A.G. Applicant And: A.Q. Respondent, 2019 NLSC 85

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR FAMILY DIVISION Citation : A.G. v. A.Q. , 2019 NLSC 85 Date : April 16, 2019 Docket : 201304F0259 Between: A.G. Applicant And: A.Q. Respondent Before: Justice Laura A. Mennie Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: May 22 – 24, 2018; June 5, 2018; and January 28 – 29, 2019

Summary: A.G. filed an Originating Application seeking to vary the existing parenting and child support Order. A.G. is seeking shared parenting and a child support Order to reflect same. Application granted. Appearances:

Julia A. Smart Appearing on behalf of A.G. Melissa May Appearing on behalf of A.Q. Authorities Cited: CASES CONSIDERED: R.(F.F.) v. F.(K.), 2013 NLCA 8; MacDonald v. MacDonald (1998) (NL CA), 161 Nfld.& P.E.I.R. 39, 77 A.C.W.S. (3d) 1017 (Nfld. C.A.); Brushett v. Brushett (1993), (NL SC), 109 Nfld. & P.E.I.R. 129,42 A.C.W.S. (3d) 86 (Nfld. S.C.(T.D.)); Rowe v. Coles, 2012 NLTD(F) 24; Jelinski v. Grajezyk, 2013 SKCA 18, aff’g 2011 SKQB 383;and Kaplanis v. Kaplanis (2005), (ON CA), 249 D.L.R. (4th) 620, 194 O.A.C. 106 (Ont. C.A.). STATUTES CONSIDERED: Children’s Law Act, R.S.N.L. 1990, c.

C-13; Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.); Child SupportGuidelines Regulations, N.L.R. 40/98; and Family Law Act, R.S.N.L. 1990, c. F-2. REASONS FOR JUDGMENT Mennie, J.: INTRODUCTION [1] A.G. and A.Q. are the parents of G., age 12, and T., age 10. A.G. filed an Originating Application to Vary on August 26,2016, seeking to vary an Order made by another Justice of this court on May 6, 2016 concerning parenting and child support. A.G. isseeking a shared parenting arrangement and a new child support Order.

He is also requesting the Court to reduce his line 150 incomeavailable for child support on a go-forward and retroactive basis so as to reflect various employment expenses he incurs each year. A.Q.will only agree to a shared parenting arrangement during the summer months. She is opposed to any and any retroactive adjustment tochild support. [2] As the parties have been engaged in litigation concerning the appropriate parenting arrangement for almost six years, a briefreview of the history of this file is necessary to provide some context.

Background and procedural history [3] The parties began living together in January 2007. While they were in a relationship both parties were involved in caring forthe Children; however, due to A.G. having to work away, A.Q. was the more hands on parent. From the date of separation in October2012 until approximately April 2013, the parents shared custody of the children. In April, A.Q. denied A.G. access with the childrenbecause she had some concerns about the level of care they were receiving while with him.

The denial of access led A.G. to file anOriginating Application on July 3, 2013 seeking a joint parenting arrangement. A.Q. disagreed. When A.G. became aware that A.Q.intended to relocate to Gander with the children and her new husband, he filed an Interim Application seeking shared parenting. On July11, 2013, after a hearing, the Court made an Interim Order for shared parenting. [4] A trial in relation to A.G.’s Originating Application took place in June 2014. The issues were twofold: First, should A.Q. bepermitted to relocate to Gander with the children?

Second, if a relocation was not permitted, should the parties maintain the sharedparenting arrangement which had been in place since July 11, 2013? The decision was not rendered until May 6, 2016. The other Justiceof this court decided that A.Q. would be permitted to move with the children and that A.G. would have a specific access

schedule bearingin mind the distance between A.G.’s home and Gander. Unfortunately, unbeknownst to the other Justice of this Court, during theintervening period between the end of trial and the decision, A.Q.’s marriage ended such that she was no longer interested in moving toGander. As a result, the parties were left with a court Order that did not reflect the reality of their situation. A.Q., however, decided thatthe parties should follow the Order the best they could. She agreed that A.G. could have the children every second weekend and oneevening per week on the “off” week. Pursuant to an Interim Consent Order dated March 9, 2018, that

schedule changed such that thechildren were with their father every second weekend from Thursday to Sunday during the school year and shared parenting during thesummer.

The parties were following that parenting arrangement when the trial before me ended on January 29, 2019. [5] Before the conclusion of the trial and despite their difference of opinion on the day-to-day parenting arrangement most suitedto meet the children’s best interests, the parties were able to reach a resolution with respect to a number of other parenting time issues.The Court was presented with an agreement on parenting which included a statement of the parties’ decision-making powers in relationto some issues, parenting time during holidays and special occasions, travel with the children, a

schedule for other than in-person contact,and an agreement that the children would be permitted to attend some summer camps. With respect to parenting during the summer, theparties agreed to a shared parenting arrangement consisting of one week on/one week off. Given the nature of the agreement reached bythe parties, it would appear that neither parent is concerned about the other’s parenting ability. [6] The Court has been asked to resolve two issues:

1) Is it in the children’s best interests that the parents maintain a shared parenting arrangement of a week on/week off throughout the entire year? 2) What should the child support arrangement look like on a go-forward basis and is A.G. entitled to a retroactive adjustment? Is it in the children’s best interest that the parents maintain a shared parenting arrangement of a week on/week off throughout the entire year? [ 7 ] Both parents presented evidence in support of their positions. A.Q. gave a number of reasons why she believes shared parenting throughout the year is not appropriate.

A.G. gave a number of reasons why he believes that it is. Evidence presented on behalf of A.G. A.G. [ 8 ] A.G. advised the Court that he continues to live in the home he formerly shared with A.Q. There is a bedroom for each child. A.G. lives alone. He has been employed with a haulage business for over 20 years. A.G. testified that when the children are with him they have a regular

schedule on school days which includes meals, homework, baths, and a sensible bedtime. A.G. testified that on the weekends he likes to limit the children’s screen time. As a result, they spend a lot of time outdoors doing things they use to enjoy as a family such as snowmobiling, ATV rides, swimming, and biking. He acknowledged that sometimes the regular meal hours are disrupted as a result. [ 9 ] A.G. testified that he is very involved in his children’s lives. At the hearing he knew the names of their close friends, their doctor, and their teachers.

