J.S., Applicant, – v. –, 2022 NBKB 250

FDM-179-2019 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON Date: December 28, 2022 Neutral Citation: 2022 NBKB 250 BETWEEN: J.S., Applicant, – and – C.S., Respondent. DECISION BEFORE: Madam Justice Marie-Claude Bélanger-Richard AT: Moncton, N.B. DATES OF HEARING: October 17, 18 and 19, 2022 DATE OF DECISION: December 28, 2022 APPEARANCES: J.S., on his own behalf C.S., on her own behalf

Summary: Parenting Order under the Divorce Act – Termination of parenting time BÉLANGER-RICHARD, J.:

OVERVIEW [ 1 ] In this matter, the father asks this Court to make a drastic decision, i.e., to terminate all parenting time between the children and their mother. He claims this is in the best interests of the children. [ 2 ] As Justice Karatsanis indicates in Barendregt v. Grebliunas , 2022 SCC 22 , at para. 8 : Determining the best interests of the child is a heavy responsibility, with profound impacts on children, families and society.

In many cases, the answer is difficult — the court must choose between competing and often compelling visions of how to best advance the needs and interests of the child. [ 3 ] For the context, the parties cohabitated for two years, then married on January 12, 2013. Two children were born out of their relationship, namely C. (9 years old) and D. (6 years old). The parties separated on January 27, 2019. [ 4 ] Since their separation, a pattern of unfortunate events related to the mother’s behaviour and actions has occurred. Currently, the mother is allowed only one hour of supervised parenting time every two weeks.

The father has come to the conclusion that even this limited parenting time is detrimental to the children’s well-being. The mother claims she has changed and that the children miss her. She wants weekly alternating parenting time. [ 5 ] Because all the requirements have been proven to the satisfaction of the Court and the parties have been separated for more than one year, I grant a divorce to the Applicant (the “father”) pursuant to section 8(2) (

a) of the Divorce Act . ISSUES [ 6 ] The following issues must be addressed in this decision: 1. Division of marital property and debts 2. Parenting Order 3. Child support

A) DIVISION OF MARITAL PROPERTY AND DEBTS [ 7 ] Both parties request a division of marital property and debts. The father seeks a fair division and the mother, an equal division. i - Facts [ 8 ] The parties agree that at separation they owned the following assets: ▪ the marital home located at 11 Churchill Avenue, Sackville, NB; ▪ a mini-home located on a property situated at 198 Walker Road, Sackville, NB; ▪ a 2007 Hyundai Sante Fe vehicle; ▪ a 1990 Motor Home; and ▪ a 1998 Yamaha Virago motorcycle. [ 9 ] The marital home was acquired in 2017 for $105,000. The parties are joint owners of the property.

At the time of acquisition, the father’s parents gave $10,000 to the parties for the down payment. This sum of money was immediately repaid by the financing the parties obtained for the purchase of the marital home. The current value of the marital home is $144, 500 (Exhibit 4) and the mother agrees with this value. Since the separation, the father has maintained the property, but no major renovations or repairs have been done. As of January 1, 2019, the mortgage balance was $98,539, which balance is not disputed by the mother.

Since the separation, the father has made all the mortgage payments and has paid the property taxes and utilities. Following the Interim Order of May 3, 2019, the

father has had exclusive possession of the marital home since June 1, 2019. He wishes to retain this asset. Initially, the mother made aclaim for occupational rent but she abandoned it at the hearing. [10] The father acquired the mini-home and land prior to his cohabitation with the mother. He paid $50,000 and financed the wholeamount. Sometime in 2011, the mother moved in, and the parties began cohabitating. After acquiring the marital home in 2017, theparties moved out of the mini-home. The father’s sister and brother-in-law resided at the mini-home for a few years and paid themortgage and utilities.

For the last two years, another couple has been renting the mini-home, and pays the utilities and a rent of $600per month. The rent covers the monthly mortgage and home insurance payment. The mini-home and land have a value of $40,400(Exhibit 2) and the mother agrees with this value. The mortgage balance as of January 1, 2019 was $47,064. The mother does notdispute the mortgage balance. Since separation, the father has maintained the property and has paid the mortgage and property taxes. [11] With regard to the 2007 Hyundai Santa Fe vehicle, it was acquired in 2018 and registered in the mother’s name.

The parties paid$5,000 for the vehicle but had to borrow the money. The $5,000 payment is part of a loan with Fairstone Financial, which loan had abalance of $10,943 (Exhibit 6) on October 29, 2018. The mother does not dispute the balance of the loan. The loan is in the name ofthe father only. At separation, the mother left with the vehicle and the father continued to pay the loan in monthly installments of$402.42. The father is still paying for the loan. The father estimates the value of the 2007 Hyundai Santa Fe vehicle to approximately$2,500 and the mother agrees with this value.

However, the mother claims the father kept an Impala vehicle at separation, which vehiclehad the same value as the Santa Fe vehicle. The mother never asked questions to the father about the Impala vehicle during his cross-examination and the Impala vehicle is not mentioned in the mother’s Financial Statement solemnly affirmed on October 17, 2022.Therefore, I do not accept that there was another vehicle in the possession of the father at the time of separation. [12] The 1990 Motor Home was purchased in 2018 and registered in the name of the father. The father testified his parents paid$2,000 for this motor home.

The parties used the motor home in the first year, but since then, it has been out of service. For the father,parts of the motor home might have some value. He therefore gives it a total value of $1,000. The mother agrees with this value andwould like to obtain possession of the Motor Home. The father is not opposed to this, but a transfer of title is required and the MotorHome must be towed to be removed from his property. [13] As to the 1998 Yamaha Virago motorcycle, it was acquired in 2017-2018 for $1,000. It is registered in the name of the father.

The father testified the motorcycle has no starter and is not usable. Like the Motor Home, the father gives to the motorcycle a scrapvalue, approximately $500 to $700. The mother agrees with that. [14] Also, the parties have another personal loan with RBC. In April 2018, the parties consolidated several debts into this loan of$20,285. Since separation, the father has made the bi-weekly instalments in the amount of $213.37. As the father was unable to obtainthe balance of the loan at separation, he calculated an estimate of $18,269. The mother does not dispute the father’s estimate.

I amsatisfied by his method of calculation, and I accept that the balance of this loan was $18,269 at separation. [15] The mother claims they also had personal property, such as furniture and household items, at separation. The father testified thatwhat was left to him was in disarray and some items had mold. He had to discard everything. The Interim Order of May 3, 2019provided for the mother to prepare a list of items she wanted to obtain. The father testified she prepared a list, but never came to pick upthe items.

As there was no evidence listing what personal property the parties had at separation and the value of that property, I do notinclude any of this in the division of marital property. ii – Law and Analysis [16]

Section 2 and 3(1) of the Marital Property Act, S.N.B. 2012, c. 107, establishes the general principle that each spouse is entitledto an equal share of marital property upon dissolution, nullity or breakdown of a marriage. As stated by Justice LaForest in LeBlanc v.LeBlanc, (SCC), [1988], 1 S.C.R. 217, “[i]n applying that principle, courts are not permitted to engage in measurementsof the relative contributions of spouses to a marriage.” In Yorke v.

