P.M., Applicant, – v. –, 2023 NBKB 147

FDM-131-2019 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON Date: August 28, 2023 Neutral citation: 2023 NBKB 147 BETWEEN: P.M., Applicant, – and – S.M., Respondent (Moving Party). ORAL DECISION BEFORE: Madam Justice Marie-Claude Bélanger-Richard AT: Moncton, N.B. DATES OF HEARING: May 29, 30 and 31, June 1 and August 8, 2023 DATE OF DECISION: August 28, 2023 APPEARANCES: The Applicant represented herself Kayla M. Cullen, for the Respondent

Summary: Variation of parenting order and child support

BÉLANGER-RICHARD, J.: FACTS [ 1 ] In this matter, the parties are the parents of a child named E.M. who was born on [...], 2018. The parties had a short relationship and separated in November 2018.

At the time, both parties were residing in the Greater Moncton Area. [ 2 ] In 2020, the parties consented to the following arrangement regarding their child: - they would have joint decision-making responsibility for major decisions concerning the health, welfare and education of the child, including the choice of school and daycare; - they would share parenting time based on a 2-2-3 rotation; - they would share the holidays; - the parties were to abstain from consuming alcohol to the point of intoxication during or 24 hours prior to parenting time; - if a party was to move outside of the Westmorland county, he or she was to inform the other party within 90 days of the move; and - no child support was payable by either party, but special and extraordinary expenses were to be shared equally between the parties. [ 3 ] This arrangement was confirmed by a Consent Order dated January 21 st , 2020 (the 2020 Consent Order).

The 2020 Consent Order includes other terms to which I do not need to refer for the purpose of the issues that I have to determine in these proceedings. [ 4 ] The mother works at a daycare facility. Since the 2020 Consent Order, she has been working at different daycare facilities. She has also moved at least 4 or 5 times. These changes have created problems for the father, and I will expand on them later in this decision.

The father alleges that these changes have had a negative impact on the child E. [ 5 ] At the time of the 2020 Consent Order, the mother was in a new relationship and was living in an apartment in the Greater Moncton Area. In August 2020, the mother broke up with her partner. Unable to continue paying the rent where she lived, the mother had to move, and she chose a place in Saint-Antoine. The village of Saint-Antoine is outside of Westmorland County. Contrary to the 2020 Consent Order, the mother did not give a 90-day notice of this move to the father.

However, the father was aware of the mother’s move because he helped her finding this apartment in Saint-Antoine. At some point, the mother moved to a different unit at the same location. The mother therefore lived in this apartment complex located in Saint-Antoine from August 2020 to mid-December 2022. [ 6 ] Unfortunately, the mother was evicted from her Saint-Antoine apartment in mid-December 2022 for non payment of rent. The mother claims that she had only a 2-day notice of her eviction. The mother moved to her father’s place for about a week.

She then rented a mini-home where she was hoping to stay for a while. Unfortunately, the owner of the mini-home asked to take back possession of the mini-home not long after the mother had moved there. The mother was able to wait until March 2023 to move out of the mini-home. By then, she was going through her third move since the 2020 Consent Order. [ 7 ] In early 2023, the mother contemplated moving back to the Greater Moncton Area but ultimately, she chose to rent a house in Cocagne. Cocagne is outside of Westmorland County.

I understand that the mother did not give notice to the father that she intended to keep her residence outside of the geographical limits imposed in the 2020 Consent Order. The mother said that she would have paid a similar rent in Moncton, but she chose to rent a house in Cocagne because it was closer to her place of employment and at proximity of E.’s friends. Also, she mentioned that the house in Cocagne offered great amenities for E. as there were a pool and a big backyard.

The mother testified that she had a month to month rent agreement with the owner of the house because she wanted to keep her options open depending on the outcome of these proceedings. However, her intentions were to live in this house for some time. [ 8 ] After the final hearing concluded on June 1 st , 2023, the father filed a motion to adduce fresh evidence. The basis for this motion was that as of July 1 st , 2023, the mother was homeless. I heard this motion on August 8, 2023. By the time of the hearing on motion, the mother had found and moved to a new place in Cocagne.

