Head v. Brown, 2019 NSSC 213

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Head v. Brown, 2019 NSSC 213 Date: 2019-07-18 Docket: SFHMCA-105421 Registry: Halifax Between: Lindsay Johanna Head Applicant v. Richard Bennett Brown Respondent Library HEADING Judge: The Honourable Justice R. Lester Jesudason Heard: May 1 and 2, 2019 Final Appearance: June 20, 2019 Written Decision: July 18, 2019

Summary: Parties separated in September 2015. They live in Halifax and have an eight-year-old child in a shared parenting arrangement. Mother sought to relocate with the child to Guelph, Ontario. Father requested that the child remain in Halifax in his primary care. Issue: It is in child’s best interests to relocate with Mother to Guelph, Ontario, or remain in Halifax in the primary care of the Father? Result: Relocation request dismissed. Best interests of the child to remain in Halifax in the Father’s primary care.

Key Words: Family Law; Relocation Request; Best Interests; Substantially Shared Parenting Arrangement. Legislation: Parenting and Support Act , R.S.N.S., 1989, c. 160, ss. 18(5) , 18H , 37 , 52 . 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: Head v. Brown , 2019 NSSC 213 Date: 2019-07-18 Docket: SFHMCA-105421 Registry: Halifax Between: Lindsay Johanna Head Applicant v.

Richard Bennett Brown Respondent Judge: The Honourable Justice R. Lester Jesudason Heard: May 1 and 2, 2019, in Halifax, Nova Scotia

Final Appearance (Telephone Conference with respect to Ms. Head’s Request to Introduce New Evidence): June 20, 2019 Written Release: July 18, 2019 Counsel: Christine J. Doucet for Lindsay Head Richard Brown, self represented By the Court: 1.0 INTRODUCTION: [ 1 ] I have been asked to determine where eight-year-old, Lilith, will live. [ 2 ] Her mother, Lindsay Head, requests that Lilith relocate with her to Guelph, Ontario. She makes this request for personal and financial reasons. Her main reason is to set up a home with her fiancé, Darryl Ritter.

She also believes her income may increase as a result of job opportunities available in Guelph. Ms. Head’s plan was to move to Guelph in late June, find a new apartment with Mr. Ritter, and then have Lilith join them at the end of August. [ 3 ] Lilith’s father, Richard Brown, strenuously opposes the move. He says the move will significantly impact his parenting time with Lilith and that a move isn’t in her best interests. He asks that Lilith be placed in his primary care should Ms. Head relocate to Guelph. 2.0 ISSUE: [ 4 ] The sole issue I must decide is whether it is in Lilith’s best interests to move with Ms.

Head to Guelph, Ontario, or remain in Halifax in the primary care of Mr. Brown. [ 5 ] To provide context for my decision, I will outline the relevant family and litigation history. 3.0 FAMILY AND LITIGATION HISTORY: 3.1 Family History [ 6 ] The parties resided together in a common law relationship from 2007 until September 5, 2015. Lilith was four when her parents separated. [ 7 ] Lilith just completed Grade 2 at the Burton Ettinger School in the Early French Immersion Program. She was enrolled in the before and after school Excel program during the school year. [ 8 ] The parties are in their early 40s.

At the time of the hearing, they both resided in rental apartments in the Clayton Park area of Halifax. [ 9 ] Ms. Head recently obtained a diploma from Eastern College. At the time of the hearing, she was employed as an occupational/physiotherapist assistant at Oakwood Manor in Dartmouth. She worked Monday to Friday from 8 a.m. to 4 p.m. Her 2018 Line 150 income was $43,544, consisting of employment income of $42,201, and a taxable capital gain of $1,343. [ 10 ] Ms. Head met Mr. Ritter when both were students at Eastern College. They have been dating since September 2016.

They became engaged in June 2018 and plan to get married in August 2020. Mr. Ritter works for Air Canada in IT and earns over $50,000 per year. [ 11 ] Mr. Brown has worked at Kent Building Supplies (“Kent”) for over 20 years. His work hours are 6:30 a.m. to 3:30 p.m., Monday to Friday. His 2018 Line 150 income was $23,257. He recently received a promotion which gives him a two dollar per hour pay increase so expects his annual income to be slightly under $30,000. He gets five weeks of vacation each year. [ 12 ] Mr. Brown resides with his partner, Loretta Bell. The two have been in a relationship since April 2016.

Ms. Bell works full- time at Shoppers’ Drug Mart and makes approximately $40,000 per year. [ 13 ] Mr. Brown has a twelve-year-old son, D, from a prior relationship. D stays with Mr. Brown and Ms. Bell every weekend from Friday to Sunday. [ 14 ] Mr. Brown has a medical condition, C2 neuralgia, that causes head and neck pain and requires regular nerve-block injections from a neurologist. Ms. Head also claims that Mr. Brown suffers from bipolar disorder – something which Mr.

