SBN APPLICANT And: CNN respondent, 2020 NLSC 3

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : SBN v. CNN , 2020 NLSC 3 Date : January 10, 20 20 Docket : 201802F0521 Between: SBN APPLICANT And: CNN respondent Before: Justice Katherine O'Brien Place of Hearing: Clarenville, Newfoundland and Labrador Dates of Hearing: November 6, 2019 December 3, 4, 6, and 16, 2019 Appearances: Vanessa M. Laite Appearing on behalf of the Applicant Catherine E. Boyde Appearing on behalf of the Respondent

Authorities Cited: CASES CONSIDERED: Gordon v. Goertz, (SCC), [1996] 2 SCR 27, 134 D.L.R. (4th) 321; D.B.S. v. S.R.G., 2006SCC 37 (S.C.C.) RULES CONSIDERED: Federal Child Support Guidelines, S.O.R./97-175 STATUES CONSIDERED: Children’s Law Act, R.S.N.L, 1990, c, C-13 REASONS FOR JUDGMENT O'Brien, J.: INTRODUCTION [1] This case is primarily about where C (age 6) and O (age 4) will live: in a rural community with their father, SBN; or in St.John’s with their mother, CNN.

It is also about what parenting time the other parent will have with the children and child support. [2] The children and their parents lived in the rural community where SBN continues to live until SBN and CNN separated. CNNthen moved in with her parents in a nearby community. She later moved to St. John’s to seek employment. Following separation, theparties shared parenting on a week-on, week-off basis. Once CNN moved to St. John’s, they changed the

schedule to two weeks-on, twoweeks-off. This continued until C started kindergarten. At this point SBN and CNN disagreed as to where C should go to school andthere was a significant breakdown in their relationship. Ultimately, C started school in St. John’s with both parties agreeing that thematter would be finally decided by the Court. SBN did not have regular access to the children after C started school until an InterimConsent Order was reached in March 2019.

Since that time, he has seen the children every second weekend and holidays have beenshared. [3] I have decided that the children should live primarily with their mother in St. John’s with parenting time with their father atleast one weekend a month. My reasons follow. Background [4] SBN and CNN started dating when CNN was in high school and SBN was finished school and living with his parents. Uponher graduation in 2010, CNN studied in St. John’s for several months but did not finish her program. She returned to her hometown,moved in with her parents and started working as a homecare worker in a family business.

SBN went to Burin around this time and began a course in welding at the College of the North Atlantic. He finished his course in December 2011[1]. SBN bought a house, the one inwhich he still lives, in October 2012. CNN began living with him when he was at home but when he was away for school, and laterwork, she stayed with her parents in the nearby community. [5] Following his graduation, SBN got a job in Labrador where he worked four weeks-on, two weeks-off. This is the job he hadwhen C was born in February 2013.

Sometime when C was still a baby, SBN was laid off from the Labrador job but shortly thereafter heobtained work at the shipyard in Marystown. SBN worked two weeks-on, one week-off and he shared an apartment with a co-worker inMarystown. On his week off he returned to his house, CNN and C. Following their marriage in May 2014, CNN stopped returning to herparents’ home when SBN was away, and stayed in what was then the matrimonial home with C and, later, O. [6] While SBN was taking parental leave when O was born, the project at the shipyard finished and he was out of work.

In 2016,he had three further months of work with IOC. In December 2016, he began fishing with his father full time. SBN had fished with hisfather during the summers since he was a teenager except for the years he was at school or working away. When he was havingdifficulty finding work in his trade in late 2016, his father offered him a full-time position. Although SBN kept looking for work in histrade, and applied to various jobs in Newfoundland, Alberta and Nova Scotia during 2016 and 2017, he was not successful.

Since the parties separated, he has not looked for other positions[2]. [7] SBN fishes from May until July. The exact dates and times vary from year to year but typically his crew makes five to six tripsof about 30 hours duration to catch their crab quota. A trip usually starts around 6:00 pm and ends around midnight the following day.SBN receives employment insurance for the rest of the year. [8] CNN continued to provide homecare work for the same patient until March 2017 when that patient died. CNN typicallyworked from 1:30 pm to 3:00 pm daily with every second weekend off.

The patient lived in CNN’s grandmother’s house so when SBNwas away working, she could take the children with her and leave them in her grandmother’s care or sometimes her mother’s care whileshe worked. [9] The parties separated in February 2017. CNN moved in with her parents and, because she no longer had her homecare job,

qualified for financial assistance to return to school, which she did. CNN did a one-year course in business administration at the Collegeof the North Atlantic in Clarenville. CNN commuted from her parents each day and the children went to daycare. During his week withthe children, SBN also availed of the daycare but usually for only about three days a week as he was not working. CNN graduated inJune 2018. She found work in St. John’s prior to graduation and moved there in May 2018. [10] The parties signed a separation agreement on May 3, 2018 just prior to CNN’s relocation to St. John’s.

