E.P. v. S.P., 2016 NSSC 173

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: E.P. v. S.P. , 2016 NSSC 173 Date: 2016-06-30 Docket: SFHMCA-100473 Registry: Halifax Between: E.P. Applicant v. S.P. Respondent Judge: The Honourable Justice R. Lester Jesudason Heard: June 17, 2016 Final Written Submissions: June 28, 2016 Counsel: Mark Knox, Q.C., for the Applicant Judy Schoen, for the Respondent By the Court: Introduction [ 1 ] When parents suffer a breakdown in their relationship, children often get caught up in the middle of their conflict.

Such a statement is neither profound nor novel. [ 2 ] While some parents make every effort to shield their children from the effects of such conflict, unfortunately, this is not one of those cases. To the contrary, these parents have inserted their children directly into a high conflict parenting dispute. [ 3 ] It is in this context that I have been asked by their father to order a Voice of the Child Report to assist me in determining what parenting arrangement is in the children’s best interests. The mother opposes this request. Background [ 4 ] The parties have been married for 27 years.

They are now both 50 years of age. The father is a dentist and operates his own dental practice. The mother is a physiotherapist. [ 5 ] They parties have two children, a daughter who will turn 17 years old on July 25, 2016, and a son who turned 14 years old on May 11, 2016. They will be entering Grade 12 and Grade 9 in September. [ 6 ] On the surface, the family appeared to be doing well. The parents’ combined financial resources have allowed the family to be mortgage free since 2004, enjoy international vacations and allowed the children to attend private schools.

The children appear to be active teenagers who have close bonds with both of their parents. I am satisfied that both parents very much love their children. [ 7 ] Despite these outwardly appearances, the parties had significant problems in their marriage going back several years which have intensified recently. There are allegations of physical and emotional abuse and concerns about the other party’s mental state. [ 8 ] Unfortunately, as noted earlier, the children have been very much dragged into their parents’ difficulties.

Each parent asserts that the other is trying to unduly influence the children to turn them against him or her.

[ 9 ] Much of the extensive evidence presented to me for this motion appears to be irrelevant or, at best, marginally relevant to the narrow issue before me of whether or not I should order a Voice of the Child Report. Counsel for the parties readily acknowledged this to be the case and suggested that much of the evidence was presented in relation to the father’s separate motion for interim custody which is not currently before me.

Thus, given the marginal relevance of much of that information to the present motion, and my desire to respect the parties’ privacy, I see no need to get into specific details with respect to many of those allegations now. I will say that many of those allegations are quite concerning and will likely need to be canvassed in more detail when determining interim parenting arrangements.

Again, however, determining that issue is for another day. [ 10 ] I do wish, however, to briefly discuss the manner in which the parties separated which, in my view, has resulted in additional conflict for the parties and, more importantly, for their children. Those circumstances have also made the father’s request for a Voice of the Child Report, at least from his perspective, ver time-sensitive. The Separation [ 11 ] On February 7, 2016, the mother and son returned from the son’s cross-country skiing competition in Ottawa. The father picked them up at the airport.

When they returned to the family home, the father indicated that the daughter was at a friend’s house. The mother went upstairs while the father said that he wanted the son to come help him move something in the backyard. [ 12 ] While upstairs, the mother noticed that the father’s clothing was missing. She had also previously noticed that the son’s Xbox was missing when she entered the home and thought this was odd. [ 13 ] Shortly thereafter, the mother received a call from the father advising that he was separating from her and that he had taken the children with him.

He advised that he would be keeping the children for the week and that she could have them the following week. The mother claims that when she demanded that he bring the children back, he refused and said that the children “need time to adapt”. [ 14 ] The mother claims that the father refused to disclose the location of the children. As a result, she used the children’s “Find My Phone” application to determine their location and, after doing so, called 911. [ 15 ] The father had taken the children to a house which he had rented in the south end of Halifax.

After the mother’s 911 call, two police officers went to that property. They spoke with the children and then spoke with the father. After doing so, they left without requiring that the children be returned to the mother. They then went back to the matrimonial home to advise the mother that the children were okay and that the father and the children wanted her to know that the children loved her very much but thought she needed time to adapt. [ 16 ] The father acknowledged that, several weeks prior to this, he had discussed his plans to separate from the mother with the children.

His rationale for doing so was because he believed that the mother had begun a “campaign” of repeating unfounded allegations about his mental state to the children. [ 17 ] Since the separation, the conflict between the parties has further intensified. For example, the father’s father passed away on March 7, 2016. The mother was very close to her father-in-law and attended the nursing home to pay her respects.