Both parties filed an affidavit regarding this motion. The mother agreed that I should receive the new evidence, i.e., the father’s affidavit and hers. After hearing submissions from the parties, I reserved my decision and told the parties that it would be part of my final decision in this matter. [ 9 ] As discussed in the caselaw presented at the hearing on motion, the test for allowing fresh evidence after a trial but before a decision is less stringent than on appeal. A two-prong test must be met to allow fresh evidence: (1) would the evidence if presented at

trial probably have changed the result and (2) could the evidence have been obtained before trial by the exercise of reasonable diligence. However, in Paftali v. Paftali , 2020 ONSC 5325 , Justice Howard quotes extensively from the case of Brasseur v. York , 2019 ONSC 4043 where the following comments about this 2-prong test are found: I will apply these considerations in the case at bar. But this case is also different from these authorities in a significant way. I had not yet decided the case before the motion to introduce fresh evidence was made. When a decision is made, greater caution is needed.

As explicitly recognized in Sagaz , where a decision has been released but formal judgment not yet entered, a litigant who comes to know of the effect of the decision, may try to disturb that judgment or to reconstruct a disfavoured case by putting forth new evidence. This potential for abuse must be discouraged. However, when a case is yet undecided, the balance may tilt more towards fairness and truth-seeking rather than finality. This has been recognized in the authorities that have dealt with motions to introduce fresh evidence before a judge has rendered a decision.

These authorities have generally held that the threshold required in the first question of Sagaz is loosened: Carleton Condominium Corporation No. 116 v. Sennek , 2017 ONSC 5016 (Ont. S.C.J.) ; Varco Canada Ltd. v. Pason Systems Corp. , 2011 FC 467 (F.C.) ; Levant v. Day , 2017 ONSC 5988 (Ont. S.C.J.) . This different approach to the first prong of the test was emphasized by Lauwers J. (as he was then ) in Jackson v. Vaughan (City) , 2009 CarswellOnt 152 (Ont.

S.C.J.) at paras. 22-23 : It seems to me intuitive that where a court has not yet reached a conclusion on the matter to be addressed by the fresh evidence the standard ought to be somewhat relaxed, although I am mindful of the need to avoid never ending evidence ... Given the current state of my deliberations I have decided to exercise my discretion in favour of admitting the fresh evidence.

I cannot say that it will likely be conclusive of the issue of vagueness, that it would probably change the result, or even that it would probably have an important influence on the result, but I can say that it may have an influence on the result. In my opinion, where a decision has not yet been rendered, the need for finality does not require the evidence to have "probably" changed the result if it had been presented at trial. I emphasize that no decision has yet been made. There is no "result" to speak of. The judge may be at a very preliminary stage of adjudicating the case in their mind.

In these circumstances, to have a test that makes reference to a likelihood that the fresh evidence could have affected the result is premature if not illogical. Furthermore, when the parties do not know the result, any dangers associated with permitting parties to present fresh evidence is not as acute. Thus, in my view, provided a judge finds it in the interests of justice to do so, the judge may properly exercise the discretion to receive fresh evidence. That being said, the proffered evidence must still be relevant and cogent.

The need for orderly and efficient litigation demands that such motions remain exceptional. [ 10 ] I would add that in Kazberov v. Kotlyachlova , 2021 ONSC 5006 , the Ontario Superior Court of Justice (Divisional Court), sitting on appeal, agreed to admit fresh evidence recognizing that when the best interests of a child are at stake, the rules of the admission of fresh evidence may be relaxed. [ 11 ] In the present matter, the best interests of a child are at the heart of the decision I have to make.

I find that the fresh evidence being adduced by both parties are relevant to the issues in this matter because it relates to the mother’s housing problems and instability that the father argues in support of his Motion to Change. There is no question that the fresh evidence could not be obtained for the final hearing because these are new events that happened following the conclusion of the final hearing.

Therefore, I accept into evidence the affidavit of S.M. sworn to on July 5, 2023, and the affidavit of P.M. sworn to on August 2, 2023. [ 12 ] According to this fresh evidence, the mother was notified by her landlord on June 27, 2023, that she had to move out of the house in Cocagne by September 1 st , 2023. On June 28, the mother contacted a new landlord and decided to move out immediately, that is on July 1 st , 2023. She explained that she wanted to avoid paying two rents.

Unfortunately, the new landlord had changed his mind and upon her arrival at this new place with all her boxes and furniture, the mother found herself without a place to live. She asked the father to take the child E. while she could make another plan. [ 13 ] The father sympathised with the mother, and he had no problem keeping E. under his care while she was looking for a new place. He told her that he would keep E. during the week, and she could have him on the weekend. According to the father, the mother accepted his proposal. The mother said that she did not agree to this.

