McKinnon v. Serroul, 2011 NSSC 386

FAMILY COURT OF NOVA SCOTIA Citation: McKinnon v. Serroul, 2011 NSSC 386 Date: 20111020 Docket: Syd 46788 Registry: Sydney Between: Hector Daniel McKinnon Applicant v. Laura Ann Serroul Respondent LIBRARY HEADING Judge : The Honourable Justice M. Clare MacLellan Heard: November 29, 2010 and June 13, 2011 Final Written Submissions: July 27, 2011 Subject: Custody, Variation per Maintenance and Custody Act

Summary: Issue: 1) Whether problems post consent order constitute material change in circumstances. 2) Whether father too ill to work or underemployed. Result: No material change proven. Parties to follow consent order. Variation to maintenance and cancellation of arrears denied. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE

DECISION, NOT THIS LIBRARY SHEET. FAMILY COURT OF NOVA SCOTIA Citation: McKinnon v. Serroul, 2011 NSSC 386 Date: 20111020 Docket: Syd No. 46788 Registry: Sydney Between: Hector Daniel McKinnon Applicant v. Laura Ann Serroul Respondent

Judge: The Honourable Justice M. Clare MacLellan Heard: November 29, 2010 and June 13, 2011Submissions received July 27, 2011 Sydney, Nova Scotia Written Decision: October 20, 2011 Counsel: Coline Morrow, Counsel for Hector McKinnon Candee J. McCarthy, Counsel for Laura Ann Serroul Background Facts: [ 1 ] Ms. Serroul, the mother of Tessa Grace McKinnon, is a registered nurse and a Bachelor of Science graduate from St. F. X. University. Mr. McKinnon was formerly employed in a moving business. He is unemployed at present and believes he is unable to work due to ill health. Mr.

McKinnon believes he may be able to work if retrained to a position that recognizes his health problems. [ 2 ] The parties lived together for a short period of time after their daughter Tessa Grace McKinnon was born. Tessa McKinnon was born on October 2, 2005 while Ms. Serroul was attending university. The parties separated in May 2006, Tessa was seven months old at the time. On September 12, 2007 the parties entered a detailed consent order. Tessa was two years old at the time the order was issued. The consent order was achieved through settlement conference. Ms.

Serroul was a member of the Canadian Armed Forces. The consent order made provision in the event that Laura Serroul was posted overseas by reason of her employment. This event never occurred. [ 3 ] The regular access set out in the consent order contemplated the fact that Ms. Serroul was studying in Antigonish and Mr. McKinnon was residing in Boisdale. The order contemplated Ms. Serroul ’ s return to Cape Breton every second weekend.

Clause four of the order established the exact days Hector McKinnon was to have the child in his care in Boisdale, the time Laura Serroul was to have the child in her care in Cape Breton, as well as the time Laura Serroul was to have Tessa in her care in Antigonish. Transportation to and from Antigonish was Mr. McKinnon ’ s responsibility except when Ms. Serroul was returning to Cape Breton and on those occasions could transport Tessa. [ 4 ] Basically the consent order provided the parties have joint custody with primary care to the mother.

Many of the clauses in the consent order outline plans and methods by which the parties are to improve their communication with each other and insure that this communication was appropriate and meaningful in relation to all aspects of Tessa ’ s life. Clause six requires both parties to participate in “ intense counselling sessions ” with a child psychologist. Clause 12 require that all doctor visits, results or information shall “ be shared by both parties ” . The detailed holiday

schedule was outlined in Clauses 17 and 18 for both parties. [ 5 ] The order which is nine pages in length, and very detailed, does not cover which parent shall have final decision making authority in the event of a child rearing dispute. [6a] The order sets out the following terms: PARENTING PLAN 1. The Applicant, Laura Serroul, and the Respondent, Hector Daniel MacKinnon, shall have joint custody of the child, Tessa Grace MacKinnon, born October 2, 2005.

The parties have entered into a joint custody arrangement on the basis that both parties acknowledge the importance of the other parent to the child and agree that: a. Each of them shall continue to have a full and active role in caring for the child and promoting a positive environment to meet all of their child’s needs both present and future;

b. Both parties hall exert their best efforts to work cooperatively in making future plans consistent with the best interests of the child and to amicably resolve any disputes that arise; c. the parents hall consult on all substantial decisions relating to the child, including, but not limited to, I. The child’s development; ii. Non-emergency health care; iii. Discipline; iv. Significant changes in social environment (including participation in activities); v. education; and vi. Religious upbringing. d.

