A.L.F., Applicant - v. -, 2022 NBKB 177

FDSJ-539-20 2022 NBKB 177 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: A.L.F., Applicant - and - C.D.F. , Respondent DECISION AND REASONS BEFORE: The Honourable Madam Justice M. Deborah Hackett DATES OF HEARING: August 18 and 19, 2022 DATE OF DECISION: September 22, 2022 APPEARANCES: Vanessa J. Paton, for the Applicant Respondent appeared per se NATURE : Parenting Order, Child Support Hackett, J.: INTRODUCTION [ 1 ] The parties are the parents of two children. A.R.A. was born in 2015 and M.W.D.F. was born in 2018.

The children will be referred to as A.A. and M.F., respectively. [ 2 ] In late 2021, A.A. made disclosures of sexual abuse by the father. This led to Child Protection and police involvement. The father has not had contact with the children since December 2021. [ 3 ] The primary issue for determination is what Parenting Order is in the children’s best interests in light of family violence concerns and disclosures made by A.A. of sexual abuse by the father.

[ 4 ] Among other relief, the mother asks in her Amended Application filed in June 2022 for an Order for exclusive decision- making responsibility for the children. She testified she did not feel it would be healthy for the children to resume visits with the father at this time. She requests that if any parenting time is ordered in favour the father, it should occur during the day only, on a schedule, it should be professionally supervised and it only should commence after A.A. has finished therapy sessions. [ 5 ] The mother also seeks a “non-harassment order” against the father under

section 81 of the Family Law Act and an order allowing her to obtain a passport for the children and travel with them without the father’s consent. [ 6 ] The father is opposed to an order for no parenting time with the children. However, he indicated in his closing submissions he does not object to his parenting time being professionally supervised and to begin after A.A. finishes trauma therapy. [ 7 ] He also indicated he wants to be notified of any decisions for the children made by the mother.

He is opposed to the mother removing the children from the province or country without his knowledge. [ 8 ] The mother also asks that the father be imputed an income of approximately $30,000 for the purposes of child support and sharing of special expenses. [ 9 ] The father says $30,000 is reflective of his income in Ontario, before the parties moved to New Brunswick in July 2020, and is therefore too high of an amount to impute as labour rates are lower in this province. ISSUES 1. What Parenting Order is in the children’s best interests? 2. Should the Court make an Order under

section 81 of the Family Law act? 3. Child support

a) Should income be imputed to the father?

b) What amount of child support is payable by the father?

c) What Order should be made for sharing of special expenses? ANALYSIS Issue 1 – What Parenting Order is in the children’s best interests? [ 10 ] The mother is originally from the United States but has lived in Canada for many years. The father is originally from New Brunswick. The parties commenced a relationship when they both were living in Ontario in 2014. They were married on October 8, 2018. [ 11 ] The father is also the parent of D.L.G.-F., born in 2002, and A.D.A.F, born in 2008. These children will be referred to as D.G.- F. and A.F., respectively.

The father has had primary care of these children since 2017 or 2018. According to the mother, A.F. has ADHD and behavioural issues. [ 12 ] The mother testified that she was the primary caregiver for the children and was running the household when the father was working. She said when the father was not working he helped one percent of the time, but there was usually a fight about it.

She said she has anxiety and she found it hard to go to medical appointments alone, but he would not come. [ 13 ] The father did not dispute this background information or the mother’s evidence that she was the primary caregiver for the children. Domestic violence [ 14 ] I conclude from the evidence the father has anger issues and he has been physically violent and emotionally abusive in the family home. I also conclude that the father’s anger issues remain a concern. [ 15 ] The mother testified the father has anger issues and had outbursts and would punch holes in doorways if he did not get his way.

She said in 2019 he shoved D.G.-F. against a wall, in anger. The mother was very upset and concerned about safety. She left the home but the shelters were full. She had to go stay at a friend’s home. The father stayed in the parties’ residence. [ 16 ] The mother testified she has had physical health issues, including not being able to eat and maintain a healthy weight, and mental health issues as a result of family violence. She said she checked herself into a mental hospital for three days in 2019 because of her internal thoughts and low self-esteem.

The mother said after this happened, the father was affectionate and supportive towards her, but things started to go downhill again when COVID hit. [ 17 ] The father denied on cross-examination he had a violent temper, but he agreed he punched doors when he was with the mother, and that in Ontario, he threatened to deport her. [ 18 ] The mother also testified the father was a very strict parent and he often responded out of anger and would belittle the children if they did not fold towels or wash dishes appropriately.

He would demean them and call them names. [ 19 ] Child Protection services were involved with the family in Ontario. As well, before the mother met the father, his parenting time with D.G.-F. was supervised for a period of time. When asked why, the father said it was because there were anger issues.

[ 20 ] The father acknowledged in his oral evidence he has anger issues. However, he said he has done anger management, which appears to have been in Ontario, and has been working on himself. [ 21 ] He said when “all this” started he got hold of a life coach to help with his issues and deal with his own stress. On cross- examination he was not able to remember his life coach’s last name. He provided no details about how many sessions he has attended. Events leading to separation [ 22 ] In July 2020 the family moved to New Brunswick.

The mother testified the father said he had a job opportunity in New Brunswick, but ultimately that was not the case. [ 23 ] The father testified the family moved to New Brunswick because of his health and that of his mother (who lives in New Brunswick). She is diabetic. The father provided no details of any health issues he faces. [ 24 ] After arriving, the parties and the four children resided in the father’s mother’s garage.

The mother testified that the father’s mother would lock the house at night and the only way that they could go to the bathroom at night was in a bucket or outside. [ 25 ] The mother testified A.A. was frequently bedwetting, especially when they were living in the garage. She also said that A.A. was defecating without telling her while they were living in the garage. [ 26 ] The mother testified that in approximately late October 2020 the father’s mother, the father and D.G.-F. were having a yelling match.

D.G.-F. put her hand up in a defensive position and the father slapped her and threw her over a railing. [ 27 ] On November 16, 2020 the mother left and went to a transition house. The mother testified she had caught the father cheating and they had financial problems. She also said she was waking up in the middle of the night to the father having sexual relations with her without her consent. She said she confronted the father and said she did not consent, but he made excuses and said it was all in her head, that she was his wife and there was no such thing as marital rape.

The mother testified she was worried the children would overhear, as they were sleeping behind a dresser in the garage while this happened. [ 28 ] On November 16, 2020 the mother obtained an Emergency Intervention Order (“EIO”) under the Intimate Partner Violence Intervention Act . [ 29 ] The EIO was in force for a period of 45 days and granted the mother temporary care and custody of A.A. and M.F.

It also included a No Contact Order on the part of the father with the mother and A.A. and M.F. [ 30 ] Following the issuance of the EIO, Child Protection social worker Amanda Douthwright became involved with the family. Ms. Douthwright was requested by the Sheriff’s Officer to help remove the children from the home, further to the EIO. She and her co- worker went to the father’s mother’s home. Ms. Douthwright said the father’s mother was very upset and told them to get off her property. She would not let them in the house.

