Goldsworthy v. Gwinn, 2020 NSSC 50

SUPREME COURT OF NOVA SCOTIA (Family Division) Citation: Goldsworthy v. Gwinn , 2020 NSSC 50 Date: 20200210 Docket: SFHPSA 112059 Registry: Halifax Between: Jordan Gerard Cordell Goldsworthy Applicant and Crystal Dawn Gwinn Respondent LIBRARY HEADING Judge: The Honourable Associate Chief Justice Lawrence I. O’Neil Hearing: December 16 and 17, 2019 Issues: Should two (2) children relocated to New Brunswick by one parent without notice to the other parent, be ordered returned to Nova Scotia?

Summary: A parent relocated to New Brunswick from Nova Scotia with her four children without notice to the fathers of the children. Both men are the fathers of two (2) children and both were involved in the lives of the children. In the case of the two (2) subject children, the parties were living as a couple at the time of her departure. The Court found it was in the best interests of the two (2) subject children that they be returned to Nova Scotia. The Court reserved jurisdiction to structure a future parenting plan. Keywords: Relocation; best interests; domestic violence Legislation: Parenting and Support Act , R.S.N.S., c.160

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. IN THE SUPREME COURT OF NOVA SCOTIA Citation: Goldsworthy v. Gwinn , 2020 NSSC 50 Date: 20200210 Docket: SFHPSA 112059 Registry: Halifax Between: Jordan Gerard Cordell Goldsworthy Applicant and Crystal Dawn Gwinn Respondent Judge: Associate Chief Justice Lawrence I.

O’Neil Heard: December 16 and 17, 2019 Counsel: Patrick Eagan, Counsel for Jordan Goldsworthy Hannah Rubenstein, Counsel for Crystal Gwinn By the Court : Introduction [ 1 ] The parties are the parents of two children born April 27, 2015 and April 22, 2017. [ 2 ] On October 29, 2018 the Respondent relocated to Riverview, New Brunswick from Porters Lake, Nova Scotia without notice to the Applicant, Jordan Goldsworthy, the father of the subject children and the partner with whom she had been living for the previous five (5) years.

She continues to live in the Riverview area with those two children plus two older boys whose father lives in Dartmouth. [ 3 ] Both fathers now regularly travel separately and by reference to a parenting

schedule to the Truro/Amherst area where they meet their respective children and each assumes care of their two children. They then return to the Halifax region where they parent the children for a number of days.

[ 4 ] Crystal Gwinn says she was essentially fleeing a situation of domestic violence she experienced at the hands of Jordan Goldsworthy. Jordan Goldsworthy denies this and says that, in fact, Crystal Gwinn was the violent one in their relationship. [ 5 ] Crystal Gwinn wants to continue to live in Riverview and wants primary care of the subject two children. Jordan Goldsworthy wants the children returned to the Halifax region where he proposes to exercise primary care of the children. [ 6 ] No order establishing the parenting arrangement for these children existed prior to their move to New Brunswick.

In response to an emergency application, an interim order issued in December 2018. Evidence on behalf of the Applicant, Jordan Goldsworthy [ 7 ] Jordan Goldsworthy testified and was cross examined on his affidavits (exhibits 1 and 2). [ 8 ] Mr. Goldsworthy testified that each weekend he travels to the Cobequid Pass and meets his children and returns to Halifax with them. On alternating Sundays, he returns to that location. The return trip after the other weekend is made on Monday. [ 9 ] Mr. Goldsworthy confirmed Ms.

T.D. had been living with him in 2019 but he told her to leave when social workers advised him she had failed drug testing. This had been ordered because her access to her child from an earlier relationship was subject to a child protection proceeding. [ 10 ] Mr. Goldsworthy denied using hard drugs in the recent past and never when in a child caring role. He acknowledged consuming marihuana on occasion. He said he is subject to random drug testing at work and subject to alcohol screening.

