Grandy v. Grandy, 2012 NSSC 316

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Grandy v. Grandy, 2012 NSSC 316 Date: 20120906 Docket: SFH MCA 081753 Registry: Halifax Between: Rick Douglas Grandy Applicant v. Jane Carolyne Grandy Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard: August 22, 2012

Summary: Father applied for interim custody and interim exclusive occupation of family residence. Mother responded seeking the same plus interim child and spousal maintenance and costs. Nesting order made: children to stay in home while parents alternate residing with them on a weekly basis. Key words: Interim custody and access, interim exclusive possession of matrimonial home/exclusive occupation of residence, interim spousal support, Maintenance and Custody Act , Matrimonial Property Act , nesting order Legislation: Judicature Act , R.S.N.S. 1989, c. 240,

section 32F Maintenance and Custody Act , R.N.S.N. 1989, c. 160, sections 7 and 18 Nova Scotia Child Maintenance Guidelines , N.S. Reg. 53/98,

section 9 Matrimonial Property Act , R.S.N.S. 1989, c. 275,

section 11

THIS INFORMATION SHEET DOESN ’ T 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: Grandy v. Grandy, 2012 NSSC 316 Date: 20120906 Docket: SFH MCA 081753 Registry: Halifax Between: Rick Douglas Grandy Applicant v. Jane Carolyne Grandy Respondent Judge: The Honourable Justice Elizabeth Jollimore Submissions from Ms. Cleary : August 24, 2012 Counsel: Michele J. Cleary for Rick Grandy Deborah E.

Bowes for Jane Grandy By the Court: Introduction [ 1 ] The Grandys are the parents of two daughters, eleven year old Erika and Danielle, who will shortly turn nine. The Grandys separated early this summer. The girls spent one month of the summer with their paternal grandparents in Newfoundland and Labrador and have now returned home. School has begun. Both parents want to resolve the issue of the girls ’ parenting. [ 2 ] Mr. Grandy has applied for interim custody of the girls: he seeks their primary care. He also wants interim exclusive occupation of the family ’ s residence.

He makes these applications pursuant to sections 18 and 7 of the Maintenance and Custody Act , R.S.N.S., 1989, c. 160, respectively. The latter claim for exclusive occupation of the family residence is also advanced under the Matrimonial Property Act , R.S.N.S. 1989, c. 275,

section 11, where it ’ s framed as an application for exclusive possession of the matrimonial home. In response to her husband ’ s applications, Ms. Grandy has applied to have custody, access, child maintenance,

spousal maintenance and use of the family’s home determined on an interim basis. She also seeks costs. Her applications, for the mostpart, are also pursuant to the Maintenance and Custody Act. As with her husband, her claim relating to the home is also advanced, in thealternative, pursuant to the Matrimonial Property Act. [3] When Mr. Grandy filed his application on July 3, 2012, he scheduled a half-day hearing. On August 8, 2012, Ms. Grandyfiled her response with its new claims. No additional time was scheduled, despite the extra issues she sought to have addressed.

Mr.Grandy filed two affidavits and issued a sub peona for Keya Leahey, a worker from the Department of Community Services. Ms.Grandy filed an affidavit and her mother testified. At the outset of the hearing, I advised counsel that I would deal with the pressing issueof parenting, but the limited time might make it impossible to address all the claims raised, given the additional claims and the number ofwitnesses. [4] The Grandys have agreed that there should be a custody and access assessment (which would include psychological testingof both parents).

Based on their consent, I am prepared to order such an assessment pursuant to

section 32F of the Judicature Act,R.S.N.S. 1989, c. 240. Interim parenting [5] The paramount consideration in any parenting application is the children’s best interests. The emphasis in interim parentingapplications is the maintenance of the children’s status quo and my focus is on their short-term care pending the final determination oftheir custody. The issue is what temporary living arrangement will be the least disruptive, most supportive and most protective of thechildren, as was stated by Judge Daley in Webber (1989), (NS FC), 90 N.S.R. (2d) 55 (F.C.).

This test was acceptedby the Supreme Court in Stubson (1991), (NS SC), 105 N.S.R. (2d) 155 and Pye (1992), (NSSC), 112 N.S.R. (2d) 109. [6] The status quo should be maintained unless cogent evidence is adduced to show that it should not be. Maintaining theexisting parenting arrangement will, in all likelihood, minimize any disruption to the children as a result of their parents’ separation.

