Powell v. Jay-Powell, 2013 NSSC 340

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Powell v. Jay-Powell, 2013 NSSC 340 Date: 20131018 Docket: SFHMCA87134 Registry: Halifax Between: William Francis Powell Applicant v. Kathleen Margaret Jay-Powell Respondent Judge: The Honourable Justice Moira C. Legere Sers Heard: September 25, 2013 in Halifax, Nova Scotia Counsel: Peter D. Crowther for the applicant Owen Bland for the respondent By the Court: [ 1 ] This is the interim application of Kathleen Powell dated August 21, 2013 for an order for interim custody, child support, spousal support and interim exclusive possession of the home. [ 2 ] Mr.

Powell is the applicant in the original proceedings. He is 47 years old and employed. Ms. Jay-Powell will be 36 on November 22, 2013 and is also employed. Both parties are represented by counsel. [ 3 ] The parties were married on October 16, 2004 and separated on October 1, 2012. There are two children: Abbey J., born April 9, 2007 and Blake William born March 11, 2011. Abbey is six years old and Blake two.

[ 4 ] The affidavit evidence discloses that the parents began to live together on or about October 1, 2001. They were subsequently married in Lower Sackville on October 16, 2004 and separated on October 1, 2012. [ 5 ] Mr. Powell is employed as an IT Administrator having an annual salary of $55,000. Ms.

Jay-Powell is employed as a Manager of Desktop Services with a salary of $85,000. [ 6 ] The oldest child has completed grade primary and the youngest child is in a child care centre. [ 7 ] Both parents profess to be very involved in the children's upbringing. [ 8 ] In October 2012 the father moved out of the home to an apartment approximately one kilometre from the matrimonial home and he remained there for a year. [ 9 ] The parents worked out

schedule whereby the father would have the children after school Wednesday, Thursday, Friday, Saturday and Sunday return and for week two he would have the children after school on Wednesday only. Pickup on Wednesdays was 5:30 pm. [ 10 ] Their financial agreement was that the father would pay the mother $300 per month and one-half of the gross child care expenses. [ 11 ] The father wished to have more parenting time. That did not evolve and he wishes to move into a formal co-parenting, shared custody arrangement.

He admits this is not currently a shared parenting arrangement and he wishes to have this become a formal arrangement. [ 12 ] The father acknowledges that the mother makes most of the health appointments for the children and he suggests that either one or the other parent attends at the appointments. [ 13 ] The daycare is in the mother's office building. [ 14 ] The mother arranged and registered the oldest child for most of her extracurricular activities save for a day camp at a university in the summer of 2012 and 2013.

The mother registered the oldest child for swimming, ballet, dance, Sparks and soccer. [ 15 ] The mother believes she has been the primary parent since birth, registering both children for their baptisms, registering the children for school, their doctor and dental appointments.

She testifies that the father only took the children to the doctor on rare occasions. [ 16 ] The mother took a full maternity leave with the first child and a ten-month maternity leave with the second child. [ 17 ] The father took parental leave from the university for his second child from January to March 2012, a three-month period. [ 18 ] The mother is asking for a more traditional parenting

schedule which would include every second weekend after school on Friday with a return to school Monday morning giving the children the stability of weekdays in her home. She is suggesting week day visits but bedtimes at her home during the week.

[ 19 ] The mother has given evidence of some difficulties with an extended parenting

schedule for the father. [ 20 ] As an example, she agreed that the children could be with their father for the week of July 8, 2013 for a vacation. She received calls from her daughter every day asking for web conferences with her, calling her some times four times a day. When she did the webcam with her, the child was crying.

The child returned home a night earlier than previously planned. [ 21 ] During some of the father's parenting schedule, the mother has had to meet the children because they were upset and the father was, in her words, struggling to deal with them. [ 22 ] The mother has also had to deliver medications or other items that the father did not have or could not make arrangements for while the children were in his care. [ 23 ] At first blush, upon reading the original affidavits of the father, his participation in parenting his children appears significant. [ 24 ] However, on the totality of the evidence, there emerges a different picture which has some troubling aspects to his parenting.

