Robichaud v. MacKay, 2014 NSSC 199

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Robichaud v. MacKay , 2014 NSSC 199 Date: 2014-06-11 Docket: SFSNMCA-070391 Registry: Halifax Between: Lise Robichaud Applicant v. Devin Welsford Rykunyk MacKay Respondent Revised Decision: The dates heard have been corrected from June 12,13, 14, 15 to May 12, 13, 14, 15. This decision replaces the previously released decision. Judge: The Honourable Justice Leslie J.

Dellapinna Heard: May 12, 13, 14, 15, 2014 in Halifax, Nova Scotia Counsel: Lloyd Berliner counsel for the Applicant Erin Moore counsel for the Respondent By the Court: INTRODUCTION [ 1 ] Lise Robichaud (“the Applicant”) applied to vary the custody, access and child maintenance provisions of an order of this Court granted on August 17, 2012 and issued on December 20, 2012.

By way of her application she seeks primary care of the parties’ two children. [ 2 ] Devin MacKay (“the Respondent”) is the father of the children who are the subject of the application. [ 3 ] The Applicant and the Respondent began a relationship in November 2003. They began living together in August 2008. Approximately one month later the Applicant learned that she was pregnant. [ 4 ] On May 5, 2009 the parties’ two daughters, E.M. and G.M., were born. [ 5 ] In September 2009 the parties moved into a home in Sydney, Nova Scotia.

According to the evidence of the Applicant their relationship deteriorated between September 2008 and the spring of 2010. In May 2010 the parties separated. Sometime after their separation the Applicant relocated to Meteghan where she has family and friends. She is originally from that area of the province. The Respondent remained in Sydney. [ 6 ] After the parties’ separation the Applicant filed a Notice of Application with the Supreme Court, Family Division, seeking an order for custody and access. A hearing was held before the Honourable Justice M. Clare MacLellan. It stretched over six days in April 2012.

Justice MacLellan rendered an oral decision on August 17, 2012. The operative parts of that decision were put in the form of an order which provides that the parties are to share joint custody of their children and the children’s primary residence is to be with the Respondent.

[ 7 ] Paragraph 3 of the order provides: “The parties shall make all major decisions concerning the children together.

If, after meaningful consultation and consideration for the Applicant mother’s point of view the parties cannot reach an agreement, the Respondent father shall have final decision making authority.” [ 8 ] Paragraph 4 of the order reads: “The father shall keep the mother informed as to all matters concerning the children, their health, education, and general welfare.” [ 9 ] The order also provides that the Applicant may obtain information concerning the children directly from any third party professionals including the children’s health and education professionals.

It provided that the parties may communicate for the purpose of sharing information regarding the children by e-mail, Skype and telephone and the parties were to “ensure all communication is appropriate, prompt, child focused and polite.” [ 10 ] Prior to the hearing the parties had been sharing the care of the children on a three week on, three week off rotation. Justice MacLellan’s decision provided for a winding down of that rotation between September 2012 and December 2012. [ 11 ] Paragraph 11 of the order says: “The parties shall attempt to work out an ongoing access

schedule for January 2013 onward.” [ 12 ] There is no provision for child maintenance other than that if the parties were unable to resolve it by themselves or through conciliation they were able to refer that matter back to the Court for a hearing. [ 13 ] On July 23, 2013 the Applicant filed with this Court a Notice of Variation Application. Although no Response was filed by the Respondent it was clear from the conciliation process and as a result of a Pre-hearing Conference that he intended to contest the application. [ 14 ] After a four day hearing in May, 2014 I reserved my decision.

This is the decision with respect to the Applicant’s variation application. LEGISLATION [ 15 ] The applicable legislation is found in the Maintenance and Custody Act , R.S.N.S. 1989, c. 160 (“the Act ”). Subsection 37 (1) of the Act provides the Court with the jurisdiction to vary an existing custody or maintenance order. It reads: “37

(1) The court, on application, may make an order varying, rescinding or suspending, prospectively or retroactively, a maintenance order or an order respecting custody and access where there has been a change in circumstances since the making of the order or the last variation order.” [ 16 ] Subsection 18 (5) provides: “

(5) In any proceeding under this Act concerning care and custody or access and visiting privileges in relation to a child, the court shall give paramount consideration to the best interests of the child.” [ 17 ] Subsection 18(6) provides a list of circumstances that the Court must consider when determining the best interests of a child. I will refer to them in more detail later in this decision. [ 18 ] Although the Applicant has applied to vary a child support order, there is no child support order to vary.

Rather than compel the Applicant to file a new application which would put both parties to unnecessary additional expense, I will treat that portion of the Applicant’s pleadings as an irregularity as contemplated by Civil Procedure Rule 2.02 and on the Court’s own motion will treat her application to vary the child support order as an application in the first instance for an order for child maintenance pursuant to the Act . [ 19 ]

Section 10 of the Act provides the powers of the court when an application is made for child maintenance. ISSUES [ 20 ] The issues to be determined are as follows: 1. Has there been a change in circumstances as contemplated by subsection 37 (1) of the Act since the granting of Justice MacLellan’s order? 2. If there has been a change in circumstances as contemplated by subsection 37 (1) should the custody and access provisions of the previous order be varied?

More specifically, is the previous order of this Court still in the “best interests” of E.M and G.M. and, if not, what parenting order would be in the children’s best interests? 3. Should the Court order child maintenance for the support of the two children and, if so, what would be the terms of that order?

POSITIONS OF THE PARTIES [21] It is the Applicant’s position that there have been numerous changes in circumstances since the granting of the Court’s orderwhich permit this Court to re-examine the parenting arrangements for the children. It has been submitted on her behalf that as a result ofthose changes it would be in the best interests of the children that they be placed in the primary care of the Applicant. If that was tohappen it would be her plan that the children reside with her in her home in Meteghan. In Meteghan the Applicant has a support systemin place.

She proposes that the joint custody regime continue but that the Respondent would have specified parenting time with thechildren. She proposes that if there is to be any final decision-making authority that it be granted to her rather than the Respondent. [22] The Applicant also asks that child maintenance be granted to her based on the Respondent’s level of income. [23] The Respondent opposes any major variation of the parenting provisions of the previous order. He acknowledges that accesshas been problematic but, he contends, that is due in part to the distance between the parties’ homes.

