C.L.T. Applicant v. D.T.T., 2022 NBKB 239

2022 NBKB 239 COURT FILE: FDSJ 399-2022 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: C.L.T. Applicant and D.T.T. Respondent Before: The Honourable Mister Justice Danys R.X. Delaquis Date of hearing: October 26, 2022 Date of Decision: December 8, 2022 Appearances: Josh Adams - for the Applicant Timothy Murphy - for the Respondent

Summary: Relocation, interim decision-making authority and parenting time DECISION

DELAQUIS, J.: OVERVIEW [ 1 ] On June 7, 2022, an Emergency Intervention Order (“EIO”) was granted against the Respondent for 30 days, alleging domestic violence. Shortly before the expiry of the EIO, on July 1, 2022, the Applicant decided to relocate with the child of the marriage, A.V.T. [D.O.B.…(2013)], from Burnt Church to a women’s shelter in St.

Stephen, N.B. [ 2 ] On September 26, 2022, the Applicant filed an Application (Form 81A) requesting various relief including an abridgment of time, that A.V.T. be placed into her primary care along with sole decision-making authority, child support and a non-harassment order. [ 3 ] The request for an Abridgment of Time was granted and a first Appearance was held on September 29, 2022. The Respondent did not appear and as result, a Case Conference was held on October 5, 2022, with counsel for both parties.

The Respondent raised a number of issues including jurisdiction to hear the Application, notice of relocation under the Family Law Act , S.N.B. 2020, c.23 [the “ FLA ”] and what was an appropriate Interim Parenting Order for A.V.T pending a more fulsome hearing on Application. The Court ordered, inter alia , after the Case Conference that: 1. Pursuant to

section 11.2 of the Judicature Act and considering the circumstances alleged in the Applicant mother’s Affidavit, this proceeding shall proceed in the Judicial District of Saint John. 2. Pursuant to subsection 60(6) of the Family Law Act , the Applicant mother’s relocation to St. Stephen with [A.V.T.] born [… 2013] hereinafter (“[A.]”) did not require formal notice to the Respondent father under

section 60 of the Family Law Act due to a risk of family violence as alleged in her Affidavit. 3. Pursuant to subsections 52(2) and (4) of the Family Law Act , [A.] shall be placed in the Applicant mother’s primary care forthwith. 4. Pursuant to

section 54 of the Family Law Act , the Applicant shall have Final Decision-Making Authority for major decisions involving [A.]. 5. Pursuant to Rule 3.02 of the Rules of Court of New Brunswick , Time for Service shall be Abridged for the further Hearing of this matter. This matter shall return for a Hearing with viva voce evidence on October 26, 2022, at 9:30 AM to determine a parenting

schedule that is in [A.]’s best interests on an interim basis. 6. No later than October 19, 2022 , the Respondent father shall file the following documents with this Court and serve them on counsel for the Applicant mother: (

a) Answer (Form 81C); (

b) Affidavit in Support of Claim for Parenting Order (Form 81B); (

c) Sworn or solemnly affirmed Financial Statement (Form 72J); and (

d) Any Affidavit evidence on which he intends to rely for the Interim Hearing. [ 4 ] The parties re-appeared before the Court on October 26, 2022, with counsel. Both parties provided viva voce evidence at the hearing, including cross-examination. Post-hearing briefs were submitted by the parties on November 9 and 10, 2022.

[ 5 ] The Respondent challenges the allegations of domestic violence and invites the Court to make adverse findings of credibility against the Applicant on this and other points. The entire family resided in Burnt Church prior to separation. The parties, as well as their daughter A.V.T., are Indigenous and members of the Burnt Church Band.

The Respondent takes the position that it is in A.V.T.’s best interests to continue to reside with him in Brunt Church in order to maintain ties with her Indigenous culture and heritage. [ 6 ] The Applicant also wishes to maintain A.V.T.’s connection with her Indigenous heritage and culture and has taken steps herself to do so in August 2022. Furthermore, she does not wish to keep A.V.T. away from her father. She however maintains significant concerns about past and future domestic violence, and an ongoing intense fear of the Respondent.

Drug use has been part of their relationship in the past, but since March 2022, the parties have apparently taken steps to escape that lifestyle. [ 7 ] It is clear that the parties are now involved in a very conflictual relationship. The parties do not trust each other. The Applicant’s relocation to St. Stephen has placed A.V.T. at quite some distance from the Respondent. Because A.V.T. attends school in St. Stephen, the Court is faced with the task of determining if she should relocate again to Burnt Church and attend school in Miramichi as the Respondent argues, or whether A.V.T. should stay in St.

Stephen with her mother but grant as much parenting time and decision- making authority as possible to the Respondent, despite the distance between them. In other words, the Court must determine, at this stage, the difficult issue of what interim parenting order is in A.V.T.’s best interests pending the disposition of the Application. FACTS [ 8 ] The Applicant and the Respondent began living together in 2005 and married in 2013. They separated on March 10, 2022. They are the biological parents of A.V.T., who is now 8 years old. [ 9 ] The parties moved to Burnt Church with A.V.T. on December 3, 2021.

The evidence is that they moved into a residence that did not have running water. However, they had access to running water at the Respondent’s parents’ residence next door, anytime they needed it. [ 10 ] The parties ran a cash business cannabis store on the same parcel of land that they resided on in Burnt Church. They each owned 40 percent of the business with another partner owning the remaining 20 percent interest. [ 11 ] The evidence from the Applicant giving rise to the Application is as set out in her Affidavit, which I will refer to in detail: 4.

I now live in a 3-bedroom house provided through Skigin-Elnoog Housing Corporation, which provides subsidized housing to Aboriginal women fleeing domestic violence. 5. Since the weekend of September 10, 2022, the Respondent has refused to return [A.] to me. He only let me speak to her for [A.] to tell me she wanted to stay with him. [A.] is now missing school at Saint Stephen Elementary. 6. The Respondent does not have indoor plumbing or running water at his residence. [A.] has informed me and I believe they were defecating in buckets there in July 2022.

The Respondent lives on the same property as his parents. 7. During our relationship, the Respondent was verbally and physically abusive to me in front of [A.]. The Respondent made everything an argument and he slammed doors and threw objects when he was upset in front of [A.]. (…) 9. For seven (7) years from 2013 until 2020, the Respondent went to work Out West on a two (2) weeks out, one (1) week back basis. In 2020, he lost this employment after he tested positive for using cocaine. 10. The Respondent has financially been controlling me by draining our joint bank account twice: once in July 2021 and once on

February 3, 2022. Both times he was reacting to me telling him I was leaving him. He has threatened multiple times to "leave you on the streets with nothing." At one point, he gambled away our last $1,000 online and only let me know after the money was gone. 11. The Respondent frequently used the hard drug speed later in our relationship. He would yell at me and bang his fists on the table and walls when he was upset. He would squeeze my arms to hold me in place and yell into my face. He pushed me toward hard drug use because he needed to use to function. 12. I have been providing the Respondent visits with [A.].

It is important [A.] is able to participate in her cultural traditions of the Mi'gmaq people, of which the Respondent is a member and my mother is a member on reserve. This was also the case before separation. The Respondent had a week with [A.] in late August 2022. 13. I then provided the Respondent's parents a visit with [A.] the weekend of September 10, 2022. The Respondent convinced [A.] to go over to his residence and he then refused to return [A.] to me. 14. The Respondent would travel for work Out West for weeks at a time while we were together.

I have always been the primary parent looking after [A.], helping her with homework, and cooking her meals. I also scheduled appointments for [A.] and attended the majority of them. As [A.] is enrolled in French Immersion, I was the parent who helped with her schoolwork. [A.] seemed to enjoy her first week of school at Saint Stephen Elementary and made many friends. 15. On February 3, 2022, I was working at our business. The Respondent came by and took my car keys from my pocket. He then took my car and went to my grandmother's residence.

