M.R. Applicant v. M.R. Respondent Judge: The Honourable Justice Darryl W. Wilson, 2016 NSSC 167

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: M.R. v. M.R . , 2016 NSSC 167 Date: 2016-06-23 Docket: SFSH 1201-068850 Registry: Halifax Between: M.R. Applicant v. M.R. Respondent Judge: The Honourable Justice Darryl W.

Wilson Heard: Written Submissions: May 17, 2016, in Halifax, Nova Scotia Applicant – May 24, 2016 (Received May 27, 2016) Respondent – May 31, 2016 (Received June 3, 2016) Written Release: June 23, 2016 Counsel: Peter Eagan for the Applicant Janice Beaton, Q.C. for the Respondent By the Court: Introduction [ 1 ] The petitioner father initiated divorce proceedings in July 2015, and filed an interim motion February 22, 2016 seeking joint and shared custody of the parties’ two children on a week about, or other equal time basis, plus child support. [ 2 ] The respondent mother requests the court order: (

a) Joint custody with the mother having final decision making authority in the event of disagreement; (

b) The current parenting

schedule to continue when school begins in September 2016; (

c) The father have a two week block of time in the summer of 2016, or if the court decides time is to be shared equally in the summer that it alternate weekly, taking into account agreed upon camp attendance for the children and the mother’s vacation time already booked to visit family out of the province; (

d) The father pay the table amount of support beginning June 2016 of $570 a month, plus his proportionate share of

section 7 expenses listed in the mother’s statement of special and extraordinary expenses. Legal Analysis [ 3 ] Subsection 8 of

section 16 of the Divorce Act requires a court to consider the best interests of the children in making a determination on an interim motion for custody and access. Conduct of the parties is only relevant to the extent it relates to the parents’

ability to act as a parent. The court is mindful of subsection 10 of

section 16 which requires the court to give effect to the principle that achild should have as much contact with each parent as is consistent with their best interests. [4] The Nova Scotia Court of Appeal in Marshall v. Marshall, at page 8, confirmed the test to apply on aninterim custody application as set out by Justice Kelly in the following passage from Pye v. Pye (1992), (NS SC),112 NSR (2d) 109, at paragraph 5: 5 I concur with Grant, J. in Stubson v. Stubson (1991), (NS SC), 105 N.S.R. (2d) 155, 284 A.P.R. 155 (N.S.S.C.,T.D.) that the test in such an application was properly set out in Webber v.

Webber (1989), (NS FC), 90 N.S.R. (2d)55; 230 A.P.R.. 55 (F.C.), by Daley, F.C.J. at p. 57: Given the focus on the welfare of the child at this point, the test to be applied on an application for an interim custody order is: whattemporary living arrangements are the least disruptive, most supportive and most protective for the child. In short, the status quo of thechild, the living arrangements with which the child is most familiar, should be maintained as closely as possible. With this in mind, thefollowing questions require consideration. 1. Where and with whom is the child residing at this time? 2.

Where and with whom has the child been residing in the immediate past? If the residence of the child is different than in #1, why andwhat were the considerations for the change in residence. 3. The short-term needs of the child including: (

a) age, educational and/or preschool needs; (

b) basic needs and any special needs; (

c) the relationship of the child with the competing parties; (

d) the daily routine of the child. 4. Is the current residence of the child a suitable temporary residence for the child taking into consideration the short-term needs of thechild and: (

a) the person(

s) with whom the child would be residing; (

b) the physical surrounding including the type of living and sleeping arrangements, closeness to the immediate community and health; (

c) proximity to the preschool or school facility at which the child usually attends; (

d) availability of access to the child by the noncustodial parent and/or family members. 5. Is the child in danger of physical, emotional or psychological harm if the child were left temporarily in the care of the presentcustodian and in the present home. Background [5] The parties were married in December 2005. They have two children ages 10 and 7. They purchased the matrimonial home in2009. [6] According to the father, the relationship was effectively over in January 2013. The parties kept separate bedrooms.

The fatherwould leave the home on occasion, but maintained time with the children in the matrimonial home. The father moved out of thematrimonial home to his own apartment on July 1, 2014. [7] The mother continued to reside with the children in the matrimonial home. [8] Both parents are employed. The mother’s annual income is approximately $104,000 and the father’s annual income isapproximately $40,000. [9] The Father contributed a lump sum of $7,000 towards child support one week before the hearing.

