Isadore v. Forrest, 2014 NSSC 329

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Isadore v. Forrest , 2014 NSSC 329 Date: 2014 - 09 - 10 Docket: SFSN MCA 086942 Registry: Sydney Between: Erin Anne Isadore Applicant v. James Ryan Forrest Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard: September 8, 2014

Summary: Mother applied for custody, supervised access and maintenance (prospective and retroactive) for pre-school daughter. Parenting order reached by consent. Prospective maintenance determined and retroactive award made from date of application. Key words: Child Maintenance Guidelines , Costs, Family- access to children, Family- child custody, Family- child maintenance- retroactive, Maintenance and Custody Act Legislation: Child Maintenance Guidelines , N.S. Reg. 53/98 Maintenance and Custody Act , R.S.N.S. 1989, c. 160, subsection 18(6) 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: Isadore v. Forrest , 2014 NSSC 329 Date: 2014 - 09 - 10 Docket: SFSN MCA 086942 Registry: Sydney Between: Erin Anne Isadore Applicant v. James Ryan Forrest Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard : September 8, 2014 Counsel: Darren Morgan for Erin Isadore Ryan Forrest on his own behalf By the Court: Introduction [ 1 ] Erin Isadore has applied for an order for custody, access and child maintenance for Madison. Madison is almost three and is the daughter of Ms. Isadore and Ryan Forrest.

The application is pursuant to the Maintenance and Custody Act , R.S.N.S. 1989, c. 160. Ms. Isadore also seeks costs. [ 2 ] Madison lived with both her parents until she was approximately eight months old. Since her parents separated, Madison has lived with her mother and has had almost no contact with her father. Custody and access

[ 3 ] Ms. Isadore has had greater responsibility in raising Madison and both parents agree that Madison should live with Ms. Isadore, who will be responsible for making all decisions about her. Subsection 18(6) of the Maintenance and Custody Act identifies considerations I should have in determining if this arrangement is in Madison’s best interests. I have reviewed those considerations, particularly the history of Madison’s care, her cultural upbringing, the strength of her relationship with each parent and her extended family.

This is the best arrangement for Madison. [ 4 ] Both parents agree that Madison’s access should be supervised at present. She has not lived with her father for more than two years and she’s seen him on only two or three occasions since then. She will need the chance to become familiar with him. Ms. Isadore says that Mr. Forrest provided little care for Madison when she was an infant and supervision will ensure that Madison is safe. She argues that supervision will also ensure that Mr.

Forrest’s medical condition (he experiences anxiety attacks in stressful circumstances) does not compromise Madison’s safety during visits. Mr. Forrest did not specifically agree to this as a basis for the review. [ 5 ] The parents suggest that supervision be provided by the Department of Community Services or the YMCA program. Because this is not a child welfare case, only the YMCA program is available. [ 6 ] Both Ms. Isadore and Mr. Forrest work: Ms. Isadore works at two McDonald’s locations, working weekdays and weekends, while Mr.

Forrest works at the North Sydney Ultramar and at a private security company, working between sixty and sixty-five hours each week. Scheduling supervised access will be a challenge. Supervision may be provided by a person mutually acceptable to both parties or through the YMCA program, which I understand may involve some delay. Supervision should not be provided by Ms. Isadore or members of her family: these people are so familiar to Madison that they may distract her from her father during visits. As well, Mr.

Forrest suggests his relationship with them is not comfortable enough for this to be the best environment for him to establish a bond with Madison. [ 7 ] Mr. Forrest is to have weekly access for twelve weeks, then his access will be reviewed to determine if supervision is still required. [ 8 ] A review hearing has tentatively been scheduled before Justice MacLellan on January 5, 2015 for one hour, beginning at eleven o’clock. If Mr. Forrest hasn’t consistently exercised weekly access for at least ten of the twelve weeks, the review shall be adjourned until he has.