My grandmother informed me and I believe the respondent ransacked my bedroom at my grandmother's residence twice that day searching for cash between which he drained our joint bank account 16. Later that day, there was a power outage. The Respondent came to our business. I was starting up my new laptop. The Respondent started arguing with me out of the blue. He took the laptop and held it behind his back. I tried to reach the laptop and he pushed me across the room with his forearm on my neck and pinned me against the wall. He told me to " get the f*** out " repeatedly and smashed the laptop and our keyboard.

He then held my other, older laptop behind his back and taunted me. The Respondent is facing criminal charges from this incident. 17. On March 10, 2022, I agreed to go for a drive with the Respondent because he offered I could come with him if I was worried about what he was doing. In the car, the Respondent hurled his phone at me. It struck my knee hard The Respondent then put me in a headlock and wrestled me for his phone. 18. I got out of the car and ran into my home. The Respondent backed up quickly then drove the car at me. I locked the door which had a hotel-style flip lock.

The Respondent kicked the front door of my house so hard the lock broke off the doorframe and the door flew open. He later informed me I had " pushed him to do that ". (…) 21. The Respondent is a very convincing manipulator. He spent years gaslighting me and projecting his faults and insecurities onto me. He only allowed me to speak to [A.] so she could tell me she wanted to stay with him. At that time, he had me convinced I had a drug and gambling problem. (…) 24. I have been trying to cooperate with the Respondent. Any time he requested photos of [A.], I sent them. I left our home with almost nothing.

My requests for assistance, support, and some furnishings for [A.] have been met with "I will only discuss [A.], anything else needs to go through our lawyers." These things all involve [A.] as many of them have to do with keeping things as normal as they can be for [A.].

(…) 28. I am now enrolled in counselling through Victim Services which I began attending in April 2022. I have been diagnosed with PTSD from my relationship with the Respondent. I cannot live in the same community as the Respondent because I know he will continue to try to control me. I am in constant anxiety about the Respondent not giving [A.] back or stalking me which he has done multiple times since we separated. [ 12 ] For his part, the Respondent agrees with paragraphs 1 to 4, 8, 9, 22 and 28 of the Applicant’s Affidavit.

Here are the salient parts of his Affidavit that represent the areas of disagreement: 8. On May 15, 2022, the Respondent picked up our child and refused to allow me any access or parenting time. Prior to this time, we had been dividing the parenting time between us on a 50/50 basis while trying to secure respective lawyers in order to get a separation agreement. It was our desire that this not end up in Family Court. 9. The Respondent went to live somewhere, other than her mother's, and would not disclose the location.

The Respondent would tell me that I could speak with our daughter during certain set times, but every time I tried to reach out no one would ever answer. (…) 17. I first saw my daughter again in person in mid-July of 2022. I cannot recall the precise day. My solicitor arranged this, and I had her for a week. I returned her to the Applicant after the end of the week. 18. On August 19, 2022, that the Respondent had permanently relocated from the Burnt Church reservation to St. Stephen, New Brunswick. 19.

On Sunday, September 11, 2022, after another scheduled parenting time, I was telling our child that she was going to have to leave with her mother, again. At this time, [A.] broke down in tears. 20. I told [A.] that I would speak with her mother about staying for another day and that I would talk about her going back to school in Burnt Church. This excited our child, and she told me she wanted to go back to school in Miramichi, at Max Aitken, and not go back to St. Stephen. 21. My parents live next door, [A.]'s grandparents, and she has spent a significant amount of time with them growing up.

I wish for this to continue as our daughter is very close with them and they provide significant emotion and psychological support. (…) 33. The Applicant states in her affidavit that I am an abusive husband and have been violent to her in front of our child. This is not true. There have certainly been incidents of fighting and yelling and the Applicant conveniently leaves out her involvement in these episodes. 34. The Emergency Intervention Order that the Applicant sought to impose was an abuse of that recourse, and the allegations which she has made are entirely untested in Provincial Court in Miramichi.

What is true is that I broke a laptop, which I owned.

35. The Applicant claimed at paragraph 15 of her affidavit that I had "ransacked" a bedroom at her grandmother's home. While the property was in no way "ransacked", I did search her room. What the Applicant conveniently omits from her affidavit was that she was caught stealing money from the business, which infuriated our business partner. I was trying to find the cash which had been stolen. 36. The Applicant highlights in her affidavit that I was pressuring her to use hard drugs. This is simply not true. 37.

Attached as Exhibit Al and A2 on USB drive (bearing file numbers 'Al' and 'A.2' respectively) are copies of voice recordings which the Applicant sent me by text message on February 2, 2022, where she is begging me to provide her with Speed, a form of Methamphetamine. 38. This is what is said by the Applicant in Exhibit Al verbatim: [D.], this is unfair. I have a health issue and you know that if we don't have anything else to help it that I struggle and that's what happened yesterday. Guess what, we didn't get it on time and then this happens. This fight. You can't _hold that against me.

When you stayed in bed for 2 days, I didn't do that to you. You're being so unfair. Not fair." 39. This is what is said by the Applicant in Exhibit A2 verbatim: "(Coughing) I think that's just really rude of you. Uhm, to not pick up. I would like some pills from Silver. I know you got some. Obviously, you were up all night, uhm and I could tell. I need them too and you know that. You know I need them to stay awake 'coz of whatever reason and that that's why I have been struggling. So, I don't understand why you're withholding them. I would like to get some work done.

I was calling to see if you were still gonna be grumpy at me because I was gonna work from here. I was gonna ask you to grab my stuff and bring me some stuff and leave it here. That's all. I'm not trying to start a fight and the fact that when you just hang up and do that. What is that actually even mean? I got 2 words out and you hang up so how do you even know I start a fight. I’m not." (…) 41. The Applicant has been addicted to drugs, on and off, for an extended period of time, and I am not responsible for this.

I accept that we used drugs together, were co-dependent and enabled each other; however, the accusation that I am responsible for her drug habits is not true. 42. I have never pressured or forced the Applicant to do drugs and she was more than a willing participant any time that drugs were being consumed. The Applicant refuses to take responsibility for her own drug use. 43. While it is true that I have struggled with drugs in the past, and I do not disagree that I lost an employment while working out west for testing positive for cocaine, I have grown beyond drugs and no longer use illicit substances.

Since the Applicant has absconded with my child, I have no desire to use drugs. I simply want my daughter to come home and it pains me that I know she wants to be home, as well. 44. I have no knowledge as to whether the Applicant continues to abuse Methamphetamine or other illicit substances.

45. Attached as Exhibit C are copies of my most recent drug tests from Dynacare, which I completed at the behest of the Applicant, so that she would stop withholding our daughter from me. This was to no avail, as once I provided the drug tests to her showing I was negative for all substances, other than THC. 46. The Applicant has demanded that I perform further drugs tests of a more comprehensive nature. These drug tests show that I am negative for any illicit substances and that the only thing which I consume now is THC. 47.

In addition to the drug tests, I have also attached as Exhibit D a report from Child, Family & Community Services located on reserve in the Burnt Church First Nation explaining that my home is not a dangerous environment and is safe for my child. (…) 48. The Applicant accuses me in her affidavit at paragraph 13 of refusing to return [A.] to her. This is not true. [A.] refused to leave with the Applicant and stated to her directly, in front of the Applicant on that same day precisely why she didn't want to return. I have this interaction on video. [A.] does not want to live in St.

