S.S. v. J.G., 2021 NSSC 228

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: S.S. v. J.G., 2021 NSSC 228 Date: 20210721 Docket: 93360 Registry: Sydney Between: S.S. Applicant v. J.G. Respondent Library Heading Judge: The Honourable Justice Pamela A. Marche Heard: June 14, 15, 16, & 17, 2021 in Sydney, Nova Scotia Final Written Submissions: June 28, 2021 Corrected Decision: The text of the original decision has been corrected according to the attached erratum dated August 9, 2021 Written Decision: July 21, 2021 Subject: Shared Custody v. Primary Care, Best Interest Test, Child Support, Voice of the Child Report, Retroactive Child Support, s.7 Health Insurance Premiums Issues:

(1) What parenting arrangement is in the best interest of the child?

(2) What is the appropriate child support payable? Result: Shared parenting not in child’s best interest due to family conflict and inability of parties to communicate and cooperate. Thirteen-year old child’s opinion taken into consideration when assessing parenting arrangements. Prospective and retroactive child support awarded at table amount. Primary care parent ordered to contribute to cost of health care premiums attributable to the child. 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: S.S. v. J.G. , 2021 NSSC 228 Date: 20210721 Docket: 93360 Registry: Sydney Between: S.S. Applicant v.

J.G. Respondent Judge : The Honourable Justice Pamela A.

Marche Heard : June 14, 15, 16 & 17, 2021, in Sydney Nova Scotia Corrected Decision: The text of the original decision has been corrected according to the attached erratum dated August 9, 2021 Written Release : July 21, 2021 Counsel : Cassandra Lilley for the Applicant JG, self-represented Respondent By the Court: Overview [ 1 ] This matter involves a young boy, LG, who turned 13 on July *, 2021. [ 2 ] LG’s father, JG, and his mother, SS, have a contentious relationship that has included multiple court appearances, several court orders, criminal proceedings and child protection involvement. [ 3 ] The core issues before the Court now are whether a shared parenting arrangement should be implemented, whether LG should have some discretion in spending overnights with JG and what child support is payable, prospectively and retroactively?

Procedural Overview and Historic Proceedings [ 4 ] I will go into some detail of the history of this proceeding to help properly place the current matter into perspective. [ 5 ] Pursuant to an Interim Consent Order issued October 15, 2014, SS and JG had joint custody of LG, with primary residence being with SS. The Interim Consent Order contemplated both parties having input into major decisions about LG and each being entitled to attend LG’s school functions and recreational events. At that time, JG was working in Alberta, two weeks in Alberta and one week off which he spent in Cape Breton.

JG’s parenting time, then referred to as access, was to be every day from after school until 6:00 or 7:00 pm, as well as overnight on the weekend during the weeks JG was in Cape Breton. [ 6 ] An Interim Order for Child Support was issued January 28, 2015. JG was found to have an annual income of $26,349 and was ordered to pay $216 per month in child support. [ 7 ] A Consent Order was issued December 9, 2015.

Both SS and JG were represented by counsel and the parties agreed they would have joint custody of LG with primary residence being with SS, except during the periods of time when JG was in Cape Breton. (JG continued to be employed as a rotational worker in Alberta at the time). The Consent Order stipulated a shared parenting arrangement for the first 28 days of JG’s return to Cape Breton, with a four-day rotation starting on JG’s first day back.

Should JG be in in Cape Breton for longer than 28 days, on the 29 th day LG would return to the primary of SS with JG having access with LG on a two- week rotational basis as follows: Wednesday night and over the weekend in Week 1 and overnight on Tuesday and Thursday in Week 2. [ 8 ] The Consent Order of December 2015 also addressed child support. The Court found JG to have income of $127,930 in 2014 and $68,277 in 2015 and adjusted child support retroactively and proactively. JG was ordered to repay arrears in the amount of $3,641 and to pay the monthly table amount of $578 commencing December 1,

Section 7 expenses were also addressed as follows: • Whichever parent has incurred medical/dental expenses for the child will pay the uninsured costs him/herself. JG shall ensure that LG is at all time covered by medical and dental insurance. • JG and SS will share LG’s after school program expense between them equally. • Any additional s. 7 expense agreed to by the parties in advance would be shared with JG paying 80% of the cost and SS paying 20% of the cost. [ 9 ] On January 19, 2016, JG applied to vary the Consent Order granted in December 2015.

A hearing was held in May 2017 and an Order was granted in August 2017. The Varied Order provided for a shared custody arrangement with a week about parenting time

schedule as well as a detailed holiday schedule. The order directed SS to provide JG with the names of any physicians, counsellors and service providers who were treating LG. The order contemplated that both parties would be permitted to contact third parties providing service to LG to receive information about LG and to attend all of LG’s appointments. [ 10 ] The August 2017 Varied Order also addressed child support. JG’s income was set at $34,000 and SS’s income was set at $22,000.

JG was ordered to pay SS $118 per month in child support and both parties were to be responsible for childcare expenses while LG was in their respective care. SS was to be solely responsible for s. 7 expenses in relation to LG’s sports, extracurricular, hobbies and tutoring. Any additional special or extraordinary expenses such as prescriptions, dental work, eyeglasses, etc. were to be split equally by the parties.

JG was found to be in child support arrears in the amount of $1,450 which he was to repay at the rate of $100 per month. [ 11 ] Of note is paragraph 7 of the Varied Order issued August 2017 which states:

Both parties are not permitted to state anything negative about the other party or the other party’s family. The parties are also not permitted to state anything negative in writing about the other party, which includes all forms of written communication such as text messaging and social media. [ 12 ] The August 2017 Varied Order was amended slightly in December 2017 to clarify the Christmas holiday

schedule and arrears. Current Proceedings [ 13 ] An incident occurred in March 2018 between JG and LG that resulted in JG being charged criminally for assault and assault with a weapon (a belt). The charges stemmed from JG spanking LG as a form of discipline. [ 14 ] In response, SS filed an emergency motion on March 22, 2018 seeking sole custody and no contact between LG and JG.

At the same time SS applied to vary the Amended Variation Order of December 2017 pursuant to s. 37 of the Parenting and Support Act, 1989 RSNS c. 160, seeking changes to custody and parenting time arrangements as well as child support, table amount and special expenses and retroactive child support. [ 15 ] In April 2018, an Interim Varied Order was issued in response to SS’s emergency motion. All clauses related to parenting time in the December 2017 Amended Variation Order were suspended and JG was to have no parenting time with LG, supervised or otherwise, until further Order of the Court.

