N.W. Applicant v. M.V., 2023 NBKB 160

2023 NBKB 160 COURT FILE: FDSJ 419-2018 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: N.W. Applicant and M.V. Respondent Before: The Honourable Mister Justice Danys R.X. Delaquis Dates of hearing: May 3 and July 11, 2023 Date of Decision: September 22, 2023 Appearances: Joshua Adams - for the Applicant Respondent - Per Se

Summary: Decision making responsibility, travel notice, child support pursuant to s.9 of the Federal Child Support Guidelines, and change of child’s surname DECISION DELAQUIS, J.:

OFFICIAL LANGUAGES ACT [ 1 ] The hearing of this matter proceeded in both official languages with the assistance of an interpreter. The Applicant proceeded in the English language and the Respondent proceeded in the French language. This decision should be published in each official language pursuant to s. 24 of the Official Languages Act, SNB 2002, c O-0.5 . However, proceeding to translation immediately would result in further delay, injustice and hardship to the parties in the proceedings given that they have already waited approximately five years to have their one- and one-half day hearing.

As a result, the decision will be published first in the English language, and then in the French language, as soon as possible. OVERVIEW [ 2 ] The parties met in the summer of 2017 in the Magdalen Islands. Their long-distance relationship continued for a few months thereafter but fell apart in December 2017, before C.A.M. was born in 2018, (now five (5) years old, “the child”) in Saint John, New Brunswick. The Applicant currently resides in Saint John with her partner T.F., along with two stepchildren, T.F. [age 11] and M.F. [age 9], and their child C.F. [age 2].

The Applicant is a schoolteacher. [ 3 ] The Respondent lived and worked as a social worker in the Magdalen Islands when they met and when the child was born. However, he moved to Saint John after the child was born to be part of her life. He is now self-employed and offers one-on-one assistance to clients. [ 4 ] The Interim Order filed April 16, 2020, confirms the parties had a shared parenting

schedule and joint decision-making responsibility, with the final decision-making responsibility to the Applicant if the parties were not able to agree. [ 5 ] Since approximately February-March 2020, as per the Case Management Master’s Order, the parties agreed to a shared parenting

schedule (2-2-3). The structure of the shared parenting

schedule changed in February 2023, when the parties agreed to a one week on, one week off, arrangement. They further agreed on having joint decision-making responsibility on major decisions involving health, education, culture, language, spirituality and religion for the child. Indeed, the parties jointly decided that the child shall attend a francophone daycare/preschool, and then Samuel de Champlain School in September 2023. The child has no urgent or otherwise identifiable, ongoing medical needs. In fact, by all accounts, the child is doing well.

Despite this, the parties continue to experience communication issues. [ 6 ] After approximately five years of litigation, the parties still cannot agree on which parent shall have final decision-making responsibility in respect of extra-curricular activities, terms and notice for out-of-province and out-of-country travel, as well as the amount of child support payable under s. 9 of the Federal Child Support Guidelines , SOR/95-175 (the “ Guidelines ”).

The parties have also asked the Court to rule on the Respondent’s request to change the child’s surname. [ 7 ] For the reasons that follow, I will accept the party’s agreement that they have joint decision-making responsibility in respect of the child’s health, education, culture, language, spirituality, and religion, with the agreed upon caveat that they must have reasonable discussions before a major decision is made.

However, the Applicant shall have final decision-making responsibility in respect of the child’s extra-curricular activities if, after reasonable consultation with the Respondent, an impasse remains. [ 8 ] Also, I have decided that each parent shall give each other a minimum of 24 hours’ notice of their intention to leave the province with the child, and a minimum 30 days’ notice if they wish to travel with the child outside of Canada. [ 9 ] I have further determined that the Applicant shall pay the Respondent prospective child support in the amount of $200 per month pursuant to s. 9 of the Guidelines and Contino v.

Leonelli-Contino , 2005 SCC 63 .

[ 10 ] Lastly, the child’s surname will be changed from C.A.W. to C.A.V.-W. [ 11 ] After closing his case, but before closing arguments were heard, the Respondent filed a document which purports to be his “Brief” (“Plaidoyer”). The document appears to be under oath although the jurat is incomplete and defective, and not sworn to before a Commissioner of Oaths. The Respondent appeared at the hearing as a self-represented litigant. I will treat this document as a written submission or Brief, not as evidence. ISSUES [ 12 ] The Notice of Application (Form 81A) was filed on August 14, 2018, seeking various relief.

The Answer (Form 81C) was filed on November 14, 2018. The parties have appeared several times in Court since then, including in February 2022 at a Case Management Conference. The five issues to be determined at the hearing were set out in a Procedural Order dated June 30, 2022, as follows: 1. Final decision-making authority for major decisions involving the child. 2. The effect of a relocation by either parent outside the greater Saint John area on the parenting schedule. 3. Terms for either parent’s out-of-province travel with the child and notice regarding same. 4. Child support for the child’s benefit. 5.

The child’s surname. [ 13 ] At the outset of the hearing, after discussion with the parties, it was determined that neither party wishes to relocate with the child. The parties agreed that issue was no longer before the Court. [ 14 ] After years of discussing this issue, the parties still cannot agree on changing the child’s surname. The parties asked the Court to decide the issue based on s.5(2.2) of the Change of Name Act , R.S.N.B. 2014, c. 103 ( “ Change of Name Act ”). [ 15 ] The remaining issues to be determined are therefore as follows: 1. Final decision-making responsibility. 2.

Terms and notice for out-of-province and out-of-country travel with the child. 3. Child support under s.9 of the Guidelines . 4. Changing the child’s surname. 5. Costs. ISSUE 1 – DECISION MAKING AND THE BEST INTERESTS OF THE CHILD TEST [ 16 ] The parenting time

schedule evolved over the years from a shared 2-2-3

schedule in 2020, to a week on, week off

schedule since February 2023, by consent. However, the parties asked the Court to decide which parent has final decision-making responsibility in

the event of an impasse, specifically in relation to extra-curricular activities. Decision-making responsibility is an essential component of any parenting order. This issue therefore engages an application of the definition of “decision-making responsibility” in the Family Law Act S.N.B. 2020 c.23 (“ FLA ”) in the context of the analysis of the best interests of the child. [ 17 ] The relevant provisions of the FLA , including the definition of decision-making responsibility in

section 1 , read as follows: “decision-making responsibility” means the responsibility for making significant decisions about a child’s well-being, including decisions in respect of (

a) health, (

b) education, (

c) culture, language, religion and spirituality, and (

d) significant extra-curricular activities. 52(1) Unless otherwise agreed by written agreement or ordered by the Court, if a child has more than one parent, the parents have shared parenting time and shared decision-making responsibility with respect to the child. 52(2) The Court may make a parenting order providing for the exercise of parenting time or decision-making responsibility in respect of any child on application by one or more parents, or (…) 52(4) In a parenting order, the Court may (

b) allocate decision-making responsibility in accordance with

section 54, (

c) with regard to communication that takes place during the parenting time allocated to a person, include requirements with respect to any means of communication used between a child and another person to whom parenting time or decision-making responsibility is allocated, (…) (

g) prohibit the removal of a child from a specified geographic area without the written consent of a specified person or without a court order authorizing the removal, and (

h) provide for any other matter that the Court considers appropriate. Allocation of decision-making responsibility 54 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to one or more parents or to a person described in paragraph 52(2)(b), or to any combination of those persons.