In consulting with each other concerning major areas of the child’s life, the parties shall earnestly endeavour to jointly agree upon all major or important decisions in all areas of the child’s life. e. Each parent specifically agrees not to use his or her rights to frustrate, deny or control the relationship between the other parent and the child. f. Each parent shall exert every effort to foster a feeling of affection between the child and the other parent. g.

Neither parent shall do anything which would estrange the child from the other, injure the opinion of the child of either parent or impair the natural development of the child’s love and respect for either parent. 2. Laura Serroul shall have primary care of the child, Tessa Grace MacKinnon and shall maintain her primary residence. 3. In the event that Laura Serroul is required to be overseas by reason of her employment with the Canadian Armed Forces, the primary care shall be transferred to Hector Daniel MacKinnon, during any such periods of overseas posting. The regular

schedule shall recommence within 48 hours after her return. 4. The child shall be in the care of the parties as follows: Daniel Hector MacKinnon shall have the child in his care from Sunday at 7:30 pm until Wednesday at 7:30 p.m. commencing Sunday September 9 th , 2007, and continuing bi-weekly thereafter. Laura Serroul shall have the child in her care from Wednesday at 7:30 pm until Friday at 5:00 pm commencing Wednesday, September 12, 2007, and continuing bi-weekly thereafter. Daniel Hector MacKinnon shall have the child in his care Friday at 5:00 pm until Sunday at 5:00 pm commencing Friday, September 14 th , 2007.

Laura Serroul shall have the child in her care from Sunday at 5:00 pm until Sunday at 7:30 pm commencing Sunday, September 16 th , 2007, and continuing bi-weekly thereafter. COMMUNICATION AND EXCHANGE OF INFORMATION 5. There shall be full disclosure between the parties on important matters respecting the child’s welfare. They shall confer as often as is reasonably necessary to attempt to resolve any problem requiring joint consideration relative to this child’s welfare. 6.

For the purpose of improving communication between the parties to ensure that all communication is child centered and focused on the child’s best interests, the parties shall participate in intense counseling sessions with an agreed upon third party professional such as Child Psychologists, Dr. Reginald Landry or Dr. Julie MacDonald. 7. Both parties shall make every effort to improve communication between them to ensure that the child benefits from the input and involvement of both parents in her life and to maximize the involvement of both parents in all issues concerning the child. 8.

The professional counselor chosen by the parties to assist them with issues concerning the child shall have the ability to contact the parties’ individual counselors when considered necessary. 9. The parties shall also commence an exchange of communications via email on a regular basis and in particular during the periods that the child is in his/her care each party shall email the other party daily, or every second day, to provide the other parent with any relevant information on the child’s well being, needs and development. 10.

The parties shall share all important information concerning the child’s well being, development, and behaviour on an ongoing basis to ensure that the child has the benefit of a consistent routine in both households. The parties recognize the importance of consistency in both households and they shall attempt to maintain continuity of care and shared guidance and discipline between both households, which can be assisted through the joint communications to take place between the parties. 11.

Both parents shall be entitled to obtain information regarding the health, education and general well being of the children, including (but not limited to) daycare, school and medical reports. Both parents shall be entitled to obtain this information directly from the third party professionals involved in the children’s lives, the schools, hospitals or other institutions, but where either parent is unable to do so, the parent with the information shall provide it to the other. 12. All doctor visits and results or information shall be shared by both parties. 13.

The parties shall keep each other informed of significant events in the lives of each party which will affect or impact upon the child. 14. Neither party shall say or communicate anything negative directly or indirectly about or to the other parent in the hearing or sight of the child, nor shall they permit any third party to do so. 15. Both parties shall keep the other parent updated with their current telephone number, home address and contact information.

HOLIDAY

SCHEDULE 16. The regular

schedule shall be interrupted for the following holidays and the regular shall resume on the same basis that it was interrupted at the conclusion of the following holidays: 17. Laura Serroul shall have the following additional holiday time with the child: (

I) Victoria Day weekend (ii) Mother’s Day weekend (iii) Mother’s birthday (iv) Tessa’s birthday, odd years (

v) December 22, 2007 at 5:00 pm to December 25, 2007 at 2:00 pm (vi) December 26, 2007 for 3 hours (vii) December 28, 2007 at 5:00 pm to December 31,2007 at 5:00 pm 18. Hector Daniel MacKinnon shall have the following additional holiday time with the child: (

