L.S. and M.S. v K.G. and B.S., 2014 NSSC 259

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: L.S. and M.S. v K.G. and B.S. , 2014 NSSC 259 Date: 2014-07-09 Docket: SFHMCA-037742 Registry: Halifax Between: L.S. and M.S. Applicants v. B.S. and K.D.G. Respondents Library Heading Restriction on publication: Publishers of this case please take note that s. 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication.

Section 94(1) provides: No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or relative of the child. Publishers of this case further take note that in accordance with s. 94(2) no person shall publish information relating to the custody, health and welfare of the children. Judge: The Honourable Justice Elizabeth Jollimore Heard: July 4, 2014 in Halifax, Nova Scotia

Summary: Mother applied to vary consent custody order four months after it was granted. Application dismissed where no change in circumstances was proved to have occurred since prior order was granted. Key Words: Family, Family- child custody - application to vary, Maintenance and Custody Act Legislation: Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3 Maintenance and Custody Act , R.S.N.S. 1989, c. 160, subsection 37(1) 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: L.S. and M.S. v. K.G. and B.S. , 2014 NSSC 259 Date: 2014-07-09 Docket: SFHMCA-037742 Registry: Halifax Between: L.S. and M.S. Applicants v. B.S. and K.D.G. Respondents Restriction on publication: Publishers of this case please take note that s. 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication.

Section 94(1) provides: No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or relative of the child. Publishers of this case further take note that in accordance with s. 94(2) no person shall publish information relating to the custody, health and welfare of the children.

Judge: The Honourable Justice Jollimore Heard: July 4, 2014, in Halifax, Nova Scotia Counsel: L.S. and M.S. on their own behalf K.D.G. on her own behalf B.S. not appearing Sarah K. Gordon, on a watching brief for the Minister of Community Services By the Court: Introduction [ 1 ] This is a variation application by N’s mother, Ms. G. Ms. G wants to vary a parenting order so N will live with her. Her application is pursuant to

section 37 of the Maintenance and Custody Act , R.S.N.S. 1989, c. 160. [ 2 ] The order Ms. G wants to vary was granted by Justice Beaton on June 3, 2013. In it, Justice Beaton ordered that N be in the custody of his paternal grandparents, Mr. and Ms. S, with whom he would live, day to day. Justice Beaton ordered that N have access with his father on reasonable notice and access to his mother by correspondence or as agreed with N’s paternal grandparents. Lastly, Justice Beaton’s order required that the Department of Community Services must be notified of any changes to the terms of N’s custody or access.

[3] Justice Beaton’s order was made on the basis of all parties’ consent. All parties were represented by counsel. This application [4] Ms. G filed her variation application on October 29, 2013, less than four months after Justice Beaton granted her order. [5] Mr. and Ms. S and Ms. G have participated in this proceeding: N’s father has not. Of those parties participating, all are self-represented. The Minister of Community Services has maintained a watching brief: counsel and a social worker have attendedthroughout this proceeding. [6] There was a pre-trial conference on February 26, 2014. It was attended by Ms.

G and by Mr. and Ms. S. [7] At the conference, and in the resulting conference memorandum, I explained that the first step in a variation application isproving that there has been a material change in circumstances. Subsection 37(1) of the Maintenance and Custody Act requires that therebe a “change in circumstances since the making of the last order or variation order.” It must be shown that the circumstances whichexisted when Justice Beaton granted her order have changed, so that I have legal authority to change that order to a new order whichreflects N’s best interests, in the new (changed) circumstances.

I identified that this requirement is found in the Supreme Court ofCanada’s decision in Gordon v.

Goertz, (SCC), [1996] 2 SCR 27 and I excerpted paragraph 13 where JusticeMcLachlin wrote: It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in thecondition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materiallyaffects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made theinitial order. [8] I provided the parties with the citation to the decision and told them where they could find the decision, both online andthrough the Family Division’s Family Law Information Centre. [9] The parties disagreed that there had been a material change since the June 2013 consent order was granted.

Ms. G identifiedcircumstances which she believed had changed and I directed her attention to the requirement that the change must have occurred sincethe date of the order she sought to vary (i.e., since June 3, 2013). The changes she identified had not occurred since that date. [10] Discussing the application further, I learned that Ms. G proposed to call two witnesses at a hearing. Mr. and Ms. S proposed tocall seven. Anticipating that a hearing involving that many witnesses would take some months to occur, I decided to divide theapplication into two stages.

The first stage would be a brief hearing to determine whether there had been a material change incircumstances such that the prevailing order was no longer in N’s best interest. If I determined that there was such a change, the secondstep of the proceeding would be scheduled. At this second stage, I’d hear evidence about what custodial arrangements would be in N’sbest interests. If I determined that there had been no change, I would dismiss Ms. G’s application following the first stage. This hearing – the first stage [11] The first stage hearing was held on July 4, 2014. At it, Ms.

G was to testify about changes that she believed had occurred sinceJune 3, 2013. Mr. and Ms. S were offered the chance to cross-examine Ms. G about her evidence and to offer their own evidence aboutthis. Ms. G would be able to cross-examine them. [12] Prior to the hearing, Ms. G provided a letter to me stating ,“The material change in circumstances that has occured is a move toa beautiful, comfortable, safe spacious apartment in Halifax, Nova Scotia. I quit smoking cigarettes.” The Ss did not receive a copy ofthis letter, but learned of it when the hearing began. [13] At the hearing, I heard evidence from Ms.