After reading the exchange of messages between the parties, I am satisfied that the mother seemed to be in agreement with the father’s proposal. In any case, this was the most reasonable solution in the circumstances. The mother’s plan to go camping with the child until she could find a place was not a good idea. The father told the

mother that E. was upset with the frequent moving and expressed negative feelings about having his personal belongings in boxes. In his affidavit, the father mentioned that E. has cried often since July 1 st , 2023. [ 14 ] The mother alleges that the father added to her stress by mentioning that she might have child support to pay depending on the outcome of these proceedings and she should take this factor into consideration in a search for a place to live.

In her affidavit, the mother adds that the father belittled, insulted, and mocked her while she was going through this difficult time. [ 15 ] I read the text messages that the father sent to the mother during that period. I do not find that the father acted improperly in referring to possible child support payments. At some point, the tone in the messages escalated because the father became frustrated by the mother’s lack of insight regarding her situation and its impact on the child.

While I do not excuse everything he wrote, I agree that the mother acted hastily and was not making decisions in the best interests of E. I understand that the mother was having a very difficult time but some of her actions seemed thoughtless. [ 16 ] Since July 15, 2023, the mother rents a new place in Cocagne. The child E. is back in his routine of alternating between his parents on a weekly basis. [ 17 ] At the time of the 2020 Consent Order, E. attended a daycare center called Wee College in Moncton.

One month after the signature of the 2020 Consent Order, the mother suggested to change E.’s daycare to Boys and Girls’ Club daycare in Dieppe because she had just started to work there. The father refused, explaining that E. had just started to go to Wee College and he would have been late for work if he had to bring the child at this other place. [ 18 ] In May 2020, without advising the father, the mother gave a 2-week notice to Wee College and registered E. to a new daycare called Powerplay. The father expressed his disagreement to the mother, but to no avail. The parties however made an agreement.

The mother agreed that E. would attend Kingswood Academy as soon as she had enough savings for the deposit and fees. The father agreed that in the meantime, E. could attend Powerplay daycare. The father was pleased because Kingswood Academy is a Montessori school that offers bilingual education. I note that the father is unilingual anglophone, and the mother is francophone and bilingual. [ 19 ] However, when the mother moved to Saint-Antoine in August 2020, she obtained employment with another daycare, Mon Ecole, located in Notre-Dame.

The mother decided she no longer wanted E. to attend Kingswood Academy and she registered E. at Mon Ecole in Notre-Dame. Although the mother wanted E. to attend Mon Ecole daycare on a full-time basis, the father did not agree. Consequently, the child E. began doing one week at Powerplay daycare in Moncton and one week at Mon Ecole daycare in Notre-Dame. [ 20 ] When the mother moved to Cocagne in March 2023, she stopped working at Mon Ecole daycare and started employment at Garderie Anne-Marie.

It is not clear when E. started at Garderie Anne-Marie, but eventually, his daycare changed again during the weeks he is with his mother. [ 21 ] Therefore, in 2020, E. went to three different daycare facilities. All the daycare facilities he attended in Moncton were anglophone. When his mother moved in Saint-Antoine in August 2020, E. began attending a francophone daycare center during the weeks he was with his mother. In 2023, he changed daycare again during the weeks he is with his mother because the mother went working to a different daycare facility. [ 22 ] Another change happened in 2020 for E.

Less than 6 months after the signature of the 2020 Consent Order, the mother proposed to change the parenting time to one week on, one week off. At the time, the mother was doing unannounced drop-offs and pick-ups at the father’s residence and it was creating problems. The father agreed to try this new

schedule for one month but told the mother that if he did not think after one month that this was in the best interests of E., they would return to the original schedule. The mother agreed. After one month, the father found that the new

schedule was not in the best interests of E. because of his young age. When he asked the mother to go back to the original schedule, she refused. Since then, the parties have continued alternating their parenting time on a weekly basis. [ 23 ] Another issue raised by the father concerning the parenting

schedule is the time of the exchange. The parties are supposed to exchange the child on Mondays at 2:00 p.m. However, the mother has often dropped up the child unexpectedly on Sundays at the father’s residence. There have been incidents at the time of drop-offs such as the mother screaming and honking her horn. The father

decided to involve the RCMP, and the mother was told not to attend the father’s residence and to have the exchange done at Powerplay daycare. [ 24 ] When the parties consented to the 2020 Consent Order, they were both living in the Greater Moncton Area. Because of the mother’s move outside of the Westmorland County, the parties are currently living a 40-minute-drive apart and they live in different school zones. This is significant as the child E. will start kindergarten in September 2023.