He indicated that he was a regular visitor to their school every second Thursday and Friday and further that he attends the parent/teacher meetings, school concerts, and any other school activities open to parents. With respect to extracurricular activities, he acknowledged that the children’s hockey was important to them and a great way to keep them fit and occupied.

He stated that he has brought them to some tournaments but he acknowledged that the related costs are sometimes difficult for him to cover or contribute to. [ 10 ] A.G. testified that from approximately July 2013 to August 2016, the parties followed a shared parenting arrangement. He stated that during this time the children were healthy, happy, thriving, and excelling at school. He noted that in 2016, both G. and T. were named student of the year in their respective classes. A.G. testified that in September 2016, A.Q. decided that she wanted to follow the Court Order from May 2016.

As a result, his parenting time during the school year was reduced first to every second weekend and one evening in the off week and then to the current

schedule of every second Thursday to Sunday. The one evening during the off week continues. [ 11 ] A.G. does not feel that this arrangement is in the children’s best interests. He believes that the children should have the opportunity to experience everyday life with both of their parents. A.G. stated that the children are much more likely to become well– rounded adults if they have the opportunity to see that both a mother and a father are equally capable of providing care to a child.

While he acknowledges that A.Q. is an excellent mother, he feels that he is also a good parent who has much to offer his children. He spoke of his efforts to instill in his children the love of nature and outdoor activities such as fishing, hunting, berry picking, and snowmobiling. A.G. is of the view that it is in the children’s best interests that they have both parents in their lives on an equal basis.

He noted that he and a previous partner, upon separation, were equally involved with the raising of their two children who are now independent young adults. [ 12 ] In terms of his parenting relationship with A.Q. post-separation, A.G. acknowledged that their level of communication has not been great. The parties communicate largely by text or Facebook. He admitted that there have been occasions when he has been uncooperative, difficult, and sometimes angry in his dealings with A.Q.

A.G. testified that his gruff approach at times stems from what he perceives is an attempt by A.Q. to marginalize him in the children’s lives. He agreed, however, that his behaviour has not been helpful and from time to time has caused unnecessary stress between the parties.

He indicated he was committed to improving the communication between the parties and suggested that positive changes have already taken place. [ 13 ] With respect to A.Q.’s complaint that he takes far too long to answer her texts when it relates to time sensitive issues such as flu shots, counselling for T., or summer camps, A.G. agreed that at times he has been slow in responding. He testified that he does not like to make decisions concerning the children until after he has had an opportunity to educate himself about the issue in question and reflect upon his position.

A.G. conceded that his approach has likely caused A.Q. needless frustration. He indicated that in the future he would be prepared to respond to any inquiries from A.Q. within a set timeframe knowing that if he does not, A.Q. shall be free to make the decision. [ 14 ] On cross-examination, counsel for A.Q. suggested to A.G. that the only reason he is requesting shared parenting is so that he can pay lower child support and gain additional tax benefits. A.G. denied this indicating that his only concern was the children’s best interests.

Counsel also suggested to A.G. that based on his income, he could not afford to have the children half-time, particularly if he needed a babysitter. A.G. indicated that he has financially supported all of his children and that there was no basis upon which to suggest that he could not continue to do so. [ 15 ] On further cross-examination, counsel for A.Q. suggested to A.G. that the underlying reason for his negative attitude towards A.Q. was that he was jealous and disapproved of her relationships with other men since their separation.

A.G. denied any feelings of jealousy but admitted that he was concerned by the number of new partners she had introduced to the children over what he perceived was a relatively short period of time. L.M. [ 16 ] A.G.’s younger sister, L.M., testified on his behalf. She described her brother as a wonderful parent and a father figure to her three children who are now out on their own. She also indicated that when her granddaughter stays with her every second weekend, A.G.

will look after her for short periods of time if L.M. has something to attend to. Evidence presented on behalf of A.Q. A.Q. [ 17 ] A.Q. lives a fairly short distance away from A.G.’s home. She has been employed with a financial institution for several years. A.Q. owns a three bedroom home. She lives there with the children and her common law partner, K.M. She and K.M. met online and began seeing each other in February 2016. K.M. moved into A.Q.’s home a few months later. K.M. has a daughter from a previous relationship who is approximately 11 years old.

After he moved in with A.Q., his daughter would visit with him there every second weekend. In September 2018, his daughter moved in permanently. She shares a room with T. [ 18 ] As noted, from July 2013 to September 2016, the children lived with both parents on a week on/week off basis. Since September 2016, the children have resided primarily with their mother. A.Q. testified that a shared custody arrangement throughout the year was not at all in the children’s best interests. Her reasons for taking this position include: the parties’ inability to communicate; their inability to cooperate when the parenting

schedule needs changing; A.G.’s jealousy towards her partners; his exposure of the children to conflicts with their mother and other adult issues; his lack of involvement in aspects of the children’s care such as medical appointments, extracurricular activities and school; his lack of a plan of care for the children which addresses his limited finances and work schedule; and finally, their different parenting styles and opinions. [ 19 ] A.Q. testified that the parties’ inability to communicate effectively has been ongoing since their separation in 2012. She attributed this solely to A.G.

A.Q. provided several examples to illustrate her point. Many of the examples were in the form of texts between she and A.G. that he either did not respond to in a timely fashion or, from A.Q.’s point of view, he responded to in either a vague, hostile, or unhelpful manner. A.Q. testified that A.G.’s replies often made her feel small and belittled. [ 20 ] A.Q. testified that unlike A.G., she is involved in every aspect of the children’s lives. She arranges and takes the children to all medical appointments, hockey tournaments, and summer camps, and pays all costs associated with same.

She volunteers at their school and with the hockey team. She hosts sleepovers when the children request. A.Q. testified that although A.G. does not participate in any of these activities, he demands that she keep him informed of all appointments and important dates. If he does not feel her report is sufficiently detailed he will then complain.