Conflict [ 25 ] Although dated, the first aggressive incident arose when the oldest child was three months old. The parents were in the midst of a period of conflict when according to the mother the father grabbed a mahogany chair from the dining room and smashed it into pieces in front of the mother while she was holding the child in her arms.

She describes him as violently angry and yelling. [ 26 ] At paragraph 11 of her affidavit she describes the following: "He has often commented that he does not remember these fits and that he 'blacks out'". [ 27 ] After this incident the father left the home for a few weeks to a month. [ 28 ] The father admits that he broke the chair. He explains that they were new parents, the baby was colicky and the mother had gone out with a friend. The child began to cry and was inconsolable and the mother had not yet returned home.

When he tried to call her, he did not get a response and when she finally returned home, they had an argument and during that argument he broke the chair. He denies that the child was in her arms. [ 29 ] The mother describes herself as fearful for the safety of herself and her daughter. [ 30 ] For a period of time there was supervised visitation. [ 31 ] He then arranged for marriage counselling through his EAP program. [ 32 ] The mother insisted that he attend anger management counselling.

While he initially attended, he did not continue to do so. [ 33 ] The mother also describes that the father would punch holes in walls and doors over such things as sporting events or other matters.

[ 34 ] During one conflict the father went to the family bank account and removed joint funds. He advises he withdrew some money in case he needed accommodation. After he calmed down he redeposited the money into the family account. Suicidal Threats [ 35 ] In June of 2011 when the youngest child was about three months old, the couple entered into another conflict, after which the father stormed out of the house, taking with him a piece of Shop Vac hose. [ 36 ] He was gone for a considerable period of the day , drove to the end of a dead end road, in an isolated area with the intent to kill himself .

He had a change of heart. Physical Aggression [ 37 ] The mother further testified that on June 4, 2012 she was chairing a conference when the father approached her at the conference alleging that she was engaged in a relationship with another individual who was attending the conference. He demanded to look at her phone, trying to physically take it from her hands.

She attempted to remove herself and go to the bathroom at which time he grabbed her by both arms, and in accordance with her testimony, spun her into a wall and pinned her there. [ 38 ] She advises that bouncers intervened and removed him from the event and the bar staff called campus security to escort her to the residence room where she was staying with a female coworker. [ 39 ] She describes this incident as having occurred in front of staff working for her, her peers, her boss as well as their partners/spouses invited to the event. [ 40 ] She tendered a picture of dark bruises on her upper arms from his hands.

The pictures do depict bruising. [ 41 ] The father acknowledges that he grabbed her but denies the extent of the bruising. [ 42 ] He explains that he had gone to the conference they were both attending, observed her being inappropriately physically close and affectionate to another man and observed after they parted she received a text. He suspected this person had sent her the text. When she refused to give him her cell phone, he grabbed her by the arm to tell her that if she left he knew the marriage was over. He acknowledges that a member of the bar staff approached and after that he left.

He denies that anyone asked him to leave. Second Incident of Suicidal Ideation [ 43 ] On June 6, 2012 the mother received a call at 1:30 p.m. from a police officer advising her that the father had called -911 because he was having suicidal thoughts. He was in his car and he was parked in an isolated area. [ 44 ] The police attended to him and transported him to the QEII Emergency Centre. He advised them that it was his turn to pick the children up from daycare and that other arrangements would have to be made. [ 45 ] The police contacted the mother and she picked the children up from their respective day cares.

She then went to the emergency room where they remained until approximately 3:00 am . The father was released with prescriptions and with advice not to drink alcohol with the medications. There were three additional appointments at the Abby Lane to assess his state of mind.

