Marshall v Walsh, 2011 NSSC 388

FAMILY COURT OF NOVA SCOTIA Citation: Marshall v Walsh, 2011 NSSC 388 Date: 20111024 Docket: SFSNMCA 024385 Registry: Sydney Between: Graham Curtis Marshall Applicant v. Sarah Catherine Walsh Respondent LIBRARY HEADING Judge : The Honourable Justice M. Clare MacLellan Heard: January 30, 2008; May 27, 2011; June 21, 2011; July 6, 2011 in Sydney, Nova Scotia Subject: Variation of consent order, s. 37(1) MCA.

Summary: Change in circumstance proven, variations granted. Issue: Mother and father seeking variation of consent custody order. Result: Variation granted. Custody regime unaltered despite behaviour by Applicant father. 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: Marshall v. Walsh, 2011 NSSC 388 Date: 20111024 Docket: SFSNMCA 024385 Registry: Sydney Between: Graham Curtis Marshall Applicant v. Sarah Catherine Walsh Respondent Judge: The Honourable Justice M. Clare MacLellan Heard: January 30, 2008, May 27, 2011, June 21, 2011, July 6, 2011, in Sydney, Nova Scotia Written Decision: October 21, 2011 Counsel: Mr. Alan Stanwick, counsel for the Applicant Ms. Shannon Mason, counsel for the Respondent By the Court: [ 1 ] This case involves the parenting of Lauren Ashley Walsh, born September 24 th , 2001.

Lauren is the daughter of Graham Curtis Marshall and Sarah Catherine Walsh. Graham Marshall, the father, commenced an application for sole custody of Lauren Walsh, on April 24 th , 2007. At that time, the father was seeking a variation of an earlier consent order. Mr. Marshall applied for a reduction in access for the mother Sarah Walsh. Mr. Marshall sought other provisions including the mother to have a fixed address known to the father. The father wished to view the mother’s residence and a current phone number for the mother.

[ 2 ] Graham Marshall wishes to alter the varied consent order entered into between the parties in their presence before the Court. The court appearance confirming the terms of the consent varied order occurred on May 12, 2006, and the order was issued by the Court on June 6 th , 2006. The substance of that consent order sets out that the mother and father have joint custody of Lauren Walsh and the primary residence was to be with the father.

The order is very detailed and contains the following terms: The following relief under the Maintenance and Custody Act is hereby ordered: The Order of the Supreme Court, Family Division dated June 14 th , 2005, is hereby replaced with the following: Custody/Parenting Arrangement: 1. The Applicant, Sarah Catherine Walsh, and the Respondent, Graham Curtis Marshall, shall have the joint custody of the dependent child, Lauren Ashley Walsh, born September 24, 2001, whose primary residence shall be with the Respondent. The primary caregiver of the child shall be with the Respondent; 2.

The Applicant, Sarah Catherine Walsh, and the Respondent, Graham Curtis Marshall, shall confer with one another in all aspects of the child’s development and overall progress, including the child’s education, heath, religion, social and recreational activities without the involvement of third parties or their respective partners. The Applicant and Respondent shall also keep the other parent advised in a timely fashion as to any major occurrences in the above areas. The parties shall make every effort to reach unanimity respecting any decisions involving the child.

Failing such unanimity between the parties on any issue involving the child, the Respondent shall have the right to make any final decisions; 3. The Applicant, Sarah Catherine Walsh, and the Respondent, Graham Curtis Marshall, shall be entitled to confer with professionals involved in the child’s life, including but not limited to, doctors, dentists, teachers, ministers, and other third parties, involved in the child’s life, without the prior written consent of the other parent and shall be listed as equal and joint parents for consultation purposes; 4.

The Applicant, Sarah Catherine Walsh, and the Respondent, Graham Curtis Marshall, shall be entitled to attend all professional appointments involving the child and shall have equal access to all records involving their child, including, but not limited to the child’s education, health, religion, social and recreational activities, without the prior written consent of the other parent; 5. The Applicant, Sarah Catherine Walsh, shall be solely responsible for cutting the child’s hair and for scheduling appointments for the same; 6.

The Applicant, Sarah Catherine Walsh, and the Respondent, Graham Curtis Marshall, shall keep the other parent advised in a timely fashion as to any medical emergencies or hospital visits involving the child, which the other parent shall be entitled to attend; Access: 7. The Applicant, Sarah Catherine Walsh, shall be entitled to specified access to the dependent child as follows:

a) Regular: Week One: From Wednesday at 5:00 p.m. until Sunday at 5:00 p.m.,

commencing May 10 th , 2006; Week Two: From Wednesday at 5:00 p.m. until Friday at 5:00 p.m. commencing May 17 th , 2006;

b) March Break: (

I) In 2007, the Applicant, Sarah Catherine Walsh, shall have the child with her from Friday, following school closure at 5:00 p.m. until Wednesday during the March Break at 5:00 p.m. Thereafter, the Respondent, Graham Curtis Marshall, shall have the child with him from Wednesday at 5:00 p.m. until the child returns to school. This

schedule would alternate from year to year commencing in 2008, wherein the Respondent shall have the child with him from Friday following school closure at 5:00 p.m. until Wednesday during the March Break at 5:00 p.m. Thereafter, the Applicant shall have the child with her from Wednesday at 5:00 p.m. until the child returns to school; (ii) the Applicant, Sarah Catherine Walsh, and the Respondent, Graham Curtis Marshall, agree to be flexible in terms of the above schedule, so as to allow the child to travel or spend time with the other parent for an extended visit or vacation with the other parent, during the March Break;

c) Easter: (

I) On alternating years, commencing in 2007, the Applicant shall have the child in her care from Easter Saturday at 5:00 p.m. until Easter Sunday at 5:00 p.m.; (ii) On alternating years, commencing in 2008, the Respondent shall have the child in his care from Easter Saturday at 5:00 p.m. until Easter Sunday at 5:00 p.m.;

d) Mother ’ s Day : From the evening preceding at 6:00 p.m. until Mother’s Day at 6:00 p.m.;

e) Father ’ s Day: From the evening preceding at 6:00 p.m. until Father’s Day at 6:00 p.m.;

f) Summer Access: (

I) The Applicant, Sarah Catherine Walsh, and the Respondent, Graham Curtis Marshall, shall be entitled to have the child for two (2) weeks during the summer holiday, which shall not be for consecutive time periods; (ii) The Applicant shall notify the Respondent annually by June 1 st , commencing June 1 st , 2006, as to when she desires to exercise summer access; whereas, the Respondent shall notify the Applicant annually by June 30 th , commencing June 30 th , 2006, as to when he desires to exercise summer access;

g) Christmas Day : (

I) On alternating years, commencing in 2006, the Respondent shall have the child in his care from December 21 st until December

26 th at 6:00 p.m.; whereas, the Applicant shall have the child in her care from December 26 th at 6:00 p.m. until New Year’s Day at 6:00 p.m.; (ii) On alternating years, commencing in 2007, the Applicant shall have the child in her care from December 21 st until December 26 th at 6:00 p.m.; whereas, the Respondent shall have the child in his care from December 26 th at 6:00 p.m. until New Year’s Day at 6:00 p.m.; 8.

The Applicant, Sarah Catherine Walsh, and the Respondent, Graham Curtis Marshall, shall be entitled to have daily telephone access to the child, between 5:00 p.m. to 7:00 p.m., when she is in the care of the other parent. The Applicant and Respondent shall make every reasonable effort to ensure that the child is available for such telephone contact; 9. The Applicant, Sarah Catherine Walsh, and the Respondent, Graham Curtis Marshall, shall keep each other advised, forthwith, as to any changes in their addresses and telephone numbers; 10.

The Applicant, Sarah Catherine Walsh, and the Respondent, Graham Curtis Marshall, shall make every reasonable effort to be flexible, so as to accommodate the child’s attendance at family gatherings and special occasions, involving the other parent and their extended family members; 11. The Applicant shall be solely responsible for transporting the child to and from access, unless otherwise agreed to, between she and the Respondent; 12. Such other access as the parties may agree to: Mobility: 13. (

I) The Applicant, Sarah Catherine Walsh, and the Respondent, Graham Curtis Marshall, shall provide the other parent, with a minimum of two (2) weeks notice of their intention to travel outside Nova Scotia, with the dependent child; (ii) Neither the Applicant nor the Respondent, shall relocate with or remove the child, permanently from the jurisdiction of Nova Scotia, without the express written permission of the other parent or further Order of the Court of competent jurisdiction; Child Support: 14.

