Baggs v. Baggs, 2012 NSSC 213

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Baggs v. Baggs, 2012 NSSC 213 Date: 20120530 Docket: SFSND1206-006354 Registry: Sydney, NS Between: Albert Baggs Applicant v. Shellon Baggs Respondent LIBRARY HEADING Judge: The Honourable Justice Darryl W. Wilson Heard: May 4th, 7 th and 8 th , 2012 in Sydney, Nova Scotia Oral Decision: May 30, 2012 Written Reasons: June 4, 2012 Subject: Family Law/Custody Issue: Each party wanted the children to attend school in the community where they resided - approximately 45 minutes away by vehicle.

Result: Joint custody; mother to have primary care during the school week; father’s parenting time specified. THIS INFORMATION SHEET DOES NOT 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: Baggs v. Baggs, 2012 NSSC 213 Date: 20120530 Docket: SFSND1206-006354 Registry: Sydney, NS Between: Albert Baggs Applicant v. Shellon Baggs Respondent Judge: The Honourable Justice Darryl W. Wilson Heard: May 4 th , 7 th and 8 th , 2012, in Sydney, Nova Scotia Oral Decision: May 30, 2012

Written Reasons: June 4, 2012 Counsel: Jill Perry, Counsel for the Applicant Andrea Rizzato, Counsel for the Respondent By the Court: [ 1 ] Albert Baggs, the father, and Shellon Baggs, the mother, are the parents of three boys, 11 year old Dylan, 9 year old Logan, and 7 year old William. The only issue to be determined in this proceeding is the appropriate parenting arrangements for the three children. BACKGROUND [ 2 ] The parties were married in 1999 and separated initially in August, 2008.

At the time of separation, they were residing in the family home located on Gilday Street in Glace Bay - a property gifted to them by the father’s mother. According to the father, he resided in the home with the children and was primarily responsible for their care from August 2008 to June 2009 when the parties attempted a reconciliation and the mother moved back into the home. According to the mother, they took turns residing with the children in the matrimonial home and, on occasion, spent time together in the matrimonial home, although living separate and apart.

The attempted reconciliation in June 2009 lasted until September 2009. The father left the home to reside with his mother at her apartment on Reserve Street in Glace Bay. [ 3 ] In September 2009 both parties were working. The father alleges the children resided primarily with him at his mother’s apartment on Reserve Street. The mother would spend one or two days a week with the children at the matrimonial home.

The mother claims that the children resided primarily with her in the matrimonial home and the paternal grandmother provided childcare during the day and two nights per week when she was working. [ 4 ] In January 2010, the father, alleging that the mother was not residing in the matrimonial home, moved back into the home with the children and, without consulting the mother, changed the locks. When the mother was unable to gain access to the home, she complained to the police. During the police interview she mentioned an assault which occurred in September 2009.

The father was charged and placed on an Undertaking not to return to the family home on Gilday Street. The children resided with the father at the paternal grandmother’s apartment on Reserve Street while they attended school in Glace Bay. The mother said she was afraid to return to the matrimonial home because of the father’s temper and concerns for her safety. From January to April of 2010 the mother resided at her parents’ residence in Sydney. She then moved to the residence of a boyfriend who resided in Northside East Bay.

During this time the mother exercised access at her parents’ home in Sydney. [ 5 ] According to the mother, the father agreed to allow the children to reside with her in Northside East Bay once the school year was completed in June 2010. She then registered the children for attendance at the school in East Bay.

The father denies he agreed the children would attend school in East Bay. [ 6 ] The father filed an application pursuant to the Maintenance and Custody Act on May 7, 2010, seeking custody of the three children and subsequently filed a Notice of Motion for Interim Relief on July 19, 2010 seeking an Order that the children reside with him and attend school in Glace Bay and an Order for exclusive occupancy of the matrimonial home. [ 7 ] The mother initially would not agree to a change in the father’s Undertaking that prevented him from attending the matrimonial home, even though she was not residing in the home.

The home had fallen into a state of disrepair while no one was occupying the home. [ 8 ] An Interim Hearing was held on August 31, 2010. The court ordered an interim shared-parenting arrangement whereby the children attended school in Glace Bay and resided with the father during the school week and with the mother for three weekends per month, from Friday after school until Sunday evening, with an extension of the mother’s access to Thursday after school until Sunday evenings. This was later changed by the parties to Monday morning when the mother delivered the children to their school in Glace Bay.

Arrangements were made for Christmas, Easter, and March Break and the summer holidays were to be shared equally on an alternating weekly basis. The Child Tax Credit was to be shared and a Home Study was ordered. The father was granted exclusive possession of the home on an interim basis.