[ 46 ] He advises that when he called -911 from the car, he was distraught over the alleged affair that his wife was having, was in his car during a lunch break and realized he needed to pull over into a parking lot. He was trembling uncontrollably. [ 47 ] He advises he had entered into a contract with his therapist after the first threatened suicide. He agreed that he would call -911 should that happen again. The father acknowledged he was driven to the hospital.

He acknowledges that he attended two counselling appointments subsequent to that and that his wife accompanied him to the last appointment. [ 48 ] The mother advises that while they attempted to reconcile, the father refused to cease drinking completely while he was on the medication. At one point in time she had to leave a party at a mutual friend's home because the combination of alcohol and medication caused the father to become "belligerent". [ 49 ] Initially he admits that he was on medication and that he was drinking as they both were.

He also indicated that the type of medication he is on can be taken with alcohol; although when pushed on cross examination admitted that mixing alcohol and drugs was not the best idea. [ 50 ] The mother testified that the father told her he continued to see a therapist and that he had been diagnosed with borderline personality disorder. The father in his testimony denies this. I am unable to draw conclusions about what if any diagnosis exists without further evidence. Corporal Punishment [ 51 ] The father testified in court that he believes in the use of corporal punishment in appropriate circumstances.

He has informed the mother that he has used a wooden spoon to spank the oldest child on at least two occasions. He advises that his daughter has been having temper tantrums. If he cannot calm her and believes she is in danger he spanks her. [ 52 ] The mother informed him that his was inappropriate. He has acknowledged that he will not use the wooden spoon again. [ 53 ] The father's response to this issue of corporal punishment is contained at paragraph 31 of his rebuttal affidavit. He advises that he has noticed his oldest child gets violently angry when she does not get her own way.

She bangs her head and body against walls, doors and floors and at one point in time fell off her bunk bed in a tantrum. [ 54 ] The father is of the belief that due to his oldest daughter's temper tantrums that an appropriate way to resolve it is, if necessary, to use corporal punishment. [ 55 ] The mother advises that she has seen a pattern to the child ’ s outbursts and an increase in these temper outbursts on the evenings the child returns from her father's home. [ 56 ] He advises that prior to implementing a spanking to change this behaviour he consulted with a psychologist about the best way to deal with these tantrums.

Further, after one such tantrum, after warning his daughter of the consequences of her actions, he spanked her. He did that again during her next visit two weeks later. He believes that this calms her down immediately. [ 57 ] He acknowledges that he made a mistake in administering these spankings with a spoon taking the example from his parents and should he have to administer these spankings again, he will do so in private with "an open hand on a clothed bottom". [ 58 ] The father testified that on weekends he visits his parents for Saturday and often Sunday night in order to keep the children in

touch with extended family. [ 59 ] The mother testified in her response affidavit that they usually spend the night sleeping there and that until recently when the father purchased his own home when he had the children he stayed at his parents' home. [ 60 ] This pattern differed from their tradition during the marriage. The father acknowledged that he previously was concerned about the children staying at his mother's home overnight because he was concerned about their safety.

His mother was a smoker and the father and her husband were concerned about the mother falling asleep with cigarettes in her hand. [ 61 ] There was some expressed concern between the couple about his mother's mental health. [ 62 ] His approach has changed. The children are left at his parents' place to leaving Abby alone overnight in his mother's care. Staying overnight continues even after he purchased his new home. Communication and Cooperation [ 63 ] The mother was travelling with her own mother during one of the father ’ s parenting times.

She was scheduled to arrive home two hours after the normal drop off time.

She asked the father if he would agree to delay the drop off from 5:00 p.m. to 7:00 p.m. as her plane arrangements could not bring her home for the 5:00 p.m. pick up. [ 64 ] She had already spoken to her daughter during the day and her daughter was anticipating her arrival and she was looking forward bringing gifts back from the family in Ontario. [ 65 ] The mother emailed the father earlier to advise him that on the Sunday, July 28, she would be out of town with her mother and the only flight she could book him landed them at Halifax airport at 6:15 p.m..