I accept that poor weather, the illness of Madison or either of her parents or some unforeseen circumstance might prevent access from occurring on one or two occasions. Similarly, if scheduling at the YMCA program is delayed and Mr. Forrest hasn’t had these visits, the review hearing shall be adjourned. The parties may agree to adjourn the supervision review hearing to attend conciliation instead. If the review hearing is to be adjourned, the court must be notified as soon as it’s known. [ 9 ] The Supreme Court of Canada’s decision in Leskun , 2006 SCC 25 explains review hearings.

According to Justice Binnie, who wrote the reasons for the unanimous court, at paragraph 39, wherever possible, a judge should determine all the parties’ claims and make an order that is permanent, subject to variation upon proof of a change in circumstances. In some cases this may not be possible because a particular circumstance is unknown. If the judge thinks it’s essential to identify an issue for future review, that issue should be tightly circumscribed.

This is necessary because in a review hearing neither party bears the burden of proving a change in circumstances, while this is necessary in a variation application. If the scope of the review isn’t constrained, either party may try to use the review to re- litigate. [ 10 ] I am ordering a review hearing because I don’t know what access with Mr. Forrest is in Madison’s best interests: she hasn’t yet established a relationship with her father. Once it’s established, access can be determined.

To guide the judge hearing the review, I want to be clear that the purpose of the review is not to determine whether Madison should have access to her father: she should. The issue is whether her access to him must continue to be supervised because she has not yet become sufficiently familiar with him or because his health compromises his ability to care for her. [ 11 ] In terms of Mr. Forrest’s health, I’ve noted that he experiences anxiety attacks: he becomes nervous and it is difficult for him to breathe. He says this occurs when he’s in stressful circumstances.

He had one such attack when in court while being cross-examined and I recessed the hearing in the afternoon for an extended period to ensure he was well. Mr. Forrest says his condition meant that he was unable to work at a local hardware store: he doesn’t do well with people and crowds. Throughout the day-long hearing, Mr. Forrest handled himself well. He identified his condition and took appropriate steps in light of it. As he said, his condition isn’t going away and the concern for a review judge is that Mr.

Forrest continues to take appropriate steps so that his health does not prevent him from meeting Madison’s needs and ensuring her safety and well-being during access visits. [ 12 ] Ms. Isadore consented to Mr. Forrest requesting and obtaining information directly from Madison’s daycare center about her. A separate court order should be prepared stating this. At this point, Mr. Forrest is not permitted to remove Madison from her daycare centre.

Prospective child maintenance [ 13 ] In deciding whether to exercise my discretion to order retroactive maintenance, one relevant consideration is the impact such an order might have on Mr. Forrest’s ability to pay prospective maintenance, according to Staples v . Callender , 2010 NSCA 49 , at paragraphs 41 to 43 . So, I’ll deal with Ms. Isadore’s prospective child maintenance claim first. [ 14 ] Mr. Forrest described his 2014 income in his testimony and provided two Records of Employment. He said that he received social assistance benefits ($790.00) until he began a workforce re-entry program.

The Record of Employment from the re-entry program shows he earned $3,427.84. He then worked at the hardware store, earning $2,716.74 from that job. [ 15 ] Since July 22, he’s worked between sixty and sixty-five hours each week, earning minimum wage of $10.40 per hour. Using an average weekly wage of $650.00 for the remaining twenty-two weeks of 2014 (I’ve allowed for absences from work for statutory holidays), Mr. Forrest will earn a further $14,300.00 this year. I anticipate his total income for 2014 will be $21,234.58. At this income level, his monthly child maintenance payment is $152.00.

This payment shall begin on October 1, 2014. [ 16 ] Starting on June 1, 2015 and continuing on the first of June of every year while Madison is still entitled to child maintenance, Mr. Forrest must provide Ms. Isadore with a copy of his income tax return (whether he files it or not), along with all the schedules and attachments, such as T4 slips, so they can both assess whether his child maintenance payment is still appropriate, in light of his income. If his annual income increases or decreases, his child maintenance payment should be adjusted.