The father’s mother and the mother had to be separated. [ 31 ] A Child Protection intake was opened based on emotional abuse due to domestic violence and also concerns about physical abuse between the father and D.G.-F. Ms. Douthwright said that D.G.-F. talked about the father putting her over the deck. [ 32 ] Ms. Douthwright testified once the Department of Social Development knew the mother and father were not getting back together, they closed the Child Protection file. Events after separation [ 33 ] The mother, A.A. and M.F. stayed at the transition house for three weeks.

The mother’s evidence is that after she went to the transition house, A.A.’s defecating stopped. They then moved into a three-bedroom apartment in town, where the mother continues to residence with A.A. and M.F. The father remained with his mother and his children. It is unclear when, but at some point later in time the father obtained his own residence. [ 34 ] The mother obtained employment with a special care home. However, she is on an extended leave of absence due to an inability to obtain childcare. She testified she receives the “baby bonus” (Child Tax Benefit) and social assistance of $1,060 a month.

Her income, as set out in her Financial Statement sworn July 10, 2022, is $12,828. [ 35 ] The mother filed her Application on December 14, 2020. An Interim Order dated December 18, 2020 granted her interim primary care of A.A. and M.F. The father was granted daytime parenting time every Tuesday and Thursday from 3:00 to 6:00 p.m. and every Saturday from noon to 4:00 p.m., as well as parenting time on Christmas Day. It was also agreed, but not ordered, that the mother would have parenting time with D.G.-F. and A.F. [ 36 ] The mother testified she allowed deviations from the Interim Order.

The father started working at a hardware store. He would see the children every day. [ 37 ] The father’s visits began at his mother’s residence. However, they were moved to the mother’s apartment by agreement. In her affidavit sworn January 29, 2021 the mother says this was because of the behaviour of the father’s mother and the father’s inability to get to the agreed-upon meeting point. [ 38 ] The mother initially transported the father to and from visits as he did not have a valid driver’s license. She stopped doing this because of the cost and her limited budget.

The father would take cabs or get a ride to her home with the mother’s boyfriend. [ 39 ] On January 14, 2021 the father came with D.G.-F. and A.F. to the mother’s home for a visit with A.A. and M.F. The mother and the father left the four children to go get groceries and a coffee. When they returned, D.G.-F. told them she came out of the bathroom and A.A. and A.F. were naked in her room in a “fort tent”.

[ 40 ] Both the mother and the father were upset by this. The mother said she asked A.A. what happened, but she was nonverbal. The mother called the police and made a report. She testified she did not know whether A.F. was arrested. He was only 12 years old at the time. [ 41 ] The mother testified this was not the first time she caught A.F. in a questionable situation. In Ontario she would hear noises and go downstairs to find A.F. looking down A.A.’s pants. She said she would remove A.A. and tell the children it was inappropriate.

CPS intake in January 2021 [ 42 ] It appears that as a result of the January 14, 2021 incident, and the mother’s call to the police, a report was made to Child Protection Services. Social worker Amanda Douthwright again became involved with the family. [ 43 ] Ms. Douthwright conducted an initial interview with A.A., who disclosed sexually inappropriate behaviour on the part of A.F. [ 44 ] Ms. Douthwright then carried out a forensic interview of A.A. later in January 2021. A police officer was present. [ 45 ] Ms. Douthwright testified that A.A. spoke about A.F. putting his “wiener” in her “no-no square” one time.

Ms. Douthwright took this to mean A.F. put his penis in A.A.’s vagina. A.A. said D.G.-F. was there, and a little fort was set up. [ 46 ] Ms. Douthwright testified nothing really stood out about A.A.’s mood during the forensic interview. A.A. wanted to get the information out and be done with the interview. Ms. Douthwright said they would have tried to get more information but A.A. could not provide more. [ 47 ] Following the interview Ms. Douthwright met with the father and the mother. They both agreed that A.A. and A.F. would not be left alone together.

Counselling was offered for A.A. [ 48 ] The mother testified that following the incident, she ensured A.A. and A.F. were never left alone again in the same room and she would not let A.F. in her home if she was not going to be there. [ 49 ] On February 5, 2021 the parties returned to court. The Interim Order was varied to provide that the father’s parenting time would remain the same but it would take place at his home. CPS intake in June 2021 [ 50 ] In June 2021 the Department of Social Development received an intake regarding physical abuse by the father of A.F. Ms.

Douthwright testified A.F. left the father’s residence and was making suicidal threats and did not want to go home. It was reported that the father went to get A.F. at a park and dragged him home. [ 51 ] Ms. Douthwright said this intake was unsubstantiated as the father denied it and A.F. was not expressing anything about what happened. The intake was closed later in 2021. CPS intake in December 2021 [ 52 ] The mother’s evidence is that in the summer of 2021, A.A. was exhibiting concerning behaviour. She was sneaking snacks and was “testy”. The mother said A.A. was not her normal self.

The mother was catching her trying to steal things from stores. [ 53 ] In her affidavit sworn June 1, 2022 the mother describes A.A.’s behaviours as including swearing, stealing and hitting other children at school. She would take a toy from M.F. until he cried, and if she tried to correct A.A.’s behaviour, A.A. would cower as if she was afraid of the mother. She indicates both children were having night terrors and when she would try to comfort them, they would talk about the father trying to get them.

A.A. had difficulty sleeping and would wet the bed. [ 54 ] The mother indicates M.F. was refusing to allow her to change his diaper, was adamant about not going to the potty, had anger issues and night terrors and did not want to be away from her. He ended up sleeping with her a lot of nights. [ 55 ] The mother testified that at this time the father was seeing the children almost on a daily basis, outside of the terms of the Interim Order. He was also having some overnight visits.

The mother deposed in her June 1, 2022 affidavit she felt uncomfortable saying no to the father’s requests for more parenting time and that he would push her boundaries at every opportunity. [ 56 ] The mother testified the father would come to see the children, but he was talking to her and saying he thought they could work it out. She told him she appreciated the apology but did not feel safe with him.

A.A.’s disclosure to the mother [ 57 ] The mother deposes in her June 1, 2022 affidavit that in October 2021, after Child Protection became re-involved with the father, the Department of Social Development told her to revert to the court-ordered parenting time. She followed this direction. She says the father became very angry about this. [ 58 ] The mother testified that shortly after the parents reverted to the court-ordered parenting time, she, A.A. and M.F. were cuddling and watching TV. A.A. was sitting in her little chair and said she had something to tell her.

The mother told her she could tell her anything. A.A. said “You know what [A.F.] did to me? [D.G.-F.] told me Dad was doing the same things as A.F.” [ 59 ] Over the next few days A.A. told the mother that the father was doing “it” to her too. The mother asked for clarification and A.A. said, “Well, sex”. The mother testified she told A.A. that was a big adult topic. A.A. described it as a boy and girl taking their clothes off and touching private parts together and that it is supposed to feel good. The mother called the Department of Social

Development and the police. [ 60 ] The mother testified that over time A.A. has told her that the father did what he did during sleepovers. A.A. told her she would peek into the father’s room and see him having sex with other kids, but she did not say which kids. [ 61 ] After the mother called the police and Child Protection Services, a Child Protection intake was opened. Amanda Douthwright was again assigned to the file. [ 62 ] The mother said A.A. opened up to her over time and said she did not like going to the father’s house and that she was fearful.

