J. S., Applicant, v. M. S.,, 2023 NBKB 12

2023 NBKB 012 Docket: FDB-158-2020 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF BATHURST BETWEEN: J. S., Applicant, -and- M. S., Respondent, -and- THE MINISTER OF SOCIAL DEVELOPMENT Third party. DECISION BEFORE: Justice Michelle Boudreau-Dumas. AT: Bathurst, N.B. DATE OF HEARING: December 13, 2022. DATE OF DECISION: January 12, 2023.

APPEARANCES: Marie-Josée Poirier, for the applicant; Julie Mallet, for the respondent; Vicky Smith, on behalf of the Minister of Social Development

Summary: Decision-making responsibility (sole or shared) and parenting time (none, supervised or unrestricted) [TRANSLATION] Boudreau-Dumas J. OVERVIEW 1 . J.S. is 34 years old. She lives with her three children in housing subsidized by the New Brunswick Housing Corporation. 2 . The children were all born in […]; D.S. will soon be 10, C.S. nine and T.S. six. 3 . The parties were in a relationship for seven years. Both spouses have defined this relationship as toxic and unhealthy, accusing the other of domestic violence. 4 .

In 2016, the RCMP intervened with this family owing to a fight between the parents and conducted a child well-being check. 5 . The following year, the Minister of Social Development (Minister) received a report that the father had been brusque and verbally abusive with the older son. During the investigation, the RCMP informed the social workers that they had received a complaint of domestic violence in the presence of the children. Criminal charges of assault on J.S. were laid against M.S. 6 . A file was opened, and the family was followed by Child Protection.

There was little progress during this time because the mother refused to participate in the proposed services and the father did not cooperate in the anger management follow-up. 7 . There was violence when the parties separated in late December 2018. The RCMP intervened, and the mother left the home. During the joint investigation with the Minister, it was determined that the mother had been violent with her daughter, C.S., and that there had been domestic violence. 8 . On December 28, 2018, the three children were apprehended and placed in foster care for the following concerns:

a) domestic violence witnessed by the children;

b) possible physical abuse of C.S. by the mother;

c) parents’ inability to provide the children with a stable and stimulating environment;

d) inappropriate language in the presence of the children; and

e) unclean housing and lack of food. 9 . The parents accepted the Minister’s recommendations, and the parties entered into a custody agreement (January 8, 2019, to April 7, 2019) and two custody agreement extensions (April 8, 2019, to October 7, 2019, and October 8, 2019, to December 22, 2019).

A supervisory order (January 8, 2020, to July 6, 2020) was also issued. 10 . Despite M.S.’s request that his children be returned to his care as of March 2019, he agreed to the Minister’s plan attached to the supervisory order, including the following: 9. M.S. will be prohibited from being on the premises where the children, D.S., C.S. and T.S., reside. 10. M.S. must refrain from communicating with or seeing the children, with the exception of supervised visits with the children, D.S., C.S. and T.S.

The duration, frequency, location and level of supervision of the visits will be at the discretion of the Minister, in the best interests of the children. 11 . While the Minister was involved with this family, many services were provided to improve the children’s care and ensure a safe environment without violence for D.S., C.S. and T.S. 12 . Supervised parent-child visits helped maintain the parental bond. In addition, there were parenting skills sessions, anger management follow-ups and individual counselling.

Finally, a psychological and parenting capacity assessment was conducted to better guide the Minister with respect to returning the children to their parents’ care and custody. 13 . At first, J.S. was reluctant to accept the recommended follow-ups. Eventually, she participated in the requested sessions and fully cooperated with the various workers and professionals suggested by social services. There was enough progress for D.S. and C.S. to be returned to their mother’s care and custody in late December 2019. T.S. returned home in January 2020. 14 .

After the children returned home, the mother continued to make progress and improve. The Minister therefore closed the mother’s file on January 15, 2021. 15 . M.S. maintained that he was the sole victim of domestic violence in the couple and denied any responsibility in this regard as well as the repercussions that his behaviour may have had on his children. He claimed to have participated in all of the services provided by the Minister. Furthermore, he did not agree with the interventions of the social workers and the conclusions of the psychologist set out in his report. 16 .

