life, she and the father will be able to co-parent in a shared parenting arrangement.

Her actions outside the court as evidenced do not support this proposition. [ 18 ] Continuing under the CFSA would not be a productive method of moving forward, Justice Legere-Sers concluded. Rather, it was necessary to make a private custody order. She said, at paras. 796-800:

The Court has the information to date, necessary to make a private custody order respectful of the principles of custody set out in Section16 the Divorce Act and case law including reference to Foley v. Foley, (N.S.S.C.) what parenting strategy mosteffectively addresses the best interests of the children who have lived in significant conflict since 2005 until the September, 2009, moveinto their new community when they stabilized. All therapists have agreed. Continuing the litigation whether under the Children and Family Services Act or other legislation iscounterproductive to eradicating the conflict.

The mother has indicated early on her intent to appeal if she does not achieve a 50-50 time split. In consideration of the likelihood thatthere will be future proceedings, the conflict must be contained. The children must be stabilized in what has become an inevitable fact of life. The litigation will go on. Therefore, every effort must bemade to ensure they are permitted as normal a life as possible given their parental reality.

A joint, shared or parallel custody order would certainly keep these children in the middle of the parental conflict without question. [19] Accordingly, Justice Legere-Sers ordered sole custody to Mr. S., with access to Ms. S.. Mr. S. would be responsible forday-to-day decision-making, as well as the major decisions in the children's lives. He was required to "meaningfully consult in advancewith Ms. S. on "all major issues regarding education, spiritual, emotional and medical intervention." Where no consensus was possible,Mr. S. would be the final decision-maker. Further, she ordered that if Ms.

S. did not leave the children's school, they would be requiredto change schools. [20] The July 2010 order remains in effect as of the time of the present proceeding. I am not retrying the determinations made byLegere-Sers J. in 2010. The issues of custody, access, and child support are being determined on the basis of the evidence heard in thisDivorce Act hearing, with the issue in respect of custody being what is in the best interests of the children at this time.

The facts as foundby Legere-Sers J. form the background to this proceeding and this court will not go behind those earlier findings. [21] Notwithstanding that the parties were directed to focus on events and circumstances that followed the July 2010 decision byJustice Legere-Sers, during the course of their testimony there were frequent references to incidents and allegations predating herdecision.

Although I make no determination on the conclusions reached by Justice Legere-Sers, I would be remiss if I did not indicatethat nothing in the evidence I heard raised any concerns about the findings and directions in the July 2010 decision. Although Ms. S.frequently expressed her disagreement with Justice Legere-Sers's findings, such comments carry no weight and do not affect my decisionand reasons. [22] I do not propose to exhaustively review the evidence given by the parties and their witnesses over the more than three years ofthis trial.

Rather, I will discuss the relevant evidence while dealing with each issue. Issues [23] The issues for determination are (1) custody and access; (2) child support; (3) spousal support; and (4) division of matrimonialproperty. Credibility [24] At the outset, I wish to comment on the issue of credibility. Ms. S. questions Mr. S.'s credibility. Forgeron J. reviewed the

considerations relevant to assessments of credibility in Baker-Warren v. Denault, 2009 NSSC 59, at paras. 18-20: ... [C]redibility 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. v.Gagnon 2006 SCC 17, para. 20. I further note that "assessing credibility is a difficult and delicate matter that does not always lend itselfto precise and complete verbalization:" R. v. R.E.M. 2008 SCC 51, para. 49.

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? 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, succinctlyparaphrased 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). [25] Ms. S. points to specific statements from Mr. S.’s testimony which she allegedly impeached. She claims, for instance, to haveimpeached him on certain points concerning the timing and frequency of phone calls to the children. She alleges a pattern in which Mr. S.behaves in one way privately or with the children, and another way in public or with therapists.

She cites evidence of "corporalpunishment, rough handling, insults, curses and emotionally harmful comments" reported by the children. She also points to evidence ofMr. S.'s alleged threat to the children that they would be put in a foster home if they told people they wanted to live with their mother.

[ 26 ] Mr. S. has responded by explaining the circumstances relating to at least some of the phone calls and the reference to a foster home. He has acknowledged that he sought assistance in handling discipline. Although there have been errors and some situations could have been handled better, the suggestion that his evidence lacks credibility due to these allegations is not sustainable. In assessing the evidence on any particular issue I will consider all of the relevant evidence, whether presented by Ms. S. or her witnesses, or by Mr.

S. and his witnesses. [ 27 ] The only witness whose evidence lacks credibility is the maternal grandfather, J. S.. With the consent of Ms. S., he sold matrimonial assets at a yard sale at the matrimonial home. He removed household effects that belonged to the parties. In addition, during Ms. S. ’ s testimony, Mr. S. was observed giving her signals. I directed him to move to the back of the courtroom, and advised him that if he continued giving signals, he would be removed from the courtroom. [ 28 ] Mr. S. ’ s most serious misconduct relates to the appraisal of the matrimonial home filed by Ms. S.. Mr.

S. contacted M. R. P., who had been in the furniture business. Mr. P. is a first cousin of the maternal grandmother, A. S.. Mr. P. never visited the home, but was shown photographs of household effects by Mr. S.. This resulted in a list of household effects and valuations, purportedly signed by Mr. P.,with various handwritten notations and signatures. Mr. P. testified that these notations and signatures were not his. Ms. S. advised the court that she obtained the appraisal list from her father. Mr. P. said that he had given probable or possible values on some items, and did not comment on others.

In respect of some of the purported values for non-furniture items, he said he had no idea of the values, as his experience was entirely in the furniture business. I am satisfied that the appraisal filed at the trial was fraudulent, and that Mr. S. was responsible for it. [ 29 ] For these reasons, I find that Mr. S. ’ s evidence is not credible, except where it is confirmed by credible evidence from other witnesses. Divorce [ 30 ] At the outset, I am satisfied that the parties have been living separate and apart for more than one year, and that the formalities required by the Divorce Act are met.