Similarly, while A.G. chooses not to involve himself in relation to the children’s health or activities, he will take A.Q. to task if she makes decisions he does not agree with such as the administration of flu shots or attendance at a summer camp. [ 21 ] Of particular concern to A.Q. is what she views as A.G.’s lack of commitment to ensure that the children attend their scheduled activities and social engagements i.e. friend’s birthday parties. A.Q. testified that instead A.G. involves the children in the activities that he likes which are not age appropriate for the children.

For example, he allows them to drive the snowmobile or he leaves them by the water while he fishes upstream. [ 22 ] A.Q. is adamant that a week on/week off arrangement throughout the year is not in the children’s best interests. She testified that there will be problems due to the parties’ different parenting styles. A.Q. indicated that the children have been through a lot of change and conflict since 2012.

As they have now been in a stable arrangement for almost three years they should not be required to adapt to a new parenting arrangement. [ 23 ] On cross-examination, counsel for A.G. challenged A.Q. on her position that shared parenting cannot work. Counsel suggested to A.Q. that shared parenting during the summer months goes very well. A.Q. concurred. She acknowledged that the kids are happy and have the opportunity to do fun things with both parents. A.Q. agreed that the children enjoy their time with their father.

She later agreed that communication between herself and A.G. had improved slightly. [ 24 ] On further cross-examination, counsel for A.G. challenged A.Q. on her statement that the children should not be required to adapt to a new parenting arrangement.

Counsel reviewed the various changes the children had been confronted with since their parents’ separation in 2012: A.Q. married in 2014, separated in 2015, moved in with her mother, bought a home, began a common law relationship in June 2016, the shared parenting arrangement ended abruptly in September 2016, and in September 2018, K.M.’s daughter moved in with them. Counsel asked A.Q. if the children had remained top students throughout this period of significant change. She agreed that they had. K.M. [ 25 ] K.M. testified that he had met G. and T. about 15 times before he moved into their home in June 2016.

He indicated that initially the children were not overly happy with this development but now everyone gets along very well. K.M. testified that the communication between A.G. and A.Q. concerning the children is not great. He stated that A.Q. is always trying to compromise whereas A.G. just asks for more and more. K.M. noted as well that when the children return from their father’s home, they show negativity towards their mother. [ 26 ] K.M. testified that his in-person contact with A.G. has consisted of a brief exchange in the changing room at the hockey rink.

He has, however, made contact with A.G. via Facebook Messenger and text. On one other occasion, he wrote A.G.’s sister, L.M., whom he had never met. The purpose of the written communications appears to have been to let A.G. know that his parenting and his ability to cooperate with A.Q. were subpar. To convey his point, K.M. used words in his communications such as “ignorant”, “immature”, and “misinformed” to describe A.G. He also sent A.G. a picture of a smiling T. referring to her in the caption as “our girl”.

He brought the picture to court and at one point while he was testifying he held it up in front of A.G.’s face. [ 27 ] On cross-examination K.M. indicated that he has heard things about A.G. and his sister in the community. He admitted that he also speaks about them to others. He stated that while he spoke about A.G. negatively, he did not “call him down to the dirt”. K.M.

concluded his cross-examination by indicating that if an opportunity presented itself whereby he could get information that would paintA.G. in a negative light, he would consider taking steps to obtain it. The applicable law [28] As the parties were never married, the Children’s Law Act, R.S.N.L. 1990, c. C-13 applies. Section 35(1) of the Act speaks tothe variation of existing orders. The

section states: 35.

(1) A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in the provinceunless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. [29] Both sections 31 and 72 of the Act mandate that the merits of any application involving the parenting of a child must bedetermined on the basis of the child’s best interests. Section 31(2) of the Act sets out factors the Court must consider in determining whatparenting arrangement is in a child’s best interests.

Section 31(2) states as follows: 31(2) In determining the best interests of a child for the purposes of an application under this

Part in respect of custody of or access to achild, a court shall consider all the needs and circumstances of the child including (

a) the love, affection and emotional ties between the child and, (

i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child's family who live with the child, and (iii) persons involved in the care and upbringing of the child; (

b) the views and preferences of the child, where the views and preferences can reasonably be ascertained; (

c) the length of time the child has lived in a stable home environment; (

d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, thenecessaries of life and the special needs of the child; (

e) the ability of each parent seeking the custody or access to act as a parent; (

f) plans proposed for the care and upbringing of the child; (

g) the permanence and stability of the family unit with which it is proposed that the child will live; and (

h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. [30] This list is not exhaustive. The Court is free to consider other factors such as the principle of “maximum contact” and theability of each parent to promote the children’s relationship with the other parent. While the maximum contact principle is specificallyset out in the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), it is equally applicable in cases where the parents are not married.

Theprinciple, however, is subject to the best interests of the child. [31] There is no presumption in favor of the status quo when assessing a child’s best interests. While the Court is entitled toconsider where the child has been living and by whom he or she has been primarily parented prior to deciding the appropriate parentingarrangement, it is not a controlling factor. In R.(F.F.) v. F.(K.), 2013 NLCA 8, White J.A. stated at paragraph 42: 42 It is important to note that the status quo is not a controlling factor and it does not decide the issue. There is no presumption in favorof the status quo.

Where the child has lived in a particular home and been primarily parented by a particular parent, the trial judge isnevertheless entitled to consider this in his or her overall weighing of the evidence. In considering these factors along with all of theevidence in relation to the best interests of K., the trial judge did not err. [32] There is also no presumption in favor of shared parenting (see MacDonald v. MacDonald (1998) (NL CA),161 Nfld. & P.E.I.R. 39, 77 A.C.W.S. (3d) 1017 (Nfld. C.A.). In Brushett v. Brushett (1993), (NL SC), 109 Nfld. &

P.E.I.R. 129, 42 A.C.W.S. (3d) 86 (Nfld. S.C.(T.D.)), the court discussed the proper approach to take respecting the entitlement of a child to a proper parenting arrangement. Green, J, as he then was, stated at paragraph 63: 63 . . . I believe that the appropriate approach is to start with the proposition that there should be no presumption for or against joint or sole custody. The sole criterion should be what is in the best interests of the child in the circumstances of the particular case.