The father’s supervised visits with his children were maintained until December 2019. At that time, C.S. arrived at her mother’s home with different laundry. She had changed after urinating in her clothes. She later told her mother and a social worker that she had been frightened when her father whispered in her ear that he was going to kill her mother and hurt her cat. 17 . M.S.’s visits with his children were suspended for several months. Shortly after they resumed in March 2020, they had to be suspended once again owing to the health restrictions related to the pandemic.

When visits were allowed again, the supervisory order expired. The father stopped cooperating with the social worker assigned to him and requested that his file be closed. 18 . In September 2020, J.S. instituted legal proceedings against her former spouse, requesting legal custody (decision-making responsibility) of the three children and no access (parenting time) or supervised visits for M.S. 19 .

Several months later, the father filed a responding document and claimed full custody (sole decision-making responsibility and parenting time) of all three children and a paternity test for D.S., the oldest child. 20 . The Minister asked to intervene in the legal proceedings between the parties because he had concerns about M.S. 21 . An interim order was issued on April 27, 2021, granting the mother sole decision-making responsibility for the children. The father was allowed to request and obtain information about his children directly from the source.

He was also granted parenting time supervised by an independent party. 22 . Despite this order, M.S. has not seen his children since March 2020.

CREDIBILITY 23 . Before deciding on the issue, I will address the credibility of witnesses. This is an important aspect of any litigation, but particularly in family law. In Rick v. Brandsema , [1] Madam Justice Abella summarized the role of the trial judge as follows: It is inherent in disputes generally, and matrimonial conflicts in particular, that parties have inconsistent versions of the underlying events. It is the trial judge’s job as judicial historian to sift through the record, watch and listen to the parties, and determine which version of disputed events is the most reliable. 24 . In A.(A.) v.

B.(M.) , [2] 2014 NBQB 197 , Wooder J. provided some comments to assist in assessing the parties’ credibility. At paragraph 97, she stated as follows: 97. Assessing credibility is a sifting of nuances, impressions and observations, impacted by such things as a witness’ demeanour, tone and candor, as well as the context of his or her evidence. I have in other decisions referred to Kitely, J’s observations in Passarello v. Passarello , 1998 CarswellOnt 2983 (Ont. Gen.

Div.) and the criteria established by her by reference to “The Law of Evidence in Canada” by Sopinka J., and Lederman, J.: * the reasonableness of the evidence * whether there are contradictions in the evidence (“internal consistency”) * whether the witness’ character has been impugned * personality, demeanour and corroboration (“internal consistency”) * self-interest * powers of observation and recollection * capacity of expression 25 . In L.R. v. A.R. , [3] 2015 NBQB 213 , Ferguson J. provided guidance as to how a court should analyze the credibility of witnesses in contentious family law matters.

At paragraph 73, he stated as follows: [73] In assessing credibility the general rule should be that in order for testimony or evidence to become, or assist in producing a finding of fact or facts, it must bear the marks of plausibility, harmony with other testimony or evidence and inherent likelihood thus according with reason and common sense. These are the touchstones from which the cogency of the testimony or evidence is derived. 26 . In this case, one must choose between M.S.’s version of the facts and that of all the other witnesses. They differ and cannot be reconciled. 27 .

The father maintained that he had been the sole victim of abuse in his relationship with J.S. However, he indicated that, at one point, they had been best friends. The mother acknowledged the toxic and unhealthy nature of their relationship. When social services got involved with her family, she accepted some responsibility for the inappropriate behaviour towards the members of her family. She agreed to anger management therapy and personal counselling. J.S. was offered a follow-up for women who are victims of domestic violence, given the abuse she had suffered from her former spouse.

The mother stated that she continues to be afraid of the father, blocks his communications, has had protective lighting installed at her home, and still has a safety plan in place. 28 . Even though the police and the Minister got involved in connection with the father’s violence and although criminal charges were laid against him with respect to J.S., M.S. still accepts no responsibility in this regard. In short, the interventions of the professionals over the years have not led to any progress or positive results. 29 . I do not believe M.S.’s version.