[ 18 ] The best interests of the child is the Court’s only consideration, and is governed by the following relevant sections of the FLA : 50(2) In determining the best interests of the child, the Court shall consider all factors related to the circumstances of the child, including (

a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including First Nations upbringing and heritage, (

b) the child’s needs, including the need for stability, given the child’s age and stage of development, (

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

d) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent, (

e) the history of care of the child, (

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

g) any plans for the child’s care, (

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

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

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

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

k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. [ 19 ] The factors set out in paragraphs (j) (family violence) and (k) (civil or criminal proceedings) are not relevant to the analysis in this case because no evidence was presented in support, and the parties did not argue these points in any event. The child’s views and preferences are only marginally relevant to the issues before me given her young age. [ 20 ] Below are my findings with respect to the relevant best interest considerations based on my review and consideration of the totality of the evidence.

The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including First Nations upbringing and heritage [ 21 ] The parents have agreed to enroll the child at a francophone daycare/preschool and at Samuel de Champlain school in September 2023. They have decided to do so in keeping with the child’s francophone and cultural heritage. They both agree that the child’s linguistic and cultural heritage are important and will make decisions accordingly.

Both parents wish to promote the child’s francophone and cultural heritage and I am satisfied that they will continue to do so jointly in the future. The child’s needs, including the need for stability, given the child’s age and stage of development [ 22 ] The child is almost five years old. She will be attending Samuel de Champlain School in September 2023, as the parties have already jointly decided. The child’s needs include basic educational and medical considerations moving forward. In this case, the child has no special medical or educational needs.

In any event, I am satisfied that the parents have ensured that all her needs have been met satisfactorily to date. [ 23 ] The evidence of the Applicant is that the child really enjoys participating in extra-curricular activities including swimming, soccer and dance. The child regularly asks to attend and frequently watches YouTube dance videos given her interest. The Applicant testified that the child is “beaming with energy” after attending extra-curricular activities. She continues to dance at home after dance class.

The Applicant testified that the child anticipates attending those activities on the Monday exchanges and asks “how many sleeps” until she can attend again, because she knows the Respondent does not take her. [ 24 ] On June 1, 2022, the Applicant sent the Respondent a text message on the issue of attending soccer that reads as follows: Juste pour te laisser savoir, aussitôt qu’on est arrivé à la garderie les trois amis de classe ont tous couru dire à [l’enfant] que c’est la journée de soccer.

Alors prépare toi pour des larmes lorsque tu ne vas pas…. [Exhibit 1, page 8] [ 25 ] I accept the Applicant’s testimony on the child’s keen interest to participate in these activities and how they benefit her. [ 26 ] The evidence demonstrates that the Respondent has been less willing to promote extra-curricular activities of the child, including soccer and dance. He admits to not taking the child to these activities while she is in his care. Soccer practices/games take place across the street from the daycare in Millidgeville.

He indicates in text messages that he is not against the child attending sporting activities, but has confirmed in other text messages for example, his concern about how dance may negatively impact the child. [ 27 ] The Respondent’s position in relation to activities is in essence that the child is too tired as he confirmed, for example, in a text message dated May 31, 2022 [Exhibit 1, page 8]. [ 28 ] His testimony on this point is the same.

When asked about his intention to allow the child to participate in school sports or other activities as she grows up, the Respondent was non-committal about whether he would fully support her participation. The Respondent’s position is that during his parenting time, he decides what the child does, and the Applicant may do the same during her parenting time. [ 29 ] Conversely, the Applicant takes the position that she is prepared to pay for the cost of the child attending swimming, dance

and soccer activities. Soccer is 45 minutes per week (4:45 p.m. - 5:30 p.m.) with annual registration fees of $100. Dance lessons usually last approximately one hour per week (9:45 a.m., pick up at 10:45 a.m.). The registration fees for dance are $440 annually. The Applicant is simply asking the Respondent to take the child to the activities when she is in his care.

The Applicant has even offered to make alternate arrangements for transportation if the Respondent is unable or unavailable to bring the child. [ 30 ] At this stage, the Applicant is paying the full price for these activities even though the child is only attending half of the time.

She finds this situation unfortunate because the child really enjoys attending these activities. [ 31 ] Furthermore, the Applicant takes no issue with any of the activities the child participates in during the Respondent’s parenting time including, but not limited to, camping, nature walks, arts and culture activities, etc. [ 32 ] Given the child’s age and stage of development, it is beneficial for her to participate in extra-curricular activities because the uncontradicted evidence is that she displays positive emotions with respect to these activities and, aside from the physical benefits of exercise, they allow her to develop social skills by interacting with children her age in a sporting context.

The Respondent knows the child enjoys these activities including playing soccer, going to dance class and participating in recitals. [ 33 ] The Respondent’s position of having each parent decide what activities the child will attend during their respective parenting time, despite the child’s wishes is, on this narrow issue, parent focused rather than child focused. The child’s participation in swimming, soccer and dance does not preclude her from participating in any other activities with her father.

The Respondent’s decision-making on this narrow issue therefore has the effect of not promoting the overall physical, social, and emotional needs of the child. The nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life [ 34 ] The evidence demonstrates that the child has a strong relationship with both parents.

The Respondent’s decision to move to Saint John to be near the child, and to participate in her development and upbringing, has achieved the desired goal when it comes to the nature and strength of his relationship with her. His intention to continue to visit the Magdalen Islands with the child will foster her relationship with extended family and friends as well. At this stage, the child has no siblings on the Respondent’s side. [ 35 ] As noted above, the Applicant resides with her partner T.F., his two children (her stepchildren), and their child (almost three years old).

The evidence shows that the Applicant and T.F. have a solid relationship that is intended to be long-term. T.F. has a five on, five off parenting

schedule with the mother of his children. To a certain extent, T.F.’s parenting

schedule coincides with the Applicant’s current parenting

schedule in respect of the child and creates some consistency of contact between siblings. In addition, the stepchildren will also attend the same school as the child: see paragraph 13 of the Applicant’s Affidavit at page 156 of the Trial Record. The evidence is that the child has developed a positive relationship with her siblings and significantly, with her stepfather as well. [ 36 ] By all accounts, the child has a good, positive, strong relationship with each parent and each of her siblings and extended family.

These relationships will continue to play an important role in the child’s life for a number of reasons but certainly because her siblings (stepsiblings and brother) will be attending the same school and the Respondent will be in a position to regularly travel to the Magdalen Islands to visit family and friends with the child. Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent

[ 37 ] The Applicant takes no issue with the Respondent’s wish to foster the child’s relationship with his family and friends in the Magdalen Islands. She is just asking for notice of travel, which will be discussed in more detail below. [ 38 ] The Respondent testified that he likes and respects T.F. One of the reasons for this is because T.F. is allegedly the only person who helped the Respondent when he arrived in Saint John. The history of care of the child [ 39 ] The Trial Record demonstrates various disputes that relate directly or indirectly to the history of care of the child.

Some of those points have been resolved or agreed upon after years of litigation. [ 40 ] The history of care includes the Respondent’s request for a DNA test, despite the Applicant’s insistence that he was clearly the father. There is no longer any dispute that the Respondent is the child’s father. [ 41 ] One area of disagreement included registration of the Respondent’s name on the child’s birth certificate. [Paragraph 14 of the Respondent’s Affidavit at page 62 of the Trial Record and paragraphs 7, 8 and 9 of the Applicant’s Affidavit at page 156 of the Trial Record].

That aspect of the history of care is no longer an issue as I understand it. [ 42 ] The relationship between the parties immediately after the birth of the child was tense and led to disagreement of how much the Respondent should be involved. Given the fact they had ended their relationship approximately six months prior to the birth of the child, there was some uncertainty and reluctance between them to agree on some basic points such as where and how frequently the Respondent’s visitation would be at a time when the Applicant was still breastfeeding the child.