In recognition of the joint custody parenting arrangement, neither party shall pay child support or maintenance to the other party. DATED at Sydney, Nova Scotia this 12 th day of May , 2006. ISSUED at Sydney, Nova Scotia, this 6 th day of June , 2006. Court History:

[ 3 ] Historically, it is noteworthy that Lauren Walsh was born on September 24, 2001. The first difficulty between the parties, as chronicled by court applications, took place on April 25, 2003 when an application was made by Graham Marshall From that time to the present, the running file, which chronicles the Court history, is 24 pages long presenting the various applications made by the parties from April 2003 onward. The Court involvement commenced when Lauren Walsh was 18 months old.

She is now nine years old. [ 4 ] An application for enforcement of the 2006 consent order was filed by the mother on July 20 th , 2007, complaining about denial of access, both physical access and phone access. The second application of the mother, Sarah Walsh was made on September 13 th , 2007 seeking interim custody. [ 5 ] The Court heard the father’s application for one full day of evidence on January 30, 2008. The evidence of both parties was completed on January 30, 2008. At the conclusion of the first day of evidence, the Court, with counsels’ consent, commented on the difficulties between the parents.

The Court ordered, with counsel’s agreement, that a parental capacity assessment be prepared assessing the parents and the child. [ 6 ] By interim order dated January 30, 2008, the Court ordered that the parties were to follow the May 12, 2006 order, “in every detail until further ordered by this Court.” That order also indicated that the matter would be adjourned sine die pending the receipt of the parental capacity assessment. The parental capacity assessment was received by the Court on July 9, 2009. [ 7 ] Counsel for the parties were notified on July 14 th , 2009 that the parental capacity assessment by Dr.

Landry had been concluded and a copy was forwarded to Counsel. The letter from the Court on July 14 th , 2009 required counsel, if counsel wished, to continue with this matter to contact the Scheduler to arrange a further date. The next communication from counsel was correspondence from Ms. Shannon Mason, on behalf of Ms. Walsh, seeking to conclude the matter.

That correspondence is dated February 15 th , 2010. [ 8 ] On March 23, 2010, Scheduling assigned August 31, 2010 for summations and decision. [ 9 ] On August 31, 2010, summations were not rendered as counsel advised the Court that they wished to call new evidence given the lapse of time and required one day court time to achieve that end. The matter was also adjourned as Graham Marshall required time to retain counsel as his counsel was retiring.

Graham Marshall was instructed to have his new counsel contact counsel for Sarah Walsh as soon as possible. [ 10 ] The matter was next reviewed by the Court on February 22 nd , 2011 for date assignment. Graham Marshall attended without counsel. Graham Marshall advised the Court he had retained Alan Stanwick the week before the date assignment conference.

Also Graham Marshall objected to the matter proceeding as he believed he had custody of the child for years and the matter had been before the Court for too long a period. [ 11 ] The Court directed Graham Marshall that he was instructed on August 31, 2010 to have new counsel and to have new counsel contact opposing counsel as soon as possible and did not do so. The Court gave instructions to Graham Marshall how to assist his new counsel to become familiar with this file. Mr. Stanwick, now Mr. Marshall’s new counsel, was Mr. Marshall’s counsel when the 2006 consent order was granted.

The trial was set for May 27 th which was the next available full day. [ 12 ] On April 6, 2011, the parties attended a pre-trial where both parties were represented by counsel. The father, Graham Marshall, was represented by Alan Stanwick and the mother, Sarah Walsh, was represented by Shannon Mason. [ 13 ] The matter proceeded on May 27 th , for the full day requested by counsel. At that time, Dr. Landry, the parties and selected witnesses gave evidence. However, at the conclusion of the full day of evidence on May 27 th it was apparent that an additional day would be needed to conclude the evidence.

The matter was set over to June 21, 2011 and the evidence was completed. Oral submissions were provided to the Court on July 6, 2011 by both counsel and the matter was adjourned for oral decision.

Review of Evidence January 30, 2008 - Day 1 of hearing. [ 14 ] On January 30, 2008, the Court heard from Graham Marshall the father, Lauren Walsh’s teacher, Graham Marshall’s partner, his sister, his mother, Graham Marshall’s partner’s mother, Lauren Walsh’s mother Sarah Walsh, the Respondent in this matter, as well as Sarah Walsh’s stepfather Michael Hollahan, and Sarah Walsh’s mother Ernestine Hollahan, Miranda Moles, a friend of Sarah Walsh.

Graham Marshall and his partner Janice Basque were called on rebuttal. [ 15 ] Graham Marshall, in his evidence, advised that he was licensed to drive a tandem truck and was employed cleaning the Tar Ponds commencing April 2008. He advised he was fiancé to Janice Basque. [ 16 ] Graham Marshall complained that the Court Order split his access with his child during the work week and that he had never agreed to this arrangement. Graham Marshall opinioned that it was a mistake of his lawyer to commence access for Sarah Walsh from Wednesday to Sunday on Week One, and Wednesday to Friday on Week Two.

He believed the first week should have run from Thursday to Sunday and that the order was inaccurate. [ 17 ] He proposed the proper

schedule for the mother was every second weekend with no overnights given his concerns with the mother’s lifestyle. He alleged she was “an avid drug user” and that her ability to misuse substances attributed to inappropriate parenting. He gave evidence that on one occasion approximately two years prior to January 30, 2008, she took drugs and forgot a two week period. He believes she lives with a drug dealer although he had no first hand knowledge of that allegation. He also alleges that the mother dresses her daughter, Lauren Walsh, inappropriately for the weather.

He fears Sarah Walsh smokes cigarettes in the child’s presence. Graham Marshall advised that Lauren Walsh’s mother harasses both he and his fiancé during phone discussions and is not open to any parenting style corrections he proposes. [ 18 ] In addition, Graham Marshall complained that Sarah Walsh has, on occasion, been homeless and frequently changes her residence. For a period of time Graham Marshall refused access to Sarah Walsh as he believed she was homeless. On direct examination, he stated that Sarah Walsh was homeless for a number of months. He believes that this took place during March 2007.

At that time he had no address and no phone number for Sarah Walsh. [ 19 ] On cross examination Graham Marshall qualified his allegation substantially indicating that Sarah Walsh had not been homeless but living with a friend or living with her parents during the period he outlined as the time of concern. He also admitted to receiving written notice that Sarah Walsh had her own apartment in April 2007 and that this address and phone number was hand delivered to him by Sarah Walsh’s stepfather, Michael Hollahan.

Graham Marshall confirmed that he did receive a voice mail from Sarah Walsh also supplying her new address and phone number. [ 20 ] When confronted with the confirmation that Sarah Walsh did in fact have suitable residence during the time that he denied her access to her daughter, he advised that his real problem was that he believed that Sarah Walsh should have her own residence because he has his own residence.

He stated that if Sarah Walsh lives with her parents for a period of time, even if the parents were suitable people, and the location a suitable location, it was not appropriate for the mother to have access with her daughter at that time and in that place. Graham Marshall confirmed that he was aware of Sarah Walsh’s new apartment in April 2007 but required an opportunity to inspect the premises, which he was not able to do until July 2007, and he believes that access between mother and daughter was recommenced in August 2007. [ 21 ] A meaningful exchange took place between Ms.

Mason, on cross examination, and Graham Marshall in relation to Sarah Walsh’s application to enforce her access filed on July 20, 2007. The exchange is as follows: Ms. Mason Question: Do you recall back in August

(2007) Graham Marshall we were in court? Answer: I believe so. Question: Yes, Sarah Walsh had made an application to enforce her access rights, correct?

Answer: Yes. Question: So that was August 8 th , why would she have done so if access had been started in July as you said? Answer: Well I am sorry, I, I guess it was in August. Question: Yes. Answer: Okay. Question: Do you recall on that date...do you recall being in Court on that date? Answer: Yes. Question: Do you recall the comments that the Judge made on that date? Answer: To follow the court order. Question: Right. Right, isn’t it true Mr. Marshall, that if Sarah Walsh had not brought that court application that day you would still be denying access wouldn’t you? Answer: It is hard to say.

