Brown v. LeLacheur, 2019 NSSC 313

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Brown v. LeLacheur , 2019 NSSC 313 Date: 2019-08-28 Docket: SFHPSA 107374 Registry: Halifax Between: Alanna Brown Applicant v. Nicolas LeLacheur Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard : August 26, 2019 Oral Decision: August 28, 2019

Summary: When mother wanted to move 5-year old child to Bridgewater, her mobility application was heard with issues of parenting time, decision-making and child support. Request to move the child denied. Key words: Family, Parenting, Custody, Access, Relocation, Shared parenting Child support, Table amount, Special or extraordinary expenses, Retroactive Support Legislation: Parenting and Support Act , R.S.N.S. 1989, c. 160, subsection 18(6) , subsection 18H(1) , subsection 18H(3) Provincial Child Maintenance Guidelines , NS Reg 53/98,

section 3 , clause 7(1)(

a) THIS INFORMATION SHEET DOESN’T 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: Brown v. LeLacheur , 2019 NSSC 313 Date: 2019-08-28 Docket: SFHPSA 107374 Registry: Halifax Between: Alanna Brown Applicant v. Nicolas LeLacheur Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard : August 26, 2019 Oral Decision: August 28, 2019 Counsel: Alanna Brown, self-represented Jacob Leon representing Nicolas LeLacheur By the Court: Introduction [ 1 ] This is an application under the Parenting and Support Act , R.S.N.S. 1989, c. 160 relating to Liam, the 5-year old son of Alanna Brown and Nicolas LeLacheur.

I gave an oral decision two days after the hearing and told the parties that if I released the decision in writing it would be edited, as it has been, for clarity. [ 2 ] Propelled by Ms. Brown’s request to move Liam to Bridgewater, are the issues of the parenting and decision-making arrangements that are in Liam’s best interests, and child support. 1.

The request to move Liam to Bridgewater Which guideline governs the presumption and the burden of proof? [ 3 ] The Parenting and Support Act contains guidelines on how I determine a request to move: what is presumed to be in Liam’s best interests and who bears the burden of proof: subsection 18H(1) . [ 4 ] First, I determine which guideline applies by considering the time the parents spend with Liam, how day-to-day responsibilities are met and how ordinary decision-making occurs: subsection 18H(3) , Parenting and Support Act . How is Liam’s time spent?

[ 5 ] Liam’s parents separated when he was almost 4. Looking back to his earliest days, as an infant, his mother was on maternity leave and Mr. LeLacheur wasn’t fully employed. Both parents provided care. When Ms. Brown returned to work and Mr. LeLacheur returned to school, the parents’ days were synced so that Liam had care by a parent wherever possible. The parents agree that when Ms. Brown worked late afternoon and early evening, Mr. LeLacheur was able to care for Liam and Ms. Brown cared for Liam in the early part of the day when Mr.

LeLacheur was busy. [ 6 ] Liam’s attended daycare at the same place, It Takes a Village, since he started at daycare. He has friends there who have followed him to Park West Elementary School where he’s finished grade primary and will start grade one next month. He does well at school. [ 7 ] Currently Mr. LeLacheur spends alternate weekends with Liam, from Friday until Monday. They are together overnight every Wednesday. They spend a lot of time together. Their history is of a lot of time together. How are day-to-day care-giving responsibilities fulfilled? [ 8 ] Since birth, Mr.

LeLacheur has fulfilled the responsibility for Liam’s day-to-day care during his parenting time. Post-separation, this includes taking Liam to medical appointments and making dental appointments. Mr. LeLachaur is substantially involved in Liam’s day-to-day caregiving, as is Liam’s mother. How are ordinary decisions made? [ 9 ] Mr. LeLacheur makes ordinary decisions during his parenting time, both before and since separation. Ms. Brown does the same during her time. No one has described to me how custodial decisions (medical or educational) are made.