Various text messages were introduced as evidence on this point. I have read all of them. They demonstrate generally the uncertainty and trepidation of what the future would look like at that stage of their relationship. [ 43 ] Other historical aspects related to the history of care, that may impact the issue of decision-making responsibility, include the Respondent’s delay and/or refusal to provide his consent for the Applicant to take the child to Disneyworld in 2022.

The Applicant testified that she gave the Respondent six months’ notice of the trip and was still left to make a last-minute decision not to go because of the lack of a clear response from the Respondent, including his refusal to sign the child’s passport application. [ 44 ] Over time, the parties slowly agreed to equal parenting time as they both recognized that they each played an important role in the care of the child. The child has been well cared for in terms of basic needs such as housing and food in addition to education and medical care by both parents, despite some of the areas of disagreement.

In other words, there is no evidence that the areas of disagreement, including the request to change the surname of the child, have had any significant detrimental effect on the overall well- being of the child to date. [ 45 ] I refer to my comments above about the Respondent’s decision-making in respect of allowing the child to participate in extra- curricular activities. That evidence overlaps with the history of care criteria and will therefore not be repeated. The finding on that issue remains the same.

The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained [ 46 ] The child is too young to provide her views and preferences. She has however expressed her wish and preference to participate in certain extra-curricular activities, as noted above. Any plans for the child’s care [ 47 ] The plan regarding the child’s education is agreed upon, as is the plan to have equal parenting time moving forward. No issues were raised with respect to concerns about the child’s care other than what has been already referred to above. Little to no

evidence was presented about any areas of disagreement or different plans with respect to the child’s short-term or long-term care otherthan on the points referred to above. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child [48] Both parents have demonstrated the ability and willingness to make decisions, vis-à-vis the child, to care for and meet herbasic medical and educational needs.

At this stage, I am satisfied that both parties will abide by any Order of the Court as it pertains totheir care for the child and her needs, despite their ongoing communication issues. The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, inparticular with one another, on matters affecting the child [49] This is not a case where one parent is unwilling or unable to cooperate and communicate with the other due to familyviolence, drugs and/or alcohol, addiction issues or other similar considerations that have historically affected the child.

In my view, theparties have a slightly different parenting philosophy and perspective which informs their decision-making. This is not a case where theparties have little or no effective communication and cooperation, as in D.D. v E.K., 2019 NBQB 78 . [50] It bears repeating that they only met each other during the summer of 2017, and the child was born in mid-2018. They have nocohabitation history to draw upon because they had a short-term, long-distance relationship.

This explains in large part the uncertaintyand unease which naturally characterized the early stages of the decision-making process affecting the child, and how their respectiveparenting roles naturally changed over time, especially after the Respondent moved to Saint John. [51] I believe that the ability and willingness of the parties to communicate and cooperate has evolved over time.

While there arestill certain areas of disagreement as noted above, the parties have nonetheless been able to reasonably communicate and cooperate onmajor decisions affecting the child’s education, health, culture and language and should be able to continue to do so. Conclusion on Issue 1 – Decision-Making Responsibility [52] I will first review some of the applicable governing principles regarding decision making responsibility as explained in thejurisprudence.

The child’s best interests are not merely “paramount” – they are the only consideration in this analysis: see Gordon v.Goertz, (SCC), [1996] 2 S.C.R. 27, at para. 28; Mattina v. Mattina, 2018 ONCA 641. The court must ascertain achild’s best interests from the perspective of the child rather than that of the parents: see Gordon v. Goertz, at para. 69. [53] Baird J.A. stated on behalf of the Court of Appeal in J.H. v.

T.H. 2017 NBCA 7 at paragraph 20: … A shared parenting or a shared custody arrangement requires parents not only to have the ability to communicate in an effectivemanner, it also requires them to cooperate in the decision making process in order to protect the health, safety and emotional well-being

of their children. [54] In the recent decision of J.S. v. C.S. 2022 NBKB 250, Madam Justice Belanger-Richard summarized the law, with reference toOntario jurisprudence as well, in cases where the Court must determine decision-making responsibility in the context of non-cooperativeparents: [90] It is well recognized by the courts that joint decision-making responsibility (previously joint custody) requires a degree ofcooperation between the parents and the ability to effectively communicate with each other: J.H. v. T.H., 2017 NBCA 7, at para. 8.

If thecommunication between the parents is acrimonious and is detrimental to the well-being of the children, joint decision-makingresponsibility is inappropriate: L.R.R. v. E.M., 2018 NBCA 2 at para. 11. [91] In L.B. v. P.E., 2021 ONCJ 114, at paras. 94-98, Justice Sherr outlines some useful principles in assessing the communicationbetween the parents and in determining whether joint decision-making responsibility is appropriate: 94 The Ontario Court of Appeal in Kaplanis v. Kaplanis (ON CA), [2005] O.J.

No. 275 sets out the followingprinciples in determining whether a joint custody (decision-making responsibility) order is appropriate: 1. There must be evidence of historical communication between the parents and appropriate communication between them. 2. It can’t be ordered in the hope that it will improve their communication. 3. Just because both parents are fit does not mean that joint custody should be ordered. 4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody. 5.

No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must beable to be addressed on an ongoing basis. 6. The younger the child, the more important communication is. 95 Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v.S.M.G., 2020 ONCJ 511. 96 Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard ofperfection is not required and is obviously not achievable. See: Griffiths v.

Griffiths 2005 ONCJ 235 , 2005 CarswellOnt 3209(OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so thatthe best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, (ON S.C.). 97 Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factormilitating against a joint decision-making responsibility order as it demonstrates poor judgment and an inability to prioritize the child’sinterests. Jama v. Mohamed, [2015] ONCJ 619. 98 In S.S. v.

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

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

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

c) whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children, tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult. [ 55 ] I also refer to the decision of McBennett v. Danis , 2021 ONSC 3610 , where Chapel J. provided a comprehensive review and

summary of factors that assist Courts in determining the issue of decision-making responsibility, in the best interests of the child: [94] As I have indicated,

section 16.3 of the Divorce Act provides that the court may allocate decision-making responsibility in respect of a child, or any aspect of that responsibility, to either spouse, to both spouses, to another person authorized to seek a parenting order or to any combination of those persons. This provision gives the court a wide discretion to craft a tailor-made decision-making responsibility framework that supports and promotes the best interests of the child before the court, taking into consideration the unique facts of each case. The options available to the court include the following: 1.

It may grant sole decision-making responsibility in all areas to one spouse. 2. It may grant joint decision-making responsibility in all areas to both spouses. 3. It may grant joint decision-making responsibility to both spouses in one or more areas of responsibility but give sole decision- making authority in the other areas to one spouse or allocate those other areas of decision-making between the spouses. 4. Alternatively, it may allocate each party sole decision-making responsibility in separate specified areas, with no provision for joint decision-making in any areas. 5.

Another option open to the court is to require the parties to engage in all reasonable efforts to make some or all significant decisions jointly, but to designate which party has final say in each area of decision-making in the event of disagreement. The Ontario Court of Appeal upheld this type of framework prior to the implementation of the recent Divorce Act amendments in the cases of T.J.L. v. E.B., 2019 ONSC 6096 (S.C.J.) , aff d 2021

[95] In reality,

section 16.3 and the options that it permits are simply reflective of what has been happening “on the ground” withrespect to decision-making in Family Law cases for many years, both in the context of the Divorce Act and under provincial parentinglaw regimes.

The courts have crafted these various types of decision-making frameworks in recognition of the fact that complex familysituations and dynamics often require customized decision-making regimes in order to safeguard and promote the child’s best interests.Various terms have been used in the past to describe the different types of frameworks, including “full parallel parenting,” “dividedparallel parenting,” and “joint custody with a parallel parenting fall-back.” This terminology was confusing and unnecessarilycomplicated.

