Starratt v. Starratt, 2013 NSFC 23

FAMILY COURT OF NOVA SCOTIA Citation: Starratt v. Starratt, 2013 NSFC 23 Date: May 21, 2013 Docket: FKMCA-077075 Registry: Kentville Between: PAMELA STARRATT & RANDY STARRATT Applicants v. COREY STARRATT & DENI JENNEX Respondents Judge: The Honourable Judge Corrine E.

Sparks Heard: January 11, 2013, February 1, 2013 March 15, 2013, April 19, 2013 Counsel: David Baker, on behalf of the Applicants Pamela Starratt & Randy Starratt Kerri-Ann Robson, on behalf of the Respondent Deni Jennex Corey Starratt, self represented By the Court : [ 1 ] This matter is an intra-familial custody and access dispute between grandparents and biological parents regarding a young child, Raelynn Hazel Jennex, 3 years of age, who presently resides with her grandparents.

Paternal grandparents, Pamela and Randy Starratt, pursuant to the Maintenance and Custody Act, as amended and proclaimed February 19 th , 2013 ( “MCA” ) , request full custody of the child over the biological parents, Corey Starratt and Deni Jennex.

[ 2 ] Deep and divisive acrimony has been omnipresent and prolonged before and during the litigation of this matter, with the acrimony spilling over to mistrust and bitter feelings between the two sets of grandparents as well. Consequently, each set of grandparents tend to view the other set of grandparents as meddlesome and causing immeasurable difficulties for Raelynn’s parents, Corey Starratt and Deni Jennex.

And, sadly, each set of grandparents profess to exclusively discern Raelynn’s best interests. [ 3 ] Notably, Deni Jennex, the respondent mother, was represented by legal counsel; but, Corey Starratt, the respondent father was unrepresented and his role during the litigation was a passive one as it appeared he did not want to support his parents and his common law partner. [ 4 ] Having reviewed all of the evidence, on the balance of probabilities, the court is persuaded the application of the grandparents should be dismissed; and the child, Raelynn, should be gradually returned to her biological parents care with generous and ongoing contact between the child and the grandparents.

My reasons are set out below in detail. 1. Legal and Family Background: [ 5 ] Shortly after Raelynn’s birth she resided with her paternal grandparents, the applicants; and the biological parents have had regular contact with the child with the grandparents providing all of the necessities for the child as well as providing regular access transportation. Unquestionably, the grandparents, who are employed, have provided a loving, stable and secure upbringing and home environment for Raelynn. I find they have generally ensured the child would be available for Sunday and other visits with the parents.

Mostly, however, these visits were marred with tension and hostilities when they occurred in the home of the biological parents, with the grandparents unwittingly being caught in the middle of petty conflicts between the parents. [ 6 ] In 2011 the applicant grandparents filed this application and summons with the court; and with both sides being represented by legal counsel, the four parties entered into an interim agreement for Raelynn to have parenting time with her biological parents each Sunday, Wednesday and Fridays at specific times.

As mentioned earlier, the applicants provided the access transportation, and, as access times conflicted with the grandparents’ work schedules, access had to be modified. However, the Sunday access usually occurred as scheduled from 10:00 a.m. to 4:00 p.m.

During this time Raelynn, nonetheless, remained in the primary care of the applicant grandparents, although importantly she always appeared to enjoy contact with her parents and her other siblings. [ 7 ] After the interim agreement was filed with the court, the parties continued to discuss alternative arrangements for sharing custody of the child, but they reached an apparent impasse. Consequently, a

Section 19 assessment was ordered, and its findings will be discussed briefly later. During this time as well, the parties at one point reported an agreement to the court consisting of joint custody with primary care to the grandparents; but, this did not manifest, even though both the parents and grandparents were represented by competent and experienced legal counsel.

Indeed, during the hearing itself, in a rather extraordinary move, counsel for the grandparents subpoenaed the former solicitor of the father, Corey Starratt, to confirm the terms of the proposed shared custody arrangement which were boldly and falsely denied by Corey Starratt himself. This was done with the approbation and full knowledge of the respondent father, being aware of solicitor-client privilege. [ 8 ] Also, since the litigation began the respondent parents have had another child, Landon, born July 28 th , 2012.

Although Landon is not the subject of this inquiry, the court notes the presence of the applicant grandparents around the time of the birth of the child, and the respondent mother’s flexibility in allowing the applicant grandparents to visit with the child despite the tensions arising from this litigation. 2. Raelynn Hazel Jennex: [ 9 ] This little girl is well adjusted, healthy and happy; and she is loved by her parents and grandparents. She enjoys time with her parents as well as her new born brother, and her two sisters.