Further, if changes incircumstances have occurred, it is his position that the welfare of the children has not suffered and therefore the status quo (as it relatesto primary care) should be maintained. [24] While the Respondent also seeks an order for child maintenance (including retroactive child maintenance) his counselacknowledges that he has made no application for such an order. THE EVIDENCE AND THE WITNESSES [25] The bulk of the direct evidence presented at the hearing was in the form of affidavits presented by the parties and otherwitnesses.

Affidavits were received from the Applicant, her mother, her aunt and a friend. Affidavits were also provided by theRespondent, his wife, his mother, his father and the children’s family doctor. [26] Some of the witnesses gave additional verbal evidence on direct and all were cross-examined by the opposing counsel. [27] Numerous exhibits were tendered. [28] The evidence is too voluminous to repeat.

I will however make reference to some of that evidence where I feel it is necessary toillustrate a point or a finding. [29] While it is possible to render a decision in this case on the facts that are indisputable some of the conclusions drawnnecessitated an analysis of the credibility of some of the witnesses. [30] For the most

part I found the Applicant’s evidence to be forthright, consistent, balanced and honest. The same can be said ofthe evidence presented by her mother, her aunt and her friend. [31] The Respondent’s evidence on the other hand was sometimes inaccurate, inconsistent and contradictory. It also tended to beone sided, lacking in objectivity and disingenuous.

It also illustrated that he tended to be overly and unfairly critical of the Applicant. [32] The Respondent’s parents and wife, perhaps because of their loyalty to the Respondent, sometimes were just not believable. [33] Where the evidence of the Respondent differed from the evidence of the Applicant I accepted the evidence of the Applicantover that of the Respondent. ANALYSIS Change in circumstances [34] Subsection 37(1) of the Act requires that before varying a custody order the Court must be satisfied that there has been a changein circumstances since the making of the previous order. In Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27 McLachlin,J. (as she then was) wrote, at paragraph 10, that before the Court can consider the merits of a variation application “it must be satisfiedthere has been a material change in the circumstances of the child since the last custody order was made.” And, “if the applicant isunable to show the existence of a material change, the inquiry can go no farther.” Her Ladyship said in paragraph 11: “The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirectroute of appeal from the original custody order.

The court cannot retry the case, substituting its discretion for that of the original judge;it must assume the correctness of the decision and consider only the change in circumstances since the order was issued…”. [35] I therefore must treat the existing order as having been correct at the time that it was granted.

If the order is to be varied thevariation must be in response to whatever material change in circumstances has occurred since the granting of the previous order. [36] The onus is on the Applicant to prove that there has been a material change in circumstances. “Change alone is not enough; the change must have altered the child’s needs or the ability of the parents to meet those needs in afundamental way; Watson v. Watson (1991), (BC SC), 35 R.F.L. (3d) 169 (B.C.S.C.).” (Gordon v.

Goertz, (supra) atpara. 12) [37] The Court summarized at paragraph 13 as follows: “It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in thecondition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially

affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.” [ 38 ] When Justice MacLellan gave her decision in August, 2012 she concluded that it would be in the best interests of the children that their parents share joint custody. MacLellan, J. ordered that the children would be in the primary care of the Respondent because she preferred his plan over that of the Applicant. Among other things she concluded that the Respondent was able to put the interests of the children first.

She ordered that the parties were to make all major decisions concerning the children together .

To prevent a stalemate her order included a provision that if the parties could not reach agreement on a “major decision” the Respondent would have “final decision making authority” but only “after meaningful consultation and consideration for the Applicant mother’s point of view”. [ 39 ] She made a point of ordering that when the parties communicate they are to communicate in an “appropriate, prompt, child focused and polite” manner. [ 40 ] Justice MacLellan set out some access provisions but no specific access provisions after January 2013.

Instead the parties were ordered to “attempt to work out an ongoing access schedule”. They were invited to return to the Court for a decision specifying that access if they are unable to agree but they never did. [ 41 ] The Applicant has satisfied me that there have been material changes in circumstances since Justice MacLellan gave her decision in August 2012. Those changes were not foreseen by Justice MacLellan when she granted her order.

Had she known what the future was to bring, I believe her order would have been different. [ 42 ] In ordering joint custody Justice MacLellan emphasized that the Applicant was not to be reduced to a mere access parent. She was not to be treated as simply an interested observer who saw the children from time to time. She had an important role to play in their upbringing and the Court’s order required that her input be taken seriously. [ 43 ] There have been a number of changes in circumstances since Justice MacLellan rendered her decision.

The Respondent moved from Sydney to Halifax – actually he relocated after the trial in April 2012 and before Justice MacLellan gave her decision in August. The Respondent has married. Also, just prior to the hearing of this application, the Respondent moved from the city of Halifax to Beaver Bank on the outskirts the city. Interestingly, although it would appear that the Respondent had sufficient time to include details of his most recent move and his current circumstances in his affidavit, he did not do so.

The Court learned of his move from other witnesses. [ 44 ] The more material change that has occurred has been the Respondent’s failure to honour both the explicit and implicit provisions of Justice MacLellan’s joint custody order. [ 45 ] The Respondent has not treated the Applicant as a joint custodial parent. He has treated her as a mere access parent. [ 46 ] The Respondent hasn’t encouraged the Applicant to participate as a parent in the children’s lives. In fact, he has restricted her ability to do so.

He doesn’t respect her as a co-parent and he has said in his affidavit that he does not believe that she can care for the children adequately. [ 47 ] He has, in my view, abused the final decision making authority. While he has exchanged e-mails with her and invited her input, there is no evidence that he gave any weight to her opinion.

It is his position that prevailed without any sign of compromise resulting from views expressed by the Applicant. [ 48 ] After Justice MacLellan left it to the parties to work out parenting time for January 2013 onward, the Applicant suggested that she continue to have a block of one week each month with children at least until the children started school. The Respondent did not agree with that proposal. [ 49 ] By the spring of 2013 he determined that the Applicant would have parenting time every second weekend. But he also enrolled the children in ballet lessons on Saturday mornings.

While the Applicant agreed that the children should be able to attend ballet lessons she asked to be able to pick the children up on Friday evening and keep them for the weekend. She was prepared to take the children to ballet lessons on Saturday morning. The Respondent would not allow that.