The divorce is accordingly granted. Custody [ 31 ] Ms. S. says the best interests of the children at this time would be to place them in her sole custody with regular access to Mr. S.. She argues that it would be in the children's best interests to relocate to [...] to live with her and attend [...]. She also says there should be unsupervised access between the maternal grandparents and the children, including overnight access. [ 32 ] Mr. S. submits that since the July 2010 decision, Ms.

S. has not continued therapy and has continued the pattern of "alienating and harming the children." He submits that she remains incapable of parenting the children. He says that Ms. S. and her family can be expected to continue manipulating the situation without regard for the stability of the children. [ 33 ] In the course of this proceeding, the court heard evidence from various experts and medical practitioners respecting the issue of custody and access. Dr. Reginald Landry was qualified as an expert on the emotional and psychological health of children.

Fran Reddy-Chisolm was qualified to give opinion evidence on parental counseling in respect to managing the effects of separation and divorce on parents, including co-parenting, access, and communication with children and other parents. Martin Whitzman was qualified in the preparation of "wishes of the child" reports. Dr. P. M. was not qualified as an expert. She testified as the children's family doctor.

[ 34 ] I find Dr. Landry's evidence to be of particular assistance with respect to the issue of custody. He assessed both children. He emphasized the impact of the conflict on the two girls, noting that A, especially, was prone to what is referred to as "splitting," developing an "all-good/all-bad perception" of the situation; this manifested itself in an idealization of what her life would be like if she lived with her mother, combined with an extremely negative view of life with her father. This combination of idealization and devaluation, he believed, was likely to intensify if the situation did not change.

That said, this "splitting" was likely to persist as long the conflict lasted, even with a change in custody, and even if the children appeared happier in a new situation. It could reach the point that they refused to see their father. In A's case in particular, he was of the view that A was not developing sufficient resiliency. He concluded that there was a risk that A would develop depression if things continued as they were. [ 35 ] Dr. Landry expressed the concern that A's preoccupation with her mother threatened to prevent her from forming other bonds, such as with other children her own age.

He said this identification was the strongest he had seen. She had not developed bonds with other females; her identification with her stepmother, for instance, was not as strong as one would hope. The result of the extreme preoccupation with her mother and the conflict was that A was not developing independence and autonomy, for instance, by developing outside interests. If A were less preoccupied with her mother - which he believed could be brought about by spending more time with her and thereby lessening the "idealization" - this preoccupation could probably be reduced.

To clarify, he was of the view that day-to-day life with her mother would tend to reduce A's idealization. [ 36 ] It should be emphasized that Dr. Landry ’ s assessments were based on the children's own perceptions of their situation. He did not comment on the objective accuracy of those perceptions. As he said at trial, he made no "evaluative comments about the parent's behaviour whatsoever … " In other words, the fact that the children perceived their life in their father's home to be unpleasant did not mean that this was actually the case. [ 37 ] On cross-examination Dr.

Landry was directed to certain evidence of what Mr. S.'s counsel characterized as attempts by Ms. S. to "suffocatingly" control the children and to turn them against Mr. S.; for instance, presented with the claim that Ms. S. had arranged for herself and the children to synchronize their shower times, he acknowledged that this would be quite unusual and concerning. That said, he emphasized that there is a "broad continuum" of behaviours that parents may engage in to influence their children, and it can be difficult to attribute all of this to intentional behaviour by the parent.

He said "bright" children like A and V can contribute to this process themselves. He also said that the children did not report "a lot of direct intervention from their mother," though he agreed with counsel's suggestion that "these children would be bright enough not to say that … " [ 38 ] Dr. Landry did not say that the children had to change homes in order to address the situation. Regardless of the parenting arrangement, he was of the view that therapy for the children and the parents was crucial.

He said the "most corrosive long-term element" was the environment of conflict, but he did not venture to suggest the source of the conflict. [ 39 ] The court also heard evidence from Dr. P. M., who had been the family doctor for A and V for about two years. Dr. M. was not qualified as an expert, and testified only as a fact witness. She said she had seen V about three times in that period, and had seen A about five times over the previous several months. She testified that A had said she was unhappy living with her father; Dr. M. said she had recommended to Mr.

S. that A participate in a program that could provide her with female role models and contacts, such as Big Sisters. She described A as quite emotional in their meetings, and said she observed an attitude of what she described as not only anger, but contempt, by A towards her father. She had also observed A's extreme attachment to her mother; she said A had told her that she would be content to remain at her present school if her mother taught there. Some of A's statements to her were to the effect that her mother "needed" her, or that she would "take care of" her mother; A did not elaborate on what this meant.

She found A emotionally immature, meaning, among other things, that she had difficulty with coping, that she showed frustration if things were not going her way. She agreed on cross-examination that V had not expressed the type of discontent to her that A had. [ 40 ] Dr. M. said her experience had been that Mr. S. appeared to be willing to work on solutions despite A's perception that he would be angry if he knew she was saying negative things about him. She did not recall A giving specifics of incidents when her father was angry or treated her badly.

She acknowledged that she was concerned that some of A's statements about how things would be different with her mother had the sound of "adult words," but added that she did not sense that A was being pressured to say these things. [ 41 ] The Divorce Act permits the court to "make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage": s. 16(1).

Section 16 goes on to review the statutory considerations relevant to access orders:

Terms and conditions

(6) The court may make an order under this

section for a definite or indefinite period or until the happening of a specified event and mayimpose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. *** Factors

(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. Past conduct

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct isrelevant to the ability of that person to act as a parent of a child. Maximum contact

(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. [42] Although Ms. S. speaks in terms of a variation of the existing custody order, I recognize that this is the divorce proceeding andthe determination of corollary relief, including custody, is really an original determination.