Prior to that, he did not paychild support or contribute to any of the major expenses relating to the children. [10] The children attend a francophone elementary school approximately 20 minutes from the matrimonial home. The father’sapartment is approximately a 15 minute drive from the school and the driving distance between the parents’ residences is about 20minutes. The children attended a francophone pre-school program before entering elementary school. The mother grew up in Montreal,attended a French school, and has an undergraduate degree in French.

The father does not speak French, but in September 2015 enrolledin a 10 week French course. [11] At the time of separation, the children participated in a family karate class with their mother on Tuesday and Thursday nightsfrom five to six, which is conducted in French. The older child was involved in choir and piano at school. The younger child played inorganized hockey during the winter, which took up time on Saturdays and Sundays. Both children attend camp during the summer. Since separation the younger child has started drum lessons at the matrimonial home on Wednesday afternoon.

The older child will beplaying baseball during the summer of 2016. The younger child continues to play hockey on weekends during the winter and spring. [12] The younger child has struggled with reading at school, and a learning assessment was recommended by his Grade 1 teacher

and a family doctor. The mother wished to proceed with the learning assessment, before he entered Grade 2, while the father was resistant. The father’s mother had recently passed away and he believed the younger child was too affected by her death to be involved in an assessment. The child had received reading resource help in Grade Primary and Grade 1 and the concern was that he may have to move to a fulltime resource classroom. The psycho-educational assessment was completed with recommendations.

The school recommended a homework support group at the school and an adjusted individual program in the classroom. [ 13 ] The mother hired a tutor to attend the child’s school on Mondays and Fridays during the school homework support time. The child sees a tutor at school on Mondays and Fridays and attends the school homework club on Tuesdays and Thursdays. The mother believes this will assist their child with his reading difficulties while the father believes the child is being overwhelmed with structured programs and doesn’t have time to be a child. [ 14 ] The older child complained of leg pain.

The family doctor referred her to a specialist, who prescribed orthotics. The father did not believe it was necessary for her to have orthotics. The child never complained of leg pain in his care. He urged the mother to be patient as he felt her complaints were psycho-somatic. He did not return the orthotics with the child when she returned to the mother’s care. The father states he is not aware of any complaints about leg pain by the child at the present time. [ 15 ] In the fall of 2015, the younger child developed a nervous tick. He cleared his throat, particularly when he was stressed.

In November, 2015, the younger child told his mother that his father hits him on the head when he is upset. The mother did not see signs of harm in either children and she is not concerned about their safety. However, she was concerned about what was causing the child to make the statements and how best to address his feelings. Her concerns were raised in an email exchange between the parents.

The father acknowledged in one of the email exchanges that he taps the child on the back of the head and leads him by the shoulder and acknowledged it may bother the child. [ 16 ] After the email exchanges, the child told his mother again that his father was hitting him and he did not like it. The school teacher mentioned the child’s nervous tick and throat clearing when he was stressed. The mother sought professional advice and as a result wanted the child seen by a psychologist. The father has accused her of fabricating these disclosures and did not want the child seeing any professional without his permission.

Only recently has an appointment been arranged for the child to be seen by a psychologist and both parents will be involved in the assessment. [ 17 ] The parties have difficulty managing the younger child’s homework. The mother states that the child’s homework is often not done when he returns from the father’s home and she has difficulty communicating with the father about the homework. The father states that he reads regularly with the child but takes a relaxed approach with other homework.

The father refuses to participate in a homework log arrangement initiated by the mother because he believes it is an example of the mother imposing her parenting style on him. [ 18 ] The parties do not live in the same neighbourhood. There is conflict between them over enrolling the children in activities, including transporting the children and their things. The father objected to the younger child playing hockey in his district because it was not convenient for him. He will not consent to the older children enrolling in Girl Guides in her district.

The father frequently takes the children to visit his father in the valley on weekends and school nights. This is a concern to the mother as the younger child’s homework is not often done. Parenting Time [ 19 ] The children were primarily in the mother’s care during the summer of 2014 while the father was getting established in his apartment.

The children would spend time with their father when he was available. [ 20 ] According to the mother, in September 2014 the parties agreed the parenting time should be fixed with the father caring for the children every second weekend and every Monday overnight, with an additional Sunday night every month. The Sunday night time never happened. [ 21 ] In December 2014, the father’s mother became gravely ill and died in May 2015. The paternal grandfather had a severe heart attack in February 2015. He was not able to drive a vehicle for three months.

