M.C.B. Applicant v. M.E.B., 2023 NBKB 122

FDSJ-510-2019 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN Neutral Citation: 2023 NBKB 122 Date of Decision: July 5, 2023 BETWEEN: M.C.B. Applicant -and- M.E.B. Respondent DECISION BEFORE: Madam Justice Chantal N. Daigle AT: Saint John, N.B. DATE OF HEARING: November 22, 23, 24, 2022 February 22 and 23, 2023 DATE OF DECISION: July 5, 2023 APPEARANCES: Richard A. Northrup, for the Applicant

Kimberly A. McCurdy, for the Respondent Daigle, J.: I. INTRODUCTION: [ 1 ] In this matter, the Court is asked to determine the father’s parenting time and to address various issues relating to child support. [ 2 ] Throughout this decision, the Applicant M.C.B. will be referred to as “the father” and the Respondent M.E.B. will be referred to as “the mother”. II. EVIDENCE: [ 3 ] Before proceeding further, I wish to briefly address some of the evidence which was presented in this case. [ 4 ] During the course of the hearing, counsel advised that two affidavits had been omitted from the Record on Application.

This consisted of the affidavit of the mother filed in September 2021 and the affidavit of her ex-spouse A.S., also filed in September 2021. The mother sought to enter these affidavits into evidence. No objection was raised and accordingly, the affidavits were marked as Exhibits R-9 and R-10 respectively. [ 5 ] Upon a closer examination of the mother’s affidavit, I note that there were three exhibits attached to her affidavit which consisted of e-mail correspondence from various individuals to her previous counsel.

These individuals described events which they had witnessed. [ 6 ] These individuals were not called to testify. They did not provide affidavit evidence. They simply wrote e-mails which were then attached to the mother’s affidavit. [ 7 ] These e-mails consist of hearsay evidence and do not fall under any exception to the hearsay rule. They do not meet the test of necessity and reliability. This evidence was not properly before the Court and as a result, I have not put any weight on it. III.

FACTS: [ 8 ] The parties are the parents of one child, J.C. who was born on […], 2016 and is now 6 ½ years of age. [ 9 ] The parties were involved in a common-law relationship. They began cohabitating in March 2014 and separated in November 2017 when J.C. was a little over a year old. [ 10 ] The father is 37 years of age. He has since re-partnered and he currently resides with his common law spouse, C.B. (“Ms. B.”) [ 11 ] Throughout the parties’ relationship and at the time of separation in 2017, the father was employed with the Department of National Defence.

He was transferred to the Canadian Forces Base in Trenton, Ontario in 2015. This is where the parties resided until separation. [ 12 ] The father is French Canadian. He was born and raised in Québec. After separation, he continued to reside near Trenton until 2020 when he returned to the province of Québec. [ 13 ] The father received a medical release from the military around 2020 as a result of a left and right knee injury, left and right shoulder injury and chronic depression. [ 14 ] The mother is 39 years of age.

She was born and raised in Saint John and her family continues to reside in this area. [ 15 ] The mother left Saint John in 2004 in order to join the military. She was in the Canadian Armed Forces from 2004 to 2015 and served overseas. She received a medical release from the military in 2015 as a result of PTSD. [ 16 ] J.C. was born in […] 2016. The parties were together for approximately one year after his birth. The mother testified that during that first year “ she did everything and [the father] didn’t do anything ”.

According to the mother, the father was always away from home, either at the gym, at work or with his friends. This inevitably led to many disagreements between the parties. [ 17 ] The parties separated in November 2017 and the father testified that he had been living on base for about two months at that point because he wanted to avoid any further conflict with the mother. He felt that he could no longer trust the mother. When he had to go home, he usually brought a witness with him. [ 18 ] After they separated, the parties attended mediation in order to sort out legal issues.

According to the mother, mediation did

not resolve anything. [ 19 ] Neither party had any intention of staying in Ontario in the long term. The father wanted to eventually return to Québec and the mother wanted to return to New Brunswick. The mother left Ontario and moved to New Brunswick with the child in early December 2017. [ 20 ] In mid-January 2018, the parties signed a separation agreement which purported to resolve all issues arising out of their separation. [ 21 ] At this point, I wish to briefly pause my overview of the facts in order to address the parties’ separation agreement.

The parties have different versions of how this agreement came about. Separation Agreement [ 22 ] As indicated, the parties separated in November 2017. According to the father, shortly after separation, they went to see a mediator in Ontario. He then contacted a lawyer to draft an agreement. According to the father, the agreement was poorly drafted so the mother contacted a lawyer in Saint John to draft a new agreement.

This was the separation agreement which was eventually signed in mid-January 2018 and submitted into evidence. [ 23 ] The mother testified that nothing was resolved through mediation but she left Ontario in any event. She testified that at Christmas 2017 when she was visiting the father at his parents’ home in Québec, the father presented her with a handwritten piece of paper and told her to sign it or else he would file a court application in Ontario and obtain 50/50 custody.

The mother testified that she felt very intimidated and that she signed this document “ with a couple different changes that her lawyer had suggested ”. The mother testified that she was scared he would force her to move back to Ontario. However, she also testified that he wanted her to move and that he helped pack up her truck. [ 24 ] The mother was adamant that the father had drafted the agreement, that he had forced her to sign it, that her counsel had told her not to sign and that she was crying when she signed it.

She testified that she was fearful that she would have to return to Ontario with the child. [ 25 ] Overall, the evidence before the Court does not support a finding that the mother was forced or intimidated into signing the separation agreement, or that she signed the agreement under duress. [ 26 ] The mother’s own lawyer drafted the final agreement. No other document or piece of paper was produced or entered into evidence to corroborate the mother’s testimony that the terms of the agreement had been largely imposed by the father.

Presumably such evidence would have been contained in her lawyer’s file (i.e. the file of the lawyer she retained to draft the agreement). [ 27 ] It is notable that by the time the separation agreement was signed in mid-January 2018, the mother and the child had already relocated to New Brunswick and had done so with the father’s consent. This is confirmed at paragraph 2(

e) of the agreement. The mother moved to Saint John in early December 2017. Had the father wanted to use the mother’s move to New Brunswick as leverage in order to obtain a “favourable deal” or to exert pressure on her, it seems that he missed his opportunity. Had this been his goal (as the mother suggested), it seems more plausible that he would have ensured that a final agreement was signed before the mother and the child left Ontario. [ 28 ] Further, the mother filed an affidavit in December 2019 in response to the father’s Application seeking to confirm the parenting

schedule contained in the separation agreement. At no time did she mention that the agreement was signed under duress. Rather, her complaint about the agreement was simply that the “ extensive travel contemplated by the Agreement ” had been difficult for the child. In fact, she relied on paragraph 6(

b) of the agreement to argue that she was permitted to remain with or close to the child during the father’s parenting time. [ 29 ] The mother swore another affidavit in July 2020. Again, she made no mention that she had been pressured to sign the agreement. This time, she relied on paragraph 8(

c) of the agreement and argued that by reason thereof, she was entitled to be reimbursed for certain expenses. [ 30 ] The separation agreement also dealt with the division of property, most notably the home the parties had purchased in 2015. The father’s account of their negotiations surrounding the home leads me to conclude that the mother was very much in charge during the negotiation process. He testified that she retained a real estate agent to sell the home. They both agreed on a sales price. When he offered to purchase her interest for that price, she refused and stood firm.

He eventually had to pay a higher amount for her interest than what her own real estate agent had suggested and what the mother was prepared to accept on the open market. [ 31 ] The father acknowledged at trial that he did threaten to file an application in Ontario when they were haggling over the price of the home. He was frustrated with the mother’s demands. It is unclear exactly when this occurred.

