K.N.M. Applicant, - v. -, 2022 NBKB 197

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MIRAMICHI K.N.M. v. J.L.W. 2022 NBKB 197 FDN-127-2021 BETWEEN: K.N.M. Applicant, - and - J.L.W. Respondent. DECISION BEFORE: The Honourable Chief Justice Tracey DeWare AT: Miramichi, N.B. DATE OF HEARING: September 15 and 16, 2022 and October 12, 2022 DATE OF DECISION: October 18, 2022 APPEARANCES: Daniel Jardine, on behalf of the Applicant, K.N.M. Joshua Adams, on behalf of the Respondent, J.L.W.

DeWare, C.J., INTRODUCTION [ 1 ] This matter involves the consideration of what is the appropriate parenting arrangements for a little boy, J.M.W., born on […], 2019. The Applicant, K.N.M., asked that she be granted the primary parenting time with the child as well as sole decision-making authority. The Respondent, J.L.W., requests that this Court maintain the parenting arrangements set out in an interim order of November 2021. The Respondent asked this Court that the parties maintain joint decision-making ability for the child.

Facts [ 2 ] The parties began a relationship in the spring of 2015 and moved in together in a home purchased by the Applicant in March 2018. The sole child of the parties’ relationship, J.M.W., arrived in […] 2019. The parties’ relationship ended in November 2019, soon after J.M.W.’s birth, when the Respondent revealed he had been unfaithful. The parties continued to live together until September of 2020 and initially tried to work on the relationship. [ 3 ] The Applicant is a registered dietitian and has worked in this field since 2014.

The Applicant currently maintains two positions as a dietitian, one with the Extra-Mural Hospital of New Brunswick and one with Shannex, a senior’s living centre. The Applicant owns her own home which she purchased in October 2021. [ 4 ] When the parties began their relationship, the Respondent was living with his parents on the Eel Ground First Nation. The Respondent was employed full-time as an Aboriginal Liaison Officer at the federal prison in Renous, New Brunswick. In addition to his full-time employment at the prison, the Respondent was running a jiatsu gym which took a significant amount of his time.

During the time the Respondent was running his gym, the Applicant assisted him both financially and by conducting classes at the gym and providing dietitian services. The Respondent operated the gym for four to five years before it was closed, shortly before J.M.W.’s birth. [ 5 ] Prior to J.M.W.’s birth, the Respondent had been on sick leave from his employment for several months. The Respondent had been taking anti-depressant medication and anti-anxiety medication while working at the prison.

According to the Applicant, the Respondent decided to stop taking this medication and began smoking increasing amounts of marijuana to assist with his anxiety. When J.M.W. was born, the Respondent had closed his gym and decided not to return to his employment at the prison. The Respondent has continued to struggle with his mental health following J.M.W.’s birth and up to the present time.

[ 6 ] Following J.M.W.’s birth, the parties continued to live together in the Applicant’s home. The relationship was very strained due to the Respondent’s infidelity, his inability to return to work and increasing use of marijuana to self-medicate. The Applicant felt as if she was doing everything in the home despite the fact that the Respondent was home full-time.

As the Respondent would not smoke marijuana in the home around J.M.W., he spent long periods of time out in the garage by himself where he could smoke without harming the baby. [ 7 ] The Applicant took six months maternity leave following J.M.W.’s birth. The parties continued to live together in the same home until J.M.W. was ten months old. During the ten months following J.M.W.’s birth, the Respondent was not contributing to any of the costs required to maintain the home or to care for J.M.W. In September 2020, the Applicant found the situation living with the Respondent to be intolerable.

She explained that he made her uncomfortable. He was not contributing to any of the expenses for the household or the child, he was not returning to work and didn’t seem capable of coping with any of their issues. The Applicant was frightened by the Respondent’s emotional outbursts and unpredictable behaviour. [ 8 ] Once the Respondent moved out of the Applicant’s home, he returned to live with his parents. A couple of incidents occurred during the late summer and fall of 2020 which made the Applicant extremely uncomfortable.

The Applicant was of the view that the Respondent did not appreciate the fact that the relationship was totally over. The Applicant explained that the Respondent’s emotions were volatile, and she did not know what to expect from his behaviour at any given time. The Respondent’s mother, S.W., encouraged him to start taking his medications again, and she contacted his psychiatrist to make appointments for him.

S.W. also appears to have been the one to seek out mental health counselling for the Respondent in 2020 as his relationship with the Applicant unraveled. [ 9 ] The Respondent’s parents are both employed as educators for the school district and other community groups within their First Nations community. The Respondent’s parents own their own mini home where he now resides with them. When J.M.W. is in the care of the Respondent, he shares a bedroom with the Respondent. J.M.W.’s paternal grandparents are very involved in his upbringing and care while he is with the Respondent.

The Respondent’s mother, S.W., testified at trial and confirmed her commitment to assisting the Respondent in the upbringing of J.M.W. S.W. explained the various cultural events she would like to expose J.M.W. to so he grows up familiar and immersed in his First Nations culture. [ 10 ] The Respondent has been unable to maintain employment in any of the jobs he has tried since leaving Correctional Services of Canada. The Respondent had been earning $80,000 a year while employed at the prison. The Respondent is currently receiving $285 biweekly in assistance from the Eel Ground First Nation.