[ 9 ] Two Home Studies have been completed. The first report was not admissible by virtue of the author’s medical unavailability for cross-examination. The parties requested a second Home Study, which was completed in August, 2011. The matter was originally scheduled for a Final Hearing pursuant to the Maintenance and Custody Act in the Fall of 2010, but was adjourned following the last- minute breakdown of the mother/solicitor relationship. [ 10 ] The mother filed a Petition for Divorce on March 14, 2012.

It was not possible to hear matters relating to asset and debt division by the dates scheduled for the final determination of custody and access pursuant to the Maintenance and Custody Act . The parties have agreed that the Custody/Access Hearing will be a Final Hearing pursuant to the provisions of the Divorce Act , with the issues of child support and property division to be dealt with at a subsequent hearing, if necessary. THE PARTIES’ POSITION [ 11 ] The father seeks a continuation of the current arrangements. He wants the children to live primarily with him and attend school in Glace Bay.

The mother wishes the children to attend school in East Bay and reside with her during the school week. It is not possible for the parent in the non-school community to have significant weekday parenting-time because of the distance between the two communities (approximately a 45 minute drive by vehicle). [ 12 ] The father seeks a Joint Custody Order with him recognized as the children’s primary caregiver. He is prepared to consult with the mother on all major decisions affecting the children, but wishes to have final decision making authority.

The father does not believe shared decision-making is feasible because of the mother’s unwillingness to speak with him. [ 13 ] The mother agrees to a Joint Custodial Order. She is seeking to be named the children’s primary-care parent and that her residence be designated the children’s primary place of residence. She agrees that the father should have regular access with the children - at least three weekends a month - but wishes to select one weekend each month when the children are with her. She agrees with the holiday and summer access schedules that have been put in place pursuant to the Interim Order.

She does not like confrontation and is not prepared to communicate through the grandmother or in person with the father. She prefers to communicate by text or notebook. She will communicate by phone, but only in limited circumstances that involve major issues affecting the children. E-mail is not possible because she does not have a computer. STATUTORY DIRECTION [ 14 ] Section 16(8) , (9) and (10) of the Divorce Act states: Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. Past conduct

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child. Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[15] Direction on what constitutes the “best interests” of the child was given in the case of King v. Low (1985), (SCC), 44 R.F.L. (2d) 113 S.C.C., wherein MacIntyre, J. states: I would therefore hold that in the case at bar the dominant consideration to which all other considerations must remainsubordinate must be the welfare of the child. This is not to say that the question of custody will be determined by weighing theeconomic circumstances of the contending parties.

The matter will not be determined solely on the basis of the physical comfortand material advantages that may be available in the home of one contender or the other. The welfare of the child must bedecided on a consideration of these and all other relevant factors, including the general psychological, spiritual and emotionalwelfare of the child.

It must be the aim of the court, when resolving disputes between rival claimants for the custody of a child, tochoose the course which will best provide for the healthy growth, development and education of the child so that he will beequipped to face the problems of life as a mature adult. Parental claims must not be lightly set aside, and they are entitled toserious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, however, they mustbe set aside. HOME STUDY [16] Sharon Kelloway prepared a Home Study and was questioned by counsel for both parties.

She observed the children in the homeof each parent, as well as spoke with the children and their grandparents. She recommends that the mother be the primary-care parent. She supported her decision with a number of conclusions. While I have considered Ms. Kelloway’s observations, I attribute little weightto some of the conclusions she used to arrive at her recommendations. She raised a number of concerns relating to the children’sschooling and absences from school which was gleamed from incomplete information.

The court has had the benefit of hearingtestimony from the children’s teachers and guidance counsellor and is in a better position to assess educational issues than Ms. Kelloway,who did not have the benefit of speaking with their teachers. Further, the children reported to Ms. Kelloway that their father told themthat they would be residing with their mother in East Bay since he would be going fishing with his brother. Although she receivedinformation from Mr. Baggs’ mother of his plans, she did not confirm this information with either parent. As a result, Ms.

Kellowaymay have been lead to believe that arrangements had been made for the children to reside with the mother, which could have influencedher recommendations. The father must accept responsibility for this confusion since it is obvious that he informed the children of theproposed changes to their schooling without discussing it with the assessor or the mother. Likewise, I do not consider Ms.

