McNeil v. Peach, 2012 NSSC 135

IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: McNeil v. Peach, 2012 NSSC 135 Date: 20120405 Docket: 56094 Registry: Sydney Between: John McNeil Applicant v. Elicia Peach Respondent LIBRARY HEADING Judge: The Honourable Justice Kenneth C. Haley Heard: February 21, 2012 Key Words: Variation Hearing, custody, access, child support, joint v shared custody. Counsel: Ms. Elaine Gibney, Counsel for the Applicant Ms. Darlene MacRury, Counsel for the Respondent

Summary: The Applicant seeking to have the dependent child reside with him one week with him, one week with themother. Decision of the Court to have the dependent child’s primary residence with the Respondent and increased access for theApplicant. The Court found that the dependent child needed one residence as a home base for consistency and balance in the child’s bestinterest. Legislation: Maintenance and Custody Act Case Law: C.(

R) v McDougall 2008 SCC 53 King v Low (SCC), [1985] 1 S.C.R. 87 Foley v Foley (NS SC), [1993] N.S.J. No. 347 N.D.L. v M.S.L. (2010) 289 (N.S.R.) (2d) 8 (NSSC)

C.(J.R.) V.

C.(S.J.) 2010 NSSC 317 Murphy v Hancock 2011, NSSC 197 Ellsworth v Ellsworth (2002) 2002 NSSC 195 , 208 NSR (2D) 1 (NSSC) Cleaves v Cleaves 2010 NSSC 322 Hammond v Nelson 2012 NCSC 27 Hackett v Hackett [2009] N.S.J. 178 C. (J.R.) V C. (S.J.) 2010 NSSC 85 (Can LII) 2010 NSSC 85 Hammond v Nelson, Supra Gibney v Conohan 2011, NSCC 268 Rivers v Ribers 130 NSR (2d) 201 Mahoney v Malone, 2009 NSSC 217 THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT’S DECISION QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET SUPREME COURT OF NOVA SCOTIA Citation: McNeil v Peach, 2012 NSSC 135 Date: 20120405 Docket: 56094 Registry: Sydney Between: John McNeil Applicant v.

Elicia Peach Respondent

Judge: The Honourable Justice Kenneth C. Haley . Heard: February 21, 2012. Counsel: Ms. Elaine Gibney, Counsel for the Applicant Ms. Darlene MacRury, Counsel for the Respondent By the Court : BACKGROUND [ 1 ] Mr. John McNeil, hereinafter called the Applicant, has filed an Application to vary the Consent Custody Order issued November 3, 2008 in relation to his 6 year old daughter Emily, born October 2, 2005. [ 2 ] Pursuant to the 2008 order the parties hereto were awarded joint custody with the mother, Ms.

Elicia Peach, hereinafter called the Respondent, named as the primary care giver in terms of residence and day to day control of the child. [ 3 ] The parties lived together from 1999 until 2006 at which time they separated and the Respondent relocated to Glace Bay, Nova Scotia, with the child. [ 4 ] The Applicant remained in Ontario but maintained regular and specific access with his daughter which was further confirmed by the 2008 Court Order which provided as follows: 1.The Applicant, Elicia Peach, and the Respondent, John McNeil, shall have joint custody of the child, Emily Grace McNeil, born October 2, 2005. 2.Elicia Peach shall continue to maintain the child’s primary residence and have day to day care and control of the child. 3.

Elicia Peach shall share any and all information concerning the child with John McNeil, including information pertaining to the child’s health, education, day care and general welfare, etc. 4.John McNeil shall be entitled to access any and all records and information concerning the child from third parties involved in the child’s life, without the necessity of further consent of Elicia Peach. 5.John McNeil shall continue to have reasonable access to the child at reasonable times upon reasonable notice, including visitation at the home of his parents for a minimum of four(4) non consecutive weeks per year, during which times the child shall not attend day care.

In the event that the visit is longer than one (1) week the child shall attend day care during the following week. 6.John McNeil shall be entitled to exercise access with the child for a two (2) week period of access in Ontario during the summer of 2009 to allow the child to attend his wedding.

7.John McNeil shall have summer access to the child in future years as follows: (

a) Summer of 2010 - the child shall exercise access with Mr. McNeil in Ontario for a period of (3) three weeks; (

b) Summer of 2011 - the child shall exercise access with Mr. McNeil in Ontario for a period of one (1) month; (

c) Summer of 2012 - the child shall exercise access with Mr. McNeil in Ontario for a period of five (5) weeks; and (

d) Summer of 2013 and subsequent years - the child shall exercise access with Mr.

McNeil in Ontario for a period of six (6) weeks. 8.John McNeil shall notify Elicia Peach of the dates for his summer access on or before May 1 st of each year, commencing May 1 st , 2009. 9.John McNeil shall arrange for the child to travel to Ontario for access in the accompaniment of himself or an individual with whom the child is comfortable and familiar, such as the child’s extended family, i.e. her paternal grandparents. 10.John McNeil shall be entitled to exercise access with the child for one (1) week at Christmas every year, which access shall alternate between the first and second week of holidays to provide him with Christmas day in odd years and Elicia Peach shall have the child for Christmas day in even years. 11.During Christmas 2008, Elicia Peach shall therefore have the child with her for the first week of Christmas holiday, including Christmas day.

John McNeil shall be entitled to have the child during the second week of Christmas to commence on December 26 th , or 27 th , 2008, at a time to be agreed upon between the parties. This

schedule shall rotate in 2009 and subsequent years. 12.For 2008 it is agreed that the Christmas access of John McNeil shall take place in Cape Breton, however, for future years Mr.

McNeil shall be entitled to exercise his Christmas access in Ontario. 13.John McNeil shall be entitled to exercise access with the child every March break. 14.John McNeil shall also continue to exercise regular access with the child via web camera and telephone at reasonable times bearing in mind the child’s schedule. 15.During the periods when John McNeil has the child in his care, Elicia Peach shall be entitled to exercise reasonable access with the child via web camera and telephone. 15.John McNeil shall bear all costs associated with the travel of the child for access purposes. [ 5 ] In May, 2011 the Applicant relocated to Glace Bay, Nova Scotia where he now lives and works with his wife and family. [ 6 ] The Applicant alleges since his move to Glace Bay he has encountered difficulty and resistance from the Respondent in

determining a regular access

schedule to afford him reasonable time to spend with his daughter . [ 7 ] The Applicant now seeks a variation of the current order from joint custody to shared custody. The Respondent opposes the application and supports a joint custody order with increased access. [ 8 ] The Court heard evidence on February 21, 2012 by way of Affidavit and thus received evidence from the following witnesses, named: 1. The Applicant; 2. Cynthia McNeil - paternal grandmother; 3. Arlene Peach - maternal grandmother; 4. The Respondent. [ 9 ] Exhibits admitted into evidence by the Court are as follows: 1.