He insisted that the Applicant pick the children up on Saturday morning after their ballet lessons and return them to his residence by 5:00 p.m. on Sunday. [ 50 ] Because Meteghan is a three and a half hour drive from Halifax the Respondent’s restrictions made it virtually impossible for the Applicant to take the children back to her home in Meteghan on her weekends. Instead she and the children were forced to stay with the Applicant’s aunt in her apartment a few blocks away from the Respondent’s residence.

Her aunt’s apartment was a small one bedroom apartment with insufficient room for her aunt, the Applicant and the two children. When her aunt could no longer accommodate the Applicant and the children the Applicant was forced to spend the weekends (Saturday to Sunday) at a hotel or motel in Halifax at significant cost to her. [ 51 ] The reason given by the Respondent for limiting the Applicant’s access to alternate weekends was the daycare subsidy program rules.

The Early Childhood Development Subsidy Program has a policy that limits the number of days each child can be away from the daycare without jeopardizing their subsidy. In a letter signed by a caseworker for the childcare subsidy program which was tendered as an exhibit it was said: “In addition to vacation days, each child is permitted 5 sick days and 3 absent days per month. Any extra time above this would require special approval from a Child Care Subsidy Caseworker.

If approval is not granted, the parent would be responsible for paying the full day rate to the centre.” [ 52 ] The Respondent acknowledged that he never attempted to get special approval so that the children could spend additional time away from the daycare to be with their mother.

[ 53 ] As for why the Applicant could not pick up the children Friday evening and keep them until Sunday afternoon, the Respondent had no acceptable explanation. [ 54 ] The Respondent insisted that the Applicant do all of the driving for access purposes.

When the Applicant expressed concern regarding winter driving conditions the Respondent in an e-mail dated December 7, 2012 (approximately four months after Justice MacLellan rendered her oral decision) wrote: “You have expressed concern over winter travel, I am therefore willing to address your concerns by suspending visitation with you between the end of your Christmas access and restart it at Easter out of respect for your concern.

This will keep the children off the road during the harsher winter months while guaranteeing that they will still be able to attend regular places of education, events and functions here [in Halifax] during this time period.

Under this alternative you would return the girls at 5pm Jan 2 nd , your next visiting would be Easter weekend…”. [ 55 ] This is an example of how little importance the Respondent put on the Applicant’s involvement in the children’s lives. [ 56 ] Other examples are found in situations when the Respondent unreasonably restricted the Applicant’s parenting time with the children on special occasions. He refused to allow her to have time with the children on her 40 th birthday or even the day following her birthday. She had to wait a full week to get a couple of hours with the children.

That was at a time when there was no alternate weekend access in place. In his affidavit the Respondent said that he refused access on that occasion because the children were still being “potty trained”, and he said each time they returned from the care of the Applicant they relapsed. [ 57 ] Again, on the children’s 4 th birthday (May 5, 2013) he refused the Applicant’s request to spend the weekend with the children. He also did not respond to her request to spend just a few hours with them on their birthday.

Instead he coordinated a birthday party for the girls to take place at the same time as a birthday party that was being held for one of their daycare classmates. The Applicant, apparently, was not invited. [ 58 ] Each Christmas while the children have attended daycare (a daycare chosen solely by the Respondent) parents are invited to the daycare shortly before Christmas for a holiday function. Not only was the Applicant not invited to attend the Christmas function in 2012 but she was told by the Respondent that he had called the police to have them warn her against attending.

The Respondent claimed that she could not attend because she was not on the daycare’s contact list. That was true. However he could easily have put her name on the list. He did so immediately after I directed him to do so during a motion heard before Christmas 2013. [ 59 ] An e-mail dated December 13, 2012 from the Respondent to the Applicant is illustrative of his attitude towards the Applicant. It concerned the Applicant’s desire to attend the children’s daycare Christmas function in 2012.

It reads in part as follows: “You have been informed by both myself and [the daycare director] that you are not permitted to attend the Christmas party tomorrow. It is for the parents who have the children enrolled in daycare and who are on the contact list, it is not an open house. This does not include you….” “You need to respect the daycare’s rules and regulations. The draft order…states that you have a right to be informed by me or contact a third party professional for information.

It does not give you permission to partake in events, show up whenever, pick up the children or violate the daycare act sections that pertain to these scenarios or any others that you may think of.” [ 60 ] He concludes the e-mail by saying “If you show up, after being informed by myself, and [the daycare director] that you are not to attend, there will be legal consequences as a result.” [ 61 ] Notwithstanding the Respondent’s e-mail the Applicant did start on her way from Meteghan to Halifax to attend the daycare Christmas party but was contacted by the police and told to turn back.

The Respondent acknowledged during his cross-examination that both parents of other children were in attendance at the party. [ 62 ] After the Court was shown the daycare registration form it showed that prior to the Applicant’s name being added to the list (on my direction) it had already included the name of the Respondent’s then fiancé and his brother. [ 63 ] Just as he excluded the Applicant from the daycare’s Christmas party, he similarly did not tell her about the daycare’s Easter social and bake sale to which parents were also invited.

She learned of that when the children asked her why she did not attend. [ 64 ] The Respondent also made it difficult if not impossible for the Applicant to obtain general information regarding the daycare. Because she was not on the contact list she couldn’t visit it or see the children while they were there. If she wanted information about the centre she was directed by the Respondent to the daycare’s website. If she had further questions, she was told to speak to the Respondent’s fiancé (now his wife).

In his e-mailed to the Applicant dated December 13, 2012 he said: “Melissa and I have offered to answer questions about the girls (sic) time in daycare, we have directed you to the website for general inquiries and the news letter. As she is the girls (sic) daycare teacher, you would be directed to speak to Melissa to have more specific questions answered anyway.” [ 65 ] Each spring at the conclusion of the children’s ballet course, families are invited to attend a recital. The Applicant was not informed by the Respondent that such a recital took place in 2013.

The first time that she learned that such a recital took place was in 2014, after the hearing of the Christmas access motion. [ 66 ] In addition to unreasonably restricting the Applicant’s parenting time with the children, failing to inform her of special events in the children’s lives and preventing her from taking

part in those events, he apparently had his own opinion as to what joint custody, “meaningful consultation” and “final decision making authority” meant. In an e-mail to the Applicant dated August 26, 2012, he wrote:

“I really don’t think that you have quite understood what was meant when the judge spoke about trying to communicate better. Given the tone and presumptions in the journal, im (sic) also concerned that you may not have fully understood what justice (sic) MacLellan ruled, what joint custody actually means in this context (its not the same as the shared that we had before), what exactly i (sic) have to consult you about. I dont (sic) have to consult you about or inform you of where i (sic) work. That has nothing to do with anything here.