Kelloway’sreport to be an indication of the children’s wishes to reside with their mother since the children were only reporting what their fatherindicated would be their likely place of residence in the future. [17] Prior to the last scheduled hearing, the father proposed that he would relocate his residence to Sydney with the childrenattending school in East Bay, provided the children would be able to go back and forth between residences. This proposal was rejectedby the mother and lead to a breakdown in the solicitor/client relationship.

The mother claims she was notified of this proposal just priorto the hearing date and the proposal (as she understood it) was not as clear as what was being suggested by the father. Subsequently, thefather made arrangements for his mother to reside with him in the family home and provide childcare while he was working. PARENTS’/CHILDREN’S CIRCUMSTANCES [18] The father was employed in the field of graphic design. He also operated his own business. He is currently unemployed. Heplans on working as a fisherman with his brother who has a fishing license.

A lack of a steady income contributed to financial stresswithin the family and played a significant role in the parties’ separation. The father’s employment as a fisherman would have him awayfrom home several days at a time, five or six times per month, for three or four months of the year. The children would be cared for byhis mother, Louise Baggs, or the children’s mother, if she could ensure their school attendance. [19] Since the separation, the mother completed a Continuing Care Assistant’s course. In the past, she has worked as a waitress andin retail.

She is currently employed as a continuing care assistant with the Cape Breton County Homemakers. She works split-shifts. The number of hours fluctuate each week. She works on average, twenty-eight (28) hours per week - usually on Mondays, Saturdaysand one other day of the week. A typical split-shift could begin at 9:00 a.m. and go to 1:00 p.m. or 2:00 p.m. She would then return towork at 6:00 p.m. until 7:00 p.m. or 8:00 p.m.

Childcare would be provided by her mother, Mary Matheson, or her partner, VincentMacDonald, in her absence. [20] The mother currently resides with Vincent MacDonald on the Gillis Lake Road in Northside East Bay. He works seasonallyas a truck driver in the local area and collects EI benefits when not working. Mr. MacDonald has a three bedroom home. It is clean, butrequires some improvements. Mr. MacDonald and the mother occupy one room while the children stay in bunk beds in one room andthe third bedroom is used for storage. The mother and Mr.

MacDonald plan on renovating the home to provide more space for thechildren. No timeline was mentioned for the completion of these renovations.

[ 21 ] The father’s residence is the family home on Gilday Street in Glace Bay. In addition to the three boys, his mother and brother reside in the home with him. The father occupies one bedroom, the brother occupies a second bedroom and the three boys occupy a third bedroom. The grandmother sleeps downstairs. The home is near the children’s school and their friends. Ms. Kelloway noted some concerns about the tidiness and cleanliness of the children’s rooms, as well as some safety concerns related to the sinking of the back step and two oil drums in the driveway with no caps over the openings.

The home also requires some renovations. The children have little personal privacy in either home. [ 22 ] The court heard from the children’s teachers and guidance counsellor. All teachers reported the children to be doing well in school and expressed no major concerns about their work or absences. The school guidance counsellor sees the children on an “as need” basis and was very helpful to the older child, Dylan, during the 2010 - 2011 school year when he was exhibiting behavioural problems resulting from the separation of his parents.

The parents have different attitudes with respect to the children’s schooling. The mother is very involved, monitoring their schoolwork and helping with homework. The father is less involved, believing they can do things on their own and offering help when necessary. According to the father, there is very little homework assigned. He communicates with the school teachers and school guidance counsellor as to the children’s needs. [ 23 ] Both parents benefit from the support of extended family. The father’s mother has been extensively involved in providing childcare, before and after the separation.

The mother’s family has also provided much assistance, including childcare, before and after the separation. The children enjoy the benefit and support of a loving relationship with all their grandparents and extended families. [ 24 ] For the last two years, the children have become accustomed to spending time in the residence of the father in Glace Bay and the residence of the mother and her partner, Mr. MacDonald, in Northside East Bay on a weekly basis. According to Sharon Kelloway, the children seemed comfortable in both homes and have a bond with each of the parents.

At the father’s home the children spend a great deal of time playing video games, as well as watching videos. The father, who is a graphic designer, has a good imagination and enjoys these types of activities himself. The children also spend time with their friends. The father allows the children to prepare meals because it makes them independent. However, he monitors what they are eating to ensure it is nutritional.

The father does not have a drivers’ licence and relies upon his mother to assist with transportation. [ 25 ] When the children are in East Bay, the mother directs their activities ensuring that they spend time outside and limiting the time that they are watching movies or playing video games. She also takes them places. She misses helping with their homework, but speaks by phone to them nightly during the school week and often reads with them.