The Respondent’s parents are largely responsible for the payment of his bills at this time. The Respondent is financially dependent on his parents. [ 11 ] When the Applicant first returned to work, in approximately April 2020, the Respondent would care for J.M.W. three days a week. This routine continued until September 2021. In September 2021, the Applicant wanted J.M.W. in daycare so that she knew she would have a consistent access to daycare and that J.M.W. would be socializing with other children. [ 12 ] The placement of J.M.W. with third-party caregivers has been a significant problem for the Respondent.

J.M.W.’s first caregiver was a private babysitter who cared for children in her home. The Respondent was not satisfied with this arrangement and was insistent that the babysitter be licensed although he admitted at trial, he had no idea what the licensing requirements may be for in-home childcare services. The Respondent conceded that even though he does not have any information that a license is required, nor did he look into licensing requirements, he was still upset about the fact that this particular caregiver did not have a license.

It is telling that the Applicant asked the Respondent to go with her when she met with the caregiver in order to discuss her caring for J.M.W. While the Respondent attended, he only remained in the home for five minutes and then waited for the Applicant in the vehicle. At the time of the meeting, the Respondent had no questions for the caregiver. [ 13 ] At J.M.W.’s first daycare, although invited to attend, the Respondent did not actively participate in discussions with the caregiver about J.M.W. or her services. Thereafter, the Respondent sent the caregiver emails which she found distressing.

The Respondent raised issues about the caregiver’s lack of a license although had no idea what license might be necessary. Eventually, the caregiver advised she could no longer care for J.M.W. because she was afraid of the Respondent. Significantly, J.M.W. did well with this caregiver and had easily adapted to his new routine. The Applicant then began searching for another daycare for J.M.W. [ 14 ] The next daycare the Applicant enrolled J.M.W. in was called Just Kids.

The Respondent was unhappy that the Applicant enrolled the child in Just Kids before he had had an opportunity to attend the centre or to understand the procedures of the daycare. The Respondent sent concerning emails to the daycare which escalated to the point that the daycare would no longer continue caring for J.M.W. At Just Kids, J.M.W. did receive some bites from other children which was very upsetting to the Respondent.

The Respondent was not pleased with the information provided by the daycare centre and filed complaints with the Human Rights Commission and Social Development. [ 15 ] Just Kids had agreed to provide the Respondent with weekly updates on J.M.W.’s activities. On November 1, 2021, the daycare worker sent the Respondent a lengthy email outlining all of J.M.W.’s activities at the daycare the previous week. Unfortunately, this email was sent to an incorrect email address, and it did not reach the Respondent.

When the Respondent did not receive the weekly update, he sent the following email correspondence to the daycare and copied other people including the Applicant’s lawyer, social workers and individuals from the Eel Ground First Nation including the Chief: “in my eyes Just Kids has failed [J.] and myself multiple times. You neglected preventing further incidents from happening. Just Kids has also failed to send me the weekly progression update they told me I would receive. There is no room for excuse for harm due to neglect when it comes to a child.

You meet all minimums to open a certified Centre but with that you are not capable of caring for my son. I would like to see recent incidents of Caucasian children and how you communicate with their parents on progression reports. Would your records only show the only child and father having these issues are Mi’kmaq. We are different so we get less care and are less important to communicate information to. I would like this issue looked into for clarification. Please direct me to where I can make an official complaint not only accusations of discrimination as a form of blackmail. I truly feel this way.”

[ 16 ] When the daycare responded and explained that the email with the progress reports had been sent on November 1 but that it went to the wrong address, the Respondent replied as follows: “Thank you for the update Sherry, it is too little too late. This issue is beyond your late update. It is about neglect and discrimination towards [J.] and myself.” [ 17 ] Just Kids Daycare advised the Applicant they could no longer care for J.M.W. given the Respondent’s behaviour and his complaints to Social Development and the Human Rights Commission.

Again, the Applicant was left scrambling for childcare as a result of the Respondent’s actions. The Applicant next found a spot for J.M.W. at Little Critters Daycare. However, prior to J.M.W. starting at Little Critters, the Respondent left a voicemail message on the daycare’s phone which was of such concern to the daycare operators that they advised the Applicant they were unable to have J.M.W. at their centre. As the Applicant did not have childcare for J.M.W. at this point, she had no choice but to stop working and was on employment insurance benefits until she was able to secure a new daycare spot.

The Applicant was off of work from November 2021 to February 2022. In February 2022, the Applicant had found an in-home caregiver, but this individual was unable to care for J.M.W. for very long. The Applicant’s parents came to assist in the care of J.M.W. until she was able to secure a new daycare spot for him at the Peekaboo Childcare Centre in April 2022. [ 18 ] The Respondent has had issues with the staff at Peekaboo Daycare Centre and emailed them to advise he would be filing a complaint as he was concerned there were problems with mould in the walls of the daycare.

