Simpson v. Kinshella, 2016 NSSC 377

SUPRME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Simpson v. Kinshella , 2016 NSSC 377 ENDORSEMENT April 21, 2016 Matthew Simpson and Shalane Kinshella File No. SFHMCA-094278 Meg E. Green appearing on behalf of Matthew Simpson Katelyn Viner appearing on behalf of Shalane Kinshella Matthew Simpson has made an application under

section 18 of the Maintenance and Custody Act. He is seeking shared custody and a week on, week off parenting arrangement. Shalane Kinshella is seeking sole custody and specified supervised access at Veith House for Matthew Simpson with the child, Aislyn Elizabeth Simpson born […], 2013. Both parties have confirmed they are not asking the court to grant an order dealing with

section 11 of the Maintenance and Custody Act. Decision : [ 1 ] The parties will have joint shared custody of the child. [ 2 ] The current shared parenting arrangement will continue, three days on and then three days off until Aislyn's next birthday, […] , 2016. [ 3 ] As Aislyn ages the parenting arrangement will vary to allow for more extended parenting time with each parent and at age 5 the parenting arrangement will become week on, week off.

More specifically: • on Aislyn's third birthday the parenting arrangement will vary to four days on and then four days off; • on Aislyn's fourth birthday the parenting arrangement will vary to five days on and then five days off; • on Aislyn's fifth birthday the parenting arrangement will vary to seven days on and then seven days off; and • The above noted parenting arrangement will continue unless there is agreement between the parties otherwise (which agreement must be in writing), or there is a further order of this court. • Week on, week off (as of age 5): o Week 1: ▪ For the first week of the week on week off schedule, the parent will have the child in his / her care from Monday after school through to the following Monday at which time she / he shall drop the child off at school.

In the event the Monday is a holiday or a professional development day for the child's teacher, the exchange shall occur at noon. ▪ The person who does not have care of the child that week will have the child for a visit on Wednesday from after school through to 6:00 p.m. o Week 2: ▪ He or she will have the child in his / her care from Monday after school through to the following Monday at which time he / she shall drop the child off at school.

In the event the Monday is a holiday, or a professional development day for the child's teacher, the exchange shall occur at noon. ▪ The person without the child that week will have the child for a visit on Wednesday after school through to 6:00 p.m.

[ 4 ] The following holiday periods will be considered to be outside the usual parenting routine referred to above: • Christmas holiday o In all even numbered years Ms. Kinshella shall have care of the child between 3:00 p.m., (or after school if applicable) on December 20 to 3:00 p.m., on December 26. o In all odd numbered years Mr. Simpson shall have care of the child between 3:00 p.m., on December 20 to 3:00 p.m., on December 26. o In all even numbered years Mr.

Simpson shall have care of the child between 3:00 p.m., on December 26 through to January 2 (of the following odd numbered new year), with drop off at 3:00 p.m . o In all odd numbered years Ms. Kinshella shall have care of the child between 3:00 p.m., on December 26 through December 31 and through January 2 (of the following even numbered new year), with drop off at 3:00 p.m. o Or by agreement of the parties, which shall be in writing. • Family day (February each year) o In all odd numbered years Ms.

Kinshella shall have care of the child from 10:00 a.m., to 6 p.m., on family day, if she does not already have care of the child that day. o In all even numbered years Mr . Simpson shall have care of the child from 10:00 a.m., to 6 p.m., on family day, if she does not already have care of the child that day. o Or by agreement of the parties, which shall be in writing. • Additional winter or spring holiday (March break or choice of another week during the winter or spring months, 7 consecutive days total/ maximum).In all even numbered years Ms.

Kinshella shall have the first choice (excluding Christmas dates accounted for above) of seven consecutive days in the winter or spring for a holiday. • In all odd numbered years Mr.