Stephen, and she told her mother this in no uncertain terms on September 10, 2022. She has no family connections, no friends, or any familiar connections. 49. The Applicant contends in her affidavit at paragraph 31 that she has "suggested" that [A.] go to school in St. Stephen, New Brunswick. This is a lie. The Applicant took [A.] from her home, her community, her family, and her school, without my consent or even explaining what she was doing, or where she was going until after she unilaterally made the decision to do so. I had no say in this. 50.

The applicant states at paragraph 32 that [A.] is "happily" enrolled in school in St. Stephen. This is also not true. In fact, the opposite is true. [A.] is not happy to live in St. Stephen or go to school in St. Stephen. [ 13 ] In addition to the affidavit evidence referred to above, the parties testified at the interim hearing and were cross-examined. Here is a synopsis of their evidence. The Relationship Between the Parties and A.V.T. [ 14 ] The Applicant confirmed that she, along with the Respondent and their child A.V.T., are Indigenous and members of Burnt Church First Nation.

From December 2021 to March 2022, the couple resided in Burnt Church with A.V.T., but were fighting all the time and eventually separated. [ 15 ] The Respondent worked away, in Alberta, until 2020. The Applicant therefore was responsible for A.V.T. while the Respondent was away. When he returned to New Brunswick, they both parented A.V.T. “to a degree”. The Applicant has always been employed except for when she was on Maternity leave and in school.

She completed the Office Administrator Executive Course at NBCC and worked as an Executive Assistant when they lived in Moncton for 15 years. [ 16 ] The Applicant described her employment in Moncton from 8:00 am to 5:00 pm as “aligning” with A.V.T.’s school schedule. The Respondent’s parents helped her whenever needed, especially when the Respondent was away working. The Applicant described that period of time as “smooth” and without issues. On cross-examination, the Applicant testified that when the Respondent was home, she took care of A.V.T. “50% or more” and that he was only home 4-6 months during the year.

However, the relationship deteriorated near the end because the couple were always fighting and “nothing would get done”. It was, as she described it, a “struggle”.

[ 17 ] The Respondent described the Applicant as a “great mom but lousy wife”. Their relationship started to decline 5-7 years ago. While they got along, they grew apart. They both used drugs prior to separation but he “never pushed her”. The Respondent did admit to losing his employment out West as a result of testing positive for cocaine. When asked why they started using speed about two years ago, the Respondent testified that it was for sex. They developed a dependency through their intimacy.

The Respondent has been off drugs since separation and produced two negative drug screens. [ 18 ] After separation in March 2022 up to the EIO on June 7, 2022, the parties agreed to an equal shared parenting arrangement of one week on, one week off although, according to the Applicant, “he fought about it”. [ 19 ] The Applicant testified that A.V.T. seemed fine after returning from parenting time with the Respondent for Thanksgiving, and that she was not upset to leave.

She described A.V.T. as “pretty resilient”. [ 20 ] The Applicant’s request is to provide the Respondent with parenting time every other weekend and alternating holidays. A.V.T. finishes school at about 3:00 pm, so if travel time is included, the ideal pick time would be at about 5:30 pm on Friday and again on Sunday, during the Respondent’s weekends to parent. [ 21 ] The Respondent says that prior to separation, he and A.V.T. were “two peas in a pod”. They laughed and had fun.

Their relationship was everything you would expect between a father and daughter. [ 22 ] The Respondent explained to the Court that he did not withhold the child from the Applicant after she moved to St. Stephen. He only asked if he could have “one more day, one more fucking day”. A.V.T. allegedly became very anxious and wanted to stay with him when he informed her that she had to go back with the Applicant.

The Respondent says that the Applicant completely misinterpreted what he did. [ 23 ] The Respondent alleges that A.V.T. cried when she was informed on another occasion that he was driving her back to be with the Applicant. He believes that parenting should be 50/50, that A.V.T. needs both parents to be involved, but unfortunately, that is “impossible” now. He now wants A.V.T. to come back to her culture, doesn’t want sole-decision making responsibility but says there is nothing for A.V.T. in St. Stephen. The Respondent now resides in a two-bedroom house owned by his uncle with operational plumbing.

He says he “secured” this house and plans to stay there. [ 24 ] On cross-examination, he admitted that he had just moved into the house “yesterday”, being the day before the interim hearing. The Respondent was also questioned about why he never filed an Application to obtain parenting time earlier. He says that the Applicant indicated it would be cheaper without lawyers involved. His response was to the effect of “show me some paperwork” because he thought it was going to be “amicable”.

However, there was an EIO in place which should have alerted him to the fact that it was in fact not “amicable” between the parties. He further admitted that because of his ADHD, he “cannot be pushed”. The Respondent resorted to swearing and bad language a number of times during his testimony. [ 25 ] Since the last Court appearance, the Applicant said she asked the Respondent if he wanted to spend time with A.V.T. He said yes, but then showed up one hour late for pick up and drop off. The Applicant is very anxious about pick ups and drop offs and wishes that it be done through a third party if possible.

Housing [ 26 ] The housing situation after they moved to Burnt Church was not ideal as they had no running water. The reason is that the house was moved onto a property and water needed to be hooked up. They did not own the land. The plumbing was never “hooked up”, so the family relied on the Respondent’s parents’ residence nearby whenever they need water to drink or for personal hygiene. J.B. is the Respondent’s father and works in law enforcement.

The Applicant testified that she does not feel safe in the Miramichi area because law enforcement does not take her allegations seriously and they allegedly made a lot of mistakes investigating her allegations (paperwork not submitted properly), all of which had the result of escalating matters. [ 27 ] The Applicant testified to recently observing the residence in Burnt Church and that “nothing has changed”. It is still “a

mess of a place” and “not much of a home”. On May 15, 2022, the Applicant testified that she observed defecation in buckets and cocaine in the washroom at the residence in Burnt Church. This led to concerns about A.V.T.’s safety and well-being and a call to the Department of Social Development (“DSD”). DSD investigated and determined it was suitable with the understanding that A.V.T. spends time at her grandparent’s residence and could sleep over there if necessary. [ 28 ] Since September 1, 2022, the Applicant resides in a three-bedroom house in St. Stephen. A.V.T. attends school in that area.

The Applicant’s best friend and stepsister, R.G., and her husband, reside in St. Stephen and provide the Applicant and A.V.T. with support as needed. [ 29 ] A.V.T. lived in Moncton her whole life except for one year until December 2021, at which time they moved to Burnt Church. A.V.T. only spent one (1) school year in Grade 3 French Immersion in Miramichi. As soon as the school year ended in June 2022, the Applicant moved away just before the EIO expired on July 7, 2022.

At that point in time, she communicated with Skigin- Elnoog Housing as they provide housing for Indigenous women fleeing domestic violence and offer “second stage housing”. Family Violence and Circumstances Leading to the EIO [ 30 ] The parties would yell and scream during every fight. The Applicant testified that sometimes when they lived in Moncton, A.V.T. was around when they fought. However, most of the fighting according to the Applicant happened when they were at the business or at the house in Burnt Church and that A.V.T. was allegedly not there.

The Respondent testified that their arguments were “exactly what any other married couple would have”. They were “typical arguments between husband and wife” and no one was ever present, in any event. [ 31 ] After separation, the Applicant was “all over the place”. She testified that the abuse “piled up” and that she “had to leave”. More specifically, the Applicant left on March 10, 2022, after what she describes as “the second assault”. [ 32 ] The first assault occurred on or about February 3, 2022. According to the Respondent, this was the last day he did drugs.

He says that she was “poking at him” all day, she was “in my face over and over” and threw stuff at him. He says he asked her to leave, but she refused. This assault allegedly occurred, according to the Applicant, after the couple had been arguing for days. She was at the office working on a new laptop. There was an argument about lying and cheating and stealing money. The Applicant felt compelled to record the incident, but when the Respondent realized this was happening, “he panicked” according to the Applicant. He grabbed the laptop.