Brown strenuously denies. [ 15 ] The parties entered into a separation agreement on March 21, 2017, which was registered with the court on April 17, 2018. The separation agreement was prepared by Ms. Head’s current lawyer. It indicated that Ms. Head worked two part-time jobs at Kent and Oakwood Terrace and had a 2016 gross annual income of $17,582, and that Mr. Brown worked at Kent and had a 2016 gross annual

income of $12,198. [16] The separation agreement provided that the parties would have joint and shared custody of Lilith. It established a parentingschedule whereby Lilith was in Ms. Head’s care every Sunday, Monday, Tuesday and Wednesday overnight, plus one weekend permonth. Lilith was in Mr. Brown’s care every Friday and Saturday overnight until Sunday at 5 p.m. except for Ms. Head’s one weekendper month. Thursdays were alternated between the parents. 3.2 Litigation History [17] On June 28, 2018, approximately two months after the separation agreement was registered, Ms.

Head filed a Notice ofVariation Application seeking an immediate change to the parenting schedule. She sought more weekend time with Lilith because shehad secured full-time employment at Oakwood Terrace and no longer had to work weekends. She also sought permission to relocate withLilith to Guelph in the summer of 2019. [18] The parties participated in a settlement conference with Justice Beaton on November 1, 2018. They agreed to the followingimmediate change to the parenting schedule, which is set out in the Consent Order (Parenting) issued on November 23, 2018.

WeekSunday Monday Tuesday WednesdayThursday Friday Saturday1 Mom Mom Mom Mom Dad Dad Dad2 Dad Dad Dad Mom Mom Mom Mom3 Mom Mom Mom Mom Dad Dad Dad4 Dad Dad Dad/MomMom Mom Mom Mom [19] The above

schedule began on November 1, 2018, and remains in place. [20] The parties also agreed on a Partial Consent Order (Mobility) which provided that the parent who does not have primary care ofLilith following Ms. Head’s move to Guelph, would have the following parenting time: a. Every March Break; b. 10 days of every Christmas vacation; c. Four weeks each summer vacation; and d. Other time in Guelph or Nova Scotia as agreed between the parties. [21] I conducted a hearing in relation to Ms. Head’s request that Lilith relocate with her to Guelph on May 1 and 2, 2019. I advisedthat I would be reserving my decision. Ms.

Head’s counsel filed some additional materials by consent on May 9, 2019. [22] On May 30, 2019, Ms. Head’s counsel sent a letter to the court requesting to introduce new evidence. She advised that Mr.Brown didn’t consent to same. [23] Written exchanges ensued between the court and the parties on how to deal with the request. A telephone conference was thenscheduled on June 20, 2019, to further discuss it. During that telephone conference, Ms. Head’s counsel advised that Ms. Head waswithdrawing her request to introduce new evidence. 4.0 THE LAW 4.1 Threshold for variation application [24] Ms.

Head’s variation application is brought under s. 37 of the Parenting and Support Act, R.S.N.S. 1989, c. 160 (“PSA”). Tovary the existing order, she bears the burden of establishing that there has been a material change of circumstances since the order wasmade: s. 37(1) of the PSA. [25] The leading mobility case is the Supreme Court of Canada decision of Gordon v. Goertz, (SCC), [1996] 2S.C.R. 27.

In paragraph 49 of that decision, the Supreme Court of Canada outlined a two-stage test for determining whether a parentshould be allowed to relocate with a child. [26] The first stage is a threshold issue which requires that the moving parent establish that there has been a material change ofcircumstances affecting the child which was either not foreseen or could not have reasonably been contemplated at the time the originalparenting order was made.

If that threshold is met, the second stage requires “embarking on a fresh inquiry into what is in the bestinterests of the child” which involves considering and balancing all the relevant factors. A “full and sensitive inquiry” into the bestinterests of the child is required. [27] Ms. Head says that her engagement to Mr. Ritter and her proposed move to Guelph with Lilith is a material change ofcircumstances which justifies a fresh assessment of what parenting arrangement is in Lilith’s best interests.

She says that the time fromwhich to measure the material change is from the date of her separation agreement (March 21, 2017) or when the separation agreementwas initially sent to the court to be registered (May 11, 2017). [28] With respect, I disagree that either of those dates are the relevant one from which to assess whether there has been a materialchange. Section 37(1) of the PSA gives me the jurisdiction to vary orders, not separation agreements which aren’t registered as orders.The separation agreement wasn’t a court order until it was registered under s. 52 of the PSA on April 17, 2018.

This is the appropriatedate from which to determine whether there has been a material change of circumstances.

[ 29 ] While Ms. Head’s lawyer submitted the separation agreement for registration in May 2017, no follow up was made until April 9, 2018: Exhibit 8. By that time, Ms. Head and Mr. Ritter has been in a relationship for over a year and a half, albeit a long-distance one because Mr. Ritter had moved back to Guelph in October 2017 when he got his job with Air Canada. [ 30 ] Despite Ms. Head describing her relationship with Mr.

Ritter as being a “very strong” one in April 2018, she still proceeded to register the separation agreement which had the effect of creating an order compelling shared parenting between she and Mr. Brown in the Halifax Regional Municipality. She and Mr. Ritter then became engaged a couple of months later in June 2018, and Ms. Head filed her variation application shortly thereafter on June 28, 2018, seeking to relocate to Guelph with Lilith. [ 31 ] In these circumstances, I have some difficulty with concluding, as required by the first threshold stage of Gordon v. Goertz , that Ms. Head’s engagement to Mr.