Yorke, 2011 NBCA 79 (N.B.C.A.), the New Brunswick Court ofAppeal reiterated the presumptive statutory right of spouses to an equal division of all marital property upon marriage breakdown. [17] Therefore, I am of the opinion that each party must retain the assets and debts that are listed under their name in the followingchart and, consequently, an equalization payment emerges from an equal division of these marital assets and debts: FATHER MOTHER

ASSETS Marital home Mini-Home and land Hyundai Santa Fe 1990 Motor Home 1998 Yamaha Virago Sub-total DEBTS Mortgage Mortgage Fairstone Loan RBC Loan Sub-total TOTAL 50% Equalization payment $ 144,500 $ 40,400 $ 600 $ 185,500 $ 98,539 $ 47,064 $ 10,943 $ 18,269 $ 174,815 $ 10,685 $ 7,092.50 $ -3,592.50 $ 2,500 $ 1,000 $ 3,500 $ 0 $ 3,500 $ 7,092.50 $ +3,592.50 [ 18 ] Therefore, according to the chart, the father owes $3,592.50 to the mother as an equalization payment for the division of marital property and debts. The father shall pay the sum of $3,592.50 to the mother within 45 days of the date of this decision.

Also, the mother shall organize the removal of the 1990 Motor Home from the father’s property within 45 days of the date of this decision and a transfer of title shall also be completed within the same period. The mother shall ensure that no damage is caused to the father’s property in having the 1990 Motor Home removed.

If the 1990 Motor Home is not transferred and removed within 45 days, the mother shall no longer have any right or interest to this asset and the father shall continue to be sole owner. [ 19 ] Before leaving this issue, I must mention that the father accumulated some RRSPs prior to his cohabitation with the mother. He accumulated these RRSPs through employment he would have had prior to 2010. The father provided a statement showing a value of $8,355, which statement indicates the RRSPs are locked-in. The father has never used these RRSPs during the relationship with the mother.

I am satisfied that these RRSPs are not marital property and should not therefore be included in the division of marital property and debts.

B) PARENTING ORDER i - Facts [ 20 ] Prior to separation and until the birth of D. in 2016, the parties did not appear to have major issues in their relationship. The father managed a warehouse and the mother worked as a daycare attendant. They shared family responsibilities and household tasks. The parties used to do drugs on a recreational basis. [ 21 ] By all accounts, the mother was taking good care of the children until things started to change after D.’s birth. According to her

father-in-law, B.S., the mother was meaner and not respectful. The mother began asking B.S. for money and telling him not to tell his son (the father). [ 22 ] By 2018, the mother was no longer working at a daycare center. She was at home looking after her own children and three other children. The father testified he made the decision “to do better” and stopped using drugs. The mother told him she was doing the same.

The father, however, suspected that the mother had not stopped using drugs and there were increasing arguments and tension between the parties. [ 23 ] On January 27, 2019, having suspicions that the mother had been out the previous evening, the father searched her purse and found drug paraphilia. He told the mother to leave the house. There was a physical altercation between the parties. The father left to go to the police station in Sackville, but it was closed. He went to his parents’ home and from there, he called the police to make a statement. He was told the mother had already called to report an assault.

The police arrested the father. [ 24 ] The father was charged with assault and theft of the mother’s purse. He was ordered not to have any contacts with the mother and not to attend the marital home. The mother and the children stayed in the marital home. The father went to live with his parents and his parents helped with the transfers and communication regarding the children. The mother was apparently charged with assault and signed an undertaking not to contact the father except for communications regarding the children.

Eventually, all charges were dropped. [ 25 ] According to the father, the mother made it difficult for him to have parenting time with the children in February 2019. He was unable to have overnights with the children. B.S. (his father) testified that the interactions with the mother were always stressful, and the mother was nasty. B.S. confirms that the mother did not often allow parenting time between the children and the father. On February 28, 2019, the father learned through a colleague that the mother’s father (who lives in the province of Ontario) was at the family home packing luggage in a vehicle.

The father immediately called C.’s school and learned she had not been in school all week. By then, the father had not seen the children since February 21, 2019. [ 26 ] On March 1, 2019, the father went to the RCMP station and voiced concerns about his children’s whereabouts. The RCMP contacted the mother. The mother confirmed she was in Ontario with the children and was only there visiting her parents for the March Break. The RCMP could not confirm the mother’s exact location.

The mother told the same story to a social worker who was doing an investigation following the incident of January 27, 2019. [ 27 ] On March 13, 2019, the father went to C.’s school to verify she was present at school. C. was not there, but the father was told by school representatives that C. was expected to be back on March 20, 2019. The father again voiced his concerns that the mother and children had moved to Ontario and C. was registered in a school in Ontario.

The school representatives reassured the father that they had not received a request for a school transfer. [ 28 ] On March 18, 2019, school representatives contacted the father and told him they had received a request from an Ontario school board for a transfer of C.’s file. The father immediately filed an ex parte motion and obtained an order for the immediate return of the children under his care (Ex Parte Order dated March 21, 2019 and signed by Justice Brigitte M. Robichaud). The Court granted the children’s primary care to the father.

The Court also ordered the parents to have joint decision-making responsibility and the mother to have parenting time within the boundaries of the judicial district of Moncton at reasonable times upon reasonable notice with the father’s parents acting as intermediaries. The Court scheduled a hearing for March 27, 2019. [ 29 ] At the hearing in October 2022, the mother testified that she applied for daycare and school transfer in Ontario for her children. She explained she did that because it had been recommended to keep the same routine for the children. She denied she had run away with the children.

The mother said she had a mental breakdown and felt overwhelmed. Because she claimed she was a victim of violence, she apparently obtained financial support in Ontario. [ 30 ] The mother did not appear at the hearing on March 27, 2019, and the Court adjourned the matter to April 4, 2019. On March 29, 2019, the mother filed an application under the Intimate Partner Violence Intervention Act , S.N.B. 2017, c. 5 , but her request was denied; she filed a second application on April 2, 2019, and then obtained an Emergency Intervention Order from an adjudicating officer.

This Emergency Intervention Order allowed the mother to have exclusive possession of the marital home. I must explain that because the mother had left the province, the father returned living in the marital home sometime in March 2019. Upon being served with the Emergency Intervention Order, the father had to vacate the premises. The father and the children went to stay with the paternal grandparents.

[ 31 ] Before the Emergency Intervention Order was confirmed or varied by a Judge of the Court of King’s Bench, the parties appeared before Justice Brigitte M. Robichaud on April 4, 2019. The mother had not yet filed an affidavit in response to the father’s motion. The mother asked for an adjournment to apply for Legal Aid and obtain legal representation. She also mentioned she had not been served with the E x Parte Order of March 21, 2019. Justice Robichaud, however, heard the testimony of K.W. regarding the service of the Ex Parte Order upon the mother.

K.W. testified that the mother refused to accept service and told C.L. (who was her boyfriend and present at the time of service) to burn the documents, which he did. K.W. had recorded the exchange and the court listened to the recording. [ 32 ] Justice Robichaud apparently made some harsh comments about the mother’s behaviour and credibility but she granted the adjournment and set a returnable court date of April 26, 2019.

Still, the Court made an Order on April 4, 2019, which Order superseded the Emergency Intervention Order. [ 33 ] According to this Interim Order dated April 4, 2019, the children were to remain in the care of their father and the mother was granted parenting time to be exercised within the boundaries of the judicial district of Moncton at the following times: every Wednesday from 2:00 p.m. to 6:30 p.m. and every Sunday from 11:00 a.m. to 6:30 p.m. The mother was also entitled to have telephone access to the children every evening at 7:00 p.m.

Other terms of this Interim Order imposed upon the parties not to speak ill or express negative or derogatory remarks against the other parent or family members in front of the children, and not to discuss the court proceedings with the children. The parties were also ordered to complete the course “For the Sake of the Children.” [ 34 ] At the hearing in October 2022, the mother testified she went off on a bender in late March 2019 and she wanted to die. She claims she went to see her family doctor, but she was not given any medication. She admitted doing cocaine every day because she had lost her children.