They filed a jointapplication for divorce which was granted in September 2018. In the separation agreement, the parties agreed: • SBN would retain the matrimonial home and the majority of its contents; • Neither party would claim spousal support; • The parties would share joint custody of the children and shall share parenting on a week/week rotation; • No basic child support would be payable (at the time SBN earned $41,536 annually and CNN earned $19,851); and • Special expenses would be shared equally. [11] Additional clauses addressing changes in the parenting

schedule and relocation are reviewed below. Issues [12] The parents have asked me to decide: Issue 1: Where should the children primarily reside? Issue 2: What is the appropriate parenting order? Issue 3: What child support and special expenses should be paid? ANALYSIS Issue 1: Where should the Children Primarily Reside? The Law [13] The leading case on the relocation of children remains Gordon v. Goertz, (SCC), [1996] 2 SCR 27, 134D.L.R. (4th) 321, which set out the following guidelines at paragraphs 49-50: 49 The law can be summarized as follows: 1.

The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child. 2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child,having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4.

The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitledto great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of thecase. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (

a) the existing custody arrangement and relationship between the child and the custodial parent;

(

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. 50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [ 14 ] Although the parties were legally married, the considerations of section 31(2) of the Children’s Law Act , R.S.N.L, 1990, c, C- 13 are also relevant: 32

(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 a child, 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, the necessaries 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. Material Change in Circumstances [ 15 ] Following the direction of Gordon , I first must decide whether there has been a material change in circumstances. The separation agreement included the following clauses relevant to parenting: 7. Should the employment

schedule of either party change rendering the week/week

schedule impractical, the parting

schedule shall change accordingly with the goal of maximizing contact for each parent and to maintain a shared arrangement, to the extent possible. 8. Neither party shall move the children from their current town of residence without written consent of the other party. 9. Each party shall be entitled to two (2) uninterrupted weeks of vacation with the children each year. The parties will agree to specific dates each year. 10. The parties agree that they currently live in close proximity to enable sharing of Christmas Eve and Christmas Day.

However, should the living situation change in the future rendering sharing of the day impractical, Christmas Eve and Christmas day shall alternate between the parties annually. The parties will agree to specific time lines each year. New Years Eve and New Years Day shall follow the regular parenting schedule. 11. The parties acknowledge and agree that the party who would not have the child on his birthday according to the regular parenting

schedule shall be entitled [to] spend time with the child on that day. The parties will agree to specific time lines each year. [ 16 ] When the separation agreement was signed, the children were living in two communities in close proximity to each other on a week-on/week-off basis. Although there was no written consent signed by the parties when CNN moved to St. John’s and the children started spending half of their time in that community, it is clear from the testimony of the parties and the text messages filed, that SBN consented to the children spending half of their time in St.

John’s with their mother, at least until this arrangement became impractical when C started school in the fall of 2018. [ 17 ] Ultimately, it was SBN who applied to court seeking to have the children primarily resident in his hometown. Notwithstanding that SBN made the application, I am satisfied that based on the circumstances when the separation agreement was signed, the onus is on CNN to establish that there has been a material change in circumstances such that the primary residence of the children should be reassessed in accordance with their best interest. She has done so.

Although a relocation may not always amount to a material change in circumstances, I am satisfied that, in the circumstances of this case, CNN’s move to St. John’s is a change that meets the threshold test and permits me to make a fresh inquiry. [ 18 ] I will now consider the factors relevant to that inquiry. The Existing Parenting and the Relationship between the Children and their Parents [ 19 ] C and O have two good parents who love them and want to have as much time with them as possible. Both parents have been active in the children’s lives and have good relationships with them.

Because SBN worked away from home for considerable periods of time, CNN was the primary caregiver for the children during the relationship. When SBN was home, he shared in parenting duties equally, although CNN remained primarily responsible for medical appointments. [ 20 ] Both parents have recognized the other parent’s ability to be a good parent. While both raised concerns with some of the other parent’s decisions, they were minor [3] . If the parties lived in the same town, both would agree to equal shared parenting. Even following her move to St.

John’s, when the parties were discussing where C would start school, CNN was considering having the children live primarily with their father. [ 21 ] At this point, it is helpful to review the facts surrounding C’s starting school in some detail because these facts are important to the conclusions I have ultimately drawn. [ 22 ] Prior to leaving the relationship, CNN had been mentally unwell, feeling depressed and suffering other symptoms. She sought the help of a mental health specialist and started making changes in her life. I understand that leaving the relationship was the most significant change.