Deni Jennex has a total of four children, and two of these children are fathered by Cory Starratt, and the remaining two children are older and have different biological fathers. Raelynn loves her siblings, and enjoys her time with them. She calls her mother “Mommie”; and, therefore, I extrapolate she knows the difference between her mother and grandmother. 3. Corey Starratt and Deni Jennex:

[ 10 ] This young couple have had a relationship marred with tempestuous actions on both sides. They both agreed to have the applicant grandparents provide care for Raelynn as they were not in a position to do so when the child was born; and, they both agree the grandparents have provided a stable and loving home environment for Raelynn. They both agree that Raelynn should always have access contact with her grandparents, but they would prefer regular access on weekends.

There have been conflictual evidence concerning pottie training and discipline; however, I find these concerns are largely exaggerated by the parents; and have been used as a feeble and unconvincing attempt to undermine the parenting capacity of the grandparents. [ 11 ] Deni Jennex, mentioned more than once her disappointment in being unable to have Raelynn returned to her.

She indicated it was her understanding in the beginning that the child would be returned to her care once she was in a better position to provide care; and, therefore, now she feels the grandparents have betrayed her trust in them. [ 12 ] Deni Jennex (26 years of age) and Corey Starratt (27 years of age) have an unstable relationship; and far too often each parent seeks advice from their respective parents, with Corey Starratt often leaving, frequently at the request of Deni Jennex and returning to his parents home after an argument between the couple.

Drugs, I find, are used in the home; and the applicant grandfather has on one occasion had to pay off a drug debt (small amount) for the respondent father. Both parents; however, indicate, and I accept, the drug use is largely by Corey Starratt and not by the mother herself. I find there has also been physical violence in the home, although it has involved police interventions, I am unconvinced it is commonplace. The parents seem to have occasional eruptions in their relationship, and have few, if any skills, to resolve conflicts which will arise from time to time between a young couple.

My overall impression is the mother is far more measured than the father, and perhaps the father’s drug use has contributed to his erratic and unpredictable behaviours at times. But, I also note the troubled youth of the father as reported by the assessor, who indicated Corey’s parents sough mental health interventions for him at the age of 9. He was diagnosed with Attention Deficit Disorder and was medicated; and, he reportedly had anger issues and fought a lot in school. He had harmed several pets and as a teen he became a cutter, often making shallow cuts on his wrists.

Therefore, I conclude Corey Starratt has a number of long standing emotional and mental health issues which place him in a vulnerable position as a partner for Deni Jennex as well as being a capable and stable parent. His credibility during the proceedings was seriously impugned, and his word is almost meaningless: see Novak Estate, Re, 2008 NSSC 283 at para. 36 & 37 in particular. [ 13 ] When Corey Starratt leaves his home with Deni Jennex, he returns to his parents home, but this is often short lived.

Corey doesn’t have a stable employment history, and according to his testimony he has had to leave the family home with Ms. Jennex in order for the family to quality for social assistance. Generally, Corey Starratt constantly displays troubling behaviour marked by outburst and unreliability, manufacturing fabrications to suit his purposes with either his parents or his common-law partner, Deni Jennex. [ 14 ] Deni Jennex, 28 years of age, has four children including Raelynn. She resides in close proximity to her sister (lives in the same apartment building) and her parents.

She receives the child tax credit for Raelynn although the child has never been in her day-to-day care and control. The local child protection agency has investigated her home, and found the home to be suitable for the children. The two older girls visit with the paternal side of their families, and the girls seem to be doing well socially and educationally. Both parents, Deni Jennex and Corey Starratt seem to relate to the children well and provide structure and discipline for them.

During the child protection investigation no major parenting concerns were identified, but counselling was recommended for the couple and for a while they participated in counselling. Unfortunately, counselling is no longer in place as the child protection agency has now closed its file.

Section 19 Custody and Access Assessment: [ 15 ] Paraphrasing, the assessor, Dr. Julia Holt, recommended returning Raelynn to her parents, and advised it would be prudent and cautious to do so over a period of one year to reduce confusion and a negative reaction by Raelynn herself. She found the parents to suitably engage Raelynn, and found in the long term Raelynn’s separation from her parents and siblings could have a lingering damaging emotional impact causing Raelynn, among other things, to have questions about parental abandonment as well as confusion over her identity and her sense of belonging. [ 16 ] Dr.

Julia Holt’s findings regarding violence and marijuana use by the parents was described as occurring in the recent past, and this was challenged by the grandparents’ counsel. She accepted the reports and findings of the local child protection agency after their investigation; and her observations of the parents with Raelynn. Counsel for the applicant grandparents submit Dr. Holt’s recommendations are erroneous and should not be accepted by the court.

Counsel submits the drug use and violence continues in the parents’ home; and this will automatically lead to increased familial instability for Raelynn if she is returned to her parents care. My overall impression is not favorable regarding the sustainability of the relationship between the parents, nor is my impression favorable regarding the parents ability to resolve conflict without resorting to threats and acts of immaturity including yelling and pushing.