Ritter and proposed relocation to Guelph was something either not foreseen or could not have reasonably been contemplated at the time the original parenting order was made in April 2018. Notwithstanding this, I’m prepared to accept that her engagement to Mr. Ritter and proposed relocation is a material change in circumstances which allows me to revisit the parenting arrangements.

Thus, I will go on to embark on a fresh “full and sensitive inquiry” as to what parenting arrangement is now in Lilith’s best interests. 4.2 Statutory presumptions and evidentiary burden [ 32 ] Under s. 18(5) of the PSA , the paramount consideration is Lilith’s best interests. [ 33 ]

Section 18H (1) of the PSA contains statutory presumptions and burdens relating to a proposed relocation which depend on the existing parenting arrangement:

a) that the relocation of the child is in the best interests of the child if the primary caregiver requests the order and any person opposing the relocation is not substantially involved in the care of the child, unless the person opposing the relocation can show that the relocation would not be in the best interests of the child;

b) that the relocation of the child is not in the best interests of the child if the person requesting the order and any person opposing the relocation have a substantially shared parenting arrangement, unless the person seeking to relocate can show that the relocation would be in the best interests of the child;

c) for situations other than those set out in clauses (

a) and (b), all parties to the application have the burden of showing what is in the best interests of the child. [ 34 ] In determining the existing parenting arrangements in place, s. 18H (3) of the PSA directs that I must examine: (

a) the actual time each parent spends with the child; (

b) each parent’s day-to-day care-giving responsibilities for the child; and (

c) each parent’s ordinary decision-making responsibilities for the child. [ 35 ] Ms. Head asserts that, since separation, she has played a more significant role in the day-to-day responsibilities for Lilith and that, depending on how the parenting time is calculated, Mr. Brown may have Lilith in his care just under 41% of the time. Nevertheless, Ms. Head concedes that she bears the burden of proof to demonstrate that her proposed relocation is in Lilith’s best interests. Specifically, in her pre-hearing brief, she states: “Ms. Head acknowledges that she bears the burden of proving that the proposed relocation is in Lilith’s best interests, as made clear by sub-sections 18(H)(1)(

b) and (

c) of the PSA .” [Ms. Head’s Pre-Hearing Brief], Page 3; “Both [parents] have consented to equal responsibility for decision-making and neither is seeking control over any particular type of decisions. Without evidence to the contrary, we can assume both parents have therefore been equally involved in the decisions in Lilith’s life to date.” [Ms. Head’s Pre-Hearing Brief, Page 6]; and

“Technically, and depending which method of calculation is used, Lilith may be in the primary care of Ms. Head rather than truly in a shared parenting arrangement. For the purposes of this brief, however, it is not necessary to draw that distinction. Ms. Head acknowledges that Lilith spends significant time in the care of Mr. Brown. Regardless of the precise quantification of that time, she acknowledges that she bears the burden of proving that the proposed move to Guelph is in Lilith’s best interests .” [Ms. Head’s Pre- Hearing Brief, Page 5] [Emphasis added]. [ 36 ] I agree with Ms.

Head that she bears the burden to prove on the balance of probabilities that Lilith’s proposed relocation to Guelph is in Lilith’s best interests. Plainly, both parents have been substantially involved in Lilith’s care. Indeed, in their separation agreement drafted by Ms.

Head’s lawyer, the parties agreed to joint decision-making and acknowledged that “ Each of them shall continue to have a full and active role in providing a sound moral, social, economic and educational environment for the child” Exhibit 1, Page 6, Paragraph 12 [Emphasis added]. [ 37 ] Furthermore, it seems clear that the parties intended to have a substantially shared parenting arrangement and have equal decision-making authority for Lilith as demonstrated by the following provisions from their separation agreement: “The parties shall have joint and shared custody of [Lilith], and the following conditions shall apply: (

a) The parties will continue to make joint decisions with respect to major issues for the child such as those relating to health, education, and religion. (

b) The day to day decisions respecting the child shall be made solely by the caretaker of the child on any given day…” (para. 9); “The child “ shall spend approximately equal time with each parent… ” (para. 10); “In consideration of

section 9 of the Child Support Guidelines, given the shared parenting arrangement , the parties agree that neither party shall be required to pay child support to the other party.” (para. 13); and “ In recognition of the shared parenting arrangement , commencing June 1, 2017, the parties agree to share the Child Tax Benefit equally each month and will notify CRA of such agreement.” (para. 16) [Emphasis added]. [ 38 ] Under the separation agreement, Lilith would spend most of the school week with Ms. Head and most of the weekend time with Mr. Brown. Thus, during the school year, one could argue that Mr.

Brown spent comparable in person time with Lilith as Ms. Head. Again, the parties expressly acknowledged in their separation agreement that it was their intention to have Lilith spend “approximately equal time with each parent”. Furthermore, as noted earlier, Mr.

Brown’s parenting time was increased even further as a result of the Consent Order (Parenting) agreed to at the November 1, 2018, settlement conference. [ 39 ] Thus, when I consider all the evidence as to the time Lilith spends with each parent, and each parent’s responsibility for making decisions for Lilith and providing day-to-day care for her, I conclude that the parties have a substantially shared parenting arrangement. Thus, as acknowledged by Ms. Head, there is a presumption that the proposed relocation to Guelph is not in Lilith’s best interests unless Ms.