Later, moving to St. John’s to find work was another change. Although the change was one she wanted to make, CNN’s transition to St. John’s was difficult. She and the children moved into an apartment with a man that CNN had known for a number of years and with whom she had begun a relationship. Her first job, which was a homecare job, was extremely demanding. She was working multiple night shifts in a row. The children were having to stay at a babysitter’s overnight, sometimes for more than one night in a row. They were unhappy and CNN was having difficulty coping.

Her text messages with SBN during this period show that she was communicating openly with him about her struggles and the children’s well-being. She was considering having the children live primarily with SBN, but the texts were clear that she had not made up her mind. The relationship between CNN and SBN appears to have been very good during this period, including open and regular communication focused primarily on the children. [ 23 ] In early 2018, C had started the Kinderstart program at the school in the community in which he was living with his mother, that is, where his maternal grandparents live.

He did not complete the Kinderstart sessions there, however, because CNN moved.

Ultimately, C was enrolled in a school in St. John’s either by CNN or by the school board when CNN informed them of her move and that C would not be completing the Kinderstart sessions. SBN was not aware that C had been enrolled in school in St. John’s. He wanted to enroll C in school in his hometown and he was frustrated that CNN was not providing C’s MCP number to enable him to do so. To get the MCP number he contacted the Kinderstart school directly, and that is when he learned about the transfer to St. John’s.

He did not deal with the issue with CNN directly. [ 24 ] The parties had arranged for SBN to have the children for the 2018 Labour Day weekend, and return them to St. John’s in time for C to start school. However, this is not what happened. SBN did not return the children, but rather kept them and started C at his first day of Kindergarden in his hometown. CNN was not happy about this, but for the next couple of weeks she acquiesced and had the children in St. John’s for the weekend only.

Both parties were consulting legal counsel during this period and were no longer operating by mutual agreement. [ 25 ] Matters took another turn on the weekend of September 29, 2018. Unbeknownst to CNN, SBN had the childrens’ DNA tested. He says he had heard rumors about CNN and his family was curious. SBN received the test results that weekend and they revealed that C was not his biological child.

Rather than discuss this development with CNN immediately, he shared the information with his family, about five of his friends, and then CNN’s parents, who were scheduled to pick up the children from CNN and return them to their father. CNN learned the news from her parents and shortly thereafter she began getting messages on the subject from other people in the community. [ 26 ] CNN was surprised by the news. During a rocky period with SBN she had had a brief relationship with a man, but for various reasons she did not believe it had resulted in a pregnancy.

She testified that if she had known that C was not SBN’s biological child, she would not have stayed in the relationship with him. I believed her testimony. In fact, at all times I found both parents to be genuine and forthcoming with their evidence. [ 27 ] When CNN’s parents initially delivered the message to her, CNN understood that SBN still considered C as his own, but once CNN became aware that the news was out in the community, she became immediately concerned for C’s well-being. She decided not to return C to SBN.

Her text to SBN explains her thinking: I was under the understanding when you spoke with my parents you indicated that you still considered [C] as your own, but within one day I received multiple messages from people that had already heard about the dna results from strangers. This causes me concern for [C’s] psychological and emotional health. If you, and your family are telling people he isnt yours, then it will be difficult for you to not treat [C] differently.

If you want him to feel and think that he is yours, you would have had a different consideration when it came to telling and showing anyone who would listen. My concern now for [C] has increased.

Living in such a small community [C] may very well be approached and asked why he is with you, when you are not his father, by some other child in school who hears their parents speaking about a situation that should have stayed private for [C’s] sake, children will not understand the emotional implications that this could have on [C], maybe this could have been avoided if you had considered [C’s] best interest and the impact on him. I can no longer be concerned for what you or I want here, I have to consider what is best for my kids. [ 28 ] CNN then informed SBN that she would be reregistering C in school in St.

John’s and keeping the children until a court could hear and decide the matter. This began a long period of negotiations between lawyers, efforts to get the matter to court, and very little productive communication between CNN and SBN. Out of fear that he would take the children from her, and in consultation with her lawyer, CNN refused SBN anything other than contact with the children under her supervision. Such visits only happened twice.

Finally, in March 2019 an Interim Consent Order was reached that enabled SBN to have access with the children pending final decision by the Court. [ 29 ] Having heard from SBN and listened to him speak of both children, I am satisfied that he considers himself the father of both C and O and loves them both the same. I do not have any concern that SBN would treat the children differently. However, I do not have the same confidence that other members of SBN’s family and friend group would do the same. [ 30 ] There are a few reasons for my concern.

Firstly, SBN testified that his family was curious about the children’s parentage. At this point, CNN and SBN had separated and if SBN considered both children as his own, one wonders why it was important for his family to have testing done. Sometime after separation, SBN’s father posted an insulting and derogatory message about CNN on Facebook. SBN recognized that this was wrong, but despite numerous questions on the topic, he confirmed that he had not and, so it seemed, would not speak to his father directly on the topic to ensure that it would not happen again.