He said he has never failed such a test. [ 11 ] He is employed at the Midland Transport Warehouse and works the shift beginning mid-afternoon and ending at midnight, Monday to Thursday. He has been employed with this company for a number of years. He said he had worked significant weekend overtime in earlier years but since his children were relocated to the Moncton area, he has altered his work

schedule to permit him to have three-day weekends with his children beginning Friday. [ 12 ] Mr. Goldsworthy testified his mother and grandmother and extended family live in the Halifax region and are involved in his life and provide care for and support of his children. [ 13 ] He denied being violent with Crystal Gwinn. He said charges filed against him because of her complaints about him have all been dismissed and no trial or hearing was necessary. He said all the allegations made by Crystal Gwinn were untrue. [ 14 ] Mr.

Goldsworthy was shown a series of messages from a Facebook conversation he is alleged to have engaged in. He denied being the author of all of the alleged statements and charged in response that he believes Crystal Gwinn wrote the messages herself.

He explained she had been aware of all his social media accounts and passwords and impersonating him was something she was known to do. [ 15 ] He did agree he wrote some less concerning messages and also agreed some of these were inappropriate. [ 16 ] He did also agree he resisted returning the children to Crystal Gwinn once because he believed she did not have a car seat and her car was not inspected. [ 17 ] He said he believed both parents should be involved in the lives of the parties’ two children and reluctantly said Crystal Gwinn should be involved.

Clearly, he feels she is not a good person but wants the children to be as involved with her as with him. He said if

the children remain in New Brunswick, equal parenting of the children will not be possible. However, if she returns to the Halifax region, he would support equal parenting as a preferred option to his having primary care. [ 18 ] In summation however, Mr. Eagan, on behalf of Mr. Goldsworthy, argued for primary care of the children for Mr. Goldsworthy and he rejected shared parenting as a workable option. Evidence on behalf of the Respondent, Crystal Gwinn [ 19 ] Crystal Gwinn testified. She confirmed her evidence in the affidavits she filed being exhibits 10, 12 and 13. [ 20 ] Ms.

Gwinn explained her leaving her home in HRM quickly on the basis of her being fearful of Mr. Goldsworthy. She also testified that Mr. Goldsworthy is a good father and would never harm his children, although she expressed concern about his vigilance when supervising the children. [ 21 ] She confirmed having made a referral to child protection authorities in New Brunswick after her children were returned to her after being with Mr. Goldsworthy because she noticed marks on them.

She said she took photos of the children’s marks and took the children to the family doctor. [ 22 ] She denied the suggestion that her move to Riverview, New Brunswick was influenced by a romantic interest in Mitchell Brown, her sister in law’s brother. Mitchell Brown’s sister Cheyenne is married to her brother Russell. Crystal Gwinn relocated to Riverview on October 29, 2018 and lived with Russell and Cheyenne until February 2019. [ 23 ] Crystal Gwinn and Mitchell Brown did develop a romantic relationship over the fall of 2018. Ms. Crystal Gwinn gave birth to their child in late August of 2019.

They are not currently a couple and appear to be in conflict over the parenting of this newborn. [ 24 ] Crystal Gwinn confirmed Mr. Jordan Goldsworthy’s evidence that since she relocated to Riverview, Mr. Goldsworthy has had the two (2) children, the subject of this proceeding, with him almost every weekend. She also confirmed that Mr. Dixon, the father of her other two (2) sons aged eight (8) and ten (10), has those boys with him every other weekend in HRM.

Typically, both fathers meet the children at the Cobequid Pass. [ 25 ] Crystal Gwinn gave a positive report of her mother’s current involvement in her life and that of all of her children. [ 26 ] I accept her mother is currently involved in the home of Crystal, as needed. However, I conclude that when both Crystal and Russell were children in the care of their mother, their home circumstances were very negative.

Russell testified about his mother’s parenting history and described it in negative terms [ 27 ] Crystal Gwinn left home at the age of thirteen (13) and Russell left home at the age of fifteen (15). [ 28 ] Although Crystal Gwinn wanted to rationalize her childhood circumstances and her mother’s failings, Russell was clearly more honest about the unhealthy environment in which they lived with their mother. As a witness, he clearly did not want to give specifics, presumably out of respect for his mother and a desire to avoid the emotional pain for him that would accompany those recollections. [ 29 ] Ms.