The children help her with meal preparation on occasion. [ 26 ] A neighbour to the parties (when they resided together on Gilday Street) often observed the mother outside with the children. She rarely noticed the father and the children outside the home together. She acknowledges the children were younger and may have required more supervision from the mother when the family resided together. [ 27 ] Both parents seem willing to ensure the children have access with the other parent. However, facilitation of access is an issue.

The father does not have a drivers’ license and the paternal grandmother - because of age and health - should not be expected to assist with exchanges in the future. The children are able to contact either parent by phone without restriction, whether they are in the residence of the father or mother. [ 28 ] Aside from ear and throat infections, the children do not have any serious medical issues.

Both parents have attended to the children’s medical and/or dental needs in the past. [ 29 ] The mother expressed concerns relating to the father’s lack of involvement in the children's schooling and activities; his permissive nature in allowing the children to prepare their own meals; watch inappropriate tv shows and play inappropriate video games.

The mother also has concerns about the father's displays of anger which resulted in criminal charges for uttering threats, as well as assault. [ 30 ] The father acknowledged the mother’s concerns about his temper and allowing the children to watch age-inappropriate tv shows. He sought counselling for anger management and received medical treatment for a depression related to the stress of the family breakup. There is no evidence of ongoing anger or medical health issues affecting the children at this time. He also responded

positively to the mother’s concern about the children watching inappropriate tv shows. [ 31 ] The father was concerned about the mother's lack of consistent contact with the children in the past although this concern appears to have been resolved. He is also concerned that the mother used the oldest child to relay messages about exchanges and prevented the children from residing in their home, which remained empty while he was on an Undertaking not to go near the home.

He also questions the mothers apparent lack of concern about the disruption and upset to the children of a change in schools and the possibility the East Bay school will be closed in the future. He acknowledges she is a good mother to the children. [ 32 ] The elementary school in Glace Bay is a short walk from the children’s home and all three boys walk to and from school together. The elementary school in East Bay is a short bus ride from the mother’s residence and the bus stops at the driveway to the residence.

The East Bay school has only forty (40) students from grade primary to six. [ 33 ] The children are not presently involved in any organized activities. SUBMISSIONS [ 34 ] Counsel for the father submits that the status quo established over the last four (4) years, first by default actions of the parties and then by interim order of the court, should be continued as it provides stability and consistency for the children. Since the current parenting arrangements are working in the children’s best interests, they should not be disturbed.

Counsel for the father further submits that the court find the mother not willing to facilitate maximum contact as directed by the Divorce Act since she chose to reside in East Bay, which limits the parties’ abilities to put in place a parenting plan that allows for maximum contact between the children and each parent.

Counsel further submits the mother’s unwillingness to consult with the father is not in the best interests of the children, since it would limit his involvement in their life. [ 35 ] Counsel for the mother submits that it is in the best interests of the children to be in the primary care of the mother during the school week, since she is more involved with the children and was their primary care parent before the unilateral actions of the father limited her time with them.

Counsel for the mother further submits that the mother is more committed to ensuring the children’s educational needs are met and in seeing that they participate in physical activities than the father. CONCLUSION [ 36 ] The test on a final custody hearing is the “best interests” of the child, with status quo being one factor to be weighed and balanced with all other relevant factors. [ 37 ] I do not accept the father’s submission that by default and by interim order he has been the children’s primary care parent.

Prior to the parties’ separation in 2008, I find the mother was the children’s primary-care parent based on her evidence, which was not disputed by the father. After separation in 2008, the parties’ shared responsibility for the care of the children. The fact that the children have spent more time with the father since January 2008 is the result of his unilateral action in changing the locks, thus restricting the mother’s access to the home.

The mother did not consent to this arrangement as evidenced by her strong reaction in refusing to amend the term in the father’s Undertaking not to go near the home, which prevented him from caring for the children in the family home. [ 38 ] The status quo, which was referenced by the father in the Interim Order was necessitated by the need to fix a place of residence for the children, who were returning to school within a week of the hearing. There was no Order or custody agreement prior to the issuance of an Interim Order, and the Interim Order that was issued, provided for shared-parenting.

It did not bestow the status of custodial parent on either the father or mother. The status quo created by the Interim Order only recognized the urgency of school placement for the children on an interim basis until the Final Hearing could be held. [ 39 ] Both parties agree a Joint Custody Order is in the children’s best interest. Joint custody implies that both parents have a say in final decisions affecting the welfare of the children and, therefore, it requires effective communication.