Though clearly decisions have been made about where he’d go to school and about the various specialist medical practitioners he’s seen. No one has told me how these decisions have been made and no one has described any difficulty with these decisions. [ 10 ] Considering the time spent with Liam, his involvement with his day-to-day care and ordinary decision-making, I conclude that Mr. LeLacheur is substantially involved in Liam’s care. [ 11 ] Because of this finding, it is clause 18H(1) (

b) which gives me the legal context for this application: relocation is NOT in Liam’s best interests and the burden is on Ms. Brown to show – on a balance of probabilities – that relocation is in Liam’s best interests. [ 12 ] It’s important to focus on how that question is framed. I am to consider relocation in the context of Liam’s best interests. I am not to focus on Mr. LeLacheur’s convenience in exercising access, nor on Ms. Brown’s financial situation. These are only relevant to the extent they engage consideration of Liam’s best interests.

Liam [ 13 ] Liam has finished grade primary at Park West Elementary School. He’s been there since he started school. Among his classmates are children who attend daycare with him. Historically, he’s participated in gymnastics and he goes to church when he’s with his father’s side of his family. [ 14 ] Liam is an active, energetic little boy. He likes to be outside and he and his father cook together. Liam’s learning to swim and skate. He likes music. Liam likes to accomplish things. He is an achiever. [ 15 ] Liam has been caught between his parents.

Each one reports concerning things that Liam says about the other, without bothering to check whether his comments are accurate. The parents prefer to assume the worst of each other, rather than check with each other. In this way they are ignoring what may be an issue for Liam, for the sake of having fodder to take to court. [ 16 ] Liam’s mother, Alanna Brown, parents alone and has one other child, who lives in New Brunswick with his father. Liam doesn’t appear to have much contact with his half-brother Dylan. Ms. Brown doesn’t mention him at all in her affidavit. [ 17 ] Ms.

Brown started a new relationship at some point last year. Her new partner lives in Bridgewater where he shares custody of his 10-year old son and 4-year old daughter. [ 18 ] It’s unclear how long this relationship has been ongoing. Mr. LeLacheur raised this issue on September 5, 2018 at the pre-trial conference. In response, Ms. Brown said she had met someone, and it was “very very new”. She said she had only met him (her new partner) twice and it wasn’t “a very thought out relationship”. This was on September 5, 2018. She said that they weren’t in a relationship at this point: “they were just friends”.

This is appropriate given, as she said, they’d met only twice. In terms of saying how long the relationship should be ongoing before she introduced Liam to her new partner, she said she’d never really “thought that far ahead”. [ 19 ] We discussed the inappropriateness of introducing a child to a new partner and their children until the relationship was established. So, the reason for a delay was made clear. [ 20 ] Mr. LeLacheur wanted a 6-month restriction. Ms. Brown pushed back on that and said 3-4 months was as long as she felt comfortable waiting before introducing Liam to Mr. Sarty.

She also agreed that it might be a briefer period if Mr. LeLacheur met Mr. Sarty. Mr. LeLacheur and Mr. Sarty have seen each other in court this week but have not previously met. [ 21 ] In her affidavit, Ms. Brown said that she met Mr. Sarty in June 2018 and they “became more involved in August 2018” with the children being introduced in October 2018. This is inconsistent with what she said in court in September 2018. Liam spends many, if not most, of his weekends with his mother at Mr. Sarty’s home.

[ 22 ] Mr. LeLacheur parents alone. He has no new partner and no other children. His father, stepmother, and mother live in the local area. Mr. LeLacheur and Liam have regular contact with Mr. LeLacheur’s extended family which includes children around Liam’s age. [ 23 ] At issue is whether it is in Liam’s best interests to prohibit his move to Bridgewater. [ 24 ] The Parenting and Support Act identifies different aspects of “best interests” for me to consider, among any other factors that may be relevant to a move.

