2017 NSSC 79, 2017 NSSC 79

SUPREME COURT OF Nova Scotia (FAMILY DIVISION) Citation: Hawley, MacDonald , 2017 NSSC 79 Date: 2017-03-21 Docket: SFPAMCA-101021 Registry: Port Hawkesbury Between: Cassaundra Mae Hawley Applicant v. Bradley David MacDonald Respondent Judge: The Honourable Justice M.C. Legere-Sers Heard: March 8, 2016, in Port Hawkesbury, Nova Scotia Written Release: March 21, 2017 Counsel: Damien Barry, counsel for Ms. Hawley Coline Morrow, counsel for Mr.

MacDonald By the Court: Legal History [ 1 ] On May 31 st , 2016, the Applicant, Cassaundra Hawley, applied for primary care of her child Kina, born December 24 th , 2015. [ 2 ] A conciliation process was initiated. The Respondent, Bradley MacDonald, declined through counsel to participate in the conciliation meeting scheduled for June 1 st , 2016. [ 3 ] The Applicant’s counsel asked that the case be docketed for hearing in July 2016. The case was scheduled for July 13 th , 2016. [ 4 ] The Respondent appeared with counsel.

The Court granted an interim order on July 13 th , 2016 (signed on December 14 th , 2016) without specifying custody. The order acknowledged that the child’s primary residence was with the Applicant. [ 5 ] The Respondent was to have a minimum of two days per week contact with the child. [ 6 ] On an interim basis, the Court prohibited the Applicant from removing the child from the province of Nova Scotia until the

matter could be determined. [ 7 ] The Respondent’s counsel was unavailable on the next court date in August. The matter was set for settlement conference on October 12 th , 2016. [ 8 ] Failing agreement, the matter was eventually set for trial. [ 9 ] An additional order was required for Christmas access. The Respondent would not permit the Applicant to return to Fort McMurray to visit her Mother, other family and friends. [ 10 ] Hearing dates were set for February 2017. The Court declined to allow the matter to be heard in Alberta given the February dates.

Another presiding Justice dismissed the Applicant’s application to have Nova Scotia decline jurisdiction. [ 11 ] On February 9 th , 2017, the parties were advised the Court was no longer available to hear the matter. The dates were removed and rescheduled for March 13 th , 2017. [ 12 ] This matter first came before me on March 6 th , 2017 for a pre-trial conference. [ 13 ] I find the Applicant has pursued this application with diligence. The delays that occurred are unfortunate and entirely outside her control. [ 14 ] There is no pre-existing order prior to the originating application.

Facts in Evidence [ 15 ] The Applicant mother will be 30 years old this year; the Respondent father 25 years old. [ 16 ] While both the Applicant and Respondent are from Nova Scotia and have extended family here, both have lived and worked in Alberta during their relationship. The Applicant has extended family in Alberta as well. [ 17 ] The Applicant moved to Alberta shortly after high school in or about 2007. Between that time and 2012 she travelled back and forth between Alberta and Nova Scotia. Most of her time was spent in Alberta.

Since 2012, her employment has solely been in Alberta. [ 18 ] The Applicant’s Mother (the Maternal Grandmother) has been working in Alberta for approximately seven years. She maintains a home with her husband in Port Hood. Her husband (the Paternal Grandfather) resides in Port Hood and works in Port Hawkesbury. [ 19 ] In this rural Court, it is not uncommon to see one partner of a couple in Nova Scotia and one in Alberta finding work where it is available and lucrative.

The maternal grandfather confirmed there is financial benefit to the family from his wife’s employment in Alberta. [ 20 ] The Respondent moved to Alberta sometime in 2012. The parties met in Alberta. They were a couple between 2012 and 2014. During that period, they lived and worked in Alberta. [ 21 ] After these parties separated the Applicant stayed in the province of Alberta continuing to pursue her work and life. The Respondent moved to Grand Prairie. The Applicant lived in an apartment in Alberta with her mother or in the camp while working and lived in Alberta.

The Applicant’s address was in Alberta, her car, possessions, her friends and co-workers all lived in Alberta. Separation [ 22 ] The Applicant alleges and the Respondent did not deny that the separation occurred in part because of the Respondent’s anger and alcohol issues. He advises that he stopped drinking in later 2015. I have no contrary evidence to suggest otherwise. [ 23 ] He admits to a drinking and driving charge which lost him his driving licence.