However, in deciding the issue of custodyand access, a significant consideration is the how the existing interim arrangement has worked in view of the best interests of thechildren. I will therefore consider whether maintenance of the status quo is in the best interests of the children. The children require anddeserve an environment that will provide them with the best opportunity to thrive and realize their potential, both at home and at school. [43] The determination of custody and access is the responsibility of this court.

In carrying out this responsibility, I have consideredthe decision of Justice Legere-Sers, and the events that have transpired since her decision, in the perspective of the factors outlined byGoodfellow J. in Foley v. Foley (1993), (NS SC), 124 N.S.R. (2d) 198, [1993] N.S.J. No. 347 (S.C.).

In that case,Goodfellow J. commented, that the “diversity that flows from human nature is such that any attempt to compile an exhaustive list offactors that could be relevant is virtually impossible, but that there has nevertheless emerged “a number of areas of parenting that bearconsideration in most cases,” (para. 15), including the following non-exhaustive list of factors, which he identified at para. 16: 1. Statutory direction Divorce Act 16(8) and 16(9), 17(5) and 17(6); 2. Physical environment; 3. Discipline;

4. Role model; 5. Wishes of the children - if, at the time of the hearing such are ascertainable and, to the extent they are ascertainable, such wishes arebut one factor which may carry a great deal of weight in some cases and little, if any, in others. The weight to be attached is to bedetermined in the context of answering the question with whom would the best interests and welfare of the child be most likely achieved.That question requires the weighing of all the relevant factors and an analysis of the circumstances in which there may have been someindication or, expression by the child of a preference; 6.

Religious and spiritual guidance; 7. Assistance of experts, such as social workers, psychologists- psychiatrists- etcetera; 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 by such things as participation in sports; 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, uncles, aunts, grandparents, etcetera; 14. The willingness of a parent to facilitate contact with the other parent.

This is a recognition of the child's entitlement to access toparents and each parent's obligation to promote and encourage access to the other parent. The Divorce Act s. 16(10) and s. 17(9); 15. The interim and long range plan for the welfare of the children; 16. The financial consequences of custody. Frequently the financial reality is the child must remain in the home or, perhaps alternateaccommodations provided by a member of the extended family.

Any other alternative requiring two residence expenses will oftenadversely and severely impact on the ability to adequately meet the child's reasonable needs... [44] Justice Goodfellow noted that the court's duty is to consider all relevant factors in order to determine with whom the bestinterests and welfare of the child would most likely be achieved.

He added that the "weight to be attached to any particular factor wouldvary from case to case as each factor must be considered in relation to all the other factors that are relevant in a particular case" (paras.17-18). [45] The principle of maximum contact with both parents is singled out in s. 16(10). McLachlin J. (as she then was) made thefollowing remarks about this provision in Young v.

Young, (SCC), [1993] 4 S.C.R. 3, at 117-118: … s. 16(10) provides that in making an order, the court shall give effect "to the principle that a child of the marriage should have asmuch contact with each spouse as is consistent with the best interests of the child." This is significant. It stands as the only specific factorwhich Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has

expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent.

Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal Deprivation Reassessed (1981), Robin Benians, "Preserving Parental Contact: a Factor in Promoting Healthy Growth and Development in Children", in Jo Tunnard, ed., Fostering Parental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families (1982). [ 46 ] This principle has been restated repeatedly by our courts; see, for instance, J.Y.P. v.

R.J.L.M. , 2007 NSCA 58 , at paras. 21 and 33 , and Cross v. Smith , 2012 NSSC 423 , at paras. 85-88 . [ 47 ] After the 2010 order, Ms. S. left her employment at the school in [...] and relocated to [...], in [...] . She now has a permanent teaching position in [...]. As of December 2012, Mr. S. was working part-time as [...]. He had left his previous [...] employment [...] in 2009, and has periodically received Employment Insurance benefits. Ms. S. says the parties ’ respective employment situations are one reason to change the custody arrangements.

I am not satisfied that this factor, in itself, is a reason to change the status quo . [ 48 ] A second reason submitted by Ms. S. as a reason to change custody is that the girls are "not doing well psychologically and emotionally in their current living situation with their father in [...]." Thirdly, she says, the girls have expressed a preference for living with her. Fourth, relocation would permit the girls to "start fresh in a new school and a new community they have a positive perception of." These arguments are all variations on the theme that it would be in the children's best interests for Ms.

S. to become the primary custodial parent. They rest heavily on the evidence of the various medical experts and practitioners. It is this evidence that will be most crucial in determining whether a change in the status quo is called for. [ 49 ] Ms. S. says the evidence indicates that A and V have become unhappy, negative, withdrawn, stressed, and more emotionally and psychologically compromised in their current living situation. She says reports from school indicate that A is unhappy and distracted and that her behavioural "tics" have returned.

There is evidence that they have not bonded with their step-mother or any other older female figures in [...]. Ms. S. says both girls want to live with her. She says V characterizes her life as one of anxiety and sadness, while A has described herself as "miserable" living with her father and has allegedly contemplated suicide and self-harm. [ 50 ] Ms. S. refers to Dr.

Landry's view that the children have a negative perception of their lives in [...], that their overall psychological health is compromised with significant risks for poor outcomes, and that A is at an "extremely high risk for developing clinical depression." According to Ms. S., the evidence shows that over time the girls have grown to "idealize their mother and hate their father," while living in his sole custody for almost four years. She points to Dr. Landry's testimony that they might refuse access to their father, given the choice. By contrast, Ms.

S. says, they have a close bond with her and have a positive view of living with her in [...] and attending the school where she teaches. As such, she submits, relocation would not entail disruption. [ 51 ] Ms. S. says Legere-Sers J. could not have foreseen the changes that have occurred, such as (for instance) the appearance of a new sibling; the allegedly deteriorating relationship with their counsellor; Ms. S.'s own need to move [...] for work; Mr. S.'s alleged disobedience to court orders; the girls' difficulties in school; and their lack of female role models in [...]. Ms.