She brought up an incident where the father chased her with a knife around the house and she locked herself in the bathroom. [ 63 ] When asked if she gave any further information about the sexual abuse, the mother said A.A. told her as long as she did what Daddy wanted, things were not as bad. Amanda Douthwright’s interviews of A.A. in December 2021 and January 2022 [ 64 ] Ms. Douthwright met with A.A. at the mother’s home on December 16, 2021 for an initial interview. Ms. Douthwright testified she spoke to A.A. alone and mentioned she was aware she said things to her mother about A.F. and her father.

A.A. told Ms. Douthwright her father put his “wiener” in A.F.’s bum and put his wiener in A.A.’s “no-no square”. A.A. said this happened at the father’s apartment. [ 65 ] Mr. Douthwright interviewed A.F. at some point before A.A.’s forensic interview. He made no disclosures. However, because of the conditions of the father’s undertaking to the police, A.F. could not stay at the father’s. A safety plan was put in place with the father, and A.F. went to stay at the father’s mother’s home. [ 66 ] Ms. Douthwright completed a forensic interview with A.A. in January 2022.

Constable Gould of the RCMP also attended this interview. [ 67 ] Ms. Douthwright testified that during the forensic interview, A.A. talked about her father putting his wiener in A.F.’s bum. When she asked A.A. if she saw this, A.A. said D.G.-F. saw it and A.A. had not seen it herself. [ 68 ] A.A. also said her father did things to her. She said her father put his wiener in her bum first. Ms. Douthwright asked if their clothes were on or off. A.A. said they were off. She said her father took off her shirt, her pants and her underwear. A.A. then said they did what mothers and fathers do. [ 69 ] When Ms.

Douthwright asked her what that was, A.A. said he kissed her on the lips for a very long time. She then said the father put his wiener in her vagina. A.A. told Ms. Douthwright this happened in D.G.-F.’s room. [ 70 ] Ms. Douthwright confirmed in her evidence that A.A. used the word “vagina” and not “no-no square”, as she had used before. [ 71 ] When Ms. Douthwright asked for more details, A.A. could not give her any. [ 72 ] Ms.

Douthwright described A.A. as hyper and “up-and-down”, which was not typical of behaviour she had seen from her. [ 73 ] The father was arrested the next day and put on conditions that he have no contact with A.A. or M.F. Ms. Douthwright testified she spoke to the father and told him she was not comfortable with M.F. going to see him because of M.F.’s age and the ongoing investigation. [ 74 ] A medical examination of A.A. was carried out. Ms. Douthwright said the mother cooperated and took her to the interview. No physical evidence of sexual assault was found. [ 75 ] Ms.

Douthwright has not had any involvement in the file since the forensic interview in January 2022. She testified her co- worker did an investigation on the mother’s home in January 2022, but it was over quickly. She said there are no Child Protection concerns with the mother at this point. [ 76 ] Ms. Douthwright agreed on cross-examination that the medical examination of A.A. did not find anything and she agreed that the father’s file with Child Protection Services is closed now. However, Ms.

Douthwright testified the Department of Social Development would have concerns with the father having unsupervised parenting time with A.A. or M.F., based on the December 2021 investigation and the fact the Department had substantiated sexual abuse of A.A. She testified that if any unsupervised time with A.A. and M.F. were ordered, the Department would intervene.

Kelli Owens-Beach’s forensic interview of A.A. in April 2022 [ 77 ] In April 2022, at the request of the Crown and the RCMP, the Department of Social Development was asked to do a follow-up forensic interview with A.A. to see if they could get further information from her about the allegations. [ 78 ] Kelly Owens-Beach, a social worker with the Department of Social Development, who also has training in forensic interviewing, was assigned to do the interview. [ 79 ] Ms.

Owens-Beach testified that in April 2022 a further allegation had come forward from A.A. about inappropriate sexual behaviour involving the father. Ms. Owens-Beach interviewed A.A. on May 9, 2022, both as a follow-up to the initial forensic interview done in January 2022, as requested by the Crown, and also in relation to the further intake in April 2022. [ 80 ] A.A. made no disclosures during this interview. Ms. Owens-Beach testified A.A. did not recant her previous statements but she did not provide any additional detail.

Evidence of Constable Gould [ 81 ] Constable Paul Gould testified he was present at the forensic interview when A.A. said she was sexually assaulted by the father. He arrested the father for sexual assault of A.A. A plan was put in place that there would be no contact between the father and the children. [ 82 ] Constable Gould testified the father denied the allegations he had sexually assaulted A.A.

Initially, the father was frustrated and seemed surprised at the allegations and expressed some anger, but he listened to Constable Gould and answered his questions. [ 83 ] Constable Gould forwarded the charges to the Crown, along with the evidence which included A.A.’s interviews and interviews with the father. The father participated in two interviews. He also was subject to a polygraph interview set up at Constable Gould’s request.

Constable Gould was present during the polygraph interview. [ 84 ] I do not put any weight on Constable Gould’s evidence around the polygraph interview as the results of the polygraph are not in evidence, Constable Gould did not administer it, and the person who did administer it has not provided any evidence to the Court. [ 85 ] The outcome of the investigation, including the reinterview of A.A., was that there was insufficient evidence to lay charges against the father for sexual assault of A.A. [ 86 ] Constable Gould testified that the undertaking on the part of the father not to have contact with A.A. expired in March 2022. [ 87 ] In terms of other issues involving the father, Constable Gould testified he was aware that there was a sexual assault allegation made by D.G.-F. against the father in the summer of 2021.

However, D.G.-F. declined to provide any further information and no charges were laid. [ 88 ] The father asked Constable Gould on cross-examination why he was not made aware of the allegations made by D.G.-F. Constable Gould responded it was for the safety of victims. [ 89 ] Constable Gould testified that charges of sexual assault of the mother by the father were approved. In November 2021 the father was arrested in relation to these charges. The father is subject to an undertaking not to contact the mother except for exchanging the children.

The court proceedings in relation to those charges are ongoing. [ 90 ] Constable Gould also has dealt with the father as the parent of A.F. A.F. is currently on a Conditional Sentence Order with respect to the mischief charge from the summer of 2021. [ 91 ] A.F. spent time in a group home when the charges with respect to A.A. were brought forward. Constable Gould testified A.F. would often leave the group home and he had a lot of interaction with A.F. He said at the time they had a good relationship. However, their interactions are getting more and more severe lately and A.F. is expressing frustration with him.

Constable Gould feels he has lost rapport with A.F. over the last few months. [ 92 ] Constable Gould said he would reach out to the father to ask if he knew where A.F. was when he left the group home, and he would check in with the father to update him about A.F. His interactions with the father depend on the day. He has had exchanges with him where he was cooperative and listened. Other times the father is frustrated and tells him he is not doing his job.