Head can show that the relocation is in Lilith’s best interests:

Section 18(H)(1)(

b) of the PSA . 5.0 ANALYSIS 5.1 Best Interests Factors [ 40 ] As noted by our Court of Appeal in D.A.M. v. C.J.B, 2017 NSCA 91 , s. 18(H)(4) of the PSA outlines the relevant circumstances which I must consider when determining Lilith’s best interests in relation to Ms. Head’s proposed relocation. They are:

(

a) the circumstances listed in subsection 18(6); (

b) the reasons for the relocation; (

c) the effect on the child of changed parenting time and contact time due to the relocation; (

d) the effect on the child of the child’s removal from family, school and community due to the relocation; (

e) the appropriateness of changing the parenting arrangements; (

f) compliance with previous court orders and agreements by the parties to the application; (

g) any restrictions placed on relocation in previous court orders and agreements; (

h) any additional expenses that may be incurred by the parties due to the relocation; (

i) the transportation options available to reach the new location; and (

j) whether the person planning to relocate has given notice as required under this Act and has proposed new parenting time and contact time schedules, as applicable, for the child following relocation. [ 41 ] D.A.M., supra, directs that any analysis I do must be comparative and balanced. I will therefore examine each of these factors. In doing so, I have kept in mind the Court of Appeal’s apt comments in Burgoyne v. Kenny, 2009 NSCA 34 , that determining a child’s best interests isn’t simply a matter of scoring each parent on a generic list of factors: para. 25.

Thus, I don’t intend to do an exhaustive review or scoring of each parent in relation to every factor given that the overall big picture here is Lilith’s best interests which isn’t determined by any single factor. 5.2 Section 18(6) Factors (

a) Lilith’s physical, emotional, social and educational needs, including her need for stability and safety, taking into account her age and stage of development; [ 42 ] Lilith is clearly a delightful and intelligent eight-year-old child. Her parents describe her as follows: • “an exceptional child and is doing well educationally and socially”: [Ms. Head’s pre-hearing brief p. 14] . This description was confirmed as an accurate one by both parents when they testified; • A “spunky” child who is very active and at the top of her class and loved by her teacher: Affidavit of Ms.

Head, Exhibit 1, Page 48, Para. 12; • “…always using her imagination, either making up games or playing Barbies with my common law partner (Loretta Bell)”: Affidavit of Richard Brown, Exhibit 1, Page 61, Para. 11; and

• “outgoing” and “adaptable”. [ 43 ] Both parties acknowledge that relocating to Guelph would be a significant change to Lilith’s life. I agree. [ 44 ] Similarly, being left in Mr. Brown’s primary care in Halifax after Ms. Head relocated to Guelph would also be a significant change to Lilith because she is used to spending time with both of her parents during the week. [ 45 ] Clearly, Lilith is doing well under the existing parenting arrangement. Both parties have demonstrated that they are able to appropriately meet her physical, emotional, social and educational needs.

Both parties are devoted parents and hard-working individuals who have ensured that Lilith doesn’t go without. The evidence doesn’t persuade me that Lilith’s needs would be better met through a move to Guelph. (

b) each parent’s willingness to support the development and maintenance of Lilith’s relationship with the other parent; [ 46 ] Commendably, both parents have demonstrated a willingness to develop and maintain Lilith’s relationship with the other parent. Indeed, in their separation agreement, they both expressly acknowledge “the importance of the other parent to the child” and agree that each “shall exert every effort to foster a feeling of affection between the child and the other parent”: Exhibit 1, Pages 6-7, Para. 12. [ 47 ] These weren’t just hollow words.

To their credit, these parents have continued to reach agreements which support Lilith developing her relationship with the other parent as evident from the November 2018 orders which expanded Mr. Brown’s parenting time and also provided for significant parenting time for the non-primary care parent should Ms. Head relocate to Guelph. (

c) the history of care for Lilith, having regard to her physical, emotional, social and educational needs; [ 48 ] Both parents have been significantly involved in Lilith’s care and have ensured that her physical, emotional, social and educational needs have been positively met. This is the not a case where one parent has done all the heavy lifting on parenting while the other has been content to be a hands-off parent. (

d) the plans proposed for Lilith’s care and upbringing, having regard to her physical, emotional, social and educational needs; [ 49 ] Ms. Head’s plan involves Lilith relocating to Guelph and living in a new home with Mr. Ritter. At the time of the hearing, Mr. Ritter lived in a one-bedroom apartment. Ms. Head testified that her plan was to find a larger apartment with him this summer before Lilith relocated to Guelph at the end of August. She also expected to find employment in her chosen field as an occupational/physiotherapy assistant. [ 50 ] Ms.

Head testified that she has looked into schools in the Guelph area for Lilith although she didn’t know for sure where Lilith would go to school and whether she could be enrolled in a French immersion school. She said that she was planning to follow up on this after the hearing. [ 51 ] Mr. Brown’s proposed plan involves Lilith living in the same community in his current home with Ms. Bell and Lilith’s brother, D. He intends to keep Lilith in the Burton Ettinger School in the French Immersion program where, by all accounts, she is thriving. Indeed, Ms.