The Respondent sent an email to the daycare asking for information given his concerns about the air circulation in the building. In this email, the Respondent indicated that he felt he was not being heard and this was hurtful in that he had not received communication from the daycare. The daycare responded that their inspector was away on vacation, and there was no new news to report on. Also, the daycare director indicated in her email that the Respondent’s suggestion that discrimination was taking place were unfounded and that her own children were First Nations.

In response to this, the Respondent emailed the following: “Thank you for letting that your inspector is away and that no other kids are experiencing any symptoms. I appreciate that part. I am truly in your children’s indigenous heritage as in a true direct blood lineage. To me that is a serious claim to make and super offensive if you cannot prove it after them as such a bold defensive.” [ 19 ] The Applicant was advised by the Director of Peekaboo of the Respondent’s inappropriate behaviour and requested an urgent conference call with the court.

Following a court appearance before Justice Ferguson, a consent order was signed in December 2021 confirming that the Applicant had sole decision-making authority over the issue of childcare. The Applicant has been solely responsible for all daycare costs. The Respondent does not contribute to any of J.M.W.’s expenses, including daycare. [ 20 ] In November 2021, the parties entered into a consent order setting out an arrangement for parenting time. Pursuant to this order J.M.W. spends four nights with the Applicant followed by two nights with the Respondent.

This order followed the Applicant’s filing of a motion when the Respondent would not return J.M.W. following a visit. POSITIONS OF THE PARTIES [ 21 ] The Applicant maintains that the current parenting

schedule is not in J.M.W.’s best interests. The Applicant suggests that the Respondent is living with his parents, he is not working, he is not providing any financial assistance for J.MW., and he does not provide any structure for J.M.W. while in his care. The Applicant suggests that the parties are unable to co-parent J.M.W. and are unable to make decisions together. The Applicant points to the significant difficulties encountered with all of J.M.W.’s caregivers to date.

The Applicant finds it extremely difficult to manage the Respondent’s behaviours with other individuals involved with J.M.W. given his tendency to find discrimination in the activities of everyone despite the lack of foundation for these beliefs. The Applicant further worries about the Respondent’s ability to care for J.M.W. given his emotional instability and the unpredictable nature of his behaviour. The Applicant understands the importance of the Respondent’s presence in the life of J.M.W.

The Applicant wishes to promote the relationship between J.M.W. and his father while also ensuring that J.M.W. is involved and can appreciate his Indigenous heritage. However, the Applicant maintains that it is in the child’s best interests that he spend the majority of the time in her care where she can provide the necessary structure and routine for J.M.W. to thrive. The Applicant worries that the Respondent relies on J.M.W. to fulfil his own needs as opposed to a father providing for the needs of his son. [ 22 ] The Respondent suggests that the current parenting arrangement is working well and should continue.

The Respondent concedes that he is not in a position financially to care for J.M.W. more than the current

schedule provides. The Respondent hopes to find employment and secure his own housing. The Respondent explained that one of his biggest concerns is that he frequently feels he is not heard. For this reason, the Respondent maintains it is essential that the parties retain joint decision-making ability. The Respondent concedes that he has not always managed communications well with J.M.W.’s caregivers. The Respondent suggests he has learned from this and will do better in the future. ISSUES [ 23 ] The issues for the Court to resolve in this matter are as follows:

i) What is the parenting arrangement which best responds to the needs of the child, J.M.W.? and ii) Should the parties be granted joint decision-making responsibility for J.M.W. pursuant to

section 52 of the Family Law Act, S.N.B., 2020 c-23 ?

LAW AND ANALYSIS [ 24 ] In matters involving the parenting arrangements for a child, the Court’s only consideration is the best interests of that child, not the parents nor any other interested parties. In determining what parenting arrangement does respond to the needs of the child, the Court is guided by section 50(2) of the Family Law Act which states as follows: 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. [ 25 ] The criteria set out in the Family Law Act provides an excellent guideline for the Court’s analysis of the best interest of J.MW. The Court shall consider the pertinent factors to this case under each of the criteria enumerated in Section 50(2) of the Act . The Child’s Heritage including First Nations Upbringing and Heritage [ 26 ] The Respondent and his parents reside on the Eel Ground First Nation.

The Respondent and his family are proud of their First Nations heritage and enjoy the practice of many of their cultural beliefs, traditions and rituals. The Respondent’s mother, S.W., testified as to the many rich cultural opportunities that are available within their community and which she hopes to expose J.M.W. as he grows up. The Applicant appears to fully appreciate the importance of J.M.W.’s indigenous culture to his growth and development.

I accept without reservation the Applicant’s evidence that she will nurture and encourage J.M.W.’s participation in cultural activities with the Respondent, the Respondent’s family and the larger community of Eel Ground First Nation. In my view, J.M.W.’s ability to meaningfully participate in his indigenous heritage can be maintained even if the majority of the parenting time is granted to the Applicant.