Constable Gould agreed he has seen the father angry. [ 93 ] The father testified that A.F., now 14 years old, has been out of control a fair amount of the time. He has threatened to commit suicide. Before going to stay at the group home, A.F. stayed at the father’s mother’s residence for six months. When asked why he left his mother’s, the father said it was because his mother has anger issues. A.F. resides with the father and D.G.-F. now. [ 94 ] The father said A.F. has not seen his mother since he was five years old and that she “kind of messed with his head”.

The father testified it is completely understandable that A.F. would not have one-on-one time with the other children. [ 95 ] The father has not seen A.A. or M.F. since December 2021. The father acknowledged he has not applied to the court to see the children, despite the fact the undertaking not to have contact with A.A. has expired. [ 96 ] In explaining this, the father said travel is difficult. He also said he is not allowed to have contact with the mother to arrange to see the children.

He said he has been trying to get a lawyer to do things properly, but he cannot get a lawyer until his tax returns are dealt with. Evidence of Tricia Wilson [ 97 ] Tricia Wilson is a clinical traumatologist. She was qualified to give expert opinion evidence on the signs, symptoms and treatment of trauma disorders. [ 98 ] Both A.A. and the mother were referred to Ms. Wilson for trauma counselling by Victim Services. Ms. Wilson’s evidence about A.A. [ 99 ] Ms. Wilson’s case notes from her sessions with A.A. were marked as exhibit A-5. A.A. was referred for 10 counselling sessions.

The referral stemmed from the January 14, 2021 incident of sexual assault by A.F. [ 100 ] The sessions began May 6, 2022. The mother attended the first session with A.A. She told Ms. Wilson that A.A. had been subject to physical and sexual abuse by her father.

[ 101 ] As of July 17, 2020 Ms. Wilson had four further sessions with A.A., without the mother present. In her individual sessions with A.A., A.A. disclosed that “Daddy sexed me.” She also disclosed an incident when the father sexually assaulted her brother, M.F., and she was present. A.A. also said the father assaulted her stepsister and another child. [ 102 ] Ms. Wilson testified she was not actively trying to elicit information from A.A. She let A.A. tell her what she was willing to disclose. [ 103 ] Ms. Wilson testified that she protects against a parental influence into her sessions with a child.

When asked how a parental influence would show up, she said the child might use adult language or terms the parent would use. Sometimes the child may say, “Mommy said…” or, “Daddy said...” Ms. Wilson said she had no reason to feel there was a parental influence in this case. [ 104 ] Ms. Wilson was asked if she had any reason to doubt A.A.’s disclosures. She said she did not, and that A.A. disclosed information in bits and pieces, which is consistent with how children who have experienced traumatic events will disclose information. [ 105 ] Ms.

Wilson indicates in her clinical notes that while A.A. can briefly explain her experiences of abuse, she quickly becomes guarded and agitated and displays impulsive play behaviours. Ms. Wilson says this is consistent with a child having difficulties coping with distress. [ 106 ] Ms. Wilson testified that A.A. meets the criteria of having sustained trauma. She supports further investigation to see if A.A. has a trauma disorder. Ms. Wilson’s treatment plan is to continue with the trauma therapy she is using. If A.A. mentions a memory, she will address it to try to reduce the intensity. [ 107 ] Ms.

Wilson wants to give A.A. space to build safety and learn she can be safe in her world. The mother will be brought into some of the treatments to ensure A.A. has support at home. [ 108 ] Ms. Wilson said she would like to double the number of sessions that were approved, as A.A. needs to learn how she can take care of herself outside of therapy. Of the three treatment phases, they are still in the first one, safety and stability. [ 109 ] Ms. Wilson has not addressed the possibility of A.A. spending time with the father.

The focus of her session has been on building safety for A.A. [ 110 ] On cross-examination, the father asked Ms. Wilson how she can be 100 percent sure there is no coaching of A.A. by the mother in regard to A.A.’s statements. Ms. Wilson said she looks at the interaction between the mother and A.A. and how the mother talks to A.A. [ 111 ] Ms. Wilson also said that she observes for physical and emotional symptoms of trauma. She testified the behaviours that she has observed from A.A. are consistent with traumatic stress. Ms. Wilson’s evidence about the mother [ 112 ] Ms. Wilson also counsels the mother.

The mother’s referral from Victim Services was in relation to intimate partner violence between the father and the mother from September to November 2020. [ 113 ] The mother began her sessions with Ms. Wilson on April 22, 2022. The clinical notes of these sessions were marked as Exhibit A-6. The mother brought M.F. to her first three sessions as she did not have childcare. As a result, the mother did not disclose details about specific instances of intimate partner violence at these sessions. The sessions were switched to virtual sessions to better accommodate the childcare issue for M.F. [ 114 ] Ms.

Wilson indicated the mother displayed appropriate nonverbal communication for her emotions, but was flat. There was some evidence of dissociated behaviour. She would lose track of the conversation or trail off and be fidgety. Ms. Wilson testified that the mother’s difficulty remaining focused on her memories is common. She said when one sees pictures in the mind and reexperiences a traumatic event, it is common to move away from it. [ 115 ] Ms. Wilson says the mother is hyper aware of her surroundings. She disclosed an incident where she ran into the father and she was hypervigilant afterwards.

She testified the mother’s focus has been on her children’s safety first and her own safety last. [ 116 ] Ms. Wilson has observed the mother with A.A. and M.F. She said she is very attentive with them. She drops A.A. off for sessions and lets her know where she is going and that she will be back. [ 117 ] Ms. Wilson is still at the first phase of the treatment plan with the mother, safety and stabilization. She said she would like to extend the mother’s treatment beyond the 10 sessions that were approved, and have five more.

The mother’s further evidence about the children [ 118 ] The mother says when she contacted Child Protection about A.A.’s disclosures, they told her to end visits and video chats with the father. [ 119 ] In her June 2022 affidavit the mother indicates that she stopped all visits and video calls just before Christmas 2021. The father has not contacted her since then and he has not seen the children or spoken to the children. [ 120 ] The mother said A.A. expresses she is fearful about spending time with her father and has asked why he is mad all the time and why he cannot be nicer.

She has expressed that she is afraid he is going to take her away from the mother.

[121] The mother testified that M.F. has also expressed being very fearful of his father but he has not said as much as A.A. has. Themother testified she is seeking play therapy for him. He has made some comments about his penis not being big enough. This raisedconcerns for the mother. [122] The mother said A.A. is doing a lot better today. The mother deposes in her affidavit sworn June 1, 2022 that A.A.’s bedwettinghas mostly resolved. She deposes that M.F. now sleeps in his own room. [123] The father states in his Answer that A.A.’s bedwetting occurred long before moving to New Brunswick.

He also says that M.F.always slept with the mother or him or one of his siblings since before moving to New Brunswick. He says all these claims started afterhe stopped paying the bills. Credibility [124] I found the mother to be a credible witness. With a few minor discrepancies, her oral evidence was consistent with her affidavitevidence. She provided details of events and approximate timeframes. She did not appear to be embellishing or exaggerating. [125] I found the witnesses called by the mother (Ms. Douthwright, Ms. Owens-Beach, Constable Gould and Ms. Wilson) wereforthright and credible in their evidence.