She reached for it and he allegedly pushed her across the room and pinned her to the wall. He then told her to “get the fuck out”. She dropped to the ground, and he smashed the laptop. When he stopped, the Applicant grabbed her old laptop and left the building. She went to her mother’s residence nearby. She then went back to get the dog, then went to the car and “froze”. [ 33 ] The Respondent says that the computer he smashed was owned by the business, not the Applicant. He confirmed taking her by the arm and telling her to “get the fuck out”. He denies pinning the Applicant up against the wall, as she alleges.

All of this occurred later on the same day as the Applicant says the Respondent “ransacked” her rooms. The Respondent admits to “searching” the room looking for money the Applicant allegedly stole. [ 34 ] On or about March 10, 2022, the second assault happened after the Respondent asked the Applicant to order food, which she did. It was to be picked up at 10:20 p.m. An argument ensued about the late food. She questioned where he was. He said, “you think I am gambling, etc.?”. He was hostile at the house. He offered to take her for a drive to confirm he was doing nothing wrong. She agreed.

The argument continued and the Applicant alleges that the Respondent threw his phone at her and hurt her. He then put her in a headlock. She froze but ended up “getting out”. The fight escalated and the Applicant says the Respondent “kicked the door open” and said, “what the fuck is wrong”. She gave him her keys and he left. She froze again but called a helpline, gathered her belongings but

realized she had no car to drive because he had it. She called her mother for a drive to escape. [ 35 ] The Respondent’s version of this incident is that he went to get the food but it was taking longer than expected so he waited. When he got the food, it was still hot. They were in the vehicle. For some reason she accused him of cheating on her. She was again “in my face”. He says she started screaming and while he was driving, he gave her his phone. She asked him to “let me out of the fucking car” and said, “I am taking your fucking phone”.

He was worried about losing his phone, because he needs it to do deliveries for the business, so he grabbed the phone out of her hands. He tried to throw the phone on the floor of the car but missed and it hit her left thigh. She then took the keys and ran into the house. He needed the keys to do his deliveries, so he followed her out but she slammed the door on his face.

He says the deadbolt was attached to the door with “finishing nails”, so he “pushed it in” allegedly with minimal force. [ 36 ] The Applicant explained that she applied for an EIO because of a further incident at the local Petro-Canada gas station in June 2022. She pulled in to get gas but saw him in his vehicle. She alleges that he “boxed” her in, came to the side window where A.V.T. was sitting and started to bang on the window. He was yelling ‘I love you A.V.T.”.

In cross-examination, she admitted that he had parked behind her and that the only reason she could not drive forward at the gas pump was because she had to wait for pedestrians in front of her to move. In other words, the Respondent did not really “box her in”. She further admitted that the Respondent had not seen the child in some time, and that he may have been expressing his feelings that he missed her and, in any event, he never “threatened” the Applicant. [ 37 ] The Respondent alleges he drove up to her at the Petro-Canada gas station. He was not staring at her; he was looking for his daughter.

He went behind her and then to see his daughter. He asked her to put the window down. The Applicant said she would not let him do anything. The Respondent says he had not seen his daughter for a while, and he was therefore emotional. He says he was only knocking on the car window, not banging on it, as alleged by the Applicant. She was trying to record him at this stage. He wanted to hug his daughter and talk to her.

He placed his hand on the window and alleges that his daughter said, “I love you dad”. [ 38 ] When the Respondent saw the child about a week later, he said he was “whole again”, and A.V.T. never expressed any negative feelings over what happened at the Petro-Canada gas station. [ 39 ] The Applicant called the police and was assured by victim services that they would call back, but they never did.

The police response to her allegations, namely, not taking her seriously, remains one of her ongoing concerns especially considering that the Respondent’s father works in law enforcement. [ 40 ] She alleges that the harassment is ongoing not only regarding her but also toward her mother who continues to reside in Burnt Church. She claims the Respondent has parked his vehicle at or near her mother’s residence at 2:00 am and that his girlfriend attacked her mother as well.

She also indicated concerns about “girls parading in and out of the house”. [ 41 ] The Applicant referred to having PTSD, exhaustion because of PTSD, in addition to a thyroid condition. The Applicant indicated on cross-examination that both parties suffered from anxiety and were diagnosed at the same time. [ 42 ] As noted above, the Applicant stated in her Affidavit and testimony that she fears the Respondent even to the point that she was afraid he might consider shooting her. However, she could not be certain that the Respondent owned a firearm.

In cross-examination, the Applicant confirmed that she could not say how many times the Respondent “abused her” in the presence of A.V.T. and agreed that he never really “hit” or “struck” her. Drug Use [ 43 ] The Applicant was asked about the couple’s drug use. Before separation she used recreationally but he was always there. The Respondent always got the drugs. When he was out West working, the Respondent was “sober”, but when he was not working it

was “drugs full-time”. By March-April 2021, he was using full-time. Speed was his drug of choice. He would get into “big lows” andbecame very depressed according to the Applicant. She wanted him to get help including therapy “but he never kept his promises aftershe found out about the infidelities”. [44] The Applicant used drugs as well which, according to her, allowed her to “get things done”. It was her coping mechanism.She needed drugs to work at the time. She completed 90 percent of the house and business tasks, so it was a lot for her to handle.

Sheadmitted to doing cocaine prior to separation and after A.V.T. was born. However, since she left the Respondent in March 2022, she hasnot used drugs. [45] The Court heard two audio recordings of a conversation between the parties about drug use. The two audio recordings werethe same ones for which the text was included in the Respondent’s Affidavit, as quoted above. ISSUES [46] The parties filed post-hearing briefs that raised the following issues on an Interim basis: 1. Decision-making authority and parenting time with respect to A.V.T. 2. Ascertaining A.V.T.’s views and preferences. 3. Child Support.

LAW AND ANALYSIS Issue 1 - Interim decision-making authority and parenting time with respect to A.V.T. [47] Although this issue was framed by the parties in their post-trial briefs as specific to decision-making authority and parentingtime for A.V.T., the question of relocation cannot be excluded from the analysis because it explains, at least in part, why the parties arebefore the Court. I refer to Justice Petrie’s comments in D.C.W. v. A.C.M., 2022 NBQB 106 with respect to the difficultchallenge that relocation cases pose: 4.

It is often stated that relocation cases are amongst the most difficult in family law (Reeves v. Brand, 2018 ONCA 263, atparagraph 17). As Justice Godbout recently outlined in B.R.C. v. K.L., 2021 NBQB 147, at paragraph 85, in part: 85.

In reading the many cases that have followed since Gordon, there can be no question that the determination of the mobility rights ofparents is often excruciating for the parents and a daunting task for the courts (…) [48] This case is no exception for a number of reasons including, but not limited to, the credibility issues that permeate theevidence, cultural and heritage considerations, as well as the reality that family violence is part of A.V.T.’s life. [49] I will first address the credibility issue.