The Child’s Needs including the Need for Stability [ 27 ] The Applicant is gainfully employed, owns her own home, and provides for all of J.M.W.’s financial needs. However, more important than the economic factors is the fact that the Applicant is the parent that has taken care of J.M.W.’s needs in terms of stability, structure and routine since his birth. The Applicant has secured childcare services for J.M.W. that ensures he is well cared for and is able to socialize with other children.

The Applicant wishes to provide J.M.W. with a predictable routine which will allow him to grow and meet all of his milestones. The Applicant has always recognized the importance of the Respondent and his family to J.M.W. and supported J.M.W.’s time with his father and paternal relatives. The Applicant understands that J.M.W.’s sense of security requires an ability to spend time with both of his parents. [ 28 ] The Respondent loves J.M.W. dearly, of that there is no doubt.

However, the Respondent does not appear to recognize his obligations to provide for his child both in terms of financial support nor by providing organized structure to J.M.W.’s day. The Respondent appears to be content to reside with his parents and to have his parents look after the majority of his financial obligations. The Respondent further does not appear to recognize his responsibility as a parent to support the Applicant in her efforts to provide structure and routine for the child.

The Respondent’s concerted efforts to impede J.M.W.’s ability to be registered in daycare were in no way in the best interests of the child. The Respondent does not appear to understand the importance of stability in a young child’s life. The nature of the child’s relationship with each parent and/or grandparents [ 29 ] J.M.W. appears to enjoy an excellent relationship with both of his parents. Neither party suggested during the course of the trial that J.M.W. was not bonded with and enjoyed his time with each of his parents.

It is evident that these two parents love this little boy dearly and both enjoy their time with him tremendously. Further, J.M.W. is very fortunate to enjoy meaningful relationships with all of his grandparents. The Applicant’s parents have frequently travelled to Miramichi to care for J.M.W. while the Applicant was working. The Respondent’s parents are involved with J.M.W. on a daily basis when he is in the Respondent’s care.

J.M.W.’s paternal grandparents have a particularly important role to play in ensuring that J.M.W. is exposed and participates meaningfully in his indigenous culture. [ 30 ] J.M.W.’s relationships with all his parents and grandparents are positive and need to be supported, encouraged, and maintained. However, there is an aspect of the Respondent’s relationship with J.M.W. that is concerning. While the Respondent clearly loves his son, he does appear to use J.M.W. as a crutch for his own emotional needs. The Respondent affectionately refers to J.M.W. as his “little buddy” or his “best friend” .

This is understandable and typically would not be of any concern. However, the Respondent is grappling with significant mental health issues that appear to have a major impact on his emotional functioning. The Respondent relies upon J.M.W. for companionship and emotional support. This is not a typical father/son relationship and may become increasingly confusing for J.M.W. as he gets older and could begin to feel the burden of caring for his father’s emotional needs.

It is not the responsibility of the child to fill an emotional void experienced by a parent, even when that that parent’s mental or emotional struggles are real. One can only sympathize with the Respondent’s difficult journey to gain control of his mental and emotional well-being. The Respondent needs to be supported in his healing process by his friends and family. However, J.M.W. cannot be a part of that support team at the tender age of three.

Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent [ 31 ] The Applicant has demonstrated a willingness to work with the Respondent in the parenting of J.M.W. While at times it may appear that the Applicant does not communicate certain issues to the Respondent, this can be understood given the very difficult nature of communication between these parties. The Applicant has tried to establish a respectful relationship with the Respondent which focuses on the needs and well-being of the child. The same cannot be said for the Respondent.

The Respondent does not appear able to recognize the needs of J.M.W. over his own preoccupations and at times paranoia. The Respondent sees discrimination and barriers in all his relationships including with the Applicant. This renders the Respondent’s ability to recognize the importance of the Applicant in J.M.W.’s life significantly impaired. [ 32 ] The Applicant has never kept J.M.W. from the Respondent and has always continued to maintain the relationship between the child and his father even when situations between the parties were extremely tense.

The Respondent has at times chosen to keep J.M.W. and not return him to the Applicant as planned. This resulted in the filing of an emergency motion in the fall of 2021. Keeping J.M.W. from the Applicant was clearly not in this child’s best interests. The Respondent does not appear capable of setting his own thoughts or agenda aside to assess what is necessary to ensure the needs of J.M.W. are met. The History of Care of the Child [ 33 ] Both parents have been involved in the care of J.M.W. since his birth.

I accept the Applicant’s evidence that during her maternity leave and for the first ten months of the child’s life while she was nursing, she was the parent who primarily responded to J.M.W.’s needs. However, when the Applicant returned to work in April 2020, the Respondent cared for the child for at least three days a week on his own between the time of 7:30 a.m. and 4:30 p.m. In her testimony, the Applicant indicated that : “well he kept him alive”. In my view, the Respondent did care for the child during this period between April 2020 and August 2021. The Applicant is a caring and conscientious mother.

When she lost all access to daycare as a result of the Respondent’s actions in late 2021, she took time off of work in order to care for the child. I do not believe the Applicant would have left J.M.W. in the Respondent’s care during the April 2020 to August 2021 were she not satisfied that he could care for the child’s needs. However, J.M.W. remained very young at this point. Further, I accept the Applicant’s evidence that she remained the parent that did all the organization for the child including preparing his food, organizing his clothes and having everything ready for the Respondent.