Crystal Gwinn left the Town of Riverview, New Brunswick at the age of seventeen (17) and lived in Cape Breton until she reached twenty-three (23) years of age and thereafter, lived in HRM until she returned to Riverview on October 29, 2019. The relevant connection to the Riverview area is therefore relatively recent. [ 30 ] Ms. Gwinn has multiple sclerosis. Her neurologist is in Halifax. She is on a wait list for care by a New Brunswick neurologist.

She says she is currently symptom free and is not taking medication. [ 31 ] She was asked what concerns she had about becoming unable to parent. She expressed confidence that she had a support system in Riverview and would be able to manage the care of the children with assistance of these people if necessary. Evidence of Russell Gwinn and Cheyenne Gwinn [ 32 ] Jordan Goldsworthy subpoenaed Russell Gwinn and Cheyenne Gwinn to give evidence. As stated, Russell Gwinn is the brother of Crystal Gwinn and Cheyenne Gwinn is his wife.

They assisted Crystal Gwinn in making her quick move from the Halifax region to Riverview. The Respondent, Crystal Gwinn, lived with them for several months thereafter. [ 33 ] Each gave direct oral evidence and were cross examined. [ 34 ] They testified that Crystal Gwinn became friendly with Cheyenne Gwinn’s brother in September 2018 after they met at a funeral in the Moncton area.

They confirmed believing Crystal Gwinn was in a bad relationship with Jordan Goldsworthy and that they had encouraged her to leave him and to move to the Moncton area. [ 35 ] Late in October 2018 in response to Crystal Gwinn’s request for moving help, Russell Gwinn and a friend travelled to Porters Lake and moved Crystal Gwinn and her belongings to his home in Riverview where she settled in with her four (4) children. [ 36 ] Circumstances developed, including conflict that made Crystal Gwinn’s continued residence there unworkable so she moved out in February 2019.

She now lives separate from them on the same street. [ 37 ] The relationship between Crystal Gwinn and her brother Russell Gwinn and his wife has completely broken down and they no longer spend time together. One of the catalysts for the estrangement is the belief that the child, fathered by Cheyenne Gwinn’s brother and born in August 2019, is being kept from his father. [ 38 ] Both Russell Gwinn and Cheyenne Gwinn testified that they view Crystal Gwinn as untrustworthy and manipulative and they no longer accept the negative characterization of Jordan Goldsworthy which was presented to them by Crystal Gwinn.

Evidence of Cindy Goldsworthy and Briana Ferguson [ 39 ] Cindy Goldsworthy testified in support of her son Jordan Goldsworthy. [ 40 ] She provided positive evidence of her son’s parenting and care of the subject children. She denied being aware of any abusive conduct by her son. She had been involved with the subject grandchildren and will be again if the circumstances permit. [ 41 ] Briana Ferguson is the younger sister of Jordan Goldsworthy. She was positive in her characterization of her brother as a parent.

However, she described Crystal Gwinn as often distracted by her phone and inattentive to the needs of the children. [ 42 ] Briana Ferguson said she frequented the parties’ home after school. At the time of the hearing, she was nineteen (19) years of age. Evidence of Emma Kearney

[ 43 ] The parties agreed exhibit 17, a record of the Amherst Community Services Office pertaining to Ms. T.D. could be considered by the Court. [ 44 ] A social worker, Emma Kearney testified and put the record in context. [ 45 ] T.D. had been living with Jordan Goldsworthy in Porters Lake but Ms. D. was required by him to leave his residence because of her positive drug tests.

Those tests placed Jordan Goldsworthy’s access to the subject children at risk. [ 46 ] The drug tests were required because T.D.’s’ children were in the care of their father and T.D.’s unsupervised access to them was contingent on her not testing positive for certain substances. Legal Principles [ 47 ] The Parenting and Support Act , R.S.N.S. c.160 as amended in recent years provides a statutory regime when a parent or guardian plans to change a child’s place of residence (s.18D). [ 48 ] The law requires that notice be given to any other parent (as defined by s.2(i)).

The presumptive notice period is sixty (60) days (s.18D(5)). [ 49 ] Similar provisions govern when the plan is for the parent to relocate. [ 50 ]

Section 18F provides the Court may change or waive the notification requirements in identified circumstances. The Court was not asked to waive or change the notice requirements herein. [ 51 ] Ultimately when a proposed relocation of a child is before the Court, the following applies: 18H

(1) When a proposed relocation of a child is before the court, the court shall be guided by the following in making an order: (

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.

