E.T. Applicant/Responding Party v. A.M., 2022 NBKB 173

2022 NBKB 173 COURT FILE: FDSJ 779-2007 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: E.T. Applicant/Responding Party and A.M. Respondent/Moving Party Before: Mister Justice Danys R. X. Delaquis Date of hearing: September 13, 2022 Date of Decision: September 21, 2022 Appearances: E.T. - Per se Andrew Jamieson - for the Respondent/Moving Party DECISION

DELAQUIS, J.: BACKGROUND [ 1 ] The parties are the parents to three children, S. P. M. T. (D.O.B. …, 2006, now 6 years old), (hereinafter referred to as S.), J. S. J. M. (D.O.B. …, 2012, now 9 years old), (hereinafter referred to as J.), and I. K. R. M. (D.O.B. …, 2015, now 7 years old), (hereinafter referred to as I.). J. is autistic and I. has ADHD [paragraph 30 of the Mother’s Affidavit]. [ 2 ] A Final Order on Consent was executed by the parties and Mr. Justice A. Doyle on January 30, 2020.

This Final Order provided, among other things, that the parties would have joint custody of the children, that the primary residence of the children would be with the Mother and that the Father shall have parenting time on a

schedule with the children J. and I. but parenting time with S. “as per S.’s wishes”. [ 3 ] The mother comes to Court seeking to vary the Final Order asking that the Father be permitted “supervised parenting time only”. The grounds for this relief stems mainly from what the Mother describes as the Father’s escalating dangerous behavior that led to her seeking, and obtaining, an 90-day Emergency Intervention Order (EIO) on May 9, 2022. The EIO was confirmed by a Judge of the Court of King’s Bench on May 11, 2022. [ 4 ] The Father then filed a Motion asking that the EIO to be varied or set aside.

The parties appeared before Madam Justice Daigle on June 29, 2022, with counsel. The Father agreed to maintain the EIO in place, but requested a variance to allow him supervised parenting time with the two younger children. Madam Justice Daigle granted the relief for the remainder of the EIO, which expired on August 7, 2022. The Mother’s Motion that I am now hearing was filed the next day, on August 8, 2022. FACTS [ 5 ] Evidence submitted by the Mother explains, in essence, that the Father is still heartbroken about the separation. He simply cannot accept it.

His emotional state has changed and escalated not only to the point of the Mother having to obtain an EIO, but to an extent that the Father has threatened to commit suicide in front of the Mother and the children. The Mother says this in her Affidavit sworn to on August 8, 2022: [E.] continually tells me and threatens me with that he will kill himself in front of me or will say he will kill himself in very disturbing ways in front of me and our children. These manors (sic) have escalaided (sic) and gotten worse over the years and he has not backed down on this over the years. It just keeps getting worse.

His constant threats and conversations about him being so scared that somehow I am going to get kidnapped. To (sic) many strange behaviors. Also worried he may have something he may not be diagnosed with yet. [ 6 ] It should be noted that the parties have been “formally separated” since May 2018. [para 3 of the Mother’s Affidavit dated September 11, 2022].

At the time of the Final Order in January 2020, the parties had therefore been separated for just under two years. [ 7 ] The events leading up to the issuance of the EIO relates to an incident where the Father confronted the Mother about whether she was seeing someone else: “He told me I needed to leave the new guy now.” [Page 2 of EIO Application, attached to Mother’s Affidavit dated August 8, 2022.] More specifically, the Mother states that: He said you have a choice to make [A.], me or him, I am giving you till Sunday to make a choice, it's up to you weather (sic) the kids will have a father or not.

The kids happiness is at stake and will be in your hands and the fait (sic) of my life will have to do with what choice you make. He said if you don't choose me or don't give me an answer then you chose him and if you chose (sic) him over me then I will do it this time, I will kill myself in the most gruesome, most painful, most messy and bloody and most slowest way possible and it will be all your fault, and I will wait till Sunday night for your answer and if you chose (sic) him over me it will happen shortly after I leave. [Page 2 of EIO Application, attached to Mother’s Affidavit dated August 8, 2022.]