Thus, if it is in the best interests of the child that he or she continue to receive direction and input from both parents by an arrangement that should be denominated as joint custody, that should be ordered even though one parent opposes the arrangement. . . . [ 33 ] There is no priority or greater weight given to any of the factors just mentioned. As well, in reaching its decision on the appropriate parenting arrangement, the factors which the Court will consider vary from case to case. Each case must be decided on its own merits. As LeBlanc, J. stated in Rowe v.

Coles , 2012 NLTD(F) 24 at paragraph 43: 43 Accordingly, there is no presumption in favour of one parent over the other, of a shared or equal parenting of a child, or any other type of parenting or custody order.

Each case brings with it a need to make an individual assessment as to the needs of the child or children involved as well as the respective abilities of each parent seeking to have a parenting role for that child or children. [ 34 ] As each case must be decided on the basis of the best interests of the particular children involved, case law often provides very little assistance other than to give a statement of the general law.

For example, if one was to review a number of cases where shared parenting was sought by one parent in circumstances where communication between the parents was poor, you would find just as many decisions allowing a shared parenting arrangement as disallowing it. [ 35 ] Counsel for A.Q. has suggested that I am bound by the decision of my colleague given on May 6, 2016 in which he determined that a shared parenting arrangement was not appropriate. I do not agree for two reasons. First, his decision was based on testimony he heard five years ago in 2014.

In my view, the passage of time necessitates a new assessment of the children’s best interests. Second, the Court’s comments concerning a shared custody arrangement were made after the decision allowing A.Q. to relocate with the children several hundred kilometres away. Obviously shared parenting would not have worked in those circumstances. Analysis [ 36 ] The present parenting Order was made on the understanding that A.Q. would be moving to Gander with the children. As she chose not to do so, the conditions of the Order with respect to A.G.’s parenting time are no longer appropriate.

I am satisfied that there has been a material change of circumstances that affects or is likely to affect the best interests of the children. A review of the present parenting Order is therefore warranted. [ 37 ] In assessing the children’s best interests, I will start with a consideration of the relevant factors set out in section 31(2) of the Act . (

a) the love, affection and emotional ties [ 38 ] I am satisfied that the love, affection and emotional ties between the children and each of their parents is very strong. (

b) the views and preferences of the children [ 39 ] The children are ages 12 and 10. While they are not at an age where they can make their own decisions about where they wish to live, I must still consider their view and preferences. I have, however, received no evidence concerning the children’s thoughts about the present parenting arrangement or the changes proposed by A.G. (

c) the length of time the children have lived in a stable home environment [ 40 ] During the four year period after the parties separated, the children had to deal with a number of significant changes in their lives: the separation of their parents, their mother’s remarriage and subsequent separation, their mother’s involvement with and subsequent engagement to K.M., and the introduction of his daughter. [ 41 ] In addition, although the parenting arrangement from 2012 to August 2016 had been almost exclusively a shared parenting regime, it abruptly changed in September of 2016.

Since September 2016, however, the children have resided primarily with their mother in accordance with the dated court Order. Both parent’s home environments have been fairly stable. A.G. remains in the family home alone. A.Q. continues to live in a residence she purchased about three years ago. The composition of A.Q.’s household has recently changed, however, with the addition of K.M.’s daughter. (

d) the ability/willingness of each parent to provide guidance and education, necessaries of life, and the special needs of the child [ 42 ] Both A.Q. and A.G. are employed although A.Q.’s job seems more predictable in terms of an annual income. Both parents have adequate accommodations and hold the same view with respect to the importance of education. Neither child has special needs. (

e) the ability of each parent seeking the custody or access to act as a parent [ 43 ] The evidence satisfies me that both A.Q. and A.G. have been active, participating parents. Although A.Q. has carried a greater portion of the children’s care since September 2016, I have concluded that both parents are capable of looking after the day-to-day needs of the children so as to ensure their safety, health, and well-being.

I acknowledge A.Q.’s concerns about A.G.’s lack of routine and his choice of activities when he is with the children, While A.G. may have a different parenting style than A.Q., there is no evidence before me that he is unable to care for the children properly. [ 44 ] I am however concerned that A.G. does not always ensure that the children go to their extracurricular activities or socialize with their friends (i.e. at birthday parties). While missing an occasional hockey practice or a party may not seem that significant, the

repeated failure to assist the children engaging in such activities may be grounds to vary the parenting arrangement. In Jelinski v.Grajezyk, 2013 SKCA 18, aff’g 2011 SKQB 383, the Court of Appeal agreed with the trial judge that the father’s refusal to facilitate thechild’s involvement in extracurricular activities during his parenting time caused the child such anxiety that it warranted a change in theparenting arrangement. (

f) plans proposed for the care and upbringing of the children [45] A.G. wishes to have a shared parenting arrangement. A.Q. is of the view that shared parenting is only suitable for the summermonths. Both parties plan to remain in the same area for the time being. A.Q. and K.M. have plans to marry at a later date. [46] In assessing whether a shared parenting arrangement throughout the year is in the children’s best interests, I have alsoconsidered the ability of each parent to promote and encourage the children’s relationship with the other parent. This is a very importantfactor.

Courts have altered parenting arrangements when it is clear that one parent is not encouraging the children’s relationship with theother parent. Overall the evidence satisfies me that both parents have ensured that the children have had regular and consistent time withthe other parent since they separated. While I acknowledge A.Q.’s many positive attributes as a parent, I do, however, have concernsabout A.Q.’s ability to foster the children’s relationship with their father. My concerns are threefold.

