A.Y. Applicant v. R.D., 2022 NBKB 181

2022 NBKB 181 COURT FILE: FDSJ 421-2020 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: A.Y. Applicant and R.D. Respondent Before: Mister Justice Danys R.X. Delaquis Date of hearing: September 6, 2022 Date of Decision: September 27, 2022 Appearances: David M. Lutz, K.C. - for the Applicant Erin M. Beam - for the Respondent

Summary: Decision making authority, parenting time, and child support arrears DECISION DELAQUIS, J.:

OVERVIEW [ 1 ] The Applicant Mother and Respondent Father separated on April 1, 2020, after a three and one half year co-habitation relationship. The Mother brings this Application seeking primary parenting time and decision-making authority with respect to their four year-old child O.J.D. (D.O.B. …, 2017), in addition to payment of child support arrears. She says that she cannot co-parent with the Father because it would be a constant battle on a daily basis. [ 2 ] The Father paints a different picture and is “surprised”, even “shocked” by some of the Mother’s allegations.

He thought that, in his view, “it was going fine”. [ 3 ] The parties do share certain moments where all seems good [see for example text messages in Exhibit 3]. In this case, these “good moments” don’t last and do not outweigh the significant and ongoing co-parenting challenges the parents face. However, equal co- parenting time and decision-making authority must be considered in the context of O.J.D.’s best interests. PROCEDURAL HISTORY [ 4 ] The Application was filed by the Mother on October 13, 2020. The Father filed his Answer on October 27, 2020.

The parties appeared for a First Appearance before the Master on January 7, 2021, after filing their respective Affidavits. The Master ordered in part as follows: 1. The parties shall have joint legal custody of [O.J.D.] born […, 2017] (hereinafter "[O.]") with the applicant having primary residential care and control. 2. The respondent shall have access with [ O.] as follows: a. For 4 weeks, commencing January 9, 2021, every Saturday from 12:00 p.m. (noon) until 5:00 pm; b. Then for 4 weeks, commencing February 6, 2021, every Saturday from 9:00 am until 5:00 pm; c.

After this 8 week period, the Respondent shall have access with [ O.] every Saturday from 9:00 a.m. to Sunday at 9:00 a . m. until such time as the parties agree on a revised access

schedule or further Order of the Court. 3. Should the respondent request a third-party supervisor be present during any of the access times, for the purpose of obtaining objective evidence on his parenting capabilities in response to the allegations made in the applicant's affidavit, he may do so. The parties shall share the cost associated with any third-party supervisor hired for the first two weeks that the respondent exercises access . Any notes prepared by the third- party supervisor shall be provided to both parties. 4.

The respondent shall continue to pay child support to the applicant in the temporarily agreed amount of $400.00 a month, with adjustment and arrears to be dealt with in future. Such payments shall be made through the Office of Support Enforcement commencing February 1, 2021 and continuing the first of each month thereafter. For January, 2021, $200 was outstanding at the date of this Case Conference. 5.

The respondent shall pay to the applicant $39.00 per month for his proportionate share of child care expenses. [ 5 ] The parties appeared at a Case Conference on April 19, 2021, before the Master, with counsel, who issued the following Interim Order:

1. The parties shall have joint decision making responsibility of [O.J.D. born …, 2017] (hereinafter referred to as "[O.]") with the applicant having primary parenting time. 2. The respondent shall have parenting time with [ O.] as follows: a. Every second weekend, from Thursday at daycare pick up to Sunday evening at 5:30 p.m.; Every Tuesday or Wednesday , as agreed upon between the parties , from at daycare pick up to 8:00 p.m.; b.

Should the respondent's parenting time with [O.] fall on a long weekend, the respondent shall have parenting time with [O.] from Thursday after daycare to Monday evening at 5:30 p.m.; c. One week of parenting time in July, which must coincide with the respondent's existing weekend as outlined in paragraph 2(

a) herein, and one week in August, which must coincide with the respondent's existing weekend as outlined in paragraph 2(

a) herein. The respondent will provide the applicant with two weeks' notice of when he will be taking [ O.] for this vacation time. 3. The respondent shall continue to pay child support to the applicant in the temporarily agreed amount of $400.00, pending documentation confirming the respondents 2021 income, with adjustment and arrears to be dealt with in the future. Such payments shall be made through the Office of Support Enforcement which commenced on February 1, 2021. 4.

The Respondent shall pay to the Applicant $39.00 per month for his proportionate share of child care expenses, pending the applicant providing documentation confirming a change in the daycare subsidy to the respondent [ 6 ] The parties unsuccessfully attempted to resolve the matter at a Settlement Conference. The matter was scheduled for a one-day trial. Only the Mother and Father testified at trial. No other witnesses were called by either party. FACTS [ 7 ] The Mother is 41 years old and works full-time. She is not involved in another relationship at the present time.

She is however the Mother of another child, D.A. (age 14) from a previous relationship. The Mother has been responsible for the day-to-day care of O.J.D. essentially since he was born. [ 8 ] The Father is 51 years old. He worked out west and in Nunavut but returned home on his off days. He testified to moving back to New Brunswick in December 2020 to be closer to O.J.D. The Father’s testimony was emotional at times on this, and other points. The Father has another son, C.D., from a prior relationship who is 10 years old.