However, the mother retained counsel in December 2017, she moved to New Brunswick with the father’s consent and she could have filed an Application in New Brunswick had she been preoccupied about the prospect of an Ontario application. [ 32 ] At trial, the mother took the position that she signed the agreement against the advice of her counsel. She was steadfast in her position that the agreement was “completely one-sided”.

While she repeated this belief numerous times throughout her testimony, she never really explained why she felt it was one-sided. [ 33 ] Again, the evidence does not support the mother’s contention. [ 34 ] The agreement confirmed that the mother and the child had moved to New Brunswick with the father’s consent. The agreement provided that the mother would have sole custody and primary care of the child. While it specified a parenting

schedule for the father, the

schedule was not particularly onerous and was reflective of the reality that the parents resided in different provinces as a

result of which the father would be unable to see the child regularly. The father’s parenting

schedule was fairly typical of the type of

schedule one sees when parents reside in different provinces. Specifically, the agreement provided that the father would have the following parenting time:

a) March Break : the father was to have 5 days in 2018, then commencing in March 2019, he was to have 7 consecutive days to be exercised in Ontario or Québec.

b) May long weekend : the father was to have 3 consecutive days, to be exercised in Saint John in 2018 and then in Ontario or Québec every year thereafter.

c) Father’s Day : the father was to have 2 consecutive days, to be exercised in Saint John.

d) Summer : the father was to have two weeks of parenting time, to be exercised in Ontario or Québec. This was to be increased to three weeks commencing in 2021.

e) Thanksgiving : the father was to have 3 days at Thanksgiving.

f) Christmas : the father was to have one full week during the Christmas holiday, with the week rotating between Christmas and New Years from year to year. [ 35 ] In spite of this detailed schedule, the agreement provided that the parties would be “ flexible ” regarding the parenting

schedule which could “ be varied from time to time ”, with “ consideration being given to [J.C.’s] best interests, needs, activities he is involved with, and if one party would like to plan a trip during the other’s access time .” [1] [ 36 ] Thus, from the outset, it seems that the father’s parenting

schedule was perhaps not as definitive or certain as he would have hoped. In fact, the agreement also stipulated that until such time as J.C. had stopped breastfeeding, the mother would remain with and/or close by to J.C. during his parenting time with the father. [2] The child was 1 ½ when the agreement was signed. The mother continued to breastfeed the child until he was approximately 4 years of age. This inevitably impacted the father’s ability to spend time with the child. [ 37 ] Thus, one can hardly argue that these terms benefitted the father in any way.

To the contrary, these terms gave the mother the ability to control much of the father’s parenting time. [ 38 ] With regards to support, I note that the parties had relatively equal incomes and thus, it is of no surprise that no spousal support was being paid. As for child support, the agreement provided that child support would be reduced by $305 per month in order to account for the additional travel expenses incurred by the father to exercise his parenting time. Once the father relocated from Ontario to Québec, that reduction would decrease to $205 per month.

The parties recognized that the mother’s relocation would make access more difficult for the father. The agreement specifically said so. [3] The agreement further stated that the parties had negotiated the agreement with a view “ to reduce the burdens that the move will cause [the father’s] access ”. This, again, was not unusual. Agreements involve a series of compromises. Both parties would have had to compromise in order to reach an agreement. [ 39 ] As for the division of property, the father kept the cohabitation home and he paid $145,000 to the mother to acquire her interest.

The evidence is that the home had been purchased in 2015 for roughly $350,000 and that there was a mortgage outstanding of $230,000 at the time of separation. [ 40 ] Overall, I do not accept the mother’s contention that she was somehow forced or intimidated into signing the agreement, nor do I accept her argument that it was one-sided. Credibility [ 41 ] An assessment of credibility is warranted. [ 42 ] In Grover v. Ecerova , 2018 NBQB 8 , Walsh J. stated the following on this topic: 103 Credibility assessments are required to be made.

There are in essence two aspects to credibility - veracity (i.e., truthfulness) and reliability (i.e., accuracy), but one does not necessarily lead to the other. Put differently, a court must be cautious for even a witness endeavouring to be truthful can be inaccurate. As well, it must be recognized that a court can accept all, part, or none of a witness's evidence, although a finding that a witness was deliberately untruthful on one aspect of the evidence might infect that witness's entire evidence. 104 There are any numbers of factors that can guide a court in assessing credibility.

They include plausibility, internal and external consistency, powers of observation, ability to recollect, self-interest, etc. (See: O'Brien v. O'Brien 2011 NBQB 179 at para. 102 (B.M. Robichaud J.) and D. (G.) v. D. (M.) 2005 NBQB 253 at para. 95 (Wooder J.) ); common sense and logic being the underlying assessment tool. I refer often to the following: ... There can be no rule as to when and to what extent inherent improbability must be taken into account by a trial judge.

As Lord Hoffman observed...: ... common sense, not law, requires that in deciding the question, regard should be had, to whatever extent appropriate, to inherent probabilities. ( F.H. v. McDougall 2008 SCC 53 at para. 48 ) [ 43 ] More recently, in S.F.D. v. M.T. , 2019 NBCA 62 , Baird, J.A. commented as follows:

30 McLachlin C.J. in R. v. R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3 , writes: While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. Furthermore, embellishing why a particular witness's evidence is rejected may involve the judge saying unflattering things about the witness; [...].

In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization. [para. 49] 31 At the end of the day, assessing conflicting evidence is a weighing exercise which requires a trial judge to use his or her common sense and experience. [ 44 ] Having listened to several days of testimony, I found the father to be more credible than the mother. [ 45 ] The mother was unrelentless in her position that she had been forced to sign an agreement that was unfavourable to her.

She refused to deviate from this narrative, which eventually impacted her credibility. When discussing parenting time, she solely provided answers which were in furtherance of her own interest. Further, her evidence as to the child’s wishes and preferences was not credible and her description of the child’s reaction to parenting time with the father seemed exaggerated. [ 46 ] The father on the other hand, was forthright in his testimony. He provided answers even when those answers were detrimental to his case. He acknowledged his shortcomings.

Further, despite all of the difficulties he encountered with his parenting time, he did not dwell on past events. He appeared more interested in coming up with a parenting plan for the future than dwelling on the last five years. Parenting time post-separation [ 47 ] According to the father, problems began to arise as soon as the agreement was signed. [ 48 ] There is a great deal of disagreement between the parties as to what took place in 2018 and 2019. The father felt that the mother was not following the

schedule outlined in the separation agreement, that she was dictating all of the terms of access, and that she was not allowing him to spend any “alone time” with the child. The mother felt that the father was not attentive enough to the child’s needs and that he was disengaged. The mother was very critical of the father’s parenting throughout this process. [ 49 ] The mother did not want to travel at March Break in 2018 but she eventually agreed to fly to Québec with the child. Both parents and the child stayed with the father ’s parents in Lévis, Québec.

According to the father, he was not allowed to spend any time alone with the child, which the mother denies. The father said he tried to make the most of the visit but it was awkward. [ 50 ] The father then came to Saint John for a visit in June 2018. He saw the child but the mother was always present and he found this frustrating. According to the mother, the father went out with friends during the evening. He showed up late for the visit. He arrived reeking of alcohol and fell asleep during a visit. I accept the mother’s portrayal of this visit.

