B.-J.G., Applicant, – v. –, 2023 NBKB 030

FDM-639-2015 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON Date: March 7, 2023 Neutral Citation: 2023 NBKB 030 BETWEEN: B.-J.G., Applicant, – and – B.D., Respondent. DECISION BEFORE: Madam Justice Marie-Claude Bélanger-Richard AT: Moncton, N.B. DATES OF HEARING: January 4, 5, 6, 9 and 10, 2023 and February 9, 2023 DATE OF DECISION: March 7, 2023 APPEARANCES: Alison J. Ménard, for the Applicant The Respondent B.D., for himself BÉLANGER-RICHARD, J.:

[ 1 ] In this proceeding, the parties had a relationship from 2011 to 2012 and again from 2013 to 2015, a period of approximately three years. They separated in May 2015. They are not married and consequently, this matter is governed by the Family Law Act , S.N.B. 2020, c. 23 (the “ Family Law Act ”) and the common law. [ 2 ] The parties are the parents of a child named G.D.-G. (G.). G. was born in October 2013, and she is currently 9 years old. [ 3 ] While the parties have financial claims in this proceeding, the primary issue is the parental arrangement that should govern the parties’ care of their child G.

Both parties agree that they should have joint decision-making responsibility, but each party wants to have the final say in case of disagreement. As to the parenting schedule, the father wishes to continue a shared parenting arrangement and the mother insists on having the majority of the time with the child. ISSUES [ 4 ] In this matter, I must make a determination on the following issues: 1. What parenting order is in the best interests of the child G.? 2. What prospective and retroactive child support should be paid for the benefit of G.? 3. What

section 7 expenses, if any, should be paid prospectively for the benefit of G.? 4. Is any of the parties entitled to some financial compensation on the basis of unjust enrichment and in the affirmative, what amount? 5. Should costs be awarded? I will now address each issue. 1 – FIRST ISSUE: PARENTING ORDER [ 5 ] Section 52(2) of the Family Law Act gives jurisdiction to this Court to make a parenting order and it reads as follows: 52(2) The Court may make a parenting order providing for the exercise of parenting time or decision-making responsibility in respect of any child on application by (

a) one or more parents, or (

b) a person, other than a parent, who stands in the place of a parent or intends to stand in the place of a parent. [ 6 ] Section 50(1) of the Family Law Act states that the only consideration in making a parenting order is the best interests of the child. Section 50(2) of the Family Law Act defines the concept of best interests and reads as follows: 50(2) In determining the best interests of the child, the Court shall consider all factors related to the circumstances of the child, including

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

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

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

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

e) the history of care of the child,

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

g) any plans for the child’s care,

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

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

j) any family violence and its impact on, among other things, i. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and ii. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child, and

k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. [ 7 ] In considering the above factors, section 50(3) of the Family Law Act mandates the Court to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. [ 8 ] Any assessment of the best interests of a child must take into account all relevant circumstances pertaining to the child’s needs and the ability of each parent to meet these needs.

Normally, it is in the interests of a child to continue and to encourage his or her relationship with both parents following their separation. A child generally benefits from maximum contact with both parents, provided that it is consistent with his or her best interests ( section 50(6) of the Family Law Act ). [ 9 ] As mentioned above, there are two main components to a parenting order: the decision-making responsibility and the parenting time.

A) Decision-making responsibility [ 10 ] Decision-making responsibility means the responsibility of making significant decisions about a child’s well-being, including in respect of health, education, culture, language and spirituality, and significant extra-curricular activities (

section 1 of Family Law Act ). Having joint decision-making responsibility means that the parties must have a meaningful consultation with one another when an important decision arises and must attempt to make a joint decision in the best interests of their child. [ 11 ] In this matter, the parties are in agreement to have joint decision-making responsibility.

However, I will still address this issue because of some allegations made by the mother. [ 12 ] It is well recognized by the courts that joint decision-making responsibility (previously joint custody) requires a degree of cooperation between the parents and the ability to effectively communicate with each other: J.H. v. T.H. , 2017 NBCA 7 , at para. 8 .

Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively: G.T.C. v. S.M.G. , 2020 ONCJ 511 . If the communication between the parents is acrimonious and is detrimental to the well-being of a child, joint decision- making responsibility is inappropriate: L.R.R. v. E.M. , 2018 NBCA 2 at para. 11 . [ 13 ] In the present matter, the mother makes allegations of having been belittled and controlled by the father during the relationship and after the separation.

She testified their relationship was toxic because they were both yelling at each other, and the father used vulgar language towards her. She also mentioned having been hit by the father in front of the child without providing many details. The father admits that there were yelling and inappropriate language during the relationship. He does not admit of any physical violence towards the mother. [ 14 ] Since the separation, the mother has reported a few instances where the father called her names in text messages.

When giving the opportunity to explain these instances, the father did not apologize and his explanations were, at best, weak. To the father’s credit, he tried to find a solution by suggesting the use of OurFamilyWizard app, a co-parenting app designed to streamline communications between parents and to keep track of parenting schedule, child’s appointments, activities, and expenses. The father offered to pay for the mother’s monthly use of the app. The mother declined saying that each party should use their respective Outlook calendar to remember appointments or other events scheduled for the child.

Without making inquiries about the app, the mother assumed OurFamilyWizard app was limited to be a shared calendar. When I explained to the mother during her testimony that OurFamilyWizard app is also useful in filtering inappropriate language in written messages between parties, the mother confirmed she would be interested to use the app. The father confirmed that he is still willing to use and pay for it but wishes that this expense be considered as part of his child support obligation. I believe that using OurFamilyWizard app would be very useful to the parties.

It is an easy and simple way to avoid inappropriate exchanges when frustration builds up while learning about respectful co-parenting. [ 15 ] With regard to the allegation of control since separation, the mother gave the examples of the father insisting on keeping the child’s Medicare card and also of the father contending that the child should take medication for her learning difficulties and refusing to look at other options. On the issue of the Medicare card, the mother however agrees that this is now resolved because she has possession of the Medicare card.

On the issue of the child’s learning difficulties and what decisions should be made to help and support the child, the mother appears to be as stubborn as the father in maintaining her position. The parties have been at an impasse since July 2022 due to their respective positions, which is unfortunate as the child has been deprived of necessary educational support during the current school year. Overall, I am not satisfied that the father has demonstrated control over the mother since the separation.

On the contrary, I find that the mother is the one who tends to control things regarding G. [ 16 ] Despite the mother’s allegations, what is impressive about the parties’ interactions since the separation is how they have been able to work together and to support each other when one of them has had to go away for study or work. For example, the mother took a course in Saint John from September 2018 to May 2019, and the child G. spent every week from Sunday evening to Friday afternoon with the father; the mother came on weekends, sometimes extended weekends, to be with the child.

The mother attended another course in Bathurst in the fall of 2020, and for six weeks the child G. was with the father from Monday to Thursday, with the mother having weekends with the child. Similarly, in fall 2022, the mother took another course, this time in Saint John, and again the child was with the father during the week. As for the father, he went to work in Florida for four months in 2016 and completed a course in the province of Ontario for three months in the summer of 2018.

While the father was away, the mother took care of G. [ 17 ] Based on the cooperation the parties have demonstrated since the separation, I believe that they trust each other with the care of their child, and they respect each other enough to make appropriate arrangements for their daughter. I also believe they can communicate effectively but at times, it may require some efforts. As stated by Justice Sherr in L.B. v. P.E. , 2021 ONCJ 114 , at para. 96 Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict.