Section 16.3 now provides clear authority for the court to craft a tailor-made decision-making responsibility order, and theuse of these terms is no longer necessary or appropriate. [56] It should be noted that s. 16.3 of the Divorce Act is essentially the same as s. 54 of the FLA except for reference to the word“spouse” instead of “parents”. The Court in McBennett v. Danis, supra then explained at paragraph 96: [96] In deciding on the appropriate decision-making responsibility regime, the court is required to consider all possible frameworks,and not simply those proposed by the parties (Chomos v.

Hamilton, 2015 ONSC 5208 (S.C.J.), at para. 109; Jackson v. Mayerle, 2016ONSC 72 (S.C.J.); Ruffudeen v. Coutts, 2016 ONSC 3359 (S.C.J.)). Furthermore, as the Ontario Court of Appeal noted in M. v. F.,notwithstanding the positions of the parties, the court may decline to make any decision-making designation if such an approach isconsidered to be in the best interests of the child. As Lafrenière J. stated in J.B.H. v.

T.L.G., 2014 ONSC 3569 (S.C.J.) at para. 354, theultimate goal in crafting an appropriate decision-making regime is to promote the child’s “right to grow up within a parenting regime thatis co-operative and effective, where decisions are made in a child-focused way and with the least amount of acrimony and stress.” [57] Finally, Chapel, J. summarized the factors that Courts should consider in considering decision-making orders in McBennett v.Danis, supra at paragraph 97: [97] A rich body of caselaw evolved over the years regarding the factors that the courts should consider in formulating decision-making regimes that support the best interests of children.

The important considerations that were identified are now generally reflectedin the provisions of the Divorce Act discussed above in relation to the best interests analysis. However, the caselaw respecting thedetermination of appropriate decision-making frameworks remains relevant and should continue to guide the courts in addressing thisissue. The following principles remain pertinent in determining whether it is in the best interests of the child to order joint decision-making responsibility in all or some areas respecting the child’s well-being: (

a) The parties need not consent to an order for joint custody but before ordering joint custody the court must have some evidence thatthe parties are able to communicate effectively with each other: see Kaplanis v. Kaplanis (2005), (ON CA), 249D.L.R. (4th) 620(Ont. C.A.), at para. 11. (

b) Simply relying on allegations of conflict will be insufficient to preclude a joint custody order. The analysis must consider the nature,extent and frequency of conflict. If conflict impacts are as likely to impact on the well-being of the child if the evidence is that theparties have been able to shelter the child from the conflict reasonably well and put the child’s interest ahead of their own, an order forjoint custody may be appropriate: see Ladisa v. Ladisa (2005), (ON CA), 11 R.F.L. (6th) 50 (Ont. C.A.). (

c) One parent cannot create problems with the other parent then claim custody on the basis of a lack of cooperation: see Lawson v.Lawson (2006), (ON CA), 81 O.R. (3d) 321 (C.A.), at para. 15. (

d) Where it is necessary to preserve the balance of power between the parties, particularly cases where both parties are caring andcompetent parents, but one party has been primarily responsible for the conflict, joint custody versus sole custody may be appropriate:see Khairzad v. Macfarlane, 2015 ONSC 7148, 72 R.F.L. (7th) 436 and Fraser v. Fraser, 2016 ONSC 4720. (

e) In determining whether a reasonable measure of communication and cooperation is in place and is achievable in the future the courtmust consider the source of the conflict, consider whether one parent is creating the conflict and engaging in reasonable conduct,impeding access, marginalizing the other parent or by other means and then claim sole custody of the basis of lack of cooperationcommunication: see Khairzad v. Macfarlane, 2015 ONSC 7148, 72 R.F.L. (7th) 436. [58] In

summary, the Court should consider all possible decision-making frameworks despite proposals and/or agreementssubmitted by the parties because such proposals and/or agreements must still be in the child’s best interests. Factors for the Court toconsider include whether the parties can communicate effectively, if the communication is sufficiently functional, if and howcommunication issues affect the child, whether one parent is the major or sole source of conflict between the parties, the quality of eachparty’s past parenting, and/or one party’s failure to financially support the child or children. This non-exhaustive list of factors should

inform the Court’s reasoning. In addition to the above cited cases on this point, see for example: Kaplanis v. Kaplanis (2005), (ON CA), M. v. F., 2015 ONCA 277, Chomos v. Hamilton, 2016 ONSC 5208; Jackson v. Mayerle, 2016 ONSC 72;Ruffudeen v. Coutts, 2016 ONSC 3359; Berman v. Berman, 2017 ONCA 905, Roloson v. Clyde, 2017 ONSC 3642, Newstead v. Hachey2018 ONSC 1317; Rigillo v. Rigillo, 2019 ONCA 548, Khurmi v. Sidhu, 2022 ONSC 6413 and S.C v. C.C., 2022 ONSC 1763. [59] In D.E.D. v. Q.R.J., [2019] P.E.I.J.

No. 58, the Court wrestled with the issue of children’s involvement in sports and how thatintersects with competing parental philosophies. This is how the Court described the situation in that case: 2 Issues related to children and sports can strain the most harmonious of parental relationships. From basic philosophical differencesabout the role of sports in their children's lives, to the significant expenses sometimes involved, transportation, and other practicallogistics, challenges abound. For a wide range of reasons, management of those issues is frequently accompanied by strong emotions.

Ina situation where the relationship of the parents is not harmonious, the challenges are magnified exponentially, especially where viewsdiffer on virtually all aspects from the philosophical to the practical. This is such a case. [60] I find the Court’s comments in D.E.D. v. Q.R.J. generally applicable here. The child’s parents in this case certainly havedivergent approaches when it comes to their child’s participation in extra-curricular activities and, more specifically, sports. [61] In this case, both parents have played a significant role in the child’s life to date. Both parents are capable parents.

There areno alcohol, drug or family violence issues. They already made real and significant joint decisions consistent with the child’s bestinterests. This helps reassure the Court that their approach will continue.

The agreed upon submission of the parties with respect to jointdecision-making responsibility has the benefit of ensuring that both parents continue to play a vital role in the child’s life. [62] In fact, in my view, to order sole decision-making responsibility on education, health, spirituality, and religion to one partywould likely encourage conflict between them, not diminish it, based on the history of care and decision-making to date.

This is not acase where one parent is obviously more competent, responsible, and attentive than the other, despite their slightly differing parentingstyles or philosophies. [63] The Applicant shall have final decision-making responsibility in respect of extra-curricular activities only after reasonableconsultation, and in the event of an impasse, because it is in the child’s best interests in this case. [64] There is ample and cogent evidence that I may rely upon to support my finding on this point. One example is when theRespondent showed concern about the child referring to T.F. as “daddy”.

Rather than ignore or downplay the Respondent’s concerns onthis point, the Applicant immediately took steps to inform him of the fact that she was in no way encouraging or promoting this approachto sabotage their relationship. In addition, she provided a reasonable explanation of why their five-year-old child may not yet fullyappreciate the nuance or fine distinction between a stepfather and biological father. She explained that T.F. has been involved in thechild’s daily life since she was about 6 months old and confirmed that she spoke to the child about these concerns.

In other words, theApplicant took meaningful steps to address the Respondent’s concerns, rather than ignore them.

Conversely, the Respondent has beenunable or unwilling to accept the Applicant’s response and chooses to not believe the Applicant in many instances. [65] I am satisfied that Applicant will, in fact, reasonably consult the Respondent and carefully weigh his point of view beforemaking a final decision on this issue. [66] In the final analysis, I do not believe the Applicant will abuse her final decision-making responsibility to create a “powerimbalance” between her and the Respondent, to the detriment of the child.