The most SBN would say was that it hasn’t happened since and that he had told his father that his posting would come up in court. A similar incident happened when SBN’s friends changed CNN’s name on his kitchen whiteboard to a slur. SBN did not notice the change and it had been there for some time when CNN noticed it on a visit.

SBN again acknowledged it was wrong and that his friends were cruel to do it, but he did not consider it such a big deal as he did not believe the children could read what had been written. [ 31 ] SBN testified that he does not speak negatively of CNN in front of the children and that his family has not spoken negatively in front of the children. He does not believe that his children have ever been around his parents when he was not there.

When questioned about how he would make sure that any negative attitude that his family and friends have of CNN would not reach the children he said that while he does not say anything negative about her, he cannot control what other people do. I am concerned that SBN is not taking this issue seriously enough and that he is reluctant to communicate directly to his family and friends that any negative comments about CNN are harmful to his children and will not be tolerated. [ 32 ] Both parents described C as a sensitive child on a number of occasions. I consider the concerns for C expressed by CNN to be valid.

Although C will be spending significant time in his father’s hometown regardless of where he attends school, if he attends school in St. John’s his time in the other community will be significantly less and a large percentage of the time he is there will be with his father present. This gives fewer opportunities for C to be placed in the difficult situation of having to respond to inappropriate questions or hear inappropriate comments. [ 33 ] C has some knowledge of the situation. He was introduced to his biological father in the summer of 2019 by his maternal

grandparents, without involving C’s parents. This is unfortunate and shows poor judgement on behalf of CNN’s parents. However, it is done and both CNN and SBN have since spoken to C about SBN still being his father. C has not had any contact with his biological father since and the man is not currently playing any role in his life. C appears to feel just as close to SBN as he always has been, but the issue has not really been fully addressed yet. The parents are unsure how much C really understands given his young age.

In time, C and O will need the help and guidance of both of their parents to learn how best to deal with the situation so that they feel comfortable and confident knowing that their father is their father and that he loves them both the same. For now, however, this consideration weighs in favor of the children being primarily resident in St. John’s. Maximizing Contact with Both Parents [ 34 ] This factor also weighs in favor of the children being primarily resident in St. John’s. The parents live in different communities that are approximately 300 km apart.

As the children will have to live primarily with one of them, unless access takes place in the community where the children primarily live, a weekend of access requires that 1200 km be traveled – 600 km of those by the children and 1200 km shared between the parents. If access takes place in the children’s place of primary residence, then only one parent has to travel 600 km. [ 35 ] CNN works a regular 8:00 am to 5:00 pm weekday job, with occasional overtime keeping her at work later. If the children are primarily resident with their father, her only opportunity to see them will be on weekends and holidays.

SBN, however, only works for approximately 3 months of the year, much of which is when the children are off school for summer holiday. For the rest of the year, SBN has employment insurance income and he is free to travel to St. John’s. He could make a trip to St. John’s any time of the week to see the children for an evening or two. While there would be cost associated with such travel, gas and perhaps a hotel if SBN did not stay with family or friends in St. John’s, it would permit the children to have more time with him. The same option is not available to CNN because her work situation is not as flexible.

The Children’s Views [ 36 ] The children are too young to express their views on this matter and no evidence was presented to me about their views. CNN’s reason for Moving, if relevant to her Ability to Meet the Children’s Needs [ 37 ] I am satisfied that CNN’s reasons for moving were relevant to her ability to meet the children’s needs. CNN left the relationship with no spousal support, no child support and no home.

CNN has not sought to revisit the spousal support or property division provisions of the separation agreement, but the financial circumstances of the separation are relevant to CNN’s reasons for moving to St. John’s. [ 38 ] CNN testified that she wanted to find an employment position that would allow her to earn more than minimum wage and have room for advancement. She did not want to work a career in homecare, which has only minimal room for advancement, and so she pursued business at school.

She could have trained to be a Licensed Practical Nurse or a Primary Care Nurse but the training would have been longer and hospital work for those positions often includes weekend and holiday shifts. CNN’s mother worked in healthcare and CNN did not want to have the same type of work

schedule her mother did. CNN wanted office work, which would allow her to have more time on holidays and weekends with her children. [ 39 ] Just prior to receiving her business diploma, CNN started to look for work. She applied to a couple of office-type positions in the area in which she was living, but she did not receive any interviews. She had far more success with applications in St. John’s, receiving a number of interviews from the start. CNN was struggling financially, having to rely on her parents for financial support, so she soon took a homecare job as a temporary measure.