First, upon reviewing all of thetestimony, it is clear that A.Q. is incapable of seeing any positive attributes in A.G.’s parenting. Second, A.Q.’s testimony suggests thatshe considers herself to be the only parent that the children have had and, as a result, she should have full control of their schedules,schooling, home life, extracurricular activities, and time spent with their father. Third, and the most significant concern for the Court, iswhether A.Q. has the intention and ability to ensure that K.M.’s feelings towards A.G. do not affect the children. K.M. made it perfectlyclear that he does not like A.G.

He views A.G. as a source of upset for A.Q. and a source of disruption in their lives. K.M. is entitled tohave his own perspective on the situation. His testimony and demeanor in court, however, illustrated significant hostility towards A.G.K.M. indicated an intention to disparage A.G., and the children’s aunt in the community wherever possible. His decision to confront A.G.in court with a picture of his daughter, whom K.M. referred to as “our girl”, showed appallingly bad judgement. A.Q. did not address herpartner’s behavior in her subsequent testimony.

The Court is very concerned that the children are going to be negatively influenced byK.M.’s opinions given his palpable dislike of their father. [47] Another issue I have considered in deciding whether a shared custody arrangement should be in place year round is the abilityof the parents to communicate. It is not necessary for me to determine that the parents are able to communicate respectfully at all times. In Kaplanis v. Kaplanis (2005), (ON CA), 249 D.L.R. (4th) 620, 194 O.A.C. 106 (Ont.

C.A.), the court stated that allthat was required was some evidence that the parties are able to communicate effectively with each other. The court stated at paragraph11: 11 The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a jointcustody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigationis over does not provide a sufficient basis for the making of an order of joint custody.

There must be some evidence before the courtthat, despite their differences, the parents are able to communicate effectively with one another. . . . [48] A.Q. testified that the parties’ ability to communicate effectively is non-existent. She indicated that A.G. never responds to herinquiries in a timely manner and when he does, his reply is often not on point. She stated that this has led to frequent conflict between theparties which at times the children have been exposed to.

A.G. agrees that their level of communication has not been great but it isimproving. [49] I have listened to both parties in relation to this issue and I have taken the opportunity to review the various text and Facebookmessages sent between them. I agree with A.Q.’s assertion that A.G. has at times been slow in responding. I also agree that there havebeen occasions where A.G. intentionally failed to respond to a point or a question she had raised.

While I accept A.G.’s explanation thathe needs time to educate himself on important questions concerning the children before he responds, that certainly should not be the casewith simple issues such as changing a time to pick up or drop off the children. A.G. must improve his skills in this area. At the sametime, it is important to note that if A.G. holds a position on a matter which is contrary to A.Q.’s, this should not be interpreted as anattempt on his part to create needless conflict.

Both parents are entitled to hold different viewpoints provided that ultimately they canmake an informed decision which is in the best interests of the children. [50] Despite A.Q.’s direct testimony that the parties are unable to communicate, she admitted on cross-examination that sharedparenting during the summer months had gone well. She agreed that the children enjoyed their time with both parents.

She also agreed,albeit reluctantly, that communication between herself and A.G. had slightly improved. [51] The Court received other evidence to suggest that perhaps A.Q. had overstated the parties’ inability to communicate concerningthe children.

The fact that the parties were able to reach an agreement on their own concerning parenting time for holidays and specialoccasions, travel with the children, and the sharing of costs in relation to extracurricular activities is a strong indication that the parentscan work together for the best interests of the children. [52] I have considered one final factor in reaching my decision concerning the appropriateness of a shared parenting arrangementyear round and that is A.Q.’s agreement to share parenting during the summer.

In my view, given A.Q.’s position that the parties cansuccessfully share parenting during the summer, the concerns she has expressed about a shared parenting arrangement during the schoolyear are far less compelling. Conclusion [53] I have considered the law and the evidence in its totality. I see no reason why the children should be limited to seeing theirfather only eight days per month during the school year. I am satisfied that it is in the best interests of the children that they enjoy ashared parenting arrangement all year.

My Order shall incorporate the agreement reached by the parties as well as some additionalconditions concerning decision-making and communication. Shared parenting, based on a week on/week off schedule, shall begin afterthe Easter holiday this month.

What should the child support arrangement look like on a go-forward basis and is A.G. entitled to a retroactive adjustment? Evidence presented [ 54 ] The parties are seeking a child support Order on a go-forward basis that reflects the parenting arrangement and their incomes. In addition, A.G. has requested that the Court retroactively adjust the child support he has paid for the period August 1, 2016 to July 31, 2018.

Before dealing with A.G.’s request for a readjustment, it is helpful to review the previous child support Orders. [ 55 ] The Court in its decision released on May 6, 2016 made an Order for child support based on a parenting arrangement whereby A.Q. would have primary care of the children. The Order included a requirement that child support be recalculated on or before June 1. 2017. The Court, in response to questions from counsel for A.Q. who sought clarification about certain terms, made a second child support Order on October 26, 2016.

It required A.G. to pay child support in the amount of $639 per month based on his 2015 income. The Order did not contain a recalculation clause but was to be read in conjunction with the May 6, 2016 Order. When it came time to recalculate the Order, the Recalculation Office would only recognize the October 26, 2016 Order. Given that the Order did not contain a recalculation clause, it would not recalculate. As a result, A.G. continued to pay child support based on his 2015 income when his 2016 and 2017 incomes were lower.

In an attempt to rectify this situation and to seek a change in the parenting arrangement, A.G. filed an Originating Application to Vary on August 1, 2016. On August 1, 2018, the parties agreed to an Interim Order varying the child support payable to reflect A.G.’s accurate income. [ 56 ] As noted, A.G. is seeking a readjustment of the child support he paid from August 1, 2016 to July 31, 2018 on the basis that the child support Orders in place during the relevant timeframe attributed to him an incorrect income.

He submitted that the appropriate amount of income to attribute to him for the purposes of child support was his line 150 income less his motor vehicle expenses related to his employment and less the amount of Universal Child Care Benefits he received. Counsel for A.Q. conceded that pursuant to

Schedule III of the Child Support Guidelines Regulations , N.L.R. 40/98 , A.G. is entitled to deduct both amounts. A.Q., however, disagreed with A.G.’s claim in two respects. First she argued that he was not entitled to deduct 100 percent of his motor vehicle expenses because some of the expenses related to personal use of the vehicle.