[ 8 ] The Mother then continued to recount in detailed fashion the further events and concerns, including various text messages. On May 1, 2022, at 9:59 pm, the Father sent the following text messages to the Mother: Thank you for anything you choose him over the father of your kids looks like you chose them a new father really fucking nice. Pick up places. So this is your answer. Him over me nice I was never good enough looks like hopefully he will be a better father right. You're going to break the boys heart over him hope he's worth it. Answer please this is the last time I will ever call if you don't answer.

Pick up places. Thank you out OMG hands now keep these texts to show everyone. [Text messages attached to Mother’s Affidavit dated August 8, 2022.] [ 9 ] The Father filed an Affidavit on August 15, 2022 in response to the Mother’s Motion to Vary. Most of his Affidavit speaks to the changes that he would like to make to his parenting time. For example, he states at paragraph 3 of his Affidavit that: Given I have followed the emergency order to this point, I would request that the custody arrangement from 2020 be reinstated with some adjustments.

I would request that on the weekend that I do not have my children, I be allowed to take them out on a weekday evening as 2 weeks is too long to go without seeing my children. I do not wish my visits to take place at the residence of [A.M.] or any of her family members. I would like to have as little contact as possible with [A.] or her family. [ 10 ] The father discusses the genesis of the EIO at paragraph 1 of his Affidavit sworn to on August 15, 2022, as follows: On May 11th I became aware of an emergency order that was filed against me stating I had been violent towards [A.M.] and my 3 children.

I was completely surprised by this, as I have never been violent or abusive towards her or the children. I have gone above and beyond to be accommodating to [A.] and maintain a good relationship with my children. Prior to the emergency order in May, I had felt that the custody agreement was not working out. [A.] had begun to refuse to allow me to take my children during my scheduled visit time. She insisted that I visit with them at her residence and not remove them from her home. Against my better judgment, I agreed to [A.]'s request as I thought it would keep things peaceful for the children.

During those visits, [A.] would regularly go out leaving me with not only with my children, but her sisters 4 children whom she was caring for. I made sure my children had a clean environment and healthy meals while they were in my care. I even loaned [A.] the use of my car for a year and gave her money as I thought it would make things more comfortable for my children. Also during this time [A.] began refusing to allow my parents and my siblings to see the children or take them for outings or visits.

This has been extremely difficult for my family and they desperately wish to see their grandchildren/niece/nephews. [ 11 ] The Father then says at paragraph 2 of his Affidavit:

While it is true that I suffer from medical ailments, my diabetes has been controlled since 2020. Like all diabetics I occasionally suffer from highs and lows, but that is to be expected. On the one occasion, prior to my insulin adjustment I experienced an extreme low. My family recognized my confused state as a hypoglycemic episode and attempted to help me. They had difficulty coaxing me to eat some sugar as [A.] was quite forcefully demanding that I each sugar and was not listening to my family’s requests to back away and give me space.

I understand that it was at this time I tried to push her away and my family intervened, getting me the sugar I needed. [ 12 ] In her further Affidavit sworn to on September 11, 2022, the Mother says that: 6. The Applicant is diabetic, and is inconsistent with his required medication. As a result, when the Applicant’s sugar drops, he becomes violent. Attempting to reason with him when he goes into a “diabetic rage” is impossible. However, the Applicant's behaviors are also problematic regardless of the state of his blood sugars. 7. He has threatened the children with gun violence in the past.

When I notified the RCMP of such threats, they merely sent an ambulance for a Wellness check. 8. Because the Applicant lives in a remote area, with no landline and no cell phone service at his home, I fear for the children’s safety in his care if something were to happen when he takes them there. 9. To the best of my knowledge, the Applicant has never sought professional help for his issues. He may have undiagnosed mental health issues. [ 13 ] In this same Affidavit, the Mother then discusses with a little more specificity how recent events and the Father’s behaviour may impact the children: 28.