G and from Ms. S. Both were cross-examined. [14] According to Ms. G, she believes she’s healed from the car accident she had in February 2011 where she sustained a thirddegree concussion. She no longer sees a therapist. She is on no medication related to her mental health. [15] Ms. G says she’s moved to a beautiful south end Halifax apartment with a bedroom for N. She plans to home school N andarranged for this both last year and this year.

She is a Christian and brings her faith to her plan and prays that N will be returned to herfull custody, with no requirement of ongoing contact between N and any other relatives who have previously been part of her life. [16] Ms. G also read three letters of reference. One letter, dated May 23, 2013, was from Donna Sutton, the director of the BayersWestwood Family Support Service, who spoke positively of Ms. G’s contribution as a parent at the Service and described herparticipation in its programs. A second letter, dated March 17, 2013, was from Laya Evelyn who had been Ms.

G’s instructor while shewas a student at the Nova Scotia College of Art and Design. It, too, described Ms. G in positive terms. Lastly, there was a letter datedApril 16, 2013 from Lana Pinsky, who is involved with a reading support program in which Ms. G was a valued volunteer. These lettersweren’t provided as exhibits: Ms. G read them to me. [17] Ms. G told me that she completed the Incredible Years parenting program. She also read to me from the Parenting Statementshe filed with her variation application. [18] In cross-examination I learned that Ms. G withdrew from therapy in 2012.

She attended therapy by her own choice. Whenasked if she was “back on medication”, she said she was not on any medication for her mental health. [19] Ms. G acknowledged that she continued to believe that Ms. S was molesting N and that N should not be able to see either of hisgrandparents. When asked if N should be kept in her apartment without any “exterior visitation”, she said that N should be in her home. She didn’t directly answer the question of whether N should attend public school, saying that she intended to home school him. When

asked if she still needed to call the police, 911 or the Department of Community Services for events that weren’t occurring, she said ithad been well over one year since she had done that. [20] In her evidence, Ms. S said that Ms. G’s address had changed and, in fact, it had changed twice. Ms. S said that Ms. G will saythat she isn’t safe and needs to relocate quickly. Ms. S said that Ms. G stopped seeing her therapist before the last order was issued, sothis isn’t a change in circumstances. She said there doesn’t seem to be anyone supporting Ms. G in dealing with her mental health. Ms. Ssays that Ms.

G’s letters to N contain inappropriate information, such as details of court proceedings. [21] Ms. S said that Ms. G’s last referral to the police was not more than one year ago, but was on May 22, 2014 when two RCMPofficers attended at her home following a referral that she had struck N with something metal, and N had metal lodged in his head. Inlight of the referral, the RCMP entered the home at 5 a.m. to observe N: it would have been insufficient to accept Ms. S’s word thatnothing was amiss. The law [22] As I noted in paragraph 7, the Supreme Court of Canada’s decision in Gordon v.

Goertz, (SCC), [1996] 2SCR 27 dictates that before I may vary a parenting order, there must either be a change in the child’s condition, means, needs orcircumstances or a change in the parent’s ability to meet the child’s needs. This change must be material (it must be relevant to thechild’s circumstances). Lastly, the change must not have been foreseeable or reasonably contemplated when the last order was made. [23] Material change is more than a threshold to be crossed before varying a parenting order.

All parenting applications, includingvariation applications, are determined on the basis of the child’s best interests. Initially proving that there has been a material changeestablishes that the current order is no longer in the child’s best interests. When an order is no longer in a child’s best interests it isappropriate that the order be varied and a new order be granted which reflects the child’s best interests in the current circumstances. [24] Gordon v. Goertz, (S.C.C.) was decided in the context of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3. Here, Ms.

G’s application is pursuant to the Maintenance and Custody Act. The consideration of best interests mandated by the DivorceAct is equally relevant to this application: subsection 18(5) of the Maintenance and Custody Act requires that “[i]n any proceeding underthis Act concerning care and custody or access and visiting privileges in relation to a child, the court shall apply the principle that thewelfare of the child is the paramount consideration.” [25] Ms.

G described various aspects of her circumstances to me (her attendance at the Bayers Westwood Family Support Service,her volunteer work at the city library, her new apartment, her intention and preparation for home-schooling N, and her termination oftherapy). She has received glowing personal recommendations from Ms. Sutton, Ms. Evelyn and Ms. Pinsky. Of these things, almost allpre-dated the June 3, 2013 parenting order. The only new circumstance is her new apartment. [26] Based on the testimony I heard, N’s custody was not given to his paternal grandparents because Ms. G’s home was inadequatein any way.

So, the fact that she has moved to a new home, while it is a change, is not a material change. [27] There is no evidence that N’s conditions, means, needs or circumstances have changed in a way that means the current order isnot in his best interests. In fact, I am aware of some changes in his circumstances that show the current order is in his best interests: heno longer needs to take

part in learning centre programming for children with special needs at school. Instead, he is an A student. Henow has contact with both his maternal and paternal grandparents. Conclusion [28] I find there has not been a material change in circumstances since the last parenting order was granted on June 3, 2014 and Idismiss Ms. G’s application. Elizabeth Jollimore, S.C.J.(F.D.) Halifax, Nova Scotia