NS v. JB, 2021 NSSC 141

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: NS v. JB , 2021 NSSC 141 Date: 2021-04-27 Docket: No. 88344 Registry: Sydney Between: NS Applicant v. JB Respondent Library Heading Judge: The Honourable Justice Kenneth C. Haley Hearing Dates: November 23, 24, and 25, 2020, and January 28, 29 and March 4, 2021 D ecision Date: April 27, 2021 Counsel : Candee McCarthy – for Applicant, NS Alan Stanwick – for Respondent, JB

Summary: The applicant, mother, applied to the court for permission to relocate to Fredericton, New Brunswick, with her two children, ages 9 and 7. The applicant had remarried, and her husband was living and working in Fredericton, New Brunswick. As the result of previous proceedings, the parties were working under a shared parenting arrangement since 2015. The Parenting Support Act stipulates under s. 18(H)(1)(

b) that where there is a shared parenting relationship, there is a presumption against relocation. This presumption can be rebutted if the applicant can prove, on a balance of probabilities, that the relocation is in the best interests of the children. The court considered the provisions of s. 18H(4)&(6) of the Parenting Support Act. Issues: Mobility Result: The applicant’s motion was dismissed. The relocation was not in the children’s best interests. the court ordered continuation of the shared parenting arrangement, subject to the applicant deciding to remain in Cape Breton.

In the event the applicant was still committed to the move, which was her choice, the court granted, in the alternative, a joint custody order with primary care vested to the father, who remained in Cape Breton, the lifelong home of the children.

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: NS v. JB , 2021 NSSC 141 Date: 2021-04-27 Docket: No. 88344 Registry: Sydney Between: NS Applicant v. JB Respondent WRITTEN DECISION Judge: The Honourable Justice Kenneth C.

Haley Hearing Dates: November 23, 24, and 25, 2020, and January 28, 29 and March 4, 2021 Decision Date: April 27, 2021 Counsel: Candee McCarthy – for Applicant, NS Alan Stanwick – for Respondent, JB By the Court: Background [ 1 ] This is the application of the Applicant, NS, dated July 25, 2017, as amended February 21, 2019, seeking to vary the Orders of Justice MacLellan dated June 16, 2015 and June 24, 2016, respecting custody of the children of the marriage , B(1), age 9, and B(2), age 7, who have been the subject of litigation most of their young lives. [ 2 ] In 2015, Justice MacLellan denied the Applicant’s request to relocate the children to London, Ontario.

The court ordered shared custody of the children between the parties on a week to week basis. [ 3 ] Justice MacLellan further ordered that the Applicant would be responsible for making medical decisions pertaining to the children, and the Respondent for making decisions pertaining to school and extra-curricular activities. [ 4 ] This order was reviewed by Justice MacLellan on June 24, 2016, resulting in no change to the 2015 order.

Justice MacLellan stated at page 108 of the transcript of the oral decision that: In June 2015 the decision in relation to NS is I essentially found her to be manipulative and not credible on many material points. I found that she obstructed the Father’s time and involvement with the children. I found JB to be truthful and I found NS, for the most part, not. I ordered specific sectors of child raising to a specific parent.

I found MB (NS’s now husband), to be a negative force between these parents as they attempt and at that time, failed to effectively co-parent, that’s where you were a year ago, co-parenting and failing at co-parenting. [ 5 ] Justice MacLellan reviewed the number of referrals made by NS to authorities about JB’s parenting. She concluded at

paragraph 123 of the transcript of the oral decision that: So at this point we have the police, the doctors, Children’s Aid, and daycare, all of who do not support her allegations. My question to her which hasn’t been answered is where is it going to end? [ 6 ] At page 133-134 of the transcript of the oral decision, Justice MacLellan states that: I have concerns if JB was granted sole custody he would block NS access. NS was disappointed when her last referral to CAS did not result in a suspension of JB’s access as it had on earlier occasions.

So, essentially, both parents would most likely obstruct the other parent from having a meaningful relationship with the children if one or the other has sole custody or sole final decision making authority on all matters. I find overall, of course, that NS is less credible than JB. [ 7 ] At paragraph 135 of the transcript of the oral decision: In any event, you are both to continue to use the 2015 order. There will be no substantial changes to it … NS is to attend counselling for her fixed unsubstantiated views, that JB is harming the children.

JB is to attend counselling to deal with his rigidity and his absence of communication skills. Both parents are to communicate by e-mail and I recommend again that they use the Wizard Program or one similar program … Both parties are to tell each other where the children are at all times, when the child is somewhere other than the home address.

B(1) is to be included for the appropriate counselling … both children are allowed to use the phone to call the other parent at a reasonable time … [ 8 ] Justice MacLellan stated at page 136 of the transcript of the oral decision that: The record will indicate that this decision I am making today reflects that NS has consistently made untrue statements in relation to JB; physically and sexually damaging B(1). This finding is important that as was my decision in June 2015 where I found there was no evidence presented to me that JB ever harmed B(1).

The police, the doctors, and Children’s Aid have all had involvement and all resolved the allegations to be unsubstantiated. So, I’m ruling that subsequent referrals of this nature must be examined with great scrutiny as to the foundation and credibility of that referral (emphasis added).

APPLICANT POSITION [ 9 ] NS brought this application to vary in July 2017, 13 months after the 2016 decision of Justice MacLellan, outlining a number of concerns with JB’s parenting, including following to respect the 2015 order, failing to adequately communicate as required by the order, alleging alienation of the mother, her partner, extended family, and also interfering in medical decisions to the detriment of the children in their best interest. [ 10 ] In addition, NS’s partner (MB), has relocated to Fredericton, NB, where they have inherited a 5 bedroom house, though the estate of a relative.

NS would like to join him if and when the court authorizes same. [ 11 ] NS states in her affidavits of November 17, 2017 and February 21, 2019 (Exhibits 2 and 3), THAT: •

(7) Remaining in Glace Bay will lead me to struggle both financially and emotionally. I believe it is in my children’s best interests to have a mother who is alleviated from the current stresses of time, finances and worries for my children. •

(8) Moving to Fredericton will afford better employment and educational opportunities for myself, and my husband, it will allow us to have a better support system. •

(9) I have arranged for the children’s healthcare, education, and extra-curricular needs to be met in Fredericton. •

(10) My husband is an electrical engineer technician. There are no jobs for him in Cape Breton He currently works as a service technician for Rogers in Fredericton (earns $57,400). •

(11) I plan to complete my BSW at St. Thomas University in Fredericton. There is no social work program in Cape Breton, other than on-line, which would be stressful and disruptive to our home life. • (14) my mother has decided to move to Fredericton for better employment opportunities and a sense of home. • (15) my mother has been a huge part of my children’s lives. • (16) my mother’s presence in Fredericton means she will continue to be a presence in my children’s lives and will continue to provide support and stability. •

(17) My husband is from Fredericton and has a large family there. •

(22) I also have a very close friend who I grew up with and consider a sister, who lives in Fredericton with her husband and children. •

(24) As a result of B(2)’s Cerebral Palsy and subsequent physical impairment, he has a team of health care providers located in Cape Breton and at the IWK in Halifax. Surgery may now be a possibility for B (2) at the IWK as opposed to St. Louis in the USA. •

(26) Travel to the IWK in Halifax disrupts B(2)’s education and daily routine. •

(28) In Fredericton, B (2) will have access to the Stan Cassidy Rehab Center. •

(29) This Center is within 15 minutes of our Fredericton home, thus less disruptive for B (2).