I don’t have to consult you about putting them in daycare before i (sic) do, if i (sic) need professional daycare for my household then its as simple as that, and i (sic) don,t (sic) have to consult you if I need a family doctor for them. I do feel i (sic) have to keep you informed about goings on here, where they have daycare, who there (sic) doctor is, etc….” [ 67 ] Regarding the choosing of a family doctor for the children, the Respondent believed the final decision making authority gave him the mandate to choose the children’s doctor without taking the Applicant’s views seriously.

While he did exchange e-mails regarding the choice of a family doctor he ultimately made the choice. In an e-mail to the Applicant dated September 3, 2012 (the month following Justice MacLellan’s decision) the Respondent said: “…I am looking for a doctor closer to us in the city for them. I will be looking for a dentist here as well. I feel that I should be the one making this decision, as this will be a family doctor and I am the most familiar of everyone with “the lay of the land” as you could say.

You will be infomred (sic) immediately after I have finalized a permanent family GP and dentist for the girls and I will keep you informed of the results of any visits to either.” [ 68 ] When the doctor’s office organized a “meet and greet” session during which the parents and children could meet the doctor, the Respondent did not inform the Applicant of the date and time of that “meet and greet”. She found out about it from the children the evening before it was to take place. By then it was too late for her to make arrangements to attend.

Since then the Respondent has made it clear to the Applicant that when it comes to the medical care of the children, that fell within his exclusive authority. While the doctor chosen by the Respondent testified that she would answer the Applicant’s questions, the evidence also disclosed that the Respondent did not list the Applicant as an emergency contact with the doctor’s office. [ 69 ] With respect to the Respondent’s communications with the Applicant, I find that they were frequently inappropriate in their tone.

During the Respondent’s cross-examination he was presented with various examples of his own e-mails and asked to comment on them. The Respondent himself used the following adjectives to describe his e-mails: snarky, snide, rude, disrespectful, pushy, blunt, harsh, hurtful, stupid, terse, hostile and in one case (in his affidavit), inexcusable. To those I would add: sarcastic, condescending and dismissive. [ 70 ] There was at least one occasion when information that the Respondent supplied to the Applicant concerning the children was inaccurate.

The Respondent told the Applicant that the children’s doctor did not diagnose them as having pink eye when in fact she did. The issue was of concern to the Applicant not just for the children’s sake but also because she herself came down with an eye infection shortly after the children presented with what she thought were symptoms of pink eye. Not only was the information supplied by the Respondent inaccurate, his delivery was inappropriate. Passages from his e-mails are telling: From an e-mail dated May 17, 2013 he wrote the Applicant: “Their family doctor, Dr. Bussey, ruled out pink eye or infection.

You were informed of this visit as well as the outcome by myself and melissa (sic) in writing and have even been refreshed on it during skypes by melissa (sic). We very well do not appreciate the statements, made tonght (sic) on skype that “no one tells (you) anything.” You have been informed of the doctor visit, the outcome and updated more than is really necessary (daily) for something this minor.” Then in an e-mail to the Applicant dated May 21, 2013 the Respondent wrote: “As i’ve (sic) already told you, I took the girls to Dr.

Busey (sic) a couple of weeks ago, and i (sic) provided you with the suggestions of what the girls had was, and what i (sic) was informed it was not. I’m not sure how you would have caught anything from them, as the eye goobers were had largely (sic) cleared up in the 24 hr period before they went down to visit you…As for you (sic) own appointment, I have no interest in it, as you are on record hiding and providing false medical information about both yourself and the girl many many times, and i (sic) cannot cannot (sic) check the information you provide.

Please unsubscribe me from your medical drama”. [ 71 ] Not only did the Respondent tell the Applicant twice in unkind terms that the children did not suffer from pink eye, he admitted during cross-examination that Dr. Bussey did in fact diagnose the children as having pink eye. [ 72 ] The Respondent’s communications with the Applicant also demonstrate how critical he was of almost all aspects of the Applicant’s parenting.

He criticized the toys that she allowed the children to play with (Barbie dolls and action figures that the Respondent found objectionable), her hygiene standards (accusing her of not bathing the children enough and even of discouraging them from washing their hands after going to the washroom) and the music she allowed the children to hear. He accused her of failing to clean the children’s clothing and toys of allergens. He was critical of the food that she gave to the children (telling her that they were lactose intolerant when they have never been diagnosed as such).

He accused her of giving the children inappropriate over the counter medication (all indications are that the medication she gave to the children was appropriate for their size and age) and even of ignoring their medical needs generally. The evidence suggests that his criticisms were unfair and inaccurate and speak more of his intolerance of the Applicant than they do of the Applicant’s parenting. [ 73 ] Of greater concern to the Court is whether such criticisms were made of the Applicant in the presence of the children.

The Applicant said in her affidavit sworn July 18, 2013 at paragraph 164, “He has demeaned me and persistently criticized my ability to parent our children, both privately in emails and in front of the children.” In the Respondent’s affidavit sworn April 17, 2014 he said at

paragraph 391: “I have criticized the Applicant’s ability to parent in relation to specific incidents. I deny demeaning her. Our communication has been primarily via email, and I do not recall ever doing this in front of the children.

But my recollection is not perfect, and therefore I cannot dispute the possibility that it may have happened on a rare occasion.” [ 74 ] I find the Respondent’s failure to act in a manner that is consistent with the joint custody provisions of the existing order constitutes a material change in the circumstances of the children and the ability of the parents to meet the needs of the children. Whereas his conduct affects the very core of the joint custody arrangement ordered by the Court the children are materially affected.