Instead, I find that he bears greater responsibility for the domestic violence. His position cannot be reconciled with the remaining evidence. J.S.’s version has been corroborated by the conclusions of psychologist Robert Doucet’s report and the testimony of social workers Shirley Lebreton and Camille Arseneau. The progress made by J.S. in terms of her self-confidence and assertiveness leads me to conclude that she was indeed a victim of abuse during her relationship with M.S. 30 .

The father claimed that he had been misinformed and misguided and had received little help from social services when they got involved with his family. The documentary evidence as well as the three social workers’ testimony differs from M.S.’s version. There is nothing to suggest that these independent and professional witnesses did not follow the same procedures with the father as they did with the mother. Once again, M.S. claimed to be a victim and blamed the Minister’s representatives. His allegation of bias is not credible, however, especially since the other witnesses were not cross-examined in this respect.

31 . There was also discrepancy in the evidence concerning the incident involving C.S., the couple’s daughter. After a supervised visit, she revealed that her father had whispered in her ear that he was going to kill her mother and hurt her cat. She was so frightened that she urinated in her clothes. I am well aware that a child’s statements are admissible hearsay and that one must be careful about the weight to be attached to them, but I still attach greater credibility to C.S.’s version of the events than M.S.’s version.

The father’s explanation that he was having fun with his daughter by tickling her and that she had laughed so hard she peed in her pants cannot be reconciled with the remaining evidence. He did not call any independent witnesses to corroborate his version of the events, even though two workers were present during the visit. Moreover, his theory cannot be reconciled with the fact that his daughter had not just let a few drops leak but had completely wet her pants out of fear. 32 . M.S.’s position in his responding document also contradicts his position at the hearing, which puts his credibility in doubt.

On the one hand, he stated that he wanted a paternity test for his oldest son, D.S. On the other hand, he confirmed in his affidavit and during his testimony that D.S. is his son. When M.S. filed his court proceedings, he asked for full custody (sole decision-making responsibility and parenting time), even though he had not seen his children for almost a year. His position is thus difficult to reconcile with reality. The same applies to his testimony when compared to the evidence of the other witnesses. ISSUE 1 .

What parenting order should be issued (sole or shared decision-making responsibility) and whether M.S. should be granted parenting time (supervised or unsupervised) owing to the role each parent has adopted in relation to the care of the children, the parties’ progress in their parenting skills, and the role of domestic violence. LAW 33 . The legislative framework for making a parenting order, including decision-making responsibility and parenting time, is found in

section 52 of the Family Law Act . [4]

Section 53 [5] deals with parenting time, while decision-making responsibility is dealt with in

section 54 . [6] 34 . Subsection 50(1) [7] of the Act codifies the Supreme Court of Canada’s decision in Young v. Young [8] by instructing the Court to take into consideration only the best interests of the child in making a parenting order. 35 . The best interests of the child are now defined in subsection 50(2) [9] of the Family Law Act . Subsection 50(3) [10] further provides that the Court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well- being. 36 . I will now review the relevant factors of the definition of the best interests of the child in relation to the facts of this case. Best interests of the child : (

a) The children's cultural, linguistic, religious and spiritual upbringing and heritage, including First Nations upbringing and heritage 37 . Since the pandemic, the children have been educated at home by their mother. She is allowed to do so because she meets the academic requirements set by the school district. She is required to meet with school officials on a regular basis to ensure that the children are progressing as required. J.S. is also provided with information sheets and educational games for her youngest son to prepare him for school. 38 .

The mother’s goal is to have her children return to school when she feels it is safe to do so. In the meantime, she makes sure that her children socialize with other children, either neighbours or relatives. 39 . The Minister has no concerns about the mother teaching her children, and there is nothing to indicate that the education of D.S., C.S. and T.S. is deficient. 40 . The father is the only one who disputes the way his children are being educated. In the interim order issued in April 2021, M.S. was authorized to inquire directly with the school authorities about his children’s progress.