When he receives his Notice of Assessment from the Canada Revenue Agency, he must provide a copy to Ms. Isadore within two weeks. Retroactive claim [ 17 ] Justice Bateman, who wrote the Court of Appeal’s unanimous decision in Staples v. Callender , 2010 NSCA 49 , addressed the issue of backdating maintenance to the date of the application. She considered this request using the analytic framework of a retroactive award. So I, too, consider child maintenance prior to the date of my decision to be “retroactive” and subject to the discretion outlined in D.B.S. v. S.R.G., L.J.W. v. T.A.R., Henry v. Henry, Hiemstra v.

Hiemstra , 2006 SCC 37 . This means I must balance Ms. Isadore’s reason for delaying her claim, any blameworthy conduct by Mr. Forrest, Madison’s past and present needs and the prospect that a retroactive award would cause Mr. Forrest undue hardship. I must consider these factors in the context of the fundamental principles of child maintenance and balancing Ms. Isadore’s interest in flexibility and Mr. Forrest’s interest in certainty. [ 18 ] Ms. Isadore began her application in July 2013, one year after the relationship ended. There’s no explanation for her delay. She says that she and Mr.

Forrest attempted to reconcile at some point in the summer of 2012, but that this was very short-lived. His whereabouts have always been known to her. She has a positive obligation to pursue maintenance. [ 19 ] When Ms. Isadore and Madison left, Mr. Forrest provided her with $40.00. After Ms. Isadore began this application, a conciliator granted an interim child maintenance order: beginning in January 2014, Mr. Forrest was to pay monthly child maintenance of $178.00. This amount was based on an annual income of $21,952.67, an average of his annual income in 2010, 2011 and 2012.

Until he began making maintenance payments this summer, Mr. Forrest provided no additional money. He provided diapers and baby wipes once and gave Madison an Easter gift once. [ 20 ] By October 2012, Mr. Forrest was unemployed and, one year later when his Employment Insurance benefits ended, he began to receive social assistance benefits. Until he returned to work through workforce re-entry program in February 2014, his means were limited. [ 21 ] Unquestionably, Madison would benefit from maintenance and there’s plenty of time for her to continue to benefit from it.

There was no evidence that Madison was without anything during the retroactive period. [ 22 ] Mr. Forrest gave evidence that he has fallen behind on his bills. His parents have recently, and appropriately, allowed him to forego paying them the debt they are owed. He’s made a very concerted effort to pay child maintenance, paying over $1,600.00 in the past six weeks. He is working extremely hard to catch up on this obligation. [ 23 ] Ms. Isadore argued that until six weeks ago, Mr.

Forrest paid “not one dime” toward Madison’s maintenance and he gave priority to paying his own expenses, including some which were not absolutely necessary, such as a car loan when he wasn’t employed.

[ 24 ] It is a fundamental principle of child maintenance that a child is entitled to be maintained by each parent and this is an appropriate case to make a retroactive award: Madison has need and Mr. Forrest has not made her maintenance a sufficient priority. In deciding whether to reach back and award maintenance from the date of separation, I’m guided by comments of Justice Bateman in Staples v. Callender , 2010 NSCA 49 .

At paragraph 43, Her Ladyship said there was no fixed rule in ordering maintenance from the date of an application, but whether I do so is a matter in my discretion, considering “in particular, [Mr. Forrest’s] ability to respond to the order.” Here, Ms. Isadore asks for maintenance from the date of separation – one year before she started her application. [ 25 ] Mr. Forrest’s annual income in 2012 was $23,318. 00. At this level, his monthly child maintenance payment from July to December would be $178.00. [ 26 ] From October 2012 until September 2013, Mr.

Forrest received Employment Insurance benefits of $646.00 bi-weekly or $1,401.82 per month. He received social assistance benefits of $790.00 for the final three months of the year. As a result, his 2013 income was $14,986.38. At this income, his monthly child maintenance payment would be $70.00. [ 27 ] I’ve already calculated Mr. Forrest’s 2014 income as $21,234.58. At this income level, his monthly child maintenance payment is $152.00. For the first nine months of 2014, he would owe $1,368.00. If child maintenance was awarded retroactively from the date of the couple’s separation, Mr.