Question: Well no it’s not, I mean if she hadn’t brought the court application in August to enforce access and you hadn’t got clear indication from Justice MacLellan that the order was to be followed, you would still be denying access? Answer: I, I would have granted access. Question: Oh, when was that going to happen? Answer: That’s in the past, I can’t change the past. [ 22 ] In relation to the second application made by Sarah Walsh to secure phone access pursuant to the 2006 order; Graham Marshall stated that he had a phone line that was operational with voice mail during the relevant time.

According to his recollection, Sarah Walsh did not call every day. He advised she did leave some messages on his home phone for Lauren and some of these phone calls were returned. However, he advised it was not possible for the family to be home during the time period set in the consent order. [ 23 ] Graham Marshall agreed that he had denied access to Sarah Walsh and in so doing denied access to Lauren Walsh’s extended maternal family and that this denial was not good for the child.

However Graham Marshall went on to describe Sarah Walsh’s extended family as “the only one that is reasonable and sane is the stepfather, Michael Hollahan”.

[ 24 ] Graham Marshall complained that Lauren Walsh should not have her school week interrupted by having to change residence to her mother’s. He agreed that the mother’s home was closer to the school than his residence. Graham Marshall agrees that there has never been any complaints from the school in relation to his daughter’s attendance. He agreed, as well, that by all accounts Lauren Walsh was doing well in school.

However he believed that Lauren Walsh was tired and that this tiredness is caused by on going back and forth between the two homes during the school week. [ 25 ] Graham Marshall is consistent in his belief that the time set for the mother’s visitation in the May 2006 court order was not read into the court record in his presence and that the order itself was mailed to him.

He maintains the order contains flaws in relation to access days for Sarah Walsh. [ 26 ] At the conclusion of his evidence, Graham Marshall did agree that if he was an obstructionist in the relationship between the mother and the daughter that he ran the risk of losing custody. [ 27 ] The Court heard from Sharon Bernard Lauren Walsh’s Grade 1 teacher. Ms. Bernard describes Lauren Walsh as “an excellent student who is friendly and outgoing.” She describes Lauren Walsh as “she’s everything a Grade One should be I guess.” Ms.

Bernard indicated that Lauren Walsh was from time to time a little tired but did not consider her tiredness out of the ordinary. Ms. Bernard indicated that she had a good rapport with both of Lauren Walsh ‘s parents and that both attend parent/teacher meetings. [ 28 ] Janice Basque, Graham Marshall’s common law partner and fiancé, gave evidence. Janice Basque has secured a science degree and was currently engaged in securing a Public Health degree at CBU. The degree she is seeking is a Bachelor in Technology in Public Health which was to conclude in April 2010. She had a work term secured with Health Canada.

If her plans succeeded, she would be classified as a Public Health Inspector. [ 29 ] Janice Basque is the parent of two children, an older child Christina who is eight, and a child who is two. Graham Marshall is the father of the younger child.

At the time of this hearing, Janice Basque’s older child, Christina, was living with her maternal grandmother in Whycocomagh so that Janice Basque could continue her education at C.B.U. [ 30 ] During the course of her evidence, Janice Basque acknowledged that Graham Marshall denied the mother access with Lauren Walsh starting somewhere around March 2007 extending to July or later 2007.

She believed this denial was due to the fact that Sarah Walsh did not have a home. [ 31 ] Janice Basque clearly stated that she does not have a good relationship with Sarah Walsh because Sarah Walsh has threatened her on several occasions. On one occasion, in the presence of the children, Sarah Walsh threatened to physically fight Janice Basque . [ 32 ] In cross examination Janice Basque admitted that she did challenge Sarah Walsh to a fight. However Janice Basque maintains that was the result of Sarah Walsh threatening her.

On that occasion, March 2007, Janice Basque described that Sarah Walsh left of her vehicle and tried to get into Janice Basque’s vehicle. Janice Basque advised that Sarah Walsh was there to pick up Lauren Walsh but that Janice Basque would not allow Lauren Walsh to go with her mother because Graham Marshall had instructed her not to allow the child to go with the mother. [ 33 ] When pressed on the exact facts of the alleged March 2007 exchange between Janice Basque and Sarah Walsh, Janice Basque did concede at the termination of her evidence that Sarah Walsh never left her vehicle.

Janice Basque did exit her vehicle, leaving two children in the car. She approached Sarah Walsh’s vehicle and advised Sarah Walsh could not have the child because the Court order contained the wrong pickup date. [ 34 ] Janice Basque tendered a number of pictures (Exhibit 1) of Lauren Walsh outlining the poor quality of the clothes Lauren Walsh wore when with her mother, and a picture of the type of sock Lauren Walsh wore while in the Graham Marshall residence versus the type worn in the Sarah Walsh residence.

Janice Basque interpreted other tendered photographs of Lauren Walsh with her eyebrows allegedly waxed, with blisters on her feet and alleged flea bites on her skin.

[ 35 ] Contrary to Mr. Marshall’s evidence, Ms. Janice Basque advised that during the summer of 2007 she and Graham Marshall did not have a home phone. They only had a cell phone but the cell phone number was not given to Sarah Walsh. [ 36 ] Ms. Cecilia Marshall, Graham Marshall’s sister gave evidence.

However her evidence is not relevant to any issues before the Court. [ 37 ] Mary Theresa Marshall, Graham Marshall’s mother, gave evidence that she lives next door to her son and she believed Lauren Walsh and Graham Marshall enjoyed a good relationship. [ 38 ] Dorothy Googoo, Janice Basque’s mother gave evidence that she has raised Janice Basque’s older child Christina who still lived with her (as of January 2, 2008) so that her daughter Janice Basque could attend university. [ 39 ] Sarah Walsh, mother of Lauren Walsh, gave evidence on January 30, 2008 that she wished to have sole custody, or be joint custodial parent with her as principal care giver. [ 40 ] Ms.

Walsh advised the denial of access commenced in March 2007. She described the effect this denial had on her. Sarah Walsh stated Graham Marshall denied regular weekly access, special occasion access and phone access. On one occasion, Sarah Walsh indicated that the only way she could secure access was to attend Lauren Walsh’s school and visit her there on lunchbreak. She advised she was able to have summer access in the summer of 2007 only as a result of court intervention on August 8, 2007. Earlier summer access prior to court involvement was denied by Graham Marshall. [ 41 ] Ms.

Sarah Walsh indicated that Lauren Walsh becomes a different child prior to her drop-offs at her father’s home when she becomes reluctant to kiss her mother or show any affection in the presence of her father. It is Sarah Walsh’s belief should Graham Marshall be granted full custody he will block Lauren Walsh from her life completely. However, if she was the custodian parent she would encourage access with the father including phone access.

She would accept his input in major decisions. [ 42 ] Sarah Walsh indicated that for a period of time she and Graham Marshall were able to discuss Lauren Walsh in a proper manner. This occurred when he and Janice Basque were separated. [ 43 ] Sarah Walsh also indicated her child’s birth certificate states Lauren’s last name is Walsh. However, Lauren Walsh is known in her school and on her report card by her father’s name. She learned through school personnel that her daughter’s last name was changed to Marshall. [ 44 ] Sarah Walsh provided photographs of her current apartment including Lauren Walsh’s bedroom.

Sarah Walsh advised that contrary to Graham Marshall’s assertion she does not smoke in the presence of the child. She advised as well that she uses sternness or time out as a disciplinary method. [ 45 ] Sarah Walsh denies she has any difficulty with drugs or alcohol. [ 46 ] Sarah Walsh advised that she was completing her GED which would be written on the 29 th day of February 2008. [ 47 ] Sarah Walsh expressed her concerns that Lauren Walsh is being used as a go-between between the parents and that is not good for a six year old. She advised that Lauren Walsh is dealing with problems well beyond her age level.

[ 48 ] Sarah Walsh advised that on many occasions when she picks up Lauren from Mr. Marshall’s home, she is in an unkempt state. [ 49 ] Sarah Walsh denied the accuracy of the photographs showing Lauren Walsh with waxed eyebrows and inappropriate attire. She denies the presence of any fleas in her home. Sarah Walsh complained that she does not receive Lauren Walsh’s clothes back after access so it is necessary for her to attend Value Village to secure second hand clothing or “hand-me-downs” for Lauren Walsh as Sarah Walsh is not well off financially.

Sarah Walsh has advised that she has been and will be supportive of Lauren Walsh’s Mi’Kmaq culture and that she had Lauren Walsh baptized at Membertou. Sarah Walsh advised that her home and Lauren’s bedroom display native ornaments. [ 50 ] Sarah Walsh expressed concerns that on one occasion when Lauren Walsh was congested, she secured medication from her family doctor, Dr.