Book of Exhibits - submitted by Applicant’s counsel which contained Tab 1 - Notice of Variation Application; Tab 2- Consent Order Date November 4 th , 2008; Tab 3 - Parenting Statement of Mr. McNeil filed May 27 th , 2011; Tab 4 - Affidavit of John McNeil dated February 7, 2012; Tab 5 - Affidavit of Cynthia McNeil dated February 7 th , 2012; Tab 6 - Statement of Income of Mr.

McNeil dated August 26, 2011; Tab 7 - Record’s of Employment fro 2011; Tab 8 - Ontario Child Support Order dated June 28yh, 2010 2.T-4 for 2011 - submitted by the Applicant’s counsel 3.Current pay stub - submitted by the Applicant’s counsel 4.Affidavit of Arlene Peach - submitted by the Respondent’s counsel 5.Affidavit of Elicia Peach - submitted by the Respondent’s counsel 6.T-4 for 2011 - submitted by the Respondent’s counsel 7.E-mail from John McNeil to Elicia Peach submitted by the Respondent’s counsel

8. E-mail from John McNeil to Elicia Peach submitted by the Respondent’s counsel 9.E-mail from John McNeil to Elicia Peach submitted by the Respondent’s counsel 10.E-mail from John McNeil to Elicia Peach submitted by the Respondent’s counsel 11.E-mail from John McNeil to Elicia Peach submitted by the Respondent’s counsel [ 10 ] The Court reserved its decision until receipt of written submissions of counsel. [ 11 ] ISSUES 1. Has the Applicant demonstrated that there has been a change in circumstance sufficient to vary the existing court order; 2.

If so, which parenting plan is in the best interests of the child, Emily; 3. Subject to the determination of issue no. 2, what, if any, is the appropriate quantum for child support? APPLICANT ’S EVIDENCE [ 12 ] The Applicant provided his direct evidence via Affidavit and was then cross examined by Respondent ’ s counsel. [ 13 ] The Applicant states: -That, he is living in a stable, loving relationship with his wife, Cynthia McNeil, along with two of Mrs.

McNeil’s four children, namely Cassidy, age 11 and Matthew, age 15 on Campbell’s Lane in Glace Bay; -That, he is employed with AMD Landscaping on a seasonal basis and further supplements his income during the winter months doing snow removal.

His 2011 annual income was $41,007.27 and he pays child support in the amount of $371.00 per month pursuant to an Ontario Court Order; - That, his wife operates a day care centre out of their home which involves the supervision of four additional children, ages, 2, 2, 3 and 4 Monday to Friday from 8:00 a.m. to 5:30 p.m.; - That, Emily interacts very well with her step family and that it would serve Emily’s best interest to spend more quality time with them;

- That, he lives within 4 kilometres of the Respondent’s home and that Emily would continue to attend grade one at St. Ann’s Elementary School in Glace Bay; - That Mrs. McNeil would be responsible for Emily during the day due to his work

schedule although he and the Respondent were able to agree upon a shared parenting arrangement during the summer months. - That the Applicant currently has Emily in his care for 3 days in a 14 day period, which in his opinion is totally inadequate; - That, although there are some communication difficulties with the Respondent, they can and often do work matters through to a mutual agreement.

The Applicant testified: “We struggle with access times and major decisions” -That, the parties rely upon texting, e-mails and the Applicant is not welcome in the Respondent’s home. - That, a shared parenting plan would minimize transition in Emily’s life and enable her to develop greater bonds with the McNeil side of her extended family; - That, he is very motivated to avoid conflict with the Respondent and wants to work together with her in a shared parenting arrangement by alternating weeks as follows: Saturday at 7:00 p.m. until Wednesday at 7:00 p.m. with Ms.

Peach (4 nights) Wednesday at 7:00 p.m. until Saturday at 7:00 p.m. with Mr. McNeil (3 nights) [ 14 ] Cynthia McNeil stated: -That, she has no connection with Glace Bay, but relocated to support her husband; - That, she would be responsible for taking Emily to school every morning during the process of picking up her day care children; - That Emily interacts well with the day care children and she loves being the “big kid”; - That, whenever the Applicant is working Emily remains in her care; -That, her relationship with the Respondent is essentially “non-existent”.

She stated: “It is pleasant but we are not friends” - That, she is supportive of a shared custody arrangement and will work toward improving the communication between herself and the

Respondent. RESPONDENT ’ S EVIDENCE [ 15 ] The Respondent ’ s direct evidence was by way of Affidavit and marked as Exhibit No. 5.

She states as follows: - That, she relocated to Glace Bay in 2006 after breaking up with the Applicant as she had family to support her in the transition to becoming a single parent; - That, she returned to school for two years and obtained her Business Administration Diploma in Management; - That, she has since obtained employment with the Glace Bay Credit Union where she has been employed since 2008 earning $25,136.43 in 2011; - That, in 2010 she purchased a house which is close to family and five minutes away from Emily’s school; - That, she has been Emily’s constant care giver since birth and subsequent relocation to Glace Bay; - That, she believes that current access arrangements work in Emily’s best interests; - That, Emily does have a “great” relationship with the Applicant, but she believes Emily is best served by living with her and being close to friends and family; - That, e-mail is the current method of communicating with the Applicant and that she takes exception to Mrs.

McNeil typing e-mails on behalf of the Applicant; - That, she has not denied access to the Applicant and acknowledges the love that Emily and the Applicant have for one another; - That, she is opposed to shared parenting but is supportive of an increased access regime for the Applicant. [ 16 ] Under cross-examination the Respondent confirmed the Applicant is not welcome in her home which in her opinion is necessary to avoid conflict. [ 17 ] The Respondent further testified about the current access

schedule of three out of 14 days as follows: “That is what I feel is best for her (Emily)” [ 18 ] The Respondent testified that moving to a “ shared “

schedule proposed by the Applicant was: “Too much too soon”

[ 19 ] The Respondent did agree that the Applicant ‘ s efforts to re-locate to be close to his daughter were “ very impressive ” and that he is a “ dedicated father ” . [ 20 ] The Respondent further conceded that, although she may not have consistently done so in the past, she is now prepared to cooperate with the Applicant on all issues that affect Emily ’ s best interests. [ 21 ] In this regard the Respondent agreed to immediately increase access to five days which would include the Applicant keeping Emily on Sunday night and taking her to school on Monday morning plus two additional after school visits.