He has yet to completely pay off his fines or take the required course to regain his licence. [ 24 ] On a trip to Nova Scotia sometime in April 2015, the parties reconciled briefly during which time the Applicant became pregnant. She advises it was her belief that they would return together to Alberta. [ 25 ] However, she testified that the Respondent continued to drink and thus she left for Alberta alone in August 2015 to continue to work and save for her maternity leave. She continued to work up to her due date.

At times, she held two jobs to make sufficient money to take a maternity leave. [ 26 ] She signed a two-year lease on an apartment in Alberta with her Mother on September 22 nd , 2015. However, because she was ordered to stay with the child in Nova Scotia her mother could not maintain the two-bedroom apartment and was required to give notice and find another option. [ 27 ] The Respondent remained in Nova Scotia. [ 28 ] The Applicant and Respondent did not speak for months .

In November 2015, shortly before the birth of their child, they spoke and the Applicant agreed to let the Respondent come to Alberta to be present for the birth of the child. [ 29 ] The Respondent joined the Applicant in Alberta for the birth of their child on December 24 th , 2015.

[ 30 ] The Applicant took a year maternity leave. Together they returned to their parents’ homes to have their child meet both extended families. The Applicant states it was always her intention to move back to Alberta. Her friend and co-worker in Alberta testified that the Applicant always talked of returning to work in Alberta after the maternity leave. [ 31 ] In her application, Ms.

Hawley indicated she resides in Alberta; planned during her maternity leave to come to Nova Scotia to introduce her child to her and the Respondent’s extended family and spend time in Nova Scotia. [ 32 ] She holds an Alberta drivers licence , health card and her child has an Alberta health card.

That in itself ,while not conclusive, adds to the elements that suggest that Alberta was her ordinary residence before the birth of her child. [ 33 ] The Maternal Grandfather also confirmed that the visit home was to introduce the child to the family. [ 34 ] The Respondent’s perspective differs slightly in that he suggests they returned to Nova Scotia for more than an introduction to the family; they returned to make a go of it.

He does admit, however, that it was within the contemplation of the parties they would return to Alberta as one of the possible outcomes. [ 35 ] There was some hope that a further reconciliation would ensue. This did not happen and the Applicant sought to return to Alberta. She was advised by the Respondent and or his family if she did, he would consider this kidnapping. [ 36 ] Operating under the belief that she would not be allowed to return without incident, the Applicant made application to the Court to seek permission to return to her life in Alberta.

The Respondent contested this application. [ 37 ] The Respondent has advised the Court that if the Applicant is permitted to return to Alberta, he will move out again to be close to his daughter. [ 38 ] The Respondent is currently awaiting trial on a change of possession of drugs. It is unclear whether this is possession for trafficking or for personal consumption. I have no evidence regarding drug use except that both admit past usage of marijuana. His counsel advises there are no conditions attached to his release.

Current Circumstances [ 39 ] Unfortunately, both parents have literally put their lives on hold awaiting the Order of the Court. The Applicant and child are living in Port Hood, Nova Scotia in her parent’s basement along with her brother. [ 40 ] The Respondent lives in Marble Mountain, one and a half hours from the Maternal Grandparent’s home (where the child and mother are living pending the outcome of this hearing). He is temporarily living in his parent’s home. He depends on others to drive him where he needs to go and to complete his pick ups and drop offs for his child.

He admits driving while disqualified although never with his child in the car. [ 41 ] The round trip between the Applicant and the Respondent is a 3-hour drive in winter weather conditions that are less than desirable. [ 42 ] The Applicant is hoping to return to her previous life prior to her maternity leave and the extended stay imposed on her in Nova Scotia. [ 43 ] The Applicant was criticized for having inconsistent plans before and after the birth. It is entirely reasonable that her plans to pursue a course made before pregnancy may be affected by pregnancy and the birth of her child.

Her plans need to centre around her desire to support herself and the need to incorporate her role as parent to her child in a viable fashion. [ 44 ] She has plans to return to Alberta, she has a job as a nanny until she can re-establish herself. She has long term plans to go back to school where she can better her prospects of supporting her child. She had been enrolled in a program as a Personal Trainer.