A standard of perfection is not required and is obviously not achievable. [..]The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. [ 18 ] In this matter, I am satisfied that there is a reasonable measure of cooperation and communication that the best interests of the child can be ensured on an ongoing basis and consequently, joint decision-making responsibility over the child G. is appropriate. [ 19 ] There is, however, the issue of whether a party should have the final say in case of disagreement.

Each party wants to have the final say. I have two concerns in that regard. [ 20 ] First, both parties claim that the other party made unilateral decisions without their consent. For example, the father claims that the mother transferred the child to another school for first grade without his consent. The mother says that they had an agreement about

this the year before and that she did not need to ask the father again. Another example is the mother deciding to change the child from the French immersion program to the English program without waiting for the father’s consent. As for the father, he gave the child medication for her learning difficulties without telling the mother.

The father claims that the medication was prescribed by a medical professional and that he waited more than a year before giving the medication in the hope that the mother would change her position. [ 21 ] In the above situations, I find that both parties lacked consideration for the other party. Perhaps they were going through a difficult time in their interactions, or they did not want to spend time on discussing the issue again. In any case, this does not justify ignoring the other party’s opinion.

In these situations, there should have been further discussion and, especially with regard to health issues, another medical opinion could have been sought. I wish to remind the parties that they have agreed on joint decision-making responsibility. This means that they must consult meaningfully with each other and must attempt to reach a joint decision.

It is only after meaningful discussions and proper reflection that a party may use his or her final say to make the decision in the best interests of the child. [ 22 ] My second concern is the father’s failure to pay the appropriate amount of child support for some years and his refusal to pay for the child’s extra-curricular activities. In L.B. v. P.E. , Justice Sherr stated at para. 97: 97. Financially supporting one’s children in a responsible manner is an important part of being a parent.

The failure to do so is a factor militating against a joint decision-making responsibility order as it demonstrates poor judgment and an inability to prioritize the child’s interests. Jama v. Mohamed, [2015] ONCJ 619. [ 23 ] On the other hand, I recognize that the father has contributed to various expenses for the child. Among other things, he paid for the child’s psycho-educational assessment without any contribution from the mother. The father also enrolled the child in summer school before her first grade year and paid for it without any contribution from the mother.

In these circumstances related to the child’s educational needs, he gave priority to the child’s interest. [ 24 ] Given the evidence, I believe that each parent has their strengths in different aspects of the child’s life. The mother is good at assessing the child’s needs in terms of extra-curricular activities. The father is good at assessing the child’s educational needs.

Therefore, the mother should have the final say regarding the extra-curricular activities for which the child will be enrolled, and the father should have the final say regarding the child’s educational needs. [ 25 ] However, since extra-curricular activities and educational support necessarily involve costs and the parties have different means, I must impose some limits on these expenses. For extra-curricular activities, the maximum cost to be incurred in a calendar year (January to December) shall be $500.

Therefore, if the parties cannot agree and the mother exercises her ultimate authority to enroll the child in some extra-curricular activities, the expenses incurred for such extra-curricular activities shall not exceed $500 per calendar year. Above this $500 amount, neither party is obligated to pay the additional amount, but one party may choose to pay or contribute to it. [ 26 ] Regarding the child’s educational needs, the mother testified that the current options are tutoring or private school. Tutoring would cost $100 to $200 per month and private schooling would cost $800 per month.

The mother favors tutoring because she says she cannot afford private school. The father would like to send his daughter to a private school. Considering the options presented by the parties and the seriousness of the child’s learning difficulties, I will set a limit of $200 per month from September to June (10 months) to be used for the child’s educational needs.

Therefore, if the parties disagree as to what educational support the child needs and the father exercises his ultimate authority in this regard, the expenses to be incurred for the child’s educational needs shall not exceed $200 per month from September through June in any given school year.

If such expenses exceed $200 per month, it shall be the responsibility of the party who elected to incur expenses in excess of this limit to pay the additional amount. [ 27 ] Later in this decision, I will address the issue of the parties’ respective contributions to these potential costs within the established limits. [ 28 ] As for the child’s health, I will not give the final say to either parent. I know that the parties are currently disagreeing about whether the child should be medicated and about the best course of action regarding the child’s learning difficulties.

Neither party called medical experts to clarify the ambiguous situation regarding a possible diagnosis of attention deficit hyperactivity disorder (ADHD) and the prescribed medication. The parties cannot make a joint decision on the information and knowledge they have. Based on the limited

evidence I have, I am also unable to make a determination as to who is in a better position to make a decision regarding the child’s medical needs. I believe it is incumbent upon both parties to seek more information and medical advice, share and discuss this information and come to a reasonable decision that is made in the best interests of their daughter. Both parents have the best interests of the child at heart, and this impasse that the parties have imposed on their daughter must end.

I am confident that the parties can make appropriate decisions regarding the child’s health issues with joint efforts to obtain the best information available and to endeavour to discuss the available options with professionals whom both parties trust. If they cannot agree, they will have to come back before the Court with sufficient evidence for the Court to make an informed decision. [ 29 ] Regarding the decision-making responsibility about culture, language and spirituality, there is no evidence that the child’s spirituality and language cause conflicts and issues between the parties.

There is no reason to give a final say to either party regarding the child’s spirituality and language. The same will apply to the child’s culture subject to the issue of citizenship that I will address in the next paragraph. [ 30 ] Because he has dual citizenship, the father would like G. to obtain the same. The father currently holds Canadian and American citizenships. The mother is opposed to this request because she is afraid the father may decide to take the child in the United States permanently. There is no evidence supporting the mother’s fear.

Considering the final order I will make, the father will not be able to make the unilateral decision of moving to the United States with the child without notifying the mother and without obtaining her approval or the Court’s permission. Therefore, I will grant the father’s request that he may apply for American citizenship for the child G. at his costs and the mother shall cooperate in regard to that application. For any other issues regarding the child’s culture, no party shall have the final say.

B) Parenting time [ 31 ] In addition to the decision-making responsibility, a parenting order may include a parenting schedule. In making a determination on the parenting schedule, I must apply the criteria of the best interests of the child and give priority to the child’s physical, emotional and psychological safety, security and well-being.

Considering the list of factors included in the definition of best interests of a child, the relevant factors in this matter are: i. the child’s needs, including the need for stability, the child’s age and stage of development, ii. the nature and strength of the child’s relationship with each parent, iii. each parent’s willingness to support and maintenance of the child’s relationship with the other parent, iv. the history of care of the child, v. any plans for the child’s care, vi. the ability and willingness of each parent to care for and meet the needs of the child, vii. the ability and willingness of each parent to communicate and cooperate on matters affecting the child, and viii. any family violence and its impacts. [ 32 ] As mentioned above, the mother wants to have the majority of time with the child and proposes that the father’s parenting time be on every other weekend and one day a week.

The father wishes to continue a shared parenting arrangement. The current parenting

schedule is based on the father’s work

schedule as he does work shifts. Very recently, the father was transferred to another location for his work and his work

schedule has changed. He is still doing work shifts, but they are different. The father testified that his new work

schedule does not generate a good parenting time

schedule for the child. He is therefore committed to go back as soon as possible to his previous work

schedule to allow for a parenting time

schedule based on a 2-2-3 model. [ 33 ] I will now review the evidence in addressing the above relevant factors to guide my decision on a parenting time schedule. [ 34 ] When the child G. was born in October 2013, the mother took a one-year maternity leave. She testified that she however worked at a department store from February to October 2014. At the child’s birth, the father was pursuing studies at Oulton’s College and receiving post-secondary funding through Employment Insurance Program. He was home almost every afternoon.