There is no doubt, the Applicant has at all times been the logistical parent who is solely responsible for ensuring J.M.W. has whatever he needs regardless of what parent is caring for him. [ 34 ] Since the interim order of November 2021, J.M.W. has rotated between his parents on a 4-2 schedule. The Respondent would like to see this

schedule continue. The Respondent is not seeking additional time with J.M.W. The Applicant is of the view that the current arrangement is disruptive to J.M.W. and impedes her ability to put in place a structured routine for the child. The Applicant suggests that it takes several days upon J.M.W.’s return from his father for him to resume his usual routine. The Applicant is very

concerned that the current arrangement is not sustainable especially when J.M.W. starts school. [ 35 ] It must be acknowledged that the Respondent’s parents, in particular S.W., are very involved in J.M.W.’s care when he is with his father. While this in itself is not problematic, certainly J.M.W.’s exposure to his paternal grandparents is positive, the ability for the Respondent to adequately care for J.M.W. on his own is questionable. It was telling that S.W. organizes her work

schedule to be home when J.M.W. is with the Respondent. The Respondent remains extremely dependent upon his parents. The Respondent is dependent on his parents financially and for the assistance of many tasks such as completing income tax returns or making doctor’s appointments. S.W. continues to provide extensive assistance to the Respondent in all facets of his life despite his age. The court is uncertain that the Respondent could appreciate and meet the needs of his son when he is struggling to care for himself. The Child’s Views and Preferences [ 36 ] J.M.W. is too young to express his views and preferences.

However, I note the evidence of the Applicant that J.M.W. is always happy to see his father and runs to greet him. Further, J.M.W. seems reluctant to leave his father at the end of visits. Likewise, J.M.W. is clearly closely bonded to the Applicant and enjoys a loving relationship with her. The evidence leads me to conclude that this child loves both of his parents and enjoys spending time with both of his parents. Any Plans for the Child’s Care [ 37 ] The Applicant plans to keep J.M.W. enrolled full-time at the Peekaboo Daycare, so she can work.

J.M.W. took some time to adjust to his new daycare and now enjoys his time there. The Applicant wishes to avoid any further disruption in J.M.W.’s routine. The Applicant intends to enroll J.M.W. in a school that is approximately two minutes from her home. The Applicant hopes to care for J.M.W. most of the time with the Respondent having access on a defined schedule. [ 38 ] The Respondent would like to continue with the current schedule. The Respondent would like to explore the possibility of J.M.W. attending school and daycare on the Eel Ground First Nation.

The Respondent hopes to secure employment as well as his own housing soon. The Respondent is unsure how he will be in a position to find housing given his financial situation. The Ability and Willingness of each Parent to Care for and Meet the Needs of the Child [ 39 ] It is this criterion which gives the Court the greatest pause. The evidence led at trial leads me to conclude that the extent of the Respondent’s current mental health challenges and emotional distress preclude his ability to properly care for and meet the needs of J.M.W.

There is no question that the Respondent is willing and wants to parent J.M.W. I have no doubts whatsoever about the Respondent’s sincerity in this regard. However, the Respondent appears to lack any insight as to the inappropriate nature of some of his behaviors nor how such behavior can negatively impact J.M.W. The Respondent has been going through a very difficult time since just prior to J.M.W.’s birth. The Respondent faced a series of personal crisis that came to a head in the weeks leading up to J.M.W.’s arrival.

The Respondent was facing a very difficult situation in his workplace and felt unable to continue to work in the prison setting. At the same time, the Respondent was dealing with incidents of sexual abuse as a child that he had not previously disclosed. These very significant life events occurred shortly prior to J.M.W.’s arrival. [ 40 ] Shortly after J.M.W.’s arrival, the Respondent revealed his infidelity to the Applicant and their relationship essentially came to an end. Understandably, all these factors have led the Respondent down a path of significant mental and emotional turmoil.

While the Respondent is now addressing these unfortunate traumatic events, as well as his ongoing mental health issues, his healing is far from complete. The Respondent suggests that he is suffering from PTSD. The Respondent appears to exhibit signs of paranoia in his interactions. The Respondent’s difficulties with his mental health over the course of the last few years are very unfortunate, and he is clearly suffering a great deal. The Respondent was frequently extremely emotional and crying during the trial. The Respondent’s emotional state was observed to visibly change quickly.

The Respondent’s problems are real as is his need for help. Unfortunately, in this case it is the needs of J.M.W. that are the Court’s paramount concern, not the needs of the Respondent. [ 41 ] The Respondent conceded at trial that he often makes mistakes in his communications with others. He volunteered that even the Band was upset with the manner he had communicated a particular concern. Such difficulties in communication are clear in his messages to the Applicant as well as with the various daycare providers. The Respondent is quick to assume situations which do not exist in fact.