After a lengthy argument, the only thing I could do to calm the Applicant was assure him that I would think about what he had asked (leaving my present partner). Once I said I would think about it, his demeanor changed. He calmed down and promised that the children would be safe with him. 29. In addition to the Applicant’s disturbing behaviors and threats, I am concerned about his ability to adequately care for the children while they are with him. 30. [I.] has ADHD, and [J.] is autistic. They both require significantly more attention than other children their ages, because of their special needs.

Where the Applicant does not adequately care for himself in terms of his diabetic needs, I am greatly concerned about his level of attention to the children's needs. 31. When the Applicant becomes angry, whether due to his diabetes or otherwise, he tends to really lose control. He breaks things, slams doors, and throws around whatever is within reach. He is prone to road rage. 34. The Applicant's family does not have a close relationship with the children. In the past, when the Applicant and I were together, I made efforts to facilitate contact between the children and their paternal relatives.

Since the Applicant and I have separated, the children’s contact with his side of the family has been minimal. 35. I believe the children are not safe alone with the Applicant, and that their safety can only be insured through supervision, or once the Applicant benefits from professional help to change his behaviors. [ 14 ] It is against this evidentiary and factual backdrop that the Court must decided the issues that confront it on this motion. ISSUE

[15] The issues are firstly whether there has been a material change in the circumstances of this case. This is a threshold issue. [16] The second issue is if there has been a material change, whether it is in the best interests of the children to vary the Final Order toinclude further supervised parenting time to the Father and if so, for what duration of time. LAW AND ANALYSIS The Position of the Parties [17] The Mother correctly states that she must first establish a material change to justify variation of the Final Order.

Counsel for theMother argues that the most significant change has been the issuance of the EIO on May 11, 2022 for 90 days. The Mother argues thatthe Father has “turned up the heat” and that even the threat of taking his life is a material change, given that the Mother left the home tolive in a shelter for a month with the children as a result of the Father’s recent behaviour. Counsel argues that these recent events “haveto impact the children” and that “all of the boxes have been checked” in terms justifying a variance of the Final Order. [18] The Father is a self-represented litigant.

The Court explained to the Father, to the extent possible, the concept of material changeand why it is a threshold issue. He responds by focusing on the Mother’s behaviors and stated that her boyfriend tried to run him over.He says that she had to leave the home anyway because of renovations. He indicated that he is on a list to get some counselling, andstands by his Affidavit. [19] The Court provided the parties with an opportunity to discuss the matter however they were unable to reach an agreement withrespect to a plan to move forward.

Issue 1 – Material Change [20] To vary the Final Order as it pertains to what was previously referred to as custody and access - now decision-making authorityand parenting time - I must also consider whether there has been a material change in circumstances: see Willick v. Willick (SCC). [21] T.A.F.F. v. N.A.M. 2021 NBQB 63 was a matter involving a request to vary, inter alia, parenting time. Madam JusticeBelanger-Richard explained the requirements of establishing a material change in those circumstances at paragraphs 17-20 in T.A.F.F. v.N.A.M. supra, with reference to the Court of Appeal’s decision in M.(F.) v.

H.(T.) 2016 NBCA 29: [17] When subsection 129(2) of the Family Services Act was in force (prior to March 1, 2021), the Court had the power to vary ordischarge a custody order at any time. There was no mention that proof of a material change of circumstances was required. In M. (F.)v. H. (T.), 2016 NBCA 29, at para. 12, Justice Baird however confirmed that the analysis for a material change of circumstances undersection 17 of the Divorce Act was also applicable to variation motions pursuant to the Family Services Act: 12. In Willick v. Willick, (SCC), [1994] 3 S.C.R. 670, [1994] S.C.J.

