A.M. v. A. Y., 2012 NSSC 25

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: A.M. v. A. Y., 2012 NSSC 25 Date: 20120117 Docket: 77542 Registry: Sydney Between: A. M. Applicant v. A. Y. Respondent Editorial Notice Identifying infromation has been removed from this electronic version of the judgment. Judge: The Honourable Justice Theresa M. Forgeron Heard: January 3, 2012, in Sydney, Nova Scotia Oral Decision: January 17, 2012 Written Decision: January 19, 2012 Counsel: Lisa Johnston, for the applicant Darren Morgan, for the respondent By the Court: [ 1 ] Introduction

[ 2 ] Two parents, A. M. and A. Y., with significant substance abuse backgrounds, gave birth to their daughter T. in April 2011. T. lived with both of her parents until October 2011, when Ms. Y. left the family home with her. [ 3 ] The disintegration of this dysfunctional family unit did not proceed amicably. Ms. Y. ’ s unilateral move precipitated an emergency motion being filed by Mr. M.. Although the ex parte motion was refused, given the volatility of the circumstances, the matter was heard on an inter partes basis, with abbreviated notice. [ 4 ] A temporary, interim order issued on October 11, 2011 followed by an interim consent order which outlined the Christmas access

schedule pending a full interim hearing. The contested, interim hearing proceeded on January 3, 2012. The parties, Ms. Y. ’ s mother, together with a child protection worker, testified during the hearing. The oral decision was delivered on January 17, 2012. [ 5 ] Issue [ 6 ] In this decision, the court will determine what parenting plan is in the best interests of T.. [ 7 ] Analysis [ 8 ] Position of Mr. M. [ 9 ] Mr. M. states that he should have interim primary care of T. for a number of reasons, including the following: a. Ms. Y. has a history of drug use involving percocets.

In addition, she has recently abused oxycotin. Mr. M. is concerned that Ms. Y. has begun to abuse “ hard ” drugs again. He notes that she has lost weight, is no longer interested in food, and lost interest in life. Therefore, from Mr. M. ’ s perspective, Ms. Y. is unable to care for T.. b. Mr. M. has the ability to parent appropriately because he has raised three other children, one of whom is in his primary care as of October 2011. He states that he has a proven ability to meet the emotional, physical, and developmental needs of T.. c. T. will benefit from having ample contact with her other siblings.

This can best occur if T. is placed in Mr. M. ’ s primary care where she will live with her step brother and see her other two siblings when they come to visit. d. Mr. M. is the sole owner of the home which has been T. ’ s home since her birth. T. is comfortable in the home and it will provide her with much needed stability. e. Mr. M. is in a better financial position than Ms. Y. to meet T. ’ s material needs. Although on parental leave, Mr. M. is employed seasonally as a *. His annual income is approximately $24,000 based upon E.I. and T-4 earnings. f. Ms. Y. smokes around T.. This is unhealthy.

T. ’ s clothes smell like cigarettes when she comes from Ms. Y. ’ s home. He stopped smoking cigarettes in the spring and does not permit anyone to smoke in his home or near T.. g. Mr. M. denies that he sell drugs. He further states that he no longer drinks alcohol, and that he has discontinued the use of marijuana. [ 10 ] Position of Ms. Y.

[11] Ms. Y. states that T. should be placed in her primary care for a number of reasons, including the following: a. Mr. M. abused marijuana and alcohol on a daily basis. He also engaged in drug trafficking. Therefore, Mr. M. is not capable ofcaring for T.. b. Mr. M. was physically and emotionally abusive to her. He is not properly suited to be the primary caregiver of T.. c. Ms. Y. was the primary care giver of T. before separation. Mr. M. spent most of his time in a bar, and even when he was at home,Mr. M. did little hands on child care. d. Ms. Y. has more time available to care for T. for two reasons.

First, Mr. M. cares for three other children, who compete for hisattention. Ms. Y. has no other dependents so she can concentrate solely on T.. Second, she is not employed and will be a stay at homemother. Mr. M. will eventually return to the work force and T. will require child care. e. Ms. Y. has a large apartment which meets all of the physical needs of T.. The former family home is not superior to her currentresidence. f. Ms. Wilson, from the local child protection office, made four unannounced visits.

After conducting an investigation, the Children’sAid office has determined that there are no protection concerns. g. Ms. Y. denies an ongoing substance abuse issue. She denies suicidal ideation. She indicates that she has called Addiction Servicesand is awaiting an appointment with an addictions counsellor. Further, Ms. Y. is awaiting therapy with Dr. Christians and a mentalhealth practitioner. [12] Law [13] The law governing interim parenting issues was reviewed by this court in Horton v. Marsh, 2008 NSSC 224 at paras 3-16which provide as follows: 3

Section 18 of the Maintenance and Custody Act provides this court with the jurisdiction to make an order respecting custody andaccess. In granting such an order, the court must apply the best interests of the child test as stated in s.18 (5) which provides:

(5) In any proceeding under this Act concerning care and custody or access and visiting privileges in relation to a child, the court shallapply the principle that the welfare of the child is the paramount consideration. R.S., c. 160, s. 18; 1990, c. 5, s. 107. 4 Generally speaking, during interim proceedings, it is the status quo which gains preeminence. In Pye v. Pye (1992), (NS SC), 112 N.S.R. (2d) 109 (N.S. T.D.) Kelly J. approved the comments of Daley J. at para 5 which reads in part:: [5] I concur with Grant, J.; in Stubson v.