The Father visits C.D. in Newfoundland as much as possible. [ 9 ] The Father’s income was substantially more when he worked out west as compared to his current income. He testified that he left his employment out west because he was laid off due to shortage of work, not because he was terminated. [ 10 ] The parties have essentially followed the parenting

schedule set out in the Master’s Order up to the time of trial. The Mother was asked to respond to the Father request for equal parenting time. She testified that equal parenting time is not possible. She explained that she is “bullied” by the Father, that it’s “always a fight” and it’s “his way or the highway”. She testified that she was not able to take a vacation last summer. [ 11 ] In addition, according to the Mother, the Father allegedly does not want to budge on rotating holidays. She wants to have each parent to have parenting time with O.J.D. on Christmas or Easter, and then reverse that

schedule the following year. [ 12 ] The Mother testified about Facebook posts which pertain to the Father being involved in an alleged “ridesharing” scenario involving O.J.D. (pages 152-162 of the Trial Record). The Facebook posts also make allegations that the Father was involved in luring a young women. The Father denies all allegations of “ridesharing” and luring anyone, especially with his son in the vehicle. He added that

the Mother “never said anything” to him about it. [ 13 ] On cross-examination, the Father was reminded that his own picture appears in the Facebook posts despite his denial. He responded by stating that “someone snapped my picture in Facebook” and that it “never happened”. He was also questioned on the fact that his company logo appears on the post as well. His testimony on cross-examination was that he “never advertised for that”. In any event, his evidence is that somebody “made it all up” and “was trying to make me look bad”.

However, he never reported these false allegations/posts about him on Facebook to the police. [ 14 ] The Mother further alleges that the Father has anger issues and described an incident that occurred on their way home from visiting family in the northern part of the province. O.J.D. was in his car seat but tired and crying. They could not calm him down despite best efforts.

The Father became angry and drove in the inside lane of an off ramp, went through a red light and parked the car at or in the ditch and said: “get the fuck out the vehicle with [O.J.D.].” The Father eventually calmed down. [ 15 ] The Mother also testified that she was assaulted by the Father which led to criminal charges been laid against him. The Father testified about the incident that occurred on September 30, 2019. He explained that she was bothered by him buying a “quad” without proper consultation; that he did not buy a helmet for her and that he was cheating on her.

She had her finger in his face and backed him up in a corner. He grabbed her glasses, but they got caught in her hair, so she screamed. O.J.D was almost 2 years old, and present, when this incident occurred. [ 16 ] The police were called and the Father explained to the officer what happened. They went outside. The police left but returned later in the evening and arrested the Father. The police kept him in custody because he still had his out of province driver’s license. He attended a bail hearing the next day and was released under a No Contact Order for 30 days. The Father retained counsel.

The Father testified that the Mother did not want to pursue charges against him. However, because of his criminal record, he nevertheless received a conditional discharge sentence. [ 17 ] The Father explained that despite the incident that occurred on September 30, 2019, the remained together as a couple until April 2020. [ 18 ] Anger management was recommended for the Father, but the Mother indicates that he only attended two sessions. She has concerns for O.J.D.’s safety and testified that he is a “different kid” when he returns from a visit with his Father.

For example, O.J.D. doesn’t want to go to bed and is exhausted. [ 19 ] The Mother described a typical day of parenting time with O.J.D. They wake up and have breakfast and get ready. The Mother drops off O.J.D. at daycare and goes to work. She testified to maintaining the routine during the summertime. She attends essentially all of O.J.D.’s doctor and dentist appointments and pays any additional cost that are not covered under the applicable insurance plan allegedly without any contribution from the Father. [ 20 ] The Mother opposes the Father's request for parenting time equal to one week on and one week off.

She indicated that the parenting at both houses is quite different. Her structure is that she plays with O.J.D, teaches him, spends time with family and indicated that he is taught a routine and structure including having the same bedtime and bath time every day. Conversely, the Mother believes that at the Father's house, O.J.D. sometimes sleeps on the couch, goes wherever he wants. She described the Father’s parenting style as a “free for all”.

Furthermore, she testified that O.J.D. actually goes to the Father's workplace with him in his truck on many occasions. [ 21 ] O.J.D. continued to attend the same daycare as he was when the Father worked out west while the Mother continued to work on a full-time basis supporting him. With respect to which school O.J.D. will attend, the Mother indicated if the primary residence of the child is with her, he would attend Saint Rose. [ 22 ] The Father rents a home at the current time. No one else lives with him. The home contains everything he needs to care for O.J.D.

He is operating a vehicle relocation business and is also currently taking a home inspection course. His intention is to hire staff to run the vehicle relocation business so that he can pursue the home inspection employment without reservation. He expects his income will be $39,573 in 2022. His income has however decreased since he moved back to New Brunswick from out west. The Father’s historical earnings are as follows based on Line 150 of his Tax Returns:

2022: expected at $39,573 2021: $574.84 2020: $114,202 2019: $64,538 2018: $98,036 [ 23 ] After moving back to New Brunswick, the Father stayed with his sister but had to apply to the Court to obtain more parenting time. This was increased gradually to the current parenting time in the last Interim Order. [ 24 ] The Father testified that he has never been to any doctor’s appointments because he is told that they have taken place “after the fact”. The Father believes that the current

schedule is not the best for O.J.D. currently because he needs to spend more time with his Father. It hurts the Father to not see his son more than he is at the current time. O.J.D. has a stepbrother and, in the Father's view, it would be good for them to develop a deeper relationship. The Father wants equal parenting time also on the basis but he thought everything was fine. [ 25 ] The Father's routine is that they wake up at approximately 7:30 a.m. and have breakfast. O.J.D. takes a bath and gets dressed. He plays with O.J.D. (i.e. “dinky cars”) and testified that they love to clean together.