Although, it is correct to point out that Dr, Holt was unaware of the current arguments and fights between the parents, I remind myself of the magnitude of these disputes. These disputes are unpleasant for certain; but, in time, in my view, with the assistance of couples counselling this can be addressed, and the parents are willing to address these challenges.

[17] With respect, I cannot accept the assertion of counsel for the grandparents regarding either the extent or the current state ofviolence and drug use in the home. I reject this assertion because even though the assessor may not have been directly informedregarding the current state of the relationship between the parents, she acknowledged the past concern which is very similar to the presentissues between the parents. But, moreover, the courts find the level of domestic violence to be concerning but not commonplace betweenthe parents.

I specifically find here we have a young couple who both lack maturity; and, consequently, at times there have been threatsand minor physical altercations at the lower end of the domestic violence scale (examples: throwing a phone and pushing and shoving). As for the drug use, I find although both parents use marijuana, the respondent father’s use is far more problematic for the court than themarijuana use by the mother.

I say this because the mother as a primary caregiver for the three children currently in her care has beenable to provide amenities for the children, and there is no credible evidence of these children being neglected or harmed while receivingcare from their mother. Overall, I conclude the difficulties in the relationship between the parents to be relatively minor; and capable,perhaps with therapeutic interventions, of being resolved. [18] In short, I cannot find Dr.

Holt’s lack of knowledge about recent arguments and conflicts between the parents to be sufficient to setaside her key recommendations in the assessment. 5. Findings, Conclusions and The Law: [19] Courts must have compelling and cogent reason to separate a child from biological parents, and judicial justification for doing somust be in the overall best interests of the child.

Even though, at times grandparents, as is the case here, may not believe a child’s bestinterests are served with a child remaining with biological parents, this alone will not prima facie be sufficient unless their concerns riseto a level where the welfare of the child is seriously compromised. Recognition of this legal principle, the best interests of the child,permeates the law at many levels: internationally, jurisprudentialy, and statutorily.

While it cannot be said that a child will never beseparated from biological parents, the court acknowledges the different parenting styles offered by grandparents as opposed to a veryyoung couple( this was identified as well by Dr. Holt). Instead, the court must discern whether the parents are able to provide “goodenough parenting” consistent with the best interests of the child. [20] Internationally, the United Nations Convention on the Rights of the Child, Canadian Children’s Rights Council (CCRC)Title(Online).

Available: http://www.canadiancrc.com / [Accessed: May 17,2013], Articles 8 and 9, ratified by Canada in 1991,recognizes the right of every child to be raised by his or her parents, and state separation should not occur unless there are convincingand sound reasons to do so. There is a recognition of the need to preserve the child’s identity and family relations. Separation cannot bebased on the assertion that grandparents have a better family environment for a child. It is stated thusly:

Article 8 1. States: Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name andfamily relations as recognized by law without unlawful interference.

Article 9 1. States: Parties shall ensure that a child shall not be separated from his or her parents against their will, except whencompetent authorities subject to judicial review determine, in accordance with applicable law and procedures, that suchseparation is necessary for the best interests of the child.

Such determination may be necessary in a particular case such as oneinvolving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be madeas to the child’s place of residence. [21] In the present circumstances, I find the concerns of the applicant grandparents to be genuine, and of course any loving, caring anddevoted grandparent would express the same concerns articulated by the applicant grandparents.

However, concerns will not be, andcannot be, enough to warrant a removal from parental custody and care. [22] Jurisprudentialy, many cases including: King v. Low (1985) (SCC), 44 R.F.L. (2d) 113, Gillis v. Gillis (1995) (NS SC), 145 N.S.R. (2nd) 241, Foley v. Foley (1993) (NS SC), 124 N.S.R. (2nd) 198 and Dixon v. Hinsley (2001) (ON CJ), 22 R.F.L. (5th) 55 illustrate the judicial standard in articulating and applying theparamountcy of best interests of the child doctrine, and this latter case clarifies, at para. 46 that:

“The “best interests” of a child is regarded as an all-embracing concept. It encompasses the physical, emotional, intellectual and moral well-being of the child. A court must look not only at the child’s day-to-day needs but also to his or her longer-term growth and development.” [ 23 ] Legislatively, although articulated more plainly the central theme as in the United Nations Convention on the Rights of the Child as well as the case law is exactly the same: See sec. 18(5) (6) and (7) of the MCA (as amended) which reminds the court that:

(5) In any proceeding under this Act concerning care and custody or access and visiting privileges in relation to a child, the court shall give paramount consideration to the best interests of the child.