She had paid a partial deposit and tuition which she lost because of the unexpected pregnancy and subsequent events. [ 45 ] She has demonstrated a determination to work to better her circumstances. [ 46 ] She has a doctor in Alberta who is prepared to take her back as a patient and to make a referral for her child. She has employment. Her sister and her sister’s husband live there and her mother works there. [ 47 ] The Respondent admits he did not initially look for work for the first year he was back in Nova Scotia living with his parents. He now has a fishing and maintenance job for May to September.

He also intends to put in sufficient weeks to draw unemployment insurance. He acknowledges this is not sufficient to properly support his child or himself at a level he expects. Earning Capacity [ 48 ] Both parents have experienced excellent earnings in Alberta. While in Alberta the Respondent began a welder apprentice program. [ 49 ] In 2013, the Applicant earned $74,743; and in 2014 she earned $86,127 with the same employer. Her 2015 and 2016 income dropped substantially. I presume this was in part due to her pregnancy, the change in her lifestyle and her trip to Nova Scotia during her

maternity leave. In 2015 she earned $20,171 inclusive of EI; and in 2016 $12,126. [ 50 ] The Respondent earned $57,603 in 2013 and $55,337 in 2014. He experienced a significant reduction in 2015 to $12,253. He works with a fishing company in rural Nova Scotia that offers him a share rather than a weekly wage. The employment is not guaranteed; it is seasonal. His employer advised that during the month of May 2016, fishing was steady and he earned $4,223.67 gross and in June $1,270.14. She Advised he cannot count on that income each month.

She advised her employees generally earn between $12,000 to $14,000 per season. [ 51 ] The Respondent’s insurable earnings for May to September 2016 were $13,905. He also received Employment Insurance of $4,683. [ 52 ] In his statement of income prepared on June 27 th , 2016 he declared his monthly income while fishing would be $4,223.67 (presumably from May to September). If he has similar employment (other than EI) this would be equivalent to an income of $50,684.

However, his stated goal would be to work enough weeks to get EI which would seriously reduce his capacity to earn. [ 53 ] It is critical that both the Applicant and the Respondent begin to put themselves back on track to find steady employment to ensure they can support their child according to their respective abilities. The Law [ 54 ] This will be the first parenting order respecting this child.

The Court is not bound by interim motions particularly where the hearing Judge would have had little opportunity to review the evidence as is presented in a full hearing. [ 55 ] Whether under the Divorce Act or as in this case pursuant to provincial legislation contained in the Maintenance and Custody Act, the factors the Court must consider have been the subject matter of many written decisions. Those factors have been set out in Young v. Young , Foley v. Foley and in mobility cases in Gordon v.

Goertz . [ 56 ] In this case, there was not an emphasis on the following factors: discipline, wishes of the children (given the child’s young age) religious and spiritual guidance, assistance of experts, cultural development, the physical and character development of the child by participation is such things as sports, the emotional support to assist the child in the development of self esteem and confidence. [ 57 ] The evidence provided to me largely related to the remaining factors outlined in the case authorities. [ 58 ] It is the duty of the Court to consider all relevant factors in addressing which parent or which plan would better address the best interests and welfare of the child. ( Foley v.

Foley ) [ 59 ] As stated in Gordon v. Goertz and Young v. Young, the focus of the enquiry is not on the rights and interests of the parents. [ 60 ] The only issue is the best interests of the child; that is the paramount concern. [ 61 ] There is no legal presumption in favor of either parent.

Both the Applicant and the Respondent bear the evidentiary burden of demonstrating where the best interests of the child lies. [ 62 ] The one notable legislative direction is that the Court must consider which parent is best able to facilitate contact to assist maximum contact with the other parent. [ 63 ] The physical environment in which each parent resides is not in question while in this arrested version of life. Each live with their parents. [ 64 ] However, they do not live geographically close to each other.

The Respondent lives in Marble Mountain, some one and a half hours from the Maternal Grandfather’s home in Port Hood, where the Applicant and child are staying. [ 65 ] During the winter, the roads are difficult and this constant drive will put the child on the road between parents. [ 66 ] To look ahead, perhaps unrealistically at this point, the nearest school would require considerable bus transportation for the child whether with the Applicant or the Respondent.

