MacDonald v. MacNeil, 2012 NSSC 171

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: MacDonald v. MacNeil, 2012 NSSC 171 Date: 20120411 Docket: SFSNMCA-078700 Registry: Sydney Between: Donald MacDonald Applicant v. Anne Michele MacNeil Respondent Judge: The Honourable Justice Theresa M. Forgeron Heard: April 2 and 3, 2012, in Sydney, Nova Scotia Oral Decision: April 11, 2012 Written Decision: April 27, 2012 Counsel: Elaine Gibney, for the applicant Lisa Fraser-Hill, for the respondent By the Court: [ 1 ] Jacob is the five year old son of Donald MacDonald and Michele MacNeil. Jacob is dearly loved by his parents.

Jacob is fortunate to have such parents. Their guidance will help ensure that he is a happy and well adjusted child. [ 2 ] On November 14, 2011, Jacob ’ s parents separated permanently. Since that time, Mr. MacDonald and Ms. MacNeil have not been able to resolve parenting issues. Mr. MacDonald thus filed an interim motion. This motion was heard on April 2 and 3, 2012. During the hearing, the court heard evidence from Mr. MacDonald, Ms. MacNeil, and Mr. MacDonald ’ s employer.

[3] Issues [4] What interim parenting plan is in the best interests of Jacob? [5] Analysis [6] What interim parenting plan is in the best interests of Jacob? [7] Position of the Parties [8] Mr. MacDonald seeks a shared parenting arrangement. Mr. MacDonald stated that both parties were equally involved inJacob’s care before separation, and that Jacob will benefit from the continuation of this status quo post separation. Mr. MacDonaldraised concerns about Ms. MacNeil’s conduct and her negative emotional responses. Mr. MacDonald stated that Ms.

MacNeil hasunduly restricted his parenting time with Jacob after separation, and such is not in Jacob’s best interests. [9] In contrast, Ms. MacNeil stated that she was the primary care giver of Jacob before separation, and simply continued in thatrole after separation. She noted that Mr. MacDonald was busy with work endeavours, both in the capacity of an employee, and as anemployer. As a result, Mr. MacDonald did not spend significant time with Jacob. Ms. MacNeil stated that Mr. MacDonald relied heavilyupon her to ensure that Jacob’s primary needs were met. Ms.

MacNeil does not believe that a shared parenting arrangement is in Jacob’sbest interests, and proposes extended weekend access, on an alternating basis, with some midweek day access. Ms. MacNeil is againstovernight access during school nights. [10] Legislation and Case Law [11]

Section 18 of the Maintenance and Custody Act provides this court with the jurisdiction to grant a parenting order. In grantingsuch an order, the court must apply the best interests of the child test as stated in s. 18(5) which provides as follows:

(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. [12] The best interests principle has been described as one which has an inherent indeterminancy and elasticity: MacGyver v.Richards, (ON CA), 22 O.R. (3d) 481, paras 27 to 29.

The test is a fluid concept that encompasses all aspects of achild, including the child’s physical, emotional, intellectual, and social well being. [13] During interim proceedings, the status quo gains pre-eminence. The court is focussed on determining what interim, parentingarrangement will be the least disruptive, and most supportive of the child: Pye v. Pye, [1992] NSJ No. 133 (T.D.); Stubson v. Stubson,[1991] NSJ No. 210 (T.D.); L.S.W. v. I.E.W., [1989] NSJ No. 492 (F.C.); Foley v. Foley, (NS SC), [1993] N.S.J.No. 347 (S.C.); A.M. v. A.Y. 2012 NSJ No. 33; Horton v.

Marsh, 2008 NSSC 224. [14] The status quo which ordinarily must be maintained is the status quo which existed, without reference to the unilateral conductof one parent, unless the best interests of the child dictate otherwise: Kimpton v. Kimpton, [2002] O.J. No. 5367 (S.C.J.). [15] The status quo, however, is not the only factor to be considered when fashioning an interim parenting arrangement. In Foley v.Foley, supra, Goodfellow, J. provided a serious of factors for courts to consider and balance when determining the best interests of achild, in the context of an interim motion.