They make puzzles and read books in addition to playing outdoors whenever possible. If O.J.D. asks to see the Mother, the Father obliges and makes the call. [ 26 ] The Father agreed that O.J.D. does go to work with him in his truck. He describes this as a bonding experience. He also took O.J.D. to Newfoundland once to pick up his other son and testified that he told the Mother a few days before he left of his intention.

He does agree to let the Mother know of any plans to take O.J.D. outside of the province at minimum a few days before leaving and to provide contact information as well. [ 27 ] The Father testified to standing by the prior affidavits that he has filed in response to this application. The Father attached to an Affidavit a copy of his criminal record. The most recent incident occurred on September 30, 2019, and nothing has happened since then. The Father claims that his life has changed since O.J.D. was born. For example, he stopped working at bars and drinking.

ISSUES [ 28 ] The Mother had initially raised an issue with respect to a Visa card debt but withdrew her request for repayment of that amount at trial. The issues that must be decided are therefore: 1. First, what parenting and decision-making order is in O.J.D.’s best interests? 2. Second, the Court must decide what if any child support arrears are payable by the Father to the Mother. LAW & ANALYSIS POSITION OF THE PARTIES [ 29 ] The Mother submits that this matter raises questions of credibility with respect to the issue of co-parenting.

The Mother relies on her Affidavit evidence and oral testimony to convince the Court that she cannot battle the Father on a daily basis. She argues that the Father “has come late to realize that he should be a good parent”.

[ 30 ] The Mother withdrew her request to impute income to the Father given the recent production of income information, including the Financial Statement filed August 31, 2022. After taking into account this new financial information, the Mother now claims payment of child support arrears in the amount of $8,717 for 2020. [ 31 ] The Father’s position is that equal parenting time and decision making authority is proper in this case. He “gave up employment” to be with O.J.D. Any credibility issue, he says, boils down to an “interpretation of words”.

He has found it difficult not being informed, and wants to be consulted on any major decisions in relation to O.J.D. [ 32 ] On the question of child support arrears, the Father accepts that the Guidelines “speak for themselves” and in fact, accepts the Applicant’s calculations for 2020 on that basis now that the claim to impute income has been abandoned.

ISSUE 1 - PARENTING TIME AND DECISION-MAKING AUTHORITY [ 33 ] In deciding what is an appropriate parenting order, I must only take into consideration the best interests of the child, O.J.D., in accordance with s. 50(1) of the Family Law Act , S.N.B. 2020, c.23 , which reads as follows: 50(1) The Court shall take into consideration only the best interests of the child in making a parenting order or a contact order. [ 34 ] The best interests of the child are defined at subsection 50(2) of Family Law 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 issuesaffecting 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. [35] I also refer to subsection 50(3) of the Family Law Act which reads as follows: 50(3) When considering the factors referred to in subsection (2), the Court shall give primary consideration to the child’s physical,emotional and psychological safety, security and well-being. [36] In this case, paragraphs (b), (c), (d), (e), (f), (g), (i) (

j) and (

k) of subsection 50(2) of the Family Law Act are relevant. [37] It should be noted that various other factors may be considered in determining the best interest of the child in custody disputes– now referred to as parenting time and decision-making authority. In Shaw v.

Shaw, (NBQB), Justice Graserreferred to other considerations that may be taken into account such as, for example, which parent appears most prepared tocommunicate in a mature and responsible manner with the other parent and which parent appears most prepared to give priority to thechildren’s best interests over and above his or her own. [38] I will now turn to the case law on parenting-time and decision-making authority disputes where strained co-parentingarrangements exist.

This is not a novel concept in family law and, as a result, there is a body of jurisprudence on this point. [39] In D.D. v E.K., 2019 NBQB 78 , Madam Justice DeWare (as she then was), provided a

summary of the law in“custody and access” cases – now parenting time and decision-making authority cases - where parents have little or no effectivecommunication: [52.] As pointed out by the Supreme Court of Canada in Young v. Young, (SCC), when looking at a child custodydispute, the court’s only preoccupation is the best interest of the child, not the parents. The Court’s mandate is to craft a custodyarrangement that will allow L.D. to grow up in the most beneficial environment for her.

In this case, particularly the Respondent,appears to have a misunderstanding between the importance of her own desires vs L.D.’s best interests. The Court is not concerned incases of this nature with the custodial arrangement preferred by a parent. [53.] The big question to be resolved by the Court in this matter is whether or not a shared custody arrangement is feasible for theseparties and this child. In M.A.S. vs.

J.S.S. 2012 NBQB 285 at paragraph 11, the following description was provided of preconditions forshared custody by Justice Walsh: 11 Oft times, it seems, such a custody arrangement is driven by what parents think is fair to them, as opposed to what is rightfor the child, confusing one with the other. For the concept of shared custody depends (or should depend) on shared parentingapproaches; similarity in styles, consistency and effective communication between parents, assuming that the inevitabledisruption to the children's continuity can be minimized.