She asked if he would drop off the children later in the evening, around 7:30 p.m. as opposed to 5:00 p.m.. [ 66 ] The father responded suggesting this was too late and he would keep them and drop them off at school the next morning.

Otherwise, he would expect her to be at the house at 5:00 p.m. to accept them. [ 67 ] The mother responded by indicating that he could drop them off at 5:00 p.m. on Sunday and she would make alternate arrangements. [ 68 ] He confirmed with her that he would do that but he would expect her or her mother to be there (an impossible demand) to accept the children at 5:00 p.m. warning her if there was anyone else there he would return the children to his place. [ 69 ] The mother had arranged for her father, the children's paternal grandfather whom they see on a regular weekly basis, to be at the home to accept the children until she arrived two hours later.

She also arranged for two other family friends well known to the children. [ 70 ] When the father arrived with the children at 5:00 p.m., he refused to leave them there and took them home, knowing that there were people in the home to greet the children. [ 71 ] Subsequent to separation the father agreed to attend a parent-teacher interview alone. The mother had the children in her care. He missed the parent teacher meeting although it had been previously arranged. The teacher was not able to reach the father. She therefore reported to the mother about the child's progress.

[ 72 ] The mother has difficulty getting a hold of the father on the phone as he does not usually answer his cell phone.

It is for this reason that she advises she is and has been the primary contact for the children at daycare and after school activities as well as school. [ 73 ] When she raised the issue about using the phone particularly to discuss time-sensitive issues, he advised "I am no longer comfortable talking to you in any form that is not recorded in some way as I am certain now that it will all make its way to court - I cannot afford appropriate mechanism to record our phone and live conversations". [ 74 ] She advised him when she took their youngest child for a haircut and he responded by indicating that he would like to have a say in these things and to advise him in advance prior to doing this.

Florida Trip [ 75 ] Traditionally the parents took the children to Florida since 2002. The mother's parents are there for approximately three months during the year. [ 76 ] Initially the father agreed that the mother could go and he would sign a consent. They met at McDonald's to discuss the separation; he wanted 50-50 custody; she said no. He would not consent to sign so that his son could go with his mother to Florida.

He suggested one child could go and one child could stay with him. [ 77 ] He eventually relented and consented to their travel. [ 78 ] He explained he was concerned because there were no direct flights to Florida . Notwithstanding the fact that the mother would be flying with them, he was not happy with the arranged flights. He was concerned about how the mother would manage both children at the New York airport and thought it best if the youngest child stayed home with him. Conclusion [ 79 ] Aside from those specific concerns, both parents have been significantly involved in a post-separation agreement .

This agreement does not reflect a shared parenting arrangement equivalent to 60-40% as set out in the Child Support Guidelines. [ 80 ] Given the concerns noted and the need for some stabilizing this family pending a full hearing, there is not sufficient evidence for me to increase the father's contact to a 40 or 50% shared parenting arrangement. [ 81 ] I am not satisfied on the evidence that would in fact be in the best interests of the children nor do I have any information that that would address any of the above-noted concerns. [ 82 ] It is clear that the father has a significant relationship with his children.

That ought to be encouraged. [ 83 ] However, the original agreement puts the children in his care one evening per week on week two and an extended period in week one which is more in line with a 30-70 parenting arrangement.

[ 84 ] In addition, it does not appear to reflect the age and stage of development of the children to have a two-year old apart from the primary parent for a full-day period in one week and one day period in another week. [ 85 ] There is evidence from both parents that this

schedule is not sitting well with the children. Both testified regarding discussions they have had with their children about minding the long absences from each parent. [ 86 ] Having said that, the mother's proposal to restrict him to weekend contact equally would not address the age and stage of development of the two-year old.