[ 16 ] In Gibney v. Conohan , 2011 NSSC 268 , O ’ Neil A.C.J. reviewed the law surrounding shared parenting in the context of an interim motion. He noted that although there is no presumption in favour of joint custody, the legislature has recognized the importance of children having maximum contact with both parents. This presupposes that both parents are competent, caring, and loving. O ’ Neil, A.C.J. further stated that jurisprudence on shared parenting has evolved based upon the changing dynamics of family life and parental roles.

There is an increased acceptance that fathers have the ability to parent their children. After finding that the parties were comparable as parents, O ’ Neil A.C.J. ordered shared parenting for children who were 9 and 7, on an interim motion. [ 17 ] I have reviewed the law, the evidence, and the legal submissions. I have based this court ’ s parenting decision on what is in Jacob ’ s best interests. I have examined the plan of each party. I have determined that an interim shared parenting arrangement, although not an exact 50/50 split, will ensure that the best interests of Jacob are met.

My decision will be discussed under the following subheadings:

a) Past Experience as Primary Care Parent;

b) Parental Misconduct;

c) Parent/Child Relationship;

d) Physical and Financial Environment;

e) Social, Cultural, and Moral Development;

f) Educational Needs;

g) Time Availability;

h) Willingness to Facilitate Contact; and

i) Family Connections. [ 18 ] Past Experience as Primary Care Parent [ 19 ] Both Mr. MacDonald and Ms. MacNeil were active and involved parents. Both had to balance the demands of work with the demands of raising a child. Ms. MacNeil likely spent more time with Jacob than did Mr. MacDonald. This, however, does not, and did not, diminish the important parenting role that Mr. MacDonald played, and will continue to play, in Jacob ’ s life. [ 20 ] Mr. MacDonald was the parent who, during most weekday evenings, was responsible for Jacob ’ s care and bedtime routine. Ms.

MacNeil was the parent, who during most of the weekdays, was responsible for Jacob ’ s morning and daytime routine until approximately 2 p.m.. Both parties actively participated in Jacob ’ s care during the weekends and during their nonworking hours. [ 21 ] Ms. MacNeil was also primarily responsible for Jacob ’ s regular and medical check-ups because she did not leave for work until 2:30 in the afternoon. She also made the arrangements for Jacob ’ s activities. Mr.

MacDonald was nonetheless present when there were pressing issues, or when he was not working. [ 22 ] Both parents offered Jacob their unconditional love and support. Because they were not super parents, at times, each relied upon the assistance of the other. In particular, Jacob was colicky as an infant. Whether Ms. MacNeil was called home, on one or five occasions, does not mean that Mr. MacDonald was inexperienced, incompetent, or uncaring as a father. To the contrary, Mr.

MacDonald provided excellent care to Jacob. [ 23 ] I find that both parents are competent, caring, and nurturing parents who are well equipped to ensure that the primary needs of Jacob are met. When discussing Jacob ’ s regular routine with the court, both parents gave similar responses. Both will ensure that Jacob is nutritionally feed, well rested, cleaned, and properly clothed. Both will ensure a similar routine is implemented and maintained. Both will attend to the needs of Jacob in an exemplary fashion. Isn ’ t Jacob blessed to have two parents who can provide such care? [ 24 ] Parental Misconduct

[ 25 ] Mr. MacDonald was concerned about Ms. MacNeil ’ s angry and emotional responses following the parties ’ separation. He was concerned that such responses have negatively impacted on Jacob. I agree for three reasons. First, Ms. MacNeil presented with anger, upset, and jealousy. On occasion, Ms. MacNeil displayed inappropriate responses in front of Jacob, inclusive of poor language choices. Ms. MacNeil ’ s impulsive and angry reactions provide Jacob with bad example and also place Jacob in the middle of a loyalty conflict. Ms. MacNeil must gain better control of her emotions. [ 26 ] Second, Ms.

