J.B. Applicant v. B.F., 2023 NBKB 55

J.B. v. B.F. - 2023 NBKB 055 FDC-76-2020 COURT OF KING'S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF CAMPBELLTON BETWEEN: J.B. Applicant -and- B.F. Respondent Topics: Decision-making responsibility, parenting time ant contempt of court BEFORE: The Honourable Mr. Justice Larry Landry AT: Campbellton, N.B. DATE OF HEARING: November 23, 24, 25, 2022 DATE OF DECISION: April 5, 2023 COUNSEL: Gabrielle Doucet for the Applicant Kevin Hach é for the Respondent

DECISION Landry J. (orally): [ 1 ] A father, J.B., is asking for a variation of a parenting order in respect to his two children who are two and eight years old. He requests full decision-making responsibility and most of the parenting time. He also asks that the mother be found in contempt of court for having prevented the children from going with their father as per an existing court order.

This is a high- conflict case where the parents have come to court ten times over two years. [ 2 ] The mother, B.F., wants shared decision-making responsibility and parenting time and states that she should not be found in contempt. [ 3 ] Child support is also an issue. The 2021 order [ 4 ] On August 13, 2021, I heard the father’s application and filed a written decision on October 18, 2021. I also signed a parenting order on that same day. 1 The parents had agreed on shared decision-making responsibility for both children and on shared parenting time for their son, who was then seven years old.

Both parents wanted to have the final say in case of disagreement on important decisions, but I declined to give priority to either of them. ______________________________________ 1 Record on Motion, pages 22-36. [ 5 ] Their daughter was only one year old. I ordered a progressive increase in parenting time with the father, adding that the goal would be to eventually come to equal time with each parent. At first, there was no overnight access for the father and his daughter, but I ordered that it starts with one night a week in November 2021, with increases in January and March 2022.

I also ordered a review of the parenting time for the youngest child within a year from the order, because of her young age. The review became part of this motion. [ 6 ] Child support was set at $580 per month, payable by the father to the mother, and special expenses were to be shared by the parents: 78% by the father and 22% by the mother.

The only expense was health insurance premiums. [ 7 ] I note, en passant , that in my decision of October 18, 2021, I had mentioned the presumption of shared parenting time and decision-making responsibility found at ss. 52(1) of the Family Law Act . 2 This new Act had come into force a few months before the hearing of the application. However, ss. 52(1) had not been and is still not proclaimed yet. It is thus not in force. [ 8 ] Also, I will add that after the 2021 hearing, the father got married. His wife is a former friend of the mother and her family.

She was already engaged to J.B. when I heard his application, although I did not mention it in my decision. I believe that it is relevant to mention it now because it has an impact on the overall situation of everyone involved. ______________________________________ 2 S.N.B. 2020, c. 23 . Since the 2021 order [ 9 ] Thirteen months have elapsed between my decision and the hearing of the present motion. Some serious events happened in the meantime. The police and child protection services were called to get involved more than once. However, in the last five months before the hearing, things calmed down.

[ 10 ] I will only mention the two main events which lead to loss of parenting time between the father and the two children. Other incidents happened and although not discussed here, were taken into consideration in this decision. [ 11 ] On December 1 st , 2021, the father’s wife T.B. stopped at the mother’s residence to drop the child D.F. on her way to bringing the other child D.B. to school.

Words were exchanged in front of the son by the father’s wife, the mother and the maternal grandmother. [ 12 ] The child was upset by the conversation, he was not letting his mother go and B.F. was holding on to him as well. T.B. said it was time to leave as D.B. would be late for school. She shifted her vehicle into reverse, which made it move a bit, onto the mother’s boot. This created a commotion but no injury. As a result, D.B. then went into his mother’s house. Then, he did not see his father for three weeks.

When I ordered that the parenting time immediately resumes, on December 21, 2021, everything went well shortly after, for about six months. [ 13 ] The second main incident happened on June 23, 2022. D.F. was at her father’s place. Three months before, J.B.’s wife had given birth to his third child. On June 23, D.F. tried to sit in her baby sister’s infant seat or chair, which was too small for her, and she got stuck. When D.F. was returned to her mother, red marks were visible on her thighs. The following day, the mother said the marks had become bruises and she brought D.F. to the hospital.