No. 94 (QL), the Supreme Court interprets thewords material "change of circumstances" found in s. 17 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) (Act), and offers a frameworkfor the analysis. This framework is also applied in motions to vary which are filed pursuant to the Family Services Act. The ratio inWillick has become the starting point to determine whether a moving party has met the evidentiary threshold.

The threshold is met ifthere is evidence of material changes in the personal and/or the financial circumstances of the parties, or the children, that postdate theprevious order, and which were not within the reasonable contemplation of the parties at the time of the original court order (Willick, atpara. 70; see also K.C.W.V. v. K.L.P., 2010 NBCA 70, 363 N.B.R.(2d) 351; N.E.R. v. J.D.M.; S.L.B. v. P.J.O., 2013 NBCA 52, 408N.B.R. (2d) 235; Sangster v. Sangster, 2014 NBCA 14, 416 N.B.R. (2d) 397. [Emphasis added.]

[18] In the same decision, Justice Baird went on to explain the two-step analysis to be undertaken in deciding a variation motion bystating at paragraph 13 as follows: 13. Although Gordon was a decision concerning mobility, the Supreme Court states a two-part analysis should be undertaken in caseswhere a litigant seeks to vary the custody and access provisions of an order concerning the same child or children. In V. (K.C.W.) v.

P.(K.L.), the Court states: The first step is establishing a material change of circumstances of the child since the last custody order was made: Before the court can consider the merits of the application for variation, it must be satisfied there has been a material change in thecircumstances of the child since the last custody order was made. Section 17(5) provides that the court shall not vary a custody or accessorder absent a change in the "condition, means, needs or other circumstances of the child".

Accordingly, if the applicant is unable toshow the existence of a material change, the inquiry can go no farther: Wilson v. Grassick (1994), (SK CA), 2 R.F.L.(4th) 291 (Sask. C.A.). [para. 10] Next, McLachlin J. touches upon the factual foundation required to establish a material change: What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have alteredthe child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), (BCSC), 35 R.F.L. (3d) 169 (B.C.S.C.).

The question is whether the previous order might have been different had the circumstances nowexisting prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change should represent a distinctdeparture from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate arethose factors which were not likely to occur at the time the proceedings took place": J. G. McLeod, Child Custody Law and Practice(1992), at p. 11-5.

It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in thecondition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materiallyaffects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made theinitial order. [paras. 12-13] The second step of McLachlin J.’s test is that of the best interests of the child. In C.M.B.E. v.

D.J.E., 2006 NBCA 88, 304 N.B.R. (2d)191, this Court made the following related observations: Pursuant to s. 17(5) of the Act a party seeking variation of a custody or access order must establish that “there has been a change in thecondition, means, needs or other circumstances of the child [...]” since the last custody or access order was made and that the variation isin the best interests of the children. In determining whether a change in circumstance has occurred a Court is not “precluded fromconsidering events which occurred prior to the last order”. See Fullarton v.

Fullarton (1994), (NB QB), 152 N.B.R.(2d) 321, [1994] N.B.J. No. 323 (Athey J.) (QL). As we pointed out in D.G. v. H.F., [2006] N.B.J. No. 158 (QL), 2006 NBCA 36, the Supreme Court has instructed in Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, [1996] S.C.J.

No. 52 (QL), that once the threshold of a material change in circumstances isfound on a variation application, then a fresh inquiry must be made into the best interests of the child and the focus of that inquiry is notthe interests or rights of the parents. [paras. 7-8]. [paras. 13-15] [Emphasis in original.] [19] Section 52(6) of the Family Law Act is similar to section 129(2) of the Family Services Act. I see no reasons why the sameframework of analysis should not apply for a variation application under the Family Law Act.

[20] Consequently, the father has the burden to demonstrate that (1), there has been a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child, (2) which materially affects the child and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. Change alone is not sufficient.