Further, JG was no longer permitted to attend any of LG’s appointments and both parties were prohibited from discussing the matter on social media including Facebook, Twitter, or any other format. [ 16 ] In September 2018, a review hearing was held resulting in a further Interim Varied Order granted October 5, 2018 which confirmed the suspension of the December 2017 order as it related to parenting time but allowed JG to have parenting time with LG at the discretion of the Minister of Community Services.

At that time, the Minister of Community Services took the position that JG’s parenting time should be supervised. The prohibition against JG attending at LG’s appointments was continued and the Court again stated that neither party was to discuss the matter on social media. [ 17 ] In May 2019, JG was found guilty of assault and not guilty of assault with a weapon. In August 2019, JG was sentenced to a year’s probation. [ 18 ] In January 2020, the parties participated in a Settlement Conference which resulted in a Varied Consent Order being issued with the support of the Minister of Community Services.

Both parties were represented by Counsel at the Settlement Conference and agreed to the following terms: (

a) SS would continue to have primary care of LG. (

b) JG would have unsupervised parenting time with LG on a two-week rotating schedule: Week One – Sunday from noon to 7 pm Week Two – Friday afterschool until Sunday at 6:30 pm. (

c) JG would have any other reasonable access as the parties could agree upon and a right of first refusal for childcare. (

d) JG was to be informed and entitled to attend any of LG’s medical appointments but could not bring third parties to these appointments. (

e) Child support was set at $358 per month based on JG’s annual income of $42,000. (

f) The matter was to return for further review in April 2020. [ 19 ] The matter did not proceed for Review in April 2020 because court proceedings were suspended due to Covid-19. At the Review Hearing rescheduled to October 2020, it was clear that the parties were no longer in agreement. JG indicated an intention to represent himself going forward. SS continued to be represented by Counsel. [ 20 ] On or about September 2020, LG began to refuse to spend overnights with JG.

At a November 2020 pretrial conference, both SS and JG consented to the preparation of a Voice of the Child Report. [ 21 ] The matter was heard on June 14 – 18, 2021. In addition to SS the Court heard from SS’s mother, daughter, and partner. In addition to JG, the Court heard from YT, JG’s former partner. The Court also heard evidence from Craig Besaw, a counsellor with Family Services of Eastern Nova Scotia, Kelsey Turner, a Child Protection Worker with the Minister of Community Services, S.C., Principal, Patricia Swan, author of the Voice of the Child Report and Dr.

Hamden, LG’s pediatrician. [ 22 ] The purpose of the review hearing was to finalize parenting arrangements and child support. Given the matter was one of review, there was no need to establish change in circumstances.

Position of the Parties SS [ 23 ] SS is seeking primary care of LG as well as final decision-making authority. She is agreeable to JG having parenting time every second weekend, plus such other parenting time as the parties can agree upon, taking into consideration the wishes of LG.

In support of her position SS argues: • LG is almost 13 years old and has clearly expressed, through a Voice of the Child Report, a preference to live primarily with her and to have authority to decide whether to spend overnights with his father. • LG has been in her primary care since the parties separated in 2013 except for a brief period of approximately 10 months (August 2017 – March 2018) when there was a week about shared parenting arrangement in place. • From March 2018 to January 2020, JG’s parenting time with LG was severely limited, first being prohibited and then restricted with supervision because JG was criminally charged and convicted of assaulting LG. • LG’s needs have been appropriately met while in her primary care and she has been the most emotionally stable parent to LG. • JG’s discipline of LG has been inappropriate and JG has demonstrated a lack of insight on the impact of violence upon his relationship with LG. • Communication with JG is not productive or cooperative and at times is inappropriate, aggressive, and belligerent.

JG [ 24 ] JG is seeking shared custody and a reduction in child support accordingly. He is asking for a specified holiday schedule. In support of his claim for shared custody, JG argues: • LG’s true preferences are not reflected in the Voice of the Child Report. LG has been unduly influenced by SS and SS provided misinformation to the author of the report.

Furthermore, LG is too young and immature to put forth an opinion in relation to parenting time. • SS has a permissive parenting style that results in poor parenting decisions that negatively impact LG. • SS has been mismanaging LG’s medical and educational issues. • SS is unable to effectively manage LG’s behavioural issues. • SS has not been forthright with information provided to third party professionals involved with LG. • SS engages in services for LG only after JG forces the issue. • JG is better able to make parenting decisions that support LG’s overall well-being through routine and structure.

LG benefits while in JG’s care because JG offers consistency and discipline. • SS has been alienating LG against JG. SS has wrongfully excluded JG from LG’s appointments and other pertinent information. SS has encouraged LG to speak poorly of JG and to limit the time LG spends with JG. • JG disputes that the parties are unable to communicate. He argues they had been communicating well during the summer of 2020 and SS stopped cooperating in retribution for JG making child protection referrals about SS. • LG would benefit from being able to spend the same amount of time with each parent.

Issues [ 25 ] What parenting arrangement is in the best interests of the child? [ 26 ] What is the appropriate child support payable? Issue One: What parenting arrangement is in the best interests of the child? Legislation and Law [ 27 ] The applicable legislation is the Parenting and Support Act , 1989 RSNS c. 160, (the Act ) which states the paramount consideration in any parenting issue is the best interests of the child: 18

(5) In any proceeding under this Act concerning custody, parenting arrangements, parenting time, contact time or interaction in relation to a child, the court shall give paramount consideration to the best interests of the child.

Section 18(6) of the Act states that the Court shall consider all relevant circumstances when determining the best interests of the child,including: (

a) the child’s physical, emotional, social and educational needs, including the child’s need for stability and safety, taking into accountthe 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 parentor 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 stageof 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 inthe 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 issuesaffecting the child; and (

j) the impact of any family violence, abuse or intimidation, regardless of whether the child has been directly exposed, including anyimpact 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 suchco-operation would threaten the safety or security of the child or of any other person. [28] Section 18(8) of the Act states that in making an order concerning parenting arrangements the court shall give effect to theprinciple that a child should have as much contact with each parent as is consistent with the best interests of the child, the determinationof which includes a consideration of the impact of any family violence, abuse or intimidation. [29] The list of best interest factors is non-exhaustive.

The weight to be attached to any factor varies from case to case dependingon the circumstances: Foley v. Foley, (1993) (NS SC), 124 NSR (2d) 198. [30] In determining what is in the child’s best interests, I must compare and balance the advantages and disadvantages of eachproposed parenting scenario: D.A.M. v. C.J.B., 2017 NSCA 91. [31] The best interest test is the only test and parental preferences and rights play no role in the determination of a child’s bestinterests: Young v. Young, (SCC), [1993] S.C.J.