APPLICANT ’ S SUBMISSIONS [ 22 ] Counsel for the Applicant submits as follows: -That, based upon the testimony and evidence presented in affidavits the following facts are not in dispute: .Emily is a very happy child; .Emily excels in school; .Emily has a strong and loving bond and relationship with her father, John McNeil; .Emily has a strong and loving bond and relationship with her mother, Elicia Peach; .Emily describes saying she has had the “best days ever” while referencing time spent with both parents; .It is undisputed that John McNeil is a devoted and dedicated father; .It is undisputed that despite Ms.

Peach’s removal of the child from Ontario at a very young age, Mr.

McNeil made exemplary efforts to remain very involved in Emily’s life by providing her with daily attention, including mail, telephone and web camera contact; .It is undisputed that John McNeil demonstrated the extent of his commitment to Emily, by relocating himself, his wife and step-children from Ontario to the area in order to be closer to Emily; .Emily has spent ongoing regular and significant amounts of time in the extended care of her father during which time he has been solely responsible for meeting all of her daily needs; .The parties’ homes are in close proximity; .John McNeil’s commitment to Emily has been exceptional and is demonstrated by the great lengths he has gone to in order to build the very strong father and daughter bond he has with Emily;

.John McNeil is willing to assume his share of the responsibility of equally parenting Emily; .Both parents are employed on a full time basis and have family support networks available to assist in meeting the child’s needs; .Emily will benefit from minimizing the number of transitions between the parties; .A reduction in transitions between households can be achieved by shared parenting. Only one transition per week will be required under the shared parenting

schedule proposed by Mr. McNeil. - That, shared parenting will impose a responsibility on both parents to share the parenting burden and to be involved in major decisions pertaining to the health, educational and recreational activities of the child. Mr. McNeil’s willingness to assume his share of that responsibility is unwavering; - That, Mr. McNeil expressed a willingness and availability to access professional advice to assist and ensure successful shared parenting.

In the past, on his own initiative, he sought and completed the “MyDaddy’s Program” with perfect attendance, as stated in his Affidavit; - That, Ms. Peach has demonstrated that she has routinely used her position as a primary care parent, to have power and control over the parenting of Emily. It is submitted that she regularly abused her parenting status in order to do so and Emily has suffered a result; -That, the evidence established that Ms. Peach chose to spend her one (1) week vacation during periods when Emily was left in the care of her parents. Ms.

Peach is heavily dependent upon third parties to assist her in caring for Emily, given her work schedule. Both Ms. Peach and her mother described her as a very busy. Ms. Peach is heavily reliant upon her mother to pick Emily up from school, provide her with play dates, prepare her supper every evening and provide family time and summer recreation; - That, Ms. Peach’s proposed

schedule whereby Emily visits with Mr. McNeil for only 3 out of 14 days results in less time then the current Court Order would have allowed for, despite the fact that it was based upon Mr. McNeil’s residence in Ontario; - That, despite Ms. Peach’s attempts to limit Emily’s contact with her father, Mr. McNeil has attempted to exercise every opportunity available to spend with Emily, included picking her up at school for lunch and being the one that usually picks Emily up on the school days that she is in his care; - That, the previous Order for joint custody, whereby Ms.

Peach maintained Emily’s primary residence with day to day care and control, ought to be replaced with a Shared Custody Order and Parallel Parenting. Ms. Peach admitted that she interpreted the previous Joint Custody Order as providing her with authority to make all decisions for Emily. Mr. McNeil was therefore denied the benefits provided to him by the joint custody arrangement and in fact Ms. Peach has been conducting herself as a sole custodial parent. The evidence has established that Ms. Peach has assigned Mr. McNeil the role of “visitor” in Emily’s life and any efforts made by Mr.

McNeil to be more involved than simply a visitor, have not been well received by Ms. Peach to date.; - That, Emily is a very well adjusted child who can easily adapt to being in the care of not only her father, but other family members. Emily has developed very strong bonds not only with her step-mother, Mrs. McNeil, but with her step-siblings, including her step-sister with whom she shares a bedroom with. Emily has had most of her life to become familiar with her step-family and she has developed strong bonds with all of them.

Emily has now shared a room with her step -sister for 10 months, since her father’s relocation. As described by Mr. McNeil in his affidavit, Emily is very comfortable in her surroundings; - That, Mr. McNeil, due to his seasonal work schedule, has a greater availability to provide for Emily during several months of the year when he is laid off. Although there may be unexpected work commitments, dependent upon the weather, this also results in unexpected days off throughout the year. Mr.

McNeil’s chosen field of work has clearly provided him with significant periods of time to be available to Emily in the past, as noted in his access schedule;

- That, Emily clearly has an ability to cope in the care of others and the recent visit wherein she described no longer missing her mother, is evidence of the fact that she is comfortably settled in her father’s home; - That, Emily has a need for the care, attention, love and nurturing of both parents, on an equal basis. She should be able to benefit from the loving homes that bother of her parents are ready, willing and able to provide for her. She should have the best of both worlds which is fortunately available due to Mr.

McNeil’s proven commitment and desire to be a fully involved father who puts his daughter’s best interests first; - That, the parties have been motivated to work together, and were capable of working together as a strong team in the past to assist Emily in her adjustment. This was evidence by their ability to work together to help Emily cope with the changes associated with starting school, at the same time that her residence was changed and she attended a new after school program.

The on-going conversation between the parties was exhibited at Trial and demonstrated their commitment and the benefits to Emily of having an unified front from her parents; - That, the evidence establishes the parties’ ability to put aside their differences, in order to provide Emily with a nurturing and cooperative relationship as parents. Although Ms. Peach does not like to communicate with Mr. McNeil, and prefers e-mail communications, it is also proven that she can communicate with him effectively when she chooses to do so; - That, Ms. Peach’s mother, Arlene, would provide the parties with her full support.