S. argues that these changes are more than temporary and minor. [ 52 ] Ms. S. says she has shown a willingness to maximize contact between the children and Mr. S. even if the custody arrangement is altered. By contrast, she says, Mr. S. has a history of denying her phone and in-person access. She alleges that Mr. S. has not respected the court order and that he has made unilateral decisions without consulting her. Specifically, she alleges that he has not provided court-ordered phone time, that he has denied access at times, and that he has withheld important medical and school information. As such, Ms.

S. argues, things that Dr. Gerroir projected would occur if the children were placed in Ms. S.'s care have in fact occurred with them in Mr. S.'s care since the decision of Legere-Sers J. As to Dr. Gerroir's view that Mr. S. was better able to create a safe environment, Ms. S. says there is evidence that A is being bullied at her school and claims to have no friends in [...]. [ 53 ] Ms. S. takes the position that both A's and V's conditions are related to the current custody arrangements. There is evidence that both girls have a negative view of their father. Both Dr. M. and Dr.

Landry made reference to hostility on the part of one or both girls towards their father. Dr. Landry indicated that negative thought patterns related to the current custody arrangement is affecting various

aspects of the girls' lives. Ms. S. argues that matters will get worse if the status quo is maintained. Generally, she argues that the evidence shows that A and V are deeply unhappy living in [...] with their father, are unhappy with their school, and tend to idealize their lives with their mother while devaluing their father. There was evidence, in particular, that A "hates" her current school; some support for this can be found in the evidence of Ms. S., as well as that of Dr. M. and Dr. Landry. [ 54 ] There was evidence that Dr.

Landry was uncertain to what degree the girls' description of the situation accords with reality. He described possible cognitive distortions that might cause the girls to amplify the positive and negative aspects of the situation; he made no comment on the accuracy of their specific statements about the situation. The fact that distortion may occur does not mean that what the girls say is not true. Ms S. submits that the girls are aware that their father's proposed custody arrangement would reduce their contact with their mother, and they are unhappy living with their father; in view of Dr.

Landry's evidence about distortion, these factors, she submits, contribute to their positive view of her as compared to their father. She submits that this situation needs to change, and that the reality is that neither parent is all good or all bad. She says "the devaluation of the father and the idealization of the mother must decrease and meet in the middle for the children to view both parents as good but not perfect." [ 55 ] Ms. S. provided a detailed overview of specific evidence respecting A's and V's physical health. She points to remarks in the girls ’ journals suggesting that they have been eating less.

She observes that Dr. Landry was of the view that A's sore stomach (which she reported before and during school) was likely related to stress. Other developments that Ms. S. says have occurred during the present custody and access arrangement include her claims that A and V suffer periodic bowel incontinence at school and that A has been displaying certain "tics" (such as "humming and motor tics such as blinking and thrusting her head forward"), as well as touching herself inappropriately at school. There was evidence from Dr. Landry that such tics can relate to stress. Similarly, Ms.

S. points to statements in A's journal indicating that she has difficulty sleeping in her father's home, and evidence that both girls sometimes cry at night; Mr. S. disputed this. She also testified that A was not brushing her hair or bathing enough. Generally, she says, A's self-care is suffering. [ 56 ] Ms. S.'s own evidence was that V would sometimes cry and have trouble sleeping the night before leaving her mother's home. Dr.

Landry's view was that V does not have a mental illness, but does have psychological distress, and that her feelings of anxiety and sadness connected with living in ]...] could lead to psychological problems. He likewise confirmed that A is under stress caused at least in part by the custody and access situation. Dr. M. also described A as presenting with anxiety. [ 57 ] In addition to issues with physical health and self-care, Ms. S. says, A and V are experiencing declining psychological health.

She points to evidence of issues with A's executive functions, such as comments from teachers about issues with her handwriting, time management, and homework completion. There was also evidence that teachers had raised concerns about A's emotional well-being and socialization with classmates. [ 58 ] Dr. Landry's evidence suggested that both A and V identify very closely with their mother; he cited research indicating that children between the ages of 7 and 12 will particularly identify with the parent of the same gender. The issue is compounded by the fact that the girls do not identify with their step-mother.

Dr. Landry said this was a situation that could impact on the development of their identities. Dr. Landry also suggested that this close identification with their mother could interfere with A's ability to develop age-appropriate friendships. [ 59 ] Ms. S. provides the following

summary of her position on what is in A and V ’ s best interests in the context of the continuing high level of conflict: The problem with the high conflict in this case is that it is now is fueled by the differing views on custody not only by the parents, but also by the children. The children are older now. They are articulate and intelligent. They can express their views and wishes. The children are clear that they want to be in their mother's sole custody in [...], and that they feel very unhappy living with Mr. S. in [...].

With this knowledge that the children express not being happy where they currently are, Ms. S.'s position has been to help the children achieve a custody situation where they would be happy. Mr. S. wants the children to live with him in basically the same sole custody situation he has had for the past almost four years irregardless of how the children express feeling about it. This is where the main conflict lies. If the children had adjusted well, had made friends, had gelled well in their new blended family, had been psychologically healthy and had expressed being happy, Ms.

S. has already testified that she would have accepted this and would not be asking for the custody to change. However, the opposite is true. So, the custody battle has continued to this point.

[ 60 ] Ms. S. suggests that there has been "a regression or a stunting of the children's level of maturity as time has gone on in the current custody situation." She bases this on evidence of Dr. Landry that both A and V are immature, as well as Dr. M.'s testimony that A appears emotionally immature; she contrasts this with Martin Whitzman's October 2011 description of both girls as being mature for their ages. She also points to Dr. Landry's evidence that the high conflict may contribute to a lack of resiliency, particularly on the part of A. [ 61 ] Ms. S. submits that she has been more effective than Mr.