She never sought any help, but claims she spoke to counsellors. [ 35 ] When the parties returned before the Court on April 26, 2019, they were both represented by counsel.

They agreed on the following terms and the Court issued an Interim Order dated May 3, 2019 as follows: 1. the parties had interim joint decision-making responsibility regarding the children; 2. the children’s primary care and physical residence were to remain with the father; 3. the mother was to undergo, at her cost, hair follicle drug testing by May 3, 2019, and thereafter every month, and the result of each test was to be provided to the mother and the father; 4. once the father was provided with a negative hair follicle drug test result, the mother was to have parenting time with the children every week from Wednesday at 2:00 p.m. until Thursday morning and every second weekend from Friday at 2:00 p.m. until Sunday at 6:30 p.m.; 5. if the mother was not providing a negative hair follicle drug test result or the result was positive, her parenting time was limited to every Wednesday from 2:00 p.m. to 6:30 p.m. and every Sunday from 11:00 a.m. to 6:30 p.m.; 6. the mother was entitled to have telephone access to the children every evening at 7:00 p.m.; 7. the mother was not to consume drugs or excessive alcohol during her parenting time or 24 hours prior to any parenting time; 8. the mother was responsible for the children’s transportation for her parenting time; 9. the mother was not to remove the children from the province of New Brunswick;

10. a third party was to be present for the transfer of the children between the parties and for any communication between the parties with respect to the children; 11. the father was to have exclusive possession of the marital home as of June 1, 2019, and the mother was to remove from the marital home only the items approved by the father (excluding her personal effects); 12. the parties were not to speak ill or express negative or derogatory remarks against the other parent or family members in front of the children, and were not to discuss the court proceedings with the children; and 13. the parties were to register and complete the course “For the Sake of the Children”. [ 36 ] When the father took back possession of the marital home on June 1, 2019, there was a lot of personal property missing, including sentimental items.

Various things belonging to his father were also missing. The father saw some of these items advertised for sale on KiJiJi. [ 37 ] In July 2019, the mother filed a motion alleging the father had withheld the children from her. The father explained having serious concerns about the children’s well-being while they were in the care of the mother because he continued to suspect she was using illegal drugs and because of her association with dangerous persons.

The mother had told the father that her boyfriend C.L. had beaten her up, and the father was aware that the children were being brought by the mother to C.L.’s home. [ 38 ] In August 2019, the parties agreed to resolve all issues arising from the motion filed by the mother in July 2019. A draft Consent Order was prepared but the mother refused to sign it. The father had to withhold the children for two days for the mother to sign the Interim Consent Order finally in late December 2019.

The father explained he had to take this extreme measure for the children’s protection; he wanted to be able to call the police if, contrary to what had been agreed and ordered, the children were in the presence of C.L.

The terms of this Interim Consent Order dated January 2, 2020 include all the terms of the Interim Order dated May 3, 2019 but with a few important changes, that are: 1. the mother was to undergo a hair follicle drug test every 90 days (as opposed to every month); 2. the father was to do his best effort to accommodate additional parenting time when the mother’s parents were visiting in New Brunswick; 3. the mother was responsible for the children’s transportation for her parenting time, and she had to ensure the children had proper car seats; 4.

C.L. (the mother’s boyfriend) was not to be present during the mother’s parenting time; and 5. the children were not to be exposed to any person consuming drugs or be in an environment where drugs were present; the mother was not to take the children to any properties that were occupied by known drug sellers. [ 39 ] From April 2019 to February 2020, the mother had the following parenting time with the children: every Wednesday from 2:00 p.m. to 6:30 p.m. and every Sunday from 11:00 a.m. to 6:30 p.m. The father mentioned that D. was wetting his bed during that period.

When the father refused to allow parenting time to the mother from February to August 2020, the child D. stopped wetting his bed. [ 40 ] In February 2020, the mother filed another motion seeking a declaration of contempt against the father and asking for the resumption of her parenting time with the children. The hearing of the mother’s motion was postponed and delayed when the Covid-19 pandemic hit the province of New Brunswick.

In August 2020, the father filed a motion seeking a variation of the Interim Consent Order dated January 2, 2020, and requesting sole decision-making responsibility regarding the children, no parenting time with the mother or in the alternative, supervised parenting time for the mother.

[ 41 ] Both motions were heard by me on August 27, 2020. At that hearing, I heard viva voce evidence from both parties.

Following an oral decision, I made the following Interim Order on August 27, 2020: 1. the hearing was to continue on October 7, 2020 regarding the mother’s parenting time; 2. until the resumption of the hearing and/or further Order of the Court, the mother’s parenting time was limited to every other Sunday from 11:30 a.m. to 12:30 p.m. at the McDonald’s Restaurant in Sackville, one telephone call on every Wednesday between 6:00 p.m. and 6:30 p.m. and one telephone call on every Saturday from 6:00 p.m. to 6:30 p.m.; 3. the motion for contempt filed by the mother was denied; and 4. the terms of the Interim Consent Order dated January 2, 2020 were to continue into force unless modified by this Interim Order. [ 42 ] At the August hearing, the mother admitted having breached the Interim Consent Order dated January 2, 2020, and I was convinced she had not complied with that order at different occasions.

Contrary to the Interim Consent Order dated January 2, 2020, the mother had been with the children outside New Brunswick, she had brought the children to C.L.’s home and she had spoken to the children about court proceedings. Also, the mother had asked her daughter C. to spy for her and she had given her a cell phone. The father found a tracking App on C.’s cell phone. I ordered the return of C.’s cell phone to the mother. [ 43 ] When the hearing resumed on October 7, 2020, I heard submissions from both parties.

On the basis of the evidence and submissions, I decided to vary paragraphs 3 and 9 of the Interim Consent Order dated January 2, 2020 as follows: 1. the mother was prohibited to have telephone access with the children; 2. the mother was to have supervised parenting time every other Sunday from 11:30 a.m. to 12:30 p.m. at a public place, which supervision was to be done by the father; if the parties could not agree on a public place, the location was to be at the McDonald’s restaurant in Sackville; 3. the mother was to have supervised parenting time every other Thursday from 3:30 p.m. to 5:30 p.m. as long as an independent third party was hired and paid by the mother to do the supervision and the mother gave notice to the father by text message no later than Tuesday at 4:00 p.m. with the name and telephone number of that third party; and 4. if the mother was to provide two negative 90-day hair follicle drug test results, she was allowed to file a motion seeking a variation of her parenting time. [ 44 ] From October 2020 until June 2021, the mother had supervised parenting time with the children on every other Sunday for one hour (supervised by the father) and on every other Thursday for two hours (supervised by a third party).

In June 2021, the mother stopped paying a third party to supervise her parenting time on every other Thursday with the children. During her testimony, the mother explained that C.L. was paying for the supervisor and when C.L. was incarcerated in June 2021, he could no longer pay for this service. It is my understanding that until October 2021, the mother was therefore unable to have parenting time with the children on every other Thursday. [ 45 ] In the spring of 2021, a concurrent court proceeding was ongoing in the Trial Division of the Court of King’s Bench of New Brunswick.

The Province of New Brunswick as represented by the Director of Safer Communities and Neighbourhoods had filed a Notice of Application against C.L. and the mother (File Number MM-77-2021). This application was heard on May 3 and 26, 2021 before Justice Denise LeBlanc. Justice LeBlanc received into evidence various affidavits and heard viva voce evidence from various people, including the mother.