MacNeil unilaterally limited Jacob ’ s time with Mr. MacDonald after separation because she was hurt and angry. Ms. MacNeil only began to extend access after the pretrial conference. Jacob needs to have liberal time with both of his parents. [ 27 ] Third, Ms. MacNeil did not voluntarily provide Mr. MacDonald with updates on Jacob ’ s health, education, and general welfare. In particular, she did not advise Mr. MacDonald when Jacob ’ s long time babysitter handed in her resignation; when Jacob was enrolled in the after school program; nor did she immediately contact Mr.

MacDonald when she became aware that Jacob had been seriously injured at the after school program. [ 28 ] Five months have elapsed since the parties ’ separation. Ms. MacNeil is in counselling, and the court is hopeful that she will learn better coping skills so that Jacob is shielded and protected from her upset and anger. I believe that Ms. MacNeil will make the necessary changes because of her deep love for Jacob. [ 29 ] Ms. MacNeil raised concerns about Mr. MacDonald making Jacob feel guilty by repeatedly telling Jacob that he missed him. Mr. MacDonald stated that he did not intend this consequence.

In the future, Mr. MacDonald indicated that he will simply reaffirm his love for Jacob and will not overuse the words, “ I ’ m missing you. ” I have no doubt that Mr. MacDonald will make this change because he, too, deeply loves Jacob. [ 30 ] Parent/Child Relationship [ 31 ] Both parties have solid, healthy relationships with Jacob. The parental relationships are likely different, given the parties ’ personality differences, but each connects emotionally to Jacob. Jacob knows that his parents value him as unique and important. Jacob knows that he is loved by his mother and father.

Jacob finds security with both parents. Both parties are attuned to Jacob ’ s emotional needs, although both must make the changes discussed previously to ensure Jacob is sheltered from the conflict. [ 32 ] Physical and Financial Environments [ 33 ] Both parties have clean and appropriate homes for Jacob. The parties live in close proximity to each other, and to Jacob ’ s school. Each is able to provide financially for Jacob.

The court has no concern with either party meeting the financial needs of Jacob. [ 34 ] Social, Cultural, and Moral Development [ 35 ] Both parties are equipped to provide and ensure the social, cultural, and moral development of Jacob. Both are committed to ensuring that Jacob attends activities which will meet his needs. Both parties have placed priority on Jacob ’ s extracurricular activities. Ms. MacNeil also has commenced taking Jacob to church on Sundays; Mr. MacDonald did not appear to be opposed to this decision.

Both parents also recognize Jacob ’ s need to have unstructured play and to have regular interaction with friends. [ 36 ] The plans of each party are comparable. [ 37 ] Educational Needs [ 38 ] Jacob has reading difficulties. In the past, he attended speech language therapy, and was taken to those lessons by Ms. MacNeil. A school assessment has determined that Jacob no longer requires speech language therapy. Jacob does, however, struggle with reading. Both parents are committed to helping Jacob improve his reading skills. Indeed, Mr. MacDonald regularly read to Jacob

as part of Jacob ’ s bedtime routine. [ 39 ] Jacob ’ s educational needs will be met in the capable hands of both of his parents. [ 40 ] Time Availability [ 41 ] Both parties have time available to meet Jacob ’ s needs. Ms. MacNeil is a nurse who works in the operating room and has a set schedule, although, she, at times, must work overtime. [ 42 ] Mr. MacDonald is employed with Sheldon Marinelli. Mr. Marinelli testified that he is willing to be flexible with Mr. MacDonald ’ s work schedule, so that Mr.

MacDonald can work extra hours on the days that Jacob is not scheduled to be with him, and fewer hours on the days when Jacob is in his care. Mr. Marinelli also now allows Mr. MacDonald, who is a truck driver, to park his truck in Sydney. This will reduce Mr. MacDonald ’ s travel time from about 40 to 60 minutes each day. [ 43 ] I find that both parties will be available to care for Jacob. Ms. MacNeil has restructured her work

schedule so that she is employed during the days and is available at night to care for Jacob. Mr. MacDonald is also available to care for Jacob at the times set out in the interim, parenting schedule. [ 44 ] Willingness to Facilitate Contact [ 45 ] Mr. MacDonald is more willing than Ms. MacNeil to facilitate maximum contact. Ms. MacNeil attempted to restrict the parenting time that Mr. MacDonald had with Jacob. Despite this finding, I find that Ms. MacNeil will follow the court order and will do what is required of her. [ 46 ] Family Connections [ 47 ] Both parents place priority on family involvement.