Simpson shall have the first choice (excluding Christmas dates accounted for above) of seven consecutive days for a holiday in the winter or spring. o Winter or spring holiday - l5 1 Choice must be communicated to the other party in writing before October 31 st every year or the first choice reverts to the other person. o Winter or spring holiday - 2 nd Choice for other parent must be communicated by November 15 th or on six weeks' notice to the other parent. o The extra 7 days (winter / fall holiday) may run consecutively with the Christmas holiday period allocated that year to create an opportunity for a two week winter vacation period. o Or by agreement of the parties, which shall be in writing. • Summer holiday (beginning the first Sunday of the full week of July and ending the last Sunday of the last full week of August). o In all odd numbered years Ms.

Kinshella shall have first choice for her four weeks of summer holiday. o In all even numbered years Mr. Simpson shall have first choice for his four weeks of summer holiday . ▪ Communicate the first choice in writing by May 1 st or the first choice reverts to the other person . ▪ Communicate the 2 nd choice in writing by May 31 st or on 6 weeks’ notice. ▪ 4 weeks for Ms. Kinshella / 4 weeks for Mr.

Simpson • No more than 2 weeks consecutive weeks until the child turns 6 years of age. • No more than 3 weeks consecutive weeks until the child turns 8 years of age. • May have 4 weeks consecutive weeks after the child turns 12 years of age. • Or by agreement of the parties, which shall be in writing.

• Easter weekend o In all even numbered years Ms. Kinshella shall have the child in her care from Thursday morning at 10:00 a.m., to Monday afternoon at 3:00 p.m. o In all odd numbered years Mr. Simpson shall have the child in his care from Thursday morning at 10:00 a.m., to Monday afternoon at 3:00 p.m. o Or by agreement of the parties, which shall be in writing. • Mother's day o Ms.

Kinshella shall have the opportunity to have the child in her care on Mother's day from 10:00 a.m., to 6:00 p.m., if she does not already have care of the child that day. o Or by agreement of the parties, which shall be in writing. • Victoria day weekend o In all odd numbered years Ms. Kinshella shall have the child in her care beginning on Friday at 6:00 p.m., through to Monday at 3:00 p.m. o In all even numbered years Mr. Simpson shall have the child in his care beginning on Friday at 6:00 p.m., through to Monday at 3:00 p.m. o Or by agreement of the parties, which shall be in writing. • Father's day o Mr.

Simpson shall have the opportunity to have the child in his care on Father's day from 10:00 a.m., to 6:00 p.m., if he does not already have care of the child that day. o Or by agreement of the parties, which shall be in writing. • Halloween o In all even numbered years Ms. Kinshella shall have the child in her care beginning at 3:00 p.m., to 6:00 p.m. on Halloween, if she does not already have care of the child that day. o In all odd numbered years Mr.

Simson shall have the child in his care beginning at 3:00 p.m., to 6:00 p.m., on Halloween day, if he does not already have care of the child that day. ▪ As the child grows older the length of time can be extended: • Between 4 - 8 years of age 3:00 p.m., until 7:00 p.m. • Between 8 - 10 years of age 3:00 p.m., until 8:00 p.m. • Or by agreement of the parties, which shall be in writing. • Thanksgiving weekend o In all odd numbered years Ms. Kinshella shall have the child in her care beginning on Friday at 6:00 p.m., to Monday at 3:00 p.m. o In all even numbered years Mr.

Simpson shall have the child in his care beginning on Friday at 6:00 p.m., to Monday at 3:00 p.m. o Or by agreement of the parties which shall be in writing. • Child's birthday ([…]) o In all even numbered years Ms. Kinshella shall have the first option to plan a birthday party for the child. o In all odd numbered years Mr. Simpson shall have the first option to plan a birthday party for the child.

o If either party does not wish to exercise their option to plan a party they shall notify the other party at least eight weeks in advance. o The parent planning the party shall have care of the child between 10:00 a.m., and 6:00 p.m., if they do not already have care of the child. o Or by agreement of the parties which shall be in writing. • Ms. Kinshella's birthday ([…]) o On Ms. Kinshella's birthday she shall have the child from 10:00 a.m., to 6:00 p.m., or if applicable after school for dinner until 6:00 p.m., if it is not already her parenting time with the child. • Mr. Simpson's birthday ([…]) o On Mr.