She was worried that the father could have abused their daughter. Child protection and the RCMP were advised, but eventually nothing came out of this. Nevertheless, the father was prevented from seeing his daughter for 13 days. Again, everything came back to normal until this motion was heard, five months later. [ 14 ] As I had found in my decision on the application, communication between the parents is still not perfect.

It is still a concern, mostly when serious events happen, like those I just described. [ 15 ] During that period and in preparation for the upcoming hearing, the parties had agreed to be assessed by a psychologist. Their son was also part of the evaluation. The Psychological Assessment [ 16 ] Psychologist Christine Martin performed the assessment of both parents and their son D.B. She then prepared a report dated November 15, 2022. 3 She also testified at the ______________________________________​​​​​​​______ 3 Supplementary Record on Motion

Part II, pages 54-73 (tab 9). hearing. She met both parents three times for testing and interviews. She also met D.B. twice. She did observation sessions at each parent’s home, with both children present. [ 17 ] Ms. Martin wrote that it would be in the best interests of the children that they have equal access to both parents. However, for this to succeed, the psychologist also lists many recommendations, one of which being that a parent coordinator be hired as soon as possible. Without this, she testified that there would be “ not much chance of success ”.

She also insisted on a clearly designed and well-defined parenting plan, “ leaving no room for ambiguity or argument to arise ” 4 . [ 18 ] Amongst other recommendations, Christine Martin also spoke of hiring a sleep coach to help establish a routine for the children, of mental health support for both parents and their son and of the importance of parents’ cooperation and attitude.

She concluded this part of her report by adding that “ In the event that these recommendations are not respected, and conflict remains, this assessment should be updated, and the custody arrangement reviewed. ” 5 [ 19 ] The assessment thus shows that both parents have “ personality characteristics that contribute to their conflictual co-parenting relationship and related difficulty to parent their children. They both have a responsibility in the

continuation of the high-conflict situation they are in ” 6 . _________________________________ 4 Ibid ., p. 72. 5 Ibid ., p. 73. 6 Ibid ., p. 70. [ 20 ] According to Ms. Martin, because, amongst other reasons, of B.F.’s feeling of having been betrayed by J.B. and his wife, her resentment has a negative impact on her ability to form a healthy coparenting relationship and to think objectively in the best interests of her children. Although she did tell the psychologist that she was making efforts to let go the past, “ She nevertheless proceeded to accuse Mr.

B. of various failures and shortfalls with conviction ”. 7 The results of various psychological tests and interviews showed the following: As for thought dysfunction, her results suggest she has prominent persecutory ideation, including a strong belief that others seek to harm her. She is very likely to be suspicious and distrustful, to experience serious interpersonal difficulties as a result of pervasive interpersonal suspiciousness, and to lack insight. Ms.

F. may tend to blame others for one’s problems and to rationalize one’s misbehavior. (…) inadequate parent-child communication [with D.B.] (and) overly permissive parenting style [with both children] Persistent depressive disorder and an anxiety disorder [with] maladaptive personality traits (i.e. dependant, antisocial and avoidant traits) 8 [ 21 ] As for J.B.’s tests results and interviews, they also show hurdles to healthy coparenting: arrogant attitude (believes he knows better) compulsiveness or rigidity; suspiciousness; inflated self-esteem; and history of antisocial behavior _________________________________ 7 Ibid ., p. 58. 8 Ibid ., pp. 59-60, 67. thought disfunction relating to ideas of persecution such as believing that others seek to harm him inadequate parent-child communication [for D.B.] (and) overly permissive parenting style [with D.F.] maladaptive personality structure or Personality Disorder (PD), mostly narcissistic and antisocial traits

rigid attitudes towards the appearance and behavior of children (“children should be seen and not heard”). 9 Best interests of the children [ 22 ] The only consideration in this case is the best interests of D.B. and D.F., as per s. 50 of the Family Law Act . Many factors can be considered and some of them are listed in ss. 50(2).

Priority is given to the children’s physical, emotional and psychological safety, security and well-being. 10 [ 23 ] The Act also provides that children should have as much time with each parent as is consistent with their best interests. 11 In that regard, both B.F. and the psychologist that she chose, Christine Martin, told the court that the parenting time should be equally divided between both parents. Mr. B. thought so at first, when his application was heard in 2021.