Head stated that Lilith was “at the top of her class and is loved by her teacher.”: Exhibit 1, Page 48, Para. 12. (

e) Lilith’s cultural, linguistic, religious and spiritual upbringing and heritage;

[ 52 ] Both parents agree that Lilith has excelled in her first two and a half years of French Immersion education at the Burton Ettinger School. Both parents want to support her continuing her French education. (

f) Lilith’s views and preferences; [ 53 ] This factor is not applicable given Lilith’s young age and lack of evidence as to her views. (

g) the nature, strength and stability of the relationship between Lilith and each parent or guardian; [ 54 ] Clearly, Lilith has a very strong and stable bond with both parents. Both parents have been actively involved in Lilith’s life. This was expressly acknowledged in the separation agreement drafted by Ms. Head’s lawyer where the parents agreed that each of them “shall continue to have a full and active role in providing a sound moral, social, economic, and educational environment for Lilith”: Exhibit 1, Page 6, Paragraph 12. Thus, I conclude this factor is largely a neutral one. (

h) the nature, strength and stability of the relationship between the child and each sibling, grandparent and other significant person in Lilith’s life; [ 55 ] Lilith was close to Ms. Head’s mother who sadly passed away last September. Ms. Head has no other close family in the Halifax Regional Municipality or in the Guelph area. Ms. Head says that Lilith and Mr. Ritter get along “famously”. Mr. Ritter’s parents live in Chester and his sister lives in Timberlea. Ms. Head testified that Lilith has met these family members several times and is close to them. Mr.

Ritter also has a brother in Guelph who is married with a young child. [ 56 ] Lilith is clearly close to Mr. Brown’s partner, Ms. Bell. Ms. Bell is actively involved in sharing responsibilities for Lilith’s care and often drives her around because Mr. Brown doesn’t drive. She has a bilingual certificate so is able to help Lilith with her French Immersion program homework. Ms. Bell says she and Lilith have their own special relationship and play Barbies, board games, do arts and crafts together, and that Lilith loves to do Ms. Bell’s hair. Ms.

Bell says she loves Lilith like she was her own child. [ 57 ] Lilith is also close to Mr. Brown’s other child, D, who is twelve and spends every weekend in Mr. Brown’s home. Mr. Brown said Lilith likes to do activities with D such as playing on her scooter with him. Ms. Bell said the two play video games and outside together and Lilith loves learning from her older brother. [ 58 ] Mr. Brown says Lilith is also close to his parents who live close by. Mr.

Brown says that Lilith loves seeing her “Nana” and “Papa” on weekend trips to his parents’ home and loves playing baseball in their front yard which is even more enjoyable when Lilith’s cousin is also there: Exhibit 1, Page 61, Paragraphs 11 and 20. (

i) the ability of each parent, guardian or other person in respect of whom the order would apply to communicate and cooperate on issues affecting Lilith; [ 59 ] While not always perfect, both parents have demonstrated the ability to communicate and cooperate relatively well on issues affecting Lilith. They have agreed to joint decision-making authority. (

j) the impact of any family violence, abuse or intimidation; [ 60 ] Neither parent has suggested that this factor is relevant. 5.3 Additional

Section 18(H)

(4) Factors

Reasons for Relocation - s.18H(4)(b) [ 61 ] As noted earlier, Ms. Head says the reasons for her move to Guelph are personal and economic. Her main reason is to set up a home with Mr. Ritter. They plan to get married in the Summer of 2020. [ 62 ] Ms. Head believes that her income will increase as a result of employment opportunities in Guelph. While, she hadn’t been able to secure employment at the time of the hearing, her plan was to move to Guelph at the end of June, search for and hopefully obtain employment in July, and have Lilith move to Guelph by the end of August.

She says she is a hard worker as demonstrated by the fact that she has worked two jobs and obtained a diploma (occupational therapy/physiotherapy assistant) in the past few years. Given Ms. Head’s steady work history, I accept that she has a justifiable faith in her ability to find gainful employment in Guelph. [ 63 ] Mr. Brown says that he understands Ms. Head’s personal reasons for wanting to move to Guelph. He says, however, that while the move may be in Ms. Head’s best interests, it simply isn’t in Lilith’s best interests. He says it would mean taking Lilith away from just about everyone she knows.

He points out that Ms. Head is leaving a secure job to relocate to Guelph without being able to secure full-time employment despite making efforts to find employment in Guelph for several months. Effect of Changed Parenting Time on Children - 18H(4)(c) [ 64 ] Ms. Head acknowledges that a move to Guelph will be a big change for Lilith. It will mean that Lilith will spend significantly less time with her father than she currently does. Ms. Head says that she is committed to ensuring Lilith maintains her strong bond with him.

She says that with technology and frequent travel, she is confident that Lilith will be able to continue to develop her strong bond with her father, albeit in new ways. [ 65 ] Mr. Brown understandably disagrees. Not only does he say that relocating to Guelph will significantly limit his parenting time with Lilith, but he says relocating to Guelph will take Lilith away from almost everyone she knows including her close family and friends. He says Lilith’s family and social structure is primarily based in the Halifax Regional Municipality, or within driving distance.