I have no evidence about some of the aspects listed in the Parenting and Support Act (for example, Liam’s heritage and preferences). [ 25 ] I turn to those considerations now. No one has identified that Liam has any physical, emotional, social or educational needs that are not typical of a boy his age. [ 26 ] The parties don’t demonstrate a true willingness to support Liam’s relationship with each other. Ms. Brown has withheld contact at times. Mr. LeLacheur has behaved in a way that jeopardized a positive parenting arrangement with Ms. Brown. In their testimony each is quite polarized.

They complain about each other and don’t focus on Liam. Neither seems to appreciate that this is about Liam, not the two parents. [ 27 ] Historically, both parents have been substantially involved in Liam’s care and he is accustomed to care by each parent. [ 28 ] Ms. Brown plans to move to Bridgewater and enroll Liam in a local public school while she commutes to the Halifax Regional Municipality for work. She hopes to find a job for her current employer in Bridgewater. She’s made no inquiries of her employer whether this is possible or of the bank in Bridgewater.

She says the bank is “always looking for people” but there’s no evidence that if there was a job for her in Bridgewater, the job would pay the same amount that she earns in the Halifax Regional Municipality. Ms. Brown and Liam will live with Mr. Sarty in his 3-bedroom home until she and Mr. Sarty could buy a 4-bedroom home. There’s no certainty about when – or whether – Ms. Brown will find work in Bridgewater or when – or whether – a 4-bedroom home would be bought. Ms. Brown says that Mr. Sarty can provide childcare for Liam before and after school. Mr. Sarty works a two-week cycle.

During this cycle he is off 5 weekdays. Two of those weekdays would be ones where he has just finished a 12 hour 8 p.m. – 8 a.m. shift. How is care provided on these days? This still leaves three days when Mr. Sarty would be at work and Ms. Brown hasn’t explained what childcare Liam would have. [ 29 ] Liam has a close, loving and stable relationship with each his parents. Liam has far more relationships with his paternal family because his father’s family is in Nova Scotia.

His closest extended family relationships are on his paternal side because Liam’s paternal grandparents have provided care for him and his paternal grandmother has been involved in some of his medical care. These relationships have unique features. Liam has an extensive network of family through his grandfather’s wife, who has been part of his father’s life since his father was 13 years old. [ 30 ] Liam has no full brothers or sisters. He has a half-brother in New Brunswick. According to Mr. LeLacheur, Liam sees his half- brother less frequently than he did in past because of the time Ms.

Brown now spends in Bridgewater. Ms. Brown didn’t mention Liam’s half-brother at all in her affidavit. [ 31 ] Ms. Brown says she has no family other than her father in Nova Scotia. She says she has only one close friend in Nova Scotia. If she moved to Bridgewater, her social support network would be Mr. Sarty’s family and friends. These are people she has known for one year. There is no indication that Liam has a close - or any - relationship with his maternal relations other than his grandfather who assists in Liam’s care when needed. Ms.

Brown says her father will move to Bridgewater when she does, but her father provided no evidence of this. [ 32 ] The parents’ ability to communicate is modest. The parties do seem able to do this: they’ve made custodial decisions about school, a urologist and Liam’s seizure. Custodial decisions have been made. They’ve been made without conflict. However, their day to day interactions are not without conflict. Early after the couple separated, Mr. LeLacheur was charged with uttering threats to Ms. Brown and with breaching the conditions of his release. He plead guilty to those charges.

For many people, those events could destroy trust between parents, creating feelings of fright. [ 33 ] Ms. Brown believes that Mr. LeLacheur has recently been making calls to her home phone and cellphone. In her testimony she said that “no one” has the number for this phone. No one. In her brief, which she swore was true on the stand, Ms. Brown said Mr. LeLacheur is “one of very few people who know her home phone number”. She does not countenance the possibility of wrong numbers. Or the possibility that someone may be trying to reach Mr. LeLacheur who, apparently, is still on the voicemail greeting. [ 34 ] Ms.