This is also what I had in mind at the time as what would be the goal for both children. 12 Now, the father is of the opinion that he should be getting full decision-making responsibility and most of the parenting time. _________________________________ 9 Ibid ., pp. 62-64, 68. 10 Family Law Act, S.N.B. 2020, c. 23 ss. 50(3) . 11 Ibid ., ss. 50(6). 12 Record on Motion, p. 31, paragraph 19. [ 24 ] I will now look at the relevant factors found at ss. 50(2) of the Act . [ 25 ] The children, of course, need stability. D.B. is eight and D.F. is only two and a half.

They need to be in an environment where they can feel loved and safe. The psychologist saw them in both households and had no major concerns in respect to love and safety. However, she did note that when at the mother’s place, there are much less discipline, the food on that day was not healthy and D.B. was doing as he wants, without listening to his mother.

She wrote that “ D.B. often have (sic) his way and tends to be oppositional ”. 13 At the father’s house, the children were respectful of the rules, with a positive attitude. [ 26 ] It is obvious from the evidence and the psychologist’s interviews with the mother that discipline is not a priority for her. She says she uses gentle parenting. I see it more as almost no parenting. She is there to ensure that her children are loved and physically safe, but when the times come to teach them life, she fails.

For instance, even though D.B. is now eight years old, he still sleeps with both his mother and sister, all in the same bed, at least until the hearing of this motion. B.F. seems to know that it is not appropriate, but she says that she’s not ready to fight this battle. [ 27 ] The same goes with discipline in general, like screen time or when and what to eat. It appears that the children are the bosses. Since the children are not able to know ____________________________________ 13 Supplementary Record on Motion

Part II, p. 61. where their mother put the limits, if any, this can bring stressful situations. As Christine Martin wrote, “ she sometimes feels overwhelmed and lose her temper with the children ”. 14 [ 28 ] The father might be too strict with rules, although it did not appear to cause any harm when he

was observed with his children. Nevertheless, there is some evidence that D.B. felt that he could not go out of his room at night for any reason, which appeared to stress him somewhat. [ 29 ] Children need a steady routine to develop well, and in this matter, the mother is not able to provide it to them. Another example: when at his mother’s place, D.B. is often missing school. [ 30 ] The relationships between the children and both their parents are strong. The same appears to be the case with the grandparents and between D.B. and D.F.

They are also developing bonds with their new sister. [ 31 ] D.B. was almost six when his parents separated but D.F. was born after separation. The son has been living equally with both parents for most of the time since separation. J.B. had difficulties, at first, to have time with his baby girl D.F., but eventually, with the court’s involvement, the parenting time increased progressively.

In December 2021, the court also had to intervene when the mother was not able to have D.B. go see his father. _________________________________ 14 Ibid ., p. 58. [ 32 ] Now, D.B. is back to normal with his father and seems to be happy with the fact that he shares his time between his two parents.

D.F. is too young to express any views. [ 33 ] As mentioned earlier, the parties’ ability or willingness to communicate with each other is often affected by events that bring drama. [ 34 ] One important factor is each parent’s willingness to support the development and maintenance of the children’s relationship with the other parent. The court has serious concerns in that regard concerning the mother.

In my previous decision on the application 15 , in 2021, I had given her the benefit of the doubt, but mentioned her “ unfounded fear of going too fast ,” when dealing with access between the father and their daughter. [ 35 ] Now, that fear has turned into some kind of paranoia towards the father. In court, she now says that she agrees with equal parenting time for both children and their parents. Nevertheless, her actions since the 2021 order say otherwise.

Most of her interviews and testing with the psychologist were held in the few months before the hearing of this motion and she still had a lot to say against the father. [ 36 ] The father is now afraid that the mother’s behaviours and resentment towards him will alienate the children from him. In fact, as we heard in psychologist Christine Martin’s testimony, D.B. was successfully alienated in December 2021 and did not want to go _________________________________ 15 Record on Motion, p. 31, paragraph 18. with his father anymore. It lasted for three weeks.

Had the court not intervened, it could have lasted much longer. [ 37 ] The mother did testify that she tried to have D.B. go see his father but to no avail. She had also asked the father to come at her house and speak with his son. However, past experience with the father seeing their daughter at the mother’s residence at first made it clear that it was not a good idea that he enters B.F.’s house.