No. 112, para. 202. [32] Parents do not have a right to shared parenting; the paramount consideration is the child’s best interests: Kaiser v. Bezanson,2021 NSFC 2. [33] Courts have identified effective communication and cooperation between parents as essential components of shared parenting. Shared parenting is usually not appropriate when parenting relationships are rife with mistrust, disrespect, poor communication, andwhere there is little hope that the situation will change: PM v. MW, 2021 NSSC 72. [34] Justice Jollimore in John v.

John, 2012 NSSC 324, spoke of the role and the value of a Voice of the Child Report stated atparas 19 and 20: [19] A children’s wish report is one way of providing information about the children’s views to me. It does not allow the children todetermine what their parenting arrangement will be.

It does allow someone who is far more skilled than I, to elicit the children’s wishes,to assess whether children have been coached, manipulated, coerced or subtly influenced in their views, and to identify the basis for theirviews: whether their preference is genuine, mature and appropriate or motivated by inappropriate reasons. [20] I conclude that Mr. John has shown that a professional opinion is needed. Children’s wishes are a relevant factor to be considered indetermining their parenting arrangement, according to Foley, (NS SC).

A children’s wish report will satisfy the needfor unbiased information about the children’s preferences. It will also provide unbiased information about what motivates thosepreferences and whether their views are uninfluenced. This information is not otherwise available. [35] The Court in Decaen v. Decaen, 2013 ONCA 218, at para 42, provided the following guidance in assessing child’s wishes: [42] In assessing the significance of a child's wishes, the following are relevant: (

i) whether both parents are able to provide adequatecare; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (

v) the maturitylevel; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence ofthe parent(

s) on the expressed wish or preference; (

x) the overall context; and (xi) the circumstances of the preferences from the child'spoint of view.

[36] I have considered the case law as put forth by counsel for SS and by JG, particularly, Gibney v. Conohan, 2011 NSSC 268. JG also asked me to consider the findings in Younker v. Smith, (NS SF), P.L.S. v. C.A.T.L., (NS NF), Jakeman v. Gaetz, 2004 NSSF 5 and Rhyno v. Rhyno, 2004 NSSF 61. [37] Counsel for SS argues that portions of JG’s post-trial submissions reference information not adduced in evidence at hearingand are not, therefore, properly put forth for my consideration.

My findings must be evidence based and any reference to information notadvanced at hearing through affidavit or viva voce evidence will not inform my analysis. Findings and Decision Physical, emotional, social, and educational needs – Past Care and Future Care. [38] An analysis of what is in LG’s best interest is anchored in an appreciation of his physical, emotional, social, and educationalneeds, keeping in mind his age and stage of development. I had the benefit of hearing from Dr. Hamden, LG’s pediatrician, S.C., theprincipal at LG’s school, and Mr.

Craig Besaw, LG’s counsellor at Family Services of Eastern Nova Scotia, all of whom were able toprovide some insight into LG’s situation. [39] LG turned 13 in July 2021. He is heavily involved in online gaming and making videos on TikTok. LG sometimes engages inthese activities late into the night and early morning. He also enjoys boxing. [40] LG has been diagnosed with a constitutional growth delay. He is shorter and weighs much less than other boys his age. Abone age analysis demonstrated a two-year delay in LG’s physical development.

This biological delay does not correspond with anymental developmental delay. [41] LG has been diagnosed with ADHD and is prescribed the medication Vyvanse as treatment for this condition. LG hasdemonstrated some challenging behavioural issues. He is troubled with anxiety and is prone to temper tantrums. [42] In this last year LG has missed a significant amount of school time. LG’s report cards demonstrate that his performance atschool has diminished and that this issue might be improved if LG completed and submitted school assignments on a timely basis. [43] LG has been attending counselling with Mr.

Besaw since January 2021. Due to Covid-19 health restrictions, counselling hadbeen over the phone and Mr. Besaw is of the opinion that in-person sessions might be more productive for LG who was described asbeing not overly engaged on the phone. Mr. Besaw could not testify as to LG’s previous counselling experiences. [44] In analyzing LG’s past care, I accept SS’s assessment that she has been LG’s primary caregiver for the majority of time, postseparation. [45] JG claims that LG’s current challenges stem, at least in part, from SS’s shortcomings as the primary caregiver to LG.

JGargues: • SS does not do enough to enforce a bedtime for LG, taking a sleeping pill herself at 10 pm without proper regard orresponse to the fact that LG is online gaming or on TikTok into the late night/early morning. • SS is not diligent enough in ensuring LG gets to school and completes his homework assignments on time. • LG’s behavioural issues present when LG is in the care of SS and there are no repercussions or discipline when LG acts upin SS’s care. LG does not present with behavioral issues while in JG’s care. • SS take efforts to address LG’s problems only when JG has shed light on the issue.

For example, JG says SS engaged withLG’s school only after JG raised concerns about LG’s school attendance and performance. [46] I do accept that LG’s truancy is concerning and that LG’s school performance could be improved if LG kept on top of hisassignments and homework as recommended by several of his teachers in his report card. LG is missing too much school. There may bemany reasons for this but keeping very late nights engaged in screen activities is not helping with LG’s school attendance orperformance. JG is correct in this regard. [47] SS is aware that LG is missing too much school.

SS acknowledges that she struggles with getting LG to bed at an appropriatetime, noting that LG will sometimes get up without her knowledge after she has gone to sleep. SS points out that she has been workingwith the school to develop strategies to improve LG’s attendance. [48] I give significant weight to the evidence of S.C., a disinterested third party with experience in the education system.

SCtestified that SS communicates with the school on a regular basis, that LG has been referred to an attendance support worker as a result ofa program planning decision (not necessarily instigated by either parent) and that SS is engaged with the school in an effort to addressLG’s attendance issues. SC was more moderate than JG in her assessment of the degree to which LG’s grades have declined saying shehad no significant concern in this regard. SC noted LG to be a clean, polite, well-liked child who was a joy to have in school. [49] I find that there is room for SS to improve in meeting LG’s educational needs.

I also acknowledge that the situation has notalways been easy for SS to navigate given LG’s behavioural issues. JG has reason to be concerned but, although SS has been challenged,I find SS has not been derelict in her duty to meet LG’s educational needs. [50] LG is treated by a pediatrician, Dr. Hamden, in relation to his medical issues. Dr. Hamden assumed treatment of LG inDecember 2020, taking over for LG’s previous pediatrician who had left the area. JG is of the opinion that Dr.