The Respondent acknowledges that he reacts to situations based on his feelings and not on facts or evidence that something has occurred. This style of communication leads to quick accusations which immediately put the individual at the other end of the message in a defensive mode. The Respondent is easily “hurt” by the actions or comments by others that he perceives as either discriminatory or when he perceives others are “not hearing him”.

The difficulty with the Respondent’s approach is that these impressions result from his assumptions and are not related to the actions or comments of other people, this is simply the Respondent’s perception. It is therefore difficult to know how to effectively deal with the Respondent as his perception of situations governs his actions regardless of what is actually happening. Family Violence [ 42 ] The Applicant set out various incidents which occurred that in her view amount to domestic violence. All these incidents occurred when the Respondent was very emotional and upset about what was happening around him.

This is no excuse for his behaviour, but there appears to be a clear link to displays of threatening behaviour and the Respondent’s emotional instability. These incidents occurred in the late summer of 2021 and fall of 2021 and do not appear to have been repeated. In my view, domestic violence is not significant concern in this case.

However, the Applicant’s fear and apprehension over the unpredictable nature of the Respondent’s behaviour is understandable. [ 43 ] The Respondent in this case is asking that the terms of the interim order remain in place which sees J.M.W. spending four nights with the Applicant followed by two nights with the Respondent. This has been the

schedule since November 2021. The consideration of the “status quo” as established by an interim order was considered by Justice Tuck in A.D.E. v. M.J.M. , [2012] N.B.J. No. 309 at

paragraphs 184 to 187 where he stated: 184 Often status quo has a degree of relevance to the court that may not be afforded the same deference after a Court has thefull benefit of a trial. I note the following K.M. v. S.M. [2011] N.B.J. No. 501 in relation to status quo. 185 Courts have long recognized the potential importance of a status quo situation. See G.H. v. J. L. (1996), (NBCA), 177 N.B.R. (2d) 184. 186 The importance of this bond should not be overstated. The sole criterion is the best interests of the child.

There may always beother factors impacting the best interest of a child that may lead to the conclusion that despite strong bonds flowing from a status quosituation custody should be changed but certainly the bond is important. See C.T. v. W.J. [2001] S.J No. 753 2001. 187 For clarity I state that it is always borne in mind that status quo in and of itself is not inherently possessed of any persuasivepower.

However on a motion evidence of status quo may be more persuasive than it may be after a full trial once there has beenthe opportunity of a full and complete presentation of the evidence in relation to factors impacting the best interests of the child. The power has and remains in the concept of the best interest of the child.

However we are able to view the results of the status quo asit impacts the best interest of the child. [Emphasis Mine] [44] The interim consent order was entered into by the parties in the fall of 2021 when things were particularly difficult and theparties, in particular the Applicant, was seeking stability in the arrangements for J.M.W. Following a three-day trial in this matter, I amnot satisfied that the interim order, which does represent a status quo for J.M.W. for the past 11 months, is in his best interests.

In myview, the Applicant must have most of the parenting time with J.M.W. given the Court’s concerns with the Respondent’s ability toadequately care for J.M.W.’s needs on a consistent basis. The desire to maintain the predictability in the routine for J.M.W. bycontinuing the interim order is trumped in this case by the need to ensure J.M.W. is in the care of the Applicant the majority of the time. [45] In this matter, I am of the view that J.M.W.’s best interests are served by awarding the Applicant the majority of parenting timeand granting specific parenting time to the Respondent.

J.M.W. loves the Respondent and enjoys his time with the Respondent and hispaternal grandparents. These are important relationships for J.M.W. which must be encouraged, supported and maintained. However, theRespondent is currently struggling to care for himself and remains largely dependent on his parents. The Respondent cannot be reliedupon to recognize J.M.W.’s various developmental needs nor his requirement for structure. The Respondent is simply not in a positionemotionally to provide adequate care for this child for prolonged periods of time.

Further, I remain gravely concerned of theRespondent’s inability to recognize how his behaviors negatively impact his son. The fact that J.M.W. went through four daycares in avery short period is not easy on a young child, and the Respondent cannot recognize how his actions could affect J.M.W. All theRespondent can see is how a situation affects him and the resulting need to address his “hurt feelings” without any consideration as tothe impact or the “hurt” his actions may cause to J.M.W.

A parent that cannot put the needs of a child over their own needs is a parentthat runs a high risk of neglecting the child’s needs even if it is not intentional. [46] The Respondent identifies J.M.W. as his “buddy” or his “best friend”, and that is indicative of a loving relationship. TheRespondent enjoys his time with J.M.W., and the child enjoys his time with his father. However, the Respondent does not appear toappreciate his role as a parent, nor does he differentiate his responsibilities as a parent from that of a friend.

Until the Respondent is ableto care for himself and be in a position to put J.M.W.’s needs first, his time with J.M.W. will be limited to that of a trusted friend andloving companion. The relationship between J.M.W. and the Respondent is positive, but it is more akin to a relationship between a bigbrother and a little brother. The Respondent enjoys his time with J.M.W. but the actual parenting is done by others.