Second, she submitted that the appropriate start date for any retroactive adjustments was June 1, 2017 and not August 1, 2016. [ 57 ] With respect to the issue concerning what percentage of the motor vehicle expenses A.G. could deduct, it was suggested to A.G. upon cross-examination that while he used the vehicle in question mainly for his employment, it was also used for non-work related purposes. A.G. agreed with the suggestion from counsel for A.Q. that the vehicle was used about 90 percent of the time for work and 10 percent percent of the time for personal reasons.

On that basis, both counsel have agreed that A.G.’s income for child support shall be his line 150 income less 90 percent of his employment expenses. [ 58 ] As to the question of when the period subject to retroactive readjustment should begin, counsel for A.Q. argued that the date proposed by A.G., that being August 1, 2016, was not appropriate. She argued that in order for the Court to have varied the Order at that time, it would have had to have been satisfied that a material change of circumstances had occurred.

Give that the parenting arrangement upon which the May 6, 2016 Order was based had not changed, counsel for A.Q. argued that no material change in circumstances had occurred. She argued that as both parties agree that the intention of the May 6, 2016 Order was that it be recalculated on June 1, 2017, the Court should use that date for the commencement date of the period of retroactive readjustment. The applicable law [ 59 ] Pursuant to

section 37 of the Family Law Act , R.S.N.L. 1990, c. F-2 , every parent has an obligation, to the extent that the parent is capable of doing so, to provide support for his or her child in accordance with the Guidelines .

Section 3 of the Guidelines sets out the presumptive rule for the payment of support to minor children as follows: Presumptive rule 3.

(1) Unless otherwise provided under the guidelines, the amount of an order for support of a child under the age of majority is (

a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent against whom the order is sought; and (

b) the amount, if any, determined under

section 7. [ 60 ] The amount of child support payable by a parent is dependent on the payor’s income.

Section 14 of the Guidelines states that “Subject to sections 15 to 18, a parents (sic) annual income shall be determined using the sources of income set out under the heading "Total Income" in the T-1 General form issued by Canada Customs and Revenue Agency and is adjusted in accordance with

Schedule B”.

Schedule B sets out the types of adjustments that can be made to the payor’s income for things such as employment expenses. Analysis [ 61 ] I have determined that on a go-forward basis child support shall be based upon a shared parenting arrangement. Given the similarity between the parties’ incomes, I will use the set-off approach. With the consent of counsel, the Court shall deduct 90 percent of A.G.’s employment expenses (as set out in line 229 of a Notice of Assessment) from his line 150 income to determine the appropriate income for child support purposes.

I will use A.G.’s 2017 income and employment expenses as I do not have any of his 2018 information. Based upon a line 150 income of $33,142 less employment expenses of $4,368.60 (90 percent of line 229 expenses), A.G.’s

2017 income for the purposes of child support is $28,773.40. A.Q.’s 2017 line 150 income as set out in her T1 General is $31,542.49. A.G. would be required to pay child support in the amount of $413 per month. A.Q. would be required to pay $450 per month.

Using the set-off method, A.Q. shall pay to A.G. for support of the children the amount of $37 per month, payable on the first of each month commencing May, 1, 2019 and on the first of each month thereafter. [ 62 ] In relation to A.G.’s request for a retroactive adjustment, I agree with counsel for A.Q. that the period of time which ought to be adjusted runs from June 1, 2017 to July 31, 2018 as opposed to August 1, 2016 to July 31, 2018 as suggested by A.G. for two reasons.

First, pursuant to section 47(3) of the Family Law Act , a child support order cannot be varied within six months of the making of the order except with leave of a court. A.G., however, commenced his Application to Vary within three months of the making of the Order and without leave of the Court. Second, pursuant to section 47(1) of the same Act , an order cannot be varied unless there has been a material change of circumstances.

Given that there had been no change in the parenting arrangement upon which the May 6, 2016 Order was based and no other material change in circumstance was argued, it is my view that the Order would not have been varied until the intended recalculation date on June 1, 2017. On that date the Order would have been varied to reflect A.G.’s lower income.

In the result, I will readjust the child support that was payable for the period June 1, 2017 to July 31, 2018. [ 63 ] Based upon a 2017 income of $28,773.40, the Newfoundland and Labrador child support tables, and a parenting arrangement whereby A.Q. had primary care, A.G. should have paid $411 per month from June 2017 to November 2017 for a total of $2,466. For the period of December 2017 to July 31, 2018, A.G. should have paid $413 per month for a total of $3,304. The combined total of child support due from A.G. for the period June 1, 2017 to July 31, 2018 was $5,770.

Instead, A.G. was charged at a rate of $639 per month for the 14 month period for a total of $8,946. He is therefore due a credit of $3,176. With the agreement of the parties, I shall order that any arrears owing to the Support Enforcement Agency shall be reduced by this amount.

SUMMARY AND DISPOSITION [ 64 ] Based on the evidence presented, I conclude that G. and T. are well-adjusted, happy, and bright children. Although they have encountered significant change in their lives since 2012, they have continued to thrive and excel. [ 65 ] G. and T. have a strong attachment to both of their parents. A.G. and A.Q. are equally capable and committed to their children.

When I consider all of the evidence and the applicable law, I conclude that it is in the children’s best interests that they enjoy a shared parenting arrangement. [ 66 ] Each parent shall make the day-to-day decisions concerning G. and T. when they are in their respective care. Major decisions related to the children’s health, education, religious upbringing, and extracurricular activities shall be made by consensus. If the parties cannot reach an agreement, A.Q.’s position shall prevail in relation to issues concerning health.