The mother testified that the responsibilities of caring for the child prior to the separation were shared “50-50” with the father. In other words, both parties were playing an active role in caring for G. and providing for her needs prior to the separation. [ 35 ] In May 2015 when the parties separated, neither of them was working. The mother was on sick leave suffering from depression and anxiety after her father’s passing in December 2014. The father was receiving social assistance benefits.

The father decided to move out of the mini-home as he did not want the mother and G. to go to Bathurst (where the mother’s family resides). The parties agreed that they should attempt to share “50-50” the parenting time with the child. Within a matter of weeks, the father found employment and an

apartment. [ 36 ] In an Affidavit sworn by the mother in 2015 and filed in a proceeding to obtain child support, the mother confirmed that there was a shared parenting arrangement in 2015 whereby the child G. was with her from Thursday morning until Monday evening and with her father, from Monday evening to Thursday morning (Exhibit 15). However, at the hearing before me, the mother testified that following the separation, the father was taking G. when he was not working and when he had a place to bring her.

Regarding her sworn statements made in 2015, the mother explained that they were probably accurate for a few weeks only. The father testified that he was taking G. “a couple of nights per week” in the months following the separation. [ 37 ] In early 2016, the father heard about work opportunities in Florida, United States. The father lived in the United States from the age of 5 to 21. He talked to the mother about going to Florida and checking out these work opportunities. The father left for approximately one month and came back to Canada in April 2016 for one month.

Upon his return, he slept on the mother’s couch. Then the father left again for Florida from May to September 1, 2016. During this time, he did Facetime calls with the child; the father says every day and the mother says at least once a week. The father asked the mother to come to Florida with the child G. for a visit. The mother refused. In July 2016, the father then asked the mother to give permission for G. to come to Florida with a family member. The mother agreed that the child could visit her father for three weeks in August.

However, the father kept the child for an extra week and they both came back on September 1, 2016. [ 38 ] From September 2016 to summer 2018, it appears that the parties continued to have, more or less, a shared parenting time schedule. The mother testified that it depended on the father’s work

schedule and his living arrangements. At times, the father would have the child only two days a week. The father testified he was doing online classes and running a small business in January 2017. Because of his flexible schedule, the shared parenting arrangement was continuing according to him. I conclude that both parties were trying to follow a shared parenting time

schedule as much as possible during that period. [ 39 ] In summer 2018, the father left for Ontario as he needed to complete a course by attending a facility over there. He came back to New Brunswick for 2 or 3 weekends during that 3-month period to see G. The mother did not work during the months of July and August of 2018, and she looked after G. [ 40 ] In September 2018, it was the mother’s turn to be away from the child as she decided to take a course on motor vehicle repairs and paint in Saint John.

Because of the requirement to be on campus during the week (Monday to Friday), the child G. lived with her father from September 2018 to May 2019 inclusively. The mother points out that there were a few weekends where she arrived on Thursday evening or left on Monday afternoon. In any case, it is evident that the mother had no issue about the father’s parenting as she asked him to look after the child during the week. [ 41 ] By September 2018, the father had started work in the Miramichi area. The child G. started kindergarten.

The father discussed with the mother the possibility of him and G. living in Miramichi for that year and then moving back to Moncton when the mother finished her course in Saint John. The mother did not like this idea because of the need for the child to change schools after kindergarten. The father agreed with the mother. So the child G. started kindergarten in Moncton and the father travelled back and forth between Moncton and Miramichi every day while taking care of G.

Considering the parenting arrangement at the time, it appears that the father took most of the responsibility of guiding the child’s first steps in the school system. The father complains that he also had all the responsibility for the transportation of the child. [ 42 ] During the child’s kindergarten year, the parties and the child’s teacher noticed that G. was falling behind in her learning. It was recommended to the parents to enroll the child in a summer school. The father took upon himself to enroll, pay and bring the child to the summer school.

The mother refused to contribute to the costs of summer school and to help with the transportation because of her work schedule. She had just started new employment in July 2019. In any case, the mother claims that when the father brought up the issue with her, it was a fait accompli. The mother denied that the child’s attendance to summer school improved her learning ability. The father testified he noticed some progress. [ 43 ] In 2018-2019, the child’s school was located near the father’s home. In September 2019, the mother decided to transfer G. to another school that was closer to her home.

She explained that she had made an agreement with the father about this a year earlier that the child would attend a school near the father’s residence for her kindergarten year, but the next year the chosen school would be closer to her home. Even though the father disagreed with the transfer, he decided not to oppose it. Then, for the next school year of 2020- 2021, the child was transferred again to her previous school (the school she attended for kindergarten).

I understand that the mother was now living closer to this school. [ 44 ] I have to say that whether or not there was an agreement between the parties regarding the choice of school, I fail to see how all these school changes were in the best interests of G. Clearly, the mother put her own interests ahead of the child’s needs. Fortunately,

G. is very social and makes friends easily. These transfers seem to have had little, if any, effect on her. [ 45 ] When the Covid-19 pandemic hit the province of New Brunswick in March 2020, the mother was laid off. In the first weeks of the pandemic, the mother withheld G. from attending the father’s residence, claiming that he was not respecting the governmental restrictions and having contacts with too many people. For three weeks, the mother withheld G. from her father.

The father tried to speak with the mother 2 or 3 times to reassure her about the testing that was available to him (because of his employment). Eventually and after consulting with her counsel, the mother allowed the parenting time with the father to resume. [ 46 ] In the fall of 2020, the mother took her second block of automotive techniques in Bathurst. The course was to last six weeks and the mother thought she only needed to be on campus on Mondays and Tuesdays. The mother alleges that on the first day of the course, she was told that she had to be in Bathurst from Monday to Thursday.

She immediately informed the father about the situation. The father struggled to make some arrangements for his daughter while he was at work. He ended up taking a five-week vacation. Consequently, during the six-week period, the father was with the child almost all the time during the week. Because G. was at school, the father asked the mother to have some time with G. over the weekend. The mother refused. [ 47 ] In 2021, the parties continued their shared parenting arrangement based on the father’s work shifts, which meant a 2-2-3

schedule for the child. In October 2021, the mother found other employment but was laid off in July 2022 due to a shortage of work. [ 48 ] In the fall of 2022, the mother did her third block of automotive techniques in Saint John, and she was on campus from Monday to Wednesday. Once again, the mother relied on the father to take care for G. and the father accommodated the mother. The mother testified that G. was back with her on Wednesday evenings or on Thursday mornings, depending on what the parties agreed to during the week. Once again, the mother insisted to have all the weekends with G.

Considering that for over a year he travelled every day back and forth between Miramichi and Moncton, the father finds it questionable that the mother did not travel between Saint John and Moncton every day to avoid disrupting the child’s schedule. [ 49 ] In light of the evidence and all of these circumstances, I am satisfied that since the child’s birth, both parties have played an important and equal role in caring for the child and nurturing her growth and development. Neither party has had a problem leaving the child with the other party for extended periods of time.

In fact, each party has relied on the other party to care for G. while one of them has been away for study or work. [ 50 ] In one of her Affidavits and during her testimony, the mother mentioned that the father was used to spank the child G. daily during the relationship. Although she did not approve of this form of discipline, she tolerated it. The father testified that he no longer uses this method of discipline and understands that it is not appropriate. The mother has also mentioned that the father yells at the child. The father admits raising his voice to the child.