I will then refer to the applicable legislative framework in addition to thejurisprudence that governs the analysis. Lastly, I will apply the criteria to the facts of this case to determine the first issue that confrontsthe Court. Credibility [50] The Respondent says the Applicant’s evidence is not credible especially as it relates to the question of family violence andthe events giving rise to the EIO. Family violence is without question a central issue to be considered in this case, and it is a specific

legislative criterion that must be applied. I must therefore assess the parties’ credibility. [51] Perhaps not surprisingly, there are several cases that provide insight into the assessment of credibility in the family lawcontext. In A(

A) v. B(M), 2014 NBQB 197, Madam Justice Wooder provided the following guidance in terms of assessing credibility atparagraph 97: Assessing credibility is a sifting of nuances, impressions and observations impacted by such things as a witness’ demeanour, tone andcandor, as well as the context of his or her evidence. I have in other decisions referred to Kitely, J’s observations in Passarello v.Passarello, 1998 CarswellOnt 2983 (Ont. Gen. Div.) and the criteria established by her by reference to “The Law of Evidence in Canada”by Sopinka J., and Lederman, J.: (

i) the reasonableness of the evidence (ii) whether there are contradictions in the evidence (internal consistency”) (iii) whether the witness’ character has been impugned (iv) personality, demeanour and corroboration (“internal consistency”) (

v) self-interest (vi) powers of observation and recollection (vii) capacity of expression [52] I would also refer to the late Justice Walsh’s comments in Grover v. Ecerova, 2018 NBQB 8, at paragraphs 103 to 104: 103. Credibility assessments are required to be made. There are in essence two aspects to credibility - veracity (i.e., truthfulness) andreliability (i.e., accuracy), but one does not necessarily lead to the other. Put differently, a court must be cautious for even a witnessendeavouring to be truthful can be inaccurate.

As well, it must be recognized that a court can accept all, part, or none of a witness’sevidence, although a finding that a witness was deliberately untruthful on one aspect of the evidence might infect that witness’s entireevidence. 104. There are any numbers of factors that can guide a court in assessing credibility. They include plausibility, internal and externalconsistency, powers of observation, ability to recollect, self-interest, etc. (See: O'Brien v. O'Brien 2011 NBQB 179 at para. 102 (B.M.Robichaud J.) and D. (G.) v.

D. (M.) 2005 NBQB 253 at para. 95 (Wooder J.)); common sense and logic being the underlyingassessment tool. I refer often to the following: ... There can be no rule as to when and to what extent inherent improbability must be taken into account by a trial judge. As LordHoffman observed...: ... common sense, not law, requires that in deciding the question, regard should be had, to whatever extent appropriate, to inherentprobabilities. (F.H. v. McDougall 2008 SCC 53 at para. 48) [53] Also, in S.F.D. v.

M.T., 2019 NBCA 62 , Baird, J.A. succinctly stated what the assessment of credibility involvesin the final analysis, or “at the end of the day”: [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 complete

verbalization. [para. 49] [31] At the end of the day, assessing conflicting evidence is a weighing exercise which requires a trial judge to use his or her common sense and experience. [ 54 ] In this case, both parties have their own respective clear memory of what transpired during the incidents of family violence. In other words, this is not a case where one party’s memory appears to be not as good or as clear as the other’s.

This is not a case where the Respondent, for example, denies even being at the Petro-Canada or close or near the Applicant during the other incidents of family violence. [ 55 ] In fact, there are certain areas of their testimony that overlap to a certain extent. They agree that they fought a lot, and that their fighting involved yelling. The Respondent admitted that he smashed the laptop, but did so because he owned it. He also admits to using foul language such as telling the Applicant to “get the fuck out” after the incident with the laptop.

He further admits to throwing the cell phone toward the Applicant and that it hit her leg. Another example is that the Respondent does not deny going to the Applicant’s grandmother’s house to “try to find the cash which had been stolen”, but he denies “ransacking” the bedroom [para 14 of Respondent’s Affidavit]. The Respondent does not deny being upset at the Petro-Canada because he wanted to see and speak to his daughter, but denies how forceful he was in his endeavour to do so.

He also falls back to the position that the allegations by the Applicant in support of the EIO were “entirely untested in Provincial Court in Miramichi”. [Para 13 of Respondent’s Affidavit]. [ 56 ] The Respondent’s evidence tells a narrative that focuses mostly on what the Applicant’s role was in the incident. In other word, he is either blaming her or deflecting the blame away from himself. Perhaps the best evidence demonstrating this point is at paragraph 33 of his own Affidavit: 33. The Applicants (sic) states in her affidavit that I am an abusive husband and have been violent to her in front of our child.

This is not true. There have certainly been incidents of fighting and yelling and the Applicant conveniently leaves out her involvement in these episodes . [Emphasis mine] [ 57 ] The Respondent is adamant that he has never been “abusive” toward the Applicant or toward A.V.T. The problem with the Respondent’s evidence is that it seems to rely on a very narrow definition of family violence.

Section 1 of the FLA provides a definition of the term “family violence”: “family violence” means any conduct , whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that indicates a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person, and, in the case of a child, the direct or indirect exposure to the conduct, and includes (

a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person, (

b) sexual abuse, (

c) threats to kill or cause bodily harm to any person, (

d) harassment, including stalking, (

e) the failure to provide the necessaries of life, (

f) psychological abuse, (

g) financial abuse, (

h) threats to kill or harm an animal or damage property, and (

i) the killing or harming of an animal or the damaging of property. [Emphasis mine] [ 58 ] The Respondent’s conduct, at minimum, involved threats to cause bodily harm to the Applicant, and, even in instances

where the Applicant may not have been physically harmed or abused, there can be no doubt that she was psychologically affected by the incidents individually and/or cumulatively. Whether the Applicant “pushed” him to behave that way misses the point. I hasten to point out that the Respondent does not dispute paragraph 28 of the Applicant’s Affidavit: 28. I am now enrolled in counselling through Victim Services which I began attending in April 2022. I have been diagnosed with PTSD from my relationship with the Respondent.

I cannot live in the same community as the Respondent because I know he will continue to try to control me. I am in constant anxiety about the Respondent not giving [A.] back or stalking me which he has done multiple times since we separated. [ 59 ] The Respondent’s evidence that they had “typical arguments that happen between a husband and wife” and that the arguments were “exactly what any other married couple would have” is not convincing. My impression is that the Respondent tried to minimize the severity or seriousness of the incidents.

For example, he indicated that he “searched” the room instead of “ransacking” it, he “pushed” the door in with minimal force instead of breaking it to forcefully enter the property and that he was only “knocking” on the Applicant’s car window at the Petro-Canada instead of banging on it. I had the impression he was minimizing the incidents because he had self-interest to do so. In addition, his personality and demeanor in the witness box was punctuated by his use of inappropriate language.

The language he used during the incidents of family violence was corroborated by the same inappropriate language he used in the witness box. [ 60 ] I do not accept the Respondent’s evidence, or attempts to convince me, that there were no incidents of family violence.

Even if I found that some of the incidents of family violence did not occur “exactly” as the Applicant says they did, they are still incidents of family violence as defined in the FLA that cumulatively led to the relocation and to her suffering from PTSD and/or anxiety as a result. [ 61 ] I also have difficulty accepting the Respondent’s evidence as set out in paragraph 49 of his Affidavit: 49. The Applicant contends in her affidavit at paragraph 31 that she has "suggested" that [A.] go to school in St. Stephen, New Brunswick. This is a lie.

The Applicant took [A.] from her home, her community, her family, and her school, without my consent or even explaining what she was doing , or where she was goin (sic) until after she unilaterally made the decision to do so. I had no say in this. [Emphasis mine]. [ 62 ] While it is true that the Applicant did not give formal notice of her relocation, the Respondent surely understands that when she left, an EIO was in place against him.

He knew that their relationship was highly conflictual and was aware, by his own admission, that certain incidents had occurred between them post-separation even though he denies they happened as the Applicant alleges. It is difficult for this Court to accept that the Applicant would have to “explain what she was doing” in the context of family violence in this case. Furthermore, as I read paragraph 31 of the Applicant’s Affidavit, I took it to mean that she had suggested to the Respondent, after she left, that A.V.T. attend school in St. Stephen in addition to a parenting time

schedule moving forward [ 63 ] The Respondent’s attempts to convince me that the allegations that formed the basis of the EIO should not be believed in part because they were not tested in Provincial Court are not convincing. The fact is that the EIO was issued, there is a process in place to contest those allegations in the Intimate Partner Violence Intervention Act (S.N.B. 2017, c.5 ), and he chose not to do so at that time. He is now asking the Court to turn back the clock.