It has been said that: "The benefits of the security of one home, one set ofroutines, and one set of expectations are significant; it would be an exceptional case where the sacrifice of these benefits would bejustified in the best interests of the child" (per Bielby J. in Colwell v. Colwell (1992), (AB QB), 38 R.F.L. (3d) 345(Alta. Q.B.), as cited in Lane v. Hustins-Lane 2005 NLUFC 42 at para. 36). [Emphasis in original] [55.] In A.N.H vs. M.K.C., 2010 NBQB 120 , Mr. Justice Walsh reviewed the concepts of joint versus sole custody.

Indiscussing the issue, Justice Walsh explains at paragraphs 65 through 68 as follows:

[65] The Family Services Act, s. 129 presumptively favours joint custody. The sine qua non of “joint custody” is the granting of shareddecision making responsibility to both parents. As stated in T. (T.E.) v. L. (J.D.) 2003 SKQB 517 ; affirmed 2004 SKCA 75: “Joint custody” means an arrangement whereby the parents share responsibility in making major decisions concerning their child’swelfare, be it the welfare of a long or short term nature.

Whether the child resides only with one parent or spends an equal amount of timewith each parent is of secondary importance to the arrangement. (at para. 30) [66] An award of “joint custody” can also include the right of one parent to have final decision making authority, most often given to theparent who has day to day care of the child (See: Lamont-Daneault v. Daneault, 2003 MBCA 11 ). [67] However, the weight of authorities is that “joint custody” or “shared custody” is not appropriate in circumstances whereparties cannot 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), 158 N.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 thewelfare of their child is a fundamental requirement for a joint custody arrangement.

In the absence of such ability, a joint custodyarrangement should not be entertained by the Court. (at para. 31) [Emphasis in original] [66.] The challenge for the Court in this matter is to set up a custody and access regime which will eliminate, to the extent possible,potential conflict between the parents while ensuring maximum contact between L.D. and both of her parents. In J.H. v. T.H., 2017NBCA 7 , Madam Justice Baird discussed the manner in which we consider the maximum contact principle in the context ofevaluating custodial disputes.

Justice Baird commented at paragraphs 26 and 27 as follows: [26] The father asserts the application judge’s order has significantly eroded the contact he will have with the children and therefore itviolates the maximum contact principle. Although he referred to s. 16(10) of the Divorce Act, rather than s. 116 of the Act, the principleremains the same. The Supreme Court addressed the issue of maximum contact in Gordon, as follows: […] The “maximum contact” principle, as it has been called, is mandatory, but not absolute.

The Act only obliges the judge to respect itto the extent that such contact is consistent with the child’s best interests; if other factors show it would not be in the child’s bestinterests, the court can and should restrict contact[.] [para. 24] [27] In other words, the sine qua non of the principle is that maximum contact is subordinate to the best interests of a child.

Theprinciple, although a laudable objective, is diminished in cases where there is high parental conflict, and where the trier of factdetermines it is necessary to reduce access in order to immunize the children from its long term negative consequences. See B.P.v.

A.T., 2014 NBCA 51 , 423 N.B.R. (2d) 99, per Larlee J.A., writing for the Court. [Emphasis in original] CREDIBILITY [40] I wish to highlight the Court’s findings on the issue of credibility before applying the best interests of the children criteria to thefacts of this case. [41] It is worth highlighting that the Mother does not seek to eliminate all of the Father’s parenting time. She asks that the status quo

as set out in the Interim Order April 19, 2021, in terms of parenting time be maintained, which is every second weekend and one eveningduring the off week. However, the Mother does seek sole decision-making authority. [See paras 79 and 80 of the Applicant’s Pre-TrialBrief]. [42] The dispute centers on the request by the Father for “50-50” parenting time and decision-making authority, despite thechallenges they continue to face in co-parenting O.J.D. That is why the Mother challenges the Father’s credibility, as noted above. Onthat point, I refer to S.F.D. v.

M.T. 2019 NBCA 62, where Baird, J.A. discussed how trial judges assess conflicting evidence: [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 aparticular 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 thewitness; […].

In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and completeverbalization. [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 commonsense and experience. [43] Several recent decisions have discussed the criteria referred to in assessing credibility in a family law context: T.T. v. J.M.2022 NBQB 160 , New Brunswick (Social Development) v. P.W., H.H. and D.W. 2022 NBQB 94 , T. L’H. v. G.L’H. 2022 NBQB 155 and E.W. v. C.W. 2021 NBQB 255 . [44] In E.W. v.

C.W. supra, the Court commented on assessing credibility at paragraph 93: [93] Assessing a witness’s credibility and reliability is not an exact science nor is it always easy for a court to articulate. Nevertheless,the case law sets out numerous factors a court may consider in weighing the credibility of a witness. [45] In T. L’H. v. G. L’H. supra, Justice Ferguson referred to some of the guiding principles in terms of assessing credibility ofwitnesses. More specifically, Justice Ferguson re-adopted the principles previously stated in R. v. Howe 2014 NBQB 259, whichincluded following

summary at paragraph 330: In sum, in order for testimony or evidence to become, or assist producing a finding of fact, it must bear the marks of plausibility,harmony with other testimony or evidence and inherent likelihood thus according with reason and common sense. These are thetouchstones from which the cogency of the testimony or evidence is derived. [46] As in many family law disputes that appear before the Courts, children often do not provide evidence for a number of reasonsincluding, but not limited to, their age, intellect and/or emotional well-being.