He has not taken any steps to that effect, and no evidence was submitted at the hearing that would justify his fears. (

b) The children’s needs, including the need for stability, given their age and stage of development 41 . The mother has had sole care and custody of D.S., C.S. and T.S. for almost three years. Social services closed J.S.’s case about two years ago. The social workers who were involved with the mother confirmed that she had made steady progress and improved with respect to her self-esteem and assertiveness over the past few years. The Minister currently has no concerns about the mother’s ability to provide a safe and stable environment for her children.

42 . At the hearing, J.S. explained that with the help of her family and friends, she had made renovations and improvements to the home she had shared with her former spouse. She still lives in the same home with the children. These changes were necessary to repair damage caused by domestic violence. She followed the recommendations of the mental health professionals involved with the children, repainting the walls in a different colour, moving furniture around and redecorating the home. The goal is for D.S., C.S. and T.S. to have as few bad memories as possible in this home. 43 .

The children have not had any contact with their father for almost three years. When the mother tried to prepare them for the supervised parenting time the Court had ordered in April 2021, they reacted negatively. They said that they did not want to see the man who had hurt them. 44 . M.S. maintained that he could accommodate his children during parenting time, given that he has a three-bedroom apartment. Being able to physically accommodate his children is certainly important. However, safety and well-being are more important, as evidenced by subsection 50(3) [11] of the Act. 45 .

We cannot ignore the fact that the father has not had the care and custody of his children since the parents separated approximately four years ago and has had no parenting time for almost two years. I find that the mother is in a better position to provide the children with the stability they need and to which they have been accustomed since they were returned to her care. (

c) The nature and strength of the children’s relationship with each parent, each of the children’s siblings and grandparents and any other person who plays an important role in the children’s life 46 . When social services got involved with this family, they were concerned about the parties’ parenting skills. J.S. has improved as a mother, in particular by accepting the services of family and early childhood educator Jolaine Savoie.

She has worked on building her relationship with her children, using positive discipline, managing the children’s emotions, establishing sleep routines, developing the children’s attachment and being a mother. 47 . Even though social services closed the file, J.S. has continued the follow-ups offered by the educator. The Minister’s concerns about J.S.’s parenting skills have faded over time. She has been able to develop a healthy and positive relationship with her three children. 48 . M.S. stated that he had also followed all of the Minister’s recommendations but did not submit any evidence to support his claim.

The father has made little or no progress in terms of parenting skills. On the contrary, his supervised visits with his children were suspended for several months following an incident involving his daughter C.S. 49 . T.S. was only two years old when his parents separated. He has not seen his father for almost three years. The evidence presented at the hearing was that the younger son has few memories of his father. In addition, D.S. and C.S. reacted negatively when told that they may soon see their father again. 50 . The father’s position is also difficult to reconcile.

On the one hand, he told social services in March 2019 that he wanted to have the children back. On the other hand, he agreed to a plan attached to a supervisory order in January 2020 that does not include any unsupervised communication or visits with his children (not authorized by the Minister). In addition, M.S. is not allowed to be on the premises where his children reside. Finally, in April 2021, the father claimed full custody (sole decision-making responsibility and parenting time) of his children. 51 .

Moreover, M.S. has not made use of the parenting time supervised by an independent party he was granted in the April 27, 2021, interim order and did not provide any explanation for not doing so at the hearing. 52 . I find that with all the help J.S. has received, she is close to her children and attentive to their needs. As a result, the mother- child relationship is a positive one. The father, on the other hand, lives in the past and is disconnected from his children’s current situation. He has also not taken any constructive steps to hone his skills and improve his relationship with his children. (

d) Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent 53 . M.S.’s attitude towards his former spouse is ambivalent. He made negative remarks about her and maintained that he alone had been a victim of domestic violence during their relationship. He then contacted J.S. and maintained that they were best friends, especially after the supervisory order (which included a clause that he was not to have any contact with the mother) ended. 54 .

The various social workers involved noted that the father made negative comments about the mother in the presence of the children during supervised visits. Moreover, he accepted no responsibility for the incident where C.S. urinated in her pants during a supervised visit with her father. The same thing happened shortly before the supervisory order expired. Instead of working with the social worker assigned to his case to resume the visits with his children, he avoided the social worker and demanded that his file be closed. 55 . J.S. is clearly still afraid of her former spouse.