Despite the father’s discipline methods, the mother testified that she has no concern about the father’s parenting ability. Cleary, both parties have been trusting each other to care and parent the child during one parent’s absence. [ 51 ] Looking at the history of G.’s care, I am satisfied that over the years, both parties have met their child’s need for stability, whether alone or together. From the child’s perspective, her two parents have ensured that she has been loved and has received consistent and appropriate care regardless of where her parents have lived or which partner they have had.

In her closing submissions, counsel for the mother emphasized the stability of the mother’s personal life and housing and underscored the father’s precarious financial and housing situation. It is apparent that the father faces financial and housing challenges. The father needs to improve his budgeting and spending control. However, he has had stable employment for a number of years, and he is a responsible father. I am therefore confident that he is and will be able to provide for G.’s care. [ 52 ] There is no question that the parties deeply love their daughter, and she loves them equally.

I am satisfied that there is a strong bond between the child and each of her parents. The mother claims that G. finds it difficult to be separated from her for periods of three days or longer because she observed that G. is “glued” to her for the first 24 hours after returning to her care. The father called Ms. Duval as a witness. In 2018-2019 (when the mother was studying in Saint John), Ms. Duval helped care for the child when the father was at work and since October 2022, the father and the child have lived with Ms. Duval, her spouse, and her children. Ms.

Duval has not observed any changes in G.’s behaviour when she goes from her mother’s care to her father’s care or vice-versa. However, the father agrees with the mother that G. does not like to be away for more than three days and that she becomes moody, but in his opinion, this applies to both parents. Therefore, he suggests a 2-2-3 parenting schedule. Considering the whole evidence, I am not convinced that G.’s alleged behaviour demonstrates a closer bond to her mother or the need for G. to spend longer periods of time with her mother.

I am mindful of the fact that the mother has been away from G. during her studies, and it might have had an impact on G.’s sense of security.

[ 53 ] G. appears to be a social and easy-going child. She has not had any serious illnesses or accidents. The mother testified that following the separation, she was more involved with the child’s dental and medical appointments, but in the last two years, the father has taken more responsibility in this regard, explaining that he is more available with his work shifts. Over the years, the child has been brought to the doctor for immunization and ear infections. [ 54 ] The mother has been more involved with the child’s extra-curricular activities. Following the separation, G. took dance lessons.

Both parties financially contributed to this activity and brought the child to her activity. Then, the mother registered the child to swimming lessons. While the father took the child to her swimming lessons, he did not contribute to the costs. Since last year, G. has been involved in football. The mother has paid for the costs of this activity. The father refused to pay but has brought the child to her activity.

Regarding school activities such as recitals or other events, the mother testified she has no problem following and attending these activities but needs to remind the father about them. [ 55 ] Regarding schooling, G. first started in the French Immersion program, but since grade 2, she has been in the English Program. G. is currently in grade 4. She has many interests such as history, sciences, music, art and gym classes. [ 56 ] Since September 2020, the mother has complained that the father is late in bringing the child G. to school.

She provided a school report showing eight late arrivals during the school year 2019-2020 and she alleges that G. was with her father on these days. The mother however admitted that G. is slow in getting ready for school in the morning and G. “has a hard time to get moving”. This would explain why G. was again late at school one morning during the hearing of this matter. The father testified it was the first day of school after the Christmas holiday and G. was not enthusiastic of going back to school. A lot of talking was needed. [ 57 ] As mentioned earlier, G. has learning difficulties.

In 2021, the parents consulted with a nurse practitioner, Dr. Wanda Rasmussen. The mother explained that the child’s family doctor teamed up with this nurse practitioner and it is usually Dr. Rasmussen who does the consultations with the child. It is not clear for what reason the parents initially consulted Dr. Rasmussen, but the mother testified she talked about G.’s learning difficulties with Dr. Rasmussen. Dr. Rasmussen asked the parents and the child’s schoolteacher to fill in a questionnaire. After the questionnaires were completed, Dr. Rasmussen recommended some medication for the child.

It is unclear who analyzed the questionnaires and the reasons for this recommendation. I heard both parties saying that the child was diagnosed with ADHD and both parties also saying there was no such diagnosis. The mother submitted into evidence an Addendum to the psycho-educational assessment that she obtained from Dr. Margison in October 2022. This Addendum (Exhibit 6) reads as follows: “The results of [G.]’s psychoeducational assessment undertaken in June 2022 did not support a diagnosis of Attention Deficit Hyperactivity Disorder.” Because Dr.

Margison did not testify at the hearing, I am uncertain on her expertise to diagnose ADHD and whether this was part of her initial mandate. [ 58 ] The mother testified she has a history with Dr. Rasmussen, and she does not always agree with her. The mother did not provide any further explanations or reasons for her mistrust of Dr. Rasmussen’s opinion. However, the mother admitted that Dr. Rasmussen could prescribe medication and diagnose ADHD. [ 59 ] Because the mother was refusing to give the medication to G. in early 2021, the father held off and tried to reason with her. Dr.

Rasmussen then suggested to the parents to see a child psychologist. The mother agreed with that suggestion from Dr. Rasmussen. [ 60 ] In early 2022, G. began counselling with a psychologist, Leone Kandler. The child saw Ms. Kandler every 2 or 3 weeks until June 2022 (when the insurance coverage ran out). The mother testified that she called Ms. Kandler and after explaining the situation, Ms. Kandler agreed to continue her therapy in 2023 when there would be insurance coverage again. According to the father, it was agreed that the appointments with Ms.

Kandler would be spread out over the remainder of the year 2022, as the insurance coverage for 2022 was exhausted and that counselling would resume in 2023. However, I have no evidence from the father confirming that G. saw Ms. Kandler in the fall of 2022. [ 61 ] During her involvement, Ms. Kandler suggested that a psychoeducational assessment be done with G. The mother inquired with the school system and was advised that G.’s issues were not that severe, and it could take 2 or 3 years before a psychoeducational assessment be done through the school system at no cost.

At the same time, the child G. was apparently seeing a guidance counsellor at

school 2 or 3 times a week regarding her emotions and “other stuff” according to the mother. The mother admitted she did not include the father in her conversations with the guidance counsellor regarding the child’s issues. The mother is unsure when these sessions started but believes it was in 2021. [ 62 ] The father refused to wait and took upon himself to find a psychologist with the appropriate expertise for a psychoeducational assessment.

A psychoeducational assessment report was admitted into evidence by consent of the parties and the parties agreed that I could take into consideration the conclusions and recommendations made by Dr. Margison in her report dated June 24, 2022. [ 63 ] At page 8 of her report, Dr. Margison makes the following conclusions about G.’s learning abilities: The results of this assessment indicate that [G.]’s cognitive performance on individual subtests and clusters ranged from extremely low to average .

Her phonological processing abilities were in the low range. [G.]’s performance on the academic subtests ranged from extremely low to average . Although some of [G.]’s cognitive abilities fall in the average range, the majority of her cognitive profile is characteristic of an individual who is “ slower to learn ”. This term is not a diagnostic category. It is a term used to describe a student who has the ability to learn necessary academic skills, but at a rate and depth below average same age peers. Typically, an individual who is slower to learn has difficulty with higher order thinking or reasoning skills.