[ 38 ] When the court told B.F. that she did not have a choice and had to find a way to have her son go with his father, otherwise the police would be involved, she achieved to do so. Everything went well immediately thereafter between D.B. and his father. [ 39 ] Six months later, though, it was D.F. who was prevented from seeing her father because of the unfounded allegations of abuse. In her affidavit dated September 22, 2022, the mother said that she brought D.F. at the hospital and was told at triage that the bruising resembled finger marks.

She also stated that the doctor at the emergency noted a high suspicion of physical abuse hand marks. [ 40 ] Nevertheless, when we look at the hospital records that she attached to her affidavit, it is not as clear. At triage, the nurse apparently wrote that the chief complaint for consultation was bruising that looks like finger marks. Then, in the doctor’s notes, we can read in French: HX (which means medical history) fait seulement avec la mère, inquiet (sic) d’abus du père , which can translate to “medical history done only with mother, worried of abuse from father”.

The notes also say “ Selon père, blessure avec chaise ha...” (According to father, injury with seat or chair). In any event, child protection services were called by the hospital. The file was quickly closed but D.F. could not see her father for 13 days. [ 41 ] Christine Martin could not confirm that the mother was in fact alienating the children. She did say, however, that there was some indication of alienation.

She gave another subtle example: the mother would not say “ your dad ” to the children when speaking about their father but would rather call him by his name. [ 42 ] Before this motion, J.B. has never attempted to prevent the children from having a relationship and at least half of the parenting time with the mother. Now, because of his fear of being alienated from his children, he has changed his position.

Although he does not want to stop D.B. and D.F. from seeing their mother, he is asking that their time with her be significantly reduced. [ 43 ] He bases his request on the psychologist’s recommendations that the mother needs to receive regular mental health support to assist her in dealing with past trauma, anxiety, mood instability and her difficulties to deal with and accept her situation. 16 She also recommends that the parents hire a sleep coach and a parenting coordinator.

The goal is to remove the children from the mother’s bed when at her place. _________________________________​________ 16 Supplementary Record on Motion

Part II, page 72 (tab 9). [ 44 ] J.B. believes that it is necessary that those recommendations be followed in the best interests of the children. However, he doubts that B.F. will follow them. Once again, he relies on Christine Martin’s report and opinion: When we discussed her willingness to make change in the best interests of her children, she (…) indicated “it depends” and she was not sure it was possible. (…) I was not convinced that she was fully on board with the upcoming recommendations, and I am expecting resistance from her. 17 [ 45 ] In her testimony, Ms.

Martin said that the mother tends to take the easy way out. She was asked if that could mean that she won’t go to therapy and she answered that “ it could be ”. [ 46 ] All that being considered, I infer that it is the psychologist’s opinion that there are very high risks that B.F. will not follow through with therapy unless she feels compelled to go. Despite all this, Christine Martin still opined that it would be in the best interests of the children to have equal access to both parents. 18

[ 47 ] Until now, both parents have been for the most part equally involved in the care of D.B. As for D.F., it was difficult at first for the father to get parenting time with her. 19 Now, he is getting more and more involved with her, and she comes at his place on a regular basis 20 , except, of course, for the three weeks in June following the baby chair incident. __________________________________________ 17 Ibid ., p. 58. 18 Ibid. , p. 71. 19 Record on Motion, page 29. 20 Modified Parenting Order dated September 27, 2022, found in the Supplementary Record on Motion

Part II, page 50. [ 48 ] As mentioned earlier, D.F. is too young to express her views and preferences. D.B. indicated to the psychologist having fun at both houses. What is affecting him is when his parents are fighting. Since it did not happen during the last few months before the hearing, including during the evaluations, he mentioned that fighting is something of the past. 21 [ 49 ] D.B. is going for therapy and Ms. Martin recommends that it continues. Both parents agree. [ 50 ] Both parents love the children very much. Both want to take care of them.

Overall, the father is able and willing to do it and to meet the needs of the children. The mother has more difficulty in various fields: discipline and sleeping routine are the most obvious. At this time, I am not convinced that she is willing or ready, as she puts it, to fight the necessary battles for the good of the children. She is able and willing to cuddle them, to make sure that they eat and have a roof over their head, to love them, but sometimes, love is not enough. [ 51 ] Communication between the parents is still very difficult but it varies a lot. Before court hearings, it goes better.