Brown says that Mr. LeLacheur’s past threats constitute family violence, abuse and intimidation. I do not find there has been violence. I find there has been harassment and threats. Mr. LeLacheur has plead guilty to threatening Ms. Brown. I need to consider the impact of this on the parties’ ability to communicate and cooperate. [ 35 ] I do not accept Ms. Brown’s assertion that Mr. LeLacheur’s conduct has had “a material impact on” their ability to co-parent. The evidence is not so clear. Ms. Brown testified that she has – at various times – initiated contact (electronic and phone contact) with Mr.

LeLacheur and she has gone to the LeLacheur home even at times when he was under an order to have no contact with her. The intimidation and harassment doesn’t appear to have had an impact. She has been reaching out and extending communications with Mr. LeLacheur. [ 36 ] Ms. Brown is proposing significant changes to Liam’s parenting time and contact, given that Liam has had a regular

schedule for almost two years. Her plan would result in a significant loss of paternal contact and contact with Liam’s extended paternal family. Liam would be removed from his school and church and his after-school program (It Takes a Village) which he’s attended most his life. [ 37 ] The expense of access would be modest. This is not a case of flying to British Columbia or the Northwest Territories. No transportation options other than driving are identified.

[ 38 ] There is no access order in place. Ms. Brown has not strictly complied with the Act ’s notice requirements. [ 39 ] My focus must be on Liam. He has greater and more familiar family support in Halifax than in Bridgewater. [ 40 ] Ms. Brown’s evidence of why she should move don’t focus on Liam – she says she will be in a better financial position: her costs will be lower and she will be able to repay her debt. [ 41 ] This assumes she either continues to work in the Halifax Regional Municipality at her current salary or that any position she obtains in Bridgewater will pay the same amount she earns now.

It assumes that a house purchase in Bridgewater costs no more than her current housing arrangement or that she and Mr. Sarty remain in his current accommodations. [ 42 ] Currently Ms. Brown subsidizes her father’s living expenses by letting him live with her, without contributing to housing costs (rent, electricity, water, insurance) because he is saving up for a place of his own. If he contributed to these expenses, then she might be as well off financially in the Halifax Regional Municipality as she hopes she could be in Bridgewater.

At this point, she is putting her financial interests ahead of Liam’s best interest. [ 43 ] So, the benefits of a move are speculative and they don’t relate directly to Liam. There is no evidence to show this move is in Liam’s best interests. [ 44 ] Ms. Brown has not met the burden of proving it is in Liam’s best interests to move Liam to Bridgewater. Liam will remain in the Halifax Regional Municipality. 2.

What parenting arrangement is in Liam’s best interests [ 45 ] Since late 2017 when his parents separated, Liam has had alternate weekends with his father and every Wednesday overnight. [ 46 ] The burden is on Mr. LeLacheur to show that his plan for shared parenting is in Liam’s best interests. Maximum contact is appropriate where it is in the child’s best interests under subsection 18(6) of the Parenting and Support Act . It is not the other way around: provide for maximum contact unless it is shown not to be in the child’s best interests.

The Supreme Court of Canada has continuously told us since the mid-1950s that the child’s best interests govern. What will Liam’s parenting arrangement be? [ 47 ] Mr. LeLacheur has not offered any evidence to show that greater access would be in Liam’s best interests. I decline to change the

schedule that Liam has had since separation beyond modifying some special occasion and holiday contact to reflect the longer-term nature of this arrangement. [ 48 ] Mr. LeLacheur’s current pattern of alternate weekends and Wednesday overnights will continue. [ 49 ] On Mr. LeLacheur’s alternate weekends when he has Liam from Friday at 2:30 p.m. until Sunday at 7 p.m. If Friday or Monday is a school holiday (whether statutory holiday or a Professional Development Day) Liam’s time will be extended to include that additional day: i.e., return Liam on Monday evening at 7 p.m. or pick Liam up Thursday at 2:30 p.m. instead of Friday at 2:30 p.m. [ 50 ] Annually, the regular parenting time