I believe they are impartial and unbiased witnesses. [126] The father’s limited cross-examination of the mother and her witnesses did not raise concerns with their evidence. [127] The father presented very little evidence to the Court. His oral evidence was brief. He gave some contradictory evidence. Forexample, he testified he did not have a violent temper, yet agreed he had punched walls in anger. The content of his affidavit filed in June2022 is more argument than evidence. [128] Overall, I found the mother more credible than the father.

However, the primary credibility issue is not between the mother andthe father. Rather, it is whether the father’s denials of the sexual abuse allegations of A.A. are credible. The father testified he did notunderstand where the allegations had come from as nothing of that sort has ever happened. The father says A.A. must have been“coached,” presumably by the mother. [129] The father does not appear to question that A.A. has suffered trauma. However, I take his position to be that A.A.’s trauma issolely the result of the sexual assault by A.F. on January 14, 2021. [130] Julian D. Payne and Marilyn A.

Payne state in Canadian Family Law (6th ed ) at page 591: In contested custody or access proceedings, a parent who alleges that the other parent has sexually abused their child has the burden ofproving the allegation on the balance of probabilities. If the evidence clearly establishes sexual abuse, such conduct will usually bedeterminative of future parenting arrangements.

If the evidence leaves it uncertain whether sexual abuse occurred in the past, the courtmust still go on to assess the risk of future abuse. [131] A.A’s hearsay statements have to be both necessary and reliable to be admissible as evidence. [132] I find the necessity requirement is met in light of A.A.’s young age and the trauma she is dealing with, as indicated by thetherapist Ms. Wilson. [133] With respect to the criteria of reliability, Bourque J. states the following in MSD et al. v. J.L. and J.F., 2022 NBQB 84, 2022 NBQB 084: [28] Several elements which may point to reliability were established in R. v.

Khan, supra, and the subsequent cases which haveapplied Khan. The non-exhaustive list of these elements includes: • The intelligence and understanding of the child • The absence of motive to fabricate • The absence of motive or bias of the person reporting the statement • The spontaneity of the child’s statement • The absence of suggestion, manipulation or coaching of the child • The child’s statement is consistent over time • The child’s statement is corroborated by other evidence [134] I have also considered the list of factors set out by the Ontario Court in J.A.G. v.

R.J.R. [1998] O.J. 1415 (Fam.Ct.), which werereferenced by this Court in D.J.G. v. J.R.G., 2009 NBQB 203 . [135] I find that the reported statements of A.A. are sufficiently reliable to be admitted as evidence. In

summary: • A.A.’s initial disclosure to her mother was made spontaneously. • The mother reported the disclosures to the appropriate authorities as soon as A.A. made them to her. • A.A. has repeated her disclosures to the social worker and Constable Gould, and also to the trauma therapist, Ms. Wilson, all of

whom are disinterested third parties. • A.A.’s disclosure to Ms. Douthwright was made during her initial interview and then repeated to Ms. Douthwright with Constable Gould present, during a forensic interview. • Ms. Douthwright testified about the safeguards that were in place with the forensic interview. It was recorded. I accept that Ms. Douthwright has training in forensic interviewing. The questions she asked A.A. do not appear to have been leading. • A.A. provided context and detail about what happened and where it happened.

There was some progression in the events she talked about. • A.A. was hyper and acting differently than Ms. Douthwright had experienced before, which would suggest she was agitated by what she was disclosing. • A.A. made disclosures about the father to Ms. Wilson, a professional with training in psychology and trauma. Ms. Wilson said she has no reason to doubt the veracity of the disclosures. • I accept A.A.’s disclosures to Ms. Wilson were spontaneous. She was not led or prompted by Ms. Wilson. • A.A. exhibits signs of having experienced trauma, according to Ms. Wilson. • Ms.

Wilson does not believe there was parental influence (i.e. coaching of A.A. by the mother). • While A.A. did not repeat the allegations during the forensic interview in May 2022, she has not recanted her statements made previously. • A.A.’s language in the initial disclosures was age-appropriate (“no-no square” and “wiener”) although she then used the term “vagina” in the forensic interview with Ms. Douthwright. • The father had opportunity to do what A.A. said he did. The mother was allowing the children to spend overnights in his care. • A.A. described witnessing abuse of M.F.

There is some evidence from the mother that M.F. has said things that might suggest sexually inappropriate behaviours or comments were made to him (“My penis is too small”). • A sexual assault allegation was made by D.G.-F. against the father in the summer of 2021, although D.G.-F. declined to provide any further information and no charges were laid. [ 136 ] I recognize the father was interviewed twice by the police and underwent a polygraph examination. A.A. was examined medically. There was no physical evidence of sexual assault.

Charges against the father for sexual assault did not proceed. [ 137 ] However, this Court deals with the balance of probabilities, not proof beyond a reasonable doubt. Even if all the details of A.A.’s disclosures are not accurate, it is clear she is afraid of her father. She has memories of him chasing her with a knife. She has disclosed to multiple people that the father did sexually assault her, describing things that are well beyond the knowledge of a six-year- old. In my view, it is more likely than not something harmful and inappropriate occurred between A.A. and her father.

I have to question the credibility of his denials. Best interests analysis [ 138 ] In making a Parenting Order, I am required to take into consideration only the best interests of the children. (See subsection 50(1) of the FLA ) . [ 139 ] I am also directed to give primary consideration to the children’s physical, emotional and psychological safety, security and well-being. (See subsection 50(3) of the FLA ). [ 140 ] A number of factors that I must consider are set out at

section 50 of the Family Law Act. [ 141 ] I do not find factor (

a) is relevant. The following is my analysis of the relevant factors: (

b) the child’s needs, including the need for stability, given the child’s age and stage of developmen t [ 142 ] In September of 2022 A.A. started grade two. The mother testified A.A. could go to school all year round as she loves it and does really well. She said A.A. is very creative and wants to be a firefighter and a teacher. She has some reading challenges and speech issues. She is in speech therapy. [ 143 ] M.F. is four years old. The mother testified he is glued to her hip some days, but he also loves to explore on his own. She described M.F. as very intelligent.

He uses words like “appreciate.” He loves dinosaurs and exploring. [ 144 ] The mother said M.F. talks about what he is feeling. They are trying to identify those emotions. [ 145 ] Both children have experienced a great deal of trauma. A.A. has experienced sexual abuse. It is crucial that both A.A. and M.F. have stability and a secure environment. (

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

[ 146 ] The mother has no relatives in New Brunswick. She testified that the only family the father has in New Brunswick (besides A.F. and D.G.-F.) is his mother. [ 147 ] The mother said she is not comfortable dealing with the father’s mother as she can go from happy to flying off the deep end in seconds. The father acknowledged his mother has anger issues. [ 148 ] The mother testified the children do not see the father’s mother now, and said she does not feel comfortable with her seeing the children as she is combative and puts people down, including her son when he was not around.

The mother said the father’s mother has yelled out to the children when she saw them, and this scared them. [ 149 ] The mother also testified the idea of A.A. and M.F. seeing their half siblings D.G.-F. and A.F. makes her scared because of the issues between A.A. and A.F. (

d) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent [ 150 ] The mother tried to support the children’s relationship with the father after separation. She facilitated him having parenting time and allowed him to see the children in her home.