Stubson (1991), (NS SC), 105 N.S.R. (2d) 155, 284 A.P.R. 155(N.S.S.C.,T.D.) that the test in such an application was properly set out in Webber v. Webber (1989), (NS FC), 90N.S.R. (2d) 55; 230 A.P.R.. 55 (F.C.), by Daley, F.C.J. at p. 57:

Given the focus on the welfare of the child at this point, the test to be applied on an application for an interim custody order is: whattemporary living arrangements are the least disruptive, most supportive and most protective for the child. In short, the status quo of thechild, the living arrangements with which the child is most familiar, should be maintained as closely as possible... 5 Similar comments were also echoed by Goodfellow J. in Foley v.

Foley, (NS SC), 1993 CarswellNS 328 (N.S.S.C.). 6 The status quo which ordinarily is to be maintained is the status quo which existed without reference to the unilateral conduct ofone parent, unless the best interests of the child dictates otherwise. This is reviewed by Wright J. in Kimpton v. Kimpton, 2002CarswellOnt 5030 (Ont.

S.C.J.), at para 1, which reads as follows: 1 There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in thethroes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is somecompelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof. On thisconsideration hangs all other considerations.

On motions for interim custody the most important factor in considering the best interests ofthe child has traditionally been the maintenance of the legal status quo. This golden rule was enunciated by Senior Master Roger inDyment v. Dyment, (ON SC), [1969] 2 O.R. 631 (Ont. Master), (aff'd by Laskin J. A. at p. 748) [ (ONCA), [1969] 2 O.R. 748 (Ont. C.A.)] by Laskin J.A. again in Papp v. Papp (1969), (ON CA), [1970] 1 O.R. 331 (Ont.C.A.), at pp. 344-5 and by the Nova ScotiaCourt of Appeal in Lancaster v. Lancaster (1992), (NS CA), 38 R.F.L.(3d) 373 (N.S.C.A.).

By status quo is meant the primary or legal status quo, not a short lived status quo created to gain tactical advantage.See on this issue Irwin v. Irwin (1986), (ON SC), 3 R.F.L. (3d) 403 (Ont. H.C.) and the annotation of J.G. McLeod toMoggey v. Moggey (1990), (SK KB), 28 R.F.L. (3d) 416 (Sask. Q.B.). 7 This law has been repeatedly followed by Nova Scotia courts, and indeed by courts throughout Canada. [14] This is an interim hearing, and as a result, the court is somewhat limited in its ability to make credibility determinations.

Eachparty bears the burden of proof in relation to his/her claim for primary care of T.. Each must present clear, convincing, and cogentevidence: C.(R.) v. McDougall, 2008 SCC 53. [15] In this case, the evidence has not been clear, convincing, or cogent on the issue of parenting ability. As a result, this court isleft to make a placement decision where both parents present with significant short comings. This situation is not optimal, but, the courthas no other choice.

The child protection authorities have been notified and have closed their file. [16] In this context, I find that it is in T.’s best interests to continue in the shared parenting arrangement. I make the followingfactual findings in relation to this conclusion: a. Both parties love T. and are able to meet her basic needs, when drug and alcohol free. They both are competent and capable ofensuring that T. is properly fed, clothed, and follows a consistent routine appropriate for a young baby. Both parties were involved inT.’s care before the separation. b. Both parties have homes that meet T.’s needs.

They are safe, clean and appropriate at present. c. Neither party has properly addressed issues surrounding their substance abuse. They both remain at risk of relapsing. Mr. M. usedmarijuana regularly since he was 14 years old. For her part, Ms. Y. used marijuana regularly, and also was addicted to prescriptionmedication until Mr. M. became involved in her life. Further, both parties frequented bars and regularly abused alcohol as a pastime. Time spent on this “hobby” was reduced after T. was born, and when Mr. M.’s children visited. d.

The claim that neither party is abusing alcohol, nor drugs, is not terribly convincing. Both lack insight into the nature of the abuse, and as to the consequences which flow from addictions. Neither party assumed responsibility for their past histories.

e. Both parties have unresolved personal issues. Their relationship was dysfunctional. Both parties require counselling to deal with their personal issues, and to learn skills to provide for healthy, child- focussed communication. f. Mr. M. has anger and control issues. In an attempt to prevent Ms. Y. from misusing drugs, Mr. M. reacted in an inappropriate fashion. Mr. M. must learn to be less controlling and to properly manage frustration and anger in a safe and effective manner. g. Ms. Y. has mental health issues that are yet untreated. At the time of the hearing, she was awaiting an appointment with Dr.