I find that the Applicant will not create an intentional andunreasonable impasse, nor would such an order invite “conflict and chaos” and/or destabilize the child. I am satisfied that the Applicantwill not “marginalize” the Respondent’s role in the child’s life. In addition, the most compelling factor is that the Applicant hasconvinced the Court that she will always put the child’s interests above hers.

Lastly, Counsel confirmed in closing argument that theApplicant only seeks final decision-making responsibility on the issue of extra-curricular activities. [67] I therefore Order that the parties shall have joint-decision making responsibility regarding all major decisions affecting the

child on matters of education, medical, culture, language, spirituality, and religion. I further order that the Applicant shall have final decision-making responsibility regarding the child’s extra-curricular activities if, after reasonable consultation with the Respondent, an impasse remains.

ISSUE 2 – TERMS RELATIVE TO TRAVEL [ 68 ] The Respondent argues that the Applicant has nothing to fear, all will be good and that he may only decide “at the last minute” to travel with the child, so even 48 hours’ notice may not be possible in certain circumstances. [ 69 ] The Applicant’s request for 48 hours’ notice from the Respondent before he travels with the child out of province, or 30 days’ notice for travel out of country, is not unreasonable for several reasons. [ 70 ] First, it is especially reasonable given the manner that they communicate.

The fact that they have left an issue such as the terms of travel notice to fester for so long, convinces the Court that it is necessary and reasonable. [ 71 ] Second, it is reasonable to give travel notice because of the level of mistrust that has developed between the parties over the years on this issue. From the Applicant’s perspective, she relies on the example involving the Respondent travelling with the child to Baie Comeau, Quebec without notice prior to departure.

The Respondent doesn’t trust the Applicant for a host of reasons, many of which became rather evident during his cross-examination of her at the hearing. Ironically, the Respondent is asking the Applicant to simply trust him at all times on the travel issue. Irrespective of who is in fact responsible in whole, or in part, for the mistrust, the fact is that it exists and permeates the relationship up to the present day on this issue. [ 72 ] Third, it is in the child’s best interests as well to ensure that her parents know where she is going before she leaves. She is five years old at the moment.

Parents have a right to know where their child is travelling to and when he or she is leaving and returning, even if the child is travelling with the other parent. Reasonable notice of travel is such a basic request of another parent. [ 73 ] Fourth, if the Respondent makes a last-minute decision to travel out of province with the child, to the Magdalen Islands for example, he may still ask the Applicant for her consent to do so. If she agrees, then there is no issue.

Opportunities to make a last-minute decision to travel out of province for any extended period of time (over two or more days) with the child will greatly diminish once the child begins school in September 2023 in any event. [ 74 ] Lastly, the Respondent, in closing argument, finally agreed to give notice. [ 75 ] I order that the parties shall give each other a minimum of 48 hours’ notice for any out of province travel with the child, and a minimum of 30 days’ notice for any out of country travel with the child.

Furthermore, I order that while one parent travels with the child out of province and/or out of country, the other parent shall have the right to communicate with the child by telephone and/or Facetime once per day, if requested, or more often if the child requests it. ISSUE 3 – CHILD SUPPORT [ 76 ]

Section 9 of the Federal Child Support Guidelines applies to the quantification of child support because the parties have jointly agreed to equal shared parenting time since early 2020. The parenting

schedule changed to one week on, one week off, in February

Section 9 of the Guidelines reads as follows: 9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account: (

a) the amounts set out in the applicable tables for each of the spouses; (

b) the increased costs of shared custody arrangements; and

(

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [77] In M.G.H. v. K.L.D.H., 2020 NBCA 46 , our Court of Appeal canvassed the issue of how to approach s. 9 childsupport cases, with reference to the leading case of Contino v. Leonelli-Contino, 2005 SCC 63: [83]

Section 9 governs the analysis when there is a shared custody arrangement. The straight set-off is the starting point. The judgedetermined the set-off approach, which is what the parents had set out in their separation agreement, was reasonable, and she applied itwithout any further standard of living adjustment under s. 9(c). [84] In F.M. v.

T.H., 2016 NBCA 29, 449 N.B.R. (2d) 240, this Court wrote: Bastarache J. states in Contino: The framework of s. 9 requires a two-part determination: first, establishing that the 40 percent threshold has been met; and second, whereit has been met, determining the appropriate amount of support. With respect to the second part of the determination, the litigious issue in the case at bar, courts across the country have struggled todevelop an

interpretation of s. 9 that is consistent with the Guidelines’ objectives. While the approaches vary widely, they can be dividedin two categories. One approach, similar to the approach used by the motions judge, can be described as the “formulaic approach”. Theother approach, which may be described as the “discretionary approach”, eschews the use of formulae. The specific language of s. 9 warrants emphasis on flexibility and fairness.

The discretion bestowed on courts to determine the childsupport amount in shared custody arrangement calls for the acknowledgment of the overall situation of the parents (conditions andmeans) and the needs of the children. The weight of each factor under s. 9 will vary according to the particular facts of each case. I willnow consider each of the three s. 9 factors. [paras. 37- 39]. […] Professor Rollie Thompson, in “Case Comment: Contino v.

Leonelli-Contino” (2004), (ON CA), 42 R.F.L. (5th)295, outlines the process a trial judge should follow for the s. 9 analysis once there is a finding the parents have a shared parentingarrangement.

In his view a trial judge is required to: i. determine the straight set-off amount; ii. review the child expense budgets; iii. consider the ability of each parent to bear the increased costs of shared custody and the standard of living for the children in eachhousehold; and iv. distinguish between initial orders or agreements, and variations. [paras. 18-19 and 26] [85] The Supreme Court has recognized there is judicial discretion in s. 9, consistent with flexibility and fairness, the objectives of the

Guidelines, and a contextual and holistic

interpretation of them. Bastarache J. observed in Contino v. Leonelli-Contino, 2005 SCC 63,[2005] 3 S.C.R. 217: “Any attempt to apply strict formulae will fail to recognize the reality of various families” (para. 82). I agree. [78] More recently, in S.A.H. v.

K.A.H., 2022 NBCA 17 , the Court of Appeal reiterated at paragraph 29, in reference toContino, that s. 9 calculations are not prone to simple solutions, calculations or formulae: [29] I adopt what Bastarache J. wrote in Contino: The determination of an equitable division of the costs of support for children in shared custody situations is a difficult matter; it is notamenable to simple solutions. Any attempt to apply strict formulae will fail to recognize the reality of various families.

A contextualapproach which takes into account all three factors enunciated by Parliament in s. 9 of the Guidelines must be applied. [Emphasis added; para. 82] [Emphasis in original] [79] Professor Rollie Thompson in The TLC of Shared Parenting: Time, Language and Cash (27th Annual Institute of Family Law,County of Carleton Law Association, April 13-14, 2018) - 32 CFLQ 315 at 343-344) explains the policy considerations that underlie thes. 9 analysis and the “message” in Contino: If there is any strong message coming out of Contino, it is that a child in a shared custody arrangement should not experience significantdifferences in his or her standard of living when moving back and forth between the two parental households.

There are good policyreasons for this approach, although not elaborated in Contino. Implicit in a true shared custody arrangement is a greater sharing ofparental resources in the interests of the child, with a greater commitment to equality than in other post-separation arrangements.

Thenthere is a second, more pragmatic reason: a significant differential in household living standards can destabilize the shared arrangement,encouraging the child to shift towards the home with the higher standard. … once the support issues are squarely placed before the court, this ought to be the guiding principle in shared custody cases. [footnotesomitted] [80] Finally, I refer to Payne & Payne, Child Support Guidelines in Canada, 2022 at page 336, where the authors reference theinterplay between the objectives of the Guidelines and the s. 9 analysis: It is important to keep in mind the objectives of the guidelines that require a fair standard of support for children and fair contributionsfrom both parents.