schedule will be suspended for Christmas access on December 24, 25 and 26 and for three other days when Mr. LeLacheur will have access. Otherwise, the regular parenting time

schedule will continue over the period when there is no school at Christmas. [ 51 ] In even-numbered years, Liam will be with Mr. LeLacheur from 3 p.m. on December 24 until 3 p.m. on December 25 and with Ms. Brown from 3 p.m. on December 25 until 3 p.m. on December 26. In odd-numbered years, Liam will be with Ms. Brown from 2:30 p.m. on December 24 until 1 p.m. on December 25 and with Mr. LeLacheur from 1:00 p.m. on December 25 until 3:00 p.m. on December 26. [ 52 ] I have given each parent the time that he or she requested for the year when he or she is with Liam on December 24 and 25. [ 53 ] Mr.

LeLacheur will have three additional days of access over Christmas holidays to provide some greater division of that time. [ 54 ] Mr. LeLacheur and Liam attend church. Ms. Brown does not. To permit this, the Easter weekend will be divided every year so Liam will be with Ms. Brown from after school on Thursday until 7 p.m. on Saturday and with Mr. LeLacheur from 7 p.m. on Saturday until 7 p.m. on Monday. The regular parenting time

schedule will be suspended during the Easter weekend. [ 55 ] During the 9-day long March Break, each parent’s weekend will be extended by two additional days. So, if Mr. LeLacheur’s alternate weekend is at the start of the March Break, it will continue until Tuesday and if his weekend is at end of the March Break, it will start on Wednesday rather than on Friday. The regular parenting time

schedule will be suspended during the March Break. [ 56 ] During the summer holidays, each parent will have 14 days of uninterrupted access during the summer school vacation during which the regular parenting time

schedule will be suspended. Ms. Brown has first choice in even years and must make her choice by May 31 and notify Mr. LeLacheur by May 31. Mr. LeLacheur has first choice in odd years and must make his choice by May 31 and notify Ms. Brown by May 31. Otherwise, the regular

schedule will continue during the summer. [ 57 ] The parents can arrange any additional parenting time as they choose between themselves. [ 58 ] There have been allegations of illegal drug use and alcohol abuse. Neither parent may be under the influence of any illegal drug while caring for Liam. Neither may be impaired by alcohol or marijuana while caring for Liam. [ 59 ] If Ms. Brown decides to move to Bridgewater without Liam, she will have the parenting time

schedule I am awarding Mr.

LeLacheur with the exception of the Easter break, which will always place Liam with Mr. LeLacheur from 7 p.m. on Saturday until 7 p.m. on Monday. What interaction and contact will Liam have with each of his parents? [ 60 ] Each parent may attend Liam’s activities. There may be daily telephone and Facetime contact between Liam and the parent he is not staying with. This applies regardless of whether Ms. Brown moves to Bridgewater or remains in the Halifax Regional Municipality. How will decisions relating to Liam be made? [ 61 ] The parties agree that Mr.

LeLacheur will be sole decision-maker when it comes to religious matters. [ 62 ] Ms. Brown wants to be solely responsible for health and education decisions. Mr. LeLacheur wants these decisions to be shared. The parents have been joint custodians for five years, without conflict. I order they be shared. I do so for two reasons: 1. The parents have history of significantly shared care: each brings knowledge and experience to making decisions for Liam; and 2. Liam has no special needs that suggest the parties will need to make decisions together frequently. They have managed with little court intervention to date.

Child support [ 63 ] If the parents both remain in the Halifax Regional Municipality, Mr. LeLacheur says he has a shared parenting arrangement. I do not accept this. His Wednesday overnights are not full days. At best, they are a ¾ day. [ 64 ] Even if the Wednesdays were full days, Mr. LeLacheur would still have less than 140 days with Liam during the year even with the parenting time I am adding. The parenting arrangement is not a shared parenting arrangement. [ 65 ] For 2019, Mr. LeLacheur says his total income is $15,899.00. He earns $2,800.00 each month and receives $60.00 each week in tips.