Ms. Peach has always been close to Mr. McNeil’s parents, and the support of extended family will assist the parties in ensuring a successful shared parenting regime and that Mr. McNeil’s wife Cynthia McNeil, is willing to improve her relationship with Ms. Peach; - That, an Order therefore requiring the parties to jointly share in all decisions regarding Emily’s well being is required. In the absence of an agreement being reached between the parties, each party can be assigned specific authority to make decisions in certain aspects of Emily’s life, as a parallel parenting plan.

It is submitted that such a parallel parenting plan would motivate the parties to place more emphasis and weight upon the other’s views and to cooperate in a more meaningful way. It is proposed that Ms. Peach shall have the final say on medical disputes and Mr. McNeil shall have the final say on educational matters; - That, Mr. McNeil’s parenting plan will best meet Emily’s needs to maximize contact with both parents and to reduce transitions. Mr. McNeil’s plan calls for a gradual implementation of the shared parenting

schedule to ensure that by the summer Emily will only need to experience one single transition homes each week. It is submitted that Mr. McNeil’s plan provides Emily ‘s needs to be met in an effective and reasonable manner; -That, the parties’ incomes are relatively similar and their annual incomes allow each of them to provide for Emily’s financial needs while she is in their care. Mr. McNeil’s parenting plan also includes that all extraordinary expenses shall be shared between the parties, including seasonal clothing.

RESPONDENT ’ S SUBMISSIONS [ 23 ] Counsel for the Respondent submits: - That, the evidence confirms that from the date of her relocation to Glace Bay, subsequent to the separation in 2006, when Emily was approximately nine months of age, Elicia Peach was the primary care giver. She established a residence with her parents while she finished her education. She then acquired an apartment in the same neighbourhood and most recently her present residence which is also in the same neighbourhood.

Therefore, through these formative growing up years Emily has remained in the same location and has acquired and grown up with a circle of friends with whom is a very close and also with whom she attended day care and is now presently attending St. Anne’s School which is a short walk from her present residence; - That, both parents confirm that up until the date of his relocation to Glace Bay in May, 2011, Mr. McNeil exercised “block” access to

his daughter during vacation times and visits from Ontario. While it is acknowledged that on these occasions he had free and open access to Emily, there was no consistent pattern or

schedule to his access visits and Elicia Peach remained the “primary care giver” for her daughter, Emily; - That, since Mr. McNeil relocated to Glace Bay in May, 2011, Elicia Peach has incurred great difficulty in dealing with him, she finds his manner in communicating with her very demanding and threatening; - That, Emily is a young child, five years of age, who has grown up, essentially, under the care and custody of her mother. She has resided with her mother either with her maternal grand parents, in the apartment or in their present home. She is a shy child who does not take easily to change; - That Mr.

McNeil proposes to the Court that since he is here he should automatically have “shared” custody and parenting of his daughter. It is submitted that this is not the proper test, if this were the test, the majority of cases before the Courts would result in “shared” parenting arrangements. The Court is guided by what is in the “best interests” of Emily; - That, Mr. McNeil is employed with the local landscaping company and he confirmed that during his peak work season from April to December he works from 6:30 a.m. to 7:00 p.m. His employer is in Sydney River and therefore he leaves for work around 5:30 a.m.

From January to March is the off season and he is employed on an “on call” basis wherein he would maintain the same hours from approximately 5:30 a.m. until 7:00 p.m.; - That, Mr. McNeil’s wife Cynthia operates a day care from her home, wherein she has four children in her home and under her care on a daily basis year round; -That, given Mr. McNeil’s work schedule, it is Mrs. McNeil who is normally responsible for picking Emily up and caring for her in the home until Mr.

McNeil finished his work; - That, Emily shares a bedroom with Cynthia McNeil’s daughter who is age eleven; - That, the proposal for the “shared custody” as put forward by Mr. McNeil is not in Emily’s best interests; - That, Ms. Peach would refer to the following facts to be reviewed by the Court in determining Emily’s best interests: a)Mr.McNeil does not reside in Glace Bay, he resides outside Glace Bay in the tower Road area therefore, when Emily is in his area she loses contact with her friends with who she normally associates in her residential area;

b) Mr. McNeil is not home a great deal of the time Emily would be there, given his work schedule, he would not be there when she wakes up, he would not be there to pick her up from school and often would only arrive home late in the evening for bedtime;

c) While at the McNeil residence, when Mr. McNeil is absent, she would be left in the care of Cynthia McNeil who is operating a day care from her home and has the charge of four other children during the day. Therefore, it is submitted that this is not a proper situation for Emily to be in on a daily basis;

d) While in the McNeil home, she shares a bedroom with Ms. McNeil’s daughter who is age eleven. While this is not problematic on short, alternate week end visits on a long term week about access schedule, it is submitted, it could potentially pose problems for Emily as a five year old and a eleven year old would have different schedules;

e) It is also submitted the week about access would be very difficult for a child of Emily’s age as she would not be able to maintain

any sustaining relationships and alternatively would be difficult for her travelling back and forth from her school to Tower Road, when she normally would be engaged in after school activities, etc with her friends. - That, it is the rare case, the rare parents, and the rare children who can make week on, week off work in a way that it is in the children’s best interest. It is submitted that the parents or Emily would not thrive on a week on week off basis. In this case, Emily would be removed from her familiar surroundings, friends and neighbourhood to be placed in a home to be essentially cared for by Ms.

McNeil along with her other day care children. Emily has no friends in the area with whom she can associate and thus she is essentially isolated from all her familiar surroundings. This is a situation what would not be in Emily’s best interests; - That, communication between parents is one of the most important aspects of a shared custody arrangement. In this instance, communications between Mr. McNeil and Ms. Peach are very strained and limited. They essentially communicate only by e-mail and even this mode causes conflict.

The parties are not at a point where they can communicate on a regular, consistent basis as such would be an important aspect of any “shared” custody arrangement; - That, the existing Order should be varied such as to provide Mr. McNeil with consistent and on-going access as follows:

a) Every second week end from Thursday at 6:30 p,m. until Monday morning at 9:00 a.m. to school or to Ms. Peach’s residence;

b) On the off week two evening visits from after school 2:30 p.m. to 7:00 p.m.;

c) Such further and other access as may be agreed to by the parties from time to time;

d) Extended access, including block access for both parents for summer vacation periods;

e) Shared March Break;

f) Quality time for birthdays;

g) Shared Christmas, Easter by agreement of the parties. ANALYSIS AND DECISION ISSUE #1 - Has the Applicant demonstrated that there has been a change in circumstance sufficient to vary the existing court order? [ 24 ]

Section 37 of the Maintenance and Custody Act requires a material change in circumstance to be established before the Court will vary an existing order.