I have nothing to conclude that the father should not have contact with his six-year old during the week. [ 87 ] The father's second proposal in exhibit "c" of his affidavit would again create long periods of time when young children are away from the other parent and particularly the primary parent. [ 88 ] As I read and weigh exhibit "a", the father has the children for three full days of week one and a partial day for return on Sunday, resulting in approximately four to five days in a two-week period which would be 10 days in a month, perhaps a little less; certainly no more. [ 89 ] The evidence does not support a reduction of the father's contact; it does support the need for adjustment to provide more balance for the children. [ 90 ] Until the matter can be concluded, the

schedule will change to put the father more consistently in the children's lives on a weekly basis. [ 91 ] It will reduce the large blocks of time where the two-year old and the six-year old are away from their mother and their primary parent. [ 92 ] It also alleviates the longer periods in the father's care which may address the stress level on the children and the father. [ 93 ] Commencing the next weekend in which he would normally have the children for a block period of time, he will have the children from after school pickup Friday through to school Monday morning every second weekend. [ 94 ] He shall then have the children after school for supper on the Tuesday of every week and return at 6:30 p.m. unless extended by agreement to 7:00 p.m.. [ 95 ] During the weeks during which he does not have a weekend (every second week) he shall have the children overnight Thursday with delivery to school the next day. [ 96 ] This places the children with one parent at least two weekends a month and the other parent the other two weekends a month and solidifies the father for supper sessions every Tuesday and for overnights every second Thursday. [ 97 ] The children shall have the right to call the mother while they are in the father's home and the father while in the mother's home. [ 98 ] According to the Child Support Guidelines this would not be representative of a shared custody arrangement

[ 99 ] The father is required to pay child support in accordance with the Guidelines. Should he wish to make an undue hardship application, he should do so at the final hearing. [ 100 ] I have from both parties their Income Tax Returns from 2009 to 2012. I also have the Statement of Income filed by Mr. Powell on March 2, 2013 which indicates and I accept his 2013 income ought to be based on $55,431.

I am going to use his union dues from last year as the most exact figure I have at $598.96 to reduce his income to $54,832 and it is on that basis that he will be required to pay for two children a Child Support Guideline amount of $766.00 commencing November 1, 2013 and continuing thereafter on the 1 st of each month until written agreement of the parties or order of the court. This would result in a child support award of $774.00. [ 101 ] Should Mr.

Powell wish to pay this twice monthly, that would be permissible and his counsel can make arrangements to have an order drafted that reflects this. [ 102 ] The net child care expenses shall be shared proportionally to their incomes. [ 103 ] The mother's May 2013 Statement of Income shows a total annual income of $80,869.32. Her 2012 union dues were $646.00. [ 104 ] In drafting the order counsel will adjust the gross salary for both less their union dues to calculate their proportionate share of child care expenses. Using the figures provided by parties and last year's union dues, Mr.

Powell's proportionate share is 40%. [ 105 ] Both parties have experienced some fluctuation in income over the last four years, the applicant more so than the respondent. At the final hearing the order may be adjusted to reflect more accurately an exact yearly figure. Mobility [ 106 ] Finally, there was some indication that the parties had talked earlier in the relationship about moving to Ottawa where both would be able to earn income. Initially it appeared that the mother was asking for permission to move to Ottawa and her parents would accompany her there with the children. Mr.

Powell is not in agreement with this.

The parties did not advance this issue of mobility in this proceeding. [ 107 ] I am therefore unable to draw any conclusions about the issue of mobility other than to indicate that if the mother intends to move, she shall give the father 90 days' notice and absent his consent, will require a court order. [ 108 ] For the final hearing in this matter, absent consent and agreement between the parties, it will be important to have information concerning the father's mental health status and to verify or remove as a consideration the troubling issues that have arisen in this marriage and the manner of resolution of these issues and conflict between the parties. [ 109 ] Counsel for the mother shall draft the order.

Legere Sers, J.