The court will look at the standard of living of the child in each household and the ability of each parent to observe thecosts required in order to maintain the appropriate standard of living in the circumstances. In the words of Steel JA, of the ManitobaCourt of Appeal, in Smederovac v. Eichkorn: The purpose of

section 9 is not to equalize household incomes, but rather to make adjustments for any significant and appreciablevariations in household standards of living and the financial realities of the parties, including the ability to absorb costs related tomaintaining a similar standard of living (see Wetsch v. Kushi, 2017 SKCA 77 at paras 138-139). 9(a) - Set Off Calculation [81] As noted above, I am satisfied that the parties have a shared and equal parenting

schedule with the child. The Applicant isemployed as a schoolteacher. Her declared annual income from 2017 to 2022 is as follows: 2017: $28,844 [Record at page 14, maternity leave year][no reference to union dues] 2018: $53,767 [Record at page 464] [no reference to union dues paid] 2019: $48,429 [Record at page 411]-$304 in union dues = $48,125

2020: $61,277 [Record at page 349]-$456 in union dues = $60,821 2021: $50,145 [Record at page 279]-$304 in union dues = $49,841 2022: $74,581 [ Record at page 268]-$760 in union dues = $73,821 [ 82 ] The Respondent was previously employed as a social worker. He is now self-employed offering services to clients but also still working for his former employer on a limited basis.

His annual income from 2017 to 2022 is as follows: 2017: $75,664 [Record at page 58]-$2,009.51 (union dues) = $73,654.49 2018: $62,966 [Record at page 193]-$166.04 (union dues) = $62,799.96 2019: $29,917 [Record at page 194]-$41.04 (union dues) = $29,875.96 2020: $23,080 [Record at page 195]-$631.68 (union dues) = $22,448.32 2021: $31,245 [Record at page 196]-$908.82 (union dues) = $30,336.18 2022: $36,423.52 [Record at page 199]-$1,228.37 (union dues) = $35,195.15 [ 83 ] At my direction, Counsel for the Applicant prepared a revised Table confirming calculations of the amount of child support owed and paid based on the set off only.

However, upon closer examination of the Table and the financial disclosure in the Trial Record, it appears the Table was not complete and did not include applicable deductions from incomes based on

Section 1 of

Schedule III of the Guidelines . The amount deducted for union dues above is the amount indicated on line 212 of the Tax Returns and pursuant to

Section 1(

g) of

Schedule III of the Guidelines . [ 84 ] The Respondent paid child support in the amount of $3,385 in 2019 [Page 411 of Record] and $500 in 2020 [page 349 of Record] for the time when the Applicant had primary care of the child. These amounts will be accounted for in the final calculations. [ 85 ] My calculation of the incomes for the purpose of calculating the amount of the set off for child support, based on the 2022 Income Information, including Tax Returns, T-4’s and April 2023 Financial Statements, is as follows: Applicant Total Income: $74,581 Minus: Union Dues: $760 (per T4 and Financial Statement and

Section 1(

g) of

Schedule III of the Guidelines ) Income for Child Support: $73,821 Respondent Total Income: $36,423.52 Minus: $1,228.37 (union dues, as per

Section 1(

g) of

Schedule III of the Guidelines ) Income for Child Support: $35,195.15 [ 86 ] For clarity, the Respondent claimed a deduction of $851.49 for “training” and $1,642.72 for Quebec Pension Plan payments (“Cotisation RRQ”) in

Schedule II of his Financial Statement filed April 18, 2023. However, as

Schedule II confirms, it is subject to the deductions set out in

Schedule III of the Guidelines , which does not allow for a deduction of those two items.

[ 87 ] The amount of the set off based on the Guidelines is therefore $355 ($635-$280). That is the starting point. [ 88 ] The parties submitted financial information and gave evidence on various financial questions and expenses. The s. 9 analysis is contextual and must consider all three criteria. The objective in the Guidelines is to issue a fair Order in terms of support for the child so that she continues to benefit from the financial means of both parties. 9(b) - The Increased Costs of Shared Custody Arrangements [ 89 ]

Section 9(

b) examines the total cost of raising children in a shared parenting arrangement. The methodology relies upon examining budgets and actual expenditures of both parents toward care of the child. [ 90 ] The Applicant contributes $364 biweekly towards the mortgage ($728 monthly), $158 towards the property tax ($316 monthly), in addition to $149 per month for property insurance, as well as $214 per month for Internet/phone/TV, an amount that does not include the $150 biweekly payment for telephone ($300 per month).

I calculate the Applicant’s total monthly expenses for the foregoing items, excluding extra-curricular activities, to be approximately $1,707. This amount does not include monthly costs associated with food, home repairs and maintenance, electricity, auto insurance, entertainment, credit card payments, bank loan payments and daycare payments. [ 91 ] The Applicant indicated yearly costs for extracurricular activities in the amount of $1,000 which may or may not include annual registration fees for dance of $450 and $110 for gymnastics in Appendix III - Special Expenses of her Financial Statement.

In any event, the Applicant testified as to the costs of soccer for the child. Those costs were not challenged because the child does play soccer and should also be considered. [ 92 ] The Applicant’s most recent Financial Statement indicates a deficit of $2,081 per month in the monthly budget [Page 253 of Trial Record]. Not included in her Budget are T.F.’s vehicle payments, his credit card debt and payments or expenses relating to the other children such as daycare, summer camps, etc. C.F.’s daycare costs are $360 per month, while M.F.’s monthly daycare costs are $150 now.

Basketball registration fees are $360 per child. T.F. splits the cost of summer camps with the stepchildren’s biological mother. However, the Applicant testified that the three to four summer camps that the children attend includes an average cost of approximately $300-$400 per week, per child. [ 93 ] In her Budget, the $200 she included for the cost of food is based on her equal share of the $400 bi-weekly household estimate cost for food. She points out that those costs seem to continuously keep rising.

In cross-examination, the Applicant confirmed that T.F. uses his income for T.F. and M.F., while the Applicant uses her income to pay for C.F. and the child. [ 94 ] The Applicant and T.F. needed to take out a $25,000 home equity loan to keep up with the cost of raising all the children and to “catch up”. They used some equity from the sale of their previous home and put $200,000 toward their current home for which they continue to pay for a 25-year mortgage of $315,000. The Applicant also testified as to the repairs that must be performed on the property as well.

The purchase of a new home by the Applicant and T.F. has created some financial difficulties, despite the down payment that was made. [ 95 ] The Applicant testified that the Respondent did not pay on occasion the applicable daycare fees for the child. After meetings were held with representatives of the daycare, the Respondent ended up paying arrears of $500, according to the Applicant. [ 96 ] In terms of property and debts, the Respondent confirmed in his Financial Statement filed April 18th, 2023, that the difference between the value of his share of Total Property and Total Debts is $169,005.58.

There is no outstanding mortgage declared for his home and he therefore has no bi-weekly or monthly mortgage payments. He also has no monthly payments due on two motor vehicles, which presumably have already been paid off. The Respondent has therefore built up some reasonable equity in his real and personal property. The only debts that he has deducted from his Total Value of Property are lawyers’ fees in the amount of $7,624.05 [pages 180, 185, 188 and 190 of the Trial Record]. Furthermore, he disclosed a balance of $10,529 in his bank account as of the date of his Financial Statement.

Despite the foregoing, he shows a net monthly loss of -$154.12 on his Financial Statement [page 180 of Trial Record].