Aswell, and this application is a perfect example, if the existing arrangement is adequate, I should be reluctant to make changes because Ihaven’t had an opportunity to have a full hearing on the merits. [7] Both parents have filed affidavits and Parenting Statements. Neither parent identifies either girl as having any special needsor concerns. [8] Since 2006, when Ms. Grandy experienced a psychotic break and was hospitalized at the Nova Scotia Hospital, thechildren’s father has been heavily involved in their parenting. Both parents describe a situation where Mr.

Grandy works outside thehome most days (he can sometimes work at home) while Ms. Grandy is responsible for the children. When he returns home from work,Mr. Grandy is largely responsible for the girls in the evening when Ms. Grandy absents herself from the home, going to the gym anddoing errands. By times, Ms. Grandy works outside the home during the day, working as a school lunch monitor. The parents disagreeabout who is responsible for housework and meal preparation. While they didn’t explicitly agree that Ms.

Grandy is, for the most part,responsible for the girls during the day, their evidence was consistent on this point. [10] Mr. Grandy’s claims of Ms. Grandy’s excessive caffeine consumption couldn’t be substantiated by his own observations andhis claims of her alcohol consumption couldn’t be substantiated by his own observations, weren’t reliably corroborated by Erika andwere denied by his mother-in-law, Mrs. Fletcher. Similarly, his evidence with regard to the girls’ care while Ms. Grandy washospitalized was contradicted by Mrs. Fletcher.

In these regards, I don’t accept his evidence. [11] Each parent made much of the other’s poor mental health. In this regard, it was useful to hear the evidence of Keya Leahey. This summer, referrals were made to the Department of Community Services. In investigating the referrals, Ms. Leahey had theopportunity to talk with and meet both the Grandys and their daughters. Like the parents, Ms. Leahey reports no special needs orconcerns relating to the girls. She was clear in her view that there are no child protection concerns raised by either parent, individually.

She was equally clear that child protection concerns are raised in circumstances where the parents live together. This information isparticularly useful to me in determining how the girls’ parenting arrangements should be structured. [12] As a result of referrals to the Department of Community Services, a temporary arrangement was made where the childrenspent the days with their mother and the evenings and overnights with their father during the week and alternated weekends betweentheir parents. Mr. Grandy complains that Ms.

Grandy wasn’t always prompt in leaving the home (or wouldn’t leave) when his time withthe girls began. [13] The RCMP were called to ensure the parents adhered to the parenting arrangement that they had agreed upon and to perform

well-being checks on the girls. Involving the Department of Community Services and the RCMP escalated tension between the parentsand left me with the impression that each parent was seeking some advantage in the litigation between them. [14] The girls’ status quo is one where they have been parented by both their mother and their father, though their parents have notshared this responsibility simultaneously. Rather, the parents have spent exclusive time with the girls. In part, this may be explained bythe fact that, as Ms. Grandy claims, that the separation is “long overdue”.

The girls have had the chance to grow accustomed to thearrangement where their parents care for them independently and the entire family doesn’t spend much time together. [15] Ms. Grandy seeks a shared parenting arrangement where the children alternate spending weeks with their parents.

Mr.Grandy asks that he be the girls’ primary custodial parent and they spend alternate weekends and one overnight with their mother mid-way through the week when they are not having weekend access with her. [16] To maintain the status quo, maximize the time the children spend with each parent and minimize the parents’ interactions, Iam ordering that the children alternate their time between their parents. The parenting periods shall be one week long and shall start eachFriday. It will begin this Friday, September 7, with the girls being with their mother.

The weeks will commence on Friday even if thereis no school on Friday. [17] A few other aspects of the parenting arrangement ought be specified. Danielle’s birthday is on September 19. Regardless ofwho is with Danielle that week, Danielle (and Erika) shall spend two hours on that day (after school) with the other parent. In thisfashion, both parents will see Danielle on her birthday. If this order remains in place when Erika has her birthday next March, the samearrangement will apply. [18] At this point, the weekly alternation will not be modified for long weekends, the March Break or Easter.

Throughout thosetimes, the weekly alternation will persist unless the parties agree to some other arrangement. Christmas, however, is different. Theparties may not have resolved their differences by Christmas and Erika and Danielle should spend time with both parents at Christmas.