It must be a change that has modified the child’s needs or the ability of the parents to meet those needs in a fundamental way. [ 22 ] In applying the test to the facts of this matter, I find that the Mother has met her burden of firstly establishing a change in the Father’s ability to meet the needs of the children. In my view, joint custody (as it was then referred to) would not have been contemplated, let alone agreed upon, in the Final Order if family violence, in addition to threats of suicide, had existed at the level it escalated to over two years later, in May 2022.

Family violence is defined as follows in the Family Law Act : “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 , … [Emphasis mine] [ 23 ] To be clear, the material change here is not the ongoing heartache felt by the Father.

The material change in circumstances is the existence of family violence that has reached an unforeseen level of concern recently, along with the Father’s own recent admissions of wanting to take his own life. [ 24 ] In this case, the Mother’s explanation and recollection of the recent events, especially in May 2022 and indeed, since the Final Order was executed, that establish a material change in circumstances were not denied by the Father.

In other words, the Father has not stated, for example, that these events never happened in any evidence submitted to the Court. [ 25 ] In this case, it is hard to fathom that the family violence and threats of suicide by the Father, in front of the Mother and the children, have not affected the children. It is difficult to conceive of any scenario where family violence is in the best interests of the children. On the impact of how the children have been affected, I accept the evidence in the Mother’s Affidavit.

The Mother’s concerns were serious enough to her to compel her to recently leave the home and stay in a shelter with the children for a month. [ 26 ] I want to be clear that I do not view the Father as having any “reverse onus” to prove that “he will behave”, as Counsel seems to suggest. There is no such reverse onus. My point is that the Mother has met her burden in this case, where her evidence on certain key elements of material change is uncontradicted. There is no credibility issue that arises with respect to the recent events that establish a material change in this case. [ 27 ] In

summary, I am satisfied that the Father’s ability to meet the needs of the children has changed. This has materially affected the children, and the father’s ability to meet their needs, in a manner not contemplated or foreseen at the time the Final Order was executed on January 20, 2020. I therefore find that there has been a material change in the circumstances of this case. ISSUE 2 – BEST INTERESTS OF THE CHILDREN [ 28 ] I must now turn to an analysis of the best interest of the children because that is the only consideration in making a parenting order: see subsection 50(1) of the Family Law Act .

Best interests of the child are defined at subsection 50(2) of Family Law Act : 50(2) In determining the best interests of the child, the Court shall consider all factors related to the circumstances of the child, including (

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

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

(

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

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

e) the history of care of the child, (

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

g) any plans for the child’s care, (

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

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

j) any family violence and its impact on, among other things, i. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and ii. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on 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. [ 29 ] I also refer to subsection 50(3) of the Family Law Act which reads as follows: 50(3) When considering the factors referred to in subsection (2), the Court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. [ 30 ] In this case, paragraphs (b), (c), (d), (e), (f), (g), (h), (

i) and (

j) of subsection 50(2) of the Family Law Act are relevant. [ 31 ] In this matter, the Mother has asked for “temporary” supervised parenting time for the Father. The Father’s position is that his parenting time should return to what it was under the Final Order, including unsupervised time, along with certain “adjustments” as described in his Affidavit. [ 32 ] I must therefore determine if continued supervised parenting time for the Father is in the best interests of the children and if so, for what duration of time. [ 33 ] I refer to the following jurisprudence that clearly reflects the notion that supervised parenting time is only meant to be temporary, and not permanent.

[34] Recently, in J.H. v N.M., 2022 NBQB 136 , the Court said this: The law is clear that Courts are reticent to employ supervised access as a judicial tool, “especially in the long term”: B.C. v. J.C. 2014NBQB 59 at paragraph 2, with reference to A.J.D. v. T.B. 2013 NBQB 224. See also: A.J.D. v. T.B. 2013 NBQB 224; B. (T.) v. M. (A.)2002 NBQB 349; V.S.G. v. L.J.G. (ONSC), at para. 135. [35] In B.C. v. J.C. 2014 NBQB 59, the late Justice Jack Walsh stated as follows in relation to supervised access at paragraph 7: The law is that access is a child's right, provided it is in the child's best interest.