This will becomeincreasingly problematic as J.M.W. gets older and his needs become more complex. [47] For all the aforementioned reasons, the Applicant shall have the majority of the parenting time with J.M.W., and the Applicantshall maintain the primary residence for J.M.W. The Respondent shall have the following parenting times with J.M.W.:

i) Commencing on Friday October 21st, 2022, the Respondent shall have J.M.W. in his care every second weekend from 5:00 onFriday until 5:00 on Sunday, and in the event the weekend falls on a long weekend until 5:00 on Monday; ii) The Respondent shall have J.M.W. in his care on each Father’s Day from 10:00 am until 5:00pm if the day falls on a weekendthat J.M.W. is with the Applicant; iii) The Respondent shall have J.M.W. in his care for a minimum of 3 hours on each of J.M.W.’s birthday and the Respondent’sbirthday; iv) The Respondent shall have J.M.W. in his care during the Christmas Holiday in even years from noon on December 24th until noon on December 25th and in uneven years from noon on December 25th until noon on December 26th;

v) Until J.M.W. starts school, the Respondent shall have J.M.W. in his care during the Christmas holiday from December 30th until

January 1st at noon; vi) Once J.M.W. starts school, in addition to the regular Christmas

schedule set out herein, J.M.W. shall be in the care of theRespondent for an additional 5 nights during his school holiday. The nights are to be agreed upon between the parties no later than November 15th of each year; vii) During years that J.M.W. is not with the Respondent on Easter Weekend, in addition to his regular weekend access schedule,J.M.W. shall be with the Respondent from Easter Sunday at noon until Easter Monday at 5:00 pm; viii) The Respondent shall have one full week with J.M.W. during the month of July each year and one full week with J.M.W. duringthe month of August.

The Respondent shall advise the Applicant of the two weeks he wishes to have J.M.W. during the summer no later than May 15th of each year. In the event that the Respondent has not chosen his weeks as of May 15th, the Applicant may choose theweeks for the Respondent’s summer access in July and August for that year; ix) On 48 hours notice to the Applicant and if the Applicant and J.M.W. are not away or otherwise engaged in a prescheduled activity,the Respondent may have J.M.W. for parenting time in order to attend cultural events on the Eel Ground First Nation or other FirstNations communities within New Brunswick.

The Respondent shall advise the Applicant as soon as possible as to the event and thetimes that he will need to have J.M.W. in order for J.M.W. to participate;

x) Any other access as agreed upon by the parties; xi) The Applicant shall continue to look after the transportation of J.M.W. to and from his parenting time with the Respondent; and xii) The Applicant may withhold any access as set out in this decision and resulting order if in her opinion the Respondent is unable tocare for J.M.W. because of his emotional state or mental health status.

Primary decision-making [48] The Applicant requests sole decision-making authority for J.M.W given the difficulties working with the Respondent and thechallenges the Respondent has faced dealing with third parties involved with J.M.W. In A.N.H v. M.K.C., 2010 NBQB 120 , thelate Justice Walsh of this court spoke of the concept of final decision-making authority commenting at paragraphs 65 to 68 as follows: 65 The sine quo non of “joint custody” is the granting of shared decision making responsibility to both parents. As stated in T.(T.E.) v L. (J.D.) [2003 SKQB 517] (Sask Q.B.); affirmed [2004 SKCA 75] (Sask.

C.A.): “Joint custody” means an arrangementwhereby the parents share responsibility in making major decisions concerning their child’s welfare, be it the welfare of a long or shortterm nature. Whether the child resides only with one parent or spends an equal amount of time with each parent is of secondaryimportance to the arrangement. 66 An award of “joint custody” can also include the right of one parent to have final decision making authority, most often givento the parent who has day to day care of the child (See: Lamont-Daneault v. Daneault [2003 MBCA 111] (Man.

C.A.)). 67 However, the weight of authorities is that “joint custody” or “shared custody” is not appropriate in circumstances where partiescannot co-operate and communicate effectively (See: Young v. Young (SCC), [1993] 4 S.C.R. 3 at para. 44; Giri v.Wentges 2009 ONCA 606 at para. 10; Roy v. Roy (ON CA), [2006] 27 R.F.L. (6th) 44 (Ont. C.A.) at para. 4; P.B.v. C.B. 2010 NBQB 77 , 2010 NBQB 077 at para. 37; Weidenfeld v. Weidenfeld (1995) (NB QB), 158N.B.R. (2d) 321 (Q.B.); Simmchen v.

Potter (1991) (NB QB), 119 N.B.R. (2d) 325 (Q.B)). 68 As expressed in T. (T.E.): It is well established that the ability of the parents to communicate in a reasonable and dispassionate manner regarding the welfare oftheir child is a fundamental requirement for a joint custody arrangement. In the absence of such ability, a joint custody arrangementshould not be entertained by the Court. [49] In my view, at this time, the Respondent is unable to communicate effectively with the Applicant nor with other individualsinvolved in J.M.W.’s life such as the day care directors.