The father wants his son to attend an anglophone school with a French Immersion Program in Moncton, and the mother wishes to send her son to a francophone school in Notre-Dame. I note that the school chosen by the mother is not in the school zone associated with her residence. [ 25 ] In July 2021, the father filed a Motion to Change seeking the majority of parenting time with the child E. and sole decision- making responsibility or in the alternative, the final say. In her Response to Motion to Change, the mother asked for the dismissal of the father’s motion.

At the beginning of the final hearing on May 29, 2023, the mother asked to amend her pleadings to seek the final say regarding decision-making responsibility. Counsel for the father consented to the amendment of pleadings and it was granted. [ 26 ] In support of his Motion to Change, the father filed two Affidavits and called two witnesses, including himself, at the final hearing. The mother filed two Affidavits and testified at the final hearing.

The hearing lasted four days. [ 27 ] As explained at the beginning of the hearing, I cannot vary the 2020 Consent Order unless there is proof of a material change of circumstances. If there is proof of a material change of circumstances, I may then decide what parenting arrangement would be in the best interests of the child E. [ 28 ] As the parties have not been married, this matter is governed by the Family Law Act . First Issue: Material Change of Circumstances [ 29 ] In M. (F.) v. H. (T.) , 2016 NBCA 29 , the New Brunswick Court of Appeal explains what a material change of circumstances is.

This is a change in the personal circumstances of the child or a change in the personal and financial circumstances of the parties. However, change alone is not sufficient. It must be a change that has modified the child’s needs or the ability of the parents to meet those needs in a fundamental way.

Also, the change must not have been foreseen or could not have been reasonably contemplated by the judge who made the initial order. [ 30 ] In this matter, the father alleges that the mother has made many unilateral decisions regarding the child’s daycare and parenting schedule, she has moved outside of the Greater Moncton area without his consent, she has not respected the parenting time ordered by the Court, she is unable to communicate and cooperate respectfully with him and she brings instability in E.’s life. [ 31 ] I am satisfied that all these changes could not have been reasonably anticipated by the Court at the time of the 2020 Consent Order.

I am also satisfied that there have been changes in the child’s life due to the mother’s decisions of changing his daycare, changing the parenting

schedule and moving outside of the prescribed geographical limits. I am satisfied that the mother demonstrated an inability to communicate and cooperate with the father in regards to these changes and she simply imposed her decisions on him and the child E. without consideration of the impact of her decisions on them.

I am satisfied that since the 2020 Consent Order, the mother has brought instability in E.’s life due to the constant changes she has caused or implemented. [ 32 ] Therefore, there has been a material change of circumstances in this matter allowing me to look at a possible new parenting arrangement or parenting order that would be in the best interests of the child E. Second Issue: Best Interests of the Child [ 33 ] When a court makes a parenting order, the only consideration is the best interests of the child.

The concept of best interests is defined in the Family Law Act and there are many factors to take into consideration. In considering these factors, the law mandates the Court to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. Also, while a child generally benefits from maximum contact with both parents, the parenting time spent with each parent must be consistent with the child’s best interests.

[ 34 ] There are two main components to a parenting order: the decision-making responsibility and the parenting time.

A) Decision-making Responsibility [ 35 ] Decision-making responsibility means the responsibility of making significant decisions about a child’s well-being, including in respect of health, education, culture, language and spirituality, and significant extra-curricular activities (section 1 of Family Law Act ).

Having joint decision-making responsibility means that the parties must have a meaningful consultation with one another when an important decision arises and must attempt to make a joint decision in the best interests of their child. [ 36 ] In this matter, the father initially asked for sole decision-making responsibility, or in the alternative, joint decision-making responsibility with the final say. During his testimony, he said that he wanted joint decision-making responsibility and in case of disagreement, the final say.

The mother is in agreement with joint decision-making responsibility but in case of disagreement, she insists to have the final say. [ 37 ] In this matter, having the final authority to make an important decision means that this parent will choose where the child will go to school in September 2023. As explained earlier, the father wishes that E. attends an anglophone school in Moncton where a French Immersion Program is offered. The mother wants to send E. to a francophone school in Notre-Dame. This disagreement about the child’s school and language of education has come as a surprise to the father.