He says Lilith has a strong support system here which includes her older brother, D, her paternal grandparents, and her best friends. Effect of Removal from Family, School and Community – s. 18H (d) [ 66 ] Again, Ms. Head acknowledges that there is no question that relocating to Guelph will be a big change for Lilith. She asserts, however, that Lilith will adapt with time. She says Lilith does well in school and will make new friends easily. [ 67 ] While Mr.

Brown agreed that Lilith would be able to adapt to the move, he strongly disagreed that removing Lilith from her family, school and community is in her best interests. He says there’s no reason to do this given that Lilith is doing extremely well in Halifax surrounded by her existing family and social structure. Appropriateness of Changing Parenting Arrangement – s.18H (e) [ 68 ] Ms. Head says that she is confident in Mr. Brown’s ability to be in a shared parenting role as shown by her agreeing to him having even more parenting time under the November 2018 Consent Order.

She says, however, that she has serious concerns about Mr. Brown being in the role of the primary care parent because of his health issues. Specifically, she raises concerns about his ability to be a primary care parent because he suffers from C2 neuralgia and bipolar disorder. [ 69 ] Mr. Brown acknowledged that he suffers from nerve pain as a result of C2 neuralgia which requires him to receive nerve blocks every couple of months and take medications to manage his pain. He says his medical condition is well-managed by his neurologist, Dr. King, and is now the best it has ever been.

He does a physically demanding job and says that due to the improvement in his C2 neuralgia, he hasn’t had any significant issues with his health or ability to work in well over a year. He referenced a note from Dr. King dated July 27, 2018, which cleared him to operate a machine called a “manlift” which Mr. Browns says weighs over 9000 pounds and

takes him upward to 16 feet in the air: Exhibit 1, Page 64, Paragraph 9. [ 70 ] Mr. Brown denies that his C2 neuralgia limits his ability to parent and adamantly rejects Ms. Head’s claim that he suffers from bipolar disorder. He says he has never taken any medication for bipolar disorder. Compliance with Previous Court Orders or Agreements – s. 18H(4)(f) &(g) [ 71 ] These are not significant factors as both parents have complied with the separation agreement and the Consent Order (Parenting). There are no restrictions placed on relocation in previous court orders or agreements.

The parties can be expected to comply with any order I make. Additional Expenses and Transportation Options– s.18H(4)(h) & (i) [ 72 ] Neither party presented any significant evidence of additional expenses that she or he expects will be incurred due to relocation. Ms. Head suggests her expenses will decrease as she will be sharing accommodations with Mr. Ritter. She doesn’t seek any child support from Mr. Brown should Lilith relocate to Guelph. [ 73 ] Mr. Brown says that, between his and Ms. Bell’s incomes, he can financially meet all of Lilith’s expenses.

He also doesn’t seek any child support if Lilith is placed in his primary care. He believes he would be eligible to receive the full amount of the Canada Child Benefit if Lilith was in his primary care. [ 74 ] With respect to transportation options, both parties agree that all the transportation of Lilith will likely be done by air. [ 75 ] Mr. Ritter testified that, as an employee with Air Canada, he and his family members have certain travel benefits such as the ability to fly standby. As his partner, Ms.

Head already qualifies for these benefits and he believes that Lilith will also be eligible for these benefits after he and Ms. Head get married in August 2020. He can also get travel discounts for family and friends. Thus, Ms. Head says that if Lilith relocated to Guelph, airfare travel will be inexpensive for her and Lilith, and would be reduced for Mr. Brown. Notice and a Proposed Parenting Contact

Schedule – s. 18H(4)(j) [ 76 ] Ms. Head provided notice of the proposed move when she filed her Notice of Variation Application on June 28, 2018. Her early notice was helpful in allowing both parties to consider this potential change, and plan for it. It also allowed the parties to participate in a settlement conference where they were able to agree to the parenting time for the non-primary care parent after Ms. Head relocated to Guelph: Partial Consent Order (Mobility) issued on November 23, 2018. 5.4 Is it in Lilith’s best interests to relocate to Guelph in Ms. Head’s primary care or remain in Halifax in Mr.

Brown’s primary care? [ 77 ] Plainly, Lilith is a source of much pride and joy for these parents. Their love for her was evident during the hearing. [ 78 ] In Ms. Head’s pre-hearing brief, her lawyer says, “Mobility cases are among the most difficult cases that a court has to decide”. I agree. [ 79 ] The easiest cases to decide are often the ones where you have one good parent versus a parent who, for whatever reason, simply is unable to meet a child’s needs. In such cases, it’s easy for the judge to simply choose “good” over “bad”. [ 80 ] This isn’t one of those cases.

[ 81 ] More difficult cases sometimes involve situations where neither parent has presented a good option on parenting so the choice boils down to having to choose “bad” over “worse”. Thus, while far from desirable, the judge chooses the bad option over the worse one. [ 82 ] Again, this isn’t one of those cases. [ 83 ] Here, I have one of the toughest kinds of case to decide – the situation where I have two dedicated and loving parents who have presented me with two good options from which to choose.