Nicholson, and was advised that Graham Marshall took her off the medication but she was never informed of a second medical opinion as to the wisdom of that choice. [ 51 ] Sarah Walsh advised that she would support Lauren Walsh’s contact with family members from both families. [ 52 ] Sarah Walsh advised, as well, that Lauren Walsh has witnessed arguments between she and Graham Marshall . She and Janice Basque argue almost every time they encounter each other. [ 53 ] Sarah Walsh believes that she is able to support Lauren Walsh financially although she is on social assistance, is unemployed and is not disabled.

In relation to her current employment Sarah Walsh advised that she was on social assistance for the past five years while attempting to obtain Grade 12 and that she was also attempting to earn an income selling cosmetics. [ 54 ] In cross examination, Sarah Walsh admits to having a criminal record for fraud and possession of stolen goods which occurred in September 2003 prior to the consent order of May 2006.

Sarah Walsh advised that she was drugged through the whole two week period when her activities resulted in criminal convictions. [ 55 ] During this same time period, Sarah Walsh was in the company of a male known and convicted for the possession of drugs for the purposes of trafficking. He eventually received a penitentiary sentence. Sarah Walsh admits to a two year relationship with this person, Thomas Howell. She advised that if she was aware that he was involved in the drug trade, she would have ended the relationship earlier. [ 56 ] Michael Hollahan gave evidence on January 30, 2008 .

He is Lauren Walsh stepfather and has had an opportunity to observe Sarah Walsh with her daughter Lauren Walsh and describes their relationship as very loving. [ 57 ] Michael Hollahan describes himself as the go-between between the parties and that he has on occasion listened to Graham Marshall’s concerns regarding Sarah Walsh’s housing. Michael Holland assisted Sarah Walsh in securing appropriate housing. [ 58 ] In relation to the cancellation of access between March and August 2007, Michael Hollahan advised that he went to see Graham Marshall.

He was not at home and so he provided Janice Basque with confirmation that all terms sought by Graham Marshall regarding Sarah Walsh’s suitable housing had been met. He estimates this communication was approximately two weeks prior to Sarah Walsh’s relocation to her apartment which was May 2 nd , 2007. Michael Hollahan subsequently went to see Graham Marshall, who had made a request through his lawyer that he’d be able to inspect Sarah Walsh’s new accommodations.

Michael Hollahan advised Graham Marshall did not inspect Sarah Walsh’s premises until July of 2007. [ 59 ] Ernestine Hollahan, Sarah Walsh’s mother and Lauren Walsh’s maternal grandmother gave evidence. Ernestine Hollahan described an occasion on Hallowe’en where Graham Marshall refused to allow her to pick up Lauren Walsh. Ernestine Hollahan went on to describe access pick ups and how Lauren Walsh behaved positively towards her grandmother once she was away from her father’s residence.

Ernestine Hollahan described that Lauren Walsh is hesitate to show any affection to her grandmother on occasions when her grandmother returns her to her father’s house.

[ 60 ] Ernestine Hollahan described Sarah Walsh as a good, loving parent, concerned about her child and is well equipped to take care of Lauren Walsh Ernestine Hollahan believes the situation could work if the order was left as it is but without Graham Marshall blocking access between mother and child. [ 61 ] Miranda Moles was called as the next witness. She is Sarah Walsh’s best friend. They visit each other frequently as do their children.

Miranda Moles advised that on one occasion when she attended with Sarah Walsh to pick up Lauren Walsh, Graham Marshall and his family were on the step where he denied Sarah Walsh access because she did not have a residence. At that time, they attempted to secure the assistance of the local police without success. Miranda Moles advised she was also in attendance on one occasion when Janice Basque was in a vehicle next to Sarah Walsh’s vehicle when Sarah Walsh went to pickup Lauren Walsh for access. Janice Basque left her vehicle and advised Sarah Walsh that she was not to have her daughter that day.

Sarah Walsh advised it was her court ordered day for access. However, Janice Basque was not willing and advised Sarah Walsh that she could be charged. Miranda Moles advised that during this incident Sarah Walsh remained in her vehicle and did not threaten Janice Basque. Miranda Moles advised the sole reason for attending at that time was to secure access with Lauren Walsh. She advised Lauren Walsh was present during this exchange.

From her observations Miranda Moles believes that Lauren Walsh is in the middle of situations that she ought not witness. [ 62 ] Graham Marshall was called on rebuttal and advised the major change between the consent order in May, 2006 and January, 2008 was that he believed Sarah Walsh still has drugs in her life which was causing him a great deal of concern. He did not provide evidence to support his concerns. [ 63 ] At the conclusion of the evidence on January 30, 2008, the Court and counsel had frank exchanges on the record as to areas of concern with both parents.

At that time, the Court sought permission from counsel to discuss with the parties the areas of concern. It was agreed that this was the course to follow.

At that time, I reviewed the following features with the parties: - Graham Marshall’s non compliance with court orders regarding access; - Graham Marshall’s over emphasis on nice clothing; - The difficulties between Janice Basque and Sarah Walsh; - Sarah Walsh’s failure to find employment and the length of time she was in receipt of social assistance without explanation; - Graham Marshall’s rigidity in his belief of appropriate parenting practices; - The child’s nervousness when she was present with the parties or Miranda Moles, Ernestine Hollahan; - Graham Marshall’s propensity to comply with the court order just prior to a court appearance; - Graham Marshall’s absence of respect for Sarah Walsh. [ 64 ] Counsel agreed a Parental Capacity Assessment may assist in finding avenues to improve communication between the parties. [ 65 ] The matter concluded with the interim order being granted the 30 th day of January 2008 where a parental capacity assessment was ordered and the parties were cautioned to follow the order of May 12, 2006. [ 66 ] From the time the court ordered assessment was provided on July 9 th 2009 to the reconvening of the court on August 31 st ,

2010, I find the responsibility of reconvening, after Dr. Landry’s report was received, remained with counsel. Ms. Mason, counsel for the Respondent, sought court continuance by correspondence on February 15, 2010. When the court reconvened on August 31, 2010 for the purposes of receiving submissions, counsel elected to call further evidence. Graham Marshall was without counsel and was encourage to obtain counsel as soon as possible. On February 22, 2011 when the matter reconvened, Graham Marshall objected to the matter proceeding as the matter was too long before the court.

Graham Marshall advised he had counsel at that time but counsel was not in attendance in court. The time period that span between August 2010 and February 22, 2011, I find was largely due to the failure of Graham Marshall to cooperate with the court instructions to secure counsel. As is recorded in an exchange between Graham Marshall and the Court on May 27, 2011: Question by the Court: Graham Marshall do you have any recollection since we left court in August 2010 that you had any role in the delay in completing this proceeding? Answer: Yes.

Question: So can you help me understand why I should feel some sympathy for you because the proceeding was protracted? Answer: I’m sorry Your Honor for the delay. It was a financial problem that I ran into. Question: No, that’s fair enough, that’s a reality, but then you can’t complain if it’s your reality, can you? Answer: No. Question: But you are, aren’t you? Answer: I’m sorry, I was trying to talk, that’s what I was trying to say. Question: Cause no one’s very happy with the delay, are they?

Answer: No. [ 67 ] I find regardless of who was responsible for these delays, the total delay in completing this matter was protracted and unfortunate. [ 68 ] At that commencement of evidence on May 27, 2011 Mr. Stanwick, counsel for Graham Marshall, made a motion to update the Landry report. I found the motion was late given the date of distribution (July 2009) and the existence of earlier pre-trials. The motion was not granted. [ 69 ] On May 27 th 2011 the Court heard evidence from Dr.

Reginald Landry who gave opinion evidence in the area of Parental Capacity Assessments and, in particular, in relation to the parties. The Court heard evidence from Graham Marshall, the applicant in this matter, and Janice Basque, Graham Marshall’s common law spouse, Michael Hollahan, step father of the respondent, Sarah Walsh; Sarah Walsh, the respondent. Sarah Walsh’s evidence continued on July 6, 2011. At that time, the court heard from Ernestine Hollahan, the mother of Sarah Walsh, Miranda Moles, friend of Sarah Walsh; and rebuttal evidence from Graham Marshall. [ 70 ] During his viva voce evidence, Dr.