The paternal grandparents’ residence is approximately a one-hour drive from Halifax. [ 22 ] It was extremely difficult for the father to spend as much time with the children as he wanted, which was recognized by the mother. They were able to adjust the agreed upon

schedule to allow the father time with the children, but recognizing the commitment he had to make to his parents. [ 23 ] The father stated that he has always “voiced his expectation” to the mother that they would ultimately share parenting of their children on an equal time basis, and that she had agreed to this arrangement. Their agreement in September 2014 was a temporary arrangement to allow him time to adjust to his new living accommodations. The start of the shared parenting arrangement was delayed by the illness of his parents.

After his mother’s death, he initiated the court proceedings and wished to formalize the shared parenting arrangement they had agreed to on separation. The mother denies that the parties agreed to a shared parenting arrangement. [ 24 ] The father initiated divorce proceedings in July 2015 claiming the parties had a shared-parenting arrangement. According to the mother, the children only spent 8 days with the father in July 2015. Father’s Position [ 25 ] The father’s argument is that the parties agreed to a joint and shared parenting arrangement at the time of separation.

He never agreed to a permanent arrangement whereby he would spend less than 50% of the time with his children. [ 26 ] The parenting

schedule after separation was temporary while he settled into his new accommodations and was prolonged by the illness of his parents.

[ 27 ] The mother’s failure to respond to his counsel’s letter in July 2015 in a timely manner, whereby his counsel indicated the parties were operating under a shared parenting arrangement supports his view the parties intended to share parenting time. [ 28 ] He has a flexible work

schedule which enables him to focus his time on the children’s needs. [ 29 ] It is in the children’s best interests that both parents be equally involved in the children’s development. The children are not getting a proper balance of parental involvement in their lives. He is concerned the younger child does not have time to be a kid with all the extra workload in and out of school. The older child has somatic concerns at the mother’s home but not at his home. The mother’s scheduling of activities limits his ability to

schedule activities during the time they are in his care. [ 30 ] The father’s request amounts to one extra overnight per week, which would allow both parents to have 50% of the children’s time. [ 31 ] Prior to separation the parties shared parenting responsibility. After separation, the mother has limited his parenting time, and participation in the children’s lives, to justify her position that shared parenting is not workable. [ 32 ] The parties’ relationship is not high conflict. Communication by email is not threatening and does not indicate any serious communication issues.

The mother’s complaint that the father does not respond to her communications about the children’s issues is due to different parenting styles. According to the father, the mother is too quick to seek professional intervention, while he adopts a wait- and-see approach.

For example, the position that their older child’s prescription for orthotics because of complaints of leg pain was not necessary, was justified since she has not been using the orthotics and is no longer complaining of leg pain. [ 33 ] The mother’s conduct in referencing statements made by the younger child that his father hits him and is fearful of him, after he initiated these proceedings, should be looked at with suspicion and an attempt to control the father’s parenting time, and not a concern for the child’s well-being. [ 34 ] The mother has involved the children in too many activities, which are unnecessary.

It takes away the father’s ability to

schedule his time with the children, and does not help in fostering a positive relationship between the children and the father. Mother’s Submissions [ 35 ] Counsel for the mother submits the court should maintain a parenting arrangement that has been in place since separation, that is: the children residing with the mother in the matrimonial home, attending the same school and participating in activities they enjoyed pre-separation, while spending time with the father at his home in Halifax and the grandfather’s home in the Valley. [ 36 ] The children are doing well in the current arrangement. [ 37 ] While there is disagreement between the parties about the parenting

schedule set up in September 2014, the children were in the primary care of the mother for more than a year before the father initiated divorce proceedings. [ 38 ] The parties have not been able to resolve conflict and make joint decisions about their children in a timely manner involving major issues such as orthotics, psycho-educational assessment, and psychological support. Therefore, the parties should consult on major decisions affecting the children, but in the case of a disagreement the mother should have final decision making authority.

Conclusion [ 39 ] The evidence in this proceeding consisted of the affidavits of the parents, with numerous exhibits attached to their affidavits. The parties were cross examined on their affidavits. The time allotted for the hearing was a half day. At the outset of the hearing the court informed counsel and their clients that the affidavit evidence included hearsay and opinion, and no experts were qualified or testified. Therefore, opinions or diagnosis of psychologists, social workers, etcetera, were not considered by me.