Despite her personal feelings, she keeps family photos and other mementos of the father available for her children. Unlike M.S., she holds no grudge and does not seek revenge. Instead, she wants to look to the future and live a life without violence with her children. 56 . When the interim order was made, she properly assumed her role of mother and prepared her children that the visits may resume. There is nothing in the evidence that leads me to conclude that J.S. is trying to thwart the father’s relationship with his children.

Instead, it is the father’s actions that have contributed to the non-existent relationship with his children. (

e) The history of care of the children 57 . M.S. maintained that he took care of the children practically all by himself when he and J.S. were together. He maintained

that the mother had hardly been involved. 58. After the parties separated and the children were placed in foster care, it was J.S. who made an effort and persisted inwanting to make the necessary changes. As a result, the Minister returned the children to her care, and they have remained with hersince. 59. The role a parent adopts in caring for their children when they are young is important. In this case, however, what matters iswhat the parents did after the children were apprehended.

The father lives in denial of his alleged inappropriate behaviour when thefamily was living together, his involvement in domestic violence, and the impact of his actions on the children. Psychologist RobertDoucet still has concerns about M.S. [translation] “...because he fails to acknowledge the impact of his behaviour.” (

f) The children’s views and preferences, giving due weight to the children’s age and maturity, unless they cannot be ascertained 60. D.S., C.S. and T.S. are too young for their wishes to be considered by the Court. However, their reactions when J.S. toldthem that the supervised parenting time might resume is a good indication of their state of mind. (

g) Any plans for the children’s care 61. The mother has indicated that she wants to continue caring for her children and provide them with a safe environmentwithout violence. She is aware of the services available in the community should she experience difficulties with her children. J.S. isreaping the benefits of her efforts and of what she has learned since the parties separated. The children are doing well. The mother alsounderstands that homeschooling the children is a temporary solution and that the goal is for the children to return to school. 62.

M.S. stated that he wanted to share decision-making responsibility for his children. However, he has not availed himself ofthe right he was granted in the interim order and has never inquired about their health, education or other matters. 63. At the end of the hearing, the father’s position was that parenting time with his children should resume gradually. However,he provided no details in this respect. He also did not provide any explanation as to why he did not make use of the supervised parentingtime he was granted in April 2021. (

h) The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of thechildren 64. This aspect of the best interests of the child test is very important in this case. It comes down to whether M.S. should begranted parenting time and if so, whether or not such parenting time should be supervised. 65. It was in connection with the care and safety of the children that the Minister got involved with this family in 2017 andremained involved with the children for approximately four years. The children were in foster care for approximately one year. 66.

Even today, the Minister is considering taking the children into care in the event that the father is granted unsupervisedparenting time. The Minister rarely takes this position, especially since the Family Services Act[12] provides for minimum governmentintervention. 67. Section 50(6)[13] of the Family Law Act sets out the principle that each child should have as much time with each parent asis consistent with the best interests of the child (emphasis added). 68. Restricting a child’s right to see and have a meaningful relationship with a parent is not something the Court takes lightly.

Recently, Bélanger-Richard J. addressed this issue and referred to the analysis of the late Justice Walsh in G.S. and D.S. v. A.S. andM.C.[14] At paragraphs 20 and 21, Walsh J. stated as follows: [20] Indeed, the outright termination, or even suspension of access, is not a remedy Courts embrace, unless clearly required in achild’s best interests. This is seen in the analysis found in V.S.G. v. L.J.G.: In considering these cases and others, the factors most commonly considered by the courts in terminating access are thefollowing: 1.

Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear.See M.(B.P.) v. M.(B.L.D.E.), supra; Stewart v. Bachman, [2003] O.J. No. 433 (Sup.Ct.); Studley v. O’Laughlin, [2000] N.S.J. No. 210(N.S.S.C.) (Fam.Div.); Dixon v. Hinsley, (ON CJ), [2001] O.J. No. 3707. 2. History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the childand/or presents a risk to the child’s safety and well-being. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J. No. 769(N.B.Q.B.); Abdo v.