This application is relevant to the current proceeding because the Province of New Brunswick was seeking a “community safety order” regarding the property where the mother and C.L. were residing (C.L. was the registered owner of the property). It was alleged that the property was being used in the sale of illegal drugs such that it was adversely affecting the people residing in the neighbourhood.

The Province of New Brunswick wanted the property to be vacated and closed for a period of up to 90 days, in the expectation that it would disrupt the use of the property and the sale of illegal drugs would cease in the future.

[ 46 ] Justice LeBlanc rendered a written decision on June 3, 2021. I consider that her decision was admissible into evidence as a public documents exception to the hearsay rule (see Catholic Children’s Aid Society of Toronto v. A.(N.) , 2013 ONCJ 58 ). In her decision, Justice LeBlanc concluded that, on a balance of probabilities, the property was being used for the sale of illegal drugs and she ordered the property to be vacated for a period of 90 days commencing on June 7, 2021. Justice LeBlanc made the following findings: 13.

On January 26, 2021, investigators LaFrance and Sisk installed video surveillance equipment to monitor activity at the Property; this equipment was retrieved on February 2, 2021. Continuous video surveillance of the Property was conducted between January 26 and January 29, 2021. This surveillance showed that over an 80-hour period, there was a total of 59 visits by vehicles to the Property. A

summary of the visits is attached as Exhibit A to Mr. LaFrance’s affidavit sworn on March 24, 2021. Exhibit A shows several visits to the Property by a variety of vehicles, 37 of which are of very short duration. […] 15. On March 5, 2021 investigator LaFrance received a call from [the mother] stating that their notices were not legal and that they would not comply with them. During that call, [the mother] stated that the heavy traffic at the Property was related to the operation of an auto detailing business by [C.L.]. 16. Additional video surveillance was conducted between March 31 and April 2, 2021.

During this 48-hour period, the SCAN investigators were able to observe 55 visits to the Property. The visits were sporadic and varied through all hours of the night. B. RCMP Investigations 17. The affidavit evidence of Sgt Gagne establishes that on March 4, 2020, the Sackville RCMP initiated a drug trafficking investigation related to the Property. 18. On January 13, 2021, RCMP investigators executed at the Property a search warrant obtained pursuant to the Controlled Drugs and Substances Act (“ CDSA ”).

The operation resulted in the seizure of evidence consistent with drug trafficking activities, including multiple cellular phones, a large quantity of currency, scales, bear spray, a high powered laser, notes, score sheets and other items. 19. On March 3, 2021, the Sackville RCMP initiated a further CDSA investigation. On April 29, 2021, another CDSA warrant was executed at the Property and a large quantity of what is believed to be controlled drugs and substances, more particularly crack cocaine, crystal meth and hydromorphone was seized.

During that search, the RCMP also seized a cash amount of $19,292.85, a high-powered laser, an energy weapon, a drone, parts of an elaborate surveillance system and a stolen mini-bike. Sgt Gagne states that there were drugs and money in the drone case. […] 37. In this case, [the mother] herself acknowledged that “complaints” had been made. Once the complaints were received, Mr. LaFrance had jurisdiction to initiate the investigation that was conducted. Mr. LaFrance and Mr.

Sisk, the SCAN investigators, have personal knowledge of this investigation and Sgt Gagne has personal knowledge of the actions taken by the RCMP and the items seized at the Property through the execution of search warrants. The video surveillance conducted by the SCAN investigators coupled with the evidence of Sgt Gagne allows me to find on the balance of probabilities that the Property was being used for the specified use alleged by PNB. […] 44. I agree with Justice Morrison’s view, expressed in Logue , that the evidence which establishes the habitual use may also inform its adverse effect.

The admissible surveillance evidence in this case shows a high volume of traffic to and from the Property, by different vehicles and at all hours. Sgt Gagne’s affidavit evidence establishes that substances believed to be crystal meth, cocaine and hydromorphone were seized from the Property as was a cash amount of $19,292.85, a high powered laser, an energy weapon, parts of an elaborate surveillance system and a stolen mini-bike.

Investigator LaFrance himself observed a dark film covering on the windows to the Property, preventing outside persons from seeing inside, as well as a number of video cameras mounted in key locations on the Property.

45. [The mother] acknowledges that complaints were made regarding her and Mr. [C.L.] and/or the Property as some sort of “retaliation”. While she claimed that she had never seen the pills seized on the Property, she recognized the cap gun and the energy weapon. She acknowledged that the neighbors’ property had been the subject of a fire, as was the Property.

She also acknowledged that Mr. [C.L.]’s “employee”, H.P., was severely beaten while on the Property and had to be taken to hospital with severe injuries. [The mother] herself acknowledged that the Property was equipeed with cameras to conduct surveillance on neighboring properties. During her cross-examination, other than the dates referenced in the PNB affidavits, which errors were cured during the affiants’ viva voce testimony, she took no issue with any of the evidence set out therein, including the experience and opinion evidence of Mssrs LaFrance and Sisk. 46.

As per the Court of Appeal, established current activity of a specified used does not create a presumption of adverse effect. In this matter however, there is evidence beyond the established current activity of a specified use. Weapons were found in and seized from the Property and [the mother] acknowledges that they have surveillance cameras at the Property. 47. The presence of weapons and surveillance cameras are either related to the specified use or because of harassment being perpetrated upon the Respondents, causing them to be fearful of the ongoing situation. Clearly, there is discord in the neighborhood.

Properties are being burned and H.P. was assaulted on the Property. Based on [the mother]’s testimony in court, there are situations occurring in the neighborhood and community showing that the Respondents themselves are in need of protection. Weapons give rise to a risk of violence and that violence has already manifested itself in the assault of H.P. on the Property. 48. Common sense commands me to infer that the occurrences in the neighborhood and on the Property are inextricably linked to what goes on in the Property.

Common sense also commands me to infer that these occurrences adversely affect the community and neighborhood and the Respondents themselves, who are part of this community and neighborhood. 49.

Based on the whole of the evidence before me, I am satisfied that the Property has been habitually used for a specified use (the illegal sale of drugs) and that the community or neighborhood has been adversely affected as a result and is in present need of an order for its protection. [ 47 ] At the hearing in October 2022, the mother claimed that the children were not in danger because they were not allowed to come to C.L.’s house due to the court order. She, however, kept asking the father to allow the children to come to that house.

Also, the mother admitted that H.P. had resided with C.L. and her, and he was later found guilty of murder. [ 48 ] As pointed out by the father, the mother was asking for shared parenting time with the children when she was residing at C.L.’s home. She told the children she had set up a room for them in that home. Remember that the RCMP seized weapons and alleged illegal drugs at this residence in May-June 2021. Quite understandably, this whole situation was extremely upsetting to the father.

During her cross-examination, the mother admitted that C.L.’s house was indeed not safe for the children. [ 49 ] When the mother and C.L. had to vacate their home in June 2021, they went to live with C.L.’s maternal grandfather. This arrangement did not last long. In July 2021, C.L. assaulted the mother and threatened to kill her. The mother testified that C.L. pleaded guilty before his trial and was sentenced to a jail term. [ 50 ] In September 2021, the mother pleaded guilty to a charge for theft under $5,000.

She explained she was homeless in September 2021, and she stole jewelry in order to resell it and get money. She claims she was homeless for 3 or 4 nights only. [ 51 ] In October 2021, C.L. asked his mother, S.L., if the children could be brought to her home and a third party would supervise the mother’s parenting time at her home. S.L. agreed. From October 2021 until February 2022, a 2-hour supervised visit happened twice a month at S.L.’s home.