Neither counsel argued that the hearsay evidence was admissible because it was necessary and reliable and therefore the court did not consider any of these hearsay statements. [ 40 ] This proceeding is an interim hearing and is not a final hearing as suggested by counsel for the father. [ 41 ] Since the father left the matrimonial home in July 2014, the mother has been primarily responsible for managing the children’s time, enrolling them in child care, summer camps, and various activities. She’s been the primary contact person with their school and medical professionals.

The father has been notified of these appointments by the mother, but has not taken any initiative regarding the children’s schooling or other appointments. [ 42 ] Since separation, the children have been residing primarily with the mother in the matrimonial home, attending the same francophone elementary school, and participating in activities they enjoyed at the time of separation, and spending time with the father on a fixed schedule. [ 43 ] While the father’s affidavit evidence and submissions indicated that the children were involved in too many activities, he acknowledged their activities were in place pre-separation.

Tutoring, which has been added since separation, occurs during homework time at school. [ 44 ] The evidence is clear that the parties are unable to agree on major decisions in a timely manner which affected the well-being of the children, including disagreements over the prescription for orthotics, the younger child’s psycho-educational assessment, and an appointment with a psychologist to deal with emotional concerns regarding the younger child. [ 45 ] They also have been unable to agree on such routine matters as transferring a hockey bag, and trying to communicate about the younger child’s homework assignments.

[ 46 ] The best interests test applies at interim hearings as well as final hearings, however, the focus is on the status quo and maintaining a relationship between the parents and the children, as well as addressing the short term needs of the children until the parties are able to resolve their differences by consent or at trial. [ 47 ] My assessment of the evidence is that the father is focused, at this time, on equal parenting time and a separate parenting regime for the children while in his care. [ 48 ] I do not accept the father’s characterization of the mother’s behaviour as an attempt to control his parenting time.

I find she is concerned for the children’s well-being and is attempting to do what is best for the children, especially the younger child’s educational needs and emotional health. The father has been resistant and not cooperative in these matters. [ 49 ] The children need stability while their parents are going through a time of turmoil in their lives. They need time to be with parents, but also be able to participate in activities they enjoy and spend time with friends. [ 50 ] The court is concerned that parental conflict has escalated since the issuance of the petition. It is time for a pause in the conflict.

The parties need to develop more helpful communication strategies to deal with issues relating to their different values. Also, it would be beneficial to the children if the parents find ways to defuse conflict in their relationship. [ 51 ] I find it is in the children’s best interest to maintain the parenting arrangement that has been in place since separation. The parties shall have joint custody of the children, with the children residing primarily with the Mother in the matrimonial home and spending time with the Father on a fixed schedule.

This is the routine they are most familiar with since separation of their parents.

While this arrangement is not satisfactory to the Father, it does provide him with time to be involved in the children’s activities and schooling, and for the children to spend time with his family. [ 52 ] Since the parties were unable to agree on major decisions affecting the well-being of the children in a timely manner, in the short term the Mother shall have final decision making authority after meaningful consultations when the parties are unable to come to a joint decision. [ 53 ] During the Summer of 2016, the parties shall share parenting time on a week about basis, taking into account the children’s time at camp, and the mother’s vacation outside the Province.

The current

schedule will resume once the children return to school in September, until such time as the parties come to a final resolution. Child Support [ 54 ] The father is to pay child support in the amount of $570 per month commencing June 1, 2016. The issue of retroactive child support owing, if any, shall be determined by consent of the parties or at a final hearing. [ 55 ] The mother has also requested the father pay his proportionate share of

Section 7 expenses, including extracurricular activities, child care, medical insurance premiums, summer camp, tutoring and psychological assessment. [ 56 ] Subsection 7(1) of the Child Support Guidelines provides that a court may order an amount to cover all or a portion of certain expenses, taking into account the necessity of the expense in relation to the child’s best interest and the reasonableness of the expense in relation to the means of the parties and the child, and the family’s spending pattern prior to separation. [ 57 ] Very little attention was directed to this issue.

Subsection 7(1) expenses claimed by the mother appear to meet the criteria set out in that subsection. However, the cumulative total of the expenses may not be reasonable given the means of the parties. A more thorough analysis of this subsection is needed before a final determination can be made by the court. [ 58 ] In the interim I direct the father to pay his proportionate share of the children’s after-school care ($3,141.00 annually), summer camp ($1,485.00 annually), tutor ($40.00 weekly), and psycho-educational assessment ($500.00). The balance of the section 7(1) claim, including the retroactive claim for

section 7 expenses can be determined at trial. Wilson, J.