She also took a job at a fast food restaurant. She did not consider these as permanent positions, but rather, temporary ones that brought in money while she continued to seek something in her chosen field, which she soon did. CNN is now employed full-time in an office position, weekdays, 8:00 am to 5:00 pm. It is early days with her new employer, but already she has been told that she will soon have a pay increase and that there is room for her to advance and grow within the corporate group.

She will also soon be eligible for employment benefits for her and the children, something the family has not had since SBN worked with the shipyard. [ 40 ] I accept that CNN’s move to St. John’s gave her better job prospects and ultimately resulted in a position that has growth potential beyond minimum wage earning. I also accept CNN’s testimony that there were few positions in the area in which SBN lives for someone with her credentials that are not retail or homecare type positions that typically pay on the lower end of the pay scale and are without much room for advancement.

Her decision to move better enabled her to provide for her children financially and also allowed for a work

schedule with more overlap with the children’s school times, thus reducing the need for childcare. Disruption to the Children of a Change in Custody [ 41 ] I do not find this to be a significant factor in this case. Given that CNN chose to move to St. John’s, a disruption to the children was inevitable. It was not possible for CNN and SBN to continue with equal parenting time once C entered school. The children have already been disrupted and currently they are settled in St. John’s and by all reports are doing well. However, I would not let the possibility of further disruption, by moving them from St.

John’s back to their father’s community, prevent me from making that decision if I otherwise felt it appropriate. It is clear from the text messages between the parties, and the Interim Consent Order they ultimately signed, that they did not intend to have St. John’s become the status quo , but rather they quite sensibly decided to stop bouncing the children around and wait until a court ultimately made the decision. SBN should not be prejudiced by his willingness to agree to an interim arrangement for the benefit of his children’s stability.

Disruption to the Children consequent on Removal from Family, Schools, and the Community they have come to know [ 42 ] A consideration of this factor favors the children being primarily resident with their father, but not to a significant extent. It favors their father’s residence because the children have lots of family in the town in which their father lives and in the nearby community in which their maternal grandparents live.

The children have spent considerable time with cousins close to their age in the area and they no doubt have important relationships with their extended family and the friends they have in those communities.

[ 43 ] However, the children are young and friends are made relatively quickly at those early ages, particularly when going to school and daycare. Having lived in St. John’s now since September 2018, both children have developed friendships and connections with their schools and community there. The distance between the rural communities and St. John’s is not so great that the children will not continue to have meaningful and frequent contact with their family and friends who live close to their father.

Parenting Plans [ 44 ] Both parents have very good parenting plans. [ 45 ] SBN would enroll the children at the school in his community. There is space there for C and O, who can do Kinderstart there in early 2020. The school is close to his home so SBN would drive or walk with them to and from school. [ 46 ] Although CNN did not want her children to attend this particular school and had enrolled C in Kinderstart in her parents’ hometown at a different school for that reason, there is nothing to convince me that the school the father chose is not a fine school.

C currently needs some extra school support, but there was insufficient evidence presented to me to establish that such support would not be available at the father’s chosen school. [ 47 ] Because SBN does not work for most of the school year, his plan does not require regular afterschool care by a third party. SBN takes the view that the parties should not pay for childcare when the children have a parent available to take care of them.

I agree that this is an advantage to SBN’s plan, not because parent care is necessarily any better or worse than third party care, but because third party care costs money and thus reduces the money the parents have available for other things. SBN would need occasional childcare, particularly when he is working in May and June while the children are still in school, and there is a babysitter in the area who has taken care of the children numerous times previously. [ 48 ] CNN would continue with the plan currently in place. O attends daycare and CNN picks him up each day on her return from work.

Next September he will start kindergarten. C buses to and from school and the bus stop is very close to their home. CNN and her partner rent a house, or a portion of a house, in a residential neighborhood. There is a large backyard and playgrounds in the area. After school, C is cared for by a woman in the neighborhood until CNN returns from work. When CNN’s partner is not working, he cares for the children if CNN is not available. [ 49 ] CNN states that there are more extracurricular activities available in St. John’s for the children, which she considers an advantage.

I accept that there are more extracurricular activities in St. John’s, but I do not consider this a relevant factor. I have no doubt that there are plenty of stimulating activities to keep both children engaged in both locations. [ 50 ] CNN has steady employment, is in a long-term relationship and the evidence I have is that both she and the children are doing very well in St. John’s. She has recovered from the poor mental health that accompanied the breakdown of her marriage.

As I have said, C and O have two good parents and I am satisfied that the children would have good home lives in either location. [ 51 ] Although SBN’s counsel suggested that her client would be better at facilitating communication and access with the non- custodial parent than would CNN, I do not agree. Until the issue of C’s school arose, the parties’ evidence and the texts filed establish that children parents were communicating well with each other and respected each other’s position as parent.