Section 37 of the Maintenance and Custody Act requires a material change in circumstance to be established before the Court will vary an existing order. Powers of Court

(1) The Court, on application, may make an order varying, rescinding or suspending, prospectively or retroactively, a maintenanceorder or an order respecting custody and access where there has been a change in circumstances since the making of the order or the lastvariation order.

(2) When making a variation order with respect to child maintenance, the Court shall apply

Section 10. R.S., c. 160, s. 37; 1997 (2nd Sess.), c. 3, s. 11. [25] A material change in circumstance has been defined as one where, had the facts existed at the time of the prior order, the judgewould likely have crafted a different order. A material change in circumstance can include a situation where something unexpectedhappens which fundamentally alters the foundation upon which the current order is based. Alternatively, a material change incircumstance can include a situation where something that was expected to happen does not.

Further a minor or temporary change incircumstance is insufficient to justify the court invoking its jurisdiction to vary. The alleged change in circumstance must be significantand long lasting. [26] The burden of proof is upon the Applicant. It is proof on a balance of probabilities as defined by the Supreme Court ofCanada in C.(R.) V. McDougall 2008 SCC 53 at paragraph 40: Like the House of Lords, I think it is time to say, once and for all in Canada there is only one civil standard of proof at common law andthat is proof on a balance of probabilities...

And further at paragraph 46 the Supreme Court of Canada stated: .....evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. [27] The evidence is that the Applicant relocated his family and moved to Glace Bay, Nova Scotia to be closer to his daughterEmily. The Applicant has purchased a home in the area and also is gainfully employed. [28] This evidence is sufficiently clear, convincing and cogent to establish there has been a material change in circumstance thuspermitting the Court to entertain this Application.

The Respondent has also conceded this point without argument. ISSUE #2: Which parenting plan is in the best interests of the child Emily? [29] The primary question with respect to any custody issue is “what is in the best interests of the child?” Section 18 (5) of theMaintenance and Custody Act states as follows: 18

(5) In any proceeding under this Act concerning care and custody or access and visiting privileges in respect to a child, the Court shallapply the principle that the welfare of the child is the paramount consideration. [30] In looking at the “best interests” of the child, Justice McIntyre speaking on behalf of the Court in King v Low, (SCC), [1985] 1 S.C.R. 87 stated at paragraph 27 as follows: 27 “I would therefore hold that in the case at bar the dominant consideration to which all other considerations must remain subordinatemust be the welfare of the child.

This is not to say that the question of custody will be determined by weighing the economiccircumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and the materialadvantages that may be available in the home of one contender or the other. The welfare of the child must be decided on considerationof these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child.

It must be theaim of the Court, when resolving disputes between rival claimants for the custody of the child, to choose which will best provide for the

healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult. Parental claims must not be lightly set aside, they are entitled to serious consideration in reaching any conclusion. Where it is clear thatthe welfare of the child requires it, however, they must be set aside.” [31] Justice Goodfellow, in his often quoted decision Foley v. Foley (NS SC), [1993] N.S.J. No. 347, outlinedfactors generally relevant to an assessment of what parenting arrangement is in a child’s best interest.

At paras. 16-20, he wrote: 16 Nevertheless, there has emerged a number of areas of parenting that bear consideration in most cases including in no particular orderthe following: 1. Statutory direction Divorce Act 16(8) and 16(9), 17(5) and 17(6); 2. Physical environment: 3. Discipline; 4. Role model; 5. Wishes of the children - if, at the time of the hearing such are ascertainable and, to the extent they are ascertainable, such wishesare but one factor which may carry a great deal of weight in some cases and little, if any, in others.

The weight to be attached is tobe determined in the context of answering the question with whom would the best interests and welfare of the child be most likelyachieved. That question requires the weighing of all the relevant factors and an analysis of the circumstances in which there mayhave been some indication or, expression by the child of a preference; 6. Religious and spiritual guidance; 7. Assistance of experts, such as social workers, psychologists- psychiatrists- etcetera; 8. Time availability of a parent for a child ; 9. The cultural development of a child: 10.

The physical and character development of the child by such things as participation in sports: 11. The emotional support to assist in a child developing self esteem and confidence; 12. The financial contribution to the welfare of a child. 13. The support of an extended family, uncles, aunts, grandparents, etcetera; 14. The willingness of a parent to facilitate contact with the other parent. This is a recognition of the child's entitlement to accessto parents and each parent's obligation to promote and encourage access to the other parent. The Divorce Act s. 16(10) ands. 17(9); 15.

The interim and long range plan for the welfare of the children. 16. The financial consequences of custody. Frequently the financial reality is the child must remain in the home or, perhapsalternate accommodations provided by a member of the extended family. Any other alternative requiring tworesidence expenses will often adversely and severely impact on the ability to adequately meet the child's reasonable needs; and 17. Any other relevant factors. 17 The duty of the court in any custody application is to consider all of the relevant factors so as to answer the question.

With whom would the best interest and welfare of the child be most likely achieved?

18 The weight to be attached to any particular factor would vary from case to case as each factor must be considered in relation to all theother factors that are relevant in a particular case. 19 Nevertheless, some of the factors generally do not carry too much, if any, weight. For example, number 12, the financial contributionto the child.

In many cases one parent is the vital bread winner, without which the welfare of the child would be severely limited.However, in making this important financial contribution that parent may be required to work long hours or be absent for long periods,such as a member of the Merchant Navy, so that as important as the financial contribution is to the welfare of that child, there would notlikely be any real appreciation of such until long after the maturity of the child makes the question of custody mute. 20 On the other hand, underlying many of the other relevant factors is the parent making herself or, himself available to the child.

Theact of being there is often crucial to the development and welfare of the child. [32] In N.D.L. V M.S.L. (2010) 289 (N.S.R.) (2d) 8 (NSSC) Justice MacDonald stated as follows: “What parenting arrangement is in the best interest of this child? Many courts have attempted to describe what is meant by “bestinterests”. Judge Daley in Roberts v Roberts, 2000 Carswell NS 372 (Fam.

Ct.) said: “These interests include basic physical needs such as food, clothing and shelter, emotional, psychological and educational development,stable and positive role modelling, all of which are expected to lead to a mature, responsible adult living in the community...” [33] Counsel have also referenced the Court to other decisions where issues of joint v shared parenting were decided. In particular Ihave been referred to : Murphy v Hancock 2011, NSSC 197; C.(J.R.) V.