I will not do so. [ 64 ] Where there are discrepancies between the evidence of the Applicant and the Respondent on the incidents of family violence, I prefer the Applicant’s version. The reality is that the relationship was very strained before separation and escalated after separation because of specific incidents of family violence that led to the issuance of the EIO and, ultimately, the Applicant’s decision to relocate for those reasons.

When I weigh all the evidence and consider the definition of family violence in the FLA , I have no difficulty finding that family violence did occur, and still exists, in this relationship. [ 65 ] However, I do accept the Respondent’s evidence that he is not using drugs at the moment, as I have no doubt that the results of the drug tests that he attached to his Affidavit are legitimate. I also accept his evidence that he did not pressure or force the Applicant to do drugs. The fact is that they both did drugs, often together, prior to separation. On other points, the Respondent was also candid. He

admitted that he lost his employment in Alberta due to a positive cocaine test. Legislative Framework for Relocation and the Best Interests of the Child [ 66 ] This Application is brought pursuant to the FLA . The only test for a parenting order is the best interests of the child. Best interests of the child are defined in subsection 50(2) of the FLA as follows: 50(2) In determining the best interests of the child, the Court shall consider all factors related to the circumstances of the child, including (

a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including First Nations upbringing and heritage, (

b) the child’s needs, including the need for stability, given the child’s age and stage of development, (

c) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life, (

d) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent, (

e) the history of care of the child, (

f) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained, (

g) any plans for the child’s care, (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child, (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child, (

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child, and (

k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. [ 67 ] Section 50(3) of the FLA confirms the primary consideration that the Court shall give in making a parenting Order: 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.

[ 68 ] Additional factors to be considered in relocation cases are set out in sections 61 , 62 , 63 and 64 of the FLA , which read as follows: 62(1) In deciding whether to authorize a relocation of a child, the Court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in

section 50, (

a) the reasons for the relocation, (

b) the impact of the relocation on the child, (

c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons, (

d) whether the person who intends to undertake the relocation of the child complied with any applicable notice requirement under

section 60 or under an agreement or order referred to in subsection 60(5), (

e) the existence of an agreement or order that specifies the geographic area in which the child is to reside, (

f) the reasonableness of the proposal of the person who intends to undertake the relocation of the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses, and (

g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under this Act or an order or agreement, and the likelihood of future compliance. 62(2) In deciding whether to authorize a relocation of the child, the Court shall not consider whether the person who intends to undertake the relocation of the child would relocate without the child or not relocate if the child’s relocation was prohibited. 63(1) If the parties to a proceeding substantially comply with an order or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to undertake the relocation of the child has the burden of proving that the relocation would be in the best interests of the child. 63(2) If the parties to a proceeding substantially comply with an order or agreement that provides that a child spends the vast majority of their time in the care of the party who intends to undertake a relocation of the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child. 63(3) In any other case, the parties to a proceeding have the burden of proving whether the relocation is in the best interests of the child. 64 The Court may decide not to apply subsections 63(1) and (2) if the order referred to in those subsections is an interim order.

Jurisprudential Considerations on Relocation

[69] In Barendregt v. Grebliunas, 2022 SCC 22 , the Supreme Court recently explained the challenge face by Courtswhen determining the best interest of the child in the context of a relocation case: [96] The best interests of the child are an important legal principle in our justice system: Canadian Foundation for Children, Youth andthe Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, at para. 9. It is a staple in domestic statutes, international law,and the common law: see, for example, Divorce Act, s. 16; Convention on the Rights of the Child, Can. T.S. 1992 No. 3, art. 3(1);Gordon; Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817; A.C. v. Manitoba(Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181; Kanthasamy v. Canada (Citizenship and Immigration),2015 SCC 61, [2015] 3 S.C.R. 909. [97] But, even with a wealth of jurisprudence as guidance, determining what is “best” for a child is never an easy task.

The inquiry is“highly contextual” because of the “multitude of factors that may impinge on the child’s best interest”: Canadian Foundation forChildren, Youth and the Law, at para. 11; Gordon, at para. 20. [98] The difficulties inherent to the best interests principle are amplified in the relocation context. Untangling family relationships mayhave profound consequences, especially when children are involved.

A child’s welfare remains at the heart of the relocation inquiry, butmany traditional considerations do not readily apply in the same way. [99] In Gordon, this Court set out a framework for deciding whether relocation is in the best interests of the child. Under this framework,a judge has the onerous task of determining a child’s best interests in the tangle of competing benefits and detriments posed by eitheroutcome: Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230, 334 D.L.R. (4th) 49, at para. 23.

And as Abella J.A. (as she then was) onceobserved, “[i]t can be no more than an informed opinion made at a moment in the life of a child about what seems likely to prove to be inthat child’s best interests”: MacGyver v. Richards (1995), (ON CA), 22 O.R. (3d) 481 (C.A.), at p. 489. [70] The Supreme Court in Barendregt v. Grebliunas, supra, stated the relocation framework as follows: [152] The crucial question is whether relocation is in the best interests of the child, having regard to the child’s physical,emotional and psychological safety, security and well-being.

This inquiry is highly fact-specific and discretionary. [Emphasis mine] [71] The Respondent referred the Court to the decision of M.H. v. A.H., [2017] N.B.J. No. 235. In that case, the applicantrequested an interim order for joint custody and primary care of three children and, in addition, that the children be returned to his care inSackville, New Brunswick. The respondent did not agree with the relief sought and asked that she maintain primary care and that thechildren continue to reside with her in the Moncton area.

The parties had a shared parenting arrangement prior to the respondent'sunilateral decision to move the children to Moncton, away from their friends, family, and community. I reference the Court’s commentsat paragraph 33 as they are relevant to this matter given the parent-focused approach at the hearing: 33. It is perhaps worthwhile to pause at this juncture and point out that much of the evidence presented at the hearing in this matterfocused on the behaviour of the parties in terms of their failure to allow access with the children to the other party.

Regrettably, since thehearing was focused on the ill-conceived actions of both parties, there was little evidence tendered before the Court in regards to the coreissue which is a determination of what is in the best interests of these children. [72] I understand why the focus was on the parents to a certain extent given the allegation of family violence. This helps us

understand how and why the parties got to this stage in their lives. However, as the Court explained in M.H. v. A.H., supra at paragraph36: 36 This Court's job is not to chastise or impose penalties upon either party for poor choices in their parenting decisions regarding themanagement of these children since November 2016. This Court's sole preoccupation is to determine the best interests of thesethree children and the unfortunate behaviour of each of their parents at different times is simply part of the backdrop.

Ihighlight this fact as the parties seemed to be inordinately concerned about the conduct of the other and not sufficientlyconcerned with the wellbeing of these three children. Despite the fact that both parties have made mistakes in regards to denyingthe other access to the children, this Court's focus is always on the best interests of the children. [Emphasis mine] [73] In P.R.H. v. M.E.L., 2009 NBCA 18, the Court of Appeal noted the following with respect to mobility cases at paragraph18: [18] The general trend of the jurisprudence since Gordon v.

Goertz has been to grant approval for a proposed move, so long as it isproposed in good faith and is not intended to frustrate the access parent’s relationship with the child. However, the relocating parent mustgenerally also be willing to accommodate the interests of both the child and the access parent. This will generally require a restructuringof access, with the relocating parent possibly incurring the increased costs of access in the new arrangement, sometimes by way of analteration of the child support obligations.