Unfortunately, at the nursing home, the parties got into a heated argument during which the father claimed that the mother became physical with him. [ 18 ] Despite their separation, the parties did take a previously scheduled vacation to Florida this past March. The parties stayed in different units and the children spent time with each of them separately. Possible Relocation to Florida [ 19 ] The father claims that he and the mother had a longstanding plan to relocate with the family to Florida.

He says that they both agreed this would provide better educational and other opportunities for the children as well as offering a more lucrative dental market.

He says that the plan to relocate was concluded by December 2013 and, from that point onward, the parties took several steps in contemplation of a potential move which included: • he spent a significant amount of time going through the process of transferring his professional credentials to Florida including writing the necessary licensing exams; • he listed his dental practice for sale; • the parties listed their matrimonial home for sale; • the mother took steps to obtain her physiotherapy accreditations in Florida; • the parties looked at public and private schools for the children during a trip to Florida in March 2014; and

• he took the children to look at schools in Florida again during the recent March vacation. [20] The father says that he now has an offer to purchase his dental practice and associated commercial property with a closing dateof July 31, 2016. He also says that he has received a tentative job offer starting on August 1, 2016, from a corporately-run dental clinicin Orlando. Finally, he indicates that, as a result of viewing schools this March, the children are very interested in attending a privateschool in suburban Orlando.

The daughter has apparently been accepted into that school and, according to the father, wants to relocatewith him when he moves by the end of July. The school requires confirmation of enrollment and a substantial deposit in order for her tosecure her spot for this September. Thus, the father sees the daughter’s situation as being more urgent than with the son. [21] The mother does not generally dispute the parties’ post-December 2013 efforts to prepare for a potential move to Floridaalthough she says that there was no consensus on a move.

She points out that, after receiving no offers to purchase the matrimonialhome, the parties agreed to take it off the market. She also says that she has learned that it will be very difficult for her to transition hercredentials to Florida. The mother says that the father is now pressuring the move to Florida on the family and that she opposes it. Shedoes say, however, that she would not be opposed to the daughter moving to Florida and relocating to be with the father after shecompletes Grade 12 in Halifax if that is the daughter’s wish.

The Law [22] Parenting decisions are governed by s. 18 of the Maintenance and Custody Act. The paramount consideration is what is in thechildren’s best interests. In this regard, I should consider all relevant circumstances, particularly the ten circumstances enumerated insubsection 18(6).

One of the circumstances I should consider is the children’s views and preferences if I consider it appropriate toascertain them given the children’s ages, stages of development and if their views and preferences can reasonably be ascertained(subsection 18(6)(f)). [23] The concept that children should, where appropriate, have a voice in proceedings which affect them is not new. Indeed, supportfor same can be found in a number of sources including the following: 1. United Nations Convention on the Rights of the Child, Can. T.S. 1992 No.

Article 12 states: 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely inall matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with theprocedural rules of national law.

Section 19 of the Maintenance and Custody Act states: At the hearing of an application under

Section 18…a court may request the Minister to cause a written report to be made to the courtrespecting the child and his parents or guardian.

Section 32F (1) of the Judicature Act states: Upon application or on the judge’s own motion, a judge of the Supreme Court (Family Division) may direct a family counsellor, socialworker, probation officer or other person to make a report concerning any matter that, in the opinion of the judge, is a subject of theproceeding. [24] A number of authorities provide helpful guidance on the approach to be followed when faced with a request for a Voice of theChild Report. These include Farmakoulas v. McInnis, (1996) (NS SC), 152 N.S.R. (2d) 52, Jarvis v. Landry, 2011NSSC 116, MacLean v. Boylan, 2011 NSSC 314, John v.

John, 2012 NSSC 324 and Moore v. Moore, 2013 NSSC 252. [25] In addition, the recent Voice of the Child Report Guidelines (the “Guidelines”) released by the Nova Scotia Department ofJustice Court Services in 2015, provides further guidance on the purpose and scope of Voice of the Child Reports. These Guidelineswere developed by an advisory committee comprised of mental health professionals, members of the judiciary, senior legal counsel andpolicy makers involved in family law matters. [26] When I consider the above sources, the following principles emerge:

• A Voice of the Child Report should be ordered when it is necessary and appropriate to the determination of the best interests of the child; • Given that assessments are, by their very nature intrusive, they should not simply be ordered as a matter of course or as part of a “fishing expedition”; • The burden is on the party requesting the report to demonstrate that a professional opinion is needed; • Reports should be ordered where there is a specific need for the type of information they generate and the information would not otherwise be available because it falls within the special knowledge of the expert; and • Special information and knowledge of the expert referred to above could include, but is not limited to, situations where there are clinical issues to be determined and/or situations where the conflict between parents makes it unlikely that the court would receive objective evidence upon which to determine the views and preferences of the child. [ 27 ] The Guidelines also provide a list of factors which may be considered when deciding whether or not a Voice of the Child Report should be ordered.