[ 97 ] There is little to no evidence to establish that the Respondent’s costs in respect of the child have increased considerably since the parties agreed to equal parenting time. For that reason, it is unclear to the Court what are the precise increased costs for activities that the Respondent incurs when the child stays with him for two reasons. First, no specific or cogent evidence was presented to specifically address this point: simply arguing global unfairness does not suffice. Second, the Applicant has paid for all costs associated with activities like soccer, dance and swimming.

The Applicant’s costs have not decreased because of the shared parenting arrangement especially when the extra expenses she incurs, such as for extra-curricular activities, are considered. 9(c) - The Conditions, Means, Needs and Other Circumstances of Each Parent [ 98 ] As Bastarache, J. noted in Contino at paragraph 72: “(…) the court has full discretion under s. 9(

c) to consider “other circumstances” and order the payment of any amount, above or below the Table amounts.” That discretion is front and center in the s. 9(

c) analysis and in considering “other circumstances”. There is no presumption that a set-off calculation applies in all cases. [ 99 ] At the moment, the Applicant’s means are greater than the Respondent’s – i.e., she earns more income than him based solely on declared income. [ 100 ] The Applicant and her partner T.F. have lived together since October 2019. The Respondent argues that I should consider T.F.’s income in my calculations. The Applicant testified that T.F. earns approximately $5,000 to $6,000 more annual income than her. He just started a new position.

That means that T.F.’s current gross annual income would be approximately $79,000- $80,000. The total combined household income for the Applicant would therefore be approximately $155,000. [ 101 ] The Applicant argues that her needs, and circumstances, are greater and different because she, along with T.F., provide for three other children in their home along with all associated expenses, whereas the Respondent does not have any expenses related to other children. He lives alone when the child is not with him. In other words, the reality of the Applicant’s family life, in terms of costs, is much different.

The Respondent, by comparison, only has the child as a dependent 50 percent of the time. [ 102 ] The Applicant further highlights the fact the Respondent is self-employed and meets clients remotely from home. Although there was no specific request to impute additional income to the Respondent, the Applicant submitted in closing argument that the Respondent currently has two income streams, both virtual. One stream is with his former employer (for when he worked as a social worker in the Magdalen Islands) and the second is self-employed income.

The Applicant submitted that this situation called for a “deeper dive” into the Respondent’s actual earning capacity or potential. [ 103 ] The Applicant states she is prepared to continue to pay for extra-curricular activities and that it is easier if she pays for expenses for the child herself rather than seek reimbursement from the Respondent every time.

The Applicant therefore takes the position that she should be entitled to relief on the amount of child support she must pay the Respondent for the child on a retroactive and prospective basis. [ 104 ] For his part, the Respondent argues that the Applicant has inflated her budget to make it look much worse than what it really is in terms of expenses. He says he gave up everything – his job, his property, family ties and friends – to move to New Brunswick to help raise his daughter.

His income has decreased, while the Applicant shares income with T.F. [ 105 ] The Respondent’s position requires consideration of the issue of how another partner’s/spouse’s income factors into the analysis and ultimately, the exercise of discretion in determining what is a fair amount of child support under s. 9 of the Guidelines . [ 106 ] In a 2014 paper entitled “

Section 9 and Second Families ”, 2015 CanLIIDocs 138 , the authors Elliott S. Birnboim & Daniella Murynka review cases relative to the impact of second families in a Contino analysis. I note the following comments by the authors about the relevance of second families in the analysis under s. 9 (

c) of the Guidelines : Although early

interpretations of

section 9 did not always consider parental re-partnering to be relevant to shared custody child support determination, and although Contino did not specify that the total household income of each spouse must be accounted for under

section 9(c), it is now generally accepted across the provinces that a re-partnered spouse should have his or her current partner taken into

account in some way under

section 9. There are, however, also shared custody cases where the fact of re-partnering is mentioned by thecourt but ignored or not meaningfully considered under s. 9(c). [107] After an extensive review of the case law, the authors concluded that: Contino does not, however, give courts or practitioners any guidance on the impact of second families in determining

section 9 childsupport (despite the fact that, in Contino, the father had remarried). This has resulted in some variation in the case law in accounting forsecond family circumstances under

section 9. (…) With respect to the role of a re-partnered party’s new spouse’s income, we see tension in the case law between the necessity ofaccounting for the reality of that spouse’s financial impact on the party’s home, but also an aversion to “transferring” child supportobligations from parents to their affluent second spouses (but not when considered as factor in expense reduction, where no such aversionappears to exist). This confusion has led to significant variation in how second spouses are considered under

section 9. [108] This

article has been cited by Courts in several cases, including: Spiess v Spiess, 2021 ABQB 961 ; Soleimani v.Melendez, 2019 ONSC 36 ; Gottinger v Runge, 2018 SKQB 343 ; SJF v DMK, 2018 ABQB 559 and M.M.L.v. J.K.S., 2021 BCPC 18 . [109] In Fisher v. Fisher, 2008 ONCA 11, the Ontario Court of Appeal held that a payor’s obligations to a second family can be arelevant factor in considering entitlement to and quantum although in the context of spousal support. The Ontario Court of Appealaddressed the difficult issue of supporting multiple families in Fisher v.

Fisher: [39] While courts generally recognize a “first-family-first” principle (which provides that a payor’s obligations to the first family takepriority over any subsequent obligations, inevitably new obligations to a second family may decrease a payor’s ability to pay support fora first family. [40] In each case, obligations toward second families must be considered in context.

For example, where spouses with a child separate,and one remarries and produces another child, the obligations to the second child will affect support for the first family because thepayor has an equal obligation to both children. (Citations omitted) [110] I also reference the British Columbia Court of Appeal’s comments and analysis on the issue of considering another spousesincome for the purpose of a s. 9 determination in BPE v AE, [2016] B.C.J. No. 1598, 2016 BCCA 335: 58. Household income should not be used to determine the starting point: the Guideline support the biological parents shouldprovide.

Approaching the question, whether B should devote some of his increased income to the support of his children, by askingwhether the support provided to them when they are in A's household is adequate, subordinates B to A's spouse as a source of support.Doing so calls upon A's second spouse to assume a child support obligation that would otherwise be borne by the biological parent. 59. There are sound policy reasons for rejecting an approach to this issue that treats new partner income presumptively as "householdincome" to be generally factored into child support calculations under s. 9. 60.

The first of these is the public interest in reducing the incidence and severity of the "cliff effect" -- what Bastarache J. referred to(in Contino at para. 41) as the "drastic change in support" arising from variations in access arrangements. The majority of the Court inContino was at pains to avoid the disproportionate drop in child support that may result from a minor change in custody arrangementsand the triggering of the application of s. 9 of the Guidelines.

Where the payor enjoys a much higher individual income than the payeeand the set-off amount is relatively high, child support will drop precipitously if the new partner's income is routinely and fully takeninto account when s. 9(

c) is thus triggered. 61. Further, ascribing limited importance to the income of second spouses gives effect to the objectives stated in s. 1 of theGuidelines, in particular, ensuring that children continue to benefit from the financial means of both spouses after separation and makingthe calculation of child support orders more objective. While the Court in Contino held flexibility should take priority over certainty forthe purpose of the s. 9 analysis, the pursuit of certainty and predictability of outcomes should still play an important role in our analysisbecause of their importance in the efficient resolution of disputes.