Abdo (1993), (NS CA), 126 N.S.R. (2d) 1 (N.S.C.A.); Studley v. O’Laughlin, supra. 3. Extreme parental alienation which has resulted in changes in custody and, at times, no access orders to the formercustodial parent. See Tremblay v. Tremblay (1987), (AB KB), 10 R.F.L. (3d) 166; Reeves v. Reeves, [2001] O.J. No.308 (Sup.Ct.).

4. Ongoing severe denigration of the other parent. See Frost v. Allen, [1995] M.J. No. 111 (Man.Q.B.); Gorgichuk v.Gorgichuk, supra. 5. Lack of relationship or attachment between noncustodial parent and child. See Studley v. O’Laughlin, supra; M.(B.P.) v.M.(B.L.D.E.), supra. 6. Neglect or abuse to a child on the access visits. See Maxwell v. Maxwell, supra. 7. Older children’s wishes and preferences to terminate access. See Gorgichuk v. Gorgichuk, supra; Frost v. Allen, supra;Dixon v. Hinsley, supra; Pavao v. Pavao, [2000] O.J. No. 1010 (Sup.Ct.); (ON SC), [2004] O.J.

No. 2238 (BlishenJ.) at para. 135; see also A.J.D. v. T.B. 2013 NBQB 224 (Morrison J.); B.(T.) v. M.(A.) 2002 NBQB 349 (Wooder J.). [21] What judges must be ever mindful of is the purpose of access: As the ultimate goal of access is the continuation of a relationship which is of significance and support to the child, accessmust be crafted to preserve and promote that which is healthy and helpful in that relationship so that it may survive to achieve itspurpose.

Accordingly, it is in the interests of the child, and arguably also in the interests of the access parent, to remove or mitigate thesources of ongoing conflict which threaten to damage or prevent the continuation of a meaningful relationship. (Young v. Young, (SCC), [1993] 4 S.C.R. 3, at para. 61) 69. In analyzing the seven criteria established by case law, I find that M.S. continues to behave inappropriately towards hisformer spouse and to contact her even though social services has prohibited him from doing so. J.S. had to block the father fromcontacting her and filed a complaint with the police.

Criminal charges were subsequently laid against the father. Despite all this, M.S.claims to have been the sole victim of domestic violence during their relationship. At the same time, he considers his former spouse asone of his best friends. 70. Instead, J.S.’s fear and apprehension, and the safety measures she has taken, coupled with numerous counselling sessions,show that it was she who was affected by the domestic violence and that the father’s offensive behaviour continued after the separation. The children have also been affected by their father’s actions.

C.S. has eating problems that can be explained as being due to stress, andshe urinated in her pants after her father whispered in her ear during a supervised visit. Just the thought of seeing their father again bringsup negative feelings in the two older children. 71. Throughout the period that social services were involved, they noted that the father used marijuana excessively. This fact aswell as the domestic violence witnessed by the children cannot be ignored.

Most of the time, M.S. denigrated his former spouse in frontof the social workers, the psychologist who conducted the psychological and parenting capacity assessment, during his testimony and inthe presence of his children during supervised visits. 72. The youngest child, T.S., is about to turn six. He was not even two years old when his parents separated. Moreover, inMarch 2023, it will be three years that he has not seen his father. J.S. testified that the child has little or no memory of his father. I findunfortunately that there is very little attachment between this child and his father. 73.

When C.S. revealed that the words her father had whispered in her ear during a supervised visit had frightened and disturbedher to the point where she had urinated in her pants, social services suspended the visits for a period of time. The Minister’s ongoingconcerns regarding the father must certainly be considered. The fact that the children were apprehended soon after the parents separatedshows that at the time, the parents had deficiencies. M.S. has not taken advantage of the services and education offered by social servicesto improve as a person and as a father.

Instead, he blames the mother, workers and social services for what has happened to him. 74. The ever-present veil that prevents M.S. from assuming any responsibility for his actions is decisive in this case. Thepsychologist, Robert Doucet, concluded that M.S. has difficulty considering the impact his behaviour can have on others.