In order to grasp new concepts, more time and more repetition is required. [ 64 ] Dr. Margison makes many recommendations to help G. in her learning, including tutoring, consistent routine for homework and practising reading, use of tracking aid for reading, short and simple verbal instructions, presentation of information in concrete fashion and active engagement in the lesson or activity. Dr. Margison also recommended to continue with counselling as G. demonstrates some anxiety and difficulty regulating her emotions in certain situations.

Finally, two parenting books were recommended for the parents, but neither of them obtained or read the books. [ 65 ] Upon receiving the psychoeducational assessment, the father made an appointment to see Dr. Rasmussen with the child. On July 6, 2022, Dr. Rasmussen prescribed some medication to G. explaining in a medical note that the medication should be taken on a daily basis for “efficacy for medical reasons”. No further detail was provided about these “medical reasons” as Dr. Rasmussen was not called to testify.

The mother acknowledged receiving a copy of the prescription from the father but continued to maintain her position that G. should not be taking medication. [ 66 ] Given the recommendations made in the psychoeducational assessment report, the mother began inquiring about tutoring. As mentioned earlier, the mother favors weekly tutoring at a cost of $100 to $200 per month and the father would prefer sending the child to a private school at a cost of $800 a month. However, the father realizes that this is expensive. He looked at governmental programs for subsidies, but no evidence was presented in that regard.

The father testified that he is unable to afford tutoring and daycare costs at the same time. Because a private school may charge only a small fee for after-school daycare, he believes a private school is a better option. [ 67 ] For the father, the best plan would be to send G. to private school and to have her doing counselling. The middle ground would be for the child to have after-school tutoring and counselling.

Regarding after-school daycare, the father would like to take G. on his days off, the mother would take her on her days off and when they both work, the father would rely on his family and friends to help. I understand that G. has been attending after-school daycare since summer 2019. Since 2021, G. goes to another daycare in Dieppe. The parties pay in equal share the daycare costs. Each party’s share is approximately $240-$250 per month. [ 68 ] Because of the impasse on tutoring, the father decided in late November 2022 to give the medication to G. without telling the mother.

He testified that after two days of medication, he saw improvements regarding G.’s behaviour. I must mention that the father testified that he has ADHD, and he took medication for a few years when he was younger. Because of his own issues with learning and remembering dates, the father said that he can sympathize with the struggle G. is going through. He believes this situation makes them closer and he can help her better in the future. [ 69 ] The father testified that the child psychologist’s fee has increased in 2022. It is now $250 per hour instead of $200.

He learned that a counselor who is not a psychologist would charge less (about $100) and that there are counselors available in Moncton for consultations. The father said he has discussed this with the mother but so far, they have not agreed on anything. The father would like the child to attend counseling once a week or every other week and he would use his insurance coverage (80% of the cost) to help with this expense.

[ 70 ] Regarding the communications between the parties and the family violence that has been alleged in this proceeding, I have already analyzed these two factors in addressing the issue of decision-making responsibility. The above analysis confirms that the parties are demonstrating an adequate level of cooperation and communication to ensure the best interests of the child G.

In addition, and despite a difficult start that required the Court’s assistance, the parties have learned to accommodate each other regarding birthdays and family events. [ 71 ] Overall, both parents have played an important role in ensuring the child’s development and stability. Both parents have provided appropriate care to the child and have been able to meet the child’s needs. The child loves her two parents, and they love her deeply.

Despite some hiccups over holidays, the parents have been able to communicate and cooperate regarding the child’s care and to support and maintain the child’s relationship with the other parent. Despite the mother’s allegations regarding the father’s demeaning and controlling attitude, I do not find these allegations to be significant in this case for the reasons I have already stated. Considering the history of care of the child, I am confident that these parents can adjust and work cooperatively for the child’s well-being.

There is however some tension and disagreement between the parties regarding the child’s learning issues. It is unfortunate that the parties did not insist to meet with the child’s family doctor or to obtain another medical opinion on the child’s learning issues and possible options. Both parties must work together towards an appropriate solution regarding this issue. [ 72 ] Considering all the evidence and after doing the necessary analysis provided by the Family Law Act , I find that it is in the best interests of the child G. to continue a shared parenting schedule, i.e. a 2-2-3 parenting schedule.

I recognize that the father’s current work shifts are not consistent with such a schedule, but I am confident, based on the father’s testimony, that he will make the necessary arrangements to make his work shifts consistent with such a

schedule as soon as possible. However, if the father is unable to confirm a change in his work

schedule that is consistent with a 2-2-3 parenting

schedule prior to September 1, 2023, either party may apply to the Court for a review hearing on the parenting

schedule and the Court shall determine what changes, if any, should be made to the parenting

schedule taking into consideration the best interests of the child G. The 2-2-3

schedule shall be based, in each week, on two consecutive days with one parent, then two consecutive days with the other parent, and then three consecutive days with the first parent, with a weekly rotation ensuring that each parent spends a 3-day weekend with the child. [ 73 ] As part of their final submissions, each party presented a parenting plan. While there was some consensus on specific terms, the parenting time during holidays, summer vacation and special events was not agreed upon by the parties. [ 74 ] I have attached as

Schedule A to this decision the terms on which the parties are in agreement and these terms shall form part of my final Order. As to the holidays, summer vacation, special events and trips, I order as follows: Summer vacation : Each parent shall be entitled to one block of up to 7 consecutive days in July and another block of up to 5 consecutive days in August for summer vacation each year. Proposed dates shall be exchanged by May 31 st of each year.

If conflict arises regarding the chosen dates, the mother shall have the priority of choosing her summer vacation with the child during the odd-numbered years commencing in 2023 and the father shall have the same right during the even-numbered years commencing in 2024. Christmas : A parent shall have the child from December 24 until December 25 at 3:00 p.m. and the other parent shall have the child from December 25 at 3:00 p.m. until December 26 at 5:00 p.m., rotating annually.

Easter : Each parent shall be with the child for two days of the long weekend split evenly (Friday-Saturday / Sunday-Monday), rotating annually. Child’s birthday : The parent who does not have the child on the child’s birthday shall be given 1 hour of parenting time if on a weekday and 3 hours during weekend, but this parenting time shall not interrupt the child’s birthday party. Parents’ birthdays : The child shall spend her father’s birthday and her mother’s birthday with the respective parent. This birthday time shall begin after school on school days and continue until school begins the next day.

Where the birthday falls on a weekend or holiday, the birthday time shall begin at 10:00 a.m. and end at 10:00 a.m. the following morning.

Mother’s Day and Father’s Day : The child shall spend Mother’s Day and Father’s Day with the respective parent from 10:00 a.m. on the Sunday until drop-off at school on Monday Morning. Halloween : Halloween will not affect the regular

schedule unless a parent has missed two years in a row and shall therefore be given priority in the third year. [ 75 ] If a parent plans to take the child for a short vacation within the Atlantic provinces or Quebec, he or she shall advise the other parent one week in advance, For any vacations with the child outside the region of the Atlantic provinces and Quebec (but not outside Canada), that parent shall give the other parent, at least 30 days before the vacation, the details of the vacation, including the itinerary, the dates of the vacation, the flight information (if any), the destination (including the address) and contact information during the vacation. [ 76 ] For any international trips with the child, the parent who plans this trip shall give the other parent, at least 45 days before the trip, the details of the trip, including the itinerary, the dates of the trip, the flight information (if any), the destination (including the address) and contact information during the trip.

That parent shall also prepare, for the signature of the other parent, a consent letter proving that the child has permission to travel. The other parent shall not unreasonably refuse to sign the consent letter. [ 77 ] Also, I order that the parties shall cooperate when one parent decides to apply for a passport for the child and the costs associated with a passport application shall be borne equally by the parties. If and when a passport is issued for the child, the mother shall keep possession of it.