Other children manage this transportation so, while not necessarily the best option, it could be managed. [ 67 ] The Applicant had a more permanent independent style of life in Alberta. The Respondent moved from Fort MacMurray to Grand Prairie. I know nothing of their environments except to say they earned good money and were financially independent from their parents. [ 68 ] That has changed since returning to Nova Scotia where they each live with their respective parents, the Applicant has no income and the Respondent has a significantly reduced income. They have moved from independence to dependence.

[ 69 ] Each parent shows genuine love and affection towards their child. [ 70 ] Each have a fully supportive extended family behind them. [ 71 ] The Applicant as a role model shows herself to be industrious, independent, a decision maker when necessary, focused on improving her life and education to better support her child and herself. She is certainly proven she is not afraid of hard work. [ 72 ] She is currently worried that staying in this rural community may mean she must rely on social assistance.

That is not the plan she has for her future and that of her child. [ 73 ] The Respondent has had his troubles with alcohol, yet he indicates this is behind him. He shows genuine interest in his child and wishes to make his child comfortable and happy. [ 74 ] He must address the outstanding charges against him. [ 75 ] He has not shown the same degree of industriousness as has the Applicant in that he admits he was one year without actively looking for a job locally even though he insisted the Applicant stay here with the child until this matter was heard.

This left the Applicant without much in the way of support for her child. [ 76 ] The Respondent is looking at large periods of time unemployed between his more lucrative fishing opportunity. He admits that is not his dream yet he has not given any evidence of what his employment plan is to subsidize the needs of his child. [ 77 ] He is of the belief that his current payment of $168 is sufficient to meet his share of the child’s needs.

He has not had to meet the child’s daily needs in the same manner as the Applicant and has not had to work two jobs to allow for a maternity leave as had the Applicant. [ 78 ] He needs to educate himself in this regard. [ 79 ] The hours of his fishing and maintenance employment are not predictable. If he continues to be unemployed he would have time for the child.

However, that was not presented in a light where one could conclude that his current employment is sufficient or desirable for his own career development at his young age. [ 80 ] If both obtain fuller time work, there does not seem to be any impediment to each parent spending time with the child. [ 81 ] The Respondent advises if the child is permitted to leave he will leave to be available to her. Clearly if the Applicant is permitted to leave with the child and he stays here, his parenting time will be designed entirely differently and would be more logistically problematic.

Finances [ 82 ] The Applicant has and continues to contribute to the child financially more than the Respondent, given his circumstances. This can be easily remedied. [ 83 ] The Applicant has indicated a willingness to ensure the Respondent continues to have contact with this child. [ 84 ] The financial consequences of custody with one or the other are difficult to measure in their current circumstances.

Each wish to work, each could earn better wages in Alberta, each are not particularly content in their current dependant circumstances, each would be better able to provide for the child if they were back to their previous employment prospects recognizing that the Applicant must adjust her plans due to the child’s needs and their circumstances together. [ 85 ] Each parent is just at the beginning of their adult life and can offer no certainty as to their employment future but each have many options available to them.

Conclusion [ 86 ] Given the evidence presented, the history of the relationship, the previous residential history (which I find was in Alberta prior to the birth of the child) the Applicant’s plan at this time better meets the best short term and long term interests of the child. [ 87 ] The Applicant and the Respondent have travelled back and forth between Alberta and Nova Scotia and if history is any predictor of the future, each will not lose touch with their extended family in Nova Scotia or their roots.

They have demonstrated their connection to their extended family They have also demonstrated their intent to go beyond the shores of Nova Scotia to seek employment elsewhere for a protracted period. Each has come to their parent’s home when times got tough or when they wanted to share their child with their family but this does not appear to offer the parents the same opportunities to support their families as they had previously [ 88 ] This may change. They are young. This is their first child.

Living in Alberta need not be forever but it is the place they chose to live and work to advance themselves when not under the Court’s scrutiny. [ 89 ] If that changes, they may need to revisit mobility as the age and stage of development of their child changes and as their own life circumstances alter. [ 90 ] This cannot be expected to be a forever decision. It simply represents the plan currently with the highest probability of success.

[ 91 ] This decision does not purport to conclude that for a child living in Alberta is the better option than living in Nova Scotia. I had neither the evidence, the mandate nor the ability to determine that. [ 92 ] Many parents that come before the Court and live in rural Nova Scotia provide a lifestyle that sustains and enhances the lives of their children. [ 93 ] This is a decision on the unique facts of these parents lives and this child’s possibilities. Terms of the Order 1.