The Court is often left in the position of having to determinethe issues based on testimony of the parents, which is often contradictory. This case is no different. The Court must therefore weigh theevidence and assess the credibility of certain witnesses. In this case, the Father’s evidence is especially under scrutiny. [47] I found the Father’s evidence that he is surprised at the Mother’s allegations of bullying and conflict between them, in additionto his testimony that he believed that “everything was fine” until the trial, was less than forthcoming and in fact, not credible.

[ 48 ] As a matter of common sense, if he had read the Mother’s Affidavits, he had to appreciate the allegations that were being made quite some time ago. In fact, he did read the Mother’s Affidavit sworn to October 7, 2020, because much of his Supplementary Affidavit sworn to January 5, 2021, focused on responding to the allegations advanced by the Applicant in her affidavit even before they appeared before the Master for the first time in January 2021. [ 49 ] Likewise, the Father testified that he did not know about any request for payment of child support arrears. Again, he was surprised.

However, the Application specifically set out a claim for payment of arrears: [see page 5-6 of Trial Record]. Even more to the point, the Interim Order dated April 19, 2021, specifically stated at paragraph 3 that: 3. The respondent shall continue to pay child support to the applicant in the temporarily agreed amount of $400, pending documentation confirming the respondent's 2021 income, with adjustment and arrears to be dealt with in the future .

Such payments shall be made through the office of support enforcement which commenced on February 1st, 2021. [Emphasis mine] [ 50 ] The parties attended a Settlement Conference shortly before the trial and obviously the matter did not settle. I specifically advised the parties at trial that I did not want to hear anything about what happened at the Settlement Conference. Having said that, it is a matter of common sense that the Father had to have some understanding as to why a trial was necessary in this matter and what the issues were.

If “everything was fine”, there would be no need for a trial. [ 51 ] In addition, a number of unbelievable statements were made by the Father during cross-examination. For example, the Father outright denied knowing before trial about several paragraphs of the Mother’s Affidavit sworn to on April 19, 2022, including paragraph 32, which simply referred to him “belittling me, including in front of O.J.D.”. [ 52 ] The Father submitted into evidence certain text message exchanges with the Mother on April 15, 2022 which, according to him, support his view that all is good between them [Exhibit 3].

However, paragraphs 6, 7, 8, 12, 15, 16 and 20 of the Affidavit sworn to by the Mother on April 19, 2022, four days after the text messages were exchanged, all depict challenges in terms of co-parenting that the Mother is relying on in support of the relief sought. When confronted with this Affidavit evidence, the Father maintained his denial that there were any serious co-parenting issues.

In fact, he testified that the Mother “was making it all up” in her Affidavit and oral testimony as well. [ 53 ] The Father attached to his Affidavit in Support of Claim for Custody and Access (Form 81B) a copy of his criminal record. On cross-examination, the Father agreed that his criminal record revealed 12 assaults, including 1 sexual assault. The Father denied the Mother’s version of the assault that occurred in September 2019 when she said that he backed her into a corner.

Counsel put to the Father on cross-examination the possibility that he could not control his emotions on the stand during trial, nor in the past either. [ 54 ] In addition, the Father indicated in his sworn Financial Statement filed August 31, 2022 that he had no debt.

Yet when confronted with the prospect of having to pay child support arrears, he testified that he owed CRA $6,000 because of start-up costs for his vehicle relocation business and therefore, he would have some difficulty paying arrears. [ 55 ] The Father did agree that he had not paid any child support from the time of separation in April 2020 until the Interim Order was issued on April 19, 2021, other than a $400 e-transfer dated November 8, 2020 [Exhibit 3]. [ 56 ] In this case, I find the evidence of the Father on certain key points, particularly with respect to the obvious challenges the parties have in terms of co-parenting O.J.D., to not be credible.

There is no way that he can honestly claim that “everything is fine”. Where the evidence conflicts between the parties on this point, I prefer the evidence of the Mother.

BEST INTERESTS OF THE CHILD [ 57 ] Turning now to each of the relevant considerations to determine the best interests of the children, or in this case the child, O.J.D., here are my findings. The child’s needs, including the need for stability, given the child’s age and stage of development [ 58 ] In this case, O.J.D. is very young (4 years old). The Father has moved around in the past but appears to have settled down now. Both parents are now generally able to meet O.J.D.’s housing, food and clothing needs. However, that has not always been the case.

Historically and up to the present date, the Mother has been the principal provider of O.J.D.’s needs and stability. The Father’s employment appears to be stabilizing recently. Given O.J.D.’s young age, stability is particularly important as he will by all accounts be starting school in September 2023. 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 [ 59 ] Under this criterion, O.J.D.’s relationship with his Mother has been strong.

She has been the primary care giver, as already noted. [ 60 ] The Mother has another child as well who is 14 years old and lives with her. O.J.D. has logically developed a relationship with his sister by living together since birth. There is no evidence that that relationship is anything but normal and good for O.J.D. [ 61 ] The Father also has another child who has resided in Newfoundland for quite some time. Little evidence was presented with respect to the nature and strength of O.J.D.’s relationship with the parents’ other children.