When the father plans to travel with the child and requests the child’s passport, the mother shall make it available to the father. Upon the child’s return from traveling, the passport shall be returned to the mother. 2 – SECOND ISSUE: CHILD SUPPORT AND RETROACTIVITY [ 78 ] At separation, the mother was receiving social assistance benefits. In October 2015, the Minister of Social Development filed an application on behalf of the mother to obtain child support from the father.

On October 27, 2016, an Order was made imposing on the father to pay $80 per month, commencing on October 1, 2016, based on a shared parenting arrangement and an annual income of $20,373 for the father. [ 79 ] The mother ceased to receive social assistance benefits in 2017. In her Application filed in February 2020, the mother seeks child support, prospective and retroactive to the date of separation. In July 2021, she changed her position regarding the retroactivity of child support, and she sought to have retroactive child support to September 1, 2018.

Finally, during the closing submissions, counsel for the mother agreed that retroactive child support should begin at the date of the filing of the mother’s Application considering that the child G. was primarily living with the father from September 2018 to May 2019 and no evidence was presented that the mother ever broached the subject of child support with the father until she filed her Application in February 2020.

I understand that at times, the parties discussed the sharing of the child’s expenses, but I have no evidence the mother requested financial disclosure from the father, mentioned a possible review of the child support amount, or complained about the insufficiency of the child support amount paid by the father prior to the filing of her application. However, it is evident that the father’s annual income had changed significantly since 2019. [ 80 ] The father works for the federal government and pays union dues from his employment income.

Since 2018, his employment income minus union dues has been as follows: 2018: $19,034.88 - $277.92 = $18,757 2019: $72,236.06 - $1,261.54 = $70,974 2020: $89,944.19 - $1,293.40 = $88,651 2021: $89,839.98 - $1,603.29 = $88, 237 [ 81 ] In 2018, the father also received employment insurance benefits in the amount of $6,852; he therefore earned a total income of $25,609. [ 82 ] Around 2017, the father started a small liquidation business. He testified that he currently has between $5,000 and $10,000 worth of merchandise in storage and he pays $300 per month for the storage.

Because the business has not been profitable in recent years, he is considering closing it in 2023. [ 83 ] Due to the cost of renting a warehouse, the father incurred business losses ($3,600 per year) and deducted them on his 2020 and 2021 tax returns. The mother takes the position that I should not take into consideration this deduction of $3,600 per year in determining the father’s income for child support purposes.

[ 84 ] In Child Support Guidelines in Canada, 2022 , the authors Payne and Payne refer to personal and business expenses and losses and state at page 138: Legitimate business expenses may be deducted from the obligor’s gross income for the purpose of applying the Federal Child Support Guidelines but the court must take care to avoid the deduction of personal benefits that have been provided by the business. An obligor who seeks to substantially reduce his or her income on account of business losses must provide full financial disclosure and explanation of the losses.

Expenses unrelated to earning an income cannot generally be used to reduce income. The onus of proving that business expenses are reasonable falls on the support obligor. [ 85 ] I am satisfied that the sum of $3,600 does not represent a deduction for personal benefits. It appears to be a legitimate business expense, but the father did not provide documentary proof of the rent paid in 2020 and 2021. Overall, I am not satisfied that the father provided full financial disclosure of his business and his explanations were not sufficient to demonstrate that his business expenses were reasonable.

Therefore, I will not accept this deduction of $3,600 from the father’s income. [ 86 ] The father testified that his employment income in 2022 will be similar to his employment income in 2021 and he expects to earn the same employment income in 2023.

The mother is in agreement with using the father’s employment income of 2021 (minus union dues) for the years 2022 and 2023. [ 87 ] For the period of 2018 through 2021, the mother’s annual income was the following: 2018: $13,282 2019: $21,390 2020: $34,147 2021: $27,406 [ 88 ] The above incomes are a combination of employment income, employment insurance benefits and other income. The mother submitted to the Court that her 2021 income should be used for child support purposes for the years 2022 and 2023.

At the time of the hearing, the mother was not employed, but she expected to find employment in 2023. [ 89 ] As stated in Child Support Guidelines in Canada, 2022 at page 193, “[i]t is not for a court to dictate a person’s future employment but the earning capacity of a spouse should be measured against what is reasonable in light of his or her background, education, training, and work experience.” [ 90 ] Over the years, the mother has taken various courses to improve her education in the automotive field, and I believe that her course of action has been reasonable.

Due to her studies and periods of unemployment, the mother has not yet held full-time employment for a full calendar year. Therefore, as the father points out, the mother’s 2021 income is not therefore representative of her earning capacity and should not be used for child support purposes. I agree. In my opinion, the mother’s earning capacity for the years 2022 and 2023 is greater than her 2021 income. [ 91 ] To determine a full-year’s income for the mother, I used her last pay stub from her last job (page 495 of the Supplementary Record on Application).

According to this pay stub, the mother earned $19,031.65 from January 1 to July 29, 2022. Using that income, I can extrapolate an annual income of $32,626 for the mother. Given the mother’s education, background and work experience, I am satisfied that an income of $32,626 is commensurate with her earning capacity and this is the guideline income I will use for the years 2022 and 2023. [ 92 ] F rom February 2020 to February 2023, the parties had a shared parenting arrangement. I understand that in September-October 2020 and November-December 2022, the father had primary care of the child.

However, the authors Payne and Payne, in Child Support Guidelines in Canada , 2022, at pp. 327-328, underscore the importance of looking at a shared parenting arrangement over the course of a year and state as follows: It has been held that shared parenting need not have already existed for one year in order for

section 9 of the Guidelines to be triggered.

All that is required is that the parenting arrangement has been in place for a sufficiently substantial period of time to enable the court to infer that it is expected to continue during the course of the year. Although there may be times when the child is in a parent’s primary care for more than 40 percent of the time over a specific period,

section 9 of the Guidelines only applies where the threshold is or will be “over the course of a year.” […] Shared parenting time may be minimal in some months while considerable in others, but it must average 40 percent of the time over the course of a year. […]

Section 9 of the Guidelines does not entitle a parent to claim a rebate in payments of child support where special circumstances involve a temporary increase in the time the children spend with their parent. Where there is no formal written agreement or order in place, a court should exercise caution before applying

section 9 of the Guidelines to what may be short-term parenting arrangements. [ 93 ] These two 6-week periods where the child was in the primary care of her father were short-term parenting arrangements. I find that the parties expected that the shared parenting arrangement would continue over the course of the year. Consequently, I will not grant any rebate in payments of child support during these two 6-week periods. [ 94 ] Because each parent has exercised not less than 40 percent of parenting with the child over the course of a year since February 2020,

section 9 of the Federal Child Support Guidelines applies. According to

section 9, the amount of child support must be determined by taking into account:

a) the amounts set out in the applicable tables for each parent;

b) the increased costs of shared parenting time arrangements; and

c) the conditions, means, needs and other circumstances of each parent and of the child for whom support is sought. [ 95 ] In M.(F.) v. H.(T.) , 2016, NBCA 29 , the New Brunswick Court of Appeal wrote: 26. Professor Rollie Thompson, in " Case Comment: Contino v. Leonelli-Contino " (2004), 42 R.F.L. (5th) 326 , outlines the process a trial judge should follow for the s. 9 analysis once there is a finding the parents have a shared parenting arrangement.