I) Father’s Day weekend (ii) Father’s birthday (iii) August civic holiday long weekend (iv) Thanksgiving Day weekend (

v) Tessa’s birthday, even years (vi) December 19, 2007 at 5:00 pm to December 22, 2007 at 5:00 pm (vii) December 24 th , 2007 for 3 hours (vii) December 25, 2007 at 2:00 pm to December 28, 2007 at 5:00 pm (vii) December 31, 2007 at 5:00 pm to January 3, 2008 at 5:00 pm 19. The transportation

schedule for Christmas access shall be as follows: (

I) Laura Serroul shall be responsible for the travel for the access on December 19 th and December 22 nd referred to in paragraph 18(vi). (ii) Hector Daniel MacKinnon shall be responsible to pick up the child for access on December 25 th and Laura Serroul shall pick up the child from Hector Daniel MacKinnon on December 28 th , 2007. (iii) Hector Daniel MacKinnon shall be responsible for travel for access on December 24 th and Laura Serroul shall be responsible for travel for access on December 26 th . (iv) Hector Daniel MacKinnon shall be responsible for the travel for the access on December 31 st and January 3 rd referred to in paragraph 18(viii).

20. During periods when access of Hector Daniel MacKinnon is interrupted by the long weekends of Laura Serroul, access for Hector Daniel MacKinnon shall be shifted 1 day ahead to commence Monday evenings at 5:00 pm until Thursday at 5:00 pm. 21. As the child is currently less than 2 years of age, the parties recognize that the current

schedule shall continue for the summer of 2007. The summer access with each parent shall increase, however, with the age of the child. The parties shall endeavor to review and agree upon an appropriate summer access

schedule for the child each summer. TRANSPORTATION OF THE CHILD 22. Daniel Hector MacKinnon shall be responsible to arrange for the pick up of the child for his access from Laura Serroul on Sundays and also be responsible for the return of the child on Wednesdays. 23. Laura Serroul shall then be responsible to arrange for the drop off of the child on Fridays and also be responsible for the pick up of the child from Hector Daniel MacKinnon at the conclusion of his access time on Sundays. 24.

The parties shall be free to make alternate arrangements, by mutual agreement, at any time respecting the transportation of the child and shall have the option of making arrangements to agree to meet half way. In the event any difficulties are encountered in this regard, the parties shall revert to the regular transportation arrangements as provided in paragraph 21 herein. FLEXIBILITY 25. The parties agree that they shall be fair and flexible with each other and shall accommodate reasonable requests by the other for flexibility or changes that may be necessary in the regular schedule.

Whenever possible, reasonable make up access shall be provided to the other parent when time is missed with the child. 26. The parties recognize the importance of special events with respect to the child’s extended family, birthdays, and special occasions. Each parent shall provide the other with at least one (1) week of notice for scheduled events such as family birthday parties, reunions or family events. 27. Both parties shall be entitled to reasonable telephone contact with the child during the child’s time with the other parent.

In addition, both parties shall be permitted to exercise access to the child through web camera contact which shall be put in place by both parties. MISCELLANEOUS PROVISIONS 28. The child shall not be exposed to secondhand smoke under any

circumstances, while in the care of either party. 29. Neither party shall consume alcohol or non prescription drugs while operating a motor vehicle with the child. Neither party shall impaired by alcohol or non prescription drugs while the chid is in their care. 30. The child shall not be left in the care of any third party individual who lacks the ability to provide appropriate care for the child. 31. Both parties shall be entitled to seek medical treatment for the child as may be required.

In particular, emergency treatment care will be the responsibility of the person who has care of the child at the time of the emergency. Notification shall take place as soon as possible to the other parent after any injury in incurred or any medical treatment is sought. Both parents shall only provide medication to the child as prescribed by a physician, unless it consists of over the counter medication. 33. Both parties shall have access to any and all drug plan coverage available for the child through either party’s employment.

The parent who actually incurs the costs of medications for the child shall be entitled to receive reimbursement from any available medical plans. Particulars regarding any plan coverage shall be provided to the other parent and any deductible regarding the child’s prescriptions shall be shared between the parties. Receipts for prescriptions claimed against the other parties’ medical plan shall be provided to the parent who can then submit them for reimbursement. 34.

The parties recognize that changes to the parenting plan may be required in May of 2008, on the basis of the expected posting of Laura Serroul with the Armed Forces. The parties shall make their best efforts to cooperate and successfully resolve any issues concerning changes to the parenting plan by reason of a future postings and they will attempt to resolve any issues or conflicts prior to asking the court to resolve the matter. 35. A Settlement Conference shall be scheduled for ½ day in February of 2008.