S. at providing for the children's physical needs; she points, for instance, to evidence that she has provided the girls with appropriate clothing and footwear when Mr. S. failed to do so. She also points to evidence of Mr. S. that the children are more comfortable speaking to her about health and related issues, which she submits will become even more important in adolescence. She goes on to argue that the evidence shows that the children's emotional needs are not being met; she points, for instance, to evidence from the girls' journals, and from professionals such as Dr. M. and Dr.

Landry, suggesting that the girls are unhappy in their father's care. Combined with this, she says, the evidence (such as evidence of the strong degree to which A and V identify with her) suggests that she is the parent best able to meet their emotional needs. Her own evidence is that the girls confide in her. She also submits that she is more willing and able than Mr. S. to ensure that the children's need for contact with friends and family (such as the maternal grandparents) is kept up.

She also says that the evidence shows her to be the parent more willing and able to see that medical and related issues are pursued. She points to evidence that Mr. S. did not always pursue issues with medical professionals that she believed needed to be dealt with. [ 62 ] The essence of the claim that there has been a change in circumstances requiring a change in the status quo on custody appears to be Ms. S.'s submission that the children's negative feelings about living with their father in [...] have intensified during the last four years, with resultant harm to their well-being.

In the course of that time, there is evidence that A has been bullied at school since 2011. Further, the girls have a step-sister, born in 2011. Ms. S. says Mr. S.'s habit has been to minimize such issues, causing the problems to worsen, as they are not dealt with in a timely manner She says the girls have also witnessed their father denying access to her, including both telephone and in-person access, and claims that he has made negative comments about her in front of the children. She points to an incident where Mr.

S. allegedly told A and V that if they complained about him to other people, they would go to a foster home rather than spend more time with their mother. He has, she says, breached various parts of the existing order (such as frequently denying her the second weekly call) and made unilateral decisions without consulting her. [ 63 ] Ms. S. has structured her argument on custody on the pattern of the considerations outlined by Goodfellow J. in Foley .

She acknowledges the statutory direction that before varying a custody order, "the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order ” and “ shall take into consideration only the best interests of the child as determined by reference to that change": Divorce Act , s. 17(5). (To be clear, although this proceeding is concerned with the question of whether there should be a change in the status quo , this is not a variation application).

She also acknowledges, inter alia , the directions respecting custody orders in ss. 16(8) ("the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child") and 16(9) ("the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child"). Subsection 16(9) is mirrored for variation purposes by s. 17(6). [ 64 ] In

summary, Ms. S. says it is in the best interests of the children to live in her sole custody in [...], with regular access with Mr. S.. She has provided a detailed proposal for custody and access, including having the girls attend the school where she teaches, [...]. There would be “ liberal ” access with Mr. S., including daily phone or Skype contact; equal access to medical, religious, and educational information, and consultation in such decisions (with Ms. S. having the final right to make such decisions); and equal rights to attend appointments and events.

She also seeks unsupervised access between the maternal grandparents and the children, including overnight stays. [ 65 ] On the issue of willingness to facilitate contact with the other parent, Ms. S. submits that she proposes “ more access than the children have indicated they wanted with Mr. S. ” as well as “ willingness to facilitate contact between the girls and their step-mother and step-sister. ” She says this willingness to facilitate contact with Mr. S. is evident in her behaviour since the last decision, citing several instances where she invited him to events and gatherings during her access time.

In her brief she submits that she has invited Mr. S. to attend various events involving the children, such as Pathfinders ceremonies, dance recitals and first communion, as well as facilitating phone calls. [ 66 ] Ms. S. agrees that both parents are able to provide a suitable physical living environment for the children.

[ 67 ] As to discipline, another Foley consideration, Ms. S. submits that the evidence shows that her parenting style (as recounted to Dr. Landry) is more one of "talking" than of Mr. S.'s "hollering/physical style," as she describes it. There was some evidence through the experts that the girls had described incidents where Mr. S. became very angry, such as A's reported claim to Dr. M. that her father had grabbed her and squeezed her arm. Mr.

Whitzman reported that A told him that she and her sister were "scared" of their father, who had "temper tantrums" and told them they were "spoilt." She also told him, he said, that her father would "pretend" to be nice when other people were around. Ms. S. also cites passages from the children's journals describing "a lot of yelling in the house from Mr. S. and even Ms. L.. They also refer to corporal punishment, time outs, copying sentences several times, banging on the table, insulting, abandonment at Sobeys and on the side of the road (for a shorter period)." Ms.

S. also points to evidence that the Children's Aid Society had made recommendations to Mr. S. about his discipline techniques which he admitted in cross-examination he did not follow. [ 68 ] In

summary, Ms. S.'s position is that the evidence shows that the "children obviously respond better to their mother's discipline style as they have never reported to anyone that they have issues with it. [Their] mother has not identified having any significant discipline issues with the children either." [ 69 ] On the question of the parents as role models, Ms. S. points to evidence arising from such sources as school writing projects and journals, and the evidence of Dr. Landry and Dr. M., indicating that A and V look on her, but not Mr. S., as a role model.

Similarly, she submits, the evidence of the children's wishes makes it clear that they would prefer to live with her. She suggests that, as a practising Catholic, she will provide religious and spiritual guidance. She suggests that Mr. S. will not do this. [ 70 ] Ms. S. goes on to discuss the evidence given by the various experts during this proceeding. Dr. Landry was of the opinion that both A and V are experiencing compromised psychological health, particularly A, who he views as being at high risk of developing clinical depression.