Hamden is ill-informedabout LG’s medical issues, that the source of that misinformation is SS, and that this has negatively impacted upon LG’s medical care. [51] I give significant weight to the evidence of Dr. Hamden, a disinterested third party with experience in pediatric care.

[ 52 ] JG cited the results of an online BMI calculator as evidence that LG’s weight was critically low. Dr. Hamden cautioned against putting stock into any such online tool noting such tools are not peer-reviewed and the results must be subject to appropriate

interpretation. [ 53 ] Dr. Hamden testified that being underweight does not equate to being unhealthy or malnourished. Dr. Hamden reviewed LG’s growth chart over the past four years with the Court. He testified that although LG’s height and weight are below average, the fact that LG has been growing at a steady pace over time, albeit in the low percentile, mitigates any pressing medical concern. [ 54 ] In response to JG’s suggestion that LG was engaging in excessive amounts of screen time and that there should be no screen time between 1-2 hours before bed, Dr. Hamden was cautious and qualified in his response.

Dr. Hamden explained his assessment would need to be tailored to the situation of a particular child. [ 55 ] JG questioned Dr. Hamden at length about the contents of Dr. Hamden’s medical notes. JG was concerned about the inaccuracies contained therein and how they may have impacted upon Dr. Hamden’s assessment of LG. Dr. Hamden acknowledged that the source of the information on the passages upon which he was being questioned would have been SS. [ 56 ] JG argues that Dr. Hamden’s notes are proof that SS lied to Dr.

Hamden when she reported that LG missed school because of meltdowns at home following LG’s interactions with JG. JG is of the opinion that LG misses school because of late night screen play. JG also argues that SS was disingenuous when she reported to Dr. Hamden that a court had ordered that LG visit JG only when LG wants to and that this change in the parenting arrangement has minimized LG’s symptoms. JG takes great umbrage with the statement in Dr. Hamden’s notes: “It seems he [LG] is scared of his father [JG].” [ 57 ] JG challenged Dr.

Hamden on whether inaccurate information provided by a parent as part of a psycho-educational assessment could result in a misdiagnosis of ADHD. Dr. Hamden was confident of the validity of a psycho-educational assessment which he described as objective and extensive. [ 58 ] Dr. Hamden was clear on several occasions during his testimony that he does take information collected during parental interviews at face value when assessing a patient. Dr. Hamden insisted, however, that this does not end his assessment of a patient. Dr.

Hamden testified that he continues with an independent patient examination that is further informed by his professional experience and medical knowledge. [ 59 ] It is clear JG is very much concerned about LG’s medical care. His concerns, while not misplaced, are somewhat inflated considering Dr. Hamden’s assessment of LG. It is also evident that Dr. Hamden’s notes contain some inaccuracies that are most likely reflective of the information provided by SS to Dr. Hamden. I find it unlikely, however, based on Dr. Hamden’s evidence, that these inaccuracies have negatively impacted LG’s medical treatment.

Furthermore, I accept Dr. Hamden’s testimony that he has no major concerns in relation to LG medical health needs which, according to Dr. Hamden, are being adequately met by SS. [ 60 ] Unfortunately, JG’s determination to prove SS’s failings to effectively care for LG’s needs has effectively limited JG’s ability to provide for LG’s needs in the future. [ 61 ] JG recorded a conversation with Dr. Hamden without Dr. Hamden’s knowledge or permission. JG feels he was justified in doing so because he wanted to document that SS had lied to Dr. Hamden. JG argues it was not illegal to make such a recording. [ 62 ] Dr.

Hamden testified that he found JG’s behaviour in recording their conversation to be unprofessional. As a result of the incident, Dr. Hamden will no longer meet with JG in person or speak with him on the phone. He will only engage with JG in writing. [ 63 ] Dr. Hamden was summoned to Court by JG by subpoena. JG had difficultly reaching Dr. Hamden by phone the week prior to the hearing because Dr. Hamden was out of the office. Eventually, JG attended at Dr. Hamden’s office at the Cape Breton Regional Hospital in person for the purpose of serving the subpoena.

The police were called to attend at the hospital because of JG’s presence there. When questioned about this incident, Dr. Hamden testified that hospital staff find JG to be intimidating and are scared when JG is present at the hospital. In response to JG’s assertion that it was necessary for him to attend in person to serve the subpoena, Dr. Hamden explained that JG could simply have written to him to explain the situation and a time would have been arranged for service. [ 64 ] JG cites concerns about LG’s health.

However, because of JG’s own behaviors JG has severely limited his ability to collaborate with LG’s pediatrician in addressing LG’s medical needs going forward. For example, it would appear, from his questioning of Dr. Hamden, that JG is concerned that the ADHD medication that LG is taking might be further limiting LG’s growth. Dr. Hamden testified that a change in medication can involve trial and error. Achieving success through trial and error is contingent upon effective communication. It is difficult to envision such a productive working relationship between JG and Dr. Hamden given Dr.

Hamden’s testimony, particularly since JG may only communicate with Dr. Hamden through written correspondence. [ 65 ] Tension between JG and third-party service providers is not limited to Dr. Hamden. Principal SC testified that conversations with JG are not always easy and that JG sometimes speaks to her in a disrespectful manner.

She described JG as being very quick to be accusatory and described conversations and relationships with JG as being challenging. [ 66 ] JG had Principal SC acknowledge that some friction arose over a dispute about whether JG’s financial information was properly redacted from a court record JG was required to file with the school and that this dispute was eventually resolved. Despite the reason, the damage was done. [ 67 ] Going forward, it is reasonable to expect that SS and JG will continue to encounter issues or challenges in their efforts to address LG’s physical, emotional, social, and educational needs.

Parents need to be able to work collaboratively not only with each other but also with third party service providers. This necessitates the ability to forge productive and positive professional relationships that are grounded in trust and respect. Good working relationships and effective communication are especially important in this case given LG’s particular circumstances. Unfortunately, JG has demonstrated difficulty in developing and maintaining these sorts of relationships which impedes JG’s ability to effectively meet LG’s needs going forward.

Ability to Communicate and Cooperate [ 68 ] SS and JG are not able to communicate and cooperate on issues affecting LG. They do not agree on core issues such as discipline, education, or how best to address LG’s emotional and physical needs. Neither is equipped to effectively navigate the divergence. There is no capacity to compromise. Communication, as evidenced by the multitude of text messages tendered by JG, is very often disrespectful and largely unproductive.