She agreed to more parenting time than the Interim Order provided for, which unfortunately turned out to be to the children’s detriment. [ 151 ] In light of the events that have occurred with respect to domestic violence and the disclosure of sexual abuse by A.A., it is understandable that the mother is taking the position that it is in the children’s best interests to either not see the father at this time, or to require any parenting time he does have is supervised professionally. (

e) the history of care of the child [ 152 ] It is not disputed that the mother has always been the primary caregiver for A.A. and M.F. before the family moved to New Brunswick, after they moved here and since separation in November 2020. The father has not had the children in his care for almost a year at this point in time. (

f) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained [ 153 ] A.A. is seven years old and M.F. is four years old. In my view, M.F. is too young to be able to express views and preferences the Court can put weight on. [ 154 ] A.A. is also quite young still. I accept that she has described to social worker Amanda Douthwright and to her counsellor Tricia Wilson experiences with the father that are frightening. These statements of the child lend support the mother’s evidence that A.A. has told her she is afraid of the father and does not want to see him. (

g) any plans for the child’s care [ 155 ] The mother plans to provide a stable home for the children. [ 156 ] It appears the mother will continue to look for childcare so she can work. [ 157 ] A.A. will continue her therapy sessions with Ms. Wilson and any other therapy that is recommended. [ 158 ] The mother has no immediate plan to leave New Brunswick.

She wants to be able to travel with the children to the United States where her parents reside, in the event something should happen to them. [ 159 ] It appears the father will continue to live with D.G.-F. and A.F. [ 160 ] In his affidavit in support of a claim for parenting time filed June 29, 2022, the father indicates he is looking for work and that he intends to have the children attend school and daycare. He appears to support A.A continuing with counselling. (

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 [ 161 ] I accept the mother’s evidence domestic violence on the part of the father has impacted on her physical and mental health. She is currently in counselling with Tricia Wilson. The mother said that she also does painting, and makes funny videos for TikTok, does journaling and reads about self-help as ways to care for her mental health. She does not take any medication. [ 162 ] The mother described her interactions with the children, including discipline, and their routine.

She testified that she does crafts with the children. They watch movies and have dance parties. A typical day is busy and hectic. [ 163 ] The mother and A.A. read together, especially at bedtime, and they include M.F. as well. The mother testified that she and A.A. love to cuddle and make up stories involving unicorns and mermaids. [ 164 ] The mother said the routine in her home is strict. The children have breakfast, lunch, a snack and dinner.

They may deviate from the routine if she thinks that they need to go to the park to get energy out. [ 165 ] With respect to her parenting, the mother testified that she likes to use “power outs” when she needs to discipline the children. She testified when there is a need for her to impose discipline with the children, they will all recognize that they need to take a breather and will come back in five minutes and talk about whatever happened. She said it is usually over something silly, like the children fighting over a toy. However, there have been some serious issues with A.A.

For example, she tried to steal a chocolate bar at a store. The mother said she told her to put it back.

[ 166 ] The mother testified she is the parent to make sure the children are safe, fed and clothed and that they get medical and dental treatment.

With the exception of a few months in 2021, the mother has supported the children on limited income, without financial assistance from the father. [ 167 ] The Child Protection social worker, Amanda Douthwright, testified the Department of Social Development has no concerns with the mother’s parenting of the children. [ 168 ] The father provided no evidence of his routine or parenting of the children when he had parenting time with them, except to depose that they loved coming to his house or going anywhere he takes them. [ 169 ] The father says the mother had anger issues before all of this.

However, the evidence indicates family violence was occurring in Ontario due to the father’s anger issues and this continued in New Brunswick. [ 170 ] Ms. Douthwright testified the Department of Social Development has serious concerns about the safety of the children in the care of the father. [ 171 ] The mother has met the children’s needs. She has done what she can do keep them safe and to provide for their emotional and physical care and well-being. The father has not. (

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 [ 172 ] The mother communicated with the father after separation and the expiry of the EIO. She arranged for the father to have parenting time with the children. She accommodated him, perhaps to the children’s detriment. [ 173 ] There is a No Contact Order currently in place between the parties arising from the charge of sexual assault against the father.

Although they are permitted to communicate indirectly regarding the children, the mother says they have not been able to identify an appropriate third party to act as a go between.

I accept from both parents’ evidence that the father’s mother is not an appropriate person through whom to channel communications. [ 174 ] I conclude that the mother was willing to communicate and cooperate with the father until the sexual abuse allegations came to light and Child Protection directed her to cease contact between the father and the children. [ 175 ] It is unclear whether the father is willing to communicate with the mother about the children, or how he would propose to do so. (

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

i) 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 (ii) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and [ 176 ] The father has perpetrated serious family violence against the mother and the children in the form of physical violence and emotional abuse. He has acted in a coercive and controlling manner towards the mother.

A.A.’s disclosures of sexual abuse by the father of her and other children are extremely troubling. [ 177 ] Section 50(4) of the Family Law Act states: In considering the impact of any family violence under paragraph (2)(j), the Court shall take the following factors into account: (

a) the nature, seriousness and frequency of the family violence and when it occurred; (

b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (

c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (

d) the physical, emotional and psychological harm or risk of harm to the child; (

e) any compromise to the safety of the child or other family member; (

f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (

g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and (

h) any other relevant factor. [ 178 ] The family violence was serious and ongoing. It is not in the distant past. The father was charged with sexual assault of the mother in November 2021 and has not yet gone to trial on these charges. I accept the mother is fearful of the father and has been physically and emotionally impacted by family violence the father has perpetrated. [ 179 ] It is apparent the children have been directly exposed to the family violence. A.A. has experienced trauma and is fearful for her safety around the father. I accept that M.F. also has expressed fear of the father.

[180] The fact that A.A. was wetting the bed and M.F. had issues sleeping before the family came to New Brunswick does not meanthe father’s behaviours were not a factor contributing to these issues. [181] The mother has taken all reasonable steps to prevent further harm to the children. She obtained an EIO and she has followed theadvice of the Department of Social Development regarding the father’s parenting time and contact with the children.

She reported thedisclosures made by D.G.-F. about A.F. and A.A. and A.A.’s disclosures of sexual abuse by the father. [182] The father does not appear to acknowledge his role in family violence and its impact on the children. He seems to solelyattribute A.A.’s trauma to the incident between her and A.F. in January 2021. I note he blames A.F.’s mother for A.F.’s issues, despitehaving had primary care of A.F. for several years now.

k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. [183] The father is subject to a No-Contact Order with the mother through Provincial Court, pending his trial on the charge ofsexually assaulting the mother. Parenting time [184] In Sinha v. Sharma 2018 NBQB 11, 2018 CarswellNB 16, 295 A.C.W.S. (3d) 568 the Court considered the father’s request todeny access to the mother. The Court in that case referred to the decision in B. (T.) v. M. (A.), 2002 CarswellNB 560 (N.B.