He was of the view that if the current situation persists, V could develop a similar risk. He was of the opinion that the high level of conflict between the parents was impacting on the children. He foresaw a possible risk that A and V would refuse to have contact with their father and his family. Ms. Reddy-Chisholm was of the view that Ms. S. has made significant efforts to manage the effects of the separation on the children, as well as on Mr. S., and to improve communication. She also makes reference to Mr.

Whitzman's view that it would be in the best interests of A and V for the court to consider their wishes and to place them in their mother's custody, as, in his view, they see her as the parent better able to meet their emotional needs. [ 71 ] Another consideration raised in Foley is the time available for the children on the part of the respective parents. Ms. S. points out that being a teacher, she would have the same

schedule as the children if they were in her custody, reducing any need for sitters. She also points out that she has been willing to spend significant amounts of time travelling in order to spend time with A and V. She points to comments in the girls' journals suggesting that their father and stepmother do not spend a lot of time with them. [ 72 ] With respect to the children's cultural development, as well as physical and character development, Ms. S. proposes that they attend a French-language school in [...], thus continuing their education and cultural development in French.

She says she would be open to the children attending special cultural or family events with their father even if they occurred during her time with the children. Ms. S. says she encourages A and V to do activities such as reading, crafts, and science experiments, as well as facilitating physical and outdoor activities such as swimming and skating, and participation in Guides/Pathfinders. By contrast, she says, the evidence indicates that at their father's home A and V are often isolated in their rooms, reading, or watching television, rather than interacting with the family or other children their age.

As to emotional support to assist A and V to develop self-esteem and confidence, Ms. S. points to Mr. Whitzman's evidence respecting the children's views, and the evidence that they view her as a role model. She alleges that this emotional support is less available when the children are in their father's home. [ 73 ] Ms. S. takes the position that her financial contributions to the children's welfare far outweigh those of Mr. S..

She submits that she has been the most consistent financial provider throughout the children's lives, including by way of child support; she notes that she is not requesting the cancellation of her arrears. In addition to child support, she says, she buys items such as clothing, footwear, and books for A and V, as well as paying their Guides dues. They are also covered by her medical and dental insurance. By contrast, she says, Mr. S. has not held steady employment since before the children were born; he also failed to pay child support as ordered between 2007 and 2009.

As to the financial consequences of custody, she says she has borne the brunt of custody- and access-related expenses since the 2010 decision. If the custody arrangement is left unchanged, she advances a claim for relief based on undue hardship; if she receives custody, she does not rely on this argument.

[ 74 ] As to the support of extended family, Ms. S. says the move to [...] has deprived A and V of contact with their extended family on her side, and she asserts that Mr. S. has not accommodated such contact; for example, she takes issue with his continued insistence on supervision for her parents, despite their alleged close bond with A and V. By contrast, she submits, the evidence indicates that she ensures the children have the support of, and meaningful contact with, the extended family on her side. Mr.

S., however, has no relatives in Nova Scotia, though the children spend some time every year with his parents in [...], who also make occasional visits to Nova Scotia. She says her plan is to continue to facilitate contact for the children with both sides of their extended family. [ 75 ] There are legitimate concerns about the conduct of the maternal grandparents. In her decision, Justice Legere-Sers made serious criticisms of the conduct of the maternal grandparents in spreading allegations of abuse by Mr. S.. She gave directions for counselling before they would have unsupervised access to the children.

The maternal grandmother did not testify at the trial, but the evidence of Ms. S. and her father would suggest that she did not undertake such counselling as required. Certainly Mr. S. did not undertake the directed counselling. Instead, he sought out his own counsellor. In response to a question from the court, he said he spoke to a priest, in addition to seeing a counsellor he selected. This is not what Justice Legere-Sers ordered. [ 76 ] In addition to failing to undertake the required counselling, the grandparents ceased seeing the children. Mr. S. suggested that he could not manage the cost of supervision.

In my view the real reason was that he refused to be told under what conditions he could see his grandchildren, and consequently he stopped seeing them. His negative attitude towards directions by the court is evident from his conduct and testimony at trial. Notwithstanding the criticism of his conduct by Justice Legere-Sers, Mr. S.'s inappropriate behaviour continued at this trial. I have already discussed his credibility. As stated earlier, I do not accept his evidence except where it is confirmed by credible evidence from other witnesses. [ 77 ] Many of Ms.

S.'s witnesses, being friends and family members, in addition to praising her as a mother, spoke in equally glowing terms about the maternal grandparents. It was evident that many of these witnesses were only aware of the contents of the decision of Justice Legere-Sers as conveyed to them by Ms. S.. Although their praise of Mr. S. as a grandfather may have been accurate in the past, it was not an accurate description of his conduct in the volatile situation that accompanied the parties' marriage breakdown. His excuse for not seeing his grandchildren is just that – an excuse, not a justifiable reason.

His conduct throughout the breakup deserves only censure. In my view, he cannot be trusted with unsupervised or overnight access with these children. Their frail emotional and psychological health should not be further jeopardized by what he might say about their father. Any promises he might make are not credible. [ 78 ] Mr. S.'s proposal is essentially to maintain the status quo until mid-2014, when, he indicated, his family would move to the [...] area. At that point, he proposes, custody could be transferred to a shared parenting arrangement.

This proposal would appear to recognize the desirability of maximum contact between the children and their mother, as well as with their father. [ 79 ] I am satisfied in view of the considerations in the caselaw, such as Foley , that it is in the children's best interests at this time for their primary home to be with their mother. In coming to this conclusion, I am mindful that there is a history of alienating behaviour by Ms. S., which has contributed to the difficulties between the children and their father.

Nevertheless, alienation is not an absolute bar to granting primary, joint, or shared custody to the alienating parent; the question is what is in the best interests of the children: see, Anderson v. Renzetti , 2012 NSSC 361 , at para. 109 ; Baker-Warren v. Denault , 2009 NSSC 59 , at paras. 120-121 ; and Bruno v. Keinick , 2012 NSSC 336 , at para. 44 . [ 80 ] Accordingly, the terms of custody and access shall be as follows:

(1) The children's primary home shall be with Ms. S..