Once again, because of the mother’s bitterness and resentment as explained by the psychologist, she has a very difficult time putting the children’s best interests first. __________________________________________ 21 Supplementary Record on Motion

Part II, page 65 (tab 9). [ 52 ] Behaviours of both parties and sometimes other family members, in front of the children, have affected D.B. a lot. Both parents are to blame for this. This kind of verbal violence is not directed at the children, but still has an impact on them. This is part of the reasons why D.B. is being treated and suffers from anxiety. [ 53 ] Having considered all those factors, I must now give primary consideration to the children’s physical, emotional and psychological safety, security and well-being. The physical needs are not a real concern in light of the evidence.

It is the emotional and psychological needs that are worrisome in the present situation. The mother must do some real serious work to be able and willing to meet them. There are many concerns to work on, as opined by psychologist Christine Martin. [ 54 ] One of the most important ones is to make sure that she does not transfer to the children her resentment and bitterness towards the father.

Because up until now, consciously or not, she is often alienating the children from the father, mostly D.B. since he is old enough to feel his mother’s attitude towards his father. [ 55 ] The father also has shortfalls that he must work on. But at the present time, he is the one more able to show the most maturity and the most prepared to give priority to the children.

[ 56 ] For those reasons, J.B. will have exclusive decision-making responsibility in respect of both children as well as most of the parenting time. There will be a transition period but progressively, it will come to a

schedule where the mother will have parenting time with the children every other weekend, from Friday after school to Monday at 8 a.m., plus overnights every Wednesday to Thursday. A more detailed parenting plan will be part of an accompanying order. There will also be additional parenting time with the mother during the summer and holidays. [ 57 ] The father proposes that after B.F. work seriously on Christine Martin’s recommendations and hopefully makes progress, that shared parenting time would come back.

This, of course, would be the goal as the children will be much better with a healthy relationship with both their parents. The father will have to remain open to this option. His lawyer said in her closing remarks that he no longer wants to come back to court. If B.F. in fact does what is expected from her and J.B. does not acknowledge it and does not follow through with his own promises, everybody may very well be coming back to court in a year or two. The mother’s therapy results would most likely be considered an important change in circumstances.

Child support [ 58 ] Child support paid by the father for the benefit of the children will stop immediately as he will have the majority of the parenting time. [ 59 ] The father now asks that the mother pays child support and wants the court to impute an income to B.F. She does not work and receives social assistance. In 2021, her taxable income was $10,446. She does not have a plan to return to work as she wanted to stay home with the children.

Before she gave birth, in 2020, she had worked as a filing clerk with her stepfather, a medical doctor. [ 60 ] Now, J.B. is saying that B.F. is voluntarily unemployed and that she should have an obligation to provide financially for the children. He is thus asking that an imputed income based on a full-time job paid at least $15/hour be attributed to the respondent and that she pays support accordingly, i.e. roughly $450/month. [ 61 ] B.F. says that this question was not thoroughly investigated and that there is not enough evidence to impute an income.

Not much was said either about her education, experience and health condition. She did not file up-to-date financial information although it is not disputed that she does not work. She co-owned two houses for a while, but it was either with her mother or her stepfather.

The particulars are not clear, but it appears that she still jointly owns the house where she lives in McLeods. [ 62 ] From her testimony and based on the findings made in the decision I rendered on the application in 2021, it appears that when she needs money, her parents provide it and that it is not a problem. [ 63 ] Then, should an income be imputed to her?

Section 19 of the Federal Child Support Guidelines deals with this issue, and it states that the court may impute an income as it considers appropriate in the circumstances, some of which are listed. [ 64 ] I have considered the relevant circumstances, one being that she might very well be intentionally unemployed. Sometimes, there might be circumstances where it is reasonable for a parent to stay at home with younger children. Here, D.F. is only two and a half years old.

However, she will now be living mostly with the father. [ 65 ] On the other hand, the plan is that B.F. will follow therapy and work on regaining equal parenting time with her children. This will be hard. It may be difficult to work on her mental health and work full time. Most probably, if she is not successful with the therapy and other recommendations from the psychologist, it may very well be that in a year from now, nothing will have changed. In such a case, this question of support could be revisited.

More evidence would then be needed and both parties would have to put their best foot forward to convince the court of their position. [ 66 ] In the meantime, no support will be payable by B.F. to J.B. for the benefit of the children.