At trial, the father acknowledged that he was drinking too much in 2018. He was suffering from depression and was finding it difficult to cope with separation and the child being so far away. He testified that he attended counselling which helped. There was no evidence before the Court that overconsumption of alcohol is still an issue, or that it continued beyond 2018. [ 51 ] The father exercised parenting time during the Summer of 2018. The mother flew to Québec and then, the father, his extended family, the mother and the child all drove to the Gaspé area for a vacation.

Again, the father testified that he rarely had any time alone with the child. The mother denies this but the fact remains that the child was almost two years old and the mother was always present during the father’s parenting time by virtue of the fact that she continued to breastfeed the child. [ 52 ] The father returned to Saint John to spend time with the child at Thanksgiving 2018, Christmas 2018 and then March 2019. At that point, the mother was no longer prepared to travel to Québec and she was not prepared to allow the child to visit the father without her being present.

As a result, the father travelled to Saint John. During these visits, the father usually came with his mother Mrs. C. and they stayed with the Respondent mother. These were short visits. The father was not comfortable staying with the mother but he felt that he had no choice. The mother states in her 2019 affidavit: “ When the Applicant asked why he needed to stay at my home, I told him he was welcome to get a hotel but I thought it would be cheaper to stay with me.

I wanted [J.C.] to be comfortable with the Applicant’s visit so I believed it would help if he was in familiar surroundings because he does not often see the Applicant or his paternal grandmother .” [4] [ 53 ] Again, the father’s evidence is that he was not allowed to spend any time alone with the child. While the mother denies this, the evidence suggests that she was always very close by. For example, during a visit, the father and his mother took the child to the Kindergym program at the YMCA. The mother stayed in the building and watched the father’s interactions with the child.

She then reported that he was not engaged or attentive enough with the child. The mother was also critical of the father and his mother because they spoke to the child in French. I note that the paternal grandmother speaks very little English. [ 54 ] Overall, the mother was always very critical of everything the father did with the child. [ 55 ] Rachelle Albert testified at trial. She was employed at the YMCA in 2019 and was familiar with the mother and the child as they attended various programs. She testified that she recalled seeing the father and paternal grandmother in April 2019.

She testified that J.C. had difficulty communicating with them because they spoke to him in French. The child seemed upset. She said she tried to translate what they said but the father was frustrated. He wanted the child to learn a bit of French. She also testified that the father was mostly on his cell phone the whole time. [ 56 ] Ms. Albert confirmed that she met the father once, maybe twice, some four years ago. She had not had any interaction with him since.

Further, she did not provide an affidavit and there was no indication that she had kept notes of their interaction so I question her ability to accurately recall this encounter four years later.

[ 57 ] According to their separation agreement, the father was scheduled to have two weeks of parenting time during the Summer 2019. This did not happen. The father came to Saint John but only stayed for a few days because he found the situation simply too frustrating. On this occasion, he did not stay at the mother’s home because he found it too stressful. Despite the child being almost three years old, the mother did not allow the father to have the child overnight. Again, the mother was very critical of the father.

She said that when the father took the child for the day, the child was crying and very irritable when he returned. [ 58 ] When the father visited in August 2019, he did not have a proper car seat for the child. The mother would not lend him her car seat, so whenever he wanted to do an activity with the child, she drove them. Given that the father only saw the child 3 or 4 times per year, it is not surprising that he did not have his own car seat. It would have been simple for the mother to lend him her car seat.

This upset the father who felt that the mother was always hovering around. [ 59 ] Because of his ongoing difficulties with the exercise of parenting time, the father filed an Application in October 2019. At the time the Application was filed, the father stated that he had no objection with the mother having “ sole custody and primary care ” of the child (as those terms were used). The father felt that the parenting

schedule outlined in the separation agreement was both fair and reasonable in light of the circumstances, and in the child’s best interests. As the father explained in his affidavit, the

schedule provided the child the stability of living in one location with his mother, yet allowed the child “ the ability to form an enduring and loving bond with his father ”. [ 60 ] The mother filed her Answer in December 2019. She asked that all of the father’s parenting time be exercised in the greater Saint John area. She indicated in her affidavit that the “ extensive travel contemplated by the Agreement ” had been very difficult for the child.

In fact, the child only went to Québec twice after the agreement was signed: in March 2018 and in August 2018. [ 61 ] The affidavit filed by the mother in 2019 recounts what she felt the father had done wrong on visits to date. The mother relied on the separation agreement and argued that, pursuant to paragraph 6(b), she was required to remain with or close to the child during the father’s parenting time by virtue of the fact that she was still breastfeeding the child at that point.

She argued that it was not in the child’s best interests that he be separated from his mother for lengthy periods of time both because of his age and because the father’s presence in his life “ was so minimal ”. However, short of spending time together as a family (which was not going to be possible because the parties were separated), it was difficult to imagine how the father could come to develop a greater presence in the child’s life. [ 62 ] Attached to the mother’s 2019 affidavit was a medical note from the child’s physician, Dr. Palmer.

She raised concerns regarding the child having several episodes of croup when travelling to or from Québec and Ontario. At least one of those trips would have been when the mother moved from Ontario to New Brunswick. Dr. Palmer indicated that it had been difficult for him and his mother due to his developmental age (he was 19 months at the time) and the fact he was still being breastfed. She was also concerned about “significant separation anxiety” should he be required to visit his father without his mother being present. That letter was dated April 19, 2018. The child is now 6 ½ years of age.

More importantly however, Dr. Palmer began seeing the child on March 14, 2018 and she would have had very little historical information about this child, other than what would have been reported to her by the mother. In any event, Dr. Palmer did not testify at trial. [ 63 ] In her subsequent letter dated October 18, 2018, Dr. Palmer states that according to the mother, the child was treated for croup in December 2017, January 2018, March 2018 and more recently, in October 2018. The mother reported that these episodes of croup seemed to occur after the child had travelled to visit his father.

However, I note that he had not travelled to visit his father in January 2018, nor in October 2018. Dr. Palmer was concerned that this may have been the overall effects and stress on the child “ given his young age with long trips and separation from his mother ”. I note that the child was never separated from his mother. At that point in time, she had been present for all of the father’s parenting time. [ 64 ] The parties appeared before the Case Management Master in February 2020. The Master ordered that the father would have parenting time on March 2 to 6, 2020 with one overnight visit on March 5 th .

The mother was permitted to attend and breastfeed the child during that evening. While the Master had granted the father parenting time each day from 9:00 a.m. to 6:30 p.m., shortly after the Court appearance, the mother requested that the father’s parenting time be shortened and that it take place from 10:00 a.m. to 5:00 p.m. [ 65 ] With regards to the father’s sole overnight visit, her then counsel provided the following instructions: With respect to the child’s emotional needs, our client has grave concerns that [J.C.] may become very upset if he wakes in the night without our client there to comfort him.

If the child is distraught at any time during the visits, we would ask that our client be contacted and be given the opportunity to console him, if necessary. Your client must recognize that [J.C.’s] primary attachment is with our client and there is no need to cause him any unnecessary upset by refusing to contact our client in the event [J.C.] experiences a negative reaction. [ 66 ] I hasten to add that the father should have been given the opportunity to console his own child. [ 67 ] In preparation for their next court appearance in July 2020, the mother prepared a detailed affidavit of the March 2020 visit.

Based on her affidavit, it is evident that the mother had attempted to dictate the father’s parenting time with the child. For example, the mother indicated that the child had been sick in the week leading up to the visit and suggested the father allow the child to rest. She sent the father a text message on March 1, 2020, said the child had experienced stomach pains overnight and that perhaps it would be a good idea to “ take it easy this week ”. The father responded: “ Yea for sure. Lots of crafts and some movie maybe ”.