(2) Access will be every second weekend during the school year, with Mr. S. picking up the children after school on Friday. Ms. S. shall pick them up for the return at 6 p.m. on Sunday.

(3) There shall be two-week rotations of access during the summer, equaling half of the children's summer break; block access during half of the children's Christmas break, with Christmas alternating between the parents each year; block access during the March Break,

alternating between the parents each year; half of the Easter break (Good Friday and Holy Saturday/ Easter Sunday and Monday), with each parent getting Easter Sunday and Monday on alternating years; block access to Mr. S. on Labour Day, Thankgiving, Victoria Day and Remembrance Day; and access on all inservice days. Mr. S. shall have access on Father's Day, his birthday and on his daughter M's birthday, even where these fall on days when A and V would otherwise be with Ms. S.. Similarly, Ms. S. will have access on Mother's Day and on her birthday, even if those days fall during Mr. S.'s weekend access.

(4) Mr. S. will have access until 7:30 p.m. on one evening each week between Monday and Thursday during the school year. In exercising access, Mr. S. will pick the children up and drop them off at their home in [...].

(5) In the event of a special family, cultural or religious event which is important to one parent, if the other parent has access at that scheduled time they shall consider the request and attempt to be flexible so the children may attend.

(6) In terms of telecommunications, if they wish, the children may have daily phone or Skype contact with the non-access parent. The children may also speak with their step-mother and step-sister when they wish.

(7) The parents shall have equal direct access to medical, religious and educational information. They shall have the equal ability to attend medical appointments for the children including family doctors, specialists and psychologists.

(8) Both parents can attend school meetings, extracurricular events, concerts, plays, etc. with the children following the protocol set up in the last decision Ms. L. and the children's step-sister M would also be welcome to attend.

(9) Both parents will consult on all major issues regarding educational, spiritual, emotional and medical intervention. If there is no consensus, Ms. S. shall have the right to make the final decision, ensuring that she has the advice of the medical or educational authority to support any major decision she makes.

(10) On urgent matters, the parent with the child shall take urgent action and immediately inform the other parent.

(11) Neither parent may move the children to another province without consent of the other, or pursuant to a court order.

(12) The parents shall consult on extracurricular activities and keep one another informed of the children's progress and events.

(13) The maternal grandparents may have supervised access for up to four hours, twice per month. Ms. S. may supervise. They will not have overnight access.

(14) Neither party shall speak ill of the other in the presence of one or both of the children, nor shall they allow either child to remain in the presence of any other person who is doing so. [ 81 ] Providing Mr. S. has taken steps to move to the [...] area by mid-2014, as he indicates is his present intention, there will be a review of the custody order in August 2014, with a view to designing a custody and access plan that will then provide maximum contact with both parents. Child Support [ 82 ] The Divorce Act provides for the court to award child support at

section 15.1 , which provides, in part: 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) ... shall do so in accordance with the applicable guidelines. Terms and conditions

(4) The court may make an order under subsection (1) ... for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just… Ongoing child support [ 83 ] Ms. S. takes the position that Mr. S. should pay the table amount of child support if the children are placed in her sole custody. For his part, Mr. S. proposes the following: Child support payments continue by the mother to the father based on a salary of $25,000.00 until September 1, 2014.

In September 2014, the parents will have shared custody arrangement… The first step is to look at what each parent would pay the other if they had sole custody. Ms. S., at $75,000.00, would pay $1035.00. Mr. S. at $25,000.00 would pay $363.00. The difference between the two amounts is $672.00. Mr. S. has to move and find work, and has a large family requiring a larger housing unit. It is submitted that the Court should take the means and conditions including the move and the new employment and larger housing needs and order a payment of $700.00 a month, starting September 2014.

Such a payment would be difficult to appeal and therefore again help stop the litigation. The court could add a condition to the Order, ordering the parties to adjust the payment in September 2015 in accordance with the 2014 income tax returns. [ 84 ] I take the first reference to a salary of $25,000 to be a misprint; the next paragraph indicates a salary for Ms. S. of $75,000. [ 85 ] Based on the evidence filed as to incomes in 2011 (the most recent year for which income tax returns for both parties were before the court at trial), Mr. S.'s income for child support purposes would be $22, 472.77 and Ms.

S.'s would be $76, 439.84 (these figures are drawn from line 150 of the parties ’ tax returns). This results in a table amount payable by Mr. S. of [Basic amount ($312) + 1.72% of amount over $22,000 ($8.13)] $320.13. Arrears of child support [ 86 ] Ms. S. seeks child support arrears for the period September 1, 2007, to May 8, 2009, payable under the July 24, 2007, interim order of Scanlan J. (as he then was) while the children were in her custody. Justice Scanlan ordered Mr. S. “ to pay child support commencing September 1, 2007, using the table amount in accordance with the Child Support Guidelines once Mr.

S. ’ s income has been determined. ” He did not order support for July or August 2007, “ in order to give Mr. S. an opportunity to obtain alternate accommodations and furnishings suitable for himself and the children during visits. ” [ 87 ] There is no indication whether Mr. S. ’ s income was ever determined for support purposes. Line 150 of his 2007 income tax return shows total income of $20,262.00, comprised of T4-reported earnings of $15,943.00 and employment insurance benefits of

$4,319.00. His 2008 return shows total income of $26,257.00, based on T$-reported earnings of $14,879.00 and employment insurance benefits of $11,378.00. In 2009 his total income was $27,972.00, based on earnings of $11,378.00 and employment insurance of $16,594.00. There is no basis upon which this court can confirm the income that served as the basis for his child support obligation, if, indeed, it was ever established. [ 88 ] Mr. S. says any arrears owing by him should be set off against arrears owing by Ms.