Jacob is close to the extended family of his parents, although Ms. MacNeil has more family living in the Sydney area than does Mr. MacDonald. All grandparents were involved with Jacob. Although Mr. MacDonald ’ s father has recently passed on, his mother remains an important part of Jacob ’ s life. The parties will continue to facilitate family involvement. [ 48 ] Conclusion [ 49 ] A shared parenting arrangement is in Jacob ’ s best interests during the interim given these findings. Such an arrangement is the most protective and supportive of Jacob, and will ensure that his best interests are met. [ 50 ] Parenting

Schedule [ 51 ] The parenting

schedule is as follows:

a) Joint custody - Donald MacDonald and Michele MacNeil will share joint legal custody of Jacob Allan MacDonald, born June 10, 2006.

b) Regular

Schedule - Jacob will be in the care of his father every Wednesday at 5 p.m. until Saturday at 5 p.m. Jacob will be in the care of his mother from Saturday at 5:00 p.m. until Wednesday at 5:00 p.m.

c) Special Occasions and Holidays - The regular

schedule will be suspended for special occasions and holidays, and the following parenting

schedule will be followed instead:

i) Father ’ s Day - During each Father ’ s Day weekend, Mr. MacDonald will continue to have Jacob in his care from Saturday at 5 p.m. until Sunday at 5 p.m. ii) Summer Vacation - Each party will have Jacob in his/her care for 10 consecutive days during the summer. During the even numbered years, Mr. MacDonald will provide notice to Ms. MacNeil of the 10 days he wishes to take no later than May 1st, and Ms. MacNeil will advise Mr. MacDonald of the 10 days she intends to take no later than May 30th. During the odd numbered years, Ms. MacNeil will provide notice to Mr.

MacDonald of the 10 days she wishes to take no later than May 1st, and Mr. MacDonald will advise Ms. MacNeil of the 10 days he intends to take no later than May 30th. iii) Christmas - Christmas is deemed to cover the period from 2 p.m. on December 23rd until 2 p.m. on January 3rd. During the even numbered years, Jacob will be in the care of Mr. MacDonald from 2 p.m. on December 23rd until 2 p.m. on December 25th, and from 2 p.m. on December 28th until 2 p.m. on December 31st. During the even numbered years, Jacob will be in the care of Ms.

MacNeil from 2 p.m. on December 25th until 2 p.m. on December 28th; and from 2 p.m. on December 31st until 2 p.m. on January 3rd, at which time the parties will revert back to the regular schedule. During the odd numbered years, Jacob will be in the care of Ms. MacNeil from 2 p.m. on December 23rd until 2 p.m. on December 25th; and from 2 p.m. on December 28th until 2 p.m. on December 31st. During the odd numbered years, Jacob will be in the care of Mr.

MacDonald from 2 p.m. on December 25th until 2 p.m. on December 28th, and from 2 p.m. on December 31st until 2 p.m. on January 3rd, at which time the parties will revert back to the regular schedule. iv) Spring Break - Spring Break is deemed to cover the period from 9 a.m. on Friday of the last day of school until 9 a.m. on Sunday before school recommences. Jacob will be in the care of Mr. MacDonald during the March breaks of the even numbered years. Jacob will be in the care of Ms. MacNeil during the March breaks of the odd numbered years. The parties will revert back to the regular

schedule after the conclusion of the Spring Break holiday.

v) Easter - Easter is deemed to cover the period from after school on Holy Thursday until Easter Monday at 2 p.m. Jacob will be in the care of Ms. MacNeil during the Easters of the even numbered years. Jacob will be in the care of Mr. MacDonald during the Easters of the odd numbered years. The parties will revert back to the regular

schedule after the conclusion of the Easter holiday.