Should the custody and access provisions of the Court’s order be varied? [ 75 ] Subsection 18 (5) of the Act requires that the Court give paramount consideration to the best interests of the children in any proceeding concerning custody and access. “Any proceeding” would include an application to vary the custody and access provisions of a court order. [ 76 ] Subsection 18 (6) of the Act provides: “

(6) In determining the best interests of the child, the court shall consider all relevant circumstances, including (

a) the child’s physical, emotional, social and educational needs, including the child’s need for stability and safety, taking into account the child’s age and stage of development; (

b) each parent’s or guardian’s willingness to support the development and maintenance of the child’s relationship with the other parent or guardian; (

c) the history of care for the child, having regard to the child’s physical, emotional, social and educational needs; (

d) the plans proposed for the child’s care and upbringing, having regard to the child’s physical, emotional, social and educa- tional needs; (

e) the child’s cultural, linguistic, religious and spiritual upbringing and heritage; (

f) the child’s views and preferences, if the court consid- ers it necessary and appropriate to ascertain them given the child’s age and stage of development and if the views and preferences can reasonably be ascertained; (

g) the nature, strength and stability of the relationship between the child and each parent or guardian; (

h) the nature, strength and stability of the relationship between the child and each sibling, grandparent and other significant person in the child’s life; (

i) the ability of each parent, guardian or other person in respect of whom the order would apply to communicate and co-oper-

ate on issues affecting the child; and (

j) the impact of any family violence, abuse or intimida- tion, regardless of whether the child has been directly exposed, including any impact on (

i) the ability of the person causing the family vio- lence, abuse or intimidation to care for and meet the needs of the child, and (ii) the appropriateness of an arrangement that would require co-operation on issues affecting the child, including whether requiring such co-operation would threaten the safety or security of the child or of any other person. [77] Subsection 18 (8) provides: “

(8) In making an order concerning care and custody or access and visiting privileges in relation to a child, the court shall give effect tothe principle that a child should have as much contact with each parent as is consistent with the best interests of the child, thedetermination of which, for greater certainty, includes a consideration of the impact of any family violence, abuse or intimidation as setout in clause (6)(j).” [78] The factors listed in subsection (6) are not intended to be exhaustive. The Court in the past tried to come up with its own list offactors. Goodfellow J. in Foley v.

Foley (1993), (NS SC), 124 N.S.R. (2d) 198 (S.C.) identified a number of factorswhich he suggested should be considered when determining a child’s best interests. His list included: 1. Any statutory direction. 2. The child’s physical environment. 3. Matters of discipline. 4. Role models for the children. 5. The wishes of the children (depending on their age and ability to express an opinion). 6. Religious and spiritual guidance. 7. The assistance of experts such as social workers, psychologists, etc.. 8. A parent’s time availability for a child. 9. The cultural development of a child. 10.

The physical and character development of the child. 11. The emotional support to assist in a child developing self-esteem and confidence. 12. The financial contribution to the welfare of the child. 13. The support of an extended family. 14. The willingness of a parent to facilitate contact with the other parent. 15. The interim and long range plan for the welfare of the children. 16. The financial consequences of custody. 17.

Any other relevant factors. [79] Counsel for the Applicant contends that after taking all relevant factors into account it would be in the best interests of thechildren that they be placed in the primary care of their mother. [80] Counsel for the Respondent argued that the “status quo” should be a primary consideration in the hierarchy of factors before theCourt. It was his submission that on a variation application the Court should maintain the “status quo” in the absence of clear evidencethat the welfare of the children requires another disposition.

In his pre-trial brief counsel said that the “status quo” is largely working inthis case despite the absence of an agreement on a comprehensive access schedule.

[ 81 ] While counsel for the Respondent would not likely take issue with the merit of adding a specific parenting arrangement for the Applicant, it is the Respondent’s position that it is not necessary and would be an overreaction to change the children’s primary residence to that of the Applicant. [ 82 ] I have reviewed the factors listed in subsection 18 (6) of the Act and the factors listed by Goodfellow, J. in Foley v. Foley (supra) . [ 83 ] I find that both the Applicant and the Respondent are capable of meeting the children’s physical needs.

Despite the Respondent’s criticisms of the Applicant’s parenting, I find almost no substance to them. I have no doubt that she loves the children and had the Respondent been more flexible in allowing parenting time to the Applicant and had he included her in the children’s events such as their daycare Christmas party and their ballet recitals, it is possible that the Applicant would not have brought this application. [ 84 ] The Applicant’s description of her home in Meteghan convinces me that it is an appropriate place to raise children. The girls are familiar with their mother’s home and community in Meteghan.

If they lived primarily with the Applicant they would have the benefit of spending more time with their maternal grand-parents as well as other extended family members. They would have the additional benefit of being exposed to the Acadian culture in which their mother was raised. [ 85 ] The Applicant gave evidence of the school the children will attend if they were to live with her, what her daycare arrangements would be and what arrangements would be made for the care of the children once they begin school in September.

All appear appropriate. [ 86 ] Unfortunately the Respondent has not given me evidence of his current circumstances. I was told that the Respondent lives in a trailer park in Beaverbank, Nova Scotia and that he has resided there since mid-March, 2014. I do not know anything else about his home such as whether the children have their own rooms. I know nothing of their neighbours.

I do not know what the Respondent’s move means in terms of the children’s daycare or what school that they might attend in September. [ 87 ] I do not know how the children reacted to being moved from their home in Halifax to their new home in Beaver Bank. I assume, but don’t know, that the move impacted on their relationships with friends that they may have had in their former neighborhood and with friends that they may have met at their daycare and who might have gone to school with them in Halifax.

Having said that, I do not doubt the Respondent’s ability to meet the physical needs of the children or his desire to meet those needs. [ 88 ] I do however have a serious concern regarding the Respondent’s willingness and ability to support the development and maintenance of the children’s relationship with the Applicant. His actions and e-mails demonstrate a callous disregard for the Applicant’s role in the lives of the children. He has limited her parenting time with the children. He has refused reasonable requests for additional time on special occasions.

He has excluded the Applicant from the children’s activities and has given her false information concerning the children. [ 89 ] He minimizes the significance of the children’s Acadian heritage. It would seem that to him it is enough that they learn to speak French. As explained by the Applicant, the Acadian culture is much more than the language spoken.

Already there is evidence that the children are losing touch with their Acadian background even to the extent of forgetting French words that they once knew. [ 90 ] I’ve been given no reason to question the Applicant’s willingness to support the children’s relationship with the Respondent.