A.G.’s position will prevail in relation to questions about education. [ 67 ] The parenting Order is as follows: Parenting authority 1) The Mother and the Father shall have a shared parenting arrangement in relation to their children, G. and T. (hereinafter referred to as “the “Children”). 2) Each parent shall make the day-to-day decisions concerning the Children when they are in their respective care. 3) The Mother and the Father shall consult with the other prior to making major decisions involving the Children, such as those related to health, religious upbringing, education, and extracurricular activities, and shall attempt to make their decisions by consensus. 4) Notwithstanding paragraph 3 herein, where the parties are unable to agree, major decisions regarding the Children’s medical care and treatment, surgery, long-term medication, major diagnostics, counselling, or therapy shall be made in consultation with the Children’s current physician, dentist, or other health care provider.

If the parents are unable to agree on major decisions relating to the Children’s medical care or treatment, the Mother’s decision will prevail. 5) Notwithstanding paragraph 3 herein, major decisions affecting the Children’s educational programming, including psychological assessment or testing, school choices, or tutors, shall be done by the parents in consultation with the Children’s homeroom teacher.

If the parents are unable to agree on major decisions related to the Children’s education, the Father’s decision will prevail. 6) The parent whose decision shall prevail pursuant to paragraphs 4 and 5 herein, shall not make the major decision without first giving the other parent 30 days written notice. Upon making the decision, the parent shall immediately inform the other parent of the decision that he or she has made. Residency

schedule 7) The parents shall have parenting time on a weekly rotational schedule. Each transition shall occur at the end of the school day on Friday. When the Children are not in school, transitions shall occur at 2 p.m. at the home where the Children have resided for the previous week. The shared parenting arrangement shall commence on Friday, May 3, 2019. Holidays and special occasions Summer 8) The parents agree that they will adjust the summer parenting

schedule to allow the Children to attend summer camp, including but not limited to Killdevil Camp and/or hockey camp. Any adjustment to the summer parenting

schedule shall equally impact the amount of time spent with each parent.

Christmas break 9) Notwithstanding the regular parenting schedule, the parents shall equally share time with the Children during the Children’s Christmas school break. 10) Specifically, in odd-numbered years the Mother shall have the Children for Christmas Eve until Christmas Day at 2 p.m. The Father shall have the Children from Christmas Day at 2 p.m. until Boxing Day at 2 p.m. The Father shall have the Children for New Year’s Eve from 2 p.m. until New Year’s Day at 2 p.m. The remainder of the school holiday shall be equally shared between the parties. 11) In even-numbered years, the opposite shall occur.

Easter 12) Notwithstanding the regular parenting schedule, the parents shall equally share time with the Children during the Children’s Easter school break. 13) Specifically, in even-numbered years, the Father shall have the Children for the first half of the school break and the Mother shall have the Children for the second half of the school break. 14) In odd-numbered years, the opposite shall occur.

Father’s Day and Mother’s Day 15) Notwithstanding the regular parenting schedule, the Mother shall have the Children every Mother’s Day. 16) Notwithstanding the regular parenting schedule, the Father shall have the Children every Father’s Day.

Birthdays 17) Notwithstanding the regular parenting schedule, the Father shall have the Children for his birthday, being October 6, each year. 18) Notwithstanding the regular parenting schedule, the Mother shall have the Children for her birthday, being December 19, each year. 19) Notwithstanding the regular parenting schedule, each parent shall be entitled to spend not less than four hours with the Children on G.’s birthday each year if it is not a school day and not less than two hours if it is a school day. 20) Notwithstanding the regular parenting schedule, each parent shall be entitled to spend not less than four hours with the Children on T.’s birthday each year.

Other contact (e.g. telephone, internet, et cetera) 21) The parent who is not parenting the Children is entitled to daily electronic/phone access with the Children by Skype or phone where Skype is not available. 22) This access shall take place between 6:30 p.m. and 7 p.m. or such other times as agreed upon in advance by the parents. 23) This access shall last for a period of 15 to 30 minutes and may be used to wish the Children goodnight and provide general comfort, but shall not be used to question the Children about the parenting methods or activities of the other parent. 24) The parent caring for the Children during this access shall ensure that Skype or phone access occurs in a quiet room. 25) In the event that one parent will not have access to Skype or a phone during access (i.e. camping in an area without phone service), that parent shall notify the other parent not less than 24 hours in advance. 26) Should either of the Children wish to contact the parent not then having care of them by telephone, email or text, such shall be permitted by the parent with whom they are with.

Other parenting conditions 27) Parenting time shall only be altered on written consent of the parties, by further court order, or on the recommendation of a medical professional in the event of a medical emergency. 28) There shall be no make-up time for missed parenting time unless the parents agree otherwise. 29) Neither parent may object to the other’s plans with the Children and must respect each other’s ability to care for the Children appropriately. 30) There shall be no restrictions placed on the Children with respect to personal items, toys, and gifts they wish to take with them between the residences of their parents.

Should the Children wish to take a gift, toy, or

article of clothing, they shall be permitted to do so without the intervention of the other parent. Communication between parents

31) Both parents are to provide the other with a current address and a phone number. They shall notify the other of any changes in advance of such change. 32) When parenting discussions are required and the discussion is of a non-urgent matter, the parents shall text or email each other and agree upon a time for a phone call to discuss the matter, if necessary. The parent receiving the email or text shall respond as soon as possible and no later than 24 hours after the communication is received.

If no response, including a response requesting more time to reply, is received within the 24 hour period, the parent who sent the communication is free to take any action related to the issue, subject to the best interests of the Children. 33) All emails or texts between the parents shall be brief, respectful, and related solely to the Children with no reference to either of the parents or their activities. 34) Absent an emergency, the parents shall not email or text each other more than once per day. 35) The parents shall exchange information via email or text regarding the Children’s care, scheduled activities, appointments (medical and otherwise), and any requests for changes in the parenting schedule. 36) Neither parent shall speak in a disparaging or negative manner about the other parent, nor allow or encourage others to do so, in the presence of the Children.

The parents shall ensure that the Children do not witness or hear any arguments between them. 37) Neither parent shall discuss with the Children, or with another party in the presence of the Children, present or past legal proceedings or conflicts between the parents. Each parent may respond briefly, in a reasonable manner, to questions with respect to such matters initiated by the Children. 38) The parents shall share copies of all documents pertaining to the Children.