Landry explained that the delay (January 30, 2008 to June 2009) in the preparation of the Parental Capacity Report was as a result of scheduling delays with the parties. Dr. Landry concluded that the child is closely identified

with both parents and that fundamentally the largest problem looming is the communication between the parties. Dr. Landry agreed that if one parent does not respect the other parent, this can cause a child to get into a loyalty bind as the child will feel she cannot show the other parent that she cares for the opposing parent and this constitutes an emotional bind for the child. [ 71 ] Dr.

Landry reviewed that Lauren Walsh’s wishes were not of the usual norm, such as, a wish for a bike, rather her first of three wishes was that her parents liked each other, which the doctor indicated came spontaneously from her without prompting by him. [ 72 ] Dr. Landry was questioned as to whether or not he would be concerned if one parent had not acted on his recommendations even though that parent had access to the recommendations since June of 2009 (June 2009 to May 2011). Dr.

Landry opinioned that he would have concerns for the child if this were the situation; especially so if the situation between the parents became worse. Dr. Landry believes that these parents cannot move along without professional help. [ 73 ] Dr. Landry recorded Lauren Walsh’s second wish was to spend more time with her mother. He stated it was in Lauren Walsh’s best interests to do so. He believes that it is very important for Lauren Walsh to remain in contact with her mother and this includes them sharing day-to-day responsibilities and chores. [ 74 ] Dr.

Landry’s viva voce’s evidence is similar to the written recommendations that he made in June 2009 (in exhibit 1, May 27, 2011): The issue of maintaining contacts with both parents is especially important for Lauren since she is so closely identifies with both parents. Therefore, the following recommendations are suggested: 1. It is a belief of the assessor that a working mechanism that would function to reduce tension and conflict and thereby promoting some success is the current arrangement and will work to reduce the degree of conflict between the parties. 2.

To accommodate these changes, Graham Marshall and Sarah Walsh would benefit from the services of a professional to mediate any disagreements that may develop between the parties, and these are likely to happen given recent observations of visits. While these are often relatively minor issues, they may well create huge obstacle to implementing a working plan. An impartial professional such as social worker, psychologist or lawyer well versed in child development may effectively field any concerns and bridge the gap of communication between Graham Marshall and Sarah Walsh , acting as a go-between. 3.

In addition, this individual could help develop some more effective communication strategies between the two. 4. Both Graham Marshall and Ms. Sarah Walsh should consider availing themselves of therapeutic services to deal with the grief and anger associated with their separation and the effects of the persistent conflict between the two. 5. Both parties should consider availing themselves of e-mail and in order to facilitate less emotionally intense communication and they could deal with the more mundane matters of day-to-day shared parenting. [ 75 ] It is significant, in reviewing Dr.

Landry’s comments, to recall that his psychological report was distributed to counsel shortly after receipt, by correspondence dated June 14, 2009. Therefore, the parties had from the time of receipt of the Parental Capacity Assessment until giving evidence on May 27, 2011 to review the content of Dr. Landry’s report, as well as the comments made by the court at the end of evidence on January 30, 2008.

[ 76 ] Graham Marshall gave evidence on May 27, 2011. His situation is basically unaltered since January 30, 2008. He is working and he is still engaged to Janice Basque. Now he has four children living with him. [ 77 ] Graham Marshall provided exhibit #3, a number of pictures describing his new home, and including Lauren Walsh’s bedroom in Mr. Marshall’s new home. [ 78 ] He indicated that Lauren Walsh is at the top of her class academically and that she came first in a science fair for Cape Breton Regional Municipality.

A picture of the plaque was provided to the court outlining that Lauren Walsh had come first in the Membertou Elementary Science Fair for grade three and four. He advised Lauren Walsh enjoys her involvement on the volleyball team and is involved in track and field. Extracurricular activities from school include, dance, and soccer. Graham Marshall describes Lauren Walsh as enjoying good health. She thrives academically and athletically. He believes her reading and writing skills are beyond her age level. At home she enjoys a close relationship with her siblings. [ 79 ] Lauren attends the Mi’Kmaw School.

She understands the language but does not speak Mi’Kmaw readily. Graham Marshall believes that cultural involvement is very important for Lauren Walsh’s well being. [ 80 ] Graham Marshall complained that Sarah Walsh does not take Lauren Walsh to her dance class and is not involved in her extracurricular activities generally. [ 81 ] He indicated that he had to interrupt access on one occasion since the court’s direction on January 30, 2008 as Sarah Walsh had been arrested for drug trafficking with her then boyfriend, Thomas Howell.

He indicated that he interrupted access at that time because he was concerned about Lauren Walsh’s safety. Access was subsequently reinstated. [ 82 ] Graham Marshall complained, as he did January 2008, that Sarah Walsh threatens him, calls him a loser, does not permit Lauren Walsh to speak to him when Lauren Walsh is in her mother’s care, and that she threatened to kill Janice Basque after the last day in court.

Graham Marshall continues to have concerns in relation to Sarah Walsh’s choice in male companions. [ 83 ] Graham Marshall advises that he felt that Christmas past 2010, summer access 2011, and grading day access went smoothly. [ 84 ] Graham Marshall advised he does not consult with Sarah Walsh before arranging for Lauren Walsh’s extracurricular activities during Sarah Walsh’s access time. He advised he does not discuss, or advise, Sarah Walsh of medical appointments.

He advised that he views his communication situation with Sarah Walsh as being worse than before court on January 30, 2008. [ 85 ] Graham Marshall advised that when Lauren Walsh was bullied at school on one occasion, however he did not telephone Sarah Walsh to advise her. [ 86 ] Graham Marshall admitted that after court discussion on January 30, 2008 he exited the court room and called Sarah Walsh “a parasite”. [ 87 ] Graham Marshall admits that he discusses the court proceedings with Lauren Walsh and has done so even after reading Dr.

Landry’s report reflecting that Lauren Walsh’s first wish was that she wished her parents liked each other. [ 88 ] On cross examination, Graham Marshall was confronted with exhibits #4 and #5, which indicates that he has been discussing court activity with Lauren Walsh, and was critical of Sarah Walsh in e-mails to Lauren Walsh These texts are forwarded on November 19, 2011 by him to Lauren Walsh (Exhibit #5). Mr.

Marshall wrote to his daughter, “I don’t control the days it’s the schools so will just write it down & show the courts pretty funny because she doesn’t take her extra time.” Graham Marshall admits on cross examination that he does not hide his true feelings for Sarah Walsh from Lauren Walsh.

[ 89 ] Graham Marshall agrees that he did read the Landry report but does not agree with the portion where Dr. Landry emphasizes that it is important that Lauren Walsh spends substantial time with her mother. [ 90 ] While Graham Marshall is the applicant in this case, he indicated during the course of his testimony that the court process took too long. He also opinioned that the current order was working and he just wants to continue with the current order. He indicated that he wants to be left alone by the court.

He also indicated that the court order was designed for a four year old but Lauren Walsh is now a 10 year old. [ 91 ] I note that throughout his testimony, Graham Marshall was confrontational with opposing counsel and in his manner of giving evidence generally. [ 92 ] Janice Basque, Graham Marshall’s fiancé and common law partner, indicated that she is currently employed with the Cape Breton University in the Sustainable Resource Department. [ 93 ] Janice Basque believes that Sarah Walsh keeps Lauren Walsh away from her when they encounter each other in public.

Janice Basque alleges Sarah Walsh has called her a loser in Lauren Walsh’s presence and has threatened her personally. Janice Basque indicates that charges were laid in relation to this threat against Sarah Walsh, which Janice Basque believes resulted in a peace bond. [ 94 ] Janice Basque admits that subsequent to the court’s comments on January 30, 2008, she attended the Capri Club and pushed Sarah Walsh’s friend, Miranda Moles. According to Janice Basque, “I pushed her out of my face”.

Janice Basque admitted that this is not appropriate conduct. [ 95 ] In relation to Lauren Walsh’s communication with her mother, when asked if she encourages Lauren Walsh to call Sarah Walsh, she advised that she and Graham Marshall give Lauren Walsh an option to call her mother.

Elsewhere in testimony, Janice Basque advised that Graham Marshall and she encourage Lauren Walsh to call her mother, and that Lauren Walsh choses not to call her mother. [ 96 ] Janice Basque acknowledges that Lauren Walsh’s first two wishes according to the Landry report are that Graham Marshall and Sarah Walsh get along better and her second wish is to spend more time with her mother. Janice Basque does not feel that the continued conflicted environment between her family and Sarah Walsh will have an effect on Lauren Walsh in the long term.