The parents shall have joint custody of their child and shall continue to have all the rights and responsibility associated with raising their child. 2. The child shall be in the primary care of the Applicant. She is free to move and take this child back to her ordinary residence in the jurisdiction of Alberta as soon as she can make those arrangements. She shall advise the father of the location of her residence forthwith. 3. She shall continue to keep the Respondent advised of any change of residence in Alberta and provide him in advance with her email and skype address as well as her phone number. 4.

She shall provide the Respondent with his usual parenting time in advance of leaving, extended as agreed upon by the parents, to three days to allow his family to spend some time with the child before leaving. 5. The parents shall consult on all major issues including the educational, emotional, physical and spiritual welfare of the child. 6. While the Respondent remains in Nova Scotia, for the safety of the child the Applicant shall have the final decision making authority on all major issues respecting the child’s welfare including education, medical spiritual and physical.

She shall be required to enter meaningful consultations with the father in advance of these decisions. 7. Once the Respondent provides the Applicant with his address in Alberta and confirms he is remaining in Alberta, the parents shall share decision making authority on all major decision. The day to day decisions for the child will be made by the parent who has the child in their care. 8. The Applicant shall not remove the child from her residence in Alberta except for returning to Nova Scotia for visits, without the advance written consent of the Respondent or failing consent, court order. 9.

The Respondent shall be entitled to information from all third-party service providers. The Respondent’s name and contact numbers are to be given to the child’s doctor, health authorities, school and day care authorities and any third-party service providers. 10. The parties may agree on a parenting

schedule for the father should he return to Alberta. They are free to make such arrangements as they both agree to in writing in advance. This is to avoid any unilateral action by either party. 11. In the event the parents cannot agree; the Respondent shall continue to have a minimum of two days per week with his child including overnights once he has established himself in Alberta in suitable housing. 12. Should the parents be unable to agree on a long-term parenting

schedule they are free to bring the matter to a Court of competent jurisdiction in Alberta to develop a suitable plan that addresses the child’s best interests. 13. For a minimum of 24 hours before and during the Respondent’s parenting time, he shall abstain absolutely from the consumption of alcohol or non-prescription drugs. Should the Respondent be under the influence of alcohol or non-prescription drugs, the parenting may be cancelled and rescheduled. 14.

The Respondent may apply to remove this clause on consent of the parents or court order after the Respondent provides proof to the Applicant he has completed the courses ordered because of his drinking and driving conviction to regain his licence and has addressed the current criminal charges and any conditions arising out of that process.

Child Maintenance [ 94 ] The income of the Respondent is currently EI although he is promised work with the fishing company from May to September. [ 95 ] An average of his EI, fishing income and other for the year 2016 yields an income of $19,075.58 for a payment of $126.33 per month. That shall be his April 2017 payment. [ 96 ] Over the course of May to September his average monthly income converted to an annual income would be $33,372.19.

During this time, he can pay in accordance with the guidelines the monthly sum of $281.05. [ 97 ] These calculations are somewhat crude given his recent employment history and his circumstances. The evidence dependant on his availability to work and where he is. That may change completely if he returns to Alberta. [ 98 ] Thus, in the interim to establish a payment

schedule he shall pay for the month of April 2017 the amount of $127, based on $19,075. For May continuing to and including September, he shall pay $281 monthly to the Applicant for the support of the child payable through Maintenance Enforcement unless the Applicant opts out of the Maintenance Enforcement Program. [ 99 ] The Respondent shall advise the Applicant immediately upon arriving in Alberta and within 24 hours of him finding employment he shall provide her the full details of his salary and benefits in order to recalculated the child support payment.

[ 100 ] The Respondent shall also advise of any changes to his employment in Nova Scotia should he remain [ 101 ] The parents shall exchange on or before June 1 st of each year their full and complete copies of their income tax returns together with Notice of Assessments and Re-assessments where applicable to facilitate a years review and recalculation of child support. [ 102 ] When the Applicant has obtained her child care, she shall provide full details of that child care facility together with details as to cost. [ 103 ] The cost of child care shall be shared between the parties proportionate to their income. [ 104 ] Mr. Barry shall draft the order. Legere Sers, J.