However, this general trend is most evident in cases where there is a clear primary caregiverfor the child or children. A proposed move is less likely to be approved where caregiving and physical custody have been equally sharedbetween parents. Furthermore, no such trend is evident in cases where the proposed move would result in a separation of siblings whohave, prior to that point, lived together. The court-imposed separation of siblings remains exceptional. [74] The Court of Appeal in P.R.H. v.

M.E.L. supra then stated at paragraph 29: [29] This approach creates the potential for considerable unfairness from the perspective of a parent. A change in a child's caregiveralters the dynamics of a custody case. The longer the new status quo continues, the harder it is for the aggrieved party to maintain theimportance of the former status quo to a child's well-being. This is true even where the new status quo may have been establishedwithout court sanction, such as by some unilateral move on the part of a parent.

There is, of course, a natural tendency to side with theparent whose custody was terminated as a result of the trial judge’s error, or by other, less commendable means. However, as theSupreme Court has emphasized, custody decisions must turn on the best interests of the child, and not the interests of the parents. Thecustody of a child should never become a form of reward or punishment for a parent. The best interests of the child must weigh heavilyagainst the rights of the parties in a consideration of custody.

It should be noted, however, that bad faith on the part of a parent isfrequently evidence of an unwillingness or inability to keep the best interests of the child in mind, and may be viewed by the courts as anindication that the party will not cooperate in facilitating maximum contact and access. In this way, such behaviour may factor heavilyinto the consideration of the best interests of the child in determining custody. [75] However, LeBlond J.A. in M.L.B. v. W.R.P., 2019 NBCA 63 reaffirmed the governing criterion in relocation matters in thismanner: 2.

Although one of the parents is likely to be profoundly and negatively impacted by the Court’s decision, the law is clear that the solegoverning criterion to be examined, in determining whether or not a child will be allowed to move, is to decide which of the scenarios (tomove or not to move) is in the best interests of the child. The applicable test and factors to be considered are set out by the SupremeCourt in the seminal decision of Gordon v. Goertz (SCC), [1996] 2 S.C.R. 27, [1996] S.C.J. No. 52 (QL).

[76] In addition, Justice LeBlond in M.L.B. v. W.R.P., supra, explained why a case-by-case, fact-specific and contextualapproach to determining relocation cases is critical: 41. The case law confirms that the open-ended best interests assessment required by Gordon generates results which, in some instances,may appear to conflict from case to case. But that is the reality courts must accept in dealing with the human experience of maritalbreakup where children are involved.

Every case must be dealt with on its own merits and very few, if any, cases will presentwith sufficient common features to be of unfettered precedential value. This is why, as indicated above in the discussion on thestandard of review, appellate courts are required to show substantial deference to trial/motion judges and resist sacrificing deference onthe altar of predictability, precedents and trends. 42. Perhaps the best illustration of this point is to consider the natural instinct to order a change in the primary residence of achild when the primary caregiver wishes to move.

A close bond has been established between them which will weigh heavily onany judge’s mind in considering an order changing the existing arrangement. While the primary caregiver often carries the dayin securing the requested order, that is by no means based on a presumption or legal “trend.” There have been many decisionswhich run contra to this “general reluctance”, as well there should be.

Each decision must result from a contextual, fact-specificand global analysis of the factors utilized in the assessment of a child’s best interests. “Each child is unique, as is its relationshipwith parents, siblings, friends and community” (Gordon, at para. 44). 43. Indeed, Gordon makes clear that the fresh analysis must be done without defaulting to the existing arrangement. The primarycaregiver is no longer assumed to be the best person to remain as such because, by the time the analysis has moved to the best interestsstage, the finding of material change has been engaged (Gordon at para. 40).

This assumes the initial order may have been different withrespect to primary custody. “To put it another way, the material change places the original order in question […]” (Gordon at para. 18).The judge must now decide whether the existing arrangement needs to change once the best interests analysis is completed in light ofcircumstances as they currently exist. 44.

The most common recurring themes in cases where courts have ruled against primary caregivers moving with children have beensituations where children are thriving, secure, have significant bonds with the access parent and have been happily entrenched withextended family members, are attending schools and doing well, have friends and are engaged in activities they enjoy and assist in theirdevelopment (see Cameron v. Cameron, 2006 NSCA 76, [2006] N.S.J. No. 247 (QL); and Howe v. Lorette, 2017 NBQB 119, [2017]N.B.J. No. 153 (QL)). [Emphasis mine]. [77] LeBlond, J.A.’s comments quoted above in M.L.B. v.

W.R.P., supra were reiterated recently by the Court of Appeal in L.P.c. B.M., 2022 NBCA 19 and by Petrie, J. in D.C.W. v. A.C.M., 2022 NBQB 106 . [78] In terms of analytical approach, as Justice Petrie stated in D.C.W. v. A.C.M. at paragraph 82: 82. Various family judges in this province, when dealing with relocations since the introduction of the new Act, have chosen toreview the “best interests” factors first, before moving on to the analysis of any relocation request and a consideration of the section62(1) factors. See for instance: R.V.C. v. N.A.G., 2021 NBQB 139 (Bourque J); J.D. v.

R.D., 2021 NBQB 186 (Bélanger-Richard J.); andB.R.C. v. K.L., 2021 NBQB 147 (Godbout J). I will adopt the same approach. [79] I will also follow the same approach here and first apply the specific best interests criteria to the facts of this case, followedby legislative considerations pertaining to relocation. (

a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including First Nations upbringing andheritage. [80] This is an important consideration in this case. As noted above, the family is Indigenous and members of the Burnt ChurchBand. A.V.T.’s First Nation’s upbringing and heritage must continue to be maintained, fostered and developed going forward. Bothparents support this endeavour wholeheartedly. It is one of the few points they agree upon.

[ 81 ] It bears noting that prior to moving to Burnt Church on December 3, 2021, the parties lived in Moncton for an extended period of time and managed to maintain A.V.T.’s Indigenous culture and heritage as much as possible. In essence, A.V.T. only resided in Burnt Church for a relatively short period of time between December 3, 2021 and July 1, 2022 (approximately six months).

Therefore, A.V.T. lived in Moncton for almost all of the first eight (8) years of her life [ 82 ] While A.V.T. would not have the day-to-day exposure to her First Nation’s upbringing and heritage if she resides primarily with the Applicant, this does not mean that her ties with the Burnt Church Band and her Indigenous culture would be severed. A.V.T. will continue to see the Respondent and his family on a regular basis for parenting time and will continue to have the opportunity to participate in Indigenous events and activities in Burnt Church and elsewhere.

There will also be opportunity for both parents to have A.V.T. participate in even more Indigenous activities and events if they wish during the summertime as well. The expectation is that A.V.T. will be able to travel more in the summertime with the Applicant even during her parenting time to visit and stay with her maternal grandparents and family in Burnt Church. (

b) the child’s needs, including the need for stability, given the child’s age and stage of development [ 83 ] A.V.T. is almost 9 years old. Her educational needs, in addition to her basic daily needs, must continue to be met. They are being met right now in St. Stephen to the Court’s satisfaction. In order to meet A.V.T.’s daily needs, it remains important that she have access to running water without relying on others. I am somewhat skeptical about the fact that the Respondent only found a residence that he can rent from his uncle with full running water the day before the interim hearing.

This may explain why this information was not included in his Affidavit. For A.V.T.’s sake, I hope that the Respondent did secure this residence. It does not leave the Court with the impression that the Respondent’s housing situation will provide the stability that A.V.T. needs because precious few details were provided to the Court about this property. [ 84 ] While A.V.T. has moved two to three times in the last 2-3 years (Moncton to Burnt Church to St. Stephen), the reason for this recent instability can be explained in large part due to the existence of family violence.