The inability of these parties to communicate and cooperate has been severe enough to attract the attention of child protection authorities. [ 69 ] JG cites a period over the summer of 2020 when the parties were getting along and communicating well. JG performed a series of good deeds and favours for SS during this time including making her birdhouses and a firepit and delivering lobsters to her. JG involved LG in some of those endeavours. [ 70 ] Unfortunately, the peace was short lived.

JG argues that SS ended any effort to communicate and cooperate with him after he made a child protection referral over his concern that LG was being exposed to marijuana plants as evidenced by TikTok videos that LG had posted online. [ 71 ] I find that SS’s initial response to JG about his concerns over LG’s exposure to marijuana plants was somewhat flippant and dismissive. SS was also extremely upset by JG’s referral to child protection to which she had an intense reaction (screaming and crying).

Furthermore, SS was somewhat evasive in her explanation about how LG encountered the marijuana plants in the first place. [ 72 ] The incident was unfortunate and likely not the best use of judgement on SS’s behalf. The fallout, however, was not proportionate to the concern. Gone were the brief days of cooperation and communication between JG and SS. Instead of birdhouses and lobster deliveries, the situation denigrated to multiple child protection referrals and an investigation which JG must have realized would necessarily involve LG being interviewed. [ 73 ] Social Worker Kelsey Turner testified. Ms.

Turner is responsible for intake and investigation with the Department of Community Services, Child Welfare. Child Welfare case file notes from September 2020 to December 2020 were filed with the Court. In my assessment, these notes offer insight into the level of cooperation and communication between SS and JG.

It is dismal. [ 74 ] The notes reveal multiple calls and emails from JG who made several referrals regarding the content of LG’s TikTok videos, (marijuana plants, shooting of an airsoft gun and use of protein powder), LG’s late-night gaming and posting of TikTok videos, and LG’s missing school. [ 75 ] From Ms. Turner’s notes and testimony, it is evident that the relationship between Ms. Turner and JG was tense. While this is not a terribly uncommon dynamic when child protection is involved in a family, it is indicative of a trend with JG. [ 76 ] It was apparent from his examination of Ms.

Turner that JG believes SS has been disingenuous in her communications with Child Welfare and that Ms. Turner has been unduly influenced by SS. JG also believes the response from Child Welfare was insufficient in addressing the protection concerns he raised. [ 77 ] JG further argues that it was inappropriate for Ms. Turner to tell LG that LG did not have to go anywhere he did not want to go and that no one could force him to do so. Ms.

Turner testified that she would have qualified this type of statement with the proviso “if it is not safe to do so,” even if she did not explicitly say so in her notes. [ 78 ] I find, from my review of the case notes, that Ms. Turner did communicate to SS, JG and LG that LG did not have to visit with JG if LG did not want to, without the proviso “if it is safe to do so.” In relation to her October 15, 2020 interview with SS, Ms. Turner noted that she spoke with SS as follows: “I advised that LG doesn’t have to go anywhere he doesn’t want to go, that no one can force him.

I discussed the importance of having LG’s voice heard in court. I advised at LG’s age, no one can force him anywhere. She (SS) asked if we would “back her” if JG flips out because of this and I advised we would. I reiterated that LG can not be forced to go anywhere.” [ 79 ] In her October 21, 2020 discussion with JG, in response to his concern that SS was not following the Court Order, Ms. Turner noted: “I advised I did tell them both he (LG) didn’t have to go if he didn’t want to. I advised you cannot force a 12-year-old child to go anywhere, including to a parent’s home.

I advised that he (LG) deserves to have his voice and opinion heard.” [ 80 ] It was only after the November 24, 2020 meeting with her supervisor that Ms. Turner was more qualified in her notes: “Supervisor Scott Clarke and I met for supervision on this date. He reviewed his conversation with me that he had with JG and I reviewed all my recent involvement since last supervision.

It was determined I would speak with LG at school, encourage him to seek access with both parents, encouraging a positive relationship with both parents.” [ 81 ] The case notes reveal the child protection investigation substantiated both risk of physical harm – inadequate parenting skills (exposure to marijuana plants) and risk of emotional abuse/harm (resulting from the high conflict between LG and SS). A decision was made by the Minister to close the matter at the intake stage.

The Minister made decisions knowing there was an Order in place between SS and JG regarding the parenting of LG and that the parties were actively engaged in private litigation before the Courts. If the Minister wants the Courts to be effective in dealing with high conflict parenting files through private litigation, due respect must be afforded by the Minister to the court process and court orders. [ 82 ] I am satisfied that the Minister fully and properly investigated the protection concerns raised by JG.

As indicated previously, I find SS’s initial reaction and explanation about the marijuana plants to be somewhat lacking but I accept that SS ultimately addressed the protection concern. I find JG’s concern about LG shooting an airsoft gun (as recorded on a TikTok video) to be exaggerated. The

Minister very clearly cautioned both SS and JG to not speak negatively about each other to LG and that LG was not to be made privy to adult matters such as child welfare and court proceedings. Impact of Violence [ 83 ] JG was convicted of assaulting LG. By JG’s own admission he spanked LG as a form of discipline. JG has expressed regret over the incident.

SS argues that JG has minimized the incident and demonstrated a lack of insight into the impact of the event when JG admitted, during cross-examination, that he might repeat the behaviour under similar circumstances. [ 84 ] I find that while JG accepts responsibility for the incident, JG has also expressed a degree of justification for his actions. The comments made by JG in a Facebook video (October 2020) entered into evidence by consent are informative.

JG explained that he “cracked LG in the arse” because LG “kicked him in the nutsack.” JG lamented parental inability to disciple children as the reason “we got a bunch of self-entitled little shits that tell us how we are going to live our lives.” [ 85 ] While JG has expressed frustration over SS’s lack of discipline, I am not persuaded that JG would be any more effective in disciplining LG. [ 86 ] I give deference, however, to the fact that the parties reached an agreement in January 2020 that provided JG with meaningful parenting time without supervision.

The parties must have felt this arrangement was appropriate even after the 2018 incident. Furthermore, SS is asking the Court to limit JG’s parenting time as laid out in the 2020 Consent Order only to the degree that allows LG discretion on spending overnights with this father. Willingness to support the development and maintenance of the child’s relationship with the other parent. [ 87 ] JG argues that SS has alienated LG from him. However, JG also argues that he has a positive and loving relationship with his son.