In making that choice, I must consider which of those good choices is overall in Lilith’s best interests. [ 84 ] Having carefully considered both plans, and weighed all the factors which I’m obliged to consider under the law, I find that should Ms. Head relocate to Guelph, Lilith should remain in Nova Scotia in Mr. Brown’s primary care. [ 85 ] I come to this conclusion largely for the following reasons: 1. Ms. Head’s plan would result in a significant disruption to her life.

It involves: • Taking Lilith away from the community where she has lived all her life. • Removing her from the Burton Ettinger school which both parents agree has been a great school for Lilith with good teachers. Both parents agree that Lilith has excelled in the French Immersion Program at the school and acknowledged the importance they both place on Lilith getting an education in French. • At the time of the hearing, Ms.

Head acknowledged that if Lilith relocated to Guelph, she didn’t know what school Lilith would be accepted into, who her teachers would be, and whether she would be able to secure a placement in a French immersion program. Thus, Ms. Head acknowledged that Lilith may have to go to an English school. • Changing all of Lilith’s third-party professionals who are in the Halifax Regional Municipality (“HRM”) in favour of unknown new professions who have no history of care with Lilith. • Ms. Head advised that Lilith’s family physician, Dr.

G, who has been caring for Lilith since she was in utero , has been a “great doctor”. Similarly, Lilith’s dentist’s office is in the Clayton Park area and Ms. Head says Lilith’s current dentist has been a “great dentist”. Lilith also has been going to an optometrist in the HRM since she was 18 months old once every year or two for routine eye appointments. • Removing her away from the family and the support system she has in place in the HRM and surrounding area including Mr. Brown, Ms. Bell, her brother, D, her paternal grandparents, Mr. Ritter’s parents and sister, and her best friends, A, C and M.

While Lilith may be a social and outgoing child, it would mean her having to meet new friends. Furthermore, Lilith has no family with whom she is close with in the Guelph area. Thus, Ms. Head’s plan involves largely leaving Lilith’s entire existing support system behind. It would also likely severely restrict the ability of the sibling bond between her and her brother, D, to continue to grow. • Requiring her to move into an unknown and unfamiliar residence in Guelph. As noted, Mr. Ritter only had a one-bedroom apartment so Ms. Head testified that she and Mr.

Ritter will be looking to move into a larger apartment this summer and then purchase a new home after they get married in August 2020. Thus, at the time of the hearing, it was unknown what home Lilith would live in if she moved to Guelph. Mr. Brown’s plan, on the other hand, involves much more consistency and stability for Lilith. It involves:

• Keeping her in a familiar home where he and Ms. Bell live along with her brother, D, who stays there every weekend. • Lilith continuing in the Burton Ettinger School where both parents agree she has excelled in the French Immersion Program. • Lilith being able to continue to receive the excellent care from her third-party professionals including her family physician who has been involved in Lilith’s care since she was in utero. • Allowing Lilith to remain surrounded by family and other significant individuals who she is close with and who have been part of her strong support system. 2.

While both parties believe that Lilith will be able to adapt to a move to Guelph, her degree of adaptability isn’t what I must determine. Rather, what I must determine is what parenting arrangement is overall in her best interests. Lilith has already had to adapt to many changes in her young life. They include: • Dealing with her parents’ separation when she was four; • Beginning her academic life in the French Immersion Program at the Burton Ettinger School; • Having both of her parents re-partner; and • Dealing with the loss of her maternal grandmother with whom she was close.

While Lilith has been able to adapt to these changes, accepting that she is an adaptable child is a far cry from a conclusion that a significant change now, requiring her to leave behind her existing life and support system in Halifax, is in her best interests. Furthermore, while I acknowledge that placing Lilith in Mr. Brown’s primary care would also be a significant change to the existing parenting arrangement, I find it is the arrangement which best meets Lilith’s needs should Ms. Head relocate to Guelph. 3. In my view, consistency and stability are important considerations at this stage of Lilith’s life.

By both parents’ account, she is thriving at her current school with her existing support system. Ms. Head hasn’t persuaded me that changing this now by requiring Lilith to relocate to Guelph is in her best interests. 4. While Ms. Head has expressed serious concerns about Mr. Brown’s ability to be a primary care parent because of his medical conditions, she hasn’t convinced me that he currently suffers from any medical condition which negatively impacts on his ability to parent Lilith in a primary care role. In coming to this conclusion, I rely on the following: • While Ms. Head claims that Mr.

Brown suffers from “bipolar disorder”, nowhere in any of the affidavits she filed in support of her variation application does she suggest that Mr. Brown suffers from bipolar disorder. Indeed, she doesn’t use those words at all but only makes reference to Mr. Brown suffering from C2 neuralgia: Exhibit 1, Page 48, Paragraph 14. • Ms. Head testified that she has known of Mr. Brown’s medical conditions since the time they started dating in 2006 and has attended medical appointments with Mr. Brown. She said that while she understood Mr.

Brown may have been diagnosed as being bipolar, she didn’t reference it in her affidavits as she thought it was being treated appropriately with medication. • While there are references from medical records put to him in cross-examination by Ms. Head’s counsel suggesting that he possibly suffered from bipolar disorder (e.g. a reference from Dr. Colp in 2013: Exhibit 4, Page 78), none of the medical professionals gave evidence during the hearing or were called to explain any references in the records. This was despite Ms. Head’s lawyer obtaining Mr.