However, without diminishing the importance of O.J.D. developing a stronger relationship with the Father’s other child, O.J.D. has simply not been able to do so because he resides in another province. That is not anyone’s fault. It is simply the reality in which O.J.D. lives. Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent [ 62 ] On this point, I refer to my findings of credibility above. The Mother’s evidence, which I accept, makes the point that the Father has really not changed.

He has demonstrated an unwillingness to support even certain basic requests by the Mother, such as for example, an accommodation in parenting time so that the Mother could take summer vacation as well. The Mother’s evidence that she cannot battle the Father on a daily basis helps understand his unwillingness to support the development of her relationship with O.J.D.

The history of care of the child [ 63 ] While it is true that the Father did return home on his days off from work out west prior to his return to New Brunswick, the Mother has historically provided the bulk of the care for O.J.D. before they separated in April 2020 up to the present time. The Father’s parenting time was set by the Master in the Interim Order of April 19, 2021 as being every second weekend from Thursday to Sunday evening and every Tuesday or Wednesday after daycare to 8:00 p.m.

The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained [ 64 ] O.J.D. is too young to provide his views and preferences.

Any plans for the child’s care [ 65 ] The Father is now self-employed. His plan is to be more “flexible” now when it comes to spending time with O.J.D. Be that as it may, the Mother’s plan is to forge ahead as she has done in the past, but hopefully without the daily battles with the Father. 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 [ 66 ] In this case, the Father’s ability and willingness to care for and meet the needs of O.J.D. is less than the Mother’s given his past conduct.

The Father’s anger issues were discussed at trial and several examples were provided to cause the Court concern on this point. He may have turned the corner in some respects, but the future is uncertain. There is no evidence that the Mother has conducted herself in the same way. I believe that the Mother is able and willing to care for and meet the needs of O.J.D.

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 [ 67 ] I repeat my comments with respect to accepting the Mother’s evidence that there clearly exists co-parenting challenges. I do not foresee any change in the Father’s approach to co-parenting in the near future.

Any family violence and its impact on, among other things, the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and 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 [ 68 ] I have accepted the Mother’s testimony regarding past events such as the Father losing his temper and driving dangerously because O.J.D. would not settle down, and his assault on the Mother. The evidence relating to ridesharing also gave the Court cause for concern.

The Father has a long history of intentional conduct which has translated into several assault convictions. There is a history of family violence that has impacted the Mother’s ability and willingness to co-parent with the Father, and vice versa. Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. [ 69 ] I have already referred to the criminal record that the Father himself put before the Court.

He was cross-examined on it rather vigorously to make the point that the Court should not forget that the Father has on multiple occasions in the past been unable to control his emotions, and that he is consequently unlikely to change. [ 70 ] I heard post-trial oral submissions on the question of parenting time for Christmas and Easter at my direction given that the parties had not fully addressed it in closing arguments. In essence, counsel agree that there should be an alternating parenting time

schedule every year for Christmas and Easter. [ 71 ] When I consider all of the evidence in this case, and giving primary consideration to O.J.D.’s physical, emotional, and psychological safety, security and well being, I find that it is not in O.J.D.’s best interests to have a Parenting Order based on equal parenting time and decision-making authority, as the Father requests. [ 72 ] The challenge in this matter is to set up a parenting time Order for the Father that will eliminate, to the extent possible, “the battle” between the parents, while ensuring ongoing contact between the Father and the child O.J.D.

[73] It is my view that a Parenting Order that maintains the current parenting time schedule, along with final decision-makingauthority belonging to the Mother, is in O.J.D.’s best interests. O.J.D.’s primary residence shall remain with the Mother. The ParentingOrder shall nonetheless require the Mother to consult the Father regarding decisions with respect to the health, religion, education andthe general well-being of O.J.D. However, where there is an impasse, the Mother shall have final decision-making responsibility.

TheFather shall be entitled to information with respect to O.J.D.’s health, education, religion and general well-being. The Parenting Orderwill include a non-disparagement and co-operation clause as well, as will be seen in the Disposition below. ISSUE 2 – CHILD SUPPORT ARREARS [74] The parties agree that the amount of child support payable since separation, as well as special expenses, should be based on theFederal Child Support Guidelines (SOR/97-175) (the Guidelines). As noted above, the Mother has abandoned any argument to imputethe Father’s income in this matter. [75] The parties separated in April 2020.

From the time of separation, until the Interim Order dated April 19, 2021, the Respondentdid not pay any child support except for a $400 e-transfer on November 8, 2020 [Exhibit 3]. [76] The Father’s income for 2020 was $114,201.78 [Tab 6 of Exhibit 2]. The Mother’s income was $40,977.62 [Tab 1 of Exhibit2]. The amount of arrears for 2020 as calculated by the Mother based on the Guidelines, is $8,699 ($1,011 x 9 = $9,099 - $400 =$8,699). Childcare expenses were calculated as the Father owing $656.

The Father agreed with these calculations. [77] I heard post-trial oral submissions from both counsel on the issue of 2021 child support arrears at my direction in order toclarify their respective legal positions on this point. The Mother’s position is that in a best-case scenario, the Father’s 2021 EI Incomewould be used and as a result, I should consider departing from an application of s. 16 of the Guidelines. The Father submits that theGuidelines should be followed now that we have all the financial information.