Simpson's birthday he shall have the child from 10:00 a.m., to 6:00 p.m., or if applicable after school for dinner until 6:00 p.m., if it is not already his parenting time with the child. [ 5 ] Either parent traveling with the child outside of HRM shall provide a minimum of 24 hours advance notice in writing to the other party and shall provide contact information in writing where the child can be reached. [ 6 ] Either parent traveling with the child outside of the province of Nova Scotia shall provide a minimum of 2 weeks advance notice in writing to the other party and shall provide a copy of their trip itinerary and contact information in writing where the child can be reached. [ 7 ] Either parent traveling with the child outside of the country of Canada shall provide a minimum of 6 weeks advance notice in writing to the other party and shall provide a copy of their trip itinerary and contact information in writing where the child can be reached. [ 8 ] Consent of the other party is required to travel outside of Canada.

Neither party will unreasonably withhold their consent for the other party to travel with the child outside of Canada. Neither party is permitted to withhold their consent due to multiple border crossings occurring during the planned vacation. [ 9 ] The child's documentation such as, but not limited to, passport, SIN, citizenship card, birth certificate shall be in the care of Ms. Kinshella for the remainder of 2016. The child's documentation shall be in the care of Mr. Simpson in 2017.

This arrangement shall rotate each year. [ 10 ] The parties will share the responsibility for booking the child' s medical, dental and counseling appointments each year on a rotational basis as follows: • In 2016 Ms. Kinshella will be responsible for booking all of the child's appointments. She shall provide to Mr. Simpson in a timely manner the date and time of the child's appointments. • In 2017 Mr. Simpson will be responsible for booking all of the child's appointments. He shall provide to Ms.

Kinshella in a timely manner the date and time of the child's appointments. • Both parents shall have the right to attend the child's appointments. The parent who has care of a child during a scheduled appointment time shall be responsible for bringing the child to the appointment.

If the parent is unable to take the child, he / she must immediately notify the other parent. • If only one parent attends the appointment, he / she will notify the other parent by online parent communication program such as Family Wizard of the outcome of the appointment. • Both parties shall have the right to access and obtain all professional information relating to the child from third parties such as but not limited to, healthcare providers, teachers, counsellors, dentists, etc. • If she has not already, Ms.

Kinshella will share the names and contact information of any professionals involved with the child such as healthcare providers (doctor / dentist) with Mr. Simpson.

o The parties will follow the recommendations of the child's family doctor. [ 11 ] Education • School Placement o The parties shall consider the shared parenting arrangement and how best to ensure Aislyn is able to maximize contact with both parents while attending pre-school or school. o Both parties shall have the right to attend school events including the first day of school, school concerts, and parent / teacher meetings. [ 12 ] Communication • With the exception of emergency contact, any contact necessary to fulfill the terms of this order shall be by way of an online family communication program such as Family Wizard. • The cost of the program shall be shared proportionately according to the parties' respective incomes. • Mr.

Simpson shall take responsibility to set up the program. [ 13 ] Sharing clothing / toys or items for extracurricular activities • There is an expectation the child's personal effects (favourite toy, clothing items etc... ) will move between households without restriction. [ 14 ] Facilitation of exchanges for parenting time. • Each parent shall provide the other parent with a list of five names of persons who they have identified as willing and able to transport the child to the pick up or drop off location. o Each person identified by either party must agree to conduct themselves in a child friendly manner and must be willing to communicate with the pick up or drop off person regarding any child related updates only. o The persons identified as transporting the child must be willing to provide their full name and their contact information to the other parent. o If it is necessary to have a person who is not on either parent's list facilitate either pick up or drop off, the parent must provide that person's name and contact information in advance of the pick up or drop off.