J.M.W. is still very young, and his circle is therefore quite small. However, ashe grows and his activities begin to extend beyond that of daycare and his families the opportunity for conflict will also grow. It isinconceivable to me that the Respondent could effectively communicate with individuals interacting with his son be they personnel at thedaycare, perhaps coaches at soccer or other little league sports and eventually school. With the exception of his mother, S.W., it appears

at this point that all of the Respondent’s relationships or even connections to people he encounters run into trouble given the Respondent’s perception of persecution or discrimination. While I believe the Respondent is sincere in his beliefs, they are not founded in fact, and they lead to great turmoil for everyone who must interact with him. This drama or chaos cannot be inflicted upon J.M.W.. The Applicant must be granted sole decision-making authority for J.M.W. given the Respondent’s current challenges and inability to communicate with others effectively.

COSTS [ 50 ] The Applicant has been successful on this matter and is entitled to costs. The Applicant has been put to considerable expense both in filing the interim motions and attending the trial. The need for interim motions arose first following the Respondent’s refusal to return the child to the Applicant and secondly, following the Respondent’s complaints voiced against the Peekaboo Daycare. The Respondent has, in my view, been the party responsible for these legal proceedings.

While the Respondent has been granted the assistance of Legal Aid for the payment of his solicitor’s fees, the Applicant does not have access to such support. Despite the nature of these proceedings and the Respondent’s limited financial resources, it is appropriate to award costs in this case. At some point, the Respondent must recognize that there are consequences to his actions. Costs are awarded in the amount of $1,500.00. It should be noted that costs would be much higher were it not for the Respondent’s limited means.

CONCLUSION AND DISPOSITION [ 51 ] For all the aforementioned reasons, the Court orders as follows:

i) Pursuant to section 52(2) of the Family Law Act , the Applicant is granted the majority of the parenting time of the child, J.M.W., born on […], 2019, and J.M.W.’s primary place of residence shall be with the Applicant; ii) Pursuant to Section 52(2) of the Family Law Act , the Respondent is granted the following parenting time with the child, J.M.W.: a. Commencing on Friday October 21 st , 2022, the Respondent shall have J.M.W. in his care every second weekend from 5:00 on Friday until 5:00 on Sunday and in the event the weekend falls on a long weekend until 5:00 on Monday; b.

The Respondent shall have J.M.W. in his care on each Father’s Day from 10:00 am until 5:00pm if the day falls on a weekend that J.M.W. is with the Applicant; c. The Respondent shall have J.M.W. in his care for a minimum of 3 hours of on each of J.M.W.’s birthday and the Respondent’s birthday; d. The Respondent shall have J.M.W. in his care during the Christmas Holiday in even years from noon on December 24 th until noon on December 25 th and in uneven years from noon on December 25 th until noon on December 26 th ; e.

Until J.M.W. starts school the Respondent shall have J.M.W. in his care during the Christmas holiday from December 30 th until January 1 st at noon; f. Once J.M.W. starts school, in addition to the regular Christmas

schedule set out herein, J.M.W. shall be in the care of the Respondent for an additional 5 nights during his school holiday. The nights are to be agreed upon between the parties no later than November 15 th of each year; g. During years that J.M.W. is not with the Respondent on Easter Weekend, in addition to his regular weekend access schedule, J.M.W. shall be with the Respondent from Easter Sunday at noon until Easter Monday at 5:00 pm; h. The Respondent shall have one full week with J.M.W. during the month of July each year and one full week with J.M.W. during the month of August.

The Respondent shall advise the Applicant of the two weeks he wishes to have J.M.W. during the summer no later than May 15 th of each year. In the event that the Respondent has not chosen his weeks as of May 15 th the Applicant may chose the weeks for the Respondent’s summer access in July and August for that year;

i) On 48 hours notice to the Applicant and if the Applicant and J.M.W. are not away or otherwise engaged in a prescheduled activity, the Respondent may have J.M.W. for parenting time in order to attend cultural events on the Eel Ground First Nation or other First Nations communities within New Brunswick. The Respondent shall advise the Applicant as soon as possible as to the event and the

times that he will need to have J.M.W. in order for J.M.W. to participate;

j) Any other access as agreed upon by the parties;

k) The Applicant shall continue to look after the transportation of J.M.W. to and from his parenting time with the Respondent; and

l) The Applicant may withhold any access as set out in this decision and resulting order if in her opinion the Respondent is unable to care for J.M.W. because of his emotional state or mental health status. iii) Pursuant to

Section 54 of the Family Law Act , the Applicant is granted sole decision-making responsibility of the child J.M.W.; iv) Pursuant to

Section 3 of the Federal Child Support Guidelines , there is currently no child support payable by the Respondent based on his approximate annual income of $7400.00;

v) The Respondent shall advise the Applicant as soon as he starts working and shall be required to pay child support pursuant to

section 3 the Federal Child Support Guidelines in the amount identified for his annual income and the Child support obligation shall commence on the 1 st day of the second month following the Respondent’s commencement of employment; and vi) The Respondent shall pay to the Applicant costs in the amount of $1,500.00. DATED at Moncton, N.B., this 18 th day of October 2022 _______________________________________ Tracey K. DeWare Chief Justice of the Court of King’s Bench of New Brunswick