In my view, they are non-exhaustive.

They include: 1. the stage of the proceedings (timing); 2. the nature of the contentious issues; 3. whether the child is willing and able to play a meaningful role in the process; 4. the age and stage of development of the child; 5. the child’s maturity level; 6. whether the child’s views and preferences can be reliably ascertained; 7. how best to obtain reliable information regarding the child’s views and preferences; 8. the importance of minimizing emotional stress to the child; 9. preserving the child’s relationship with each parent; 10. cost effectiveness and efficiency; and 11. encouraging settlement and reducing conflict.

Position of the Parties [ 28 ] The father’s position is that given that the parties disagree about the amount of influence each of them has had on the children’s preferences for parenting arrangements, it would be beneficial to the overall process to have a Voice of the Child Report prepared.

He believes that, if done appropriately, this would diminish any stress and pressure which the children may feel in having to make a choice in their parenting arrangements. [ 29 ] The mother’s position is that the children have expressed to her that it is stressful for them to decide which parent they wish to live with should the father move to Florida. While she admits that while both children, particularly the daughter, have at times suggested that they want to move to Florida, their views waver depending on the day.

Furthermore, she says that many of the children’s comments were made prior to the separation so that they would have not have made them thinking they would have to choose which parent they were to live with. [ 30 ] The mother also believes that the children have been way too involved in decision-making in the past and have been put in situations where they have been manipulated by the father.

She therefore suggests that it would be more appropriate to have a full Custody and Access Assessment done as opposed to a Voice of the Child Report which provides only limited information and is a “small snapshot of what is occurring on any given day”. The mother submits that, in the event I decide to order such a Report, I should direct that the assessor be provided with the affidavits which have been filed in this proceeding for more context.

Analysis [ 31 ] After carefully considering the evidence before me, and the positions of the parties, I conclude that it is appropriate to order that a Voice of the Child Report be prepared in relation to the children. I do this primarily for the following reasons: 1. Given the children’s ages, ascertaining their views and preferences is necessary and appropriate when determining what parenting arrangement is in their bests interests; 2.

A Voice of the Child Report will allow an independent third party to elicit their views and preferences and to assess whether the children have been coached, manipulated or influenced and if their views and preferences are genuine, mature and appropriate; 3. The parties have only recently separated and this proceeding is at its early stages. Thus, obtaining a Voice of the Child Report would not unduly delay the litigation and may help streamline the issues and encourage a potential resolution of the parenting issues; 4.

Given the financial position of the parties, the cost of obtaining such a report is well within their means; 5. Assuming the children wish to participate in the process, a Voice of the Child Report may minimize their emotional stress: they will not have to side with one parent against the other or tell each parent what they think that parent wants to hear; 6. Where the children will be speaking with the assessor about their views and preferences, this should encourage the parents to stop seeking to drag their children into what has clearly become a high conflict parenting dispute; and 7.

A Voice of the Child Report would likely provide me with independent information about the children’s views and preferences, and whether those views and preferences are uninfluenced. This information would likely not be available to me in a reliable manner otherwise. Conclusion [ 32 ] The father has met his burden of demonstrating that a Voice of the Child Report should be ordered. I decline the mother’s suggestion that I should direct that the assessor review the affidavits which have been filed.

In my view, it is more appropriate to leave it to the assessor to decide what additional material, if any, he or she wishes to review in order to properly conduct the assessment. Thus, the order will allow the assessor to review the contents of the court file should he or she wish to do so. [ 33 ] As I indicated during the hearing, I expect that there may be practical timing issues in seeking a Voice of the Child Report through the court appointed process before the father’s contemplated move by the end of July.

Thus, given that the parties appear to have relatively healthy financial means, I leave it to them to explore whether engaging an assessor privately could potentially expedite the preparation of the Report.

I also caution the parties that, as I emphasized during the hearing, the children’s views and preferences are but one of several factors that I should consider when determining what parenting arrangement is ultimately in their best interests. [ 34 ] I would ask counsel for the father to prepare an appropriate order reflecting my decision and suggest that the parties try to agree on the parameters of the Voice of the Child Report. Again, useful suggestions are found in the Guidelines.

In the event the parties cannot agree, I reserve the jurisdiction to impose any terms with respect to same. [ 35 ] Finally, I ask counsel to contact Scheduling to request a 30-minute appearance on my docket as soon as possible so that we can discuss how to move this file forward on an appropriate basis.

However, I stress that simply because the father may believe that, on account of his desire to move by the end of July, this timeframe should be treated as a “deadline”, this does not mean that I can simply allow this matter to jump the queue at the expense of other families whose matters, at least from their perspectives, are equally pressing. R. Lester Jesudason, J.