In his view a trial judge is required to: i. determine the straight set-off amount; ii. review the child expense budgets; iii. consider the ability of each parent to bear the increased costs of shared custody and the standard of living for the children in each household; and iv. distinguish between initial orders or agreements, and variations. [ 96 ] In the present matter, the straight set-off amount based on the parties’ incomes for each year during the period of retroactivity is as follows: Table amount (father’

s) Table amount (mother’

s) Set-off amount 2020 $773 $271 $502 2021 $770 $209 $561 2022 $770 $258 $512 2023 $770 $258 $512 [ 97 ] The parties have produced child expense budgets and detailed financial statements. The father’s child expense budget indicates that he spends almost $2,900 per month for the child. Between his monthly income and monthly expenses, he has a deficit of over $2,600 per month. The father’s debt burden has significantly increased since 2020. In June 2020, his financial statement was showing debts totalling approximately $30,000. In December 2022, his financial statement lists debts amounting to more than $93,000.

There is no mortgage in these debts as they are all consumer debts. Except for a vehicle and pension funds, the father has no significant asset. The father currently lives with a friend’s family. Although the father is confident that his financial and personal situation will improve in the near future, he will need to control his spending and manage appropriately his finances.

[ 98 ] Since spring 2021, the mother has been living with a new common-law partner, J.H. J.H. is an air traffic controller and has two children from another relationship. His two children live primarily with their mother. In her Financial Statement of December 2022, the mother lists debts for a total amount of $55,900. Except for a $10,000 TFSA and two vehicles, the mother does not have any other significant assets. In her child-focused budget, the mother lists various expenses totalling $1,790 per month for the child. I note that her budget includes housing expenses.

However, I understood from her evidence that J.H. pays all their household expenses.

In her child- focused budget, the mother does not declare J.H.’s annual income and I did not receive any evidence regarding J.H.’s revenues. [ 99 ] If I accept what both parties spend for their child on a monthly basis ($2,900 + $1,790) and I calculate the prorata of what each of them should be paying on the basis of their incomes (73% for the father and 27% for the mother), including what they already contribute ($2,900 for the father and $1,790 for the mother), I come to a possible set-off amount of $523 payable by the father to the mother. [ 100 ] No evidence was presented by the parties regarding the increased costs of shared parenting.

As to their standard of living, there is no question that the mother offers a higher standard of living to the child due to her common-law relationship with J.H. While this is some permanency to this relationship, I am mindful of the fact that J.H. has a support obligation towards two other children. [ 101 ] After considering all the factors in

section 9 and having done the required Contino analysis , I am satisfied that the set-off amount is the appropriate amount of child support that the father must pay to the mother. Therefore, the father must pay, on a prospective basis, the amount of $512 per month, commencing on April 1, 2023, to the mother for the benefit of the child G. until further Order of the Court.

As to the child support that the father should have paid from March 1, 2020 to March 31, 2023, I calculate his obligation as follows: March to December 2020: $502 x 10 months = $5,020 2021: $561 x 12 months = $6,732 2022: $512 x 12 months = $6,144 January to March 2023: $512 x 3 months = $1,536 Total: $5,020 + $6,732 + $6,144 + $1,536 = $19,432 [ 102 ] From the sum of $19,432, I will deduct the child support paid by the father since March 2020 ($80 per month x 37 months = $2,960).

Consequently, the arrears of child support owed to the mother amount to $16,472. [ 103 ] Considering the father’s financial situation and his prospective child support obligation, I find that the father shall pay to the mother $150 per month, commencing on April 1, 2023, against the arrears until full payment of same or until further Order of the Court. 3 – THIRD ISSUE:

SECTION 7 EXPENSES AND OTHER EXPENSES [ 104 ] In her Application, the mother has requested that the father maintain his medical and dental insurance coverage for the benefit of the child G. The father has testified that his employer pays the full cost of the dental coverage and for the medical coverage, the difference the father pays between the single plan and the family plan is approximately $5 per month.

Therefore, I will order the father to maintain his medical and dental insurance coverage as long as it is available through his employment and to designate the child G. as a beneficiary under that plan. [ 105 ] In her Application, the mother has also requested that the father obtains life insurance coverage for the benefit of the child G. The father already has life insurance through his employment with a death benefit of approximately two times his annual basic income ($84,000). The child G. is designated beneficiary under his life insurance policy.

I will order the father to maintain his life insurance coverage and the designation of his child as beneficiary as long as this life insurance coverage is available through his employment. [ 106 ] As to educational expenses and extra-curricular activities, each parent shall contribute in proportion of their incomes, being 73% for the father and 27% for the mother, within the limits already set in this decision for these expenses.

[ 107 ] Finally, each party shall continue to contribute, in equal shares, to the childcare expenses. I have decided not to use the income prorata for this expense because of the limited evidence I received on the childcare costs and the parties’ respective positions on tutoring, private school and childcare. 4 – FOURTH ISSUE: UNJUST ENRICHMENT

a) The mother’s claim [ 108 ] In her Application, the mother claims, on the basis of unjust enrichment, the reimbursement of a monetary loan made to the father. In her Affidavit sworn in February 2020, she explains that she lent approximately $6,000 to the father over the years. More specifically, there was a loan of $4,200 in 2014 for him to pay the outstanding balance of his tuition and in 2015, she lent him $500 to be used as a damage deposit on an apartment. The remaining sum of $1,700 is allegedly various monies the father borrowed over approximately 9 months.

No time period is specified in the pleading and no documentary evidence was presented regarding this sum of $1,700. [ 109 ] In her testimony, the mother said the tuition was paid in January 2015. At the time, the parties were living together and were receiving social assistance benefits. With the family monthly cheque, the mother was paying the bills. The mother testified that in January 2015, she received $5,000 from her father’s estate and she used some of this money to pay for the father’s tuition.

She explained that without full payment of his tuition, the father could not obtain his diploma from Oulton’s College. The mother claims that four months after their separation, the father told her he would reimburse her. He never did. The mother did not produce any documents confirming the amount received from her father’s estate, the amount paid to Oulton’s College or an acknowledgment of this loan by the father through email or text messages. [ 110 ] The father denies that the parties ever agreed to a loan of money for the payment of his tuition.

While the father does not deny the mother paid the outstanding balance of his tuition, he claims the amount was $3,200, not $4,200. Like the mother, the father did not produce any documents confirming the outstanding amount of his tuition. The father also alleges that the mother’s claim is based on an alleged contractual obligation between the parties and not on unjust enrichment.

Finally, the father takes the position that he made financial and physical contributions to the mini-home, which the mother kept after the separation, and consequently he should not owe her anything. [ 111 ] I agree with the father that the mother’s allegation concerning a loan should not be determined pursuant to the principles of unjust enrichment. What the mother claims is a debt that would have occurred during their relationship. The mother did not produce any documents supporting what she allegedly lent, and the father disagrees that it was ever considered a loan between them.

There is no written confirmation that the mother ever asked to be reimbursed before the filing of her application in February 2020 (almost 5 years after the separation). Aside from the possible limitation period that would bar the mother’s claim, I am not convinced that the money advanced by the mother was a loan to the father. At the time the mother paid the tuition, the parties were living together and using all of their financial resources to pay for their expenses. It was important for the father to get his diploma so that he could apply for a job.

As for the $500 damage deposit paid in June 2015, the father had just left the possession of the mini-home to the mother with all the furniture and household items. The mother testified that she “offered to lend him” the $500 damage deposit for him to obtain an apartment. At the time, the mother was aware that the father was couch surfing because he had given her the possession of the mini- home and its contents.

