Pinkham v. Pinkham, 2015 NSSC 289

Supreme Court of Nova Scotia Citation: Pinkham v. Pinkham , 2015 NSSC 289 Date: 2015-10-09 Docket: No. SATD-094321 1210-001256 Registry: Antigonish Between: Heather Dawn Pinkham Petitioner And Jason Allister Pinkham Respondent Judge: The Honourable Justice N. M. (Nick) Scaravelli Heard: October 1 st , 2015, Antigonish, Nova Scotia Counsel: Louise Campbell, Q.C. for the Petitioner William F. Meehan for the Respondent Orally By the Court: [ 1 ] The respondent in this divorce proceeding, Mr.

Pinkham, has filed an emergency motion on September 30 th , 2015 following the unilateral move by the petitioner and their children from the matrimonial home in Guysborough County to Fall River in the Halifax Regional Municipality. [ 2 ] By way of background, the petitioner and respondent were married on September 16, 2000.

They have two children of the marriage, boys aged 14 years and 10 years and were residing in Coddles Harbour in Guysborough County. [ 3 ] The parties separated September 26 th , 2014 and on December 24 th of that year the petitioner commenced divorce proceedings by way of Petition for Divorce. [ 4 ] The respondent filed an Answer on March 6, 2015. [ 5 ] The petitioner filed a motion for interim custody and support on April 9 th , 2015.

The parties appeared before Justice Wright on July 6 th , 2015 and indicated there was a consent order providing for joint custody of the children to the parties with primary care to the petitioner. [ 6 ] The respondent was to pay $974 per month based on income of $70,390. There was also agreement on blocks of access. The respondent Mr. Pinkham has been paying child support pursuant to the order. [ 7 ] In August of 2015 the Petitioner moved with the children from Guysborough County to her parent’s home in Fall River, HRM without the consent of the respondent.

She apparently enrolled the children in school in HRM prior to her leaving and without the respondent’s knowledge. [ 8 ] Section 16(2) of the Divorce Act provides the court with jurisdiction on interim order relating to custody, to grant such an order upon terms and conditions as it sees fit. Pursuant to section 16(8) the court is to consider the best interests of the child by reference to the child’s condition, means, needs, and other circumstances. [ 9 ] Regarding interim proceedings in divorce actions, the status quo generally is the most important factor. The status quo

refers to the status quo which existed prior to unilateral conduct of one parent unless it was against the best interests of the children. [10] In this case the burden of proof would be on the petitioner as she seeks to displace the status quo. [11] Factors to be considered in the best interests of children have often been referred to in the case of Foley v. Foley, a decision ofJustice Goodfellow, (NS SC), [1993] N.S.J. No. 347. [12] In terms of the presumptive status quo I refer to the case of White v. White, a decision of Justice Forgeron, [2013] NSSC368.

Counsel also referred the court to the Supreme Court of Canada decision Gordon v. Goertz, (SCC), [1996] S.C.J.No. 52. This is a mobility case. [13] In terms of the petitioner’s reason for moving, considering the evidence overall, it appears to be more for personal reasonsthen it relates to the children. The petitioner stated the lack of financial support. She was living in the matrimonial home at the time. However, as a result of the interim application, she was receiving regular support for the children.

The children of course had been livingand attending school in Guysborough County where family are located and presumptively their friends. [14] According to the affidavits on file and submissions of counsel, the petitioner was employed or had been employed or hademployment available to her in Guysborough County. [15] As indicated the petitioner moved to her parent’s home and one of the children is residing in the basement. She isunemployed and there is no evidence of her prospects for employment. [16] The affidavits acknowledge the children were not happy at the time of the initial move. [17] The respondent Mr.

Pinkham works for the Coast Guard, he is away two weeks per month. He has arranged to have hisparents move into the matrimonial home when he is away in the event the children return. The respondent was making arrangements foran apartment elsewhere as a result of their interim arrangement. This was prior to the petitioner leaving the matrimonial home. [18] In my view at this stage of the divorce proceedings, none of the factors set out in Gordon v. Goertz favor the petitioner’sactions.

There may be a change in the future, however, we are involved here in interim proceedings. [19] I am not satisfied the petitioner has met the burden justifying the change of status quo of the children prior to the unilateralmove from their home. There is no valid reason for the move as it relates to the best interests of the children at this stage of theproceedings. [20] The petitioner has indicated through counsel that she would return to Guysborough in the matrimonial home if the childrenwere ordered returned.

This is what I am prepared to do. [21] I would order the petitioner to return the children home to Guysborough County forthwith. The petitioner will also return thechildren’s furniture.

In the event the petitioner returns with the children to the matrimonial home the interim agreement and order willcontinue in force with the exception of adding a provision by way of variation that the petitioner is not to remove the children fromGuysborough County without the consent of the respondent or court order. [22] In the event the petitioner does not return the children to the home in Guysborough County, the interim order will be varied toprovide joint custody to the petitioner and respondent with primary care to the respondent with access to the petitioner. [23] In the event mobility becomes an issue in the final divorce hearing, the parties may wish to, this is not part of my order, butthe parties may wish to have a Children’s Wishes Assessment conducted.

As I indicated we are only in interim proceedings at this stage.