C. (S.J.) 2010 NSSC 317; Ellsworth v Ellsworth (2002)2002 NSSC 195 , 208 NSR (2d) 1 (NSSC); Cleaves v Cleaves 2010 NSSC 322; and Hammond v Nelson 2012 NCSC 27; [34] In reviewing the parties submissions and supporting cases I think it is appropriate to stipulate from the onset my agreementwith the remarks of A.C.J.

O’Neil in Murphy v Hancock, supra, at paragraph 49: Jurisprudence of the issue of whether shared parenting should be ordered is very fact specific I agree with the comments of JusticeWright in Hackett v Hackett [2009] N.S.J. 178 at paragraph 13: 13 It is all well and good to look at other cases to see how these principles have been applied but the outcome in other cases is really oflittle guidance. Every case must be decided on a fact specific basis and nowhere is this to be more emphasized than incustody/access/parenting plan cases.

To state the obvious, no two family situations are ever the same. [35] There is no doubt that both the Applicant and the Respondent love their daughter, Emily, very much.

Although the Respondenthas been the primary care giver most Emily’s young life, the Applicant has signalled, in a major way, his desire to be more involved inthe parenting of his daughter by re-locating from Ontario to Glace Bay, Nova Scotia. [36] In the Court’s opinion, the parties were at the close of this proceeding, not all that far apart in their respective positions. [37] The Respondent’s initial position regarding access seemed somewhat restrictive and rigid to the Court and one can understandthe Applicant’s frustration in this regard.

Under cross examination the Respondent’s position softened somewhat to the extent that sheagreed to immediately increase access, although still opposed to shared parenting in principle. [38] The Respondent now seems quite willing to be more diligent in ensuring Emily spends more time with her father and to nolonger impose restrictions she may have had earlier imposed under the guise of what she thought was best for Emily.

[ 39 ] In this analysis the Court has scrutinized all of the evidence with care, including the historical evidence which generated some conflict that ultimately resulted in the filing of this Application by Mr. McNeil. [ 40 ] That being said there now appears to be a genuine consensus building between the parties in an effort to move forward in Emily ’ s best interest as opposed to blaming each other for past events.

Under the latter circumstance it was inevitable that access would be adversely affected. [ 41 ] The evidence from both parties confirms that in spite of past events both accept that each is a good and capable parent and the Respondent further acknowledges that the Applicant should have more access to his daughter than presently is the case. [ 42 ] The primary issue before the Court is thus a very narrow one in that the parties differ only as to whether or not the increased access should result in the parenting arrangement changing from joint to shared. [ 43 ] To make such a determination the Court need only assess the go-forward parenting plan of the parties in the child ’ s best interest.

The historical differences of the parties, with respect, do no assist in this analysis. [ 44 ] Although having been fully considered by the Court, it is not the Court ’ s intention to unduly focus on historical events. The Court prefers to weigh and to assess the respective merits of each parties ’ parenting plans as they pertain to Emily ’ s best interests. [ 45 ] In Murphy v Hancock , supra A.C.J. O ’ Neil discussed the factors to be considered for shared parenting.

At paragraph 50 he stated: [50] Within the assessment of the best interests of a child when shared parenting is proposed a number of factors frequently prove important. They are refinements to the best interests analysis discussed earlier. The factors are the following: 1. The proximity of the two proposed homes to each other is an important factor to consider.

This is a relevant to assessing how shared parenting will impact on all aspects of a child’s life, including what school the child will attend, what recreational or social relationships will be disrupted or preserved and how available each parent will be to the other should shared parenting be ordered; 2. The availability of each parent to the child on a daily basis and the availability of step-parents is an important consideration.

A court should also consider the availability of members of the respective extended families and whether a shared parenting arrangement impacts negatively or positively on a child’s relationship with the extended family; 3. The motivation and capability of each parent to realize their parenting opportunity for the best interests of the child; 4. Whether a reduction in transitions between households can be achieved by a shared parenting arrangement. This is particularly important when transitions frequently give rise to conflict between the parents; 5.

Whether mid-week parenting time or contact with the other parent can be structured without disrupting the child. This contact might be after school or after supper time, for example, the objective being the elimination of extended periods without contact between the child(re) and a parent; 6. The opportunity, if any, that shared parenting provides for each parent to be involved in decision pertaining to the health, educational and recreational needs of the child; the level of interest each parent has in participating in decision making these areas is relevant to this assessment;

7. The responsibility that shared parenting imposes on each parent to share the parenting burden and to be involved in decisionspertaining to the health, educational and recreational activities of the child and an assessment of each parent’s willingness toassume their share of that responsibility after entrusted with it; 8. The employment and career benefits that may accrue to each parent as a result of a shared parenting arrangement and a moreequal sharing of the parental responsibilities; 9.

Whether improvements in the standard of living in either or both households may accrue as a consequence of a sharedparenting arrangement; 10. The willingness and availability of parents to access professional advice on the issue of successful shared parenting; 11. The extent to which primary care by a parent and more limited access time by the other parent will give rise to conflict in theparenting arrangement. The “elephant in the room” in many custody disputes has three aspects (

a) the child support consequencesthat flow from a shared parenting arrangement or the alternative and (

b) the manner in which a primary care parent can use hi/her position to have power and control of parenting and (

c) whether a parent will abuse the parenting opportunity by doing so. Sharedparenting is often not ordered because the parties are too conflictual, notwithstanding that the conflict may result from a poserimbalance in the parents’ relationship flowing from the parenting arrangement in place, Courts must be cognizant of this dynamic; 12. An assessment of the parenting styles. That assessment should address/answer the questions posed by Justice MacDonald inC.(J.R.) v.

C. (S.J.) 2010 NSSC 85 , 2010 NSSC 85, at paragraph 12: - What does the parent know about child development and is there evidence indicating what is suggested to be “known” has beenor will be put into practice? - Is there a good temperamental match between the child and the parent?

A freewheeling, risk taking child may not thrive wellin the primary care of a fearful, restrictive parent. - Can the parent set boundaries for the child and does the child accept those restrictions without the need for the parent to resortto harsh discipline? - Does the child respond to the parent’s attempts to comfort or guide the child when the child is unhappy, hurt, lonely,anxious, or afraid? How does that parent give comfort and guidance to the child? - Is the parent emphatic [empathetic?] toward the child?