He testified that prior to his separation from the mother, they had discussed the subject and they had agreed that E. would go to an anglophone school with a French Immersion Program considering that the father is anglophone and the mother is francophone. [ 38 ] It is not my role to decide which system offers the best educational opportunities to E.

The parent who will have the final say will have to consult with the other parent and ultimately, make a decision about E.’s school that is in his best interests. [ 39 ] Since the 2020 Consent Order, the mother has totally disregarded her obligation to consult the father before making an important decision regarding the child E. She has made many decisions without consulting the father and she has not respected the 2020 Consent Order. The evidence demonstrates that the mother does not understand the concept of joint decision-making responsibility.

Giving her the final say would be giving her sole authority to make important decisions about the child and I am convinced she would not consult the father, as she should, before making a decision. [ 40 ] On the other hand, the father has shown a respectful attitude towards the mother when an important decision had to be made. For example, he has involved the mother in all decisions about the child’s health. He testified that he would not make a medical decision without her consent. The father informs the mother of any issues or if things are good after any medical appointment.

He makes sure that she is aware of the date and time for an appointment with the child. Having listened to his testimony, I am satisfied that he understands the obligation to consult the mother regarding important decisions, the importance of listening to the mother’s opinion, the necessity at times to research the various options or solutions, and the importance of discussing the reasons for making a decision or not. [ 41 ] The evidence shows that the mother is impulsive and quick to make important decisions. She has shown instability and lack of judgment. The father is logical and has a Cartesian mindset.

He requires as much information as possible before making an important decision regarding the child E. as he needs to assess the consequences and impact of a decision on the child. The father is willing to continue making joint decisions with the mother but insists on having the final authority.

I agree with his position because the best interests of the child E. require the participation of both parents regarding important decisions, but these important decisions also necessitate a rational, logical and open mind to assess the situation, weigh the pros and the cons and make a decision in the best interests of the child. [ 42 ] Therefore, the parties shall have joint decision-making responsibility regarding the child’s well-being, including in respect of health, education, culture, language and spirituality, and significant extra-curricular activities.

However, if after a meaningful consultation with the mother, the parties are not in agreement with the decision to be made, the father shall have the final authority to make the decision.

B) Parenting Time [ 43 ] With regard to the parenting schedule, the mother wishes to continue the shared parenting arrangement. The father asks for the majority of the parenting time. As mentioned earlier, the paramount consideration with regard to a parenting time

schedule is the best interests of the child.

[ 44 ] At the time of the 2020 Consent Order, the father had a new partner, C.T. They have continued to live together in the same house since 2019 and their relationship is stable. The father has maintained a consistent routine regarding E. He has been taking care of E.’s healthcare appointments and has been attending most of them. When E. was sick, the father took some time off and was home with him. The mother admits that E. is safe and in good hands under the care of his father. During the father’s parenting time, E. has continued to attend the same anglophone daycare center.

For the last three years, the father and C.T. have been involved with the board that oversees the daycare facility. Because he wants to be involved in his child’s education, the father plans to join the parents’ committee at school. [ 45 ] E. has a great relationship with his father. There is no doubt that they love each other very much. They do many activities together and with C.T. Ms. C.T. loves E. and treats him as her own. The mother alleges that C.T. is the person caring for E. most of the time.

While C.T. plays an active role in E.’s life and is part of the father’s support system, I am satisfied that the father is the person mainly responsible for parenting E. [ 46 ] C.T ’s parents are also part of the father’s support system and E. considers them as his grandparents. They see C.T.’s parents every second weekend as they live about 2 hours away from Moncton.

C.T. testified that they also see the paternal grandfather every week and the paternal grandfather likes to attend E.’s hockey games. [ 47 ] Having heard the father and C.T. testify, I am convinced that E. is safe and secure at his father’s home and benefits from a loving, caring and stable environment. [ 48 ] There is also no doubt in my mind that the mother loves E. and E. loves her deeply. The mother is an active person who likes to do activities with E. There is no question that E. has an excellent relationship with his mother. The maternal grandmother lives in Saint John, and she does not have a car.

The mother testified that she visits her own mother occasionally. From her testimony, it does not appear that the mother’s family can provide any support to her because they do not visit and do not live close to her. However, the mother said that she can rely on other mothers to help her and in any case, the father is her support system. [ 49 ] Unfortunately, since the 2020 Consent Order, the mother has struggled to maintain consistency and to offer stability to E. Under her care, E. has had to change home and daycare many times.