I am persuaded by the evidence provided by JG that JG does have a close relationship with LG and that LG generally enjoys spending time and engaging in activities with his father. [ 88 ] I do not accept that SS has alienated LG from JG. I believe the level of conflict between JG and SS has impeded their respective abilities to limit LG’s exposure to their disputes. Both parents must come to realize that the behaviour of the other never justifies exposing LG to the conflict.

I agree that SS had not always presented JG in the best light but JG must also take responsibility for his own behaviours and their impact upon his relationship with LG. [ 89 ] JG broadcasted a lengthy Facebook video in October 2020 in which he discussed, with a fair amount of detail, the history of his involvement with the courts and child protection as part of his ongoing conflict with SS about parenting LG. The video was posted publicly and at one point had 1800 views. JG indicated he was saving the video to show LG when LG gets older.

It is reasonable to expect that LG could access the video well before then. [ 90 ] The theme of the video, as presented from JG’s perspective, is that JG’s parental rights have been violated and one day LG will be made aware just how aggrieved JG has been, by SS and by the system, and then JG will be vindicated. The content of the video does not suggest to me a willingness on the part of JG to support LG’s relationship with SS.

Posting such a video online was disrespectful and hurtful to both SS and LG and JG ought to have known that the content of the video would be detrimental to LG and his connection to his parents whether LG viewed this content as a young person or an adult. Wishes of the Child [ 91 ] The Court received a Voice of the Child Report prepared by Ms. Patricia Swan. In the report LG expressed a desire to be able to choose whether to spend overnights with JG. LG was twelve and a half years old when the report was prepared. [ 92 ] JG wants me to discount the Voice of the Child Report. He argues that SS lied to Ms.

Swan and this negatively impacted the findings in the report. JG further contends that LG was inappropriately influenced by SS in expressing his opinions and that LG is too young and immature to express any such view at any rate. [ 93 ] JG takes umbrage at the reasons outlined in the report as to why LG wants to be able to choose whether to overnight at his fathers. Ms. Swan reported there was an incident when LG witnessed JG “being close” with a female friend and that LG said the incident ‘frightened” and “upset” him. JG denies that LG was frightened by this incident.

JG believes that LG’s comments are reflective of undue influence from SS and this is evidenced by SS’s report to child protection that LG was “traumatized” by the event in question. [ 94 ] JG does not deny there was an incident during which JG was entertaining a female guest and that LG expressed discomfort about the situation. There is a fair amount of dispute over the detail but I am satisfied that LG did not have a positive reaction to the situation.

In his Facebook video JG acknowledged that an incident did occur with the comments: “I refuse to walk on eggshells; I refuse to have my child dictate my life; I refuse to have no personal life.” I agree with JG’s assertion that LG was not traumatized by the event.

I do find, however, that LG was bothered by the situation and this is likely influencing LG’s desire to have a choice about whether to overnight with JG. [ 95 ] Based on my review of the report, and in light of all of the evidence presented, I am satisfied that LG is mature enough to express an opinion and that the opinion he has put forth is his own opinion, not unduly influenced by either parent. I am satisfied that Ms.

Swan accurately captured LG’s wishes despite any inaccuracies that are reflected in her report, including the number of school days missed, notwithstanding the source of these inaccuracies, which was likely SS. I make these findings because: • Ms. Swan took efforts to solicit information from LG in an appropriate manner. • The information in the report was balanced. LG reported wanting to visit with JG. LG spoke of talking with JG at times for an

hour or more on the phone but also of feeling on edge when he and JG disagree or argue. The report reflected that LG wants to spend time with JG on motorbike or doing other activities they enjoy together. • LG is not resisting contact with JG; he simply wants to have a choice over whether he spends the night. • The preference expressed by LG in the report is consistent with LG’s behaviours.

At times LG has refused to spend the night with JG and has asked to be returned to the home of SS. • The comments made by LG are consistent with comments made by LG to Child Protection worker Kelsey Turner. [ 96 ] I will consider the wishes expressed LG as reflected in the Voice of the Child Report along with all the other best interests test factors. The nature, strength and stability of the relationship between the child and each parent or guardian [ 97 ] In my assessment JG is passionate about his son.

He obviously loves LG very deeply and JG is strenuous in advancing his opinions about what he believes is in LG’s best interests. [ 98 ] JG’s intensity, however, is not without some volatility. JG reacted poorly to the Voice of the Child Report and he addressed his displeasure directly with LG. In a text message conversation between JG and LG in the aftermath of the Voice of the Child Report JG told LG he was “done,” that JG would make sure SS had LG full time and JG would no longer be contacting LG.

LG was naturally very upset by his father’s reaction. [ 99 ] No matter how strongly JG felt about the report, he ought not to have involved LG in the matter. Children need stability and security. Emotional consistency and steadiness is critical to healthy relationships. [ 100 ] JG was ordered by the Court on several occasions not to make social media posts about LG. In the Facebook video referenced earlier, JG acknowledged that a judge had warned JG “if I spoke about this then I would lose visitation.” JG acknowledged in the video that his parenting time would likely be suspended.

I note that SS is not asking that JG’s parenting time with LG be suspended, only that LG have a voice in the matter. JG, however, was willing to risk the stability of his parenting time with LG in order to make a public statement on the issue. Decision on Parenting [ 101 ] I have carefully considered the legislation, case law and evidence. A shared parenting arrangement is not feasible for this family and would not be in LG’s best interests. LG has medical, educational and behavioural issues that need to addressed. JG has failed to demonstrate that SS has been derelict in her parental duties.

JG has, however, demonstrated behaviours and attitudes that significantly limit his own ability to effectively meet LG’s needs and, at times, impede SS’s ability to do so. It is not in LG’s best interests that JG be permitted to attend at LG’s appointments and SS must be given final decision making authority in order to effectively and efficiently attend to JG’s care. Although LG’s exposure to his parents conflict has not been positive, I am satisfied that JG and LG ultimately enjoy a loving relationship which should be fostered.

JG must respect LG’s wishes about spending overnights and seek to navigate a balance between providing LG with discipline and structure while respecting his agency and autonomy.

I am satisfied that the following parenting arrangement is in LG’s best interest: • SS will have primary care of LG. • JG will have parenting time with LG every weekend from Friday after school or approximately 4 pm until Sunday after supper or approximately 7 pm. • JG will have such other parenting time with LG as the parties may agree upon. • The holiday access scheduled as laid out in the 2017 Varied Order, with some modifications, will continue.