Does the parent enjoy and understand the child as an individual oris the parent primarily seeking gratification of his or her own personal needs through the child? - Can the parent examine the proposed parenting plan through the child’s eyes and reflect what aspects of that plan may causeproblems for, or be resisted by, the child? - Has the parent made changes in his or her life or behaviour to meet the child’s needs, or is he or she prepared to so for thewelfare of the child? [46] Justice Dellaphinna in Hammond v Nelson, supra reviewed the above listed factors in conjunction with the decision of A.C.J.

O’Neil in Gibney v Conohan 2011, NSCC 268 and Justice Stewart in Rivers v Rivers 130 NSR (2d) 201. He stated at paragraph 68 as

follows: [68] As a result of reviewing the case law presented and listening to the submissions of counsel, I have attempted to summarize some ofthe considerations that the Court may consider when asked to decide whether a shared parenting arrangement should be ordered in anygiven case over the objections of one of the parents. It is not intended to be an exhaustive list. Those considerations include thefollowing: 1. In different circumstances would the Court consider each of the parents to be an appropriate “primary parent”? Equal joint and sharedcustody essentially places both parties in that position. 2.

If a parent resides with a partner the Court must be satisfied that the partner is fully supportive of the parenting plan, that the child andthe parent’s partner have a good relationship, that the parent’s partner is an appropriate secondary support to the parent and is a suitablerole model to and influence on the child. Evidence of instability in the relationship between the parent and his/her partner may also be aconsideration. 3.

Does anyone else reside with the parent, such as other children, room mates, boarders and the like, and if so, what would be the effectof their presence in the same household on the child? 4. Do the parents live in close proximity of each other? A shared parenting arrangement should not be at the expense of the child’sability to maintain relationships with his/her peers.

Ideally the residences of the parents should be sufficiently close to each other thatthe child, when old enough to be outside the home without the direct supervision of her or his parents, should be able to easily walk fromone parent’s home to the other and, just as important, should be able to maintain friendships in his/her neighborhood and to go to andfrom school as easily from one parent’s home as the other. If the parents’ homes are not in close proximity then more than likely thechild’s social network will suffer. 5.

The age maturity and personality of the child and how those factors may impact the child’s ability to cope with shared custody. If achild is very young such that they are napping and/or breast-feeding then shared parenting may not be workable. Further, the youngerthe child the more dependent the child is on the parents for transportation, social activities and the like. Older children tend to be moreresilient, independent and more able to go from one parent’s home to the other and to connect with their friends. Also, some childrenmay adapt to a shared parenting arrangement more easily than others.

Every child is different. While efforts should be made tominimize costs, the opinion of an expert in this area would almost always be helpful to the Court. 6. The wishes of the child if ascertainable. The child’s preference is often relevant and the weight to be given to the child’s opinionwould, as always, depend on, among other things, the age and maturity level of the child. 7. The communication level between the parents and their ability to cooperate with each other and make decisions together.

It is easy tosay that parents should put aside their differences and do what is necessary to serve the best interests of their children but the Court mustrecognize human nature for what it is. Many couples are able to set aside their personal differences for the sake of their children andfrequently are able to agree upon a shared parenting arrangement that works for them and their children. The Court sees it in agreementsthat accompany consent orders. However, frequently parents whose relationships have broken down are unable to achieve the necessarydegree of cooperation in spite of their best efforts.

A shared custody arrangement requires an unusual level of cooperation between theparents on a day in and day out basis. As Justice Coady said in Bryden, supra, it is “the rare case, the rare parents and the rare children”who can make shared parenting work. It is essential that the parties communicate with each other, keep each other informed of mattersrelating to their child and make decision together.

If the Court is not satisfied that they can then imposing a shared custody arrangementover the objections of one of them may lead to a deterioration of an otherwise good relationship and subject the child to conflict andinstability. At the same time, however, the Court must not give a license to litigants to be disagreeable simply to defeat a joint or sharedcustody determination. (See Farnell v Farnell, 2002 NCSC 246; 2002 NSSC 246 , 209 N.S. R. (2d) 361 (NCSC)).

An indicatorof whether the Court can reasonably expect the required degree of communication and cooperation may be found by looking at theparents’ parenting history. Were both parents active parents prior to the break down of their relationship? Were they able tosuccessfully co-parent at anytime prior the hearing? If so, there may be reason to believe that arrangement (or something like it) couldcontinue. 8. Ultimately the Court must consider what is in the best interests of the particular child who is the focus of the inquiry. It is difficult toargue against the fairness of shared parenting.

If a parent truly loves his/her child and wants and is prepared to parent them, then it

would seem completely unjust to them to have to accept anything less than an equal opportunity to do so. The Court’s focus however is on the child. The wishes of the parents, although important and require serious consideration, come second to what the Court believes is best for the child. [ 47 ] As stated earlier I have scruntized all of the evidence with care. Whether or not the Court has specifically commented on all aspects of the evidence I have nonetheless considered the totality of the evidence in making this decision.

In this regard I have looked for clear, convincing and cogent evidence, coming to the following conclusion, acknowledging that Emily is too young to express her opinion as to her preferred parenting arrangement. [ 48 ] Both parties are capable of being primary parents in their own right. They both have good parenting skills, have suitable residences and they have respectively shared quality time with Emily although not to the satisfaction of the Applicant in terms of frequency. [ 49 ] Both parties have time to spend with Emily, although the Respondent ’ s work

schedule is more typical 8:30 a.m. to 4:30 p.m. which would afford her more time to be with Emily, than the work

schedule of the Applicant which includes longer work days and unforseen overtime. [ 50 ] Bother parties must rely on secondary child care support such as day care and extended family when both are actively working. [ 51 ] In this regard all extended family are suitable role models and are supportive of the respective parenting plans.

There is no evidence to suggest that interaction with either of the Applicant or the Respondent ’ s families in any way presents an issue for Emily ’ s health and well being. [ 52 ] If there is a concern it may be with the transportation of Emily to and from school when in the care of the Applicant. The evidence is that Ms. McNeil would potentially be responsible for this task in the midst of her “ day care business ” operated from her home. [ 53 ] It has been established that Mrs. McNeil picks up day care children in her vehicle on the way to Emily ’ s school. It then begs the question whether or not Mrs.

McNeil can leave her vehicle unattended to physically escort Emily onto the grounds of the school. This may be a potential safety issue which concerns the Court. [ 54 ] It is also apparent that Emily becomes part of the day care family upon her return from school. This can have both advantages and disadvantages, but on the balance I do not accept that it is Emily ’ s best interests to be caught up in the daily working environment of Mrs.