The parents shall not rely on the Children to transport documents between them. 39) Any discussions between the parents at transition times, activities, or other special events where the Children are present or nearby shall be limited to brief and cordial interchanges. If one parent considers that the discussion is not courteous, both shall discontinue the conversation and shall take up the issue later by email or text.

All persons present at the transfer shall be calm and respectful. 40) Neither parent shall post anything on Facebook or on any other public social media forum about the other parent that could be viewed as a derogatory comment. Medical issues 41) Each parent shall be entitled to receive copies of all medical, dental, and other health reports related to the Children, and shall be entitled to consult with the Children’s physicians, dentists, and other health care providers concerning the general well-being of the Children.

Each parent shall be listed on all documents pertaining to the Children and shall be entitled to attend any of the Children’s scheduled appointments. Both parents are to execute consents or authorizations to all persons, including doctors, dentists, and other medical professionals involved with the Children, to speak fully and openly with both parents. 42) The Children’s school shall be advised to contact the parent in whose care the Children are in in the event of an illness or other emergency at the school.

The parents shall provide the school with their contact numbers for this purpose, as well as their scheduled parenting arrangement. 43) Each parent shall be responsible for making day-to-day decisions for routine emergency medical care while the Children are in their care and shall keep the other parent fully informed, by email or text, of any minor illnesses, emergencies, treatments, and medications administered or prescribed while the Children are in their care. 44) In the event of a serious illness, accident, or other misfortune involving the Children, the parent then having the Children in their care shall immediately and promptly notify the other parent.

During any period of illness or recovery, each parent shall have generous and reasonable contact with the Children, consistent with the conditions of this Order and the welfare and happiness of the Children. 45) The Mother shall provide to the Father within seven days of this Order certified copies of the Children’s MCP cards. School issues 46) Each parent shall be entitled to receive copies of all school reports related to the Children. Each parent shall be listed on all documents relating to the Children and shall be entitled to attend any scheduled appointments at the school.

Both are to execute consents and authorizations to allow all teachers and school staff involved with the Children to speak fully and openly with both parents. Extracurricular activities 47) Neither parent shall make plans for their Children when the Children are scheduled to be with the other parent without first having the written consent of the other parent. In addition, the parents shall discuss proposed and/or potential changes to the

schedule or such activities with the other parent prior to mentioning anything to the Children. 48) Both parents may attend any extracurricular activities open to the public, including practices, games, competitions, concerts, performances, recitals, et cetera. In addition, both parents shall be at liberty to attend scheduled school events. The parents shall remain cordial during those occasions and not use them as an opportunity to discuss child-related arrangements or issues. The parent who would normally have the Children in their care at the time shall assume responsibility and control over them. The other parent may briefly greet

or encourage the Children but shall otherwise observe from a reasonable distance. 49) The parent that has care of the Children shall be responsible for taking the Children to their scheduled extracurricular activities. If the parent is unable to do so for a legitimate reason, he or she will let the other parent know at least 24 hours in advance. 50) The parents shall equally share the cost of extracurricular activities for the Children up to $2,000 annually (being $1,000 each). In the event that the cost of extracurricular activities exceed $2,000 annually, this amount will not be shared unless the parents agree.

If the parents do not agree, the exceeding cost will be borne by the parent who incurred that expense. Travel with the Children 51) Should either parent wish to take the Children outside of the province of Newfoundland and Labrador for vacation purposes, they shall first advise the other parent in writing of the dates of travel, location, flight details (if applicable), address, and telephone numbers where the Children can be reached. 52) Should a passport be required for the Children, the parents shall cooperate with each other in providing the necessary information to make the application.

The Mother shall keep the passports at her residence and they shall be made available to the Father as required. 53) Neither parent shall be permitted to remove the Children from Canada without the written consent of the other parent, which consent should not be unreasonably withheld, or a further court order. If consent is received, both parents shall provide the necessary authorizations to allow the other parent to travel outside of the country with the Children.

Resolving future disputes 54) Both parents agree that they will act reasonably as regards any requests or issues that arise from the other parent related to the care and well-being of the Children. Should they be unable to agree on an issue involving the Children (with the exception of those issues referred to in paragraphs 4 and 5 herein), both parents agree to seek mediation regarding the matter before bringing the matter before the Court. Child support 55) In light of the shared custody parenting arrangement and the parents’ similar incomes, child support shall be calculated using the set-off approach.

Based upon the Newfoundland and Labrador child support tables and a 2017 income of $28,773 (line 150 income less 90 percent of employment expenses), A.G. would be required to pay child support for the Children in the amount of $413 per month. Based upon a 2017 income of $31,542.49, A.Q. would be required to pay $450 per month child support. A.Q. shall therefore pay to A.G. the sum of $37 per month for the support of the Children commencing May 1, 2019 and on the first of each month thereafter. 56) The parents shall exchange their T1 General tax forms and their Notices of Assessment for 2018 by June 1, 2019.

They shall exchange subsequent T1 General tax forms and Notices of Assessment on or before June 1 of each year thereafter. Within 30 days following the exchange of information, the parents shall recalculate their respective child support obligations following the process set out in paragraph 55 herein. If a change to the amount of child support payable is required, the new payment shall commence July 1 and on the first day of each month thereafter.

If the parents are unable to determine the appropriate amount of child support payable, they shall self-refer to Family Justice Services for assistance. 57) All amounts owing under this Order shall be paid by A.Q. directly to the Director of Support Enforcement at: Support Enforcement Division PO Box 2006 Corner Brook, NL A2H 6J8 Telephone: 709- 637-2608 unless this Order is withdrawn from the Director of Support Enforcement in accordance with

section 7 of the Support Orders Enforcement Act, 2006 , S.N.L. 2006, c. S-31.1 , as amended 58) For the period June 1, 2017 to July 31, 2018, A.G. overpaid child support in the amount of $3,176. The Support Enforcement Division shall deduct this amount from any arrears A.G. owes. COSTS [ 68 ] There shall be no order as to costs.

_____________________________ Laura A. Mennie Justice