At the hearing in October 2022, S.L. testified that she and her husband did not trust the mother to be in their home and consequently, one of them was always there during the visits. As S.L. works in a nursing home offering palliative care, she even took some time off from work for these visits. [ 52 ] S.L. testified that 9 times out of 10, the mother was late for her parenting time and the children were waiting for her. S.L. remembers that the children were so happy to see their mother. S.L., however, said that the mother was not prepared for her parenting time and was disorganized.

She also noted that the mother spent time during the visit to talk to the third party supervising the visit about what was happening to her, and she did facetime with her own mother. According to S.L., the children were more interested in

doing activities than having a conversation with their maternal grandmother. S.L. and the child C. often baked during these visits. According to S.L., the mother questioned the children about their father, his new partner, whom he was visiting, but the children usually ignored the questions. [ 53 ] In February 2022, S.L. happened to see the children and the mother at McDonald’s Restaurant. The children waved at her, and S.L. went to say a few words to the father.

Without any apparent reason, the mother suddenly yelled at S.L. telling her “You’re not fucking come close to my kids.” S.L. said the mother had D. in her arms and was holding C. by the arm when she yelled at her. C. had a blank look on her face and both children appeared scared. S.L. cried all the way home.

Following this incident, the mother did not exercise any of her parenting time at S.L.’s home. [ 54 ] In June 2022, S.L. received threatening messages from the mother saying she (the mother) will kill her if she is around her children. [ 55 ] S.L. testified that she and her husband like the mother and tried to help her by giving clothes and providing transportation. Despite what happened, S.L. has no animosity towards the mother, and she would have no problem to have visits at her house again, with or without a supervising third party. S.L. and her husband are willing to work with the mother.

However, S.L. acknowledges that the children are at risk with their mother when the mother is under the influence of drugs. [ 56 ] During her testimony in October 2022, the mother explained why she dislikes S.L. She said S.L. is not a stable person and her two sons (C.L. being one of them) are proof of that. The mother added she does not trust S.L. because S.L. saw her being abused and said nothing. The mother repeated she did not want her children around S.L. because S.L. is not a good person.

I must say that the mother’s attempt at justifying her dislike towards S.L. is unconvincing. [ 57 ] The father called Constable Louis Roy from the RCMP to testify at the hearing in October 2022. Constable Roy has been stationed in Sackville since January 2018. He participated in the search warrant that occurred at the mother’s home in 2021.

When the search warrant was executed, he made the following observations: the residence was a mess and it was dirty, there was food not good for human consumption, there were drugs on the kitchen counter, and there were eight people living in the residence. [ 58 ] Constable Roy testified about another incident involving the mother. On July 4, 2022, the RCMP were called to C.W.’s home (C.W. is another boyfriend with whom the mother has been residing since July 2021). C.W. had apparently told the mother a few weeks earlier to leave his place.

However, the mother had come back at C.W.’s home and was trashing his place. The RCMP were asked to evict her. Constable Roy testified that on July 7, 2022, C.W. admitted using drugs. [ 59 ] On August 20, 2022, the maternal grandmother, C.T., sent an email to the father telling him that the mother would not be able to be with the children at her scheduled parenting time on the next day. Because the father was receiving telephone calls from a jail around that time, he figured out that the mother was incarcerated.

Without admitting that the mother was incarcerated, C.T. told the father it was probably the mother who was calling from the jail. At the hearing in October 2022, the mother admitted having been incarcerated. [ 60 ] A Release Order dated August 25, 2022 and naming the mother (Exhibit 1) was admitted into evidence. The Release Order is still in force and imposes upon the mother a curfew from 10:00 p.m. to 6:00 a.m., the obligation to report to the Sackville RCMP once a week, the prohibition to contact three named individuals and the prohibition to attend a named boxing club in Moncton.

Debbie Smith apparently gave a surety of $3,000 for the mother’s release. The mother testified the money came from her parents. [ 61 ] Constable Roy testified that in the last three years, there have been 25 charges pending at different times against the mother, but at the time of the hearing in October 2022, the only pending charges he was aware were for break and enter, criminal harassment, and uttering threats.

However, the father produced into evidence the docket of the Provincial Court of New Brunswick for October 28, 2022, which docket indicates that the mother is expected to appear in court on October 28, 2022 for the following charges: uttering threat, mischief, possession of property obtained by crime greater than $5,000 and entering with intent to commit an offence. The mother admitted having these charges against her and being scheduled to appear in Provincial Court on October 28, 2022.

During her testimony, the mother also mentioned she has three other charges for possession of drugs for purpose of trafficking and her trial is scheduled for January 2023.

[ 62 ] Constable Roy has also been at the mother’s current home. When he was there, the house was dirty and messy. There were dog feces in the basement. The front window was smashed and there was glass on the porch. A mattress had been put to replace the front window and it was there for one month before he saw the front window had been replaced. Constable Roy did not understand why the mother was living there because she was arrested for break and enter at that address.

Debbie Smith (who gave the surety) also lives there. [ 63 ] At the final hearing, the father testified the mother does not advise him of any change of residence. For what he knows, she currently stays at C.W.’s house. [ 64 ] From the first order imposing on the mother to provide hair follicle drug test results, the mother has never produced any such results, either positive or negative. Consequently, the mother has not had any overnights with her children since April 4, 2019.

While the mother says she had no money to pay for drug testing, the father points out that in August 2020, the mother showed the children on Facetime that she had a new Jeep and C.L. also had a new Jeep. [ 65 ] The mother now claims she has not taken any illegal drugs since she has been away from C.L. (since June 2021). If she needs some support, she goes online.

She smokes marijuana occasionally and rarely drinks alcohol. [ 66 ] In his Affidavit sworn on October 7, 2022, the father says that the mother “is generally consistent in attending her supervised visits”, but she is also consistently 10 to 20 minutes late. This creates some insecurity for the children who often ask their father if their mother has confirmed she would come and/or whether she will show up. The father tells the children that if their mother does not come, it is for a good reason, and they will make up the time as soon as possible. He reassures them that the mother loves them.

When the mother is late, the father adds up the time missed at the end of the parenting time. [ 67 ] The father admits that the children “always appear excited and happy to see” their mother at the beginning of the parenting time, and the mother hugs and kisses the children at the end of her parenting time. He also admits that the children like to talk to their mother over the telephone. [ 68 ] However, the father reports disturbing and inappropriate comments made by the mother during her parenting time with the children or in text messages sent to him.

Here are some excerpts from the father’s Affidavit sworn on October 7, 2022: 37) On On June 6, 2021 I met [the mother] at Macdonald’s for her scheduled access. At approximately 12:20 pm [the mother] received a phone call.

I observed her to look worried and asked me to speak with her outside. [The mother] explained she was working with the RCMP. 38) On June 23, 2021, I was informed by Terry Boyd, daycare worker, and do verily believe [the mother] and [C.L.] presented themselves at [C.]’s daycare and had a private discussion in the parking lot/outdoor play area. 39) On July 11, 2021, [the mother] had a visit. [The mother] was speaking on the phone with [C.T.]. I heard [the mother] tell [C.T.] she was starving and thirsty and did not have any money. Shortly thereafter, I received messages from [C.T.] asking me to buy [the mother]

food; [C.T.] indicated she would send the money to [the mother] to give to me. I never received the money from [the mother]. 40) On August 31, 2021 I received multiple threatening messages from [the mother] who stated “Don’t make me find you” and that I should not let [S.L.] near the children, specifically [C.]. Attached hereto and marked Exhibit “U” are the aforementioned text messages. 41) On September 2, 2021, I received voicemail messages from [the mother] threatening to take her life if I did not give her the Walker Road minhome(sic).