(2) Unless the court otherwise orders, only a person entitled to receive notification under

Section 18E may oppose a relocation.

(3) In applying this Section, the court shall determine the parenting arrangements in place at the time the application is heard by examining (

a) the actual time the parent or guardian spends with the child;

(

b) the day-to-day care-giving responsibilities for the child; and (

c) the ordinary decision-making responsibilities for the child.

(4) In determining the best interests of the child under this Section, the court shall consider all relevant circumstances, including (

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.

(5) Upon being satisfied that the child’s needs or circumstances have been changed because of the order granted under subsection 18G(2), the court may vary a previous order granted under

Section 18 or 37. [ 52 ] Section 18(5)-(8) require that the best interests of children be the guiding principle when parenting arrangements are being ruled upon and enumerates relevant circumstances for the Court to consider: 18(5) In any proceeding under this Act concerning custody, parenting arrangements, parenting time, contact time or interaction in relation to a child, the court shall give paramount consideration to the best interests of the child.

(6) In determining the best interests of the child, the court shall consider all relevant circumstances, including (

a) the child’s physical, emotional, social and educational needs, including the child’s need for stability and safety, taking into account the child’s age and stage of development;

(

b) each parent’s or guardian’s willingness to support the development and maintenance of the child’s relationship with the other parent or guardian; (

c) the history of care for the child, having regard to the child’s physical, emotional, social and educational needs; (

d) the plans proposed for the child’s care and upbringing, having regard to the child’s physical, emotional, social and educational needs; (

e) the child’s cultural, linguistic, religious and spiritual upbringing and heritage; (

f) the child’s views and preferences, if the court considers it necessary and appropriate to ascertain them given the child’s age and stage of development and if the views and preferences can reasonably be ascertained; (

g) the nature, strength and stability of the relationship between the child and each parent or guardian; (

h) the nature, strength and stability of the relationship between the child and each sibling, grandparent and other significant person in the child’s life; (

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 the child; (

j) the impact of any family violence, abuse or intimidation, regardless of whether the child has been directly exposed, including any impact on (

i) the ability of the person causing the family violence, abuse or intimidation to care for and meet the needs of the child, and (ii) the appropriateness of an arrangement that would require co-operation on issues affecting the child, including whether requiring such co-operation would threaten the safety or security of the child or of any other person. (6A) In determining the best interests of the child on an application for contact time or interaction by a grandparent, the court shall also consider (

a) when appropriate, the willingness of each parent or guardian to facilitate contact time or interaction between the child and the grandparent; and (

b) the necessity of making an order to facilitate contact time or interaction between the child and the grandparent.

(7) When determining the impact of any family violence, abuse or intimidation, the court shall consider (

a) the nature of the family violence, abuse or intimidation; (

b) how recently the family violence, abuse or intimidation occurred;

(

c) the frequency of the family violence, abuse or intimidation; (

d) the harm caused to the child by the family violence, abuse or intimidation; (

e) any steps the person causing the family violence, abuse or intimidation has taken to prevent further family violence, abuse or intimidation from occurring; and (

f) all other matters the court considers relevant.

(8) In making an order concerning custody, parenting arrangements or parenting time in relation to a child, the court shall give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child, the determination of which, for greater certainty, includes a consideration of the impact of any family violence, abuse or intimidation as set out in clause (6)(j). Conclusion [ 53 ] I am satisfied on a balance of probabilities that Ms. Crystal Gwinn and Mr. Jordan Goldsworthy were in an unhappy relationship.

Each explains that unhappiness differently but agree it was an unhealthy environment for their two children. [ 54 ] The evidence establishes that Crystal Gwinn can be manipulative and has used referrals to social agencies and the police to advance her position in this custody and access litigation. [ 55 ] All charges against Jordan Goldsworthy which she initiated at the time of her quick relocation to Riverview in late October 2018 have been dismissed. Her subsequent referral to child protection authorities in New Brunswick was not done in good faith.