Under that scenario, the Father would owe no childsupport for 2021, given that his total income on his 2021 Tax Return is -$547.84. [78] After hearing from counsel, my findings on the 2021 child support arrears are as follows. [79] The leading case on payment of child support arrears is D.B.S. v. S.R.G. 2006 SCC 37 . The Supreme Court ofCanada explained at paragraph 2 that: 2 The awards contemplated in the present appeals are often termed “retroactive awards” because they involve enforcing past obligations,not ensuring prospective support.

Though misleading in the technical sense, I will adopt this terminology in these reasons because ithelps identify the tension that underlies such awards. Still, I must observe that these “retroactive” awards are not truly retroactive. Theydo not hold parents to a legal standard that did not exist at the relevant time: see MacMinn v. MacMinn (1995), (ABCA), 174 A.R. 261 (C.A.). But they are “retroactive” in the sense that they are not being made on a go-forward basis: the parents whoowe support (the “payor parents”) are being ordered to pay what, in hindsight, should have been paid before: see S. (L.) v.

P.(E.) (1999), 67 B.C.L.R. (3d) 254, 1999 BCCA 393, at paras. 55-57. Unlike prospective child support awards, then, retroactive awardsimplicate the delicate balance between certainty and flexibility in this area of the law. [80] In this case, the Father has been paying child support in the amount of $400 per month in accordance with the Interim Orderdated January 7, 2021. That Interim Order clearly contemplated that child support arrears would be an issue to be determined at trial byway of an “adjustment”: 4.

The respondent shall continue to pay child support to the applicant in the temporarily agreed amount of $400 a month, withadjustment and arrears to be dealt with in future. Such payment shall be made through the office of support enforcementcommencing February 1st, 2021, and continuing the 1st of each month thereafter. For January 2021 $200 was outstanding at the date ofthis case conference. 5. The respondent shall pay the applicant $39 per month for his proportionate share of childcare expenses. [Emphasis mine]

[ 81 ] The Interim Order of April 19th, 2021, reiterated a few months later, the same approach: 3. The respondent shall continue to pay child support to the applicant in the temporarily agreed amount of $400, pending documentation confirming the respondents 2021 income, with adjustment and arrears to be dealt with in the future. Such payments shall be made through the office of support enforcement which commenced on February 1st, 2021. 4.

The respondent shall pay the applicant $39 per month for his proportionate share of child care expenses, pending the applicant providing documentation confirming a change in the daycare subsidy to the respondent. [Emphasis mine] [ 82 ] This is not a case whereby the payor (the Father) has not paid any child support since 2021. It is a case where the Father had just moved back to New Brunswick and was settling in with new employment. He agreed to pay $400 per month until the matter would be determined, and did so. His income at the time of the Interim Orders in 2021 was not clearly established.

He was therefore ordered to produce financial information, which he eventually did, on August 31, 2022. To that extent, the 2021 Interim Orders provided some certainty and flexibility. [ 83 ] The evidence is that the Mother’s income for 2021 was $40,143.72 [Tab 2 of Exhibit 2]. The Father’s line 150 Income in 2021 was -$547.84 [Tab 7, Exhibit 2, page 3].

The Father’s 2021 Tax Return shows he received $21,947 in EI benefits, but because he showed a net loss in business income, the line 150 income is a negative amount. [ 84 ] In this case, I see no justification for departing from an application of s. 16 of the Guidelines for only 2021. In my view, it is preferable to approach the calculations of child support arrears in a consistent manner for all three years, i.e. 2020-2022.

In these circumstances, no amount of child support would be payable pursuant to s. 16 of the Guidelines . [ 85 ] In her Affidavit sworn to on April 18, 2022, the Mother confirms at paragraph 47 that the Father has been paying $400 per month in child support since January 2021. [Trial Record, page 145]. It appears that the Father has therefore overpaid child support in 2021 in the amount of $4,800 ($400 x 12 = $4,800). [ 86 ] For 2022, the Mother’s income as per her Financial Statement [Tab 5 of Exhibit 3] is $43,418.52. The Father’s income is $39,573 [See Father’s Financial Statement filed August 31, 2022].

The Table amount for child support based on the Father’s Income for 2022 is $317 per month. The total Table amount owing from January 1 to September 1, 2022, is therefore: $2,853. However, the Father paid $400 per month from January to September 1, 2022, or a total of $3,600 ($400 x 9).

The Father therefore overpaid child support in 2022 in the amount of $747. [ 87 ] Child support arrears are therefore calculated as follows: 2020: $8,699 2021: ($4,800) 2022: ($747) Total owing: $3,152 [ 88 ] The Court will order that the Father pay the Mother the amount of $3,152 in child support arrears, in addition to $656 in special expenses. The parties are at liberty to work out a payment plan if requested by the Father.

[ 89 ] Child support in the amount of $317 per month is payable by the Father on the first day of every month for the remainder of 2022. The child support payments shall be payable through the Office of Support Enforcement. [ 90 ] The Court will also Order that the parties exchange complete financial information including Tax Returns and Notices of Assessment no later than June 1 st of every year, commencing June 1, 2023, for the purpose of calculating prospective child support payments through the Office of Support Enforcement. COSTS [ 91 ] The Applicant having been successful is entitled to costs.

However, the parties demonstrated good cooperation in terms of documents, preparation of the Exhibit Book and of the Trial Record. The trial was conducted in an efficient and professional manner by counsel for both parties. I will only award costs of $750 to the Mother in these circumstances. DISPOSITION [ 92 ] The Application is therefore allowed. The parenting Order that in my view is in O.J.D.’s best interests is as follows: 1.