Unfortunately, the trust between them was damaged as a result of the events that I have already described and that had a negative impact on their parenting relationship. I do not, however, believe this is a permanent state. Both SBN and CNN struck me as a reasonable, caring people who genuinely want to act in their children’s best interest. I believe they both recognize the value that the other brings to C and O’s lives and that following this decision they will both work to improve their relationship and to facilitate the children’s relationship with the other parent.

Conclusion on Issue 1, Primary Residence [ 52 ] Having considered the above factors, I have decided that it is in the children‘s best interest to primarily reside with their mother in St. John’s. Their mother has been their primary caregiver since birth. There is greater risk to the children having to face difficult situations or questions related to C’s parentage if the children were primarily resident with their father and I am concerned that SBN would not take sufficient action to shield his children from negative comments about their mother.

The opportunity to maximize the children’s contact with their access parent will be greater if that parent is their father because his work situation gives him more flexibility to see the children regularly in St. John’s. The factor weighing greatest in other direction is reduced childcare costs, but I am not convinced that the cost of afterschool care is so significant that it will affect the parents’ ability to meet the children’s needs. Nor do I consider that this factor outweighs those favoring the primary residence being St. John’s. Issue 2: What is the Appropriate Parenting Order?

Decision-Making [ 53 ] The parties are agreed that they should share joint legal custody and joint decision making and I see no reason to depart from this.

As stated, I believe that the poor communication between them since C started school, is a temporary situation that will improve. [ 54 ] Each parent shall consult with the other prior to making any major decisions for the children such as those related to the children’s health, education and extracurricular activities. [ 55 ] The parents shall make major decisions regarding the children’s medical care in consultation with the children’s physician, dentist or other health care provider.

The parents shall make major decisions regarding the children’s educational program, including psychological assessments or testing, in consultation with the children’s teachers. Each parent will reasonably consider the other’s views. If the parents are unable to agree on major decisions regarding a child’s medical care, the parents will follow the recommendation of the child’s healthcare providers. If the parents are unable to agree on major decisions regarding the children’s education, the parents shall follow the recommendation of school personnel.

[ 56 ] Each parent shall keep the other informed of all important events, including school and extracurricular activities. Each parent is entitled to communicate with the children’s school or activity providers directly. [ 57 ] The parents shall advise each other in advance of any third party’s providing care for their children, including contact information. If a parent is unable to take care of the children for 24 hours or more, the other parent shall be informed and given the opportunity to care for the children.

Summers and Holidays [ 58 ] The parties are agreed on sharing summer and holiday access. [ 59 ] The parties will each parent the children for half of the summer, with CNN having the children for the first half and SBN having them for the second half, when his fishing activity, or the majority of it, is complete. [ 60 ] The parties will alternate Christmas and Easter holidays each year. In 2020, and other even number years, Christmas Eve and Christmas Day will be with CNN and in 2021, and other odd numbered years, Christmas Eve and Christmas Day will be with SBN.

To give SBN more time with the children, the bulk of the remainder of the children’s Christmas school break will be with SBN except that for odd number years, CNN will have the children for New Years’ Eve and New Years’ Day. In 2020, and other even number years, CNN shall have the children for Easter morning and in 2021, and other odd numbered years, SBN shall have the children for Easter morning. The bulk of the remainder of the children’s Easter school break will be with SBN. Regular Parenting Time [ 61 ] The parties are not in agreement as to regular parenting time.

SBN wants the parent who does not share the children’s primary residence to have them every second weekend. CNN submits that every second weekend entails too much driving for the children and she submits that one long weekend a month, consistent with scheduled holidays and personal development days at school is in the children’s best interest. [ 62 ] I agree with CNN that 600 km of driving every second weekend, some of it in the dark, is not in the children’s best interest. Three hours in a car, four times a month is lot for young children.

By taking advantage of long weekends and thus extending the weekend visit by a day, SBN can have three quarters as many days with the children with half of the driving. If any month does not have a long weekend, SBN shall still have the children at his home for a regular weekend that month. I will specify the weekends for 2020, subsequent years will be determined in a similar fashion: • January – There is no long weekend. SBN will have the children from Friday, January 17 to Sunday, January 4, 2020 • February – There is a school holiday on February 17.

SBN will have the children from Friday, February 14 to Monday, February 17, 2020 • March – There is a Personal Learning Day on March 9. SBN will have the children from Friday, March 6 to Monday, March 9, 2020 • April – As per Easter access. For 2020, SBN shall have the children from Friday, April 10 to Sunday, April 19, 2020 except for Easter morning, which shall be with CNN • May – Victoria Day is on May 18. SBN will have the children from Friday, May 15 to Monday, May 18, 2020 • June – Summer holiday starts on June 18.