d) Ad Hoc Special Family Events - The parties will use their best efforts to accommodate any special family reunion, wedding, or other event, that is scheduled at a time when Jacob is in the care of the other party. Written notice will be provided, well in advance of the scheduled event, to determine if the regular

schedule can be altered to permit Jacob ’ s attendance at the special function. The parties will be as flexible as possible in such circumstances, however, no change in the

schedule will occur without the expressed and written authorization of the party in whose care Jacob is scheduled to be at the time of the special family function. If accommodation cannot be made, the party refusing must provide the other party with written reasons for their refusal. Make up time will be provided to the party who agrees to rearrange the

schedule as that party requests.

e) Travel - Each party will notify the other of travel plans involving Jacob. Notice will include dates of travel, location, address, and telephone numbers where Jacob can be reached, and any applicable flight details. Both parties will accommodate any requirements for passport documentation to allow Jacob to vacation with the other parent outside Canada, and will also sign any necessary letter to permit travel outside of Canada.

f) Telephone Contact - Each party will have reasonable telephone contact with Jacob while Jacob is in the care of the other party.

g) Decision Making Authority - Each party will have physical day to day decision making authority and control when Jacob is in his/her physical care. Each party will notify the other by email of the following routine decisions made while Jacob is in her/his care:

particulars of minor illnesses and any medication that has been administered; particulars of homework assignments, projects and tests; particulars involving activities, practices, games and tournaments; and particulars relating to significant social welfare matters. All such notifications must be timely, and also must provide sufficient particulars so that both parties can attend any special functions on behalf of Jacob, if they are able to do so. All such communication will be respectful and child focused.

h) Emergency Decisions - In the event of a medical emergency, the party having physical care of Jacob will be entitled to make decisions which are necessary to alleviate the emergency, and will notify the other parent as soon as possible, as to the nature of the emergency, and as to the nature of the emergency treatment. Both parties are entitled to attend the emergency treatment on behalf of Jacob.

i) Education Matters - Both parties will determine major educational decisions affecting Jacob, including any special programs that he requires.

j) Meetings, Concerts, and Activities - Both parties are entitled to attend parent teacher meetings, and any major school events, including concerts, programs and activities. In the event tickets are limited to such performances, each parent will have priority for tickets. The use of any additional tickets will be determined by the parent who has physical care of Jacob on the day the special event occurs.

k) Educational Assistance - Each party is responsible for assisting Jacob with homework while Jacob is in his/her physical care. Each parent will cooperate with all professionals to learn any necessary strategies to assist Jacob with any reading difficulties, or other special educational requirements that may develop.

l) Medical, Dental, Health Cards, and Insurance Forms - Both parents will have the health card number for Jacob, and both parents will share particulars and forms of any health plan which covers Jacob.

m) Family Physician, Dentist, and other Health Professionals - Both parties will attend all appointments which are scheduled on behalf of Jacob, if at all possible, and the party who has scheduled the appointment will provide timely notification and particulars to the other parent.

n) Extracurricular Activities - Each party may chose and enroll Jacob in extracurricular activities which occur during their regular scheduled time and shall discuss all such activities with the other party before making the decision to enroll. The party who has physical care of Jacob will be responsible for his transportation to and from the activity. Each party will keep the other party apprised of any extracurricular activities in which Jacob is enrolled.

o) Access to Professional Records and Information - Each party has the right to communicate with all professionals involved with Jacob ’ s care, and each has the right to obtain information and documentation respecting Jacob from all medical professionals, educators, health professionals, and social welfare professionals without the further consent from the other party.

p) Therapeutic Interventions - The parties will continue to attend counselling to learn better communication skills for separated parents. The purpose of such counselling is to allow each party to learn techniques to ensure that Jacob is not placed in the middle of parental conflict, and to enhance parental communication about matters concerning Jacob. [ 52 ] Conclusion [ 53 ] A joint custody order is in the best interests of Jacob. A shared parenting regime, that is subject to the schedule, terms, and conditions, as outlined is also granted in Jacob ’ s best interests. Ms. Gibney will prepare and circulate the order.

Forgeron, J.