[ 67 ] B.F. was claiming compensation for special expenses that she has incurred for the children. She says she has a lot of receipts. However, none were entered into evidence. J.B. did not really bring evidence on special expenses either. [ 68 ] Any past special expenses are hereby disallowed except the one already included in a previous order. No other special expenses will be part of the order. The pro-rata share of each parent for the medical and dental insurance premiums attributable to the children will be adjusted pursuant to the latest income information.

Costs [ 69 ] Costs are not ordered often in cases involving decision-making responsibility and parenting time. It is usually not appropriate, keeping in mind the effect it can have on the children. [ 70 ] The applicant is asking for costs in this case because of what he considers to be bad faith on behalf of the respondent, for instance in keeping the children away from him and cancelling the first overnight he was supposed to have with his daughter. [ 71 ] As this is a discretionary order, even though the father did have the most success on the previous issues, I will not grant costs for this part of the motion.

Contempt of court [ 72 ] J.B. is also asking that I find B.F. in contempt of court for not having followed a previous parenting order. This is a whole different issue. Even though it is brought by the applicant, it is a matter between the respondent and the court. She is accused of not having complied with what the court had told her to do. [ 73 ] This is a quasi-criminal matter, and the burden of proof is different. It must be proven beyond a reasonable doubt that she is in fact in contempt of court whereas for the previous issues, I had to render a decision based on a balance of probabilities.

Contempt proceedings are governed by rule 76 of the Rules of Court . [ 74 ] Six allegations of contempt are found in the Modified Notice of Motion dated December 16, 2021. 22 The first allegation found at paragraph 30 has been withdrawn by the applicant. The one found at paragraph 32 speaks of a breach of an order that I would have signed on September 14, 2021. No such order exists, so there is no contempt. Four other charges remain. [ 75 ] B.F. had actual knowledge of the orders she is alleged to have breached. This was not an issue. We will now look at each remaining allegation.

November 2, 2021 (paragraph 31 of the Modified Notice of Motion) [ 76 ] The order that I signed on October 18, 2021, provided, at paragraph 8 (c), that a first overnight visit between D.F. and her father would occur on November 2, 2021. B.F. did not bring the child to her father, as per paragraph 9 of the same order. She admitted this during cross-examination. However, she said that the child was sick and called J.B. to tell him.

He did not agree that the visit be postponed or changed. __________________________________________ 22 Record on Motion, pages 70-72. [ 77 ] Paragraph 15 of the order stated that “ If one or both children are sick (…), the visits may be

changed or shorten to accommodate the children or their safety ”. [ 78 ] I have doubts as to if D.F. was really sick on that specific day when she was going to sleep at her father’s place for the first time. In the decision I rendered on the original application, on the same day I signed the October 18, 2021 order, I wrote that the mother did not agree with overnight parenting time for D.F. and then, that she had an unfounded fear of going too fast. Consequently, I suspect that D.F. may not have been that sick on November 2.

However, it raises a doubt and the order provided for a change in the visits in case of sickness. [ 79 ] The order did speak about modification of parenting time by agreement. Here, there was no agreement. I cannot find beyond any reasonable doubt that this is a contempt of court by the mother.

Harassing and interfering (paragraph 33 of the Modified Notice of Motion) [ 80 ] In this allegation, the applicant states that B.F. would have harassed and interfered with him, contrary to paragraph 9 of an order signed by justice Frederick Ferguson on September 14, 2020. [ 81 ] Like I said earlier, we are in a quasi-criminal proceeding and the charge or allegation of contempt must be clear and contain specific elements, such as the date and the alleged breach of the order. Here, there is no date and no specific events mentioned in the allegation.

It only states that the harassment and interfering were “ as per the events described in the Applicant’s affidavits in support of this motion ”. [ 82 ] Like an accused in a criminal matter, a respondent on an application for contempt must know what exact charge she faces and when the alleged facts happened. Here, it is not the case. This application is dismissed. Derogatory remarks (paragraph 35 of Modified Notice of Motion) [ 83 ] J.B. alleges that B.F. breached paragraph 20 of the same order dated October 18,2021.

Pursuant to the order, the parties were to refrain from making derogatory remarks about the other parent in front of the children. [ 84 ] Here, the applicant states that the respondent told D.B. that his father was lying to him, that he made him take sleeping drugs and that he does not tell him when she called to speak to him. The first problem with this allegation again is that it does not specify when and where it happened.