Even though the Respondent has treated her poorly, she extended an olive branch to him from time to time by agreeing to “switch” weekends with him when requested and providing him with photographs of the children taken during a trip to Disney World in Orlando and pictures taken of them while they were playing T-ball while in the care of the Applicant. She also invited the Respondent to her home in Meteghan. He chose not to go. [ 91 ] The Applicant has outlined in detail her parenting plan. It would be her intention to enrol the children in Ecole Stella-Maris, which is a CSAP school located in Meteghan.

After school care would not be a problem. Not only is the Applicant’s work

schedule flexible and her place of work close to home, but her own mother, who lives next door, has expressed a willingness to care for the children while the Applicant is at work. The children already have a relationship with their maternal grand-mother and I believe that they would be comfortable in her care. [ 92 ] The Respondent indicated that if the children remain in his primary care placing them in a CSAP school or a French immersion school is not likely possible because of where he lives and how far the children would have to travel to attend such a school.

Beyond that his plan for the children’s schooling and after school care now that he has moved to Beaver Bank is unclear. [ 93 ] In addition to the children’s cultural background, the Act requires the Court to consider the children’s religious and spiritual upbringing. The Respondent describes himself as agnostic. The Applicant was raised in the Roman Catholic church and although she admits straying from that faith in the past, since the birth of the children she is placing more importance on her religion. Because of the alternate weekend parenting

schedule she has not been able to attend church as regularly as she would like. She does however want the children to be able to attend the Roman Catholic church and to attend religion lessons. [ 94 ] While the children have been in the care of the Respondent he has not objected to them attending church services but is opposed to them attending any kind of religious training as he views that as religious indoctrination. He believes that the children should make their own decisions regarding religion when they are old enough and mature enough to make such decisions.

He did not explain how they can make an informed decision if they are not given any education in their mother’s religion. [ 95 ] The children have both just recently turned the age of five. Other than some hearsay evidence from the witnesses, there was little by way of reliable evidence of the children’s wishes. Given their ages their views, if ascertainable, would not likely be given a great deal of weight. [ 96 ] I find that the children have a strong relationship with both of their parents. I believe that it is likely that they would be comfortable living with either of them.

Relocating them to the primary residence of the Applicant may cause them some small degree of

disruption. The disruption however would probably be less than the disruption that they recently experienced when moved from their home in Halifax to their home in Beaver Bank. They are already very familiar with their mother’s home and Meteghan. [ 97 ] The children appear to have a good relationship with both sets of grand-parents. They see their maternal grand-parents whenever they are in Meteghan (which presently is not all that often). They also have a relationship with the Applicant’s brother (their uncle) as well as friends of the Applicant.

The children also have a good relationship with their paternal grand-parents. They live in Sydney. Since the Respondent moved to Halifax in 2012 they see less of the children than they did previously but according to their evidence they still see the children at least every couple of weeks. If primary care was given to the Applicant the children’s relationship with their maternal grand-parents would likely strengthen. I do not believe moving to Meteghan would weaken the children’s relationship with their paternal grand-parents.

The Respondent and his parents would likely try to ensure that the children see their paternal grand-parents as much as possible when the children are in their father’s care. [ 98 ] The Act requires the Court to consider the ability of each parent to communicate and cooperate on issues affecting the children. Communication between the parties has not been good. They communicate frequently by way of e-mail but the evidence suggests that the communications are very often negative.

Regardless of who has primary care the parties will have to develop a means of communicating more constructively and civilly for the sake of their children. [ 99 ] Fortunately there is no evidence of family violence. [ 100 ] Turning to the additional factors in Foley v.Foley (supra), there is no evidence that either parent disciplines the children inappropriately. Both parties are capable of being good role models for their children.

The Respondent, however, will have to learn to be less critical of the Applicant and take care to ensure that any criticisms are not said in the presence of the children. [ 101 ] Both parties are employed outside of the home. The Applicant is employed on a full-time basis in a family business. She testified that her work

schedule is flexible so she is able to spend time with the children. The Respondent is employed as a substitute teacher. Based on his work history over the past couple of years he has a generous amount of time to spend with the children. Although his work appears to be sporadic, because the children have been in daycare Monday to Friday, his time with the children during the school year has been no more than would have been the case had he worked each day as a full-time teacher. [ 102 ] Financially the Applicant is in a position to provide for the needs of the children.

The Respondent’s income is modest but his wife is also employed. Details of her current income were not provided but she said her income is greater now than it was when she was working at her previous position prior to March, 2014. [ 103 ] I have considered the submissions of counsel both written and verbal. [ 104 ] As I said previously, counsel for the Respondent submits that the Court should continue the current custody order in the absence of clear evidence that the welfare of the children requires another disposition. [ 105 ] The existing order is the starting point.

Unless there have been material changes in circumstances since the granting of that order then the terms of that order are to be maintained. However, if the Applicant is able to satisfy the Court that there have been material changes in circumstances that affect the children since the granting of the previous order then the Court may vary that order if the Court considers a variation of the existing order to be in the best interests of the children. A consideration of all relevant factors such as those listed in subsection 18 (6) of the Act and in Foley v.

Foley (supra) is intended to assist the Court in determining what is in the children’s best interest. If after considering those factors the Court concludes that the existing order is still operating in the children’s best interests then it need not be varied. The Court, however, is not bound by the status quo. The Supreme Court in Gordon v.

Goertz (supra) at paragraph 49 made it clear that once a material change in circumstances has been established, the judge must embark on a fresh inquiry into what is in the best interests of the child having regard to all relevant circumstances relating to the child’s needs and the ability of the parents to satisfy those needs.

There is no presumption in favour of either parent and each case turns on its own facts. [ 106 ] Having considered all of the evidence I have come to the conclusion that a variation of the Court’s order would be in the best interests of the children. [ 107 ] I find that although both parties are equally capable of attending to the children’s physical needs it is the Applicant who should have primary care. [ 108 ] The Respondent through his words and actions has shown that he has little respect for the Applicant as a parent.

He has demonstrated that he has not taken steps to foster an ongoing relationship between the children and their mother. He in fact has intentionally curtailed her parenting time with the children and has without any good reason prevented her from taking

part in events that are important to the children. [ 109 ] While he gives lip service to the requirement that he consult with the Applicant, he dismisses most of her opinions. [ 110 ] The Respondent has not put the needs of the children first. [ 111 ] I believe that if the children remain in the primary care of the Respondent their relationship with the Applicant will suffer.