Whether to grant it or to what extent, the decision onaccess cannot be influenced by any desire to punish that parent. Although supervised access is not a remedy the law looks on withfavour, particularly over the long term, termination of access is obviously an even more drastic remedy, rarely invoked unless absolutelyrequired in a child's best interests (see e.g. L.C.M. v.

B.A.C. 2011 NBQB 283). [36] The Court’s reluctance to grant long-term supervisory Orders was reiterated in C.B. v M.H., 2019 NBQB 106 , whereinJustice DeWare (as she then was) summarized the law: [20.] Despite the unfortunate situation between his parents, C.H. is a little boy who has the right to know his parents and be loved byboth of his extended families. While the Applicant is far from being an angel, he does appear to have taken some steps to direct his lifein a more productive manner. C.H. should have an opportunity to know his father and half-siblings in a meaningful way. [21.] In McIllwraith v.

MacGougan, 2003 NBQB 169 , Justice Glendening reviewed the circumstances where supervised accessis appropriate at paragraph 24 as follows: [24] It is apparent to me that because the Applicant failed to have a home study completed that this whole matter became sidetracked. Supervised access is meant to be temporary. It is inappropriate for supervised access to be used because of a dispute between parents. Inmy view that is what occurred in this case. I draw attention to the reasoning of Abella J.A. in M. (B.P.) v. M. (B.L.D.E.) (ON CA), 1992 Carswell Ont. 295 (CA): 33.

The purpose of supervised access, far from being a permanent feature of a child’s life, is to provide “a temporary and time-limitedmeasure designed to resolve a parental impasse over access. It should not be used … as a long-term remedy”: Norris Weisman, “OnAccess after Parental Separation” (1992) 36 R.F.L. (3d) 35, at p. 74. Yet no other form of access is even thinkable for this child.

In theabsence of any, let alone a significant demonstrable benefit to the child, and based on the solid evidence of four years of harassing,insensitive, disruptive, and harmful behaviour from the father, Wright J. made no error in terminating access by the father to the childbased on the material reflected in the child’s stress. [Emphasis in original] [37] Keeping these judicial principles in mind, I find that further supervised access is in the best interests of the children in this case,but only for a further very limited period of time.

My reasons are as follows. [38] First, ongoing supervised parenting time will continue to ensure the safety of the children, at least in the short term, in the uniquecircumstances of this case. Their safety was, and remains, an ongoing concern based on the evidence of family violence submitted to theCourt. In my view, when looking especially at subsection 50(2)(

j) of the Family Law Act, the balance favors ongoing supervised accessin the short-term. [39] Second, in this case, two children have special needs and require special attention. The children’s needs must be considered. Thechildren are 6, 7 and 9 years old respectively. They are quite young. Their stability relies at least in part on the Father’s ability toconsider their needs, which has recently been compromised. [40] The same rationale applies with respect to the Father supporting the development and maintenance of the children’s relationshipwith the other parent.

The Father must be more willing to accept that living in the past does not help develop and maintain the children’srelationship with their mother. For her part, the Mother’s position is that she does not wish to “cut him out of the children’s lives”. TheMother recognizes that supervised parenting time is only temporary in nature, and that it is in the children’s best interests that they

maintain contact with their Father, rather than eliminate parenting time completely. [ 41 ] There was little evidence presented to really look at the nature and strength of the child’s relationship with each parent, and each of the children’s siblings, in any meaningful manner. In addition, there is some contested evidence about how close the children are with the Father’s side of the family. [ 42 ] There was little cogent evidence focusing on the history of care of the children in this matter. The focus was mostly events that have transpired in recent months.