In addition the hearing dates currently scheduled for September 24 th , 25 th and 26 th , 2007, shall be rescheduled until March or April, 2008, to allow the parties an opportunity to resolve any such issues without the necessity of court intervention if possible. CHILD SUPPORT 36. Hector Daniel MacKinnon shall pay child support to Laura Serroul in the amount of $150.00 per month commencing September 30, 2007, and continuing on the last day of each month thereafter. 37.

Hector Daniel MacKinnon shall provide Laura Serroul with a copy of his Income Tax Return and Notices of Assessment annually on or before June 1 st of each year commencing June 1 st , 2008. 38. All support payments shall be made payable to Laura Serroul. Payments shall be forwarded to the Office of the director of Maintenance Enforcement, P.O. Box 803, Halifax, Nova Scotia B3J 2V2, while the order is filed for enforcement with the Director.

The current mailing address of Laura Serroul is 58 MacLellan Street, Antigonish, Nova Scotia, and the current mailing address of Hector Daniel MacKinnon is 4887 Grand Narrows Highway, Beaver Cove, Nova Scotia.

ENFORCEMENT 39. All sheriffs, deputy sheriffs, constables and peace officers shall do all such acts as may be necessary to enforce this order and for such purposes they, and each of them, are hereby given full power and authority to enter upon any lands and premises whatsoever to enforce the terms of this order. DATED at Sydney, Nova Scotia, on this 12 th day of September, 2007. ISSUED at Sydney, Nova Scotia, on this 12 th day of September, 2007.

CONSENTED TO: NASH BROGAN (signed) Counsel for the Applicant, Laura Serroul ELAINE GIBNEY-CONOHAN Counsel for the Respondent, Hector Daniel MacKinnon [ 6 ] The file contains correspondence from counsel confirming that time periods in paragraph 35 for the court review set for May 22 and 23, 2008 were no longer needed and a further settlement conference was sought. No further settlement conference was held. The only order under review is the consent order dated September 2007. [ 7 ] Mr. Hector Daniel McKinnon was to provide $150.00 a month for Tessa ’ s support as well as timely disclosure of his income tax.

Support payments were assigned to the Director of Maintenance Enforcement. [ 8 ] In June 2009 Ms. Serroul moved from Antigonish to North Sydney. The distance between her house and Mr. McKinnon ’ s house is approximately a 35 minute drive. In September 2009 Tessa began Grade Primary in North Sydney. By this time the parties had worked out an access arrangement based on a two week rotation as follows: 1. Seven days with mother (Sunday at 5 pm to Sunday at 5 pm) 2. Three days with father (Sunday at 5 pm to Wednesday at 5 pm) 3. Two days with mother (Wednesday at 5 pm to Friday at 5 pm)

4. Two days with father (Friday 5 pm to Sunday at 5 pm) [ 9 ] On this normal rotation the father has the child with him five (5) out of every fourteen (14) days. The parties are not disputing the portion of the consent order that stipulates the primary residence is with the mother. [ 10 ] In this matter Mr. McKinnon filed the first variation application seeking relief from child support, child support arrears and requesting undue hardship consideration. On October 26, 2009 Mr. McKinnon amended the variation application seeking custody and access. On November 2 nd Ms. Serroul replied to the two applications.

She applied for custody, access, child maintenance and costs. An amended conciliation record was filed with the court on March 2, 2010. The conciliation record indicates that the request by Mr. McKinnon for custody and access variations lacked specifics. [ 11 ] At that time Mr. McKinnon sought a decrease retroactively in his child support and total relief from arrears. The conciliation process ended with a request for court time. [ 12 ] Preparatory to hearing, a pretrial was held on November 2 nd , 2010 by phone. Ms. McCarthy, counsel for Ms. Serroul, Mr. McKinnon ’ s counsel Ms.

Morrow participated in the conference call which formed part of the record. That conference confirmed that the issues were: (1) child support and access; (2) that Mr. McKinnon believed he was too ill to work; (3) that no medicals had been provided to support this view.

(4) Ms. Serroul ’ s counsel indicated that she wished to maintain principal residence of the child with her.

(5) Mr. McKinnon wanted to maintain shared custody.

(6) There was discussion that transportation for access was a problem. [ 13 ] On November 12, 2010 the Court received the brief on behalf of Mr. McKinnon indicating “ Mr. McKinnon is withdrawing his application in relation to child custody and access. Mr. McKinnon is seeking an increase in access in the summer months as indicated in the current order as well as the ability to care for the child at times when the mother is away. ” . The focus of Mr. McKinnon ’ s concerns on November 12, ten days after the pretrial, was an increase in summer access. As well counsel in her memorandum referenced that Mr.