Pursuant to the subsection 52(2) (a), 52(4) and 52(5) of the Family Law Act 2020, c.23 , the Applicant shall have final decision- making authority and a majority of parenting time with respect to the child, O.J.D. [D.O.B. …, 2017]. 2. The Child O.J.D.’s primary residence shall remain with the Applicant. 3. The Applicant shall consult the Respondent in relation to all major decisions regarding the health, education, religion and well-being of O.J.D.

In the event of an impasse on any major decisions regarding O.J.D.’s health, education, religion and well-being, the Applicant shall have final decision-making authority. 4. The Respondent’s parenting time with O.J.D. will be as follows: a. Every second weekend, from Thursday at daycare pick up or school pick up to Sunday evening at 5:30 p.m. b. Every Tuesday or Wednesday, as agreed upon between the parties, from a daycare or school pick up to 8:00 p.m. c.

Should the Respondent’s parenting time with O.J.D. fall on a long weekend, he shall have parenting time with O.J.D. from Thursday after daycare or school to Monday evening at 6:00 p.m. d. Each party shall have one consecutive week of vacation with O.J.D. between July 1st and September 1st of every year at times to be agreed upon based on their respective vacation schedules. Each party shall give the other notice of their respective vacation schedules no later than June 1st every year. e. Once O.J.D. starts school, each party shall have parenting time with O.J.D. during the entire March break.

The Applicant shall have parenting time during O.J.D.’s first March Break. The parties will then rotate their parenting time with O.J.D. during March break every year thereafter.

f. In even years, starting in 2022, the Applicant shall have parenting time with O.J.D. on December 24, 2022, at 4:00 p.m. until December 25, 2022, at 4:00 p.m. The Respondent shall have parenting time with O.J.D., December 25, 2022, at 4:00 p.m. until December 26, 2022, at 4:00 p.m. at which time the regular parenting time

schedule shall continue. g. In odd years, starting in 2023, the Christmas parenting time

schedule will rotate to the Respondent. For clarity, the Respondent shall have parenting time with O.J.D. on December 24, 2023, at 4:00 p.m. until December 25, 2023, at 4:00 p.m. The Applicant shall have parenting time with O.J.D. on December 25, 2023, from 4:00 p.m. until December 26, 2023, at 4:00 p.m. at which time the regular parenting time

schedule shall continue. The parties shall continue to rotate parenting time at Christmas every year thereafter. h. The parties shall alternate parenting time at Easter every year as well. The Applicant shall have parenting time with O.J.D. at Easter in 2023 commencing on Thursday after day care or school until Saturday at 4:00 p.m. The Respondent shall have parenting time at Easter in 2023 starting on Saturday at 4:00 p.m. until Monday at 4:00 p.m., at which time the regular parenting time

schedule shall continue. i. The parties shall continue to alternate parenting time at Easter every year thereafter. For clarity, the Respondent shall have parenting time with O.J.D. at Easter in 2024 commencing on Thursday after day care or school until Saturday at 4:00 p.m. The Applicant shall have parenting time at Easter in 2024 starting on Saturday at 4:00 p.m. until Monday at 4:00 p.m., at which time the regular parenting time

schedule shall continue. The parties shall continue to rotate parenting time at Easter every year thereafter. 5. The parenting time

schedule may be varied by consent of the parties and/or in the event of a scheduling conflict and/or an unforeseeable event. If that happens, the parenting time shall be made up at another time to be agreed upon by the parties as soon as possible. 6. The parties shall not make any attempt to undermine each other’s care of, and parenting time with, O.J.D. and shall not disparage one another. 7.

The parties shall cooperate and communicate in a reasonable manner to organize and structure each other’s parenting time and also during all consultations with respect to O.J.D.’s health, education, religion and well-being. 8.

Pursuant to subsection 55(1) of the Family Law Act , the Respondent is entitled to request information about O.J.D.’s well-being, including information in respect of O.J.D.’s health and education, from the following persons: from the Applicant, and from any other person who is likely to have information such as a school principle, school teacher, family doctor, dentist, optometrist, daycare provider or any person in charge of extracurricular activities. 9.

The parties shall keep each other informed at all times of their respective addresses (both civic and mailing), all telephone numbers (including cell phones) and email addresses. 10. The Respondent shall pay the Applicant the amount of $3,152 in Child Support arrears, and $656 in special expenses. The parties shall agree to a payment plan if one is requested by the Respondent. 11.

The Respondent shall continue to pay child support to the Applicant through the Office of Support Enforcement in the amount of $317 per month in addition to his pro rata share of special expenses on the 1st day of every month until a new amount is calculated based on a mutual exchange of financial information. 12. The parties shall exchange financial information, including Income Tax Returns and Notices of Assessment on or before June 1, 2023, and every year thereafter. 13.

The parties shall provide the Office of Support Enforcement their financial information, including Income Tax Returns and Notices of Assessment on or before June 1, 2023, and every year thereafter for the purpose of calculating child support and special expenses.

14. The Respondent shall pay the Applicant costs in the amount of $750.00 as soon as possible. 15. This Order shall take effect immediately. DATED at Saint John, New Brunswick this ______ day of September 2022. _________________________________ The Honorable Justice Danys R.X. Delaquis Judge of the Court of King’s Bench of New Brunswick - Family Division