Q.B.), wherethe Court stated: 89 Access is now recognized as the child's, rather than the parents', right. The Supreme Court of Canada canvassed facets of the accessissue in Young v. Young, (SCC), [1993] 4 S.C.R. 3 (S.C.C.): 60 Access rights exist in recognition of the fact that it is normally in the interests of the child to continue and foster the relationshipdeveloped with both parents prior to the divorce or separation. This being said, the right to access and the circumstances in which ittakes place must be perceived from the vantage point of the child.

Wherever the relationship to the non-custodial parent conflictswith the best interests of the child, the furtherance and protection of the child's best interests must take priority over the desiresand interests of the parent. 61 As the ultimate goal of access is the continuation of a relationship which is of significance and support to the child, access mustbe crafted to preserve and promote that which is healthy and helpful in that relationship so that it may survive to achieve itspurpose.

Accordingly, it is in the interests of the child, and arguably also in the interests of the access parent, to remove or mitigate thesources of ongoing conflict which threaten to damage or prevent the continuation of a meaningful relationship. 90 As early as 1984, the same court in K. (K.) v. L. (G.), (SCC), [1985] 1 S.C.R. 87 (S.C.C.) recognized that where thewelfare of the child requires it, parental claims must be set aside. 91 New Brunswick courts have acknowledged the need in some cases to deny or terminate access. See, for example, McKay v.Sambles (1991), (NB KB), 120 N.B.R. (2d) 136 (N.B. Q.B.); DeSilva v.

Giggey (1996), (NBKB), 174 N.B.R. (2d) 289 (N.B. Q.B.); F. (W.) v. R. (G.), above. 92 Terminating access is a measure of last resort, reserved for those situations where access offers a child no benefit. Proof of cleardanger to a child is not required. See F. (W.) v. R. (G.), above, at paragraph 28. (emphasis added) [185] The Court in the Sharma decision, above, also referred to D. (A.J.) v. B. (T.), 2013 CarswellNB 355 (N.B.Q.B.), where thefollowing was stated: 29 In an annotation on denial of access contained in Family Law e-Letter, NJI April 22, 2013, Dr.

Julian Payne outlined some of thecriteria to be considered: Terminating access is without a doubt a measure of last resort reserved for those situations where access on the evidence offers no benefitto the child.....Relevant case law provides no standard criteria for terminating access orders, but in V.S.G. v. L.J.G., (ON SC), [2004] O.J. No. 2238at para. 135, Blishen J., of the Ontario Superior Court of Justice, identifies the following factors as thosemost frequently relied upon when courts terminate an access order or, alternatively, grant an order for supervised access: 1.

Long-term harassment or harmful conduct towards the custodial parent that creates fears or stress for the child. 2. A history of violence; unpredictable, uncontrollable behaviour; alcohol or drug abuse that is witnessed by the child or presents a risk tothe child's safety or well- being. 3. Extreme parental alienation. 4. Persistent denigration of the other parent. 5. The absence of any relationship or attachment between the child and the noncustodial patent. 6. Neglect or abuse of the child during access visits. 7.

The wishes or preference of an older child to terminate access. [186] I accept that the father was involved in the children’s lives to some degree before December 2021. He had regular contact,

mainly because the mother facilitated it. [ 187 ] However, at this point in time he has not seen the children for nine months. I accept the mother’s evidence that the children, in particular A.A., have expressed not wanting to see the father. [ 188 ] There has been a history of violence and anger issues on the part of the father that presents a risk to the children’s safety and well-being.

The father has been abusive towards the mother, and in my view, has acted in a controlling manner towards her. [ 189 ] Even if the sexual assaults did not occur as A.A. has disclosed, I believe something traumatic happened to her while in the care of the father. [ 190 ] M.F. has also expressed some fear of his father, although not to the same degree as A.A., and he has made some comments that are sexual in nature and are concerning. [ 191 ] From the vantage point of A.A. and M.F., it is difficult to ascertain what benefit they would receive from contact with the father at this time. [ 192 ] In this case, I am not able to conclude that supervised access is an appropriate measure, considering the children’s fear of the father.

Trauma is being addressed with A.A. It is unclear when and if she will be in a place where contact with the father is not detrimental to her state of mind. The mother is seeking play therapy for M.F. [ 193 ] I am of the view that this is a situation where it is necessary to deny parenting time to the father.

Decision-making responsibility [ 194 ] Even without a denial of parenting time to the father, the family violence and ongoing criminal proceedings against the father make an order requiring the mother to communicate with and cooperate with the father in parenting the children inappropriate. [ 195 ] I find it is in the children’s best interests that the mother have exclusive decision-making authority for the children. [ 196 ] The mother shall have sole discretion to determine what information about the children can be shared with the father by medical and educational professionals and other service providers for A.A. and M.F. [ 197 ] The father is opposed to the mother’s request that she be permitted to obtain passports for the children without the respondent’s participation or consent.

He testified he refuses to sign anything without being notified as to what is going on. He said the mother should not be able to just leave when she pleases. [ 198 ] In my view, the father’s opposition to the mother travelling with the children to the United States to see her family arises out of his controlling nature. The mother’s wish to be able to travel with the children to see her family is legitimate and understandable. [ 199 ] I therefore grant the mother’s request for an Order that she shall be permitted to obtain passports for the children without the father’s participation or consent.

If, despite this Order, the father’s consent is required by Passport Canada, the father shall sign any documents required, upon request. [ 200 ] The mother shall be permitted to travel with the children outside of the Province of New Brunswick and Canada without the father’s consent. [ 201 ] In the event of a medical emergency involving one or both of the children that requires medical treatment, the mother shall notify the father immediately. Issue 2 – Should the Court make an order under

section 81 of the Family Law Act? [ 202 ] Section 81(1) of the Family Law Act states: 81(1) On application for a support order, a parenting order or a contact order, or when one of those orders is enforceable under this Act, the Court may make an order restraining a person from (

a) molesting, annoying, harassing or interfering with the applicant or any children under the lawful care and supervision of the applicant, (

b) making contact or endeavouring to make contact with or otherwise interfering with either the child or any person having a parenting order or contact order with respect to the child, or (

c) entering premises where the child resides from time to time, including premises the person owns or has a right to possession of. [ 203 ] In light of the history of domestic violence and the sexual assault concerns with the father, I find it is appropriate to make an Order under

Section 81. [ 204 ] Therefore, pursuant to section 81(1) (a), (

b) and (

c) of the Family Law Act , the father shall be restrained from molesting, annoying, harassing or interfering with the mother at any time, or the children while in the mother’s care; he shall be restrained from making contact or endeavouring to make contact with or otherwise interfering with either the children or the mother, and he shall be restrained from entering the mother’s premises, where the children primarily reside.

Issue 3 – Child Support [205] On March 31, 2021 the Court made an Interim Order that the father pay child support for A.A. and M.F. in the amount of $143a month, based on an estimated income of $14,700, commencing April 1, 2021. [206] The mother says in her June 2022 affidavit the father left his job with a hardware store in approximately October 2021, and hestopped paying child support as ordered in late March 2021. In her oral evidence she testified he last paid support at the end of July 2021. [207] The father says he has no income. He is not in receipt of social assistance.