This information may be communicated by text or telephone. o The drop off and pick up location shall remain at the Quinpool location. o These terms may be varied by written agreement of the parties. [ 15 ] Neither party may relocate with the child without a written agreement between the parties or further order of this court. • The parties must provide at least three months’ notice of any intention to relocate. • The parties shall not discuss any plan to relocate with the child until a written agreement is reached or an order of the court is granted. • Both parties shall provide the other party with contact information including up to date telephone contact information and email addresses, which are to be used in emergency or urgent circumstances only.

All other communication shall be through an online family communication services such as Family Wizard. Reasons :

[ 16 ] I am concerned that wholesale upheaval of the current parenting arrangement and prevailing regime may have further adverse effects on the child. [ 17 ] Aislyn is forming an attachment to both Ms. Kinshella’s new partner and her new little brother. In addition, Aislyn is attached to Mr. Simpson, and is forming attachments with his new partner and both his and her extended family. Aislyn needs and deserves an opportunity to strengthen all of those attachments and to develop additional attachments with Ms. Kinshella's extended family.

It is in Aislyn's best interest that she form secure attachments. [ 18 ] There have been allegations of domestic violence. There are significant problems related to the evidence presented by both parties and credibility issues related to the evidence overall. I have considered the allegations of domestic violence and while always serious, on the whole of the evidence I have concluded that Mr. Simpson's parenting time with Aislyn should not be limited in any way. [ 19 ] Mr. Simpson is not asking that Ms.

Kinshella's time with Aislyn be limited. [ 20 ] I have considered the evidence presented from both parents indicating that Aislyn appears unsettled or is struggling with the transitions between the parties' respective homes.

Again, there are significant problems related to the hearsay evidence presented with respect to what Aislyn has reported to both parties and specifically under what circumstances Aislyn may have made any of those comments. [ 21 ] Both parties have acknowledged ongoing animosity and failure to communicate effectively. [ 22 ] I conclude that Aislyn, who has experienced or witnessed ongoing negativity from her parents and others may have formed or is at risk of forming an insecure attachment to either parent or both her parents. I have concluded that the ongoing tension between Ms.

Kinshella, including her network of support people with Mr. Simpson and his network of support people, is the likely cause of any behavioural problems being exhibited by Aislyn. [ 23 ] I find on the evidence that both parents are good parents and are reliable, available and responsive to Aislyn's needs on a day to day basis, with the exception of supporting her need to be permitted to have a positive relationship with the other parent. [ 24 ] I am concerned about Ms. Kinshella's unwillingness to communicate with Mr.

Simpson, his partner or their extended families in a manner that keeps Aislyn's best interests as the primary consideration. I am also concerned about Mr. Simpson's difficulty communicating with Ms. Kinshella and his choice to continue to ask his new partner or his new partner's mother to facilitate any communication between the parties. I'm also concerned about whether Mr. Simpson recognizes it is in Aislyn’s best interest to meet and form relationships with Ms. Kinshella's extended family. I do conclude Mr.

Simpson appears ready to make an effort to put the past animosity behind him. [ 25 ] I conclude that if Ms. Kinshella is able to reduce the amount of stress in her life (including putting this litigation behind her), and is able to expand her support system (as she appears willing to seek assistance through counseling and wishes to connect with her extended family), that the communication between she and Mr. Simpson (and his support network) will improve over time. [ 26 ] I have considered the relevant legislation and case law. I do reserve the right to issue fuller reasons in the form of a judgment.

Directions : [ 27 ] Legal counsel for Mr. Simpson, Meg Green will prepare and circulate a draft order within two weeks of receiving this Endorsement. The draft order will be sent to legal counsel for Ms. Kinshella, Katelyn Viner. If there are outstanding questions or

concerns in relation to the above noted Endorsement the parties may make arrangements to return to court for a half hour conference. Costs : [ 28 ] Each party will bear their own costs. Cindy G. Cormier, J.S.C. (F.D.)