Both parents have acted immaturely at times as their separation unfolded, behaving in ways which were not in their children’s best interests. However, both have demonstrated they are capable of acting in the children’s best interests. Despite their differences and limited communication, they have

been able to facilitate access with very little conflict. I do not consider the parties’ circumstances to be a high conflict situation, although there have been unacceptable confrontations between the parties in the past. The children are use to being cared for by both parents. The father has addressed concerns raised by the mother about his behaviour. The mother still appears to be less than willing to communicate with him with respect to matters affecting the children.

She must recognize he has an important role to play in the children’s development and the children would benefit from his input on matters affecting their general welfare. I find it is not in the children’s best interests that either parent have final decision making authority.

They should be able to communicate without serious confrontation and any difficulties arising can be addressed by referral to court for direction. [ 40 ] I find a Joint Custody Order to be in the best interests of the children because the parties agree to it, neither parent has dis- entitled themselves to custody and there is evidence of cooperative parenting as evidenced by the father changing his parenting practices to address the mother’s concerns. [ 41 ] I do not accept the father’s submission that the mother’s relocation of her residence to East Bay indicates an unwillingness on her part to facilitate maximum contact between the children and each parent.

Her proposal for access between the children and the father should she be granted primary care during the school week, as well as her proposals regarding additional holiday and summer access allows the children to spend a considerable amount of time with the father and his family in his residence. [ 42 ] I have considered the factors relevant to the children’s best interests raised by the parties, as well as the submissions of their counsel and I find it is in the children’s best interest that they be placed in the mother’s primary care during the school week.

When parents divorce, each parent must be prepared for not spending as much time with their children as they did during the marriage. Each custody case is unique and must be decided on its own set of circumstances.

Meaningful involvement of a parent in their children’s lives is in their best interests, and what a parent does with the children during the time they are together is more important than the amount of time spent with the children. [ 43 ] Based on the evidence at the hearing and the past history of parental involvement with the children, I find the mother is more engaged in the lives of the children, including their educational and extra-curricular activities.

I find her to be a more hands on parent then the father and given their young age, would benefit from her direction and influence in matters of their schooling and social development. [ 44 ] The change in the children’s school will be a disruption to them. However, they are use to spending time on a weekly basis in their mother’s home in East Bay and her presence will assist in any transitory difficulties they may experience in moving from school in Glace Bay to the school in East Bay.

They will continue to have weekly contact with their father and friends in Glace Bay, which should ease any transition difficulties. [ 45 ] The mother is required to consult the father on major decisions affecting the children’s health, and general welfare.

The mother shall be responsible for making major educational decisions affecting the children, including the choice of school, but the father shall be entitled to attend all parent/teacher meetings and major school events and be given notice of all school activities by the mother. [ 46 ] In the event of a medical emergency, the parent having care of the child at the time of the emergency will make decisions to address the emergency and immediately notify the other party as soon as possible as to the nature of the emergency.

Each parent is to notify the other parent of any medical appointment scheduled by that parent. Both parents are entitled to communicate directly and receive reports directly from any and all professionals seen by the children. [ 47 ] The mother shall be responsible for transportation to facilitate the father’s access. Communication about the time and place of exchange shall not be done through the children. Confrontation during exchanges is not in a child’s best interest and any difficulty encountered by either party during an exchange can be referred to the court for future direction.

Drop-off and pick-up of the children shall be at their home or school, unless otherwise agreed by the parties. [ 48 ] The following parenting

schedule is found to be in the children’s best interest:

(1) The children shall reside with the mother during the school week and attend school in the school district where the mother’s reside. The father shall have the children with him every weekend from Friday after school until early Sunday evening with the following exceptions:

(

a) During every four-week period, the mother shall have the children with her for one weekend; the mother is to give the father thirty (30) days notice of the weekend she wishes to have the children with her; (

b) The mother shall have the children with her for one long weekend per year, selected from the long weekend in May or October.

(2) The children shall spend time with their father on Father’s Day and with the mother on Mother’s Day, and both parents shall be able to have time with the children on their own birthdays, as well as the children’s birthday;

(3) Both parents shall have the children for equal periods on the Easter weekend, as they can agree;

(4) During Summer vacation from school, the children shall be with the mother for one week and the father for the subsequent week, on an alternating basis from the last day of school in June until the first day of school in September;

(5) The parents shall share the Christmas holiday with one parent having the children from the commencement of the Christmas School Holiday until December 25 th at noon, and the other parent having the children one week commencing December 25 th at noon. The weeks may alternate each year, unless agreed otherwise by the parties;

(6) The father shall have the children with him during the March Break. ______________________________ J.