•

(31) B (1) has received some counselling in Cape Breton. There are multiple counselling services on Fredericton. •

(32) I have placed my husband and myself, and both children on a wait list for a family doctor in Fredericton and I believe we now have a family doctor. •

(34) I do not believe JB will be able to attend to the children’s health needs if they reside in Cape Berton with him. •

(35) The children attend Donkin Gowrie Elementary School in Glace Bay. •

(36) The commute time to the school makes it difficult for the children to participate in extra-curricular activities and creates challenges on days when they have medical appointments. There is no bus from Glace Bay to Donkin for elementary children. •

(37) I am aware that the children are late for school almost every day during their weeks with JB. •

(38) Some of B (2)’s classes are upstairs and not accessible to him. • (40) there is no after school program for the children at Donkin. •

(41) In Fredericton, the children will both attend New Maryland Elementary School. Our house is on the bus route. •

(42) The school is all one level. •

(44) I have confirmed with the school that B (2) will be assigned a TA. He lost his TA at Donkin Gowrie Elementary, due to funding. •

(45) New Maryland Elementary School has a French immersion program. •

(46) There is an after school program available in Fredericton called “Go-Go”. •

(49) The children are currently very limited in their extra-curricular activities, although B(2) has been playing sledge hockey. •

(52) In Fredericton, I plan to enroll B (2) in the Para New Brunswick Canada Games Program, which is a large para sport program. •

(53) B (1) will be able to enroll in gymnastics and cheerleading and will continue to enjoy those activities. •

(54) My husband and I will regularly attend church when we are in Fredericton. Our home parish is Holy Family Church. •

(55) I will make every effort to ensure that the children’s relationship with their father will not be lost. It is my intention to promote their continued relationship. •

(56) I am offering JB access with the children on a two week on / two week off

schedule during the Summer, March Break every year and alternating major holidays … I am open to discussing other reasonable access as our schedules change and the children get older. •

(57) I am willing to accommodate JB’s access with the children by meeting him halfway for access times (likely in Truro or New Glasgow). •

(58) The children appear to have suffered from the difficulties between JB and I. •

(59) I believe that the children will have more quality time with their father under this new parenting plan than they currently do. •

(60) I also believe that my parenting relationship with JB will improve once there is space between us. [ 12 ] During cross examination, NS testified as follows: • Acknowledged that Justice MacLellan did not approve her proposed move to London, Ontario, with her then fiancé, MB. • Acknowledged that she and JB have been in a shared custody arrangement since Justice MacLellan’s decision of June 16, 2015. • Referencing Justice MacLellan’s criticism of her, NS testified that: o I’ve come a long way since then. o I handled it poorly. o I now recognize how important JB is to the children. o Important to put the kids first. o JB is not a risk to the children. o Denied having issues of anger and impulsivity. o Advised took counselling for same.

o Acknowledges she was barred from the children’s school … but issue ultimately resolved. o Denied confrontation with B (1)’s basketball coach. o Denied verbal confrontation with JB at the IWK. o Denied continued reporting of issues to Child Welfare - “We had an open case and that was what it was for”. o Would go to social worker to get advise on how to handle situations with JB. o Described her conduct as very different as compared to her conduct in 2015 – “Child welfare was helping us”. RESPONDENT’S POSTION [ 13 ] The Respondent’s position is outlined in his affidavit filed November 17, 2020, and marked Exhibit #7,and he states THAT: •

(9) I am responsible for making decisions pertaining to the schooling and extra-curricular activities for the children,. •

(10) B (2) was diagnosed with Cerebral Palsy in September 2014. •

(11) Despite the fact NS has responsibility over medical matters, I have taken B (2) to the majority of his appointments at the IWK. •

(13) B (2) is now being seen by a physiotherapist through his school. •

(20) The children are doing very well in school. •

(21) I have a good relationship with the principal and teachers at the school. •

(22) I attend all parent and teacher meetings. •

(24) B(1) is involved in gymnastics, basketball, and sledge hockey. She wants to join the school band next year. •

(25) B(2) is involved in sledge hockey. •

(26) Both B(1) and B(2) have friends at their school. •

(27) I have a close, loving, strong, stable and secure relationship with my children. •

(28) My children are extremely attached to me. •

(29) The children have lived in the CBRM all their lives. •

(30) The children go to school in the CBRM. •

(31) The children have friends in the CBRM. •

(32) The children have relationships with extended family on both my side and the Applicant’s side. •

(33) I do verily believe that B(2) is receiving excellent treatment at the IWK. •

(34) I do verily believe that the children are thriving in the CBRM. •

(35) I do verily believe a move to New Brunswick would be unnecessarily disruptive to the children and not in their best interests. •

(38) Based upon my experiences, I do verily believe that if the Applicant was permitted to move to New Brunswick, I would likely never seen my children. •

(39) Based upon the foregoing, I do verily believe that moving the children to New Brunswick would not be in their best interests. [ 14 ] JB testified on cross examination as follows: • States he currently keeps NS informed of educational plans for the children (“I do keep her informed now”). • Does not support NS’s plans to move to Fredericton, NB. • B(2) has a history at the IWK, not Fredericton Children’s Hospital. • Agreed that there is no Rehab Center in Cape Breton for B(2) as opposed to New Brunswick. • Agreed B(2) must travel 4hours to the IWK in Halifax. • Agreed NS has decision making responsibility for the children’s medical needs.

• Acknowledged he attended medical appointments against NS’s wishes. • Denied changing B(2)’s medical appointments. • Denied restricting NS’s access to school information. • Agreed it was important to co-parent with NS. • JB does not trust NS to have access to his email/Facebook accounts (“I restricted her”). • Blames NS for children being sick when returned to his care, thus being absent from school. • Does not believe the children have a close, loving relationship with their mother. • Does not believe NS loves her children. • Does not believe the children should have a close relationship with their stepfather, MB. • Opposed to move to New Brunswick due to enforcement of current court order and implications of Covid 19. • Acknowledged he insists upon attending medical appointments (“I’m there for the kids not to irritate NS”). • Denied taking children to the police station (“I did not take my children to report NS to police”). • Denied telling children NS was going to jail. • Denied refusing to consent to the children going to Disneyland. • Did not agree with B(2) going to St Louis for surgery. • Stated IWK advised against this surgery. • Denied not allowing children saying hello to their mother in public (“I brought them over to their mother”). • Acknowledged he is on social assistance and has worked sporadically the last 5 years. • Not impressed with social worker mediation as per Dr.

Landry’s recommendation. • Acknowledged B(1) not attending counselling currently. • Acknowledged takes B(1) out of school to travel to IWK with B(2). (“It makes trip easier on B(2)”). • Suggests children are upset about move to New Brunswick (“They came to me”). • Denied discussing court with children. • Is agreeable to continuing shared custody. In the alternative, JB seeks primary care. OTHER EVIDENCE [ 15 ] A psychological assessment was performed by Dr. Landry dated December 19, 2018 (Exhibit #1). DR.

LANDRY – NS • NS for her part, reports that there have been significant improvements in her life, however, there has been even more conflict with JB. NS stated “it has gotten worse”. • NS reported she felt JB was “alienating” the children against her.

In particular, she noted “my daughter, B (1) hates me”. • NS reported she continues to believe that JB is physically abusing the children and that he neglects the children while in his care. • NS reported she has recorded B (1) staying “my daddy says you are a bad person”. • NS reported that she has a relatively low opinion of JB and she stated that “anything that the can do not to work he will”. • NS reported that she has given up going to children’s appointments together because of continued conflict. • NS believes JB’s ultimate goal is to have control over the decision making, including the medical decisions.

She stated “we have to follow his rules or he punishes the kids and myself”. • NS believes that both B(1) and B(2) have turned against her noting B(2) said to her “mom you are going to jail”. • NS believes JB is “the problem … he wants to control everything”. [ 16 ] Dr. Landry reported that NS evidenced no obvious cognitive difficulties and manifested no unusual ideations. She was articulate and able to express herself effectively. Dr. Landry stated at page 8 that:

There are a number of themes in her narrative, however, that may be important. First , NS evidences very specific beliefs about JB’s behaviour. In particular, she expressed concern that he was continuing to physically abuse the children as evidences by bruises on the children’s bodies … she also believes that she has no recourse and no official channel in which to share her concerns. Second , NS also believes that JB is actively conspiring against her to turn the children against her. Third, NS believes that JB”s behaviour is an obstacle to any type of more effective communication.