SBN shall have the children for three days, which he may determine, following the end of school in June. I am not specifying the days because SBN will be working during this period and so may need some flexibility • July and August – as per summer access • September - There is no long weekend, other than Labour Day which will be dealt with as part of the summer holidays. SBN will have the children from Friday, September 18 to Sunday, September 20, 2020 • October - There is a Personal Learning Day the exact date of which has not yet been determined. SBN will have the children from Friday to Monday of that weekend.

If the day is not scheduled for a Monday, SBN will have another weekend mid-month

• November – If Armistice Day does not create a long weekend, SBN shall have another weekend mid-month • December – as per Christmas access [ 63 ] Additionally, SBN may parent the children additional days each month in St. John’s upon giving CNN reasonable notice, provided that his access does not interfere with the children’s schooling and he ensures that they participate in their regular extracurricular activities while in his care. Although it is not practical for me to set specific dates, at a minimum SBN shall be entitled to have two days a month of access in St. John’s, if he chooses.

Transportation [ 64 ] SBN would like exchanges to happen at Goobies which is the mid-way point between the communities. CNN requested that it be in Whitbourne, at least for Fridays, so that she has a shorter drive after work on that day. In her written submission, she did not offer to change the Sunday/Monday exchange spot to a location closer to SBN. I have decided that the parties should equally share the driving and so the exchange will be at Goobies. On Fridays it will be at 7:30 pm and on Sundays/Mondays it will be at 4:30 pm.

Telephone/Electronic Access [ 65 ] The parent who has the children shall ensure that they are available for a telephone call, FaceTime or similar session with the other parent between 6:00 pm and 6:30 pm each day. If the children cannot be available during that time, the parent who has the children will notify the other parent in advance and make arrangements for another time, if requested. Travel [ 66 ] Either party shall be able to travel with the children out of the province provided that the other parent receives at least one month’s notice and details of the travel itinerary and contact information.

Each parent will cooperate and take whatever steps necessary to ensure the children have any documentation required for travel. Issue 3: What Child Support and Special Expenses shall be Paid? Basic Child Support [ 67 ] SBN’s 2018 income as per his income tax return was $43,712.82.

Based on that income and the Federal Child Support Guidelines , S.O.R./97-175 (“ Guidelines ”), he shall pay monthly child support of $654.00, payable in two equal installments on the 1st and 15th of each month, commencing January 1, 2020. [ 68 ] Child support shall be recalculated annually starting on July 1, 2020, based on SBN’s previous year’s Canada Revenue Agency (“CRA”) Notice of Assessment. Special Expenses [ 69 ] CNN’s 2018 income as per her income text return was $35,526. If the parties shared special expenses proportionally, SBN would pay a larger share.

However, the parties agreed in their Separation Agreement to share special expenses equally. Although I am not bound by that Agreement, I am ordering that

section 7 special expenses for childcare, dental and health insurance, medical and dental expense, and extraordinary activities be shared equally by the parents. This decision, which favors SBN financially, will assist to offset any additional access costs that SBN incurs in travelling to St. John’s to see the children at times other than his regularly scheduled parenting times. Retroactive Child Support [ 70 ] The leading case on retroactive child support is D.B.S. v. S.R.G. , 2006 SCC 37 (S.C.C.).

In DBS , the Supreme Court of Canada made clear that an obligation to pay child support exists independent of any order or agreement on child support. So although the parties’ separation agreement stated that no child support would be payable, once the circumstances changed such that the agreement stopped being correct, the court has the discretion to make an order setting the correct amount of child support, and may do so retroactively. In determining whether to make a retroactive award, the court should strive for a holistic view of the matter and decide each case on the basis of its particular facts.

In DBS the Supreme Court of Canada directs me to consider four factors in exercising this discretion: 1. The reasons for the recipient's delay in asking for an order updating the amount of child support; 2. Any misconduct on the part of the payor, such as hiding income, lying about income or pressuring the recipient not to ask for more support; 3. Any hardship suffered by the children as a result of the payor's short support payments; and, 4.

Any hardship that the payor might suffer if forced to pay a retroactive child support order . [ 71 ] CNN first gave SBN notice that she was seeking child support when she filed her Response on December 10, 2018. By that time, the children had not been in a shared parenting arrangement for about three months. There was no significant delay in CNN seeking child support. Although CNN did not file an application for interim child support, the parties were trying to have the primary residence issue determined on an interim basis and were unable to obtain a hearing date for that issue.

[ 72 ] SBN did not hide income and there is no evidence that he engaged in any misconduct whatsoever. [ 73 ] There is evidence that CNN had difficulty supporting the children’s financially in the interim period. She could not make payments on the vehicle that had been given to her in the separation agreement, she had to work a part-time fast food job to make ends meet, she has been unable to pay a babysitter for amounts owed and she had to rely on financial support from her parents.