For the sake of clarity it is repeated here: o In 2021 and in the odd-numbered years thereafter, JG will have LG from December 23 at 12:00 noon until December 24 at 4:00 p.m. SS will have LG from December 24 at 4:00 p.m. until December 26 at 12:00 noon. JG will have LG from December 26 at noon until December 27 or any longer period as agreed upon, at which point the regular

schedule would resume. o In 2022 and in even-numbered years thereafter, SS will have LG from December 23 at 12:00 noon until December 24 at 4:00 p.m. JG will have LG from December 24 at 4:00 p.m. until December 26 at 12:00 noon. SS will have LG from December 26 at noon until December 27 or any longer period as agreed upon, at which point the regular

schedule would resume. o The parties will alternate Easter between them. In 2022 and in the even-numbered years thereafter, SS will have LG from Easter Eve at 6:00 pm until 4:00 pm on Easter Sunday, at which point the regular

schedule would resume. o In 2021 and in the odd-numbered years thereafter, JG will have LG from Easter Eve at 6:00 pm until 4:00 pm on Easter Sunday, at which point the regular

schedule would resume. March Break will be spent with the parent whose week March Break falls within, unless alternate arrangements are made that are mutually acceptable to both parties. o LG will spend Mother’s Day with SS and five hours on her birthday if those days do not fall within SS’s parenting time o LG will spend Father’s Day with JG and five hours on his birthday if those days do not fall within JG’s parenting time

[ 102 ] LG may exercise discretion in deciding whether to spend overnights with JG.

SS will encourage LG to overnight with JG. [ 103 ] SS will share pertinent information about LG with JG but SS will have final decision-making authority in relation to LG. [ 104 ] SS is encouraged to invite JG to attend medical, education and other major appointments pertaining to LG but JG does not have right of attendance unless all parties are in agreement that JG’s participation is appropriate and in LG’s best interest. [ 105 ] Neither party shall discuss this matter on any social media or other media platform including but not limited to Facebook, Twitter, TikTok or any other format. [ 106 ] Any breach reported to the Court may be addressed by the Court in a manner deemed appropriate including but not limited to penalties, adjustment of parenting arrangements, costs, or contempt.

Issue Two: What is the appropriate child support payable? Legislation and Law Table Amount of Child Support [ 107 ] The Nova Scotia Provincial Support Guidelines (the G uidelines) made under

Section 55 of the Parenting and Support Act , supra , set out the process for determining income for child support purposes. Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income listed under the heading “Total income” in the Canada Revenue Agency’s T1 General form, adjusted in accordance with

Schedule III. The presumptive rule is the amount of child support for a child under the age of majority will be the table amount (s. 3 of the Guidelines ) Medical and Dental Insurance Premiums [ 108 ]

Section 6 of the Guidelines states that in making a child support order, where medical or dental insurance coverage for the child is available to a parent through his or her employer or otherwise at a reasonable rate, the court may order that coverage be acquired or continued. [ 109 ]

Section 7 of the Guidelines provides direction on how special expenses and extraordinary expenses should be shared.

Health insurance premiums attributable to the child, at issue in the case at hand, are considered special expenses. [ 110 ] When deciding whether to award an amount to cover a special expense under s. 7 of the Guidelines , I must consider: • Is the expense necessary in relation to the child’s best interests? • Is the expense reasonable in relation to the means of the parents and the child and the family’s pre-separation spending pattern (s. 7(1))? • What contribution, if any, should the child make? • What tax deductions or credits, if any, are available for this expense? Olaitan v.

MacDougall, 2014 PECA 5 , para. 15 [ 111 ] Whether there should be a contribution to a s. 7 expenses, and in what amount, lies within the discretion of the Court.

Retroactive Support [ 112 ] Section 37(1) of the Parenting and Support Act, supra , authorizes the Court to make a retroactive order for support: [37] The court, on application, may make an order varying, rescinding or suspending, prospectively or retroactively, a support order or an order for custody, parenting arrangements, parenting time, contact time or interaction where there has been a change in circumstances since the making of the order or the last variation order. [ 113 ] The Supreme Court of Canada considered the issue of retroactive support in S.(D.B.) v. G.(S.R.) , 2006 SCC 37 , Michel v.

Graydon , 2020 SCC 24 , and Colucci v. Colucci , 2021 SCC 24 , and identified several situations where retroactive child support may be appropriate: • Where there has already been a court order for child support, but the support paid has been inadequate. For example: the payor’s income has changed materially since the original order but the amount paid has not changed. • Where there has been a previous agreement between the parents, but circumstances are now different.

While agreements should be given considerable weight, where the circumstances have changed or were never as they appeared at the time of the agreement, the court can order retroactive awards. • Where there has not already been a court order for child support. [ 114 ] There are four key factors to consider before making a retroactive child support order: • The reason why support was not sought earlier.

• Conduct of the payor parent. • Circumstances of the child at the current time and at the time the support should have been paid. • Hardship caused by the retroactive award to the payor. DBS at paras 94-116, Michel at paras 29-35, 109-126 [ 115 ] The Supreme Court of Canada summarized the principles to apply when considering a retroactive increase in child support in Colucci , para 114 : [114] a. The recipient must meet the threshold of establishing a past material change in circumstances.

While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers. b.

Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor. c. Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice. d.

The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The DBS factors continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income. e. Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified.

The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines. Position of the Parties [ 116 ] SS is seeking prospective child support in the amount of $473 per mouth and retroactive child support to March 22, 2018 in the total amount of $8,530. She does not agree that she should pay half of JG’s health insurance premiums attributable to LG and argues that each party should bear their own costs in this regard. [ 117 ] JG argues against the payment of retroactive child support.

He argues the issue of arrears is res judicata because: • The hearing judge in April 2018 dealt only with parenting issues, not child support, and SS did not appeal the April 2018 Order. • The Consent Order issued on January 22, 2020 following a Settlement Conference was based on an estimation of JG’s income at $42,000 which, although lower than JG’s actual income, was not an intentional misrepresentation. [ 118 ] JG is asking that SS pay half of the health insurance premiums attributable to LG, or that the Court take into account his payment of these premiums in the amount of $85.37 per month and deduct this sum from JG’s monthly child support payment.

Findings and Decision [ 119 ] Child support will flow from the parenting arrangement and JG is required to pay the table amount based on his income. JG’s gross annual income for 2020 was $55,666 and JG must pay SS the amount of $473 per month in child support commencing the first day of July 2021 and continuing every month thereafter. [ 120 ] SS’s income in 2020 was $38,864.39. JG asked me to consider imputing income to SS in relation to an online business. There was insufficient evidence for me to do so.