McKinnon was making efforts to be employed and that he was working with an employment support case worker and that a medical assessment from that office was attached to the pretrial brief. It is noteworthy that there were no attachments of any nature to Mr. McKinnon ’ s pretrial memorandum. [ 14 ] Mr. McKinnon ’ s memorandum set out that he was looking into a science upgrading program to allow him to train as a practical nurse through the Academic Connection Program. The memorandum outlines that Mr. McKinnon had sought medical assistance from Dr.

Malik in Sydney on November 3 rd , 2010 and that a report was expected from the doctor shortly. [ 15 ] One day of court time was requested and the matter was heard on November 29, 2010. At that time the Court pretrialed with counsel the ambivalence between Mr. McKinnon ’ s trial brief of November 12 th which indicated he wished to take retraining to become an LPN which conflicted with the pretrial conference held ten days prior when the Court was informed that Mr. McKinnon was too ill to work. Counsel for Mr. McKinnon indicated that Mr.

McKinnon was examining upgrading and retraining that would make him employable recognizing that he had a medical condition. Prior to hearing evidence the Court confirmed on the record the fact that there was no medical evidence available and no doctor under subpoena to give evidence on behalf of Mr. McKinnon. [ 16 ] It was clear at the commencement of the hearing that Mr. McKinnon sought increased summertime access to care for Tessa when Ms. Serroul was working and consideration in relation to a reduction in child support as well as a variation to remove existing arrears. Otherwise Mr.

McKinnon wished the consent order terms to continue. [ 17 ] Ms. Serroul ’ s application remained unaltered. As she sought substantial variation to the order she became the applicant in the matter for the purposes of examining a reduction in the access time Tessa spent with her father. [ 18 ] In essence, the mother put forward that the current rotation in the middle of the school week should not continue because now

[ 18 ] In essence, the mother put forward that the current rotation in the middle of the school week should not continue because now Tessa was attending school. When the order was agreed to Tessa was two years old. Ms. Serroul suggests that the appropriate access for Mr. McKinnon is every second weekend from Friday to Sunday. If the weekend is a long weekend then the father shall have that Monday as well. Ms. Serroul maintains that the time lost in travelling between the two residences affects the quality of the access. Moreover Ms.

Serroul maintains that the party ’ s continued failure to improve communication in the matter contemplated by the consent order constitutes a substantial change from the original order. She describes incidents of conflict between the parties, conflict which at times involved calling in the assistance of local police officers. [ 19 ] Ms. Serroul ’ s main problems and her wishes to change the order stem from two sources. Number one, very poor communication between she and Mr. McKinnon.

Number two, the disruption of Tessa ’ s school week because Tessa spends part of the school week with the mother and part with the father. Also the mother seeks an addition to the original court order where she wishes to have the ability to make final decisions for Tessa in the event the parties cannot reach a consensus. [ 20 ] Given the lengthy pretrial concerning the competing applications of the parties and the status of an alleged Children ’ s Aid investigation the matter did not start until approximately 11 o ’ clock on the 29 th of November and proceeded through the full day.

At that time the Court heard from Laura Serroul and Blaine McKinnon. As the second available date was not until May, 2011 counsel accepted a double booking set for January 20, 2011 for a full day. Shortly before January 20, 2011 the Court was advised that one counsel was ill and could not attend. The matter was referred to Scheduling to secure another date and the trial reconvened on June 13 th for a full day at which time the Court heard from Hector Daniel McKinnon, John Janega, Intake Supervisor for the Department of Community Services, and James Dunphy, Laura Serroul ’ s boyfriend.

The evidence was completed on that second day and it was agreed that written submissions would be provided. Given the length of time between the first and second day of hearing (November to May) counsel were advised to provide their written submissions two weeks after they received the November 29 th transcript which was provided by the Court. At that time the Court instructed counsel to provide an actual chart of the access each party sought. Transcripts were provided to counsel on July 5 th , 2011. Ms. McCarthy ’ s post trial submissions were received on July 25 th and Ms. Morrow ’ s on July 27 th .

Evidence: Ms. Laura Serroul: [ 21 ] Ms. Serroul gave evidence asserting that her problems of communication with Mr. McKinnon consisted before and after the consent order. She indicated that she did see Dr. Landry on a couple of occasions in order to work towards better communication but further appointments were not made for her and so this route was not followed. She gave evidence that when she discusses matters with Mr. McKinnon he becomes angry and they are not able to discuss any issues thoroughly.

In relation to his emails she indicates that he does not discuss what Tessa actually does during the day when she is with her father and he does not provide sufficient information as to activities in the school during the