NS reports that she has been attempting to communicate. Fourth , NS believes that JB is actively attempting to exert more and more control over the children, including what she believes was an unnecessary move to Donkin. [ 17 ] Dr. Landry found NS’s responses were generally consistent and she responded in a valid manner. That said, it was noted NS engaged in some self deceptive enhancement. [ 18 ] Dr. Landry concluded NS did not have any indication of any mental issues, but there were indications of lingering anger and resentment when talking about JB and the situation.

NS has definite beliefs about JB’s character, as well as his rules. [ 19 ] Dr. Landry was of the opinion NS has the psychological resources to be the psychological parent and has been parenting successfully. DR. LANDRY – JB • JB reported the move to Donkin gave them a 4 bedroom house with a “massive yard” made available to him through Regional Housing. • JB described the neighborhood as very positive for the children with “lots of children; bikes and go-carts in the yard”. • JB reports that the children have told him that NS is physically abusive to them.

B(1) said “I told you mommy hits me”. • JB reports the children are sacred to say anything to anyone when they are with their mother. • JB reported that he has a variety of social supports. He continues to enjoy the support of his mother and aunts. He also has friends with children, with whom he enjoys spending time. • JB reported that he had no involvement with mental health and no counselling. JB stated he feels caught in the current predicaments stating “this can’t stay the way it is “. • JB stated it has been “long hard road”. He attributed this to the abuse being perpetrated by NS and her partner. [ 20 ] Dr.

Landry noted JB evidenced no obvious cognitive difficulties and manifested no specifically unusual ideation. He was generally articulate and able to explain himself effectively. Dr Landry noted that: There were some themes in his narrative that may be important. First , JB expressed specific attitudes towards NS and the intentionality of her behaviour, specifically that NS has especially acted in ways to obstruct their relationship. He noted “she makes everything difficult”. Conversely, JB tended to see the weight of responsibility on NS.

He noted “this can’t stay the way it is, she is doing more, saying more and more to the kids”. In addition, JB reported that the children, particularly, B(1) have disclosed abusive behaviour on the part of NS and her partner … JB reported that B(1) appears afraid of NS and her family. As noted above, JB attributed a great deal of the sources of conflict to NS. His self concept appears to revolve around the care he provides to the children, including providing specific support to B(2). [ 21 ] Dr.

Landry found that JB was relatively open during the assessment, however, his approach to testing indicated there was a significant tendency to engage in some positive test-taking biases. This suggests a tendency to evaluating oneself more favourably … This can adversely affect a person’s insight. This pattern of self-perception is indicative of what is described as self-deceptive enhancement. [ 22 ] Dr. Landry noted that JB presented as having generally well developed cognitive abilities and he was able to express himself effectively.

He was generally rational in discussions and there was no evidence of any odd or unusual ideas. Like his former partner, NS, JB reported that there was a high degree of conflict with NS and he attributed the blame to the conduct of NS. [ 23 ] Dr. Landry was of the opinion that JB has the psychological resources to be a psychological parent. DR. LANDRY -

SUMMARY / CONCLUSIONS [ 24 ] Dr. Landry noted that: • A previous assessment had been completed and that parenting and communication issues continue to arise between the parties despite the previous court orders. • As a result of court orders, a shared parenting arrangement was ordered with the children being a week about with each parent.

• JB reports that the children are doing well, however, NS reports she is concerned that the children, particularly B(1), are turning against her. • Both JB and NS reported concerns that the situation between them was extremely conflicted and both appeared to be feeling particularly hopeless. • It is most beneficial when both parents are able to play a responsible care taking role (Finley and Schwartz 2020). In the current .arrangement, both parents are playing equal roles in their parenting arrangement. • Despite the time that has elapsed, NS and JB continue to present with a high conflict relationship.

Emery (2012) argues that the most specific goal for parents in terms of communication, especially communication to support co-parenting relationships, is to develop a good businesslike relationship that would be characterized by feelings of “indifference” about the other. • In a small proportion of separation and divorces, these feelings do not resolve and instead, may grow into what is described as high conflict relationships … As the degree of conflict becomes more intense, so does the degree to which individuals are unable to remove themselves emotionally from the conflict and the conflict becomes more “personal” and more “ego-involved”.

Conflicts that are high conflicts are chronic, highly intense and have a very negative effect on people around them such as children. High conflict separations are characterized by a great deal of emotional reactivity as well as blaming, vilifying the other and participants have difficulty accepting responsibility for their role in the conflict. Instead, they tend to put the focus on the other. As the intensity of the conflict increases, so does the intensity of people’s feelings of anger and this can result in feelings of rage and feelings of revenge.

In the higher levels of conflict, individuals will tend to try and bring others into the conflict which is sometimes described as “triangulation”. • Both JB and NS have very intense and entrenched beliefs that the other parent is mistreating the children. The children are obviously aware of these concerns. • The children were obviously very attached to each parent, evidencing a great deal of positive affect with that parent. Both children sought out close proximity to the parent and both children engaged in what appeared to be routine loving interactions with their parents.

Each parent was very attentive to the children and very warm, while interacting with the children. • Children have their own feelings regarding separation and their own feelings of grief and they are left to try and negotiate a very adult conflict. They are often trying to make sense of a very complex situation that is difficult for children to comprehend … Conflict can play a uniquely aversive role in child development and Lamb (2010) describes the effects of pre-divorced post-divorce marital conflict as “cancerous”.

In the face of their high conflict, children’s emotional security can be compromised … over time, these response processes and internalized representations of parental relations that develop can have implications for children’s long term adjustment. • The children both disclosed inappropriate behaviour while in the care of NS, however, it was clear they had discussed these issues with JB before the visit.

B(1), in particular, made very negative statements about her mother, and maternal grandmother, with whom she had a very close relationship … • The triangulation takes place when a person can’t cope with the feelings associated with the conflict and they involve others. JB reports that he has spoken with B(1)’s teacher to make her aware of the allegations against NS. More importantly, JB has involved the children by seemingly reinforcing their belief, and setting the foundation for negative appraisals (ie – attitudes and beliefs) and negative feelings.

This could set the foundation for potential access refusal and parental alienation. • In

summary , both parties have the psychological resources to parent the children and to develop their attachments with the children, particularly, if the former couple’s animosity diminishes and they work towards a more “businesslike” relationship. The ongoing conflict will also have negative impact on their own psychological well-being and both have been experiencing high levels of anxiety and stress.

While B(1) and B(2) would benefit from shared parenting relationship, the continued conflict will have a corrosive impact on their development. • A working mechanism could be put in place to function to reduce the tension and conflict. NS and JB would benefit from participating in counselling to help them work through their feelings regarding the conflict .. Using cognitive-behavioural techniques, the therapist could help each other “rewrite” the conflict narrative and help them gain some insight about the feelings of the other and the benefits to the children of having a relationship with the other parent.

In addition, they could also work with a goal of “forgiveness” of the other, rather than trying to “right the wrong”. • The parties would also benefit from the services of a professional to build a bridge between the two families … The neutral party could help to ensure expectations and rules at the home of both parents are relatively similar.

This would be like the role of a parenting coordinator who could undertake specific interactivities to assist in improving communication between the two parties. • Second, this individual could mediate any disagreement that may develop between the parties and disagreements are very likely to happen given the recent history of the parties. • In addition, this individual could help develop some more effective communication strategies between the two … this would include dealing with some of the issues relating to different values and to identifying some of the obstacles to effective communication and avoid putting the children in the middle. • Finally, Emery (2012) argues that there are several goals for developing appropriate and new boundaries between the old “martial” relationship and the new “parental” relationship. • B(1) may also benefit from an opportunity to discuss these issues with a therapist. • Both parents would benefit from participating in the therapeutic services to help B(1).