S. for the period between September and December 2009. [ 89 ] Between May 8, 2009, and July 2009, the children were in joint custody, and no support was payable. In December 2009 Legere-Sers J. ordered Ms. S. to pay support starting January 1, 2010, in the amount of $1033.00 per month, based on an annual income of $74,000. Ms. S. says she was initially unable to pay on account of her circumstances, including bankruptcy, medical costs, and her need to represent herself in court. Initially, at least, her payments were made by way of garnishment from her salary.

She says she has paid off “ most ” of her arrears, and that she has made all her payments since May 2010. There is no identification of the amount still owing. Consequently, this court does not know the remaining amount. [ 90 ] The uncertainty as to the quantum of arrears attributable to both parties tends to support Mr. S. ’ s position that their respective arrears should be offset. It is not for the court now to speculate as to what, if any determination, was made as to Mr. S. ’ s income for child support purposes, and the evidence is insufficient to determine what amounts Ms. S. has paid off.

In the circumstances, I will not order any arrears of child support to be paid by either party. In the circumstances, I am not satisfied that an order for arrears would serve the best interests of the children. Undue hardship [ 91 ] In the event that the custody status quo was maintained, and Ms. S. was required to continue paying child support, she sought a variation of the amount of child support otherwise payable due to undue hardship, on the basis of high access costs and medical expenses. She claimed that her move to [...] for work entails high access costs.

If she is not required to pay child support, of course, this aspect of her application is not applicable; nevertheless, in the alternative, I will consider her arguments. [ 92 ]

Section 10 of the Federal Child Support Guidelines permits a reduction of child support on the basis of undue hardship on the part of the payor parent or the child: s. 10(1). Several relevant considerations appear at ss. 10(2)-(4): Circumstances that may cause undue hardship

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following: (

a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living; (

b) the spouse has unusually high expenses in relation to exercising access to a child; (

c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person; (

d) the spouse has a legal duty to support a child, other than a child of the marriage, who is (

i) under the age of majority, or

(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and (

e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability. Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse. Standards of living test

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in

Schedule II. [ 93 ] As Forgeron J. stated in Tutty v. Tutty , 2005 NSSC 338 , at para. 23 , the discretion provided by

section 10 "is not unfettered. Courts must be cautious in granting undue hardship applications. Cogent and specific evidence must be advanced if the table amount of child support is to be displaced." The Court of Appeal considered the application of the undue hardship analysis in Gaetz v. Gaetz , 2001 NSCA 57 , at para. 15 : The Guidelines authorize a court to depart from awarding child support as calculated in the tables only when the payor spouse or a child, on whose behalf a request is made, would suffer undue hardship. This is determined by a two-step test. First, s. 10(2)(

a) to (

e) of the Guidelines , lists circumstances which must be considered: there must be a determination that the spouse has an unusually high level of debts incurred in the family context, high access expenses, or several instances of legal duties of support to a child or other person other than a child of the marriage. Only when circumstances capable of creating undue hardship are found does the second step become relevant - the comparison of the standards of living of the households of the payor spouse and the custodial spouse. [ 94 ] In Wainman v.

Clairmont , 2004 NSSC 39 , Hall J. said, at para. 25, that "[w]hether access expenses are "unusually high" … must be determined based on the relative financial means of the parent responsible for the access expenses. For an affluent person, a few hundred dollars a month for access expenses would be a pittance, while for a person dependent on social assistance for his or her living expenses, it would be an impossibility." [ 95 ] Ms. S. says the evidence establishes that the parties' respective households have different standards of living. Despite her own higher income, she says Mr.

S.'s household has more disposable income. Ms. S. maintains that she experiences undue hardship due to high access costs in addition to her living expenses, self-representation legal expenses and medical expenses. As for Mr. S.'s household, she claims that he and Ms. L. have not provided sufficient verification of their household income. She points out that they both advertise businesses online, but apparently claim no income from them; Ms. L. sold handmade purses, but stated on cross-examination that she keeps no accounting of revenues from the sales, while Mr.

S. claimed to have no revenue from his own business. [ 96 ] Ms. S. goes on to set out extensive calculations respecting Mr. S.'s household income, as well as questioning his qualification for Legal Aid. Mr. S. submits that Ms. S. has not established undue hardship. [ 97 ] I am not satisfied on the evidence that there was any significant net income from the internet business, crafts, and other activities engaged in by Mr. S. and Ms. L.. [ 98 ] Ms. S. presented extensive evidence relating to the cost of travelling between her residence in the [...] area and [...].

She also led evidence of her expenses in respect of treatment and rehabilitation relating to injuries she suffered in a car accident as a teenager.

However, her future medical expenses are not a circumstance to be considered on an undue hardship application. [ 99 ] In view of her income, Ms. S.'s expenses in exercising access cannot be said to be "unusually high." As such it is not necessary to proceed to the next step, namely comparing the parties' respective standard of living. However, if such a comparison were required, the evidence is overwhelming that Ms. S. enjoys a much higher standard of living than does Mr. S.. A review of their respective budgets as well as a comparison of their incomes leaves no serious doubt on this point.

Apart from the parties' respective financial responsibilities towards their two children, Ms. S. provides only for herself, while Mr. S. has a partner and a small child. As such, even if it were necessary to consider the undue hardship argument, it would be dismissed. Spousal support [ 100 ] Spousal support is one of the few areas of agreement between the parties. Ms. S.'s position is that neither party should receive spousal support. Mr. S. agrees. Matrimonial property [ 101 ] The court's authority to make a division of matrimonial assets is found in the Matrimonial Property Act , RSNS 1989, c. 275.

The Act presumes division "in equal shares, notwithstanding the ownership of these assets": s.

Section 13 permits the court to order an unequal division in certain circumstances. It pro

[…]