Brown’s medical records well in advance of the hearing as a result of a written consent provided by Mr. Brown but, through an oversight, failing to provide them to Mr. Brown until the day of trial: Exhibit 8. • Even if Mr. Brown suffers from bipolar disorder, Ms. Head hasn’t presented me with any persuasive evidence that it isn’t well- managed, or that it negatively impacts on Mr. Brown’s ability to parent Lilith. In such circumstances, I’m not prepared to make a speculative negative assumption about Mr. Brown’s ability to parent simply because of Ms. Head’s subjective concerns about his mental health.

• Mr. Brown openly discussed his medical conditions. Indeed, despite only receiving the records on the day of the hearing, he didn’t object to being extensively cross-examined on them. He acknowledged that he has C2 neuralgia but says he is currently doing better than he ever has. He emphatically denied that he was ever treated for bipolar disorder or suffers from same. He says his health is the best it has been for many years and denies that his health limits his ability to parent Lilith or his other child, D. Mr.

Brown’s indication that his health is the best it has been for some time is supported by the fact that the vast majority of the medical records put to Mr. Brown in cross-examination pre-dated the parties’ separation agreement of March 2017. • Clearly, when the parties entered into their substantially shared parenting arrangement in their separation agreement in March 2017, neither expressed any serious concerns about the other’s ability to parent Lilith on account of health issues. Indeed, to the contrary, in the separation agreement prepared by Ms. Head’s lawyer, and registered at Ms.

Head’s request in April 2018, the parties expressly stated, “ Each party acknowledges the fitness of the other parent ”: Exhibit 1, Page 6, Para. 12 [Emphasis added]. • Furthermore, after Ms. Head registered the separation agreement in April 2018, she agreed to expand Mr. Brown’s parenting time under the November 2018 Consent Order (Parenting). This counters any suggestion that Ms. Head had any significant current objective concerns about Mr. Brown’s ability to parent Lilith on account of his health. • Both parents have demonstrated that they have been able to look after Lilith appropriately.

There has been no suggestion that, since their separation, Mr. Brown hasn’t been able to consistently do so on account of his medical condition. While he continues to receive nerve blocks occasionally for his nerve pain, he continues to work in a physically demanding job and has a supportive partner, Ms. Bell, to help him look after Lilith. Ms. Bell confirmed he is an active parent to both Lilith and his son, D. She says he “always makes sure his kids are taken care of first and foremost”: Exhibit 1, Page 81, Para. 13. 5. As acknowledged by Ms.

Head, travelling back to Nova Scotia will likely be easier and less expensive for her to do than Mr. Brown travelling to Guelph given that she is currently covered by Mr. Ritter’s benefits as an Air Canada employee. Furthermore, Mr. Ritter’s parents live in Chester and his sister lives in Timberlea. Thus, Ms. Head and Mr. Ritter would likely have reason to come back to Nova Scotia and, when they do, would likely have place to stay when spending time with Lilith. While Mr. Brown may be able to get discounted flights through Mr. Ritter, he has no family in Guelph so would be travelling there solely to see Lilith.

He may therefore also have to secure his own accommodations there. 6. When I conduct a comparative and balanced analysis of each parent’s plan for Lilith’s care, I acknowledge that Ms. Head’s plan to have Lilith relocate with her to Guelph may have some positive benefits for Lilith. However, in my respectful view, those benefits are far outweighed by the negatives that would occur to Lilith as a result of that relocation largely for the reasons I have already stated. 7. As noted earlier, Ms. Head bears the burden of establishing that Lilith’s proposed move is in Lilith’s best interests. Here, not only has Ms.

Head failed to meet this burden, but I find that the evidence conclusively demonstrates just the opposite – that Lilith remaining in the HRM in Mr. Brown’s primary care is the parenting arrangement which is in her best interests should Ms. Head relocate to Guelph. Thus, this case wasn’t determined on the statutory presumptions and burdens contained in s. 18(H)(1) of the PSA .

It was determined by a full and sensitive inquiry as to what parenting arrangement is in Lilith’s best interests based on the evidence. 6.0 CONCLUSION: [ 86 ] Clearly, Lilith is a delightful child who has two wonderful parents who love and support her. To her parents’ credit, they have ensured that Lilith has thrived under a substantially shared parenting arrangement where she has been consistently loved and nurtured.

As the presiding judge, it was a privilege for me to meet these parents who, despite this stressful litigation, have remained supportive of their daughter, as well as each other as her parents. [ 87 ] Having considered and weighed the merits of their respective parenting plans for Lilith’s future, I conclude that it is in Lilith’s best interests that she remain in Mr. Brown’s primary care should Ms. Head relocate to Guelph. Ms.

Head’s parenting time will be as outlined in the Partial Consent Order (Mobility) as follows: • Every March Break; • 10 days of every Christmas vacation; • Four weeks each summer vacation; and • Other time in Guelph or Nova Scotia as agreed between the parties.

[ 88 ] I ask that counsel for Ms. Head prepare the appropriate form of order which reflects my decision and that a form of order consented to as to form only be sent to me in no later than two weeks. [ 89 ] Both parties advised that no costs would be sought in this matter. Thus, I order none. Jesudason, J.