Janice Basque admits she has not read anything dealing with children who live in highly conflicted homes but she believes that it would be a good idea. She accepts that Lauren Walsh is in a highly conflicted situation. [ 97 ] Janice Basque concluded her evidence by confirming that she believes the situation between Sarah Walsh and Graham Marshall is as unfortunate as it was two years ago when evidence was first given in this matter. [ 98 ] Michael Hollahan, Sarah Walsh’s step father, gave evidence. He continues to be the intermediary between Sarah Walsh and Graham Marshall.

Michael Hollahan advised that Graham Marshall has asked him to communicate to Sarah Walsh changes in access and that Sarah Walsh has agreed for most of these access changes. These are the only dealings he has really had between the parties since court in 2008. Mr. Hollohan is willing to continue to act as an intermediary between these parents. [ 99 ] He describes that Lauren Walsh continues to be anxious and quick to leave his vehicle when he is returning her to her father’s home after her mother’s access.

He is willing to continue to act as a go between, between for the parents in this matter. [ 100 ] On one occasion when he encountered Lauren Walsh with her step mother, Janice Basque, at “The Tall Ships”, Lauren Walsh ignored him entirely which he found to be different conduct for her. [ 101 ] He describes the relationship between Sarah Walsh and her daughter as loving and close.

[ 102 ] Sarah Walsh, Lauren Walsh’s mother, gave evidence that she has had her scheduled access since January 30, 2008 with Lauren Walsh; except for the time when she was arrested and charged with a drug related offense on June 13, 2008. She advised that her charges were dropped a week after the charges were laid. However, she was denied access for four or five weeks until the lawyers, Ms. Mason and Mr.

Stanwick were able to resolve access. [ 103 ] She advised in relation to telephone access that she continues to telephone often and leave voice mail; however, her calls are rarely returned by Lauren Walsh [ 104 ] Sarah Walsh did not attend Lauren Walsh’s presentation at the science fair; although, she knew it was occurring. She has not attended Lauren Walsh’s dance, or soccer.

Sarah Walsh advises she does not attend these events because she believes Lauren Walsh is uncomfortable when she and Graham Marshall and Janice Basque attend the same event. [ 105 ] Sarah Walsh advised that she has never criticized Graham Marshall in front of Lauren Walsh She has never threatened Janice Basque but did enter a peace bond because her lawyer advised her that the peace bond would enable her to end the matter. [ 106 ] In relation to her association with Thomas Howell, who was charged with trafficking in a narcotic, she believes he was arrested on June 13, 2008 when she was arrested.

The arrest took place in Glace Bay. She advised all charges against her were withdrawn the next week. She and Thomas Howell were a couple at the time of the arrest. She did attend his court sentencing with him as a support for his mother.

She does not believe that possibly Lauren Walsh could have been with her at the time the police surrounded Thomas Howell and arrested them for trafficking. [ 107 ] Sarah Walsh does not believe that Graham Marshall is entitled to be concerned when she was arrested, nor was he entitled to be anxious as a result of that situation, as she would never have put their child, Lauren Walsh in danger.

She believes Graham Marshall should have called her and they could have discussed her arrest instead of cancelling her access for four or five weeks. [ 108 ] She advised she does not have a boyfriend now and has not had contact with Thomas Howell in the past two years. [ 109 ] Sarah Walsh advised that during the course of her relationship with Thomas Howell, she was aware that Thomas Howell had one charge of assault causing bodily harm and that he had on occasion pushed her.

She did not find this to be aggressive and in her view it was: “I just thought it was a guy thing”. [ 110 ] Sarah Walsh concedes that there is a fair amount of common sense required in effective parenting and that she has not exhibited good sense in inquiring into the past history of men with whom she becomes involved. She does concede that she exhibits poor selection in men and that Graham Marshall is entitled to be concerned over this fact. She is not involved with any male now and intends not to become involved again. [ 111 ] Ms. Walsh’s employment situation has not improved since court in January, 2008.

She is still on social assistance and she has not completed her G.E.D. She advised that she is on call for a position and may be required to work when requested. She indicated that she has had some part time positions, which she has not been able to maintain. Given her criminal record (the 2003 criminal record), she is not eligible for employment in a call centre. Sarah Walsh believes that her inability to find employment is connected with the number of times she is in court.

She believes that she is always in court in relation to custody and family access. [ 112 ] Sarah Walsh advised that she missed Lauren Walsh’s last birthday because she had to attend Halifax where her ex-brother in law had been in a serious accident. She communicated to Lauren Walsh by phone that Sarah Walsh would miss her birthday because Lauren’s godfather was in a car accident. On this occasion she did not consider walking to Lauren Walsh’s school, three kilometres away, to explain to Lauren personally.

She felt she was not able to call Graham Marshall to discuss what she viewed to be an emergency. [ 113 ] Sarah Walsh does not feel that she has any responsibility for the absence of progress in communication between she and Graham

Marshall, between the court hearing in January 2008 and the court hearing of May, June, July 2011. When questioned the exchange was as follows: Q. So Ms. Mason asked you on direct, do you have any responsibility for any of this chronic situation? Q. I just happened to read the 2008 (oral comments) recently and how we seem to be still living in 2011, 2.5 years later. Do you have any responsibility at all for that? A. I don’t feel like I do, I mean I could agree to anything that Graham Marshall would want.

He just doesn’t want to work with me. [ 114 ] In relation to employment, Sarah Walsh advises she is 30 and has never had a full time job. Sarah Walsh indicated she has not been able to get a full time job because she has been occupied in court fighting for custody of her child. When advised that the court has been adjourned for a three year gap, she commented that if she had a full time job she wound not be able to see her daughter. [ 115 ] In relation to the recommendations in Dr. Landry’s report, Sarah Walsh advised she did not read it fully because she had problems understanding the report.

She did not have anyone read it to her. When asked what she did in relation to the Landry report, she advised she attempted to get Lauren Walsh in counselling but it was referred to Mi’Kmaw Family Services where Graham Marshall use to be a youth court worker and this caused Sarah Walsh to believe there was a conflict of interest. In relation to her individual counselling, she has not had a session with her counsellor in five or six months. Ms. Walsh is willing to pursue counselling to improve communication with Mr.

Marshall. [ 116 ] In relation to correcting communication with Graham Marshall, Sarah Walsh believes that since she did not have difficulty communicating with Graham Marshall until Janice Basque commenced her relationship with Graham Marshall. Sarah Walsh believes Janice Basque is the main reason that she and Graham Marshall cannot communicate. [ 117 ] Sarah Walsh clarified that while she indicated she was seeking sole custody, she wishes Lauren Walsh to go back and forth between the families as Lauren wished.

At the end of her testimony she clarified that she is seeking joint custody and that her home would be Lauren’s principle residence. She advised Lauren would not be kept from her father. Sarah Walsh also believes that she would be less stressed if all matters were settled and the child lived with her.

This arrangement would enable her to focus more on finding employment. [ 118 ] When asked by the court how I could work with the existing problems, the parties have not spoken in years, how access back and forth was ever going to work if her home becomes the principle residence, her response to my question was, “I was hoping you could settle that.” [ 119 ] Ernestine Hollahan gave evidence.

She is Sarah Walsh’s mother, and gave evidence consistent with that given in January 2008. [ 120 ] She describes Lauren Walsh as an affectionate child, except at pick up and drop offs at her father’s house, at which time she is not affectionate with her grandmother. Ernestine Hollahan confirmed that after court last day on January 30, 2008 Graham Marshall left the court cursing loudly and he called Sarah Walsh “a parasite” in her presence. She advised that outside Graham Marshall stated that he was “number one”, drove away, exclaiming “red power”.

When he exited the parking lot, he placed his arm out of the car window in a fist gesture. [ 121 ] Ernestine Hollahan described an incident that took place the week before when Lauren Walsh was to meet the Governor General. Janice Basque called Ernestine Hollahan and advised her to buy an outfit for Lauren Walsh When Ernestine Hollahan asked Janice Basque who was to get the outfit, Janice Basque advised her to have her (Lauren Walsh) or you buy it. Ernestine Hollahan bought the outfit necessary for Lauren Walsh to meet the Governor General.

Ernestine Hollahan advised that the telephone call from Janice Basque was 2:30 p.m. when the meeting with the Governor General was for the next morning.