On this point, I refer to my findings on credibility above. It is better for A.V.T. to move to St. Stephen to find stability away from the family violence to the extent possible. Stated otherwise, at the moment, A.V.T.’s need for stability, given her age, can be best achieved by having her primary residence with the Applicant. (

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 [ 85 ] I have no doubt that A.V.T. has a strong relationship with each parent and all her grandparents. The evidence does not show any problems in terms of A.V.T.’s relationship with each parent and the grandparents. In fact, the Applicant believes that the paternal grandparents should be involved in their granddaughter’s life.

She wants them to be the conduit of communication and the third party at A.V.T.’s pick up and drop off times. I therefore believe that A.V.T. has a good and strong relationship with each parent individually as well as with extended family. (

d) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent [ 86 ] The Applicant wants A.V.T. to spend time with the Respondent. The Respondent does not object to the Applicant having parenting time either. To that limited extent, they have some willingness to support the development and maintenance of A.V.T.’s relationship with each other. The problem is that they both want primary care because they do not trust each other and do not communicate. There is a dearth of evidence in relation to this criterion, and others, which is not surprising given that this was an interim hearing that focused mostly on family violence. (

e) the history of care of the child [ 87 ] The preponderance of the evidence demonstrates that prior to separation, the Applicant was the primary and psychological parent to A.V.T. This finding in no way is meant to disparage the Respondent’s parental contributions. The reality is that he was working away from home for extended periods of time out West when A.V.T. was younger and, as a result, the Applicant was responsible for her day-to-day care while he was gone. When the Respondent travelled back home during non-work intervals, the parties shared in the day- to-day care.

[88] The history of care of A.V.T. includes a less than ideal housing situation while they lived in Burnt Church and afterseparation. I refer to the Applicant’s evidence regarding her observations of feces and cocaine at the home and its current dilapidatedstate. This may explain why the Respondent decided to move to his uncle’s house. Regardless, they lived at that property fromDecember 10, 2021, until separation on March 10, 2022.

After that, A.V.T. was “all over the place”, going back and forth between theparties. [89] The history also includes the Respondent withholding A.V.T. from the Applicant on September 10, 2022. [Paragraph 13 ofthe Applicant’s Affidavit]. This evidence is, like most of the other evidence, disputed by the Respondent. He says that he withheldA.V.T. because she did not want to go back to be with the Applicant. He says he has this interaction on video but did not include same aspart of his evidence.

Regardless of the reason for A.V.T. not being returned to the Applicant on September 10, 2022, the fact is that shewasn’t. [90] The history of care also includes a history of family violence. (

f) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained [91] There is no detailed evidence of A.V.T.’s views and preferences. The Respondent alleges that A.V.T. has cried when shemust go back to be with the Applicant. The Applicant says that A.V.T. is “happily enrolled in St. Stephen school and she should remainenrolled there”. [Paragraph 32 of Applicant’s Affidavit]. This evidence is disputed by the Respondent. [92] However, both parties testified that A.V.T.’s preference is to reside in Burnt Church.

The weight to be attached to thisevidence depends on numerous factors. [93] In JH v NM, 2022 NBQB 136 at paragraph 150, the Court referred to the case of Jackson v Jackson, 2017 ONSC 1566 at para 127, which discussed the considerations involving what weight to be given to the child’s views and preferences: [127] The wishes of a child are relevant to the best interests analysis, particularly in cases involving older children. However, as theOntario Court of Appeal recently emphasized in L. (N.) v.

M. (R.R.), 2016 ONCA 915 (C.A.) at para. 36, “the wishes of the child and thebest interests of the child are not necessarily synonymous.” The weight that should be attached to a child’s expressed wishes will dependon numerous factors, including the age, intelligence and maturity of the child, their overall developmental status and capacity to form andarticulate preferences, how clear the child’s wishes are and the consistency of those wishes over time ….

In addition, in determining theweight, if any, which should be accorded to the child’s expressed wishes, the court should consider those wishes in the context of all ofthe circumstances of the case and carefully assess if there are any concerns as to whether the expressed wishes are an accurate reflectionof the child’s true feelings.

The court should give little weight to a child’s expressed wishes if the evidence indicates that those wisheshave been tainted by negative influence, inducements or alienation exerted by the other parent or any other individual …. [128] While the child’s best interests are not necessarily synonymous with the child’s wishes, the older the child, the more a parentingorder requires the cooperation of the child. This necessitates an understanding of the child’s views: …. [94] In this case, A.V.T. is almost nine years old and therefore still quite young. The context of this case involves familyviolence.

That is one of the important factors that the Court must consider when weighing A.V.T.’s preference to live in Burnt Church.A.V.T.’s views as expressed by the parties constitutes only one of the factors to be applied and in my view, at this stage, is notdeterminative. [95] One of the issues to be determined is whether A.V.T.’s views and preferences would be obtained by way of a Voice of theChild Report or alternatively, by judicial interview. This issue will be addressed below.

(

g) any plans for the child’s care [ 96 ] There was little evidence from either party on this point. This was only an interim hearing and, as already noted, the focus was mainly on the family violence aspect. For now, the Applicant’s plan is to remain in St. Stephen. Her best friend, who is also her stepsister, and her husband reside there and provide support when needed. The Respondent’s plan is to enroll A.V.T. back in the same school she was in while she lived in Burch Church, in Miramichi, and rely on his parents for support as well. They both have a support system in place with family and/or friends, although the Applicant does not have family in St. Stephen. (

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 [ 97 ] I am satisfied that they are both willing to care for and meet A.V.T.’s needs. However, I find that at the moment, the Applicant more able to meet A.V.T.’s needs on a day to day basis. (

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 [ 98 ] Where there is such mistrust, conflict, family violence and, in the Applicant’s case a fear of direct communication and/or contact with the Respondent, equal parenting time and decision-making authority would not be in A.V.T.’s best interests. (

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child, and (

k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. [ 99 ] This factor is the most important and significant consideration in the within matter. The Supreme Court in Barendregt v.

Grebliunas , supra discussed the question of why family violence is a relevant and important factor in relocation cases at paragraphs 141 to 147: [141] In this case, the acrimonious relationship between the parties — featuring abusive conduct during the marriage, at separation, and at trial — was a significant factor in the trial judge’s relocation analysis. On appeal, the father argues that such “friction” is “not unusual for separating couples”: R.F., at para. 35.

[142] Since Gordon, courts have increasingly recognized that any family violence or abuse may affect a child’s welfare and should beconsidered in relocation decisions: see Prokopchuk v. Borowski, 2010 ONSC 3833, 88 R.F.L. (6th) 140; Lawless v. Lawless, 2003 ABQB800, at para. 12 ; Cameron v. Cameron, 2003 MBQB 149, 41 R.F.L. (5th) 30; Abbott-Ewen v. Ewen, 2010 ONSC 2121, 86R.F.L. (6th) 428; N.D.L. v. M.S.L., 2010 NSSC 68, 289 N.S.R. (2d) 8, at paras. 22-23 and 35; E.S.M. v. J.B.B., 2012 NSCA 80, 319N.S.R. (2d) 232, at paras. 55-57.

Courts have been significantly more likely to allow relocation applications where there was a finding ofabuse: Department of Justice, A Study of Post-Separation/Divorce Parental Relocation (2014), at ch. 3.3.4. [143] The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with theperpetrator’s parenting ability is untenable.

Research indicates that children who are exposed to family violence are at risk ofemotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations ofFamily Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirectexposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or heari

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