If the Respondent was to continue on the same path that he has followed since August 2012, there is a very real possibility that the Applicant will be alienated from the children and their relationship will break down. [ 112 ] I believe that if the Applicant was granted primary care of the children she will take steps to ensure that the children maintain their relationship with the Respondent. I believe that she would seriously consider his input. I believe that she will keep him advised of events in the children’s lives and include him in those events.

Excluding either parent from the children’s lives is not in their best interests. [ 113 ] If the children lived primarily with the Applicant, they will be exposed to their Acadian heritage – something which is unlikely to

happen if they remain in the care of the Respondent. [ 114 ] Even if the status quo was given priority over all other considerations, I would still conclude that the current order has to be varied. There is clear evidence that the status quo is not in the children’s best interests. [ 115 ] The existing order also has to be modified to include very specific parenting provisions. The parties have shown that they haven’t been able to work that out by themselves.

Should the Court order child maintenance for the support of the two children and if so what would be the terms of that order? [ 116 ] Presently the Applicant is paying child maintenance to the Respondent in the sum of $470.00 per month in the absence of any Court order. She seeks an order for child maintenance from the Respondent. She recognizes that whereas his income is modest the sum of any child maintenance that might be ordered will also be modest.

She has not asked the Court to impute income to the Respondent. [ 117 ] The Respondent’s most recent financial information would suggest that his income in 2013 was approximately $14,390.00. The Child Maintenance Guidelines provides that in Nova Scotia a payor with an income at that level with two children should pay child maintenance of $171.00 per month. I would round that figure to $170.00 per month.

I have been given no good reason why that amount should not be paid so I order that the Respondent pay child maintenance to the Applicant for the support of the two children in the sum of $170.00 each month once the children are placed in her primary care. [ 118 ] The Applicant did not seek any contribution to any special or extraordinary expenses. CONCLUSION [ 119 ] I therefore order the following: Joint Custody 1. The Applicant and the Respondent will continue to share joint custody of the children. The following conditions will apply to the administration of the joint custody of the children: (

i) The children will reside primarily with the Applicant. The Respondent will have parenting time with the children as specified below. (ii) The parties will promptly share with each other any information they receive concerning the children’s health, education, recreational activities and the like and will make reasonable efforts to keep the other informed of matters relating to the children.

Without restricting the generality of this provision, the parties will inform the other as soon as reasonably possible of any invitations, notices, school progress reports, medical and dental appointments and other information which he or she receives relating to the children. (iii) In addition to the foregoing, both parties will be entitled to receive information relating to the children such as school progress reports, medical reports, information regarding their recreational activities and the like directly from any service provider such as the children’s teachers, doctors, dentists, care providers and the like. (iv) Each of the parties will be responsible for the day-to-day care of the children when they are with him or her. (

v) The parties will cooperate with each other as much as is reasonably possible to ensure the most appropriate care, upbringing and education of the children. (vi) The Applicant will have the final decision-making authority with respect to major decisions that impact on the children’s medical care, education and religious upbringing. Prior to making any such decision the Applicant will consider seriously any opinion or input offered by the Respondent.

She will attempt as much as is reasonably possible to reach an agreement with the Respondent before exercising her final decision-making authority so long as the welfare of the children is not compromised by doing so. The welfare of the children should be the paramount consideration when making any such decision. All other major developmental decisions that may affect the children will be made jointly by the parties or with the acquiescence of the Respondent. (vii) Both parties may authorize emergency medical treatment that may be required by either of the children.

Should such emergency medical treatment be required and be authorized by a party, that party will then, after attending to the needs of the child, make every reasonable effort to promptly advise the other party of the nature of the medical emergency and the nature of the medical treatment authorized. (viii) Should either of the children be receiving prescribed medications, the parties will ensure that such medications travel from one party to the other along with the child and brought to the attention of the other party. (ix) The parties will continue to communicate with each other for the purpose of sharing information regarding the children by e-mail, Skype and telephone.

Any such communication is to be focussed on what is in the best interests of the children. (

x) The parties will forthwith inform each other of any changes in his or her contact information including their home address, telephone numbers, e-mail addresses and the like. (xi) The parties will include the names of both parties on the contact lists of the children’s schools and daycares.

Parenting Time Regular weekend parenting time 2. (

i) The Respondent will have parenting time with the children every second weekend from Friday at 5:00 p.m. until the following Sunday at 5:00 p.m.. In the event that a statutory holiday falls on the Friday at the beginning of the weekend or on the Monday immediately following the weekend, the Respondent’s weekend with the children will be extended to include the holiday. Should the holiday be on the Friday before his regular weekend parenting time his parenting time will commence at 5:00 p.m. on the preceding Thursday and conclude on Sunday at 5:00 p.m..

Should the holiday fall on the Monday following his regular weekend parenting time his parenting time will commence on Friday at 5:00 p.m. and conclude on Monday at 5:00 p.m.. This provision for additional parenting time on a holiday does not apply to Christmas Day, Boxing Day or New Year’s Day which holidays are specifically addressed below under the heading “Special Occasions”. Special Occasions (ii) Parenting time with the children during the children’s Christmas break from school will be shared by the parties.

Beginning in December 2014 and continuing in each even numbered year thereafter, the Respondent will have the care of the children beginning at 12:00 noon on the first full day after the conclusion of school prior to the Christmas break until December 27 at 11:00 a.m.. The Applicant will then have the care of the children beginning at 11:00 a.m. on December 27 for the remainder of the children’s Christmas break before the recommencement of school.

Beginning in December 2015 and continuing in each odd numbered year thereafter, the Applicant will have the care of the children beginning on the last day of school prior to their Christmas break until December 27 at 11:00 a.m.. The Respondent will then have the care of the children beginning at 11:00 a.m. on December 27 until 3:00 p.m. on the last full day prior to the recommencement of school following their Christmas break. (iii) The parties will share the care of the children during their spring break from school.

For the purpose of this paragraph the children’s spring break is considered to be from Monday at the commencement of the spring break to and including Friday at the conclusion of the spring break but does not include the weekends before and after the spring break. The Applicant will have the care of the children during the children’s spring break from school in 2015 and each odd numbered year thereafter. The Respondent will have the care of the children during the children’s spring break from school in 2016 and each even numbered year thereafter.