• NS and JB would continue to benefit from psycho-therapy to address the variety of psychological issues that they are dealing with in the context of high conflict relationships. • A long-term goal would be a shared parenting arrangement of care as it would be beneficial to ensure that the children should have more equitable time with each parent and that each parent plays a responsible role in their lives. • Individual counselling may be useful to work through painful feelings and improve communication. • This couple may benefit from the service of a “mediator” who can assess when there is a breakdown in communication.

MB (EXHIBIT #4) [ 25 ] MB has already relocated to Fredericton. He and NS maintain a long distance relationship. He states he has been a part of the children’s lives since 2013, and that they have a close, loving relationship. [ 26 ] MB is supportive of NS and her plan to relocate to Fredericton where MB lives and works. MB understands that JB is the father of the children and he acts as a supportive parent only. MB has no relationship with JB. MICHELLE LEFORTE – ACTING PRINCIPAL DONKIN ELEMENTARY [ 27 ] Ms.

Leforte testified that: • She is acting principal at Donkin Elementary School. • Assumed acting role in September 2020. • Familiar with the children B(1) and B(2). • The school has 96 students … Grade Primary to Grade 8. • The school has 14 teachers with good educational standards. • Grade Primary to Grade 6 are located on the main floor of the school. • The school is a close knit community and very welcoming. • B(1) is a Grade 3 student. She is quiet/shy and opens up after talking to her. She is happy at school. • B(2) is a Grade 2 student. He is happy and outgoing. He has Cerebral Palsy.

He is provided support by the school, which is handicap accessible. There is an elevator in the school which is handicap accessible. B(2) uses a walker and has braces on his legs. • Occupational therapy is provided to ensure the school is accommodating him. • Neither B(1) or B(2).have been referred to the office for behavioural issues. • Both children socialize well with friends. • B(1) is provided resource support for reading.

B(2).also is provided reading support. • Brief contact with both parents has bene positive, cordial, and professional. • Children are meeting educational outcomes “to my knowledge”. • The occupational therapist has an open referral at the school, and has seen B(2) once in September 2020, and will follow up 2-3 times each year. • The occupational therapist is available to the school on a stand-by basis and will attend if requested by the school.

JASMINE COLLINS – TEACHER AT DONKIN ELEMENTARY [ 28 ] Jasmine Collins testified that: • She is a teacher at Donkin Elementary. • She has been teaching for 13 years in Grade Primary and Grade 1. • Knows B(1) who is in Grade 3. • Knows B(2) who is in Grade 2. • Taught B(1) in Grade Primary in 2017-2018. • Described B(1) as a sweet girl, happy go lucky, quiet and loves to draw. • B(1) has no behavioural issues.

• Knows NS and JB through report cards and parent/teacher meetings. • B(1) did fine in Grade Primary and no attendance issues. • Also taught B(2) in Grade 1. • Described B(2) as coming out of his shell, no hygiene concerns, no clothing concerns, and no concerns about diet.

He met the Grade 1 outcomes and graded to Grade 2. • Some concerns with reading and writing. • Also taught B(2) in Grade Primary. • B(1) and B(2) get along great. • B(2) has Cerebral Palsy and uses a walker. • The school accommodates B(2)’s needs and provided access to an occupational therapist. • Has no concerns about B(2)’s behaviour. • B(2) has a great sense of humor and is a “sweet little boy”. • Performed leaps and bounds in Grade Primary. • Also taught B(2) in Grade 1. • Found him to be a little immature with his peers. • Nonetheless, gets along well with his peers. • Therapist works with his muscles and hands. • B(2) met Grade 1 outcomes. • B(1) and B(2) socialized well with friends. • Does not teach either child this year. • Does interact with them in the hallways. • Has had interactions with both parents in both Grade Primary and Grade 1 with no issues. • No behavioural concerns for either children in Grades Primary and 1. • B(1) had 23 reported absents between September 2017 and June 201, and it most often occurred while in JB’s care. • Acknowledged that JB has come into the classroom … which is not recommended by the school. • Requested that JB bring B(2) in earlier, however, not really an issue in Grade 1. • School has “Independence Plan” where a class aide will meet child at school doors ..

This assists the child in becoming more independent. ASHLEY BURKE – TEACHER AT DONKIN ELEMENTARY [ 29 ] Ms. Burke testified that: • She is a teacher at Donkin Elementary. • Teaches B(1) in Grade 3. • Teaches B(2) in Grade 2. • B(1) is quiet, has friends. • B(2) is social, funny and “is a good kid”. • No behavioural issues to report. • Both children interact well. • No concerns about social skills. • Accommodations made for B(2).

• Both children are doing well … No issues. • Both do work in class. • B(1) is independent. • B(2) requires some help from the teacher and TA. • No behavioural concerns. • No hygiene concerns. There was an odor issue, but of no concerns (JB week). • B(2) works hard and required reading support. • B(2) did not meet outcomes. He will receive resource support in reading and writing. • B(1) met outcomes for first term of Grade 3. • B(1) is doing great. • Will continue support for B(2). • Children consistently late with JB.

DAWN MANLEY – SOCIAL WORKER FOR DCS [ 30 ] Dawn Manley’s case notes were tendered as Exhibit # 6(A), (B), and (C). Ms. Manley notes that: • Child welfare has been involved back to 2013. • Since June 2015, allegations made by NS that JB abused B(1) were not substantiated. • Allegations made by NS on August 2, 2015, were not substantiated. • Allegations were made by NS that JB sexually assaulted B(1).

Had concerns about the reliability and deemed the complain questionable. • Allegations made by NS on August 13, 2015, were not accepted for investigation. • Allegation made by NS on August 14, 2015, alleging children molested by JB, was not accepted for investigation. • Deemed the reliability of the complaint to be questionable. • NS was upset by the agency’s decision. • NS contacted the Ombudsman Office on August 17, 2015. • October 5, 2015, NS attended hospital with complaint of alleged sexual assault on children. • Complaint was accepted for investigation. • JB’s access was put on hold pending investigation. • Complaint not substantiated.

Child welfare had no concerns. • November 23, 2015, NS sent pictures to police for investigation. • Not accepted for investigation. • January 13, 2016, NS’s mother made complaints of sexual assault. • Referral not accepted nor substantiated. • January 18, 2016, referral for sexual abuse not substantiated. • Dawn Manley expressed concern about emotional harm for B(1) being caught up in the custody battle between NS and JB. • August 28, 2018, Dawn Manley visited with the children. Child reported that “MB hits me”.

NS denied MB hit B(1). • September 18, 2018, NS complained of physical abuse which was not substantiated. • Agency confirmed there were concerns of emotional harm to the children caused by both NS and JB. • March 13, 2019, agency prepared a case plan for NS and JB. NS upset with agency and complained that case not handled well. • April 2, 2019, allegations made by NS against JB.

• June 3, 2019, NS reported to child welfare that the children do not want to go with JB.

Agency had no concerns with JB … Referral not substantiated. • Dawn Manley took the file over in June 2019. • Received allegations from NS and NS’s mother regarding her “historical frustrations”. • Agency never found any concerns regarding JB. • August 1, 2019, complaint by NS. • Agency found children to be engaging on their day with JB. • No fear of JB and no anxiety. • August 2, 2019, NS not satisfied with agency response and insulted the agency (“you guys are no help”). • May 25, 2020, agency received notice of NS’s mobility application.

NS accused JB of saying inappropriate things in front of the children. • Allegation was investigated and not substantiated. • May 27, 2020, NS complained about rash on B(2)’s groin. • Matter investigated and agency determined there were no concerns; JB was taking proper precautions.