She also threatened to file additional court documents to cost myself money. 42) On September 5, 2021, I went to McDonald’s for [the mother] scheduled supervised visit. [The mother] did not show up. [C.] and [D.] appeared disappointed.

Two days later (September 7, 2021) I received angry text messages from [the mother] indicating it was my fault she missed her visit as I had not reminded her ahead of time. [The mother] then demanded I let her see [C.] and [D.] right then. 43) September 19, 2021, [the mother] had a supervised visit at Mcdonald’s Restaurant. [The mother] spent a lot of the visit speaking on her cellular phone.

I heard [the mother] say she was living in a cabin and needed a wood stove. 44) On October 1, 2021, [the mother] asked [D.] if he wanted a skidoo. [D.] was very excited about this and I did not feel I could say no, and drove [the mother] and the children to [C.S.]s’ home. [The mother] never purchased a skidoo for [D.] and [D.] continues to this day to make spontaneous statements that his mother is going to buy him a skidoo. 45) On October 3, 2021, [the mother] had a supervised visit at McDonald’s. She asked if she could come to my residence in order for [C.] and [D.] to see a dog.

She also asked if [C.] and [D.] could go to the Motel where she was staying. These questions were posed in the presence of [C.] and [D.]. I said no. [C.] and [D.] wre disappointed. […] 49) November 14, 2021, during a supervised visit, [the mother] asked if [C.] and [D.] could go with her to the Super 8 hotel in Amherst NS, I said no. [C.] and [D.] appeared disappointed and expressed being upset with me. 50) During a visit in December 2021, [the mother] yelled, screamed and swore at [S.L.], [C.L.]’s mother, during a supervised visit with [C.] and [D.] at McDonald’s Restaurant.

I observed [S.L.] leaving McDonald’s and [the mother] followed her and screamed “you stay away from me and my fucking kids”. I observed that [D.] was in [the mother]’s arms and his eyes were big and he appeared scared. [C.] appeared scared. I ended the visit immediately. […] 52) During a visit in May 2022, [the mother] had a supervised visit at McDonald’s Restaurant. I ended the visit early as [the mother] began asking for shared custody in the presence of the children. I warned her to stop or I would end the visit. [The mother] continued to discuss court and how I was to blame for her loss of access.

I ended the visit and took [C.] and [D.] to my vehicle. [The mother] followed and was trying to argue loudly with me; she told [D.] to go with her. [D.]’s face appeared frightened and he looked at me. I told him he had to stay with me. When we got home, [D.] and [C.] expressed being disappointed the visit had ended early. […] [ 69 ] Even though the mother knows what she needs to do for her parenting time to increase, she continues to ask the father for additional parenting time and at times, she does it in front of the children.

When the father reminds her about the terms of the orders, the mother’s “tone gets loud and she sometimes yells profanities” (para. 33 of the father’s Affidavit sworn on October 7, 2022). Because of the mother’s abusive language, the father has stopped answering her telephone calls and has asked her to communicate via text. The mother keeps calling the father’s cell phone at all hours of the day and night.

[ 70 ] Occasionally, the mother has asked the father to pick her up for her parenting time. The father has ignored her requests as he does not feel safe and comfortable having the mother in his vehicle, especially with the children. During the hearing, I had the opportunity to observe the mother’s attitude and behavior towards the father. I found she had an intimidating demeanor and behaved like a bully. I observed the father to be very nervous because of the mother’s attitude towards him. [ 71 ] In February 2022, the father began a romantic relationship with S.-A.B.

S.-A.B. and her two children (S. (14 years old) and Ch. (12 years old)) moved into the father’s residence in June 2022. S.-A.B. works as a paralegal with Child Protection Services. After S.- A.B. and her children moved in, there were some issues with the children: C. was negative towards S. and D. was telling a lot of lies. However, things got resolved through discussions and the children are now all getting along. S.-A.B. testified that C. and D. now wakes up early, at 5:00 – 5:30 a.m., to be with her, S. and Ch. S.-A.

B. described the household routine the family has and mentioned the various activities they enjoy doing with the children. [ 72 ] Since July 2022, S.-A.B. has been present when the father supervises the mother’s parenting time. S.-A.B. testified about inappropriate comments being made by the mother to the children during her parenting time. For example, the mother talked about crimes happening in Sackville, her parents being subject to a fraud or the fact she does not like S.L. These comments made the children anxious, and they had to be reassured by their father and S.-A.B.

S.-A.B. was also present when during her parenting time in either July or August 2022, the mother made a call and then, C.L. arrived with a dog. The children and the mother went to talk to C.L., leaving the father and S.-A.B. far away enough they could not hear anything. S.-A.B. indicated that this is a frequent problem with the mother as she tries to ensure the father cannot hear what she says to the children. [ 73 ] On August 7, 2022, the mother attended at the McDonald’s restaurant in Sackville for her parenting time with the children.

The father observed the mother had bruises, cuts and swelling on her hands, and marks on her face and neck. It was evident the mother had put makeup over the marks, but they were still visible. When D. tried to grasp his mother’s hand, the mother made a face and said “ow”. When C. asked her mother what happened, the mother said she had done a cartwheel and fell. C.’s eyes moved around, and she appeared confused according to her father. Later, the parties exchanged text messages. The father expressed concerns to the mother about her choices and how they made the children worry about her.

The mother admitted having been in a physical fight and the other person had pulled a knife on her. She disregarded the father’s concerns and bragged that she “kicked her ass fyi”. [ 74 ] At the end of September 2022, the father was having discussions via text messages with the mother about shared parenting time and the necessity for her to change her lifestyle. The mother again admitted of being beaten almost to death and having suffered horrible beatings and tortures in the last 3-4 years. [ 75 ] The only employment the mother has had since the separation was online virtual sales. It only lasted a few weeks.

As she was commencing her employment in June 2021, the house where she lived (C.L.’s house) burnt down. Then, C.L. was incarcerated for assaulting her. [ 76 ] The mother currently rents a room at C.W.’s house. She has been living there since July 2021. The mother testified that C.W. is a friend and a “known drug user”, but he has not been at the house for the last two months. During her cross-examination, the mother changed her testimony, saying C.W. had not been at the house for “roughly two weeks”. The mother understands the concerns about her living arrangements.

She claims she is trying to find another place to stay. During her cross-examination, she said her residence was beautiful and in the process of being cleaned up and revamped. However, she also admitted that it was currently not safe for the children to be at that house until the renovations were completed. She also mentioned that there was still glass in the living room and in the front yard. She, however, indicated she had time to get the house safe until a decision is rendered in this proceeding.

She did not explain why it was taking so much time to make the house safe. [ 77 ] The father testified that the children are doing relatively well at school. D. sees a speech therapist through the school. The father has attended the parents-teacher meetings since September 2019. He is not aware that the mother has attended any such meetings or has

met with the children’s teachers. The mother testified she did not receive any information about the children’s schoolteachers despite asking for it. The father has brought the children to the dentist, and they have a family doctor. He is willing to seek counselling for the children considering his request to terminate all contacts with their mother. The children are not enrolled in any organized activities. They continue to attend the same daycare center five days a week. [ 78 ] The father has another child named So. with a former partner, C.St. The child So. is 13 years old, and she lives with her mother C.St.

The father has parenting time with So. on every weekend (unless there are other plans) and during summer, on alternate weeks. At the hearing in October 2022, C.St. testified that the father and her can easily co-parent and she has no issue or concern regarding the father’s care and parenting ability. [ 79 ] B.S. (the paternal grandfather) installed a security system, cameras, and window bars at his house because of the mother’s presence in the area. He claims she stole many items that belonged to him, and she has a drug problem.