I am satisfied that there is evidence that the children have suffered some hardship because child support was not being paid. [ 74 ] SBN’s counsel has submitted that it would be a hardship to him to have to pay a retroactive award, but the only support for this hardship that I was provided is a statement that SBN is currently in receipt of employment insurance.

SBN’s evidence is that he receives top employment insurance throughout the year when he is not crab fishing. [ 75 ] In light of the above, I am exercising my discretion to order retroactive child support from when SBN had effective notice of CNN’s claim for child support. This amounts to twelve months (January to December of 2019). Based on SBN’s 2018 income, the total retroactive child support award is $7851.24. SBN shall pay this amount of retroactive support at a rate of $250 a month until it is paid in full. Retroactive Special Expenses [ 76 ] The parties agreed to share special expenses equally.

I have now ordered that special expenses be shared equally going forward. SBN has not yet paid his share of outstanding daycare amounts owing to AR. He owes $1,050.00 which should be paid forthwith. There are no other arrears of special expenses owing. DISPOSITION [ 77 ] I hereby Order that: 1. The parties shall share joint legal custody and joint decision making for the children. 2. Each parent shall consult with the other prior to making any major decisions for the children such as those related to the children’s health, education and extracurricular activities. 3.

The parents shall make major decisions regarding the children’s medical care in consultation with the children’s physician, dentist or other healthcare provider. The parents shall make major decisions regarding the children’s educational program, including psychological assessments or testing, in consultation with the children’s teachers. Each parent will reasonably consider the other’s views. If the parents are unable to agree on major decisions regarding a child’s medical care, the parents will follow the recommendation of the child’s healthcare providers.

If the parents are unable to agree on major decisions regarding the children’s education, the parents shall follow the recommendation of school personnel. 4. Each parent shall keep the other informed of all important events, including school and extracurricular activities. Each parent is entitled to communicate with the children’s school or activity providers directly. 5. The parents shall advise each other in advance of any third party’s providing care for their children, including contact information.

If a parent is unable to take care of the children for 24 hours or more, the other parent shall be informed and given the opportunity to care for the children. 6. C and O shall primarily reside with CNN in St. John’s. 7. C and O shall spend one weekend each month with SBN which will be a long weekend when possible, scheduled to coincide with holidays and school personal development days. 8. The transfer location shall be Goobies, Newfoundland and Labrador and shall take place at 7:30 pm on Fridays and 4:30 pm on Sundays or Mondays. For holidays, appropriate times will be agreed upon by the parties. 9.

Additionally, SBN may parent the children additional days each month in St. John’s upon giving CNN reasonable notice, provided that his access does not interfere with the children’s schooling and he ensures that they participate in their regular extracurricular activities while in his care. At a minimum, SBN shall be entitled to have two days a month of access in St. John’s, if he chooses. 10. The parties will each parent the children for half of the summer, with CNN having the children for the first half and SBN having them for the second half. 11.

The parties will alternate Christmas and Easter holidays each year. In 2020, and other even number years, Christmas Eve and Christmas Day will be with CNN and in 2021and other odd numbered years, Christmas Eve and Christmas Day will be with SBN. To give SBN more time with the children, the bulk of the remainder of the children’s Christmas school break will be with SBN except that for odd number years, CNN will have the children for New Years’ Eve and New Years’ Day.

In 2020, and other even number years, CNN shall have the children for Easter morning and in 2021, and other odd numbered years, SBN shall have the children for Easter morning. The bulk of the remainder of the children’s Easter school break will be with SBN. 12. The parent who has the children shall ensure that they are available for a telephone call, FaceTime or similar session with the other parent between 6:00-6:30 pm each day. If the children cannot be available during that time, the parent who has the children will notify the other parent in advance and make arrangements for another time, if requested. 13.

Either party shall be able to travel with the children out of the province provided that the other parent receives at least one month’s notice and details of the travel itinerary and contact information. Each parent will cooperate and take whatever steps necessary

to ensure the children have any documentation required for travel. 14. SBN shall pay monthly child support of $654.00, payable in two equal installments on the 1st and 15th of each month, commencing January 1, 2020, based on his 2018 income of $43,712.82 and the Guidelines . 15. Child support shall be recalculated annually starting on July 1, 2020, based on SBN’s previous year’s CRA Notice of Assessment. 16. SBN shall pay retroactive child support of $7,851.24 at a rate of $250.00 a month until it is paid in full. 17. SBN shall pay retroactive special expenses of $1,050.00 forthwith. 18.

All amounts payable by SBN shall be paid to Support Enforcement Agency. 19. Each party shall bear their own costs. _____________________________ KATHERINE O’BRIEN Justice