There were no concerns about personal care provided by JB. • June 3, 2020 to June 5, 2020, agency investigated allegations of safety regarding the children with JB. • Determined children to be safe and no concerns noted by agency (“The kids are definitely comfortable and at ease with JB”). • June 24, 2020, rash issued again by NS. • NS accused JB of poor parenting. • Agency stipulates that it has addressed all issues (“the agency is not turning a blind eye”). • The agency has no information of concern regarding JB. • August 17, 2020, NS continues to complain generally about JB. • August 28, 2020, B(1), reported she wished to stay at JB’s as opposed to going to New Brunswick. • B(2) reported he was happy at JB’s and there was nothing to do at NS’s. • B(2) reports “mom does hit us”. • Agency of the opinion the children are very happy and content at JB’s house. • Agency has no concerns. • JB”s residence is appropriate for the children. • Despite having Cerebral Palsy, B(2) was fitting in with other kids. • September 10, 2020, NS complained about JB’s neighbor babysitting the children.

Also expressed concern about dirty underwear. • Concern not substantiated that children are neglected by JB. • Dawn Manley does not believe JB is trying to destroy NS. • Both parents are frustrated. • JB”s focus is on the children. • Dawn Manley believes that “the kids are safe with JB”, and “the kids are free from abuse and neglect with JB”. • September 10, 2020, NS sent email to agency about the children crying. • NS accused agency of pretending not to see the conduct of JB> • Dawn Manley replied “she would address all issues brought to her attention”. • NS expressed concern with agency’s practice. • Alleges JB has coached the children.

• Dawn Manley replied “I don’t think so”. • Agency spoke to the school principal and no concerns were noted and on JB’s week B(1) was outgoing, and on NS week B(1) was more shy. • NS stated to agency that “I can’t process how you guys can say there is no risk”. • January 25, 2021, NS complained B(1) afraid to go with JB. • Agency worker spoke to B(1) and found no concerns and agency confirmed B(1) was safe with JB. • B(1) has one wish … wants to live with both mom and dad week on and week off. • Agency has had 8 years of involvement. • Current involvement is voluntary. • Agency would like parents to reduce conflict. • Agency wants co-parenting course completed. • Agency would like both parents to continue with services for counselling. • Agency cannot stay involved forever. • Agency believes both NS and JB can parent. • Parents must find a way to effectively deal with conflict. • The children are not too fond of moving to New Brunswick. [ 31 ] During cross examination Dawn Manley testified to the following: • The role of the agency is not to take sides. • There have been a lot of accusations by both parents. • ‘In August 2015, JB alleged physical abuse by NS and MB. • This referral was not accepted and not substantiated. • The agency received several allegations that JB was coaching the children. • It has been an ongoing back and forth between both parents. • Since Dawn Manley’s involvement, the last referral was July 2019.

She has also received reported concerns from NS, but no formal referral. • Dawn Manley has never witnessed NS being negative about JB. • NS has been negative towards the agency. • July 29, 2019, Dawn Manley confirmed that JB was saying negative things about NS. • This is inappropriate. JB reminded not to make such comments. • January 27, 2021, JB talking about custody matters in front of the children. • JB has told repeatedly by agency not to speak negatively in front of the children. • Dr.

Landry expressed concern that the children were being coached by JB; agency had no concerns in that regard. • July 22, 2019, B(1) upset about comments JB made … B(1) crying. • July 29, 2019, NS attended counselling. • July 30, 2020, a polite and friendly email from NS to agency. • JB has not followed through with co-parenting program. • Agency spoke to JB about not alienating the children. • May 26, 2020, NS demonstrated right approach with agency. • JB tries to ignore agency and does not answer door for unannounced visits.

• Acknowledges NS showing growth and maturity. • When asked “Can you understand NS’s frustration?”, Ms. Manley answered “I can understand all parent’s frustration”. MATERIAL CHANGE IN CIRCUMSTANCE [32] In Head v. Brown 2019 NSSC 213, Justice Jesudason stated at page 3 that: Ms. Head’s variation application is brought under s. 37 of the Parenting and Support Act, R.S.N.S. 1989, c. 160 (“PSA”). To vary theexisting order, she bears the burden of establishing that there has been a material change of circumstances since the order was made: s.37(1) of the PSA.

The leading mobility case is the Supreme Court of Canada decision of Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27. Inparagraph 49 of that decision, the Supreme Court of Canada outlined a two-stage test for determining whether a parent should be allowedto relocate with a child. The first stage is a threshold issue which requires that the moving parent establish that there has been a material change of circumstancesaffecting the child which was either not foreseen or could not have reasonably been contemplated at the time the original parenting orderwas made.

If that threshold is met, the second stage requires “embarking on a fresh inquiry into what is in the best interests of the child”which involves considering and balancing all the relevant factors. A “full and sensitive inquiry” into the best interests of the child isrequired. [33] At the time of the 2015 order, while NS was in a relationship with her now husband, it was only a one year relationship.

It wasnot foreseeable, nor reasonably contemplated in 2015, that she and her husband would have the opportunities that currently presentthemselves in Fredericton, New Brunswick, and she would have the potential of moving away to that community. [34] NS and MB are now married. MB inherited a house and property in Fredericton. MB has already relocated to Fredericton andworks with Rogers in that city.

The parties now maintain a long distance relationship awaiting the result of this mobility application. [35] The court finds the applicant has discharged the burden of establishing that there has been a material change or circumstancessince the order was made in 2015. [36] Having satisfied the first stage of the test, the second stage requires the court to embark upon a fresh inquiry into what is in thebest interests of the children, which involves considering and balancing all the relevant factors.

A “full and sensitive” inquiry into thebest interest of the children is required. [37] As the children are in an undisputed shared parenting arrangement, the burden is on the mother to show, on a balance ofprobabilities,, that a move is in the children’s best interest, in accordance with s. 18H(1)(

b) of the Parenting and Support Act. [38] The Honorable Justice LouAnn Chiasson reviewed the issue of mobility in A.C. v. G.B. 2019 NSSC 133, referencing the NSCourt of Appeal’s direction to take a “balanced approach”: [48] The issue of relocation was recently dealt with in our Court of Appeal in D.A.M. v C.J.B., 2017 NSCA 91. The courtreferenced the balanced approach that must be taken by a trial judge in deciding cases of mobility.

In assessing whether a move with achild should be allowed, the court must examine the disruption of the proposed move balanced as against the benefits if the move wereallowed. [49] The Court of Appeal in D.A.M., supra, held at paragraph 34: [34] The approach in the case before us was not balanced. It focused on C.J.B.’s circumstances to the detriment of C.’srelationships in Nova Scotia. As the British Columbia Court of Appeal observed in Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230: [46] . . .

While this is a different case, this case required at least consideration of the potential effect of refusing the move upon therelationship between the child and the moving parent, assuming the move will occur. In other words, it is consideration of thepossibilities in the round, and not from one perspective only, that is required. The subtle, and troublesome, consequence of approachingthe question with preference for the status quo is that the fully rounded analysis does not occur. In my respectful view, this is whathappened here.

The narrow ambit of the factors considered by the judge in assessing the alternative, in my view, reflects a material errorin principle. STAGE 2 [39] Relevant legislation is found at s. 18 E, G and H of the Parenting and Support Act: Relocation 18E

(1) In this

Section and Sections 18F to 18H, (a) “person planning to relocate” means (

i) a person who is planning a change of that person’s place of residence and is a parent or guardian or a person who has an order forcontact time with the child, (ii) a parent or guardian who is planning a change of both that person’s and the child’s place of residence, and

(iii) a parent or guardian who is planning a change of the child’s place of residence; (b) “relocation” means a change to the place of residence of (

i) a parent or guardian, (ii) a person who has an order for contact time with the child, or (iii) a child, that can reasonably be expected to significantly impact the child’s relationship with a parent, a guardian or a person who has an order for contact time with the child.

(2) A person planning to relocate shall notify the parents and guardians of the child and any person who has an order for contact time with the child of the planned relocation.

(3) The notification under subsection (2) must be in writing and must include (

a) the date of the planned relocation; (

b) the location of the new place of residence and, if known, the address; (

c) all available contact information for the person giving the notification; and (

d) the proposed changes to custody, parenting arrangements, parenting time, contact time and interaction resulting from the relocation.