MacNeil as opposed to being able to play and socialize with her school and neighbourhood friends after school. [ 55 ] The parties do live in close proximity to each other, but not sufficiently close for the Court to favour the prospects of shared custody over joint custody . It takes approximately 7 - 10 minutes to drive 4 - 5 km from the residence of one parent to the residence of the other parent.

It is not a walkable distance for Emily under any circumstances regardless of her age. [ 56 ] This distance may impede Emily ’ s ability to maintain friendships in her neighborhood and more than likely her social network will suffer if she is removed from same on a weekly basis as proposed by the Applicant. [ 57 ] It is important for a six year old child to have a sense of home which affords the child stability. She needs a home base. At this age Emily is fully dependent upon her parents for most, if not, all of her needs.

As Emily grows and matures and become less dependent on her parents this will undoubtedly change however at this point in time it is the Court ’ s conclusion that it is in Emily ’ s best interests to have a stable and consistent place to call home.

[ 58 ] In Murphy v Hancock , and Gibney v Conohan , Supra, A.C.J. O ’ Neil ordered shared custody. In so doing, however, he found it was significant to him that the parties lived in close proximity to each other so as to permit the children to maintain there peer relationships in their community and would be in their school district regardless of whether they were with their mother or father. This is not the case here. [ 59 ] As stated by Justice Dellepinna in Hammond v.

Nelson , supra at paragraph 86: [86] While there are attractions to the Applicant’s plan including that Paige would never be away from either parent for more than three days and nights in a row it also means that Paige is never in one home for more than three days or nights in a row. Some people would say that Paige would then have two home. The opposing view is that she would have no real home at all. [ 60 ] Regarding communication between the parties the evidence is mixed.

As stated earlier the Court is satisfied that the parties are working and will continue to work on this area of conflict in Emily ’ s best interests. The parties are agreeable to taking professional counseling which is yet another positive sign of their commitment in this regard [ 61 ] They do communicate, but in an awkward manner through e-mail and texting. They do not, for example, each tell the other everything that the other would want to or expect to know. Their communication must improve so as to reduce conflict between them when making decisions in Emily ’ s best interests.

A shared custody arrangement requires an unusual level of cooperation between the parties on a day to day basis. The Court finds that the parties have yet to achieve this level of communication, but they certainly have the potential to do so. Counseling will be of assistance in this regard. As stated by Justice Williams in Mahoney v.

Malone , 2009 NSSC 217 at paragraph 43 : ...The courts in Nova Scotia have been rather consistent in considering shared parenting arrangements and expressing the view that a greater degree of communication and cooperation is needed for those relationships to work than in more traditional custody arrangements. [ 62 ] Although the parties had initially agreed to a joint custody arrangement it is apparent that the Respondent had taken the initiative to make some unilateral decisions without consulting the Applicant. [ 63 ] This may have been necessary while the Applicant was resident out of Province but his relocation to Glace Bay has clearly changed everything and no doubt added to the Applicant ’ s frustration in exercising access. [ 64 ] Unfortunately it has necessitated a court hearing for the Respondent to realize and acknowledge that some of her actions regarding Emily ’ s access were self serving and not in the best interests of Emily. [ 65 ] Nonetheless, upon review of the evidence I find that the parenting plan proposed by the Applicant is not in Emily ’ s best interests and I must therefore reject same.

I do not believe that a shared custody arrangement will function as it should in Emily ’ s best interest. [ 66 ] I therefore conclude that an equal shared parenting arrangement would not be in Emily ’ s best interest at this time in her life (emphasis added). [ 67 ] I find that, that on a balance of probabilities the parenting plan proposed by the Respondent is the one that is in Emily ’ s best interest and I accept the submission of the Respondent in this regard..

[ 68 ] I am comforted in this decision by knowing that the intent of the joint custody arrangement will now be more workable with the renewed commitment to joint parenting by both Mr. McNeil and Ms. Peach.

CONCLUSION [ 69 ] I have fully reviewed and considered all of the evidence , including the Exhibits, submissions of counsel and relevant case law. [ 70 ] Emily is a happy and healthy child who has the benefit of two loving and caring parents. [ 71 ] Despite some past difficulties in respecting the role of co-parenting the Court is of the view that the Applicant and Respondent can and will now move forward in a productive and positive manner to the benefit of all concerned, most importantly in the best interests of their daughter Emily. [ 72 ] In ordering joint custody the Court directs that each parent will have a full and active role in providing a sound, moral, social, economic and educational environment for Emily.

The parties should thus consult each other an all substantial questions relating to Emily ’ s general welfare. Neither party should make a major - decision regarding Emily without the consent or concurrence of the other, except on an emergency basis.

In the event the parties are unable to agree, final decision ultimately shall be vested with the Respondent. [ 73 ] The Respondent shall have primary care and control of Emily with the primary residence being that of the Respondent. [ 74 ] The applicant shall have reasonable access at reasonable times on reasonable notice specifically to include: (a)Every second weekend from Thursday at 6:30 p.m. until Monday morning at 9:00 a.m. at which time the child will be returned to the Respondent and/or delivered to school as circumstances dictate; (

b) During the alternate week the Applicant shall have two evening visits with Emily after school at 2:30 p.m. and to be returned to the Respondent’s residence by 7:00 p.m.; (

c) Such other and further access as may be agreed upon by the parties from time to time but to include (

a) extended and/or block access for both parents during the summer vacation period; (

b) shared March break; (

c) quality time for birthdays, on special occasions such as Mother’s Day and Father’s Day; (

d) shared Christmas and Easter as agreed upon by the parties. ( d)The parties shall undertake professional counseling to address their respective communication issues; ( e)The Applicant shall pay child support in the amount of $345.00 per month (based upon the Applicant’s annual salary of ($41,007.27) commencing the 1 st day of April, 2012 and payable each and every month thereafter until otherwise ordered by a Court of competent jurisdiction.

This Order shall replace the Order of the Ontario Court of Justice dated June 28, 2010 which is hereby terminated. [ 75 ] I find that each party presented their respective positions in an honest way believing that each was acting in the best interest of their daughter, Emily. There was no abuse of parental authority or an attempt to avoid child support by either party in having this matter before the Court. As such, each party will bear their respective costs of this proceeding.

Order Accordingly, ________________________ Justice.