Hurley v. MacKenzie, 2019 NSSC 261

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Hurley v. MacKenzie , 2019 NSSC 261 Date: 20190904 Docket: 83125 Registry: Sydney, NS Between: Thomas Hurley Applicant v. Tanya MacKenzie Respondent Library Heading Judge: The Honourable Justice Lee Anne MacLeod-Archer Heard: May 8 & 15, 2019 in Sydney, Nova Scotia Written Decision: September 4. 2019 Subject: Variation of de facto parenting arrangements

Summary: Change in circumstances not proven; enforcement of prior order not in best interest of child. Result: Application dismissed THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Hurley v. MacKenzie , 2019 NSSC 261 Date: 20190904 Docket: 83125 Registry: Sydney Between: Thomas Hurley Applicant v. Tanya MacKenzie Respondent

Judge: The Honourable Justice Lee Anne MacLeod-Archer Heard: May 8 & 15, 2019, in Sydney, Nova Scotia Written Release: September 4, 2019 Counsel: Thomas Hurley, Self-Represented (not participating) Tanya MacKenzie, Self-Represented By the Court: Facts [ 1 ] The parties are the parents of two children, who are currently in Mr. Hurley’s primary care. Ms. MacKenzie seeks variation of that arrangement. She wants primary care of the children, with Mr. Hurley exercising access every second weekend. [ 2 ] The current parenting arrangement does not reflect the latest court order.

That order was reached by consent and issued June 8, 2016. It contains a detailed parenting arrangement under which the parties have joint custody of the children, but Ms. MacKenzie is named as primary caregiver. What Ms. MacKenzie now seeks is essentially a reversal of the current arrangement, by reverting back to the 2016 order. [ 3 ] A hearing was held, during which Ms. MacKenzie testified, along with child protection social workers Paul Mugford and Stephen Cordy. Mr. Hurley did not file materials or participate in the hearing.

He had been given ample opportunity and notice to do so. [ 4 ] In the affidavit filed in support of her Application, Ms. MacKenzie says that the children were placed with their father while she addressed some mental health issues. She says that she was to exercise supervised access, but she was being denied access. [ 5 ] Ms. MacKenzie filed another affidavit sworn on December 18, 2018 in which she confirms that the children have been residing with Mr. Hurley since December 16, 2016. She says that she has been trying to get her children “back” since June, 2017, and that Mr.

Hurley keeps denying her access. [ 6 ] In that affidavit, she included hearsay evidence about an allegation she attributes to her daughter. The allegation appears to be one of the referrals child protective services investigated. I have given that evidence no weight, because the proper foundation was not laid for its admission, and the social worker testified that it was investigated but not substantiated. [ 7 ] This couple has a long history of making allegations against the other. Child protective services and police have been involved.

There were allegations of domestic violence, assault and child abuse, but none of the allegations were substantiated and no charges were laid. There are also long-standing concerns with Ms. MacKenzie’s mental health, dating back to at least 2010. [ 8 ] The Minister of Community Services closed its file in 2016 after Ms. MacKenzie made the decision to send the children to live with Mr. Hurley. She agreed to exercise supervised access. [ 9 ] The consent order which was issued in 2016 names Ms. MacKenzie as primary caregiver. No subsequent order was issued to reflect the current parenting arrangements. [ 10 ] Mr.

Cordy expressed no concerns if the children were placed in the primary care of either parent. He noted that Ms. MacKenzie has been cooperative throughout his involvement. However, he also noted that in order to reduce the risk to the children, Ms. MacKenzie must be seeking treatment for her mental health issues. [ 11 ] In the context of the latest allegations raised by Ms. MacKenzie, the social worker confirmed that he’d discussed them with Mr. Hurley. Mr. Hurley advised that he has been sending the children for access. This seems to be confirmed by the fact that Ms.

MacKenzie videotaped her daughter making allegations against Mr. Hurley during an access visit earlier this year. [ 12 ] The onus is on Ms. MacKenzie to satisfy the court on a balance of probabilities that there has been a material change in circumstances affecting the children, or the ability of the parents to parent the children. Ms. MacKenzie has not advanced such evidence. Evidence of unsubstantiated allegations that she made to child protection and/or police are insufficient.

Allegations of access denials are also insufficient, particularly where she acknowledges having contact with the children since she filed her Application. [ 13 ] Further, the evidence is clear that the children were placed with Mr. Hurley because Ms. MacKenzie was struggling with her mental health. Yet there is no evidence before me to demonstrate what treatment she has sought in that respect, whether she’s made progress, or what the prognosis is for continued progress and/or stability (as the case may be). [ 14 ] In all proceedings involving children, I must consider the best interests of the children. Ms.

MacKenzie advanced no evidence that the current parenting arrangements are not in the children’s best interests. A denial of access can be detrimental to children, but the evidence is insufficient to prove an ongoing denial of access in this case. [ 15 ] Even if I treat Ms. MacKenzie’s Application as a request to enforce the 2016 order, there’s insufficient evidence to show that a reversal of the de facto parenting arrangement is in the children’s best interest. [ 16 ] In the circumstances, I must dismiss Ms. MacKenzie’s Application.

MacLeod-Archer, J.