Afterwards, the mother was displeased that the father had taken the child to a trampoline park on three occasions that week. [ 68 ] Overall, the mother’s July 2020 affidavit paints a picture of a parent who was unwilling to allow another parent the freedom to parent his child. The mother wanted to dictate the entirety of the father’s parenting time. She requested to be informed of any behavioural issues which arose during the visits. The father said no.

She then stated in her affidavit that her mother’s co-worker had been present at the trampoline park, that she had seen the child, and that he seemed “ very upset ”.

[ 69 ] Some of the mother’s instructions that week, sent via text, were as follows: “Timings for the week will be 10:00 am until 5:00 pm, this will ensure [J.C.] is up, eaten breakfast and ready to go for the day. And give him time to unwind from the day’s activities. Thursday will be the sleep over. I need the address of the air bnb so I can come put him to sleep. I want to be notified (at any time) during the night if he wakes up in distress and is looking for me. A reminder that his speech apt is Thursday 11:00/12:00.

I can meet you at the regional hospital entrance at 10:45 am because he needs to register first. [5] [ 70 ] The father responded: “ Yea no prob. R you sure it’s Thursday because u told me Wednesday. Just confirm please. And for sure at anytime he feel the need to see you I will call you figure it out something. ” [ 71 ] On the night of the sleepover, the father had strict instructions (which he had received from both the mother and her counsel) to immediately contact the mother so she could console him if needed.

The mother’s affidavit confirms that she attended the father’s residence that evening in order to breastfeed the child. The mother stayed until 10:00 p.m. that evening. At 10:05 p.m., she sent the father a text message asking whether the child was asleep yet. The father only saw the message about an hour later. He responded that the child had taken about 5 minutes to fall asleep. [ 72 ] At 8:00 am sharp, the mother texted to ask whether the child was awake.

She immediately asked if he had woken during the night and then asked that the father tell the child that she said good morning and that she loved him. [ 73 ] The affidavit contains many text messages that were exchanged between the parents during the week. It is evident that the father was in constant contact with the mother. She was kept fully informed of what the child was doing and as well, what he was eating. On one morning, the father was 10 minutes late picking up the child. The mother noted it in her affidavit. [ 74 ] All messages between the parents were extremely positive and upbeat.

At no time did the father show any disrespect toward the mother. When he missed a call from the mother, he apologized and explained why. [ 75 ] After the overnight visit, the mother repeatedly questioned the father if the child had woken during the night. The father said he had not and that he had only whimpered a little bit. The mother then indicated in her affidavit that for the following month, the child “ would wake every night, clearly in distress, panicking while looking for me ”. She states in her affidavit that the child had cried and said he did not want to stay the night with his father again.

In her affidavit sworn four months after this visit, she states: “ Since then he has been very clingy at nighttime with me and has consistently mentioned that he “wants to stay with mommy.” I’ve simply reassured him that I am there with him, no matter what.” [6] [ 76 ] In fact, the mother was so concerned about the child’s psychological well-being following the March 2020 visit with his father that she took the child to a counselor “ to help him cope with his emotional response to these visits ”. [ 77 ] She also contacted her family physician. Dr. Palmer provided a letter on June 1, 2020.

In it, she simply relayed what she had been told by the mother. She indicated that a child of that age (he was 3 ½ at that time) would have anxiety related to any change, particularly separation from his primary caregiver. I hasten to note that the mother left at 10:00 p.m. that evening. She returned to see him at 9:00 a.m. the following day. [ 78 ] The mother stated in her July 2020 affidavit: “I am very concerned about [J.C.’s] emotional well-being and the Applicant’s failure to consider [J.C.’s] needs given his age and the length of time that has occurred during visits.

Prior to March, the last time [J.C.] saw the Applicant was January 2020 and before that visit, it was for two days in August 2019. My observation is that the Applicant is not putting in any an effort to get to know [J.C.] and therefore is unable to respond to his emotional needs when in-person visits take place.

Indicative of this is that the Applicant wants [J.C.] to visit with him and his family in Québec for a week this summer, when [J.C.] has only ever spent one night away from me and it caused him a great deal of stress. ” [ 79 ] The mother then explained that she had tried to tell the father about her concerns. She indicates that she did not want to talk to him on the phone because he would yell at her. She attached to her affidavit a text exchange between her and the father.

Having reviewed this text exchange, it is apparent to me that the father was making valiant efforts to have an open discussion with the mother about the child. I agree with the father when he states that he had been more than patient, flexible and understanding with regard to the mother. I agree with the father that the mother kept putting obstacles in his ability to exercise parenting time. The father displayed maturity when he suggested that the child would like to see his parents talk to each other.

He told the mother to stop being mad at him and move on. [7] [ 80 ] As the mother re-iterated in her affidavit, as of July 2020, she was still vehemently opposed to the father having any overnight access. I note that the child was almost 4 years of age at that point. [ 81 ] According to the father, once the pandemic started in March 2020, visits became even more complicated. He was only able to return to New Brunswick for a visit in November 2020. At that time, he had to quarantine for 14 days before he could exercise the 5 days of parenting time which had been granted to him by the Case Management Master.

Again, the Master’s Order only provided for one overnight visit. [ 82 ] The father’s common law spouse, Ms. B., was with him when he came for this visit. Both indicated the visit went well and that J.C. had met Ms. B. before and he was comfortable with her. Nevertheless, Ms. B. acknowledged that the father had not seen the child since March 2020 and it was difficult to be in such a small space with a 4-year-old. When asked about the type of activities they played, the father indicated that Ms.

B. made homemade playdoh, they did treasure hunts inside and outside, they played with hockey sticks, they drew on the sidewalk with chalk and so forth. [ 83 ] According to the mother, when the father came to pick up the child for his overnight visit, he asked where his bedtime items were. She said that she would bring his things over when she came to put him to bed. She testified that the father “flew into a rage” and said she was not supposed to be there. She told him it was in the Master’s Order and she threatened to call the police. [ 84 ] The father’s next visit was in July 2021.

He was allowed 5 days of parenting time in Saint John, including overnight visits. It

was agreed that J.C. would have a Facetime call with his mother each night before bed. However, on one particular evening, the mother, her boyfriend and his two children arrived to visit the child. The father found this to be very disruptive given that he had such limited time with the child. I would agree. [ 85 ] At no time during the trial did the mother acknowledge that her behavior was inappropriate or disruptive. She repeatedly indicated that her presence was for the benefit of the child in order to ensure he was at ease with the father.

I do not accept the mother’s explanation in this regard. [ 86 ] During that particular visit in July 2021, J.C. made negative remarks about Québec. He said that he did not want to learn French and that his mother would “freak out” if he spoke French. He said that Québec was too far and boring. The father testified that he was not terribly surprised by the child’s comments. [ 87 ] The father had three days of parenting time in Saint John at Thanksgiving in 2021. He then had five days of parenting time in Saint John over the holidays in January 2022.

On both occasions, he rented accommodations and the child stayed with him overnight. The child had a Facetime call with his mother each night before bed. [ 88 ] According to the father, the weeks leading up to the 2022 March visit were “ a nightmare ” because of disputes over when he would get to see the child. The child had not been to Québec in more than 3 ½ years at that point, and the father was afraid that it would not happen. As well, the mother was demanding a

schedule of daily activities. Again, the mother had daily Facetime calls with the child but on one occasion, they fell asleep early without the child having contacted the mother. According to both parties, the mother was very upset and again threatened to call the police. According to Ms. B., the mother’s threats put a damper on their parenting time. In any event, the father made sure not to let it happen again. [ 89 ] As usual, the father and his family ensured the week was filled with activities. This included snow tubing, visiting an ice castle and going to an indoor water park.