The Mother did present some concerns about the Father’s historical health issues and how that remains a cause for concern. But there was no convincing evidence that the Father’s health issues have historically affected his care of the children. After all, the Mother did consent to a Final Order in January 2020, giving the Father “joint cutody” with unsupervised access at least every other weekend and for certain times over the holidays. I do not view this criteria as playing a large

part in this matter. [ 43 ] Little to no evidence was presented with respect to the children’s views and preferences. This may certainly be as a result of their young age. However, the Mother did indicate at paragraph 12 of her September 11, 2022 Affidavit that: “[S.] has not expressed any desire to have parenting time with the Applicant. On the contrary, she actively avoids him.” [ 44 ] Plans for the children’s care were developed in the Final Consent Order but went off the rails recently. Both parents at the end of the day do not want long-term supervised parenting time for the Father.

Their plan is therefore to eventually return to unsupervised parenting time, which is in the best interests of the children. [ 45 ] The Father followed the EIO without breach. He understood that it was necessary in the short term. Indeed, he did so when he applied to vary the EIO before Justice Daigle as well, and accepted supervised access until the EIO expired. To that extent, I believe that he has shown a willingness, as the person to whom this Order will apply, to care for and meet the needs of the children. However, his recent behavior has cast doubt on his ability to do so.

The Mother has shown both a willingness and an ability to care for and meet the needs of the children. She has always been the primary caregiver. [ 46 ] The Father’s inability to get past the separation and move on has affected his ability and willingness to communicate and cooperate with the Mother on matters affecting the children. [ 47 ] The Father is taking steps to assist himself to get through what is clearly a very difficult time.

Some time is required to get through this for the sake of the children and, more specifically, to ensure their emotional and psychological safety, security and well- being. [ 48 ] Based on the above analysis of the appliable criteria, I find that a supervised parenting time Order for the Father is in the best interests of the children. It is in the best interests of the children that the supervised parenting time be ordered on a short-term basis only, so that they may continue to maintain and develop a bond with him as soon as possible. DISPOSITION [ 49 ] The Motion to Change is therefore allowed.

It is hereby Ordered as follows: 1. Pursuant to subsections 50(1) , 50(2) , 50(3) , 50(6) and 52(6) and 100 (

b) of the Family Law Act S.N.B. 2020, c. 23 , paragraphs 3 (a), 5 and 6 of the January 20, 2020, Final Order on Consent are varied as follows: (

a) The Respondent shall have supervised parenting time with the children J. and I. as follows:

(

i) one two-hour visit per week, to be supervised by a Family Support Worker employed by either Capital Family Services or Supreme Home Services; and (ii) Commencing the weekend of September 24th, 2022, and continuing every second weekend, the Respondent shall have parenting time from Saturday from 2 to 4 p.m. and Sunday from 2 to 4 p.m. Such parenting time shall be held in the community of Saint John and shall be supervised by the applicant's mother, A. M. (

b) If visits become escalated or safety concerns arise, as determined by A. M., visits shall be discontinued immediately and for the remainder of this Order. (

c) The Respondent shall be allowed to attend visits with a family member if he wishes. (

d) All communications pertaining to the Respondent’s supervised parenting time including, but not limited to, the place of pick up for the children, shall take place between K. H. and A. M. 2. This Order shall remain in full force and effect for a period of 60 days, or until further Order of this Court. 3. All other terms of the Final Order on Consent dated January 20, 2022, shall remain in force and effect. 4.

After the expiration of 60 days, the terms and conditions in the Final Order on Consent shall remain in full force and effect, subject to one and/or both of the parties establishing a material change in circumstances and that it would be in the best interests of the children to vary the Final Order on Consent. 5. There shall be no Order as to Costs. 6. This Order is effective as of the date of the Court’s endorsement hereunder. DATED at Saint John, New Brunswick this ______ day of September 2022. ________________________________ Danys R. X.

Delaquis Judge of the Court of King’s Bench of New Brunswick - Family Division