Although the mother offers a loving environment to E., the evidence demonstrates that she has difficulties maintaining employment and residing at the same place. The mother does not recognize and does not admit that all the changes she has imposed to E. in the last three years may have had a negative impact on him. Listening to the mother, I got the impression that she believes that her love and presence can compensate for all the trouble, insecurity and instability that all these changes may have caused. Perhaps, but there comes a time when it is too much.

I am convinced that the child E. reached that stage in June 2023 when the mother decided to move out of her home again in a matter of a few days and found herself with nowhere to go. This was one change too many. C.T. testified that she observed that E. was more tired and had a harder time listening after every move his mother made since 2020. The father also mentioned that E. has cried many times since the last move in June 2023.

I am convinced that the mother’s instability has had a negative impact on E. [ 50 ] While the parties have had a shared parenting arrangement since the 2020 Consent Order, the mother showed up many times at the father’s house to drop the child off earlier than expected and without notice to the father. At first, the father showed flexibility in changing his

schedule to accommodate the mother’s last-minute requests. I understand that there were a few incidents where the mother was loud and screamed at the father during these unexpected exchanges. C.T. testified that she had to apologize to their neighbors. Because of the mother’s behaviors, the father requested the assistance of the police to prevent the mother attending his property and to make her comply with an exchange in a public place. Although I understand that the mother did not always show respect towards the father’s personal

schedule and behaved improperly, I find that the father’s reaction of involving the police was a bit excessive. I however understand that he felt some urgency to act because E. was witnessing the mother’s behavior during these exchanges. [ 51 ] This is one example demonstrating the difficulties that the parties have had to communicate. There were times when the mother was not forthcoming with the father about her situation, her moves and E.’s daycare. She even refused to provide her new address to him.

The mother admitted that she told the father that she would withhold the child, but she then added she never did it. The parties also produced text messages that they exchanged. These exchanges demonstrate that at times, the mother is immature and exaggerates things. As for the father, these text messages show that he may try to have a discussion with the mother, but then he loses his patience and becomes more irritated in his comments. However, the parties are usually respectful and civil when they communicate in person.

The father would prefer to have written communication with the mother, but the mother insists on having telephone conversations with him. The father testified that conversations over the phone are terrible because at times, the mother becomes upset, and she will curse at him. The mother admitted that she can lose her temper and swear in her text messages to the father, but she claims she does not do that in the presence of E. [ 52 ] The mother made some allegations that the father was violent, forced himself on her to have sexual intercourse, and abused alcohol during their relationship.

C.T. testified that since the beginning of her relationship with the father in October 2019, the father has

very rarely used alcohol, only in social events such as a wedding. She has never observed that the father has an alcohol dependency. She testified that it is not the father’s personality to be verbally or physically violent. Physical violence and sexual abuse are not an issue in their relationship. The father also denied any violence, sexual abuse, and alcohol abuse. He admitted that nasty words would have been said by both the mother and him during their relationship, but there was no emotional abuse.

The father testified that the mother never alleged sexual abuse before in these proceedings and he only learned 6 days prior to the hearing upon receiving her affidavit that she was telling this about him. He said that the mother’s history has changed over time, and this is the latest allegation she is making against him. [ 53 ] Having heard the parties and C.T. on the allegations of violence, sexual abuse, and excessive use of alcohol, I am not convinced that these allegations are all true.

There were verbal arguments between the parties during their relationship, but I am not convinced that the situation involved physical violence and sexual abuse. During the course of these proceedings, I have noticed that the mother has a tendency to exaggerate or misrepresent things and may hastily say various things to have her way. Despite these serious allegations she has made against the father, the mother still asks this Court to order joint decision-making responsibility and shared parenting time schedule.

Finally, she did not hesitate to say that the child is safe and in good hands under the care of his father. [ 54 ] Overall, I am satisfied that both parents understand the importance of having the other parent involved in the child’s life. The mother made invitations to the father to join her and the child on special occasions. However, there were a few occasions where the mother said she would not bring the child to his hockey practice or game if the father was present. Also, I do not find reasonable the fact that the mother refused to allow C.T. to participate in Facetime calls between E. and his father.

C.T. testified that when the mother saw her in the background, the mother hung up and E. was left wondering what was happening. [ 55 ] The father wants to have the majority of the parenting time with E. He plans to send E. to an anglophone school that is situated in his school zone and is a 2-minute walk from his home. This anglophone school offers a French Immersion program. When living with his father, E. will continue to attend the same daycare center that he has been attending since May 2020. According to the father, E. enjoys going to this daycare center and he has friends there.

The father proposes that the mother have E. in her care every second weekend from Friday to Sunday evening. If it is a long weekend, the mother’s parenting time would be extended to Monday evening or would start on Thursday evening if Friday is a school or statutory holiday. The father is also willing to allow the mother to have E. on Wednesday evening as long as it does not affect the child’s attendance at school.

The father proposes that the parties continue to share and alternate the holidays and special occasions as specified in the 2020 Consent Order with some minor changes. [ 56 ] The mother wants to continue the shared parenting arrangement on alternate weeks. She proposes that the exchange take place on Sunday. Because the parties live approximately 40 minutes away from each other, the child would have to be in a vehicle over one hour per day to get to and from school on one of the parents’ week.

The father is concerned that this long drive every day will take its toll on the child, that the child will be late at school, and that the child will miss school because of weather conditions or conditions of the road.

The mother is not concerned at all but did not offer a concrete and reasonable plan for the child’s transportation to get to and from school. [ 57 ] I have considered the child’s needs, including his need for stability given his age and stage of development, the nature and strength of his relationship with each parent, the history of his care, the ability and willingness of each parent to care for and meet his needs, each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent, the ability and willingness of each parent to communicate and cooperate on matters affecting the child and the parents’ respective plan for the child’s care. [ 58 ] While I understand that it is important for E. to have his two parents involved and present in his life, it is also important for him to have consistency, security, and stability.

E. begins school in September 2023, and he needs a consistent routine and a stable loving environment. At this time, the father is more equipped to provide what E. needs. Also, E. has built some roots in Moncton having attended the same daycare center since 2020. His family doctor and dentist are in Moncton. E. also plays hockey with a team in Moncton. On the other hand, the mother has been struggling in providing stability to E. and in my opinion, this has had an impact on E.’s sense of security. The mother loves her son, and she will ensure that he is safe.

However, the mother’s plan, environment and behaviors do not convince me that it is in the child’s best interests to continue a shared parenting arrangement. [ 59 ] Therefore, I find that the father shall have the majority of parenting time with the child E. The mother’s parenting time shall be from Friday at 5:00 p.m. until Sunday at 5:00 p.m. every other weekend. If the mother’s weekend is a long weekend, her weekend shall be extended to Monday at 5:00 p.m. or shall start on Thursday at 5:00 p.m. if Friday is a statutory or school holiday.

If the mother can be in Moncton on Wednesday evening in the week following her weekend with the child, she shall have parenting time with the child from 5:00 p.m. to 7:00 p.m.

[ 60 ] With regard to holidays and vacation, I order as follows: 1. For Christmas, on every odd-numbered year starting in 2023, the mother shall have the child with her from December 24 at 5:00 p.m. to December 25 at 5:00 p.m. and the father shall have the child with him from December 25 at 5:00 p.m. to December 26. On every even-numbered year starting in 2024, the father shall have the child with him from December 24 at 5:00 p.m. to December 25 at 5:00 p.m. and the mother shall have the child with her from December 25 at 5:00 p.m. to December 26 at 5:00 p.m. 2.

For New Year’s Eve, on every odd-numbered year starting in 2023, the mother shall have the child with her from December 31 at 5:00 p.m. to January 1 st at 5:00 p.m. and the father shall have the child with him from January 1 st at 5:00 p.m. to January 2 nd . On every even-numbered year starting in 2024, the father shall have the child with him from December 31 at 5:00 p.m. to January 1 st at 5:00 p.m. and the mother shall have the child with her from January 1 st at 5:00 p.m. to January 2 nd at 5:00 p.m. 3.

For Easter, on every odd-numbered year starting in 2023, the father shall have the child with him for Easter weekend from Thursday until Saturday at 5:00 p.m. and the mother shall have the child with her from Saturday at 5:00 p.m. to Monday at 5:00 p.m. On every even-numbered year starting in 2024, the mother shall have the child with her from Thursday at 5:00 p.m. until Saturday at 5:00 p.m. and the father shall have the child with him from Saturday at 5:00 p.m. for the rest of the Easter weekend. 4.

For Canada Day, on every odd-numbered year starting in 2023, the father shall have the child in his care from Canada Day and on every even-numbered year starting in 2024, the mother shall have the child in her care from July 1 st at 10:00 a.m. until 8:00 p.m. 5. For Thanksgiving weekend, on every odd-numbered year starting in 2023, the mother shall have the child with her from Sunday at 2:00 p.m. to Monday at 2:00 p.m. On every even-numbered year starting in 2024, the father shall have the child with him from Sunday at 2:00 p.m. to Monday. 6.

For Mother’s Day, the child shall be with his mother from Saturday prior to Mother’s Day at 5:00 p.m. to Sunday (Mother’s Day) at 5:00 p.m. 7. For Father’s Day, if it falls on the mother’s weekend, the child shall be returned to the father on Sunday (Father’s Day) at 10:00 a.m. 8.

Throughout a calendar year, each party shall be entitled to 2 non-consecutive weeks (7 days) with the child for vacation and shall advise the other party at least 30 days prior to the chosen week. [ 61 ] With regard to special occasions such as the mother’s graduation coming up in November 2023, the father should be flexible and allow the child to be with the mother for this special event.

Both parties should be flexible when there is a special event that the child should attend. [ 62 ] With regard to traveling, I will order that the parties can travel with the child within the Maritimes provinces (NB, NS and PEI) and to Ontario without the non-traveling parent’s consent.

The traveling parent shall however provide the other parent with the traveling dates, address where the child will be sleeping and contact information to reach the child at all times. [ 63 ] If a party intends to travel with the child outside the Maritimes provinces and Ontario and outside Canada, the traveling party shall advise the other party at least 30 days in advance of the traveling dates, itinerary, mode of transportation, flight or train information if applicable, and contact information to reach the child at all times.

The non-traveling party shall sign any required document to travel, including passport application and consent letter to travel, and shall not refuse to do so unless he or she has reasonable grounds. [ 64 ] Regarding the communication between the parties, I suggested at the hearing that the parties use a journal that would follow the child. Both parties were in agreement with this suggestion, and I will so order. In case of emergency, the parties shall however send an email to the other party.

If the level of emergency is high, a telephone call shall be made. [ 65 ] The exchanges shall take place at the daycare center when it is open or if not, the father shall drop off or pick up the child at the

mother’s home. [ 66 ] Finally, the father requests an order prohibiting the mother to be on his property pursuant to

section 81 of the Family Law Act . He testified that he wants to prevent unannounced visits and an escalation of behavior from the mother and to avoid anxiety resulting from the mother’s behaviors. Considering what happened at the father’s home and the mother’s admission that she has a temper, I will make an order prohibiting the mother to be on the father’s property. This Order is part of the reasons that I have imposed on the father the obligation to drop off and pick up the child at the mother’s home.

C) Child Support [ 67 ] The father is now a licensed electrician. In 2022, he completed his 4 th block. At the time of the hearing, he was laid off, but expected to start working within a week. [ 68 ] The mother works at a daycare center. She works on a full-time basis, Monday to Friday from 8:00 a.m. to 5:15 p.m.

She testified that on May 1 st , 2023, her hourly rate increased to $25.74 (approximately $1 increase) and she is paid for 40 hours of work per week. [ 69 ] On the basis of the evidence, I find that the parties’ incomes for year 2023 is as follows: - for the father: $40,000 - for the mother: $50,000 [ 70 ] Consequently, and considering the parenting order, the mother shall pay to the father child support in the amount of $422 per month commencing on September 1 st , 2023, and thereafter on the 1 st day of each month until further order of the court.

This amount is based on the New Brunswick 2017 table for one child and an annual income of $50,000. [ 71 ] There are currently no special expenses claimed by either party. The father mentioned that there may be daycare costs beginning in October 2023, but no evidence on these costs was provided. I wish to make a precision regarding the child’s activities. If the child is enrolled in an extracurricular activity, this is not considered a special or extraordinary expense. The father must pay the cost of any activities with the child support he will receive.

There shall not be an additional contribution from the mother for any of the child’s activities.

D) Costs [ 72 ] Considering all the circumstances, I believe that each party should bear their own costs. I have considered which party was most successful but also the parties’ respective personal and financial situation. I believe it is in the best interests of the child that his mother does not pay costs in this matter. The mother’s financial situation is precarious and the obligation to pay child support commencing on September 1 st , 2023, will no doubt create some financial hardship to her. I therefore do not want to impose an additional financial burden to the mother.

DATED at Moncton, New Brunswick, this 28 th day of August, 2023. __________________________________________ Justice Marie-Claude Bélanger-Richard Court of King’s Bench of New Brunswick