He testified that a few days prior to the final hearing, the mother came at his home around 9:30 p.m. and took many pictures. Feeling uneasy and insecure, he and his wife decided that his wife would stay to guard the home while he was at the hearing in Moncton. B.S. is concerned and nervous because of the people with whom the mother associates herself. [ 80 ] The court proceedings and what has been going on with the mother since the breakup have had a toll on the father. A few months prior to the final hearing, he had a burnout. He lost almost 30 pounds. He currently takes medication for anxiety.

The father is tired of being constantly worried about his family’s safety. He keeps looking at installing more security system at his home. He is afraid that the mother will come to his home. His parents worry about him. ii – Position of the parties [ 81 ] Supervising the mother’s parenting time is very stressful for the father and he has a hard time doing this. If there is a disagreement, the mother becomes hostile and aggressive. One day the mother can be hostile and aggressive and the next day, she will attempt to be friends with the father.

She has sent explicit videos and pictures of herself and has asked the father to have sex wit her as recently as May 28, 2022. The father says he cannot communicate with the mother as she raises her voice and becomes belligerent. He mentioned that the mother does not realize how the way she communicates affects the children. Also, he has difficulty to reach the mother as she has changed her telephone number quite a few times since separation. He is concerned that in case of emergency, he will not be able to communicate with her.

For all these reasons and the mother’s instability and poor judgment, he is asking for sole decision- making responsibility. [ 82 ] The mother wants to have joint decision-making responsibility over the children. She acknowledges that the communication between her and the father is not good, but she is willing to improve the situation. She wants to move on and be amicable with the father. She says she is not “so angry” anymore. She admits she was used to be argumentative and aggressive up to last year because she was angry and felt stonewalled.

She still does it at times because the father does not try to co-parent with her. She testified she only changed her telephone number three times, and it should not have been difficult to contact her the rest of the time. [ 83 ] At the hearing in October 2022, the father testified how concerned he is about the children’s well-being and safety when they are under the care of their mother. He became very emotional when he mentioned that the mother had told the children she had a room for them at C.L.’s home. The father is deeply worried about the people surrounding C.L.

Contrary to the Interim Consent Order dated January 2, 2020, the mother has continued to expose the children to C.L.’s presence. As to the mother, she mentioned wondering at times about the children’s hygiene and dental care, but she did not express any serious concerns about the children being in the care of their father. [ 84 ] The father asks this Court to terminate all parenting time and contacts with the mother. He would like her to have a stable home and life and to stop doing drugs, but until then, he feels that his children’s safety and well-being require this drastic solution.

In the alternative, he asks for professional supervisors to be hired and paid by the mother for the exercise of her parenting time. He acknowledges that S.L. offered her services, but he believes she wants a professional supervisor to be present. The father would also accommodate a visit if the maternal grandparents came to New Brunswick to see the children and he will answer their calls. [ 85 ] The mother would like shared parenting time with the children on alternate weeks. She also suggested that the children could be

two weeks with their father and one week with her. The mother says that she was very, very close to her children prior to the separation. She misses them so much. She believes that the children are reacting to get attention because they need her, and she is not with them. The mother testified she is still recovering from her relationship with C.L.

Finally, the mother claims she could have had stable living arrangements if the father had agreed a while ago to transfer to her the mini-home and land on Walker Road, adding that her parents would have helped her to pay the mortgage. iii – Law and analysis [ 86 ] With the amendments to the Divorce Act , R.S.C. 1985, c. 3 (2 nd Supp .) (the “ Divorce Act ”), that came into effect on March 1, 2021, a court must make a parenting order in respect of a child of the marriage.

A parenting order may stipulate what parenting time a parent may have with a child, who should be responsible for decision-making responsibility, what means of communication should be used between a child and a parent, and any other matters deemed appropriate by the court (see sections 16.1 , 16.2 and 16.3 of the Divorce Act ). Moreover,

section 16.1(8) gives authority to a court to impose supervision during parenting time or during the transfer of a child from one person to another. [ 87 ] A court is guided by a list of legislated factors in making a parenting order. The relevant provisions in the Divorce Act are the following: 16(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (

c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; (

d) the history of care of the child; (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (

g) any plans for the child’s care; (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (

j) any family violence and its impact on, among other things,

(

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (

k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account: (

a) the nature, seriousness and frequency of the family violence and when it occurred; (

b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (

c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (

d) the physical, emotional and psychological harm or risk of harm to the child; (

e) any compromise to the safety of the child or other family member; (

f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (

g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and (

h) any other relevant factor.

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order. [ 88 ] Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child’s needs and the ability of each parent to meet these needs. It is normally in the interests of children to continue and to encourage their relationships with both parents following the separation of their parents.

Children generally benefit from maximum contact with both parents, provided that it is consistent with their best interests.

Decision-making responsibility [89] I will first address the issue of decision-making responsibility. Decision-making responsibility means the responsibility formaking significant decisions about a child’s well-being, including in respect of health, education, culture, language and spirituality, andsignificant extra-curricular activities (section 1 of the Divorce Act).

The mother asks for joint decision-making responsibility while thefather insists on sole decision-making responsibility. [90] It is well recognized by the courts that joint decision-making responsibility (previously joint custody) requires a degree ofcooperation between the parents and the ability to effectively communicate with each other: J.H. v. T.H., 2017 NBCA 7, at para. 8. If thecommunication between the parents is acrimonious and is detrimental to the well-being of the children, joint decision-makingresponsibility is inappropriate: L.R.R. v. E.M., 2018 NBCA 2 at para. 11. [91] In L.B. v.

P.E., 2021 ONCJ 114, at paras. 94-98, Justice Sherr outlines some useful principles in assessing the communicationbetween the parents and in determining whether joint decision-making responsibility is appropriate: 94 The Ontario Court of Appeal in Kaplanis v. Kaplanis2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 sets out the followingprinciples in determining whether a joint custody (decision-making responsibility) order is appropriate: 1. There must be evidence of historical communication between the parents and appropriate communication between them. 2.

It can’t be ordered in the hope that it will improve their communication. 3. Just because both parents are fit does not mean that joint custody should be ordered. 4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody. 5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be ableto be addressed on an ongoing basis. 6.

The younger the child, the more important communication is. 95 Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v.S.M.G.,2020 ONCJ 511. 96 Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard ofperfection is not required and is obviously not achievable. See: Griffiths v. Griffiths2005 ONCJ 235 , 2005 CarswellOnt 3209(OCJ).

The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so thatthe best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, (ON S.C.). 97 Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factormilitating against a joint decision-making responsibility order as it demonstrates poor judgment and an inability to prioritize the child’sinterests. Jama v. Mohamed, [2015] ONCJ 619. 98 In S.S. v.

S.K.,2013 ONCJ 432, this court wrote that courts should assess the dynamics of a family when determining if a jointdecision-making responsibility order is appropriate. Particularly, the court should examine if the granting of such an order is:

a) more or less likely to de-escalate or inflame the parents’ conflict;

b) more or less likely to expose the child to parental conflict; and,

c) whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for thepurpose of asserting control over their former spouse and children, tend to be rights-based, overly litigious, unbending and the bestinterests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster.

It canbecome a springboard for that parent to assert control and make the lives of their former partner and children much more difficult. [92] In the present matter, I am convinced that a joint decision-making responsibility order would be a disaster and against the bestinterests of the children. I was able to observe the dynamics between the parties and their personalities during the hearing. The motheris self-assured and imperious. The father is gentle and self-doubting. The mother had no problem formulating sharp questions duringthe hearing and was commanding answers from the witnesses.