Christians, as well as a mental health therapist. She is taking medication for sleeping and restless leg. Although denying that she attempted suicide, she does admit that she was taken to the hospital in relation to drug use. The mental health disorders have negatively impacted on her life in the past, and will do so in the future, unless Ms. Y. receives proper treatment. h. Mr. M. is parenting his three other children, one of whom resides with him, and two of whom he sees every second weekend.

It is in the best interests of T. to have an ongoing relationship with her siblings. [ 17 ] Neither party has presented a superior plan. Both parents present with significant parenting deficits. The parties appear to be somewhat motivated to make changes now that the matter is before the courts. Whether the parties are able to sustain the permanent life style changes that are demanded and required to properly raise children, remains uncertain. [ 18 ] The interim order must be fashioned to meet the best interests of T..

The conditions of the order will dictate a number of prohibitions and a requirement to undertake services to reduce the risk of harm to T.. Further, the parties have consented to the commission of a parental capacity assessment, with a psychological component, so that the court can assess the clinical issues noted. [ 19 ] Pending the completion of the assessment and trial, the parties will continue the shared parenting of T. based upon a three day schedule, and not the two day

schedule previously outlined. I am concerned about the number of moves that T. is making. The more transitions, the greater the exposure to parental conflict. Further, now that winter is here, driving conditions can become more unstable. Fewer exchanges will reduce the risk arising from icy roads. Therefore, the parties will have T. in their respective care on a three day rotating schedule. Pick up and drop off will occur at 3 p.m. at the Tim Horton ’ s restaurant in *, Nova Scotia, the spot previously chosen by the parties.

The transfer and exchange will occur in a peaceful fashion, and neither party will be disrespectful to the other. Any other individuals who accompany either party will remain in their vehicle during the exchange and transfer, and they will not make any negative comments, nor hand gestures designed to cause conflict. [ 20 ] The following provisions will also form part of the shared parenting order: Communication a. The parties will communicate about important matters affecting T. ’ s general health and welfare in the access scribbler that will continue to be transferred with T. at the parenting exchanges.

The scribbler will only contain information about T. ’ s health, and general welfare, and it will be written in a respectful and mature fashion. The parties will direct any questions concerning T. through the communication scribbler. b. Each party will be responsible for T. ’ s needs when she is in their respective care. The only items to be transferred during the access exchange include the scribbler and T. ’ s favourite toy that she uses for comfort. Both parties will ensure that the scribbler and the favourite toy are present and exchanged during all transfers.

T. will be transferred in appropriate clothing that is clean. c. Neither party will speak disrespectfully about the other party in the presence of the child, or within the hearing distance of the child.

Decision Making d. The party who has physical care of T. will have day to day decision making authority, including emergency medical decision making. If a medical emergency arises, the party will, as soon as reasonably possible, contact the other party and advise of the emergency and the emergency treatment. Both parents are entitled to attend for emergency treatment where feasible. Safety Measures e.

Neither party will consume alcohol or illegal substances, including prescription medication, unless the prescription medication was prescribed for that party, and in which case, that party may only take the medication in a dose that was prescribed. Neither party will have alcohol or illegal substances in their home or in their presence. Neither party will permit the child to be in the presence of others who are under the influence of alcohol or illegal substances. f.

Each party will participate in hair follicle testing or urine analysis to determine the presence of alcohol or drugs as requested by the other party, and as is arranged through a professional forensic company. The party requesting the testing will be responsible for making the arrangements and for paying for the testing. g. Neither party will smoke in the presence of T. and will ensure that T. is not exposed to second hand smoke. Services h. Mr. M. will complete the following services: i.

Anger management counselling and counselling to assist him in learning skills and techniques to manage frustration and anger in a healthy and nonviolent fashion; ii. Counselling to acquire knowledge on the impact family violence has on children; to resolve personal issues; and to learn better communication skills in post separation circumstances, including how to avoid placing T. in the middle of parental conflict. i. A. Y. will complete the following services: i.

Counselling to acquire knowledge on the impact family violence has on children; to resolve personal issues; and to learn better communication skills in post separation circumstances, including how to avoid placing T. in the middle of parental conflict. ii. Therapy with her psychiatrist, and mental health counsellor to treat unresolved mental health issues, which is to include maintaining regular appointments. j. Both parties will cooperate and participate in a parental capacity assessment with a psychological component.

The psychologist conducting the assessment will be provided with a copy of the decision and order. The parties will supply proof of their income forthwith to the parental capacity assessment coordinator with the Family Division of the Supreme Court. k. Both parties will participate in addiction services counselling to gain better insight into the causes of their addiction, and to gain skills to prevent a relapse.

[ 21 ] Conclusion [ 22 ] An order for the shared parenting of T. is in her best interests given the parental deficits of the parties, subject to the terms and conditions outlined. The order is effective forthwith, and Ms. Johnston will draft the order and forward it to Mr. Morgan for his review and signature. ________________________ Forgeron, J.