JG has asked me to take into consideration the Child Tax benefit and GST credit that SS receives when considering JG’s s. 7 claim. In 2020, SS received $5,618.33 in Child Tax benefits and $755.00 as a GST credit. JG received 718.38 in a GST credit in 2020. [ 121 ] JG cites Ryhno v. Ryhno , supra , at s. 7(3) of the Guidelines as authority that the Court must take into consideration “subsidies, benefits or income tax deductions or credits” when assessing SS’s income. As clarified by Justice Chaisson in Nickerson v.

Ammouri , 2015 NSSC 344 , s. 7(3) directs the court to take those subsidies, benefits, deductions or credits into account as they relate to the expense being claimed . [ 122 ] GST credits and child tax benefits are not considered income for the purpose of allocating s. 7 expenses. However, these credits and benefits may be included in an assessment of “means” under s. 7(1) of the Guidelines . I am prepared to take into consideration the $5,618.33 SS received in child tax benefits when assessing “means” as it relates to JG’s request that SS contribute toward the s. 7 cost of his health insurance premiums.

Both SS and JG each received a small GST credit that does not factor significantly in my analysis. [ 123 ] In response to JG’s claim for contribution towards health insurance premiums, SS argues that each party should bear their own costs in this regard. SS does not have a private insurer but participates in the Pharmacare program. Her testimony was that she has a $1,400 deductible after which the Pharmacare program will cover 80% of prescription costs. There was no evidence before the Court quantifying SS’s actual cost of participating in this program.

[ 124 ] JG provided evidence that the single rate of his Blue Cross premium is $111.28 per month and the family rate is $196.65 per month. The difference per month between the single rate and family rate is $85.37. I am satisfied that the Blue Cross insurance is a reasonable expense taking into consideration what is in LG’s best interests and being mindful of the financial means of both parties. LG has significant health issues and Pharmacare only covers the cost of prescriptions and no other medical or dental costs. The amount claimed is modest and affordable given the parties’ respective incomes.

I direct that the difference between the family rate and the single rate in Blue Cross premiums be split equally between the parties. SS will pay JG $43.00 per month in response to JG’s claim for a s. 7 contribution towards health insurance premiums attributable to LG. [ 125 ] JG did not advance a retroactive claim for s. 7 expenses although it was clear from his argument that JG felt the 2017 Court Order contemplated an equal sharing of such an expense and there was dispute between the parties over SS’s purchase of eyeglasses while she was on JG’s family plan.

I am ordering SS to pay JG $43.00 per month in contribution towards Blue Cross health insurance premiums attributable to LG on a prospective basis only. [ 126 ] SS gave notice to JG of her intention to pursue a variation in child support retroactive to March 22, 2018 on the date she filed her Variation Application.

There was a very obvious change in circumstances in March 2018: the shared parenting arrangement that resulted in a set off calculation of child support was no longer in place and LG was placed in the primary care of SS where he has continued to be since March 2018. [ 127 ] Subsequent to SS filing a Variation Application, there were two Interim Varied Orders issued and one Varied Consent Order reached through a settlement conference. Each of the Interim Varied Orders issued contained a review clause and neither referenced child support directly.

The Varied Consent Order reached through settlement did address prospective child support but was silent on the issue of retrospective child support / arrears. The Varied Consent Order also contained a review clause. [ 128 ] I am satisfied JG knew or ought to have known that the child support award contained in the 2017 Order would be inadequate since it reflected a shared custody arrangement that was no longer in place.

It is unreasonable for JG to expect to continue to rely on the terms of that Order given the significant and obvious change in circumstances. [ 129 ] The fact that the Court did not specifically address SS’s claim for retroactive child support in the two Interim Varied Orders issued in 2018 does not vacate SS’s claim for retroactive child support. Both Orders were interim only and contained review clauses. Given the significant parenting issues that were being presented to the Court during that time, it is not surprising child support issues were deferred.

This deferral, however, does not negate JG’s obligations. [ 130 ] The Varied Consent Order of January 2020 reflects an agreement between the parties. While agreements should be given considerable weight, the Varied Consent Order is silent on the issue of retroactive child support. Furthermore, the Consent Order contains a review date which is indicative of further settlement conversations yet to be had. Also, the agreement was based on income information from JG that turned out to be inaccurate.

Even if JG did not deliberately underestimate his income, LG remains entitled to child support that accurately reflects JG’s ability to pay according to JG’s actual income. JG’s claim that the issue of retroactive child support has already been determined fails and I am prepared to order child support retroactively. JG actual income was as follows: 2017 - $49,307; 2018 - $53,204; 2019 - $53,707 and 2020 - $55,666. [ 131 ] JG had been ordered to pay $118 (set off) pursuant to the May 2017 Order. Pursuant to the January 2020 Consent Varied Order, JG was to pay $1258 a month based on an income of $42,000 for 2019.

Total arrears of child support are calculated as follows: [ 132 ] JG had ample notice of SS’s claim. I am satisfied from JG’s testimony that he has a clear understanding of how child support is calculated and that support will be reflective of income. JG did not advance an undue hardship argument but claims the payment of child support creates a hardship to him. I am not convinced of any such hardship that should deprive LG to the rightful amount of child support to which LG is entitled. SS is successful in her claim for child support arrears in the amount of $8,530 since April 1, 2018.

To negate any financial hardship to JG, arrears will be repaid at the rate of $75 per month until the arrears are repaid in total. [ 133 ] The parties will be enrolled in the Administrative Recalculation Program so that child support can continue to be updated in accordance with JG’s income and with the hope that this program can reduce the conflict between these parties. Conclusion [ 134 ] I ask that counsel for SS kindly prepare an Order that reflects the terms and conditions of this decision.

[ 135 ] Counsel for SS has asked to be heard on costs. Any parties wishing to be heard on costs must file written submission on the issue on or before August 30, 2021. Pamela A. Marche, J. SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: S.S. v. J.G., 2021 NSSC 228 Date: 20210810 Docket: No. 93360 Registry: Sydney Between: S.S. Applicant v. J.G Respondents ERRATUM Judge: The Honourable Justice Pamela A. Marche Heard: June 14, 15, 16, & 17, 2021 in Sydney, Nova Scotia Written Release: July 21, 2021 Erratum Date: Counsel: August 9, 2021 Cassandra Lilley, Counsel for the Applicant, S.S.

J.G., Self-Represented Respondent Erratum: At page 1, paragraph 1 should read as follows: [1] This matter involves a young boy, LG, who turned 13 on July *, 2021.