The father was well prepared, but still nervous and not assertive duringthe examinations he conducted. The mother raised her tone of voice and became argumentative when the father cross-examined her. Igot the impression that the mother was trying to turn the tables and subject the father to her invective instead of her being cross-examined. [93] Although the mother says she wants to be amicable with the father, she does not show respect towards him. Instead of reflectingon her own actions and behaviour and expressing some remorse, the mother appears to blame the father for the current situation.

As shetestified, she is not “so angry” anymore. During his examination, the father became emotional in explaining the impact of the mother’sactions and behaviour on the children and him. He is clearly fearful of the mother, and he does not trust her at all. [94] Another concern that the father raised is the difficulty of communicating with the mother as she has changed her telephonenumber a few times and she does not notify him of any changes of residence. Also, I would add that the mother has demonstrated a lackof judgment regarding the children since the breakup.

Her inability to prioritize the children’s needs and interests is evident throughseveral examples mentioned in the evidence. [95] Considering the mother’s attitude and behaviours, I do not believe that a joint decision-making responsibility order would beworkable and would produce decisions made in the best interests of the children. Although a standard of perfection is not required withrespect to communication between parties, there must fundamentally be some trust, respect and cooperation between the parents. Thereis none of that between the parties.

A joint decision-making responsibility would therefore make the lives of the father and the childrenmuch more difficult, if not impossible. If there was joint decision-making responsibility regarding C. and D., I am concerned that nodecision would be made considering the mother’s lack of judgment regarding the children’s needs, her argumentative attitude, and thefather’s inability to reach her at times. It would also expose the children to parental conflict. [96] I therefore order that the father shall have sole decision-making responsibility regarding the children.

Parenting time [97] A parent does not have an absolute right of access (now parenting time). Access has been recognized as the child’s, rather thanthe parents’, right. On the issue of access, Justice L’Heureux-Dubé stated in Young v. Young, (SCC), [1993] 4 S.C.R. 3,as follows: 66 Access rights exist in recognition of the fact that it is normally in the interests of the child to continue and foster the relationshipdeveloped with both parents prior to the divorce or separation. This being said, the right to access and the circumstances in which it takesplace must be perceived from the vantage point of the child.

Wherever the relationship to the non-custodial parent conflicts with the bestinterests of the child, the furtherance and protection of the child's best interests must take priority over the desires and interests of theparent. 67 As the ultimate goal of access is the continuation of a relationship which is of significance and support to the child, access must becrafted to preserve and promote that which is healthy and helpful in that relationship so that it may survive to achieve itspurpose.

Accordingly, it is in the interests of the child, and arguably also in the interests of the access parent, to remove or mitigate thesources of ongoing conflict which threaten to damage or prevent the continuation of a meaningful relationship. [98] In other words, parenting time is only to be ordered in circumstances where there will be a benefit to the child. It is not sufficientto show that having parenting time will not harm the child; that is far too low a threshold as Justice Sheer stated in A.(I.) v. Z.(M.) 2016ONCJ 615 (O.C.J.), at para. 36.

[99] Refusing or terminating parenting time is a measure of last resort and should only be ordered in extreme circumstances. It isreserved for those situations where parenting time offers no benefit to a child (see B.(T.) v. M.(A.), 2022 NBQB 349). Proof of cleardanger to a child is not required (see F.(W.) v. R.(G.), 1997 CarswellNB 423 (N.B.Q.B.), at para. 28). [100] In Jennings v. Garrett, (ON SC), [2004] O.J. No. 2238 (Ont.

S.C.J.), Justice Blishen provides a usefuloverview of the factors that have led courts to terminate a parent’s parenting time and she discusses the alternative option of havingsupervised parenting time: 135 In considering these cases and others, the factors most commonly considered by the courts in terminating access are the following: 1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear. See M.(B.P.) v. M. (B.L.D.E.), supra; Stewart v. Bachan, [2003] O.J. No. 433 (Ont. C.J.); Studley v. O'Laughlin, [2000] N.S.J. No. 210 (N.S.Fam.

Ct.); Dixon v. Hinsley, (ON CJ), [2001] O.J. No. 3707 (Ont. C.J.). 2. History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/orpresents a risk to the child's safety and well being. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J. No. 769 (N.B.Q.B.); Abdo v. Abdo (1993), (NS CA), 126 N.S.R. (2d) 1 (N.S. C.A.); Studley v. O'Laughlin, supra. 3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent.See Tremblay v.

Tremblay (1987), (AB KB), 10 R.F.L. (3d) 166 (Alta. Q.B.); Reeves v. Reeves, [2001] O.J. No.308 (Ont. S.C.J.). 4. Ongoing severe denigration of the other parent. See Frost v. Allen, [1995] M.J. No. 111 (Man. Q.B.); Gorgichuk v. Gorgichuk, supra. 5. Lack of relationship or attachment between noncustodial parent and child. See Studley v. O'Laughlin, supra; M. (B.P.) v. M.(B.L.D.E.), supra. 6. Neglect or abuse to a child on the access visits. See Maxwell v. Maxwell, supra. 7. Older children's wishes and preferences to terminate access. See Gorgichuk v. Gorgichuk, supra; Frost v.

Allen, supra; Dixon v.Hinsley, supra; Pavao v. Pavao, [2000] O.J. No. 1010 (Ont. C.J.). 136 None of the above cited cases deal with one factor alone. In every case, there are a multitude of factors which must be carefullyconsidered and weighed in determining whether to terminate access is in the best interests of the child. 137 Most of the factors listed above would also be relevant to a consideration of supervised access. As the termination of access is themost extreme remedy to be ordered in only the most exceptional circumstances, the court must carefully consider the option ofsupervision prior to termination.

It is possible through a supervision order to do the following: protect children from risk of harm;continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to dealwith issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce theconflict between parents and thus, the impact upon children. 138 Supervised access is seldom viewed as an indefinite order or long term solution. In M. (B.P.) v.

M. (B.L.D.E.), supra, Abella J.A.states at para. 33: The purpose of supervised access, far from being a permanent feature of a child's life, is to provide "a temporary and time-limitedmeasure designed to resolve a parental impasse over access. It should not be used ... as a long-term remedy": Norris Weisman, "OnAccess after Parental Separation" (1992), 36 R.F.L. (3d) 35 at 74 . . . .

139 There may be occasions, however, where medium or longer term supervised access is in the child's best interests. ProfessorMartha Bailey of the Faculty of Law at Queen's University questions what she considers to be the doctrinaire approach which assumesthat long term supervised access is not in the best interests of the child and notes that this approach may undermine the child's right tomaintain personal contact with the parent except where contrary to the child's best interests.

In her article, "Supervised Access: A LongTerm Solution?" 37 Family and Conciliation Courts Rev. 478 (October 1999), she states the following at p. 480: The issue of whether long term supervised access is in the best interests of the child must be determined on a case by case basis, takinginto consideration all circumstances relevant to the best interests of the child.

The question then is whether there are any circumstancesunder which long term supervised access will be in the best interests of the child, even where unsupervised access is not a future option. 140 In my view, supervised access, whether short, medium or long term, should always be considered as an alternative to a completetermination of the parent/child relationship.

Clearly, if there has been an attempt at supervised access which has proven unworkable, suchas where the child remains hostile to the father during the visits; the child reacts badly after visits; or, where the access parent continuallymisses visits or is inappropriate during the access then termination must be considered. See Studley v.

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