62. The set-off amount calculable under s. 9(

a) accounts for two incomes: the earnings of the biological parents. Establishing the quantum of these incomes on the evidence may be difficult, but the framework is clear and the outcome predictable. Varying support to account for third and fourth incomes under s. 9(

c) as a matter of course would degrade the certainty and predictability of the legislative scheme and risk returning us to the ad hoc unpredictability of the old child support regime. It tends to increase the volatility of child support obligations. By contrast, giving weight to total household incomes for a more limited purpose -- that is, to assess whether basic needs can be met and whether disparate standards of living between households can be avoided -- maintains the flexibility of the s. 9 scheme while drawing predictable boundaries around the s. 9(

c) enquiry. 63. Courts have occasionally begun with the presumption that new partner income is material to the s. 9 determination, and then allowed the re-partnered spouse to rebut that presumption. In Stewart v. Stewart , 2006 MBQB 118 (aff'd on appeal without comment on s. 9(c)), a mother established her new partner's income had not increased the household standard of living, as he spent his money only on himself. At para. 118 Allen J. held: "She has no real access to his income or he to hers.

In light of this arrangement, to use the household income ratio would penalize the mother because it appears that the partner keeps most of his income for himself." Similarly, in C.N.G. v. S.M.R. , 2007 BCSC 822 , the court held that only the new partner's direct contributions to household expenses could be taken into account in the analysis. 64.

Professor Thompson refers to these as "no access to his money" cases and cautions that if this evidentiary issue is permitted to govern the child support analysis under s. 9(c), it could encourage new couples to arrange their finances creatively to circumvent child support obligations, or for "pig-headed" new partners to withhold their financial support. 65 . Limiting the consideration of household incomes, to some extent, should alleviate Professor Thompson's concern about requiring a payee parent to show they have limited or no access to their new partner's income.

That second spouse's income or assets will not be relevant to the s. 9(

c) enquiry unless it can be said that payment of the set-off amount to the payee's household will create or exacerbate a disparity. [ 111 ] In Campbell v Campbell, [2010] M.J. No. 168 , 2010 MBQB 107 the father had been paying child support equal to the set off amount of the parties' respective Guideline incomes, along with 50 percent of actual expenses incurred by the mother as well pursuant to an agreement. However, their financial circumstances had changed: the father's income decreased, while the mother’s income increased. However, the mother argued that the husband's spouse's income should be considered in the

section 9(

c) analysis. The Court concluded as follows: 26. In consideration of all factors, this court agrees that the income of the subsequent spouse should be significantly discounted to acknowledge her additional costs in maintaining the shared custody regime of her two older children, and the expense consideration for the subsequent child. When one equalizes the incomes of the parties to $39,000.00, and employs the adjustment to the income of the father's subsequent spouse, the standard of living ratios of the parties are "approximately equal." 27.

Accordingly, this court does not find the "standard of living" comparison to be a persuasive factor in determining the outcome herein. [ 112 ] In S.J.F. v D.M.K., [2018] A.J. No. 923 , 2018 ABQB 559 , the Court unequivocally stated that: 53 No case was cited to me where a new spouse's gross income had simply been added to the payor's income, and I reject that as being wholly inappropriate. The payor and children from the earlier relationship get no benefit from deductions made from the new spouse's income, or the new spouse's expenses.

That suggestion offends the well-accepted principle that new spouses do not take on financial responsibilities for step-children, other than in loco parentis situations. [ 113 ] In the final analysis, I will not place much emphasis on T.F.’s income. The Applicant has a monthly deficit that exceeds $2,000 and relies on T.F. financially in that regard.

[114] I accept that the Applicant’s $500 per month electricity expense as per her Financial Statement is somewhat inflated and morethan one would expect. However, even if she is responsible for half of that amount, it only reduces her monthly deficit by $250. Theelectricity expense was really the only expense in her Budget that the Respondent took issue with. Keeping that one exception in mind, Iaccept that the expenses set out in the Applicant’s Financial Statement and Budget are otherwise reasonable.

I further accept theApplicant’s evidence that she does not pay for expenses such as daycare for the stepchildren and that she is responsible for all suchexpenses for the child and 50 percent of expenses for the child she has with T.F. (C.F., two years old). The Applicant contributes tooverall expenses related to the home, and debts, in addition to food and other basic needs for her children and her extended family. Conclusion on prospective child support under s. 9 [115] Baird, J.A. explained in S.A.H. v.

K.A.H., 2022 NBCA 17 at paragraph 28 that it is open to a trial judge to deviate fromthe straight set off amount: [28] There is discretion to deviate from a straight set-off, with reasons. The judge exercised his discretion in this case, and he laid outwhy he thought the existing child support order was fair for the reason C. continued to be in the primary care of his mother. As an aside,I would observe that, because of the inadequate financial disclosure, it would not have been possible for the judge to conduct a detailed s.9 analysis in any event (see A.S.L. v. L.S.L., 2020 NBCA 15, [2020] N.B.J.

No. 63 (QL); G.F. v. J.A.C.F.; J.C.M. v. M.J.M.; F.M. v. T.H.,2016 NBCA 29, 449 N.B.R. (2d) 240). [116] Madam Justice Baird explained in S.A.H. v. K.A.H. that the calculation is more complex that a simple set-off because, inter alia,the Court must consider various circumstances in exercising discretion under s. 9 of the Guidelines: [23] In some cases, it is only one parent who buys or primarily buys the school supplies and pays for the lunches at school, theclothing and the extracurricular expenses, or perhaps the uninsured portion of dental and medical expenses.

In that case, the obligationon a judge to consider the increased costs of shared parenting and “the conditions, means, needs and other circumstances of each spouseand of any child for whom support is sought” may cause the judge to deviate from the straight set-off.

Section 9 has been described as a“vexing”

section for lawyers and judges because it sets out a two-step process to the analysis, but it allows for a deviation from a straightset-off as a matter of discretion. (…) [25] An analysis under s. 9 is more complex than a simple set-off calculation. It is clear that a s. 9 analysis also requires considerationof the increased costs of shared parenting and a comparison of the household standards of living, the rationale being that children shouldexpect to enjoy comparable standards of living in each parental household.

A simple calculation based on a straight set-off between theincomes of the parents was described by Bastarache J. in Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, as the“starting point” (para. 44). It is then incumbent upon each parent to provide child-focused budgets in which they particularize theexpenses they incur for the children. He eschewed a strict formulaic approach (paras. 37-39 and 82). [117] Like in S.A.H. v. K.A.H., the Respondent here did not provide much evidence in terms of his increased expenses arising fromthe shared parenting arrangement.

Baird, J.A. noted at paragraph 30: [30] It is my view the judge turned his mind to ss. (a), (

b) and (

c) of s. 9. The father’s overall conduct affected the outcome becausehe did not provide evidence of increased expenses associated with C. and the conditions, means, needs and other circumstances of each

spouse and of any child for whom support is sought, informed his analysis. I would dismiss this ground of appeal . [ 118 ] I have considered the difference in the standard of living as the child continues to live equally in the two households. In my view, a straight set-off is not appropriate in the circumstances of this case. [ 119 ] It is true that the Applicant and T.F. live in a bigger house than the Respondent. But they have four children and two adults living in their home, so it needs to be “bigger” to accommodate their circumstances.

It is also more expensive. [ 120 ] The “financial reality” of the parties is that Applicant may be more able to absorb costs related to maintaining a similar standard of living than the Respondent because she earns more than he does. The flip side of the equation is that the Respondent has no mortgage or vehicle payments, a healthy bank balance, and less of a need to absorb costs because he lives alone when the child is not with him.

Conversely, the Applicant has more costs to absorb, given the circumstances of her household, but also because she pays for expenses, including those associated with extra-curricular activities. [ 121 ] When I consider all the evidence, including expenses and budgets of the parties, there is not the “huge” income disparity that the Respondent suggests, considering all the means, needs and circumstances of the Applicant as noted above. I accept the Applicant’s testimony that both parents are doing what they can financially and that “it is as even as it can b

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