When asked how he pays bills, he said his son-in-lawhad moved to New Brunswick to help and he took out a loan. [208] The father does not disclose any debt in his financial statement sworn June 29, 2022. [209] The father was asked whether he agreed parents have an obligation to support their children financially. He testified thereshould be no support payable unless he has joint custody of the children, but Child Protection says that is not going to happen.

He alsosaid it is hard to pay support when there is a No Contact Order in place. [210] All parents have an obligation to provide support for their children to the extent they are able to do so. The obligation to providechild support does not depend on whether a parent has parenting time and decision-making responsibility for the child. [211] It is not necessary for the parties to have contact with each if support is payable through the Office of Support Enforcement.

a) Should income be imputed to the father for child support purposes? [212] The mother asks the Court to impute income to the father pursuant to the Federal Child Support Guidelines, section 19(1) (a)and (f): 19

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstancesinclude the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required bythe needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; … (

f) the spouse has failed to provide income information when under a legal obligation to do so; [213] To find a person is intentionally unemployed or underemployed, the Court is required to look at the person’s earning capacitybased on their age, qualifications, experience, health and skills, and the availability of suitable work. (See Arbou v. Robichaud, 2012NBQB 16 at paragraphs 19 and 20) [214] In this case the father is 37 years old. He has not provided evidence of any medical or health issue that prevents him fromworking.

He has not established that he cannot work because of the needs of any child. [215] In Ontario the father worked at labour jobs. He earned $38,189 in 2016, $33,900 in 2017 and $32,897 in 2018. [216] The father worked at a hardware store in New Brunswick. It is unclear when this work began. He testified on cross-examinationit had been eight months since he stopped working, but then said it was more like October or November 2021 that he last worked at thehardware store. [217] He gave no evidence as to why he stopped working at the hardware store.

The mother testified the father told her the day he quitor was fired that he had a disagreement with his supervisor and walked off the job. [218] The father also testified he worked odd jobs since leaving his job at the hardware store and he received one CERB payment. [219] With respect to Section 19(1) (

f) of the Child Support Guidelines, the father is under a legal obligation to disclose and producehis financial information, but he has not complied with this obligation, [220] He was ordered to provide his financial information, including his financial statement and tax returns and Notices ofAssessment for 2017, 2018 and 2019, as well as proof of income from all sources in 2020 and proof of income to date in 2021, onDecember 18, 2020. [221] The father was again ordered to provide his financial information in March 2021 when the Interim Order for child support wasmade based on an estimated income. [222] At some point the father provided income tax information for 2016, 2017 and 2018. [223] By Order dated June 23, 2022, following a pre-trial conference, the father was ordered to file his financial statement and his2019, 2020 and 2021 tax returns and Notices of Assessment if available, or if not available, proof of income form all sources in thoseyears and proof of income in 2022 to date, on June 23, 2022. [224] The father did not file a financial statement until June 29, 2022.

It indicates he has no income. He has not provided any proof ofincome for 2019, 2020 or 2021. He said his 2020 and 2021 tax returns were outstanding and were just filed. He said he was not surewhat happened with his 2019 tax return.

[ 225 ] I find it is appropriate to impute income to the father both on the basis of intentional underemployment or unemployment and failure to provide income information when under a legal obligation to do so . [ 226 ] The father says $30,000 overstates his earning capacity because labour rates are higher in Ontario. He provided no proof of this. [ 227 ] In my view, the best evidence of his earning capacity is his 2018 Notice of Assessment. I therefore agree with the mother’s request to impute an income of $30,000 to the father.

b) What amount of child support is payable by the father? [ 228 ] The mother asks only for a prospective order for child support as of the date of trial. Based on an imputed income of $30,000, the father shall pay child support for A.A. and M.F. in the amount of $435 per month, commencing August 18, 2022 and payable on the first day of each month thereafter, until further order of the Court. [ 229 ] Support shall be payable through the Office of the Director of Support Enforcement.

c) What order should be made for sharing of special expenses? [ 230 ] The mother requests an order that the father pay his pro-rata share of childcare and children’s health-related expenses that exceed insurance reimbursement by at least $100 annually, pursuant to

section 7 and

section 3 of the Federal Child Support Guidelines . [ 231 ] I order that the parties shall share special and extraordinary expenses relating to the children (section 7 expenses) in proportion to their incomes, commencing August 18, 2022.

The father shall pay 70 percent of these expenses based on his imputed income of $30,000 and the mother shall pay 30 percent of these expenses based on her current income of $12,828 from income assistance. [ 232 ] I also order the parties to file with the Director of Support Enforcement and exchange with each other their respective T-1 general income tax returns, inclusive of all attachments and schedules, and their respective Notices of Assessment, no later than June 1 of each year, commencing June 1, 2023.

At the request of either party the Director of Support Enforcement shall provide to the requesting party a copy of the other party’s income information, pursuant to section 14(2)(

c) of the Support Enforcement Act . COSTS [ 233 ] Neither party requested costs at the hearing of the Application. The parties shall bear their own costs of this hearing. DISPOSITION 1. The mother shall have exclusive parenting time and decision-making authority for the children, A.R.A., born […] 2015 and M.W.D.F., born […] 2018. 2. The father shall not have parenting time with the children. 3. The mother shall have sole discretion to determine what information about the children can be shared with the father by medical and educational professionals and other service providers for A.A. and M.F. 4.

The mother shall be permitted to obtain passports for the children without the father’s participation or consent. If, despite this Order, the father’s consent is required by Passport Canada, the father shall sign any documents required upon request. 5. The mother shall be permitted to travel with the children outside of the Province of New Brunswick and Canada without the father’s consent. 6. In the event of a medical emergency involving one or both of the children that requires medical treatment, the mother shall notify the father immediately. 7. Pursuant to section 81(1) (a), (

b) and (

c) of the Family Law Act , the father shall be restrained from molesting, annoying, harassing or interfering with the mother at any time, or the children while in the mother’s care, he shall be restrained from making contact or endeavouring to make contact with or otherwise interfering with either the children or the mother, and he shall be restrained from entering the mother’s premises, where the children primarily reside. 8.

Based on an imputed income of $30,000, the father shall pay the mother child support for the two children in the amount of $435 per month commencing August 18, 2022, and on the first day of each month thereafter, until further order of the Court. Support shall be payable through the Office of the Director of Support Enforcement. 9. Pursuant to

section 7 and

section 3 of the Federal Child Support Guidelines , the parties shall share any special and extraordinary expenses relating to the children in proportion to their incomes, commencing August 18, 2022. The father shall pay 70 percent of these expenses based on an imputed income of $30,000 and the mother shall pay 30 percent of these expenses based on her current income of $12,828 from social assistance.

10. The parties shall file with the Director of Support Enforcement and exchange with each other their respective T-1 general income tax returns, inclusive of all attachments and schedules, and their respective Notices of Assessment, no later than June 1 of each year, commencing June 1, 2023. At the request of either party the Director of Support Enforcement shall provide to the requesting party a copy of the other party’s income information, pursuant to section 14(2)(

c) of the Support Enforcement Act . DATED at the City of Saint John, New Brunswick the day of September 2022. _____________________________ Madam Justice M. Deborah Hackett Justice of the Court of King’s Bench Family Division