For that reason alone, I must dismiss this application, as I did with the one found at paragraph 33 of the Modified Notice of Motion. [ 85 ] But if I would be wrong with this reasoning, I must also add that I don’t see evidence in the record and during the testimonies that would prove this beyond a reasonable doubt. For instance, there is an audio/video recording 26 on which we can hear someone ask D.B. about sleeping pills. However, the oral testimony showed that this was said by the maternal grandmother and not the respondent.

December 1 st to 16, 2021 (paragraph 34 of the Modified Notice of Motion) [ 86 ] Finally, this allegation is related to the December 1 st incident, in 2021, which is described earlier in this decision. Basically, after the incident, the mother claims that their son D.B. no longer wanted to go with his father. J.B. is thus alleging that B.F. is in contempt of court by having withheld D.B. from going at the scheduled parenting time with his father, from December 1 st to 6 and December 13 to 16, 2021.

Parenting time was alternating every week with each parent, pursuant to paragraph 4 of the order dated October 18, 2021.

[87] In this case, the mother admits the facts, but she says that she could not convince their son to go with his father after the incident of December 1st, 2021. She also admitted that on the dates of the allegation, it was supposed to be thefather’s parenting time. At the time, D.B. was seven years old. [88] B.F. also testified that she tried to send D.B. with his father, but to no avail.

She said in hertestimony that “it’s not right to drag a child at the other parent”. __________________________________________ 26 Exhibit C of Supplementary Affidavit of the Applicant dated December 16, 2021. [89] In the case of McIntyre v. McIntyre23, a mother requested that a father be found in contempt ofcourt for withholding their son from returning with her pursuant to a court order. The court found that the 10-year-old child consented tostay with his father, was upset and cried when his mother called to ask him to come back and the father thought it was in the child’s best interests to stay with him.

Smith J. even wrote that the father “may well have acted in T's best interests”24. However, there was a courtorder in place, and it had to be followed. The child’s wishes not to go with his mother were irrelevant. Smith J. then found Mr. McIntyrein contempt. He wrote the following: Parties cannot be allowed to vary court orders to satisfy their personal judgment, otherwise the role of the courts would be meaningless and the administration of justice would be brought into disrepute.25 [90] This is very similar to the case before me. B.F. willfully and knowingly disobeyed my orderwithout a valid reason.

She let D.B. be the boss and decide what he was going to do. The evidence shows that it is often the case withD.B. Psychologist Christine Martin’s observations showed that the son did as he wished when at his mother’s place. Her report andtestimony also convinced me that B.F.’s reactions and words in front of D.B. will influence how he will react.

And then, when I orderedthat D.B. go with his father, during court appearances on December 21 and 22, 2021, she finally achieved to make him go. __________________________________________​​​​​​​​​​​​​​​​​_________ 23 (NBQB), confirmed at (NB CA). 24 Ibid., par. 23. 25 Ibid., par. 24. [91] Consequently, I find BF in contempt of an order of this court dated October 18, 2021. Punishment for contempt [92] B.F. is then found in contempt of court for not having followed the order dated October 18, 2021.

She withheld the child D.B. from going to the applicant’s parenting time on ten different days, between December 1st andDecember 16, 2021.

[93] What should be the punishment in such a case? The applicant is asking that I suspend theexecution of the contempt order and that if the respondent breaches the conditions of the order again, she be incarcerated for seven days.He is also asking for costs in the amount of $5,000. [94] In McIntyre v. McIntyre27, Smith J. ordered that the child be returned to the mother and that therespondent father pay costs to the mother on a solicitor-client basis. In the case before me, it was ordered that the child go with the fatherat the first appearance on the motion.

Today, I also make a new order granting exclusive decision-making responsibility and the majorityof the parenting time to the father. [95] As he has been successful on his application for contempt, I will order that __________________________________________​​​​​​​​​​​​​​​​​_________ 27 (NBQB), at paragraphs 26-27, confirmed at (NB CA). the respondent B.F. pays to J.B. costs in the amount of $5,000. There will be no time in jail as this is a first contempt order. If therewould be a next time, jail could be expected. April 5, 2023 Campbellton, N.B. Larry Landry, J.C.K.B.