They also played board games which the father found was a good way to teach the child a few words in French. The father testified that the child was very excited to see everyone. When he arrived, he ran into the house, removed his jacket and went to play with the dog. The mother had to call him over to get a hug and say goodbye. [ 90 ] The father was open and frank in his testimony and he did not attempt to hide the fact that at times, J.C. misses his mother during visits with his father. This usually happens after he has had a Facetime call with his mother.

The father felt this was normal because he is always with his mother and would therefore be very attached to her. He indicated that it usually does not take long for him to move on. If J.C. requests another Facetime call, he usually says yes. [ 91 ] Nevertheless, the father was concerned whether the Facetime calls with the mother were helpful for the child.

He explained that the child became sad when the mother showed him photographs of her family, or new stuffed animals during these calls. [ 92 ] By April 2022, 2 ½ years after litigation had commenced, when the child was already 5 ½ years of age, the mother was still requesting that the majority of the father’s parenting time be spent in New Brunswick until the child was older and until the father could “ demonstrate that he places [the child’s] ultimate well-being in high regard ”. In her April 2022 affidavit, she requested a parenting

schedule which would take into consideration “[J.C.’s] young age, his tight familial bonds with his New Brunswick community, his discomfort while travelling great distances, his particular developmental needs concerning his anxiousness and sensitivity, and contrasted against [the father’s] propensity to angry outbursts, aggression, and lack of sound judgment .” [8] [ 93 ] I have not been convinced, on a balance of probabilities, that the father has a propensity for angry outbursts or aggression, or that he lacks of sound judgment. [ 94 ] In May 2022, the father came to Saint John for a 3-day visit.

He stayed at a hotel. He testified that it went well and there were no issues. [ 95 ] The child returned to Québec for a week-long visit in July 2022. The father testified that the child spent most of the week in the pool with his two cousins and had a great time. The father noted that before going to Québec for the March 2022 visit, the child had been apprehensive about being able to communicate with people but he quickly realized that was not the case. [ 96 ] The father returned to Saint John for another 3-day visit at Thanksgiving in 2022.

Again, he reported no issues. [ 97 ] In addition to visits, the father is able to speak with the child via Facetime three days per week. He acknowledged that it was sometimes difficult to get the child’s attention but he understands that the child is only 6 years old. He said that every minute was worth it. [ 98 ] According to the mother, the child attended his last therapy session with a psychologist in 2022 but he is now seeing another counsellor to cope with the longer visits away from home. None of these therapists testified at trial.

December 2022 visit [ 99 ] The first three days of trial took place at the end of November 2022. At the end of those three days, it was clear that we would not finish and would have to return in 2023 to finish the trial. Given the approaching holiday season, I ordered that the father have one week of parenting time in Québec during the Christmas Holidays. I ordered the visit to take place from noon on Saturday, December 30, 2022 to noon on Saturday, January 6, 2022.

This was the first time that the child had gone to Québec for the holidays. [ 100 ] When trial resumed in February 2023, the mother testified that there had been 3 incidents. The child was bitten by Mrs. C.’s (the paternal grandmother’

s) dog. This occurred during a Facetime call with the mother while the child was petting the dog. The father testified that this is a small dog and he did not understand why he had nipped the child. According to the father, the child did not bleed or cry but he was a bit shocked and needed to be comforted.

[ 101 ] The mother also testified that the child fell at some point during the visit and scraped his back. She confirmed that she was informed about it by the father’s spouse when the exchange took place a few days later. The father testified that the child was bouncing on the sofa and fell on the edge of a table. He sustained a small bruise and scratch on his lower back. He said that the child is really active and a bit fearless. [ 102 ] Finally, the mother testified that the child had been in a hot tub and had put his head under water which she felt was too dangerous and inappropriate.

The father explained that this was more like a small pool and he explained the temperature at which the water was set, which was not particularly warm. The father was with the child at all times. [ 103 ] The father indicated the child had been taking antibiotics at the beginning of his stay. He followed the mother’s instructions and administered all medication as needed. The mother had also suggested they not do anything too energetic or vigorous and that is what he tried to do. Testimony of paternal grandmother, S.C. [ 104 ] The paternal grandmother, Mrs. C., testified at trial.

She resides in Lévis, Québec along with her husband (the child’s paternal grandfather). Despite being the father’s mother, she presented as a credible witness. [ 105 ] She described J.C. as a cheerful, independent child who loves to laugh. She indicated that now that he is getting older, he likes to do things himself. She indicated that he has never been shy around her family; he is very comfortable with them and he does not cling to his mother when she leaves. [ 106 ] Although the child has a francophone name, the mother uses an anglophone pronunciation and spelling.

In order to put the child at ease, the father’s family also uses an anglophone pronunciation. [ 107 ] After J.C. was born in 2016, she went to visit the father and the mother in Trenton, Ontario in order to help with household chores and cooking. She returned to help out about a month later when the mother had surgery. She testified that the father was good with the baby. [ 108 ] She testified that she is close with J.C. She has seen him every time he has been to Québec, and she has come to New Brunswick with the father every time he has come to New Brunswick to visit the child, unless his spouse came with him.

She acknowledged that in 2018, the mother invited them to stay with her when they visited. Mrs. C. has also opened her home to the mother on three occasions when the child visited with the father. This occurred in December 2017, March 2018 and July (or August) 2018. This was done to ensure that the child was at ease at all times. The visits were held at the grandparents’ home in Lévis because it was closer to New Brunswick and the father was still living in Ontario at that point. [ 109 ] Since late 2019, they have usually stayed in a hotel or airbnb when they have come to Saint John.

They bring 3 or 4 containers of toys with them in order to play with the child and keep him occupied. [ 110 ] She indicated the father interacts very well with the child and the two of them are close. Even though she has been present at many visits, she steps back and lets them have time together. It is the father who gives the child a bath and who reads him bedtime stories. [ 111 ] Mrs. C. testified that the first time the child was allowed to go to Québec during the summer was in July 2022. He spent 7 days with the father and his family.

This is when he met the father’s brother, wife and two children (two boys, aged 12 and 13). The child was apparently surprised to have two cousins. Mrs. C. testified that the children all got along very well and played together throughout their stay. For J.C., it was like discovering a whole new world. [ 112 ] Mrs. C. testified that both of her sons, their spouses and her grandchildren are bilingual and they speak to J.C. in English. She acknowledged that she struggles a great deal but that J.C. is very patient with her and he allows her to speak to him in French.

The child has shown an interest in learning French so she has taught him a few words. [ 113 ] Mrs. C. testified that the child has never cried for his mother when he has visited in Québec. She recalled him being sad during his visit in July 2022 after his mother called and said she had purchased five Pokémon stuffed animals for him. [ 114 ] She testified that when the child was younger, he would cry when they left at the end of their visit. He is better now although he seems sad to leave. Testimony of the father’s spouse, C.B. [ 115 ] C.B. is the father’s common law spouse.

They have been together for four years. [ 116 ] Ms. B. met the father in January 2019. She is from Québec as well. She moved to Trenton, Ontario around May 2019. After the father was released from the Army around February 2020, they moved to Québec in the Spring of 2020 in order to be closer to their respective families and closer to New Brunswick. Ms. B. and the father purchased a home together in a small city northeast of Québec City. [ 117 ] Ms. B. first met the child in late 2019. She described him as a confident and happy child. She indicated that the father has a very positive interaction with the child.