[122] Ernestine Hollahan has advised that she has in the past been concerned about her daughter’s selection in male partners. She hadno prior knowledge that Sarah Walsh’s previous partner, Thomas Howell, had physically assaulted her. [123] She confirms that after the court appearance on January 30, 2008, Sarah Walsh was still in company with Thomas Howell. Shedid not know that her daughter continued her relationship with Thomas Howell after the drug charges were laid. She believes herdaughter should have ended the relationship at that time.

While Ernestine Hollahan believes her daughter has poor taste in men, shebelieves that ultimately her daughter would always protect Lauren Walsh. She does agree that Graham Marshall is entitled to beconcerned in relation to facts surrounding Sarah Walsh’s involvement with drug dealers. [124] Ernestine Hollahan has encouraged her daughter to find full time employment and is concerned about her inability to do so todate. She is also concerned that her daughter has not finished her GED although Ernestine Hollahan acknowledges that her daughter hasa learning disability.

Ernestine Hollahan advised that she also does not go to any of Lauren Walsh’s extracurricular activities because shefinds these environments too uncomfortable. [125] The Court heard testimony from Miranda Moles a friend of Sarah Walsh’s, who confirmed the episode referred to betweenJanice Basque and Sarah Walsh where Janice Basque taunted Sarah Walsh to come out of her vehicle.

This incident occurred prior to thelast court date in January, 2008. [126] Miranda Moles gave evidence that at the completion of the last court date, January 30, 2008, Graham Marshall yelled at herafter court and that he had his fist out of the car and was yelling. She did not see anyone provoke him at this time. [127] At the conclusion of the scheduled witnesses, Graham Marshall gave rebuttal evidence in relation to the Club Capri incidentbetween Miranda Moles and Janice Basque , essentially indicating that Miranda Moles started the altercation.

He advised that at thattime he viewed Sarah Walsh sitting in Thomas Howell’s car in the Capri parking lot when Lauren Walsh was suppose to be exercisingaccess with her mother. [128] Graham Marshall denied that he ever made any reference to red power after the last court appearance. [129] The three days of evidence are presented in a very detailed manner as I find it is necessary for these parents to see that sinceJanuary 2008 neither have made much progess correcting the crucial parenting deficits specifically reviewed with them in court inJanuary 2008.

Neither has improved since they were provided the Landry Parental Capacity Assessment in July 2009. The Law: [130] The law governing this matter can be found in the Maintenance and Custody Act, Section 37(1) and Section 18(5) of theMaintenance and Custody Act: 37

(1) The court, on application, may make an order varying, rescinding or suspending, prospectively or retroactively, a maintenanceorder or an order respecting custody and access where there has been a change in circumstances since the making of the order or the lastvariation order. 18

(5) In any proceeding under this Act concerning care and custody or access and visiting privileges in relation to a child, the court shallapply the principle that the welfare of the child is the paramount consideration. R.S., c. 160, s. 18; 1990, c. 5, s. 107. [131] In an application to vary custody the Court must examine whether there has been a change in circumstances since the last courtorder to warrant a change in custody. Once this threshold test has been met, the Court examines what is in the best interests of the child. [132] The analysis to follow is set out in Gordon v. Goertz : Gordon v.

Goertz (1996), (SCC), 134 D.L.R. (4th), 321, outlined a two-tiered test to determine whether an existing

Gordon v. Goertz (1996), (SCC), 134 D.L.R. (4th), 321, outlined a two-tiered test to determine whether an existingcustody arrangement should be altered. The party seeking the variation in custody must demonstrate a material change in the child’scircumstances that was not foreseen or could not have been anticipated at the time of the original custody order. If a material change hasbeen proven, then the custody arrangement can be reviewed. The Supreme Court re-affirmed that the best interest of the child is theappropriate and only test at this stage. The court outlined a number of factors for trial judges to consider in determining the child’s bestinterests (at p. 342, D.L.R.) as follows:

a) the existing custody arrangement and relationship between the child and the custodial parent;

b) the existing access arrangement and the relationship between the child and the access parent;

c) the desirability of maximizing contact between the child and both parents;

d) the views of the child;

e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needsof the child;

f) disruption to the child of a change in custody;

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. 50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new locationmust be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. Theultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [133] Graham Marshall is the applicant throughout this matter.

His actual wishes are difficult to determine as he has provided theCourt with various versions of the outcome he wishes to secure. He provided four different scenarios: 1) Sole custody to Sarah Walsh and daytime access only every second weekend; 2) The order remain the same; 3) The order is not applicable for Lauren, as a ten year old, and the order was designed for a four and a half year old; 4) He has parented Lauren for years and no further involvement of the court is necessary. [134] Mr. Marshall seeks a variation because Lauren is tired due to mid-week access exchanges. Also, he maintains Ms.

Walsh is notan appropriate parent because of her poor partner selection and her alleged drug use. [135] Sarah Walsh seeks a variation of the custody order on the following changes of circumstance:

1) Graham Marshall consistently refuses to comply with the terms of the court order relating to access except when a court date is approaching; 2) He is not the child’s primary care giver; his common law wife, Janice Basque has assumed that role; 3) Graham Marshall refuses to show her any respect or to consider her wishes in relation to the child’s development. [136] If the Court concludes there is a material change in circumstances, the Court next considers the decision of Foley v.

Foley(1993) (NS SC), Carswell NS 328 (SC) where Justice Goodfellow discussed pertinent factors that a court couldconsider in making custodial determinations. These factors are listed at para. 16 of that decision and include: 16. Nevertheless, there has emerged a number of areas of parenting that bear consideration in most cases including in no particular orderthe following: 1. Statutory direction Divorce Act 16(8) and 16(9), 17(5) and 17(6); 2. Physical environment; 3. Discipline; 4. Role model; 5.

Wishes of the children - if, at the time of the hearing such are ascertainable and, to the extent they are ascertainable, such wishes arebut one factor which may carry a great deal of weight in some cases and little, if any, in others. They weight to be attached is to bedetermined in the context of answering the question with whom would the best interests and welfare of the child be most likelyachieved. That question requires the weighing of all the relevant factors and an analysis of the circumstances in which there may havebeen some indication or, expression by the child of a preference; 6.

Religious and spiritual guidance; 7. Assistance of experts, such as social workers, psychologist, psychiatrists, etcetera; 8. Time availability of a parent for a child; 9. The cultural development of a child; 10. The physical and character development of the child by such things as participation in sports; 11. The emotional support to assist in a child developing self-esteem and confidence;

12. The financial contribution to the welfare of a child; 13. The support of an extended family, uncle’s aunt’s grandparents’s etcetera; 14. The willingness of a parent to facilitate contact with the other parent. This is recognition of the child’s entitlement to access to parents and each parent’s obligation to promote and encourage access to the other parent. The divorce Act s. 16(10) and s.17(9); 15. The interim and long range plan for the welfare of the children. 16. The financial consequences of custody.

Frequently the financial reality is the child must remain in the home or, perhaps alternate accommodations provided by a member of the extended family. Any other alternative requiring two residence expenses will often adversely and severely impact on the ability to adequately meet the child’s reasonable needs; and [ 137 ] In the analysis of best interests, some of these factors will be more pertinent than others based on what constitutes Lauren Walsh’s best interest. I have reviewed the three days of evidence heard over an extended period of time, the exhibits tendered, and the Parental Capacity Assessment.

Findings: [ 138 ] In relation to the first consideration the Court must make in determining a variation application is whether or not there exists a change in circumstance requiring the existing custody order to be altered. [ 139 ] In relation to this first tier, I must examine the circumstances since the 2006 order. I find there are material changes in circumstances which were not foreseen at the time of the 2006 consent order. The material changes in circumstances relates to both parties. [ 140 ] The change in circumstance relating to Ms.

Walsh is her unfortunate involvement with Thomas Howell, which resulted in her being arrested for drug trafficking in June 2008. While the charges against her were subsequently withdrawn, she did drive a vehicle to meet her boyfriend in a circumstance that culminated in police arrests. Of great concern is Ms. Walsh’s failure, in hindsight, to recognize this was a risky situation where Lauren could have been present. [ 141 ] I find Ms. Walsh needs corrective therapy in her selection of male partners. Her involvement with Mr.