Forrest would owe $3,276.00. [ 28 ] Generally, a retroactive award should date from when there was effective notice, as Justice Bastarache said at paragraph 134 in D.B.S. v. S.R.G. , L.J.W. v. T.A.R. , Henry v. Henry , Hiemstra v. Hiemstra , 2006 SCC 37 . It’s permissible to look to an earlier date, where there’s been blameworthy conduct. Effective notice came to Mr. Forrest during the summer of 2013. He was unemployed at the time, and had been unemployed for approximately nine months. By the time the conciliator issued an interim order, Mr.

Forrest’s Employment Insurance was exhausted and he was receiving social assistance benefits. He was in default of his existing bills. [ 29 ] In his current circumstances, I find that it would compromise Mr. Forrest’s ability to pay prospective child maintenance if I ordered him to pay retroactive maintenance from July 2012. I award retroactive child maintenance from the date of effective notice in July 2013. Accordingly, the retroactive award is $1,788.00. [ 30 ] Mr. Forrest provided copies of money orders from Canada Post and ScotiaBank showing he made payments of $1,610.00 since July 29, 2014.

These were sent to the Maintenance Enforcement Program in Halifax, as directed by the conciliator’s order. It seems they have not yet been received by Ms. Isadore. [ 31 ] Mr. Forrest shall have credit for these payments, once confirmed by the Maintenance Enforcement Program, against the retroactive award of $1,788.00. Any shortfall shall be paid in full by December 31, 2014. Costs [ 32 ] Ms. Isadore also seeks costs. She argued that the hearing might have been avoided or abbreviated, if Mr. Forrest had attended an earlier scheduled settlement conference. Notice of the settlement conference was provided to Mr.

Forrest on the second page of a Date Assignment Conference Memo. The Memo simply says “Settlement Conference: July 7, 2014 at 2:00 p.m. before Haley, J.” It is not explicit that Mr. Forrest was to appear. It would have been clear that Mr. Forrest hadn’t filed a settlement conference brief when scheduled to do so on June 30 and it seems no inquiry was made to determine whether this was because Mr. Forrest didn’t intend to file a brief or because he didn’t understand he was required to attend the conference. [ 33 ] The parents’ agreements about custody and access were obvious when the hearing began.

Pre-hearing briefs were due on August 28. Ms. Isadore filed hers on September 5. Mr. Forrest said he did not receive a copy. If he had earlier received a copy, that may have reduced the scope of the hearing. That said, most time was dedicated to the retroactive child maintenance claim and the parties’ success on that was divided. I decline to award costs for the hearing. [ 34 ] Mr. Forrest was ordered to pay costs of $150.00 for failing to attend the settlement conference. This is appropriate.

Conclusion [ 35 ] Madison shall be in the sole custody of Ms. Isadore who will make all major decisions for her. Through the YMCA’s supervised access program or a mutually acceptable third party, Mr. Forrest will have supervised access. Whether access must continue to be supervised will be considered at a review hearing, tentatively scheduled for January 5, 2015 from 11:00 – 12:00. [ 36 ] Mr. Morgan shall draft the order. He shall provide a copy to Mr. Forrest who shall have ten days from the date the order is sent to him to identify any errors in it to Mr. Morgan.

If none are identified or if there’s no response from Mr. Forrest, Mr. Morgan shall send the order directly to me at the courthouse in Halifax. [ 37 ] Assuming there is no further need for the original exhibits, the exhibits entered by Mr. Forrest (Exhibits 3, 4 and 6 - his money orders, Records of Employment and correspondence from the court) shall be returned to him by December 15, 2014. [ 38 ] The costs order of $150.00 arising from the settlement conference shall be payable by October 31, 2014. __________________________________ Elizabeth Jollimore, J.S.C. (F.D.) Halifax, Nova Scotia