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

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

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

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

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

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

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

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

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

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

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

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

(7) When determining the impact of any family violence, abuse or intimidation, the court shall consider (

a) the nature of the family violence, abuse or intimidation; (

b) how recently the family violence, abuse or intimidation occurred; (

c) the frequency of the family violence, abuse or intimidation; (

d) the harm caused to the child by the family violence, abuse or intimidation; (

e) any steps the person causing the family violence, abuse or intimidation has taken to prevent further family violence, abuse or intimidation from occurring; and (

f) all other matters the court considers relevant.

(8) In making an order concerning care and custody or access and visiting privileges in relation to a child, the court shall give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child, the determination of which, for greater certainty, includes a consideration of the impact of any family violence, abuse or intimidation as set out in clause (6)(j).

[ 24 ] I, therefore, conclude and hold Raelynn’s best interests can be best served by placing her in the primary care of her mother, who has demonstrated an ability to provide for her other three children sufficiently. She is a young mother but is able to manage the welfare of her children appropriately. As well, I have taken into account that the biological parents have both indicated a desire to obtain counselling, not only to assist with their tumultuous relationship, but also to assist with integrating Raelynn into their family.

This is an encouraging sign of willingness to accept guidance to ensure Raelynn’s best interests in the short term and long term. I have as well taken into account the definition of family violence in sec. (2(da) of the MCA , as amended, which points out the following: "family violence, abuse or intimidation" means deliberate and purposeful violence, abuse or intimidation perpetrated by a person against another member of that person's family in a single act or a series of acts forming a pattern of abuse, and includes [1] (

i) causing or attempting to cause physical or sexual abuse, including forced confinement or deprivation of the necessities of life, or (ii) causing or attempting to cause psychological or emotional abuse that constitutes a pattern of coercive or controlling behaviour including, but not limited to, (

A) engaging in intimidation, harassment or threats, including threats to harm a family member, other persons, pets or property, (

B) placing unreasonable restrictions on, or preventing the exercise of, a family member's financial or personal autonomy, (

C) stalking, or (

D) intentionally damaging property, but does not include acts of self-protection or protection of another person; [ 25 ] That said, Raelynn is emotionally and psychologically attached to her grandparents, and there should always be a place in her life for the largesse of her grandparents’ love for her. Therefore, consistent with Dr. Holt’s recommendations I find it would be unwise to change the custodial arrangement for Raelynn abruptly.

This is a substantial change for Raelynn, and she has to be adequately prepared for it, and notwithstanding the decision of this court the parties, including the grandparents, will allow Raelynn to enjoy affection and love from all of them . It seems to me, Raelynn’s best interests will be served emotionally, physically, developmentally and educationally by being placed in the day-to-day care of her mother.

Her mother shall be responsible for her daily needs, and must ensure the father is not left alone with Raelynn. 6.Final Order: [ 26 ] Accordingly, I hereby order the gradual return of Raelynn to the joint custody of her parents: See Sec. 18(4) of the MCA . Deni Jennex; however, shall be the primary caregiver for Raelynn, providing for her daily needs. [ 27 ] Starting the week following the release of this decision, the child will commence alternate overnight contact with her parents, beginning on Friday at 3:00 p.m. returning to the grandparents Sunday afternoon at 4:00 p.m.

If Raelynn demonstrates any signs of distress, such as crying for her grandparents, she is to be returned immediately to them. I order this type of contact to take place for a period of at least two months. [ 28 ] Provided the alternate weekend parenting times proceed without incident, Raelynn will have alternate weekly contact with her parents for a period of two months. [ 29 ] After the two month period of alternate weekly contact with the parents, the child will be with the parents full-time, but with alternate weekends with the grandparents. I suggest from Friday at 3:00 p.m. to Sunday at 4:00 p.m.

Other times can be suitably arranged to accommodate the work schedules of the grandparents. And, furthermore, if Raelynn wishes to speak with her grandparents she shall be permitted to do so. [ 30 ] There shall be arrangements made for special events, and otherwise for general flexibility with the integration of the schedule. Of course, the parents are encouraged, given the degree of animosity with the applicant grandparents, to seek assistance from professionals to lessen the emotional impact on Raelynn. And, to ameliorate, or at least reduce the level of friction existing in their relationship as a couple.

It shall be necessary for them to obtain couples counselling immediately.

[ 31 ] Eventually, after being placed back in the custody of her parents, Raelynn should continue to have liberal parenting time with her grandparents, and more specifically, I order that she shall spend at least four weeks each summer with her grandparents with times and dates to be agreed upon yearly before June 30 th . [ 32 ] Finally, it is ordered that this matter be reviewed by the court on or before October 31st,2013. [ 33 ] My gratitude is extended to both counsel for their prudent and measured submissions to the court in this matter.

Counsel for Deni Jennex is hereby directed to prepare an appropriate court order based upon the above ruling of the court. Order accordingly. (Signed: Corrine E. Sparks) Judge Corrine E. Sparks, JFC