(4) The written notification under subsection (2) must be delivered with as much notice as possible in advance of the date of the planned relocation. Authorization or prohibition of relocation 18G

(1) Subject to a court order authorizing or prohibiting the relocation of a child or an order changing or waiving the notification requirements, when the notification requirements under

Section 18E have been complied with, the relocation of the child may occur on or after the date of the planned relocation, unless an application is made to the court to prohibit the relocation within thirty days of receiving the notification.

(2) On application by (

a) a parent or guardian of the child; (

b) a person with an order for contact time with the child; or (

c) any person that has been granted leave of the court to make the application, the court may make an order authorizing or prohibiting the relocation of a child and may impose terms, conditions or restrictions in connection with the order as the court thinks fit and just.

(3) An application for an order authorizing or prohibiting the relocation of a child may be filed at any time prior to or after the relocation occurs. 2015, c. 44, s.20 . Relocation considerations 18H

(1) When a proposed relocation of a child is before the court, the court shall be guided by the following in making an order: (

a) that the relocation of the child is in the best interests of the child if the primary caregiver requests the order and any person opposing the relocation is not substantially involved in the care of the child, unless the person opposing the relocation can show that the relocation would not be in the best interests of the child; (

b) that the relocation of the child is not in the best interests of the child if the person requesting the order and any person opposing the relocation have a substantially shared parenting arrangement, unless the person seeking to relocate can show that the relocation would be in the best interests of the child; (

c) for situations other than those set out in clauses (

a) and (b), all parties to the application have the burden of showing what is in the best interests of the child.

(2) Unless the court otherwise orders, only a person entitled to receive notification under

Section 18E may oppose a relocation.

(3) In applying this Section, the court shall determine the parenting arrangements in place at the time the application is heard by examining (

a) the actual time the parent or guardian spends with the child; (

b) the day-to-day care-giving responsibilities for the child; and (

c) the ordinary decision-making responsibilities for the child.

(4) In determining the best interests of the child under this Section, the court shall consider all relevant circumstances, including (

a) the circumstances listed in subsection 18(6); (

b) the reasons for the relocation; (

c) the effect on the child of changed parenting time and contact time due to the relocation; (

d) the effect on the child of the child’s removal from family, school and community due to the relocation; (

e) the appropriateness of changing the parenting arrangements; (

f) compliance with previous court orders and agreements by the parties to the application; (

g) any restrictions placed on relocation in previous court orders and agreements; (

h) any additional expenses that may be incurred by the parties due to the relocation; (

i) the transportation options available to reach the new location; and (

j) whether the person planning to relocate has given notice as required under this Act and has proposed new parenting time and contact time schedules, as applicable, for the child following relocation.

(5) Upon being satisfied that the child’s needs or circumstances have been changed because of the order granted under subsection 18G(2), the court may vary a previous order granted under

Section 18 or 37 . 2015, c. 44, s.20 .

(6) In determining the best interests of the child, the court shall consider all relevant circumstances, including (

a) the child’s physical, emotional, social and educational needs, including the child’s need for stability and safety, taking into account the child’s age and stage of development; (

b) each parent’s or guardian’s willingness to support the development and maintenance of the child’s relationship with the other parent or guardian; (

c) the history of care for the child, having regard to the child’s physical, emotional, social and educational needs; (

d) the plans proposed for the child’s care and upbringing, having regard to the child’s physical, emotional, social and educational needs; (

e) the child’s cultural, linguistic, religious and spiritual upbringing and heritage; (

f) the child’s views and preferences, if the court considers it necessary and appropriate to ascertain them given the child’s age and stage of development and if the views and preferences can reasonably be ascertained; (

g) the nature, strength and stability of the relationship between the child and each parent or guardian; (

h) the nature, strength and stability of the relationship between the child and each sibling, grandparent and other significant person in the child’s life; (

i) the ability of each parent, guardian or other person in respect of whom the order would apply to communicate and cooperate on issues affecting the child; and (

j) the impact of any family violence, abuse or intimidation, regardless of whether the child has been directly exposed, including any impact on (

i) the ability of the person causing the family violence, abuse or intimidation to care for and meet the needs of the child, and (ii) the appropriateness of an arrangement that would require co-operation on issues affecting the child, including whether requiring such co-operation would threaten the safety or security of the child or of any other person. [ 40 ]

Section 18H(4) of the Parenting Support Act outlines the relevant circumstances which a court must consider when determining B(1) and B(2)’s best interest in relation to the applicant’s proposed relocation. SUBMISSIONS [ 41 ] The applicant submits NS has provided a fulsome parenting plan that outlines numerous advantages to the children if they are permitted to relocate with her.

It is submitted if the court applies a “fully rounded analysis” and considers the benefits of the move against the disruption that will occur, rather than taking the “subtle and troublesome consequence of approaching the question with preference for the status quo”, it is clear in this case that the children’s best interests are met by permitting the relocation of the children to Fredericton with their mother. [ 42 ] The applicant submits the children’s physical, emotional, social and educational needs, including the children’s need for stability and safety, taking into account the children’s ages and stage of development, are supported by the move: • B(2) has access to better medical care

• There are more assessable programs for B(2) • B(1) has better access to the recommended counselling • The mother’s plan for the children’s education is superior as it does not involve the children being in a split class and offers them an educational after school program • The “high conflict” parenting will be better controlled [ 43 ] The applicant submits there is much greater risk that the father will alienate the mother if given primary care that exists if the mother is primarily responsible for the children … As Dr.

Landry noted JB is “more actively moving the agenda of high intensity conflict” along. [ 44 ] The applicant submits her reasons for relocating are thoughtful and well intentioned. She is seeking to relocate to upgrade her education, to provide her children with opportunities that she currently cannot offer them. She will be moving from rented space to a beautiful and stable home that is her own.

She has better employment opportunities, the children’s grandmother will be there, she and her husband have the support of extended family and friends, her husband has more stable employment, the children have better access to facilities that meet their needs, medical facilities, and educational opportunities. [ 45 ] The applicant submits there will be a minimal effect on the children due to changed parenting time and contact due to the proposed relocation. [ 46 ] The applicant submits the proposed relocation is driving distance away, and NS had offered to lessen the burden by meeting JB halfway.

She has offered a generous Summer, March Break, and Christmas schedule. The proximity is close enough that the children can easily visit on long weekends and both children are of an age where they can effectively communicate via Skype or Facetime on a daily basis. [ 47 ] The applicant submits that the children are familiar with Fredericton having spent substantial time there.

They have family and friends in Fredericton. [ 48 ] The applicant submits the relocation will allow her to provide the children with a better lifestyle than the father. [ 49 ] The applicant submits that she took the direction from the court in following court orders seriously, she engaged in counselling, and obtained skills in co-parenting. She respected her obligations to keep the father informed and involved.

JB has not shown the same respect for his obligations under the court order’s or NS’s role as a co-parent. [ 50 ] The applicant submits she is prepared to factor in any increased access costs to JB due to travel when determining the appropriate child support award. [ 51 ] The applicant submits that Fredericton is accessible by bus or car (and perhaps plane).

It is only a 6 hour drive away and NS is prepared to share in the access exchanges. [ 52 ] The applicant submits in the event of relocation, she should be given final decision making authority over the children due to the convenience of signing forms at school, sport, etc. [ 53 ] The applicant submits that JB can continue to have joint custody and have input in all decisions affecting the children, and final decisions shall only be made after thoughtful consideration of the father’s input and opinion.

JB should continue to have the ability to obtain information directly from any third party involved with the children. [ 54 ] The applicant submits while JB’s overall time with the children would be reduced, his relationship with the children is minimally impacted and he continues to hold a meaningful role as a co-parent. [ 55 ] The applicant submits the parties engage in “Our Family Wizard” to ensure that the father is appraised of the children’s schedules, appointments, etc.