He began this job in August. Before he began at the restaurant, he earned $600.00. His tips are taxable income but at his current income level, they attract minimal tax. If Mr. LeLacheur doesn’t claim his tips on his tax return, he may find his child support is adjusted upward to account for tax-free income in the future. Based on this annual income, Mr. LeLacheur would pay $84.00 each month, calculated under

section 3 of the Guidelines . [ 66 ] Liam attends daycare. This is a special expense under clause 7(1)(

a) of the Guidelines . This costs $235.00 each month. At Ms. Brown’s marginal tax rate of approximately 35%, gross daycare costs of $2,820.00 (235 x 12) are $1,833.00 per year after tax. [ 67 ] Where Mr. LeLacheur’s annual income is $15,899.00 and Ms. Brown’s is $53,395.32, Mr. LeLacheur’s proportionate share of the special expense is 23%. Ms. Brown’s proportionate share is 77%. [ 68 ] Mr. LeLacheur will pay 23% of the annual after-tax daycare cost of $1,833.00 or $35.00 per month. [ 69 ] Starting August 2019, Mr.

LeLacheur will pay $84.00 each month in child support under the table and pay $35.00 each month for daycare. His total monthly payment is $119.00. [ 70 ] For 2020, Mr. LeLacheur estimates an annual income of $36,720.00 based on a full year working at Rinaldo’s earning $2,800.00/month and $60.00/week in tips. I base his 2020 child support payments on an annual income of $36,720.00 and order him to pay $314.00 each month under the table. [ 71 ] Looking to 2020, Ms.

Brown’s regular income for year will be $47,632.32, assuming she continues in her current job in Halifax and does not receive the approximately $5,000.00 she earned in 2019 for holding an acting position as she did for part of 2019. [ 72 ] At the lower income level, Ms. Brown will have a lower marginal tax rate in 2020. At a marginal tax rate of approximately 30%, daycare costs of $2,820.00 are reduced to $1,974.00 per year. [ 73 ] In 2020, Ms. Brown won’t have the additional income from her acting position and Mr. LeLacheur will have income from a full year of employment. Mr.

LeLacheur has 44% of the parents’ combined income and Ms. Brown has 56%. So, Mr. LeLacheur will pay $72.00 per month toward the childcare cost. Mr. LeLacheur’s total monthly child support payment for 2020 is $386.00. [ 74 ] I do not know if Ms. Brown will move to Bridgewater without Liam. If she does, then she must pay child support to Mr. LeLacheur. Based on her 2019 income of $53,395.32, her monthly table payment is $453.00 and her contribution to the childcare expense is $126.00. [ 75 ] Based on Ms.

Brown’s estimated 2020 income of $47,632.32, if she moves to Bridgewater without Liam, she will pay $405.00 each month under the table and contribute $92.00 to Liam’s childcare. Should I adjust child support retroactively? [ 76 ] In his brief, Mr. LeLacheur suggested that he had possibly overpaid child support since the interim order of January 2018 based on “shared parenting”. Mr. LeLacheur did not raise this issue in his pleadings. [ 77 ] I am not ruling on this request for two reasons: 1. Mr. LeLacheur did not plead it so Ms. Brown had no opportunity address it; and

2. If I rule on it, there can be no further request to vary retroactively on any other basis, such as his income. [ 78 ] Mr. Leon will prepare the order and send it to Ms. Brown for review. If she does not respond to him within 10 days of the order being sent to her, Mr. Leon will send the order to me for review. When he sends the order to me, he will note if he has heard from Ms. Brown and any comments she has. __________________________________ Elizabeth Jollimore, J.S.C.(F.D.) Halifax, Nova Scotia