Howell continued after this Court made clear comments on her difficulties in her choice in partners. Her naivety or lack of insight in her partner selection continued and culminated in her arrest. Her insignificant appreciation of domestic violence is also of concern. [ 142 ] Ms. Walsh did not understand the Parental Capacity Assessment which outlined numerous areas of concern and methods to address these concerns. Ms. Walsh indicates that she is not intelligent; however, this does not, I find, preclude her from having the report explained to her. Finally, Ms.

Walsh has exhibited an inability to be industrious in the work force in any regard. As well, she lacks the resolve to improve her education. [ 143 ] Ms. Walsh loves Lauren Walsh and that is apparent from the evidence. I find Ms. Walsh presents as a warm, gentle nurturing person. It is in Lauren Walsh’s best interests to spend a substantial amount of time with her mother, and to experience a tranquil environment. [ 144 ] I find Lauren Walsh’s maternal grandparents to be loving, helpful people who have tried consistently to help both parents and Lauren Walsh.

[ 145 ] I find that Mr. Marshall has exhibited behaviours that constitute a material change in circumstance warranting a variation of the 2006 order. Mr. Marshall has, from 2006 to January 2008, consistently frustrated the order by not permitting access for extensive periods of time as suited his particular view at that time. The frustrating of all forms of access from March 2007 to August 2007 is not mitigated in any way by Mr. Marshall’s explanation. Mr. Marshall has problems accepting the negative effect on Lauren Walsh if she is kept from her mother and maternal grandparents. [ 146 ] I find that Mr.

Marshall’s behaviour improved somewhat after the January 30, 2008 preliminary instructions from the court. He ceased access to Ms. Walsh on one occasion in July 2008 due to her arrest. The cessation was reasonable given the potential risks. However, since the 2006 order to present Mr. Marshall consistently views himself as the principle parent and Ms. Walsh as an access parent who has little to contribute to Lauren’s upbringing and well being. [ 147 ] I find as a fact that during this entire proceeding Mr. Marshall has exhibited a very quick temper with any matters that are not according to his wishes.

I accept the evidence of Ernestine Hollahan, Sarah Walsh and Michael Hollahan that the child exhibits differently at drop offs and pick ups when her father and step mother in attendance, or when these parties meet each other in a public place. This is a clear example of Lauren being placed in the emotional bind that Dr. Landry warned against. [ 148 ] I find this inappropriate behaviour is intensified by Janice Basque who supports whatever Mr. Marshall decrees. I find the pictures exhibited by Mr. Marshall and Ms.

Basque of Lauren’s socks and eyebrows to be examples of how the father and stepmother involve the child in the court proceedings. Another unfortunate example is the text message (Exhibit 5) Mr. Marshall sends to Lauren which involves her in the court process. There is really no excuse when the parties had received clear instructions from the Court in January 2008, as well as the findings of the Parental Capacity Assessment (June 2008). [ 149 ] I find that both Mr. Marshall and Ms. Basque appear to be hard workers and capable of advancement in the working world. These are admirable traits in a role model.

They have three (3) other children in their home. Lauren Walsh is part of this family and appears to do well except in the areas of conflict between her parents. The effect of the conflict is manifested by Lauren Walsh’s conduct at drop offs or pick ups. I find Mr. Marshall and Ms. Basque are solely responsible for these manifestations. [ 150 ] I do not accept that Ms. Walsh has threatened Ms. Basque nor do I accept that she speaks negatively about Mr. Marshall and Ms.

Basque in Lauren Walsh’s presence. [ 151 ] I find there is no evidence that Sarah Walsh has a substance abuse problem. [ 152 ] In relation to both parties, once they received a Parental Capacity Assessment neither party acted upon the recommendations. This assessment was made available to the parties in June 2009, but when court reconvened in May of 2011 virtually none of the recommendations had been followed. Neither party has been able to provide any reasonable explanation for this incredible lack of commitment to correct crucial parenting problems.

At present both parents agree they will follow the Landry recommendation and attend counselling. [ 153 ] The answer to what is in Lauren’s best interests as seen by Mr. Marshall is a four pronged answer, which makes it virtually impossible to grasp what he sees as Lauren’s ‘best interests’. Ms. Walsh is able to give the Court little advice on how to improve the situation for Lauren. Ms. Walsh advised she will work with Mr. Marshall if he will work with her. She believes they can communicate if Janice Basque is removed from their discussion and interactions. I accept Ms. Walsh will work with Mr.

Marshall if given the opportunity. I accept Ms. Basque, by her behaviour, negatively impacts on these parents ability to communicate concerning Lauren Walsh. [ 154 ] Having reviewed all the evidence in its entirety and having dealt with these parties for over three years, it is apparent that Mr. Marshall’s misbehaviours generally decline as a court date approaches. The Court cannot, however, remain involved with this family and have an annual review to make sure that Mr. Marshall respects the Court order. [ 155 ] It was readily apparent from my comments in 2008 that Ms.

Walsh must move forward and secure her GED. and/or a job and become more motivated to work so that Lauren will see her mother working. Ms. Walsh exhibits no physical illness that precludes her

from seeking and securing employment. This is consistent with her mother’s evidence that she has encouraged her daughter consistently to secure a job or commence vocational training. [ 156 ] The result is that Lauren sees in the Marshall household a number of siblings with whom she is close and parents who work hard outside the home. However, these same parents make disparaging comments about her mother even though they know that Lauren loves her mother. Mr. Marshall and Ms.

Basque involve her in the court process when they know or ought to know that involvement is inappropriate. [ 157 ] When Lauren is with her mother she is in a loving, nonthreatening environment; however, she is also exposed to a mother who exhibits little good sense in relation to her male partners and has a poor work ethic. [ 158 ] I accept that both parents exhibit that they have time to spend with Lauren.

Both parents have expressed a need that Lauren be exposed to the native culture and I find both parties have been diligent in this regard. [ 159 ] The reality is the parties have developed two homes for Lauren. Both homes have positive and negative features. Despite the turmoil, Lauren is thriving. From all reports it appears that Lauren is a well adapted, athletic and academically gifted child whose two wishes in the world are that her parents would like each other and that she could spend more time with her mother. I accept Dr.

Landry’s evidence that these wishes are not those normally expressed by children Lauren’s age. [ 160 ] I find Mr. Marshall really needs to control his anger. He has presented before the court on two occasions and has exhibited as consistently angry with the process and totally disrespectful of Ms. Walsh and her parents. Ms. Walsh consistently presents as a loving mother who is going to let the world revolve around her as opposed to being part of the evolution. It is essential that she become more involved in Lauren’s school and extra curricular activities and that Mr.

Walsh generously permit her to do so. [ 161 ] After much consideration and a review of the testimony, exhibits and opinion evidence, I find variations must be made to the order. The second tier in Gordon v. Goertz does not count the number of breaches of a court order; but rather what is the best interests of the child. I find the best interests of Lauren is that the order remain unaltered in relation to joint custody and the

schedule set in the 2006 order. However, variations to the manner of communication and to the relationship between the parents is clearly required. [ 162 ] All of Doctor Landry’s recommendations are to be incorporated into the order, including counselling and a third party to mediate disputes until the parents can do so without assistance. Ideally, the third party mediator can also be the counsellor selected by the parties. [ 163 ] These parties are to commence and continue in counselling. Ms. Basque is also to become involved in counselling.

I find as a fact that she has been an instigator in discord between she and Ms. Walsh. Ms. Basque is unable to reflect on her own short comings which impact on the Walsh-Marshall parenting relationship. It is crucial that her role in the Walsh-Marshall parenting partnership be greatly reduced. Janice Basque is not to attend at pick ups or drop offs for a one year period to ensure that some tranquillity during access exchanges occurs This one year period is to allow all three parents to attend counselling.

All communication between Graham Marshall and Sarah Walsh is to occur without Janice Basque or her input until meaningful progress occurs in therapy. [ 164 ] Mr. Marshall and Ms. Basque are not to involve Lauren in court processes. They are not to speak negatively about Ms. Walsh or her family in Lauren’s presence. [ 165 ] Another variation to the order is that the parties are to communicate by email, both are to secure the equipment necessary for this communication. The parties are to commence email communication within 30 days of this decision. [ 166 ] Ms.

Walsh is to attend all extra curricular activities of Lauren’s that she wishes to do so. Mr. Marshall shall give her advance notice in a timely manner of all medical, educational and extra-curricular activities. If an extra-curricular activity occurs during Ms. Walsh’s access, she is required to transport Lauren to that activity. The p

[…]