She likes to bake so the child often bakes with her, an activity which he really seems to enjoy. She also made homemade playdoh which he enjoyed. She also likes to organize treasure hunts for him. During a recent visit, they also played video games. She testified that when she is present, they do activities as a family. However, she noted that morning time, bath time, and reading time were usually spent just father and son. [ 118 ] She testified that she can speak English but with a strong accent so sometimes the child corrects her and they laugh about it.

She observed that the child was much more indulgent with his grandmother whom he allows to express herself in French. She testified that when they visited the child in Saint John in January 2022, he seemed apprehensive about being able to communicate with anyone in Québec if he only spoke English. However, when he went in March 2022 and then July 2022, he realised it was not an issue. When the father and Ms. B. came to Saint John for a visit in October 2022, the child asked when he would get to go back to Québec. According to Ms. B., he seemed excited and was looking forward to it.

Testimony of the mother’s sister, K.E. [ 119 ] K.E. testified that the mother “ meets all of [the child’s] needs ”. [ 120 ] She stated that the mother is worried about the child travelling and being on the road a lot. She is worried about the child being car sick. She confirmed that the child was car sick once in 2018. She also indicated that on one occasion in 2016, she was a passenger in the father’s vehicle. He was driving fast while going to the airport. [ 121 ] She testified that the mother was very open to the father having visits with the child as long as visits were held in Saint John. IV.

THE POSITION OF THE PARTIES: [ 122 ] The father agrees that the mother should continue to be the child’s primary caregiver. He simply wants to be able to exercise parenting time, as delineated in the parties’ separation agreement or something close thereto. [ 123 ] The mother raised many concerns with the father exercising parenting time. She is concerned about the child travelling in the winter. She is concerned about the child falling ill while he is with his father in Québec.

However, she acknowledged that he was taking medication during the December 2022 holiday and that the father had appropriately administered medication to the child. [ 124 ] She raised safety concerns such as going on a water slide when the child could not swim, using a bicycle without a helmet, and not wearing the right sunscreen when going outside. For the most part, these were incidents that happened once several years ago and the father was always close by. [ 125 ] Overall, the mother wants shorter visits which are slowly increased through a gradual progression.

She is adamant that the child does not like being away for long periods of time because his friends are here in Saint John. She argues that 7 days in Québec is already long enough and that the child is already struggling. She argues that he is too young and Québec is too far away for him to be spending longer periods of time there. [ 126 ] While the mother’s argument for short visits and gradual progression may have had some traction when the Application was filed in October 2019, we are long past that stage at this point.

In essence, as a result of the pandemic and the chronic delays encountered in the Family Division, the mother has succeeded in her quest to progress very slowly. However, we are now more than three and a half years later. V. ISSUES: [ 127 ] The only issues to be resolved in this matter are as follows: (

i) The father’s parenting time; and (ii) Child Support VI. PARENTING TIME: [ 128 ] The parties were never married and consequently, this matter is governed by subsection 50(1) of the Family Law Act , S.N.B. 2020, c. 23 which requires the Court to solely consider the best interests of the child when making a parenting order. The factors to be considered when determining the best interests of the child are found at subsection 50(2) of the Act : 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. [ 129 ] Subsection 50(3) of the Act requires the Court to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being when considering the factors listed above. [ 130 ] Further, pursuant to subsection 50(6) of the Act , when allocating parenting time, the Court must give effect to the principle that a child should have as much time with each person in respect of whom the order would apply as is consistent with his or her best interests. [ 131 ] Although the parties signed a separation agreement, both parties argued that the Court is ultimately required to make a determination based on the best interests of the child. [ 132 ] Eleven factors are enumerated under the “best interests of the child” test.

I will review each one. - The child’s cultural, linguistic, religious and spiritual upbringing and heritage. [ 133 ] This is a relevant factor in this case. The father is Francophone and more particularly, Québecois. At present, the child has very little exposure to any aspect of Québec culture and very little exposure to the French language. [ 134 ] I recognize that the mother has purchased a few French books for the child but overall, the child’s exposure to the father’s culture has been minimal. There is more to culture than language. Culture encompasses shared beliefs, customs, traditions, food, even music.

It is a way of life. [ 135 ] There can be no question that the child would benefit from exposure to his French Canadian and Québec roots. This is a task more easily facilitated by spending time with the father in Québec.

Further, understanding the father’s language and culture will help promote the bond that exists between father and child. [ 136 ] This factor militates in favour of the father being granted generous parenting time. - The child’s needs, including the need for stability, given the child’s age and stage of development. [ 137 ] The father is fully capable of meeting the child’s needs during his parenting time.

While the mother attempted to show that he did not display sound judgment, the evidence fell short of that. [ 138 ] I have taken into consideration the child’s emotional needs and the mother’s concerns in this regard. The evidence satisfies me that the child is capable of spending extending periods of time with his father. The father is attuned to his needs. He recognizes that, at times, the child misses his mother. That usually happens after a Facetime call with his mother.

That is not unusual. [ 139 ] I do not accept the mother’s evidence that the child needed therapy after spending one night away from his mother or that he currently requires ongoing counseling. No expert testified at trial. [ 140 ] More importantly, due to various factors including the mother’s resistance, the pandemic and court delays, the father’s parenting time has increased very slowly. The child has had lots of time to adapt. He will be 7 years old in a few months.

I firmly believe that he is ready for more generous parenting time with the father. [ 141 ] As for the child’s need for stability, that was never an issue. To his credit, the father recognised from the start that the child would need stability and he felt that would be best achieved with the mother having primary care. - 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. [ 142 ] There is no doubt that the child has a very strong bond with his mother and her family.

He spends almost all of his time with his mother. [ 143 ] Spending time with his father will have no negative impact on the bond the child has with his mother. [ 144 ] The father, his mother and his spouse testified at trial. They all love the child deeply. J.C. is very lucky to be surrounded by two families that care so much about him. He is lucky to have two very capable parents who want to have a strong presence in his life. [ 145 ] Undoubtedly, the child’s bond with his father is perhaps not as strong as it would be if they were both residing in the same city.

The father’s visits are few and far between due to the distance between them. However, when the father spends time with the child, all of his time, focus and energy are spent on the child. Courts often emphasize the importance of quality over quantity when it comes to an access parent’s parenting time. Here, when the father spends time with the child, he appears to be fully engaged. [ 146 ] The parenting time allotted to the father should continue to promote the development of the ties that exist between the child, the father and the father’s extended family.

- Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent. [ 147 ] This has never been an issue for the father. He has supported the relationship between mother and child throughout. He has never questioned the mother’s very important role in the child’s life. There was no evidence that he ever questioned her parenting skills or that he made any disparaging comments about her in front of the child. At trial, he confirmed that she was a good mother. [ 148 ] The same cannot be said for the mother. I recognize that the mother sees it very differently.

She argued that she supported their relationship by traveling to Québec with the child and by opening her home to the father and his mother when they came to Saint John to visit the child. However, I question whether this was truly done to put the child at ease or whether it was done to ensure that she could oversee the father’s parenting time. [ 149 ] More importantly, when the mother’s sister testified, she indicated the child had said he did not want to go to Québec because “ papa hurt mommy ”. This evidence was concerning to the Court. The child was a year old when his parents separated.

He would not have any knowledge or recollection of what happened at the time of separation. It is unfortunate that the mother felt the need to vilify the father to or in front of the child. Such comments do not promote the child’s relationship with his father and are not his best interests. - The history of care of the child. [ 150 ] The mother has been the child’s primary caregiver since birth.