To be clear, the alternating of the children’s spring break from school will not interrupt the regular weekend parenting time of the Respondent. If the Respondent’s spring break with the children follows the Applicant’s regular weekend parenting time with the children the Respondent will pick up the children from the residence of the Applicant on Sunday at 5:00 p.m. prior to the spring break.

If the Respondent’s spring break with the children precedes the Applicant’s regular weekend parenting time with the children the Applicant will pick up the children from the residence of the Respondent on Friday at the conclusion of the spring break at 5:00 p.m.. If the Applicant’s spring break with the children follows the Respondent’s regular weekend parenting time with the children the Applicant will pick up the children from the residence of the Respondent on Sunday at 5:00 p.m. prior to the spring break.

If the Applicant’s spring break with the children precedes the Respondent’s regular weekend parenting time with the children the Respondent will pick up the children from the residence of the Applicant on Friday at the conclusion of the spring break at 5:00 p.m.. (iv) The parties will share the parenting of the children during the months of July and August each year beginning in 2014.

Unless the parties otherwise agree the Applicant will have the children in her care during the month of July in 2014 and in each even numbered year thereafter and in the month of August in 2015 and in every odd numbered year thereafter. Similarly, unless the parties otherwise agree the Respondent will have the children in his care during the month of August in 2014 and in each even numbered year thereafter and in the month of July in 2015 and in every odd numbered year thereafter.

I have intentionally placed the children in the care of the Applicant in July of this year (shortly after the release of this decision) so as to give the children an opportunity to adjust to the new care arrangements. (

v) Both parties may attend any functions and meetings relating to the children that parents are normally entitled to attend such as daycare and school related events, medical and dental appointments, recreational activities, concerts and the like. This provision applies even if the event falls outside of a parent’s normally scheduled parenting time with the children. (vi) The Respondent may have such additional parenting time with the children as the parties may agree from time to time. 3.

The regular weekend parenting time referred to above will be suspended in favour of the special occasion parenting time referred to above when those special occasions occur. At the conclusion of the special occasion the regular weekend parenting time will recommence on the same alternating weekend

schedule as if the special occasion times had not occurred. I’ve specifically made no mention of the Easter weekend or the Thanksgiving weekend. If the parties take care not to “trade off” weekends or if they revert to the regular weekend parenting

schedule sometime after any such trade and provided they recommence the regular weekend parenting time after every special occasion as if the special occasion had not occurred, then, over time, the Easter holiday weekends and the Thanksgiving holiday weekends will be shared equally. The parties can, of course, make their own agreement

on the parenting of the children on those occasions. 4. Subject to clause 5 below, both party will be entitled to have daily telephone access or Skype access with the children when the children are in the care of the other party. Such access will occur at a time to be agreed upon by the parties but failing an agreement it shall take place at 6:00 p.m.. Each party will make all reasonable efforts to ensure that the circumstances in their home at the time of the phone access or Skype access enables the “access parent” uninterrupted and meaningful time with the children.

Such access will be for a reasonable period of time but in any event not greater than 30 minutes. Travel and Relocation 5. Both parties, during their parenting time with the children, will be entitled to travel for the purpose of a vacation with the children outside of Nova Scotia and outside of Canada.

Prior to doing so the party who will be travelling with the children will provide the other party with a minimum of two weeks advance notice of their intention to travel with the children and at that time will provide the other party with a general itinerary of their travel plans including their expected date of departure and expected date of return, details of where the children will be staying while on their vacation and how they may be contacted in the event of an emergency. The regular telephone or Skype access will be suspended during any such vacations unless the parties agree otherwise. 6.

The parties will cooperate with each other if either party wishes to apply for or renew a passport for the children. The children’s passports will be made available to either party who is travelling with the children should they be travelling outside of Canada with either or both of the children. When the children’s passports are not required for travelling purposes they will be returned to the Applicant who will be responsible for those passports until they are needed by either party for travel purposes. 7.

Neither party will relocate their residence without giving to the other party no less than 60 days advance written notice of their planned relocation if such relocation could reasonably be expected to impact on the other party’s parenting time with the children. General Provisions 8. Neither party will enroll the children in an extracurricular activity that may reasonably be expected to interfere with the other party’s parenting time with the children without the other party’s consent. Transportation 9.

The parties will share responsibility for the transportation of the children in order to give effect to the parenting provisions of the Court’s order. Unless the parties agree otherwise, the Respondent will be responsible for picking the children up from the residence of the Applicant at the commencement of his parenting time regardless of whether that parenting time is during the regular weekend parenting time or at the commencement of a special occasion. The Applicant will be responsible for picking the children up at the conclusion of the Respondent’s parenting time at his residence.

To minimize the likelihood of a disagreement between the parties it is recommended that the party who is picking up the children remain in his or her vehicle when arriving to pick up the children, that he/she use his/her cellphone to contact the other party to advise that they are present to retrieve the children, and the other party will make every reasonable effort to ensure that the children are ready to go at the scheduled time and escort them to the vehicle of the party who is picking up the children. Transition 10.

The parenting arrangements as described herein will take effect as of Friday June 20, 2014 when the children will be physically given to the Applicant under the terms of this decision or the order resulting from this decision. The Respondent’s regular weekend parenting time will commence on June 27, 2014. Child Maintenance 11.

The Respondent will pay to the Applicant child maintenance for the support of the two children in the sum of $170.00 each month based on an income of $14,390.00 with such child maintenance to commence on the first day of July 2014 and continue on the first day of each month thereafter until otherwise ordered. 12. The Respondent will pay the aforementioned monthly child maintenance directly to the Applicant for the months of July and August, 2014. Thereafter such child maintenance will be paid to the Applicant through the offices of the Director of Maintenance Enforcement whose address is P.O.

Box 803, Halifax, Nova Scotia, B1H 5V8. Both parties will ensure that the Director of Maintenance Enforcement is kept advised of their current address and other contact information. 13. The Respondent will provide to the Applicant a copy of his complete income tax return together with all schedules and attachments as well as a copy of his Notice of Assessment or Reassessment as the case may be on an annual basis commencing with his 2014 income tax information which will be given to the Applicant no later than June 1, 2015 and such disclosure will continue each year thereafter no later than June 1 of each year.

[ 120 ] I direct counsel for the Applicant to prepare the appropriate order. [ 121 ] Should either party wish to be heard on the issue of costs they are to contact my office within three weeks of the receipt of this decision and a date for submissions will then be scheduled. Dellapinna, J.