It was clearly an effort to enhance her position in this litigation. [ 56 ] Her brother Russell Gwinn and his wife, Cheyenne Gwinn both testified and concluded she was untrustworthy, and they now have a strained, if not non-existent relationship with Crystal Gwinn.

In assessing the evidence of both Russell Gwinn and Cheyenne Gwinn, I have considered the possible impact of personality conflict as explaining their negative opinions of her. [ 57 ] Having stated the foregoing, it is the Court’s role to assess credibility. [ 58 ] Crystal Gwinn has shown poor judgment on important matters related to the children’s best interests. [ 59 ] When she left HRM on October 29, 2019 she disrupted the lives of her two oldest children, Ryan and Riley, aged eight (8) and ten (10). Their father, Mr. Dixon, a resident of HRM, was regularly involved in the lives of these children.

So too was Jordan Goldsworthy involved in the lives of his two sons. [ 60 ] She and Mr. Goldsworthy living separately was overdue. However, relocating to Riverview was not the only option for achieving that reality. [ 61 ] Many relationships end in circumstances similar to those in which Mr. Goldsworthy and Ms. Gwinn found themselves. There are social agencies mandated to assist partners in these situations. [ 62 ] Ms. Gwinn had a sister in Lower Sackville who was not even aware she was moving.

[ 63 ] Legislation in this Province provides a specific process for parents to follow when a parent wishes to relocate with children. Ms. Crystal Gwinn disregarded those requirements. In doing so, she disregarded the best interests of the children. The statutory ‘relocation’ process exists because the legislature determined that changes of residence for children and relocation of children were matters that should be subject to assessment at the instance of a parent. These safeguards exist to ensure the best interests of children can be fully considered.

The legislative changes that put this process in place reflect a child centered approach. [ 64 ] She has exaggerated concerns about her safety. [ 65 ] She attempts to have it both ways. That is, she characterizes Mr. Goldsworthy as a good father, one who would not harm his children and at the same time, she made a referral to child protection authorities in New Brunswick out of a claimed concern he may have harmed the children or not cared for them. At other times she characterizes Mr.

Goldsworthy as a violent person and someone capable of harming others. [ 66 ] I am not satisfied relocation of the children is in their best interests. [ 67 ] Relocation will deprive the children of the wide support system they have in the Halifax region, including family members and family friends. [ 68 ] Mr. Goldsworthy and his family were involved in the daily lives of these children when the family was intact.

The children’s emotional, social and educational needs including their need for stability and safety will be best served with their relocation to the Halifax region, specifically the Porters Lake region where Mr. Goldsworthy lives and where the children were living prior to being relocated to Riverview. [ 69 ] The children have a strong relationship with Mr. Goldsworthy and their paternal grandmother. They do not have a comparable history with or relationship with Ms. Gwinn’s mother. [ 70 ]

Section 18(H)(4)(

b) directs the Court to consider the reasons for the relocation of Ms. Gwinn and the children. [ 71 ] I am satisfied Ms. Gwinn relocated because she was in an unhappy relationship and developed an interest in Cheyenne’s brother. As stated, she had local options available to address her relationship issues and to facilitate compliance with the law governing changing the residence of children and the community in which they lived.

She did not evaluate the impact of her decision to relocate on the children and through her abrupt move to Riverview, she attempted to deny such an assessment. [ 72 ] On or before Saturday, February 29, 2020, the children are to be returned to the Halifax Regional Municipality and returned to the community where they lived prior to late October 2018. They shall be returned to the school district where they last resided in Nova Scotia. [ 73 ] The parties are directed to cooperate with a view to assessing the possibility of a smooth transition of the children prior to February 29, 2020.

If that is possible, the children shall be relocated prior to that date. [ 74 ] The parties are directed to communicate with respect to the structure of their future parenting time for the children. [ 75 ] Given Ms. Gwinn was unclear as to whether she would remain in New Brunswick if the children were returned to Nova Scotia, the Court will provide the parties with an opportunity to structure a parenting plan.

However, the Court reserves jurisdiction to put a long-term parenting arrangement in place should the parties be unable to agree upon a schedule. [ 76 ] The matter will be scheduled before me in early March 2020 if necessary and if requested by either party.

[ 77 ] Mr. Eagan is directed to prepare the necessary order. ACJ