That fact is not in dispute. - The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained. [ 151 ] The mother attempted to convince the Court that the child did not want to visit his father in Québec, or for more than a few days at a time. At trial, she asked that I meet with the child myself to ascertain his views. I declined the mother’s request. [ 152 ] The mother states that the child has told her he does not want to be away for very long. She said that he gets upset when they Facetime and he says he does not want to be there.

She indicated that he finds it boring because everyone speaks French. [ 153 ] The mother and the child are very close and I am concerned that the child is taking responsibility for the mother’s emotional well-being and happiness. During the trial, the mother indicated that the child had given her a stuffed animal to keep her company while he was away. He appears to worry about the mother. It is imperative that the mother convey to the child that she is fine when he is away.

The child needs to be reminded that he is allowed to love his father and that doing so, is not a sign of disloyalty towards the mother. [ 154 ] Overall, I find that the child is too young for his views and preferences to be given much weight. In any event, the evidence from the father and his family is that he enjoys himself when he spends time with them in Québec.

I have no doubt that he may complain about the travel time but that is no reason to limit the father’s parenting time or to order the father to exercise his parenting time in Saint John. - Any plans for the child’s care. [ 155 ] There is no dispute that the mother has and will continue to look after the majority of the child’s care. - 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. [ 156 ] Quite frankly, both parents are able to care for and meet the needs of the child.

They also both have sufficient resources and family support to meet his needs. - The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate on matters affecting the child. [ 157 ] The communication between the parties is problematic. [ 158 ] The father confirmed that they have poor communication. They are unable to communicate be telephone so they mostly text. According to the mother’s sister, the mother communicates by text so that everything is documented.

The various text messages that were contained in the Record on Application (and submitted by the mother) depicted the father as someone who was accommodating, who tried his best to follow the mother’s instructions and to acquiesce to her demands. [ 159 ] The evidence confirms that the father made attempts to have conversations with the mother about the child but the mother refused. [ 160 ] The mother testified that the father usually ignores her texts or lashes out. However, she indicated that in recent months, she has been communicating with his spouse which is much better.

They texted over the Christmas holiday and this appears to have appeased the mother somewhat. [ 161 ] Hopefully, with this matter behind them, the parties can have open discussions about the child.

- Any family violence. [ 162 ] While the mother attempted to show that the father had a propensity for outbursts, there was insufficient evidence presented to support such a finding. - Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. [ 163 ] This factor does not apply. Conclusion with respect to the father’s parenting

schedule [ 164 ] Overall, I believe that the child will benefit from generous parenting time with the father. March Break [ 165 ] The father asked for parenting time each March Break. The mother asked that they alternate March Break from year to year. She proposed to take the child out of school for a week on the father’s “off year”, so the father could exercise parenting time. [ 166 ] I do not believe this is a reasonable option and I am concerned that the father’s parenting time will not occur.

It is important that he have a full week each March Break because he will not have spent time with the child since Christmas. The mother pointed out that her birthday is on March 7. I have taken that into consideration. However, I do not find that this is a sufficient reason to deny the father parenting time at March Break. Should the mother wish to take a vacation with the child, she is free to take the child out of school as she has suggested could be done for the father. She has the child full-time. [ 167 ] Therefore, commencing in 2024, the child shall spend each March Break with the father.

The visit shall commence at noon on the first Saturday of March Break and shall end at noon on the second Saturday of March Break. The pick up and drop off shall occur at the McDonald’s Restaurant in Edmundston. If the mother is late arriving, that missed time shall be added to the father’s parenting time the following Saturday. If for example, the mother cannot travel on Saturday due to inclement weather, the father’s parenting time will begin at noon on Sunday and end at noon on the following Sunday.

Victoria Day Weekend in May [ 168 ] The mother does not object to the father having parenting time this particular weekend. However, she wants it to take place in New Brunswick. [ 169 ] I am not prepared to put a restriction on where the father will exercise his parenting time as I do not believe that it is necessary. It is not unusual for families to travel outside of the province for a long weekend, particularly to Nova Scotia or PEI. [ 170 ] The father shall have three consecutive days (i.e. three 24-hour periods) of parenting time during the Victoria Day long weekend.

I make no order as to where he shall be required to exercise his parenting time. However, he shall be responsible to pick up and drop off the child in Saint John. So, for example, if he picks up the child at 4:00 p.m. on Friday, he shall return the child by 4:00 p.m. on the following Monday. If he chooses to travel somewhere, he shall advise the mother of his itinerary. Father’s Day Weekend in June [ 171 ] The father has requested three consecutive days during the weekend of Father’s Day. The mother suggested from Friday afternoon until 5:00 pm on Sunday. [ 172 ] I see no reason to limit his time to two days.

The father shall have parenting time from either Thursday at 4:00 pm to Sunday at 4:00 pm OR from Friday at 4:00 pm to Monday at 4:00 pm, the exact

schedule to be determined by the father each year by May 15 th . If the Applicant is unable to exercise his parenting time that weekend, there shall be a Facetime call between the child and the Applicant on Father’s Day. Summer vacation [ 173 ] In his Application filed in October 2019, the father requested four weeks of parenting time in August 2020. He asked that this be expanded to six weeks commencing in 2021. [ 174 ] At trial, the father confirmed that he was asking for two consecutive weeks this summer.

He is asking for three consecutive weeks in the summer of 2024, and then four consecutive weeks each summer thereafter.

While he ultimately wants to spend four weeks with the child each summer, he agreed that it would be better for the child to ease into the schedule. [ 175 ] The mother has proposed that the father have one week of parenting time in July and then one week in August. [ 176 ] Given the scarcity of visits that take place during the year, I find that the child will benefit from having more generous parenting time with the father in the summer. [ 177 ] The father shall have the following parenting time in the summer, to be exercised in Québec (or such other location as the parties agree upon in the event the father wishes to travel with the child):

a) In 2023 – the father shall have the first two weeks of August;

b) In 2024 – the father shall have one week in early July, then he shall have the first two weeks of August;

c) In 2025, 2026 and 2027 – the father shall have the first two weeks of July and then the first two weeks of August.

d) The father shall continue to have four weeks of parenting time each summer thereafter. Whether he exercises his parenting time in 2 two-week periods, or four consecutive weeks shall be at his discretion. Thanksgiving [ 178 ] The mother has proposed that they alternate Thanksgiving weekend from year to year and that on alternate years, the father have two days on another weekend.

During closing arguments, counsel for the father agreed but indicated that the father wanted a three- day weekend on alternate years. [ 179 ] During even-numbered years, the father shall have the child in his care during Thanksgiving weekend, from Friday at 5:00 pm until Monday at 5:00 pm. The mother shall have the child in her care for Thanksgiving weekend during odd-numbered years.

In odd- numbered years, the father shall have an alternate three-day weekend in October or November (either from Thursday at 4:00 pm to Sunday at 4:00 pm OR from Friday at 4:00 pm to Monday at 4:00 pm), the exact date to be determined by the father, taking into consideration the child’s school calendar. The father shall advise the mother by September 15 th of each odd-numbered year, as to when he intends to exercise this particular parenting time. Christmas Holiday [ 180 ] The mother has proposed that the father have 6 days of parenting time each year from December 27 to January 2.

The father has asked for a full week (7 days) and he asked that the parties rotate the Christmas week from year to year. [ 181 ] Both the mother and her sister provided evidence of the Christmas traditions they take

part in every year. No such evidence was presented by the father. [ 182 ] Families develop new traditions over time as families grow and as they try to accommodate different schedules, grandparents, blended families and so forth. Not every meal or celebration can occur on December 24 th or 25 th . Accommodations often need to be made. At times, plans are made with certain relatives on Boxing Day or New Years Day. Overtime, new traditions are established. [ 183 ] I am concerned about the child’s reaction if he does not spend Christmas with the mother and her family.