In general, the weekly alternation will continue over the Christmas holidays with the exception that the parent who is not with the girlsduring the week of December 25 and 26, shall be with them from 2 p.m. on December 25 until 2 p.m. on December 26. [19] In light of concerns expressed about mental health and alcohol consumption, I order that neither parent may consume anyalcohol or non-prescribed drugs for six hours prior to and during their time with the girls.

During this period, prescribed drugs must beused in the manner dictated by the prescribing physician. [20] The girls may have unrestricted telephone contact with the parent with whom they are not staying between the hours of 7:30a.m. and 7:30 p.m. daily. The family’s home [21] Each parent has sought to exclude the other from the family’s home and each has made its claims pursuant to both theMaintenance and Custody Act and the Matrimonial Property Act.

Section 7 of the Maintenance and Custody Act provides that where Imake an order under that Act for spousal maintenance, I may make an order that either spouse has the right to occupy or use the home,subject to conditions, until the spouses’ rights in the home are determined by an agreement or court order. I have this authorityregardless of the spouses’ status as owners or tenants of the home. [22] It’s worth noting that this

section of the Maintenance and Custody Act (then called the Family Maintenance Act) was declaredultra vires of the provincial legislature in Rudderham (1988), (NS CA), 85 N.S.R. (2d) 267 (A.D.) because itpurported to confer upon the Family Court a jurisdiction reserved to superior courts under

section 96 of the Constitution Act, 1867. The1999 unification of the Family Court and Supreme Court into the Supreme Court of Nova Scotia (Family Division) has had the result,where this unification has occurred, of providing appropriate jurisdiction for this provision of the Act.

[23] Under the Maintenance and Custody Act , I may only make an order relating to the family home where I am making an order for spousal maintenance. Given the constraints of time at the hearing, the parties weren ’ t able to address that issue and I am not making a spousal maintenance order. As a result, I cannot make an order for occupation under the Maintenance and Custody Act and I must decide this issue pursuant the Matrimonial Property Act . [24] Subsection 11(1) of the Matrimonial Property Act outlines orders I may make regarding a matrimonial home.

They includes orders for exclusive possession of the home “ for life or for such lesser period ” as I direct, orders regarding the payments relating to the home, possession of the contents, disposition and encumbrance of the home.

According to subsection 11(4), I may only make an order for possession where I am of the opinion that other provision for shelter isn ’ t adequate in the circumstances (provided for in clause 11(4) (a)) or it ’ s in the best interests of a child to make an order for possession (provided for in clause 11(4)(b)). [25] Neither parent has offered me any evidence suggesting that other provision for shelter isn ’ t adequate. Ms. Grandy ’ s mother has a large home which has accommodated Ms. Grandy and the children since the separation. Mr. Grandy has family who reside in the immediate vicinity of the matrimonial home.

His commute to work would be little changed if he stayed with his family. Accordingly, there ’ s no basis to make an exclusive possession order under clause 11(4)(a). [26] The family has occupied its current home since 2010. Both girls attend school at Gertrude Parker Elementary School in Sackville: Erika is entering grade 6 and Danielle is starting grade 4. [27] Ms. Grandy ’ s family is in Ellershouse: her mother ’ s home is there. It is large, with five bedrooms. Mrs. Fletcher owns various nearby rental properties. These are all occupied. When Ms.

Grandy has spent the weekend with the children, she took them to her mother ’ s. [28] Mr. Grandy ’ s sister lives within walking distance from the home. He describes his mother as “ an enormous support to me ” who “ has and will continue to assist in whatever way she can ” . This may provide options for Mr. Grandy ’ s short-term residence. [29] Clause 11(4)(

b) refers me to consideration of the children ’ s best interests. I ’ ve determined that it is in the children ’ s best interests that they have a shared parenting arrangement, alternating their time with their parents on a weekly basis. The same best interest that is furthered by maintaining the children ’ s status quo is served by ordering that possession of the matrimonial home take the form of a nesting order: the girls will have their primary residence in the matrimonial home.

During each parent ’ s week with the girls, he or she will reside in the home with the girls and that parent will have interim exclusive possession of the matrimonial home and its contents during that week. [30] Each parent ’ s period of exclusive occupation will begin at one p.m. on Friday afternoon and continue until noon the following Friday. This means there will be a period of one hour when neither parent is in the home. Most weeks this will happen when the girls are at school.