Also, the father had just found out that the mother had given notice to the government that he was no longer living with her and the child, and consequently, his social assistance benefits had been terminated. Considering the amicable interactions between the parties and the way they were supporting each other at the time, I believe that the mother decided to help the father without expecting any reimbursement of this $500 sum.

In any case, I accept the father’s testimony that the mother was reimbursed a similar amount when she sold the mini-home because of a deposit he had made for the renting of a lot at the time of the purchase of the mini- home. [ 112 ] I therefore deny the mother’s claim.

b) The father’s claim [ 113 ] Because of his substantial contributions to the mini-home, the father claims compensation on the basis of unjust enrichment.

[114] The mini-home was purchased in August 2014 (nine months prior to the separation of the parties). The purchase price of themini-home was approximately $10,000. The father testified that at the time of the purchase, he made a deposit of $500 and paid $1,500against the purchase price. He also paid two months of rent for the lot (approximately $450). The father did not provide anydocumentary evidence of these payments. What is consistent with the mother’s testimony is the fact that the father borrowed $10,000from his grandmother to pay for the mini-home.

This $10,000 loan was repaid within a month when the mother’s parents lent the sumof approximately $25,000 to the mother. The mother explained that these funds were also used to connect the water line to the mini-home, to install a water tank and to buy different items such as appliances. [115] Following the purchase, the mini-home was apparently registered in the name of the father. Then, six months later, the mini-home was registered in the name of both parties. In the fall of 2015 (after the separation), the husband was asked to transfer the title ofthe mini-home to the mother by signing a registration form.

The father first said he was pressured to sign the registration form by hismother-in-law, B.H. B.H. testified at the hearing that she reminded the father that the mini-home had been bought for the mother andG., and he therefore had to sign the registration. During his testimony, the father mentioned that the mother could not get a loan fromNB Housing because his name was on the title of the mini-home. The mother wanted to obtain financing from NB Housing to changethe roof of the mini-home and to add a bedroom.

The father therefore agreed to sign the registration form for the transfer of the mini-home to the mother. [116] Prior to separation, the mother paid only interest on the money borrowed from her parents. Following the separation, the motherbegan making monthly payments of $530. The father admits that he never made any payments towards the loan of $25,000 made by themother with her parents. However, he claims he made substantial contributions to the property prior to the separation such as buildingtwo decks and a shed, installing vinyl siding and the skirting for the mini-home, and routine home maintenance.

In addition, pipes inthe mini-home froze at various times and the father attempted to fix the problem. The father acknowledges that the mother paid all thesupplies he needed for the repairs and renovations. In his Affidavit sworn in June 2020, the father put an approximate value of $9,000 tothe work he did towards the mini-home. [117] The mother testified that the father did not build two decks but installed them back after the mini-home was moved to anotherlocation. She does not remember the father installing the skirting for the mini-home.

As to the installation of vinyl siding, the motherexplained that the father only did two sides of the mini-home and she paid him for his work. Regarding the frozen pipes, the mother saidthat the father’s work was not well done, and she had to call a plumber to fix the problem. The mother, however, admitted that the fatherfixed the dishwasher, built a shed and did routine maintenance. [118] The father produced the 2015 Property Tax Assessment for the mini-home, which document indicates a value of $37,000. Thefather claims that this was the value of the mini-home at the time of the separation.

At the hearing, he acknowledged that the new roofwould have increased the value of the mini-home by $10,000. The mother testified that there was an issue with that assessment becauseit included the land where the mini-home was located. The problem was corrected and in 2018, the Property Tax Assessment indicates avalue of $23,100 for the mini-home. [119] In April 2021, the mini-home was sold for $54,500. At the time, the mother still owed money to her parents as she keptborrowing from them over the years. The loan to her parents was fully repaid in June 2022.

The mother testified that she still owes$4,000 to NB Housing for the financing she received in 2015. [120] Kerr v. Baranow, 2011 SCC 10 , [2011] 1 SCR 269 is the leading authority on unjust enrichment claims. In Kerr,Justice Cromwell describes the elements of an unjust enrichment claim as follows: C. The Elements of an Unjust Enrichment Claim

(1) Enrichment and Corresponding Deprivation

[36] The first and second steps in the unjust enrichment analysis concern first, whether the defendant has been enriched by theplaintiff and second, whether the plaintiff has suffered a corresponding deprivation. [37] The Court has taken a straightforward economic approach to the first two elements — enrichment and correspondingdeprivation. Accordingly, other considerations, such as moral and policy questions, are appropriately dealt with at the juristic reasonstage of the analysis: see Peter, at p. 990, referring to Pettkus, Sorochan v. Sorochan, (SCC), [1986] 2 S.C.R. 38, andPeel, affirmed in Garland v.

Consumers’ Gas Co., 2004 SCC 25 , [2004] 1 S.C.R. 629, at para. 31. [38] For the first requirement — enrichment — the plaintiff must show that he or she gave something to the defendant which thedefendant received and retained. The benefit need not be retained permanently, but there must be a benefit which has enriched thedefendant and which can be restored to the plaintiff in specie or by money. Moreover, the benefit must be tangible.

It may be positiveor negative, the latter in the sense that the benefit conferred on the defendant spares him or her an expense he or she would have had toundertake (Peel, at pp. 788 and 790; Garland, at paras. 31 and 37). [39] Turning to the second element — a corresponding deprivation — the plaintiff’s loss is material only if the defendant has gaineda benefit or been enriched (Peel, at pp. 789-90).

That is why the second requirement obligates the plaintiff to establish not simply thatthe defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered (Pettkus, at p.852; Rathwell, at p. 455).

(2) Absence of Juristic Reason [40] The third element of an unjust enrichment claim is that the benefit and corresponding detriment must have occurred without ajuristic reason.

To put it simply, this means that there is no reason in law or justice for the defendant’s retention of the benefit conferredby the plaintiff, making its retention “unjust” in the circumstances of the case: see Pettkus, at p. 848; Rathwell, at p. 456; Sorochan, at p.44; Peter, at p. 987; Peel, at pp. 784 and 788; Garland, at para. 30. [41] Juristic reasons to deny recovery may be the intention to make a gift (referred to as a “donative intent”), a contract, or adisposition of law (Peter, at pp. 990-91; Garland, at para. 44; Rathwell, at p. 455).

The latter category generally includes circumstanceswhere the enrichment of the defendant at the plaintiff’s expense is required by law, such as where a valid statute denies recovery (P. D.Maddaugh and J. D. McCamus, The Law of Restitution (1990), at p. 46; Reference re Goods and Services Tax, (SCC),[1992] 2 S.C.R. 445; Mack v. Canada (Attorney General) (2002), 60 O.R. (3d) 737 (C.A.)). However, just as the Court has resisted apurely categorical approach to unjust enrichment claims, it has also refused to limit juristic reasons to a closed list.

This third stage of theunjust enrichment analysis provides for due consideration of the autonomy of the parties, including factors such as “the legitimateexpectation of the parties, the right of parties to order their affairs by contract” (Peel, at p. 803). [121] In Tays v. Bastiaens, 2011 NBQB 217, the late Justice Walsh provided a helpful

summary of an unjust enrichment claim: 15. To establish such a claim, the applicant must prove: (1) an enrichment of or benefit to the respondent; (2) a correspondingdeprivation of the applicant; and (3) the absence of a juristic reason for the enrichment. If all elements

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