In his report(page 30 of the record on application), he stated as follows: [translation] The fact that he tends to blame J.S. for all the problems in their relationship illustrates not only that he does notaccept any responsibility for his excessive behaviour but also that given his lack of introspection, he will not learn from his mistakes andwill not be able to change his behaviour. He believes that he has done no wrong and therefore does not need to change anything.

Whenan individual fails to recognize his or her contribution to a certain issue, the potential or possibility that the difficult or problematicbehaviour will change is very low. 75. In short, Mr. Doucet’s findings, the evidence presented, the December 2019 incident involving C.S. (which the father stilldenies), and the Minister’s ongoing concerns lead me to conclude that it would not be in the best interests of the children to haveparenting time with their father for the time being. M.S. thinks he is not at fault and therefore cannot consider the impact of his actions

on others. The children would not be completely safe in his care and custody, even during supervised parenting time. 76 . If M.S. makes an effort to accept responsibility for the domestic violence and acknowledges the impact of his behaviour on the other family members, participates in personal counselling and gains insight, the situation can be reassessed in the future. (

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 children 77 . The Court of Appeal recognizes the importance of good communication in granting shared decision-making responsibility. In L.R.R. v. E.M. , [15] the highest court of this province stated as follows: ... By its very nature, a joint custody (decision-making responsibility) order requires parents to participate in major decisions in all areas that affect a child.

This requires a degree of cooperation between the parents, and their ability to effectively communicate with each other: J.H. v. T.H. , 2017 NBCA 7 , [2017] N.B.J. No. 16 (QL) . 78 . Further on, Larlee J. stated as follows: ... However, judges recognize the inappropriateness of joint custody (decision-making responsibility) if the communication between the parents is acrimonious and is detrimental to the well-being of the child: B.P. v. A.T. , 2014 NBCA 51 , 423 N.B.R. (2d) 99 , paras. 13-14 , and F.M. v. T.H. , 2016 NBCA 29 , 449 N.B.R. (2d) 240 . 79 .

I find that it would be inappropriate to order shared decision-making responsibility in this case because of the parties’ unhealthy relationship and the psychological traits of each parent. The fact that M.S. saw himself as his former spouse’s best friend when they communicated for a short time in 2020 speaks volumes. This episode made J.S. realize that she was still being controlled by her former spouse. Criminal charges were again laid against M.S. 80 .

Ordering these individuals to constantly communicate with each other and make decisions together for the well-being of their children would only fuel the power struggle that M.S. is trying to exploit. The risk of further violence in the presence of the children is also a consideration. (

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 children, 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 children 81 . Domestic violence is at the heart of this case and has been discussed throughout this judgment. J.S. has acknowledged her negative behaviour towards the children as well as her former spouse.

She has been taught other ways to express herself, better manage her emotions and interact more effectively with her children to improve their relationship. 82 . During the many follow-ups and counselling sessions, the mother learned a lot about herself. She understands a lot more about domestic violence and the fact that she was being controlled by her former spouse. She is now in a better position to recognize abusive relationships, get out of them, avoid them and become a survivor. 83 . M.S., on the other hand, sees himself only as a victim.

He does not accept any responsibility and therefore cannot understand the impact of any negative behaviour on his children. The psychologist confirmed his concerns that M.S. [ translation ] “...will not be able to control himself in such situations for the sake of his children...”. 84 . For all the reasons set out above, I find that it is in the best interests of the children, D.S., C.S. and T.S., that J.S. be granted sole decision-making responsibility. DISPOSITION 85 .

J.S. is granted sole decision-making responsibility for and parenting time with the children, namely D.S., born […], 2013; C.S., born […], 2014; and T.S., born […], 2017.

86. M.S. is not granted any parenting time with the children, namely D.S., born […], 2013; C.S., born […], 2014; and T.S., born[…], 2017. 87. M.S. will be able to obtain any information regarding the health and education of his children, but only directly from thesource. 88. Each of the parties will bear its own costs and expenses. ____________________________________________________ Michelle Boudreau-Dumas, Justice of the Court of King’s Bench [1] Rick v. Brandsema, 2009 SCC 10 . [2] A. (A.) v. B. (M.), 2014 NBQB 197.