As well to provide a respectful communication tool for them on a go-forward basis. [ 56 ] The applicant submits that she has the requisite skills to ensure that JB remains an important part of the children’s lies, should the relocation plan be approved by the court. [ 57 ] The applicant submits that on a balance of probabilities, considering all of the legislation and common law directions, the children’s relocation is in their best interest. [ 58 ] In

summary, the applicant submits that : • NS is more likely to put the children’s needs and desires ahead of her own. • NS is more than likely to be flexible with respect to ensuring joint parenting. • NS is more likely to respect the father’s important role in the children’s lives. • NS has shown she can and has applied the tools and supports that were offered to her. She is more likely to continue self- improvement in the children’s best interest. • NS parenting plan is better suited to meet the children’s best interest. [ 59 ] The respondent submits re: s. 18(6)(a), that both parties have been meeting the physical, emotional, social and educational

needs of B(1) and B(2), and that both parties are providing stable, safe homes for the children. [ 60 ] The respondent submits re: s. 18(6)(

b) that he has been supportive of the children’s relationship with the applicant. [ 61 ] The respondent submits that if the children are placed in his primary care, he will support liberal and generous block parenting for the applicant with the children. [ 62 ] The respondent submits that the applicant’s repeated and unsubstantiated allegations about the respondent to the Department of Community Services demonstrated an unwillingness to support the children’s relationship with the respondent. [ 63 ] The respondent submits the above referenced conduct of the applicant in this regard constitutes parental alienation. [ 64 ] The respondent submits that it is particularly concerning that the applicant refuses to accept the Minister’s assessment when it deems her allegations/concerns to be unsubstantiated. [ 65 ] The respondent submits that the applicant’s unsubstantiated allegations/concerns have had a negative impact on the children. [ 66 ] The respondent submits that given the applicant’s history of making unsubstantiated allegations to child welfare, she would restrict or deny the respondent’s parenting time if permitted to move to New Brunswick. [ 67 ] The respondent submits that if the applicant is permitted to move to New Brunswick, the respondent’s relationship with his children would be unilaterally diminished and destroyed. [ 68 ] The respondent submits re s. 18(6)(

c) that both parties have been equally involved in the care of the children since the making of the 2015 order. [ 69 ] The respondent submits re s. 18(6)(

d) that the plan of the respondent for the care of the children is the maintenance and continuation of the plan of care he has implemented and followed since the 2015 order. [ 70 ] The respondent submits the children would reside with the respondent at his current residence in Donkin, NS. The children would continue to attend Donkin Elementary School. The children would continue to see the same health care professionals, B(2) would continue to attend appointments at the IWK in Halifax. [ 71 ] The respondent submits re s. 18(6)(

g) that the children have a close, loving relationship with both parties. [ 72 ] The respondent submits re s. 18(6)(

h) that the children have a close and loving relationship with extended family of both parents. [ 73 ] The respondent submits re s. 18(6)(

i) that the respondent is prepared to communicate and cooperate with the applicant on issues affecting the children. [ 74 ] The respondent submits re s. 18(H)(4)(

b) that the applicant wishes to relocate to Fredericton, NB and be with her husband. The respondent submits that while a move may be in the applicant’s best interest, it is not in the best interest of the children. The move would take the children away from the only life they have ever known. [ 75 ] The respondent submits re s. 18(H)(4)(

c) that the respondent would have less parenting time with the children should they move to Fredericton, NB. This change would have a negative effect on the children because they have thrived under a parenting arrangement that provides equal time with each parent; an arrangement that has been in place for 6 years. [ 76 ] The respondent submits re s. 18(H)(4)(

d) that the children are integrated within their community, with their school, and family and friends. Glace Bay and Donkin are the children’s home. [ 77 ] The respondent submits that the removal of the children from their family, school and community would have a negative impact upon them. It would result in significant disruption in the children’s lives. [ 78 ] The respondent submits re s. 18(H)(4)(

e) that the existing parenting arrangement has been in place since June 2015. It is submitted that the existing parenting arrangement has worked for the children. The children are doing extremely well under the existing orders. [ 79 ] The respondent submits there are no better parenting supports in Fredericton than in Donkin/Glace Bay. Educational, medical and child care support are equally available here as in Fredericton. [ 80 ] The respondent submits that it would not be appropriate to change the parenting arrangement. [ 81 ] The respondent submits re s. 18(H)(4)(

f) and (

g) that there is no evidence that the parties are not following the 2015 order, particularly as it relates to the adherence to the one week on / one week off

schedule on a rotating basis. [ 82 ] The respondent submits re s. 18(H)(4)(

h) and (

i) that the respondent would incur expenses to exercise parenting time with the children. These costs would negatively impact upon his ability to exercise parenting time. [ 83 ] In

summary the respondent submits that: • It is in the best interests of the children to remain in Glace Bay/Donkin and not in their best interest to relocate to Fredericton, NB. DECISION

[ 84 ] This court is in the unenviable position of determining a mobility application, which could result in a reduction of time the children spend with either their mother or their father., given that the current parenting arrangement is one of shared custody. [ 85 ] The parties NS and JB are the parents of two children, B(1), age 9, and B(2), age 7. B(2) has Cerebral Palsy, which creates some special challenges for him. Both children, despite the ongoing custody issues, are described as bright and well adjusted.

This is a testament to the resilience of these children, given that their family situation has been conflictual and difficult throughout their respective lives. [ 86 ] Both parents have historically disrespected the role of the other parent in the children’s lives. Both parents made allegations against the other, mistreated the other, and both parents have showed immaturity in parenting. Both parents have demonstrated alienating conduct and believe each one is the better parent. [ 87 ] Child Welfare Services have been involved in the family’s lives since 2013, almost as long as both children entered this world.

To say the parents are “highly conflicted’ is a understatement in the court’s view. [ 88 ] Justice Clare MacLellan wrestled with this family’s issues during a lengthy and contested hearing in 2015, followed by a review hearing in 2016. Both of these decisions are unreported. The applicant, NS, at that time was seeking permission of the court to relocate the children to London, Ontario, with her then fiancé, MB.

The application was denied. [ 89 ] It was agreed by the parties that the evidence to be heard by this Court regarding NS’s “new” mobility application would commence as of the date of Justice MacLellan’s decision of June 2015 and forward. It was of no benefit or value, evidentiary wise, to revisit the evidence before Justice MacLellan. That said, the relationship between the parties in their earlier years was clearly “conflictual”. Nothing has appeared to change in this regard. [ 90 ] In denying NS’s mobility application, Justice MacLellan provided some instructional commentary.

In the decision transcript Justice MacLellan notes that: • Page 71 – to NS it’s unfortunate that (it) appears that a poorly thought out exit plan is less painful to her than learning to co-parent.

I found that NS … to be evasive and cunning … • Page 84 – So it’s sufficient to say that the mobility decision was not hard, there was no basis. • Page 85 – Quite simply put NS is not willing , has thrown every road block she can for the past 18 months to make sure that JB does not have a relationship … She has exhibited a very strong tendency under any circumstance not to co-parent. • Page 86 – I also find that JB has been very appropriate and mature when he faced repeated institutional suspensions by CAS. • Page 88 – I have maintained that NS needs professional help.

She needs help to look at what she’s doing through her great anger to JB and her view that she owns the children. • Page 89 – She (NS) has no respect for him (JB) and she had little appreciation of the law that entitles the children maximum contact with both parents. • Page 91 – So I am going to structure a shared custodial arrangement. I am not calling it joint. Both parents will have custody on the basis of a shared regime. To a degree the regime will be parallel.

They will have limited contact with each other … I’m directing that NS attend therapy to address her impulsive, anger, and alienating conduct. … I am putting this in effect until November to see if it can work. If it can’t work, I’m going to revisit custody and if I am hearing the same thing that I do now then I may have to look at a sole custody arrangement that would exclude NS.

So this is a real shock to her … she’s quite convinced that she’s never done anything wrong and that he’s (JB) the bad guy. • Page 93 - … NS, you are running the risk of potentially losing custody in total and I’m doing this with some trepidation .. but … you’ve taken care of the children’s physical needs; you’ve taken care of B(2)’s medical needs. I believe you love the children, you just have to get over your great dislike for JB and you have not recognize him as the father. You said you would but you haven’t so far … The therapy will help you look at it.