Only if one or both children are not at school on Friday, may the parent having exclusive occupation remain in the home until the parent assuming exclusive occupation begins his or her week. [31] Nesting orders are not frequent in Nova Scotia. Justice Gass made an interim nesting order recently in DeMont v. Hill , 2012 NSSC 304 and there was an interim nesting order in place before the divorce hearing that was reported in Lockerby , 2010 NSSC 282 . [32] In Dyck , 2005 SKQB 273 , Justice Baynton discussed nesting (which are also called bird ’ s nest) orders.

He noted the prospect, at paragraph 13, that in interim applications which follow shortly after a couple has separated, a nesting order may re-focus parents ’ attention on their children, rather than on “ winning ” an interim application.

He said that a nesting order reduces the conflict between parents and puts the parents on trial: “ Their conduct toward one another and toward their children will be open to scrutiny by the assessor and by the court if the matter is not resolved short of a trial or a pre-trial conference. ” [33] In these circumstances, I ’ m persuaded that a nesting order is in the children ’ s best interests for a number of reasons. Each parent has had independent involvement in meeting the children ’ s needs, without the assistance of the other and the children are accustomed to this.

Keeping the children in the matrimonial home, while rotating their parents in and out, maintains continuity of the parents ’ involvement while minimizing the disruption to the girls.

[34] The reports to the Department of Community Services and the involvement of the RCMP suggest that the parents have approached the interim application as something to be won or lost, not a determination of their daughters ’ best interests. This view must change. Erika and Danielle will experience many changes as their parents ’ marriage is dissolved: their parents must minimize the impact of these changes on their daughters. [35] Nesting orders have been rejected where they create opportunities for conflict between or perpetuate conflict between them.

Here, the parents have lived in the same home with little interaction as parents for some time with no reports of conflict. Interim child and spousal maintenance [36] Mr. Grandy hasn ’ t claimed interim child maintenance while Ms. Grandy has. Additionally, Ms. Grandy seeks interim spousal maintenance. She has filed a Statement of Income, a Statement of Expenses and a Statement of Special or Extraordinary Expenses. [37] According to Ms. Grandy ’ s Statement of Income, she has monthly income of $292.10 from the Halifax Regional School Board.

In cross-examination she admitted that she had an additional $740.00 in monthly income from an annuity which she receives as the result of an accident. In her affidavit, she says she takes on sewing jobs. She didn ’ t testify as to the amount she earns from this work. She pays no income taxes. [38] Ms. Grandy ’ s Statement of Expenses doesn ’ t show the costs she would incur if she lived outside the family ’ s home or isolate the costs that are directly related to the girls or arising from a shared parenting arrangement. Mr. Grandy has filed both a Statement of Income and a Statement of Expenses.

Like his wife ’ s Statements, his do not isolate costs relating to the girls or identify the costs arising from a shared parenting arrangement. [39] As a result of my decision, Erika and Danielle are in a shared parenting arrangement where maintenance is governed by

section 9 of the Nova Scotia Child Maintenance Guidelines , N.S. Reg. 53/98 . The Supreme Court of Canada ’ s decision in Contino v. Leonelli-Contino , 2005 SCC 63 outlines how child maintenance is determined in shared parenting situations. In Contino v. Leonelli-Contino , 2005 SCC 63 at paragraphs 56 - 57, Justice Bastarache directs parents to lead evidence addressing subsections 9(

b) and (

c) of the Guidelines . Accordingly, I direct that both parents file Statements of Expenses which identify the girls ’ direct expenses and those increased expenses which result from the shared parenting arrangement. Counsel may wish to refer to Plourde v. Morin , 2005 NSSC 332 and Foss , 2011 NSSC 115 . Future considerations [40] Each parent has expressed some desire to keep the family ’ s home in the long-term. It isn ’ t apparent from the financial statements that have been filed how this might be done without recourse to financial assistance from family members or others.

I direct that each parent make inquiries and determine whether he or she is able to afford to purchase the other ’ s interest and to notify the other party (or its counsel) by October 12, 2012. Once the parents have an understanding of their future, they ’ ll be able to assess to proceed in resolving further interim matters or moving toward a final resolution. [41] The application is Mr. Grandy ’ s, so Ms. Cleary will prepare the order. __________________________________ Elizabeth Jollimore, J.S.C. (F.D.) Halifax, Nova Scotia