I am also concerned that his reaction would impact his holiday with the father. Instead of rotating Christmas, I urge the father’s family to develop new traditions that center around New Year. [ 184 ] The child is in school and is usually off for two full weeks each Christmas. He shall spend the first week with the mother and the second week with the father. For example, in 2023, the father shall have parenting time from noon on Saturday, December 30, 2023 to noon on Saturday, January 6, 2024.

In 2024, the father shall have parenting time from noon on Saturday, December 28, 2024 to noon on Saturday, January 4, 2025, and so forth. Facetime [ 185 ] The father currently has Facetime with the child on Mondays, Thursday and Saturdays around 6:30 pm. When the child is with the father, the mother shall also have Facetime with the child on Mondays, Thursdays and Saturdays, except that it shall occur at 9:30 am (local time where the child is located).

Now that the child is older, I see no reason for him to have daily Facetime calls with the mother when he visits his father. [ 186 ] When the child is traveling to Québec to visit the father, all exchanges shall take place at the McDonald’s Restaurant in Edmundston. [ 187 ] Finally, as part of the Court’s parenting order, I will include a paragraph (specifically paragraph 242 below) which the parties had agreed upon at trial.

However, I remind both parties that while the child’s activities can be taken into consideration, sub-paragraph 242(k)(vi) is not to be used as a mechanism to frustrate the father’s parenting time. VII. CHILD SUPPORT: [ 188 ] According to the separation agreement, each party earned an estimated income of $65,000 in 2017.

At the time, the father was still employed with the Department of National Defence and the mother was receiving various types of disability benefits as a result of her medical release from the military. [ 189 ] There is no dispute that there has been a material change in circumstances given the change in the income of the parties. According to the mother’s Answer, she asks for a variation of child support, retroactive to July 1, 2019. The father does not dispute that there should be a retroactive variation. Rather, the dispute pertains to (

i) the calculation of each party’s income, and (ii) the additional expenses incurred by the father to exercise his parenting time. A. Determination of Income [ 190 ] After the mother moved out of the home, the father rented the basement of his home to a tenant from approximately March 1, 2018 to the end of 2019. [ 191 ] His 2018 income tax return indicates that he received gross rental income of $7,000 during that period. He incurred expenses

totaling $18,414.88, the personal portion of which totaled $8,645.32. The remaining portion ($9,769.56) was deducted from his gross rental income which resulted in a net rental loss of $2,769.56. [ 192 ] The expenses attributed to the rental income consist of one half of his total annual insurance premiums, one half of his total annual mortgage payments, one half of his annual property taxes, one half of his utilities, and the full amount he incurred for repairs and maintenance. [ 193 ] For 2019, the father earned gross rental income of $6,850.

He incurred expenses totaling $23,595.37, the personal portion of which totaled $11,516.14. The remaining portion ($12,079.23) was deducted from his gross rental income. In the end, he reported a net rental loss of $5,229.23. [ 194 ] As in the previous year, the amount which was deducted from his gross rental income (i.e. $12,079.23) consisted of one half of his total annual insurance premiums, one half of his total annual mortgage payments, one half of his annual property taxes and one half of his utilities.

He deducted all repairs and maintenance which again, were not excessive ($563.12). [ 195 ] The mother argues that there should be no reduction at all for the mortgage, property tax and insurance premiums because these expenses would have been incurred in any event since the rental unit was located in his home. This was confirmed by the father during his cross-examination. I accept this argument. [ 196 ] Therefore, I assess the father’s rental income at $4,014.15 for 2018 ($7,000 less $1,124.25 for repairs and maintenance and $1,861.60 for utilities).

This brings his total income to $70,335.55 for 2018. [ 197 ] I assess his rental income at $3,730.46 for 2019 ($6,850 less $563.12 for repairs and maintenance and $2,556.42 for utilities) which brings his total income to $69,926.86 for 2019. [ 198 ] In 2022, both parties received Veterans Independence Program (VIP) benefits from the Federal government. These benefits are for housekeeping and grounds maintenance.

Both parties have sustained injuries as a result of their employment with the Department of National Defence, and Veterans Affairs Canada recognizes this impacts their respective abilities to perform certain household chores. [ 199 ] Here, the father argues that VIP benefits should not be added to his income. The mother argues that they should. [ 200 ] The evidence before the Court is that both parties receive such benefits. The benefits are paid by Veterans Affairs under the Veterans Independence Program (VIP).

The benefits are paid to the individual (as opposed to a service provider) and the individual / recipient does not have to provide receipts. The benefit is paid whether or not household maintenance expenses are incurred. [ 201 ] The decision in Rooker v. Rooker , 2017 ABCA 87 is informative. There, Mr. Rooker was in the military and received numerous monthly benefits from the military and other third parties.

Specifically, he received the following on a monthly basis: VAC non-taxable disability pension benefits; VAC non-taxable additional disability pension benefits with respect to spouse; VAC non-taxable permanent impairment allowance; VAC non-taxable permanent impairment allowance supplement; VAC non-taxable benefit for home care and maintenance; SunLife long term disability benefits; Canada Pension Plan Disability; and Canadian Forces Pension Plan. Mr. Rooker objected to any of his non-taxable VAC benefits being included in income. [ 202 ] The Alberta Court of Appeal disagreed.

Ultimately, the Court applied the New Brunswick Court of Appeal decision in Vaughan v. Vaughan , 2014 NBCA 6 , and stated the following: 5 In recent years, trial courts have diverged on how to treat VAC benefits for support purposes. The courts that have excluded all or a portion of the VAC benefits have done so largely in reliance on a Federal Court decision in Manuge v Canada , 2012 FC 499 , [2013] 4 FCR 647 . Manuge was a class action suit brought on behalf of members and former members of the Canadian Forces against the Crown.

The court in Manuge was called upon to determine the legality of the Crown's policy of reducing long term disability benefits payable to disabled members under its insurance plan. In that case, and for that purpose, the Federal Court characterized the VAC benefits as not being a form of income replacement and accordingly the reduction by the Crown was not contractually justified. 6 The decisions that exclude a payor's VAC benefits as income for support purposes rest on that characterization, namely that the purpose of VAC benefits is not income replacement.

See Storey v Simmons , 2013 ABQB 168 , 559 AR 42 ; AVR v MJA , 2016 SKQB 272 ; Wells v Campbell , 2015 BCSC 3 ; LF v CGC , 2014 BCSC 1069 ; ALP v ELG , 2016 BCSC 2180 . 7 A different approach was taken by the only appellate court to have determined the issue. In Vaughan v Vaughan , 2014 NBCA 6 , 415 NBR (2d) 286 , the New Brunswick Court of Appeal considered the context in which Manuge was decided and found that it was not determinative of whether it was appropriate to include VAC benefits in income for the purpose of spousal or child support under the Divorce Act , RSC 1985, c 3 (2nd Supp ).

The court preferred the analysis in Darlington v Moore , 2013 NSSC 103 , [2013] NSJ No. 205 which concluded that the objectives of the Divorce Act , and the requirement to consider the "condition, means, needs or other circumstances", required the court to take a broader view of what ought to be included in income for the purposes of support. 8 In Darlington , the court concluded that the objectives of the Divorce Act and the Maintenance and Custody Act , RSNS 1989, c 160 directed that income for child support and spousal

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