You have to talk about why you are so angry. • Page 94 – Anyway … JB will be responsible for school and extra-curricular activities. NS will be responsible for medical care and responsibilities. Both of you will be responsible for the physical care of the children while in your care. [ 91 ] During the review hearing of June 24, 2016, Justice MacLellan did acknowledge NS has made some progress and that JB remained a good and capable parent, however, he was quite negative on the issues of co-parenting.

Justice MacLellan expressed concern that if JB was granted sole custody of the children, that he would block NS’s access. But further stated as noted in the transcript of her decision that: • Page 133 – So essentially, both parents would most likely restrict the other from having a meaningful relationship with the children, if one or the other has sole custody or final decision making authority on all matters.

I find overall of course, that NS is less credible than JB. • Page 136 – The record will indicate that this decision I am making today that NS has consistently made untrue statements in relation to JB … • Page 137 – So, I’m ruling that subsequent referrals of this nature, must be examined with great scrutiny as to the foundation and credibility of the referral. [ 92 ] I find Justice MacLellan’s comments are relevant to the case at bar in terms of providing some context to the circumstances

surrounding this current mobility application. [ 93 ] It appears not much has changed in terms of the conflictual relationship between the parents. It may have worsened. [ 94 ] As discussed in Dr. Landry’s report, high conflict is conflict that has escalated beyond the issues to become personal and ego based. There is a high degree of emotional reactivity and blaming or demonizing the other parent who is often viewed as the agent of conflict. [ 95 ] As stated, Justice Marche in R.A. v. M.P.B. 2021, NSSC 102 , at paragraph 42 : High conflict is chronic, intense and has a negative impact on others.

Alliances or “tribal warfare” often develops such that third parties, often extended family members, become overly involved in the conflict. High conflict creates an unstable emotional environment that is hostile and insecure, particularly for children who often find themselves in a loyalty bind.

High conflict need not be overt; the lack of communication or “freezing out” of the other parent can be the most corrosive form of conflict. [ 96 ] The evidence painted a dismal picture of high conflict within this family which certainly has not toned down since the involvement of Justice MacLellan’s decision in 2015/2016. [ 97 ] The children have unfortunately been witnesses to much of the conflict between their parents. As described by Dr.

Landry, the children are left to navigate a very “adult conflict”. [ 98 ] Social workers expressed the concern that the children may be suffering emotional harm because of the level of conflict between the parents. The court shares the same concern. Emotional harm can negatively impact the mental health of children, emotional security can be compromised, albeit, the children appear to be holding it together at this time. This is no credit to the parents; it is more a measure of good luck than good management. [ 99 ] Typical of a high conflict dynamic, each parent would like to place blame on the other parent.

The reality is that both parents have contributed to the conflict and it is a conflict that has existed since 2013. The parties have not been able to, or simply refuse to, resolve this long lasting conflict., even with the strong guidance provided by Justice MacLellan in her decisions of 2015/2016. [ 100 ] I have scrutinized the evidence with care. I have relied upon only clear, convincing and cogent evidence to satisfy the balance of probabilities test ( F.H. v. McDougall 2008 SCC 58 ).

I have considered and reviewed all of the evidence, exhibits, briefs, respective plans, submissions, and applicable law in reaching this decision. [ 101 ] In particular, I have considered the relevant provisions of the Parenting Support Act . [ 102 ] I have applied a “fully rounded analysis “ and have considered the benefit of the proposed move against the disruption that may occur., rather than approaching the question strictly with reference to the “status quo”. [ 103 ] The evidence is clear, convincing and cogent, and in fact, conceded by the applicant that she and JB have a shared parenting arrangement for the children, B(1) and B(2). [ 104 ] As a result, the presumption in s. 18H(1) (

b) applies: 18H

(1) When a proposed relocation of a child is before the court, the court shall be guided by the following in making an order: (

b) that the relocation of the child is not in the best interests of the child if the person requesting the order and any person opposing the relocation have a substantially shared parenting arrangement, unless the person seeking to relocate can show that the relocation would be in the best interests of the child; [ 105 ] The burden is on NS to show on a balance of probabilities, that her plan is in the best interests of the children. I find NS has failed to discharge this burden and it is not in the best interest of the children to relocate with her to Fredericton, NB.

I find NS’s plan is uncertain and speculative in many aspects. [ 106 ] NS’s plan would result in a significant disruption to the children’s lives. It involves: • Taking the children from the community where they have lived all their lives. • Taking the children from Donkin Elementary School, which provides an excellent environment for the children’s educational and social needs and development.

Although the school is not on one level, it has an accessible elevator for B(2)’s use to access the second floor. • The court is satisfied that the educational environment in Fredericton is quite acceptable, but that being said, I reject the notion that Fredericton schools are superior facilities.

There is no clear, convincing and cogent evidence to support this contention. • Changing all the children’s third party professionals who are in Glace Bay/Donkin and Halifax in favour of unknown new professionals who have no history of care with the children is not in the children’s best interest. • The court does not doubt the professional standards provided by the Fredericton hospitals, etc, but I nonetheless reject the notion, on the evidence, that the facilities and services are superior to those presently offered to the children.

• NS is a licensed hairdresser, but has no confirmed employment in Fredericton, and although laudable … her education plans, are just that .. plans. • I decline to accept on the evidence that the children would have as much or more family and social support in Fredericton then the children are presenting exposed to in the current circumstances. The children have been exposed to family and friends all their lives in Glace Bay/Donkin.

It is in their best interests for this to continue. • It is certainly a benefit to NS to have inherited a home in Fredericton, but that in and of itself is insufficient to discharge the burden of proof upon her. • I do not accept that MB cannot obtain work in the Cape Breton area. He is a service technician. The court has no clear, cogent and convincing evidence that employment is not available to MB in the Cape Breton area. [ 107 ] The court is concerned about NS making repeated attempts to discredit JB with the Minister of Community Services.

It would appear NS has not changed her behaviour which was of great concern to Justice MacLellan in earlier hearings. The evidence is clear, convincing and cogent that NS’s plan is not a relocation plan, it is, with respect, an “escape or exit plan” so as to alienate and get away from JB. [ 108 ] The court takes no issue with NS wanting to move to Fredericton given the nature of the conflictual relationship. It is entirely understandable. It is not acceptable however, that to achieve this purpose, it would require JB being removed from the children’s lives.

I find this reflects negatively upon NS’s insight into the role JB plays in the children’s lives as their father. [ 109 ] I reject the notion that NS is more likely to put the children’s needs and desires ahead of her own. I find NS’s plan to relocate may be in her best interest, but not in the children’s best interest. I find NS’s plan has a self-serving motivation, which is contrary to the children’s best interests. [ 110 ] Given the evidence I reject the notion that NS is more likely to be flexible with respect to ensuring joint parenting.

I find that if NS were to permanently relocate to Fredericton with the children, it would likely increase, not reduce, the intense conflict and anger between the parties. This would diminish, if not eliminate, the goal of NS’s proposed cooperation in a joint parenting arrangement. [ 111 ] For the reasons above, I reject the notion that NS is more likely to respect the father’s important role in the children’s lives. Her repeated (unsubstantiated) referrals/complaints/concerns to the Minister are clear, cogent, and convincing evidence in support of this finding.

Her mandate is clear and unchanged … to diminish JB’s role as a parent. [ 112 ] I accept the evidence of Dawn Manley in relation to NS repeated efforts to place JB in a negative light. NS continues to make allegations and/or referrals even where the Minister consistently found no substance to her claims.

This resulted in NS calling into question the objectivity of the Minister in alleging bias, which the court finds has no basis. [ 113 ] I thus, reject the notion that NS has shown that she can and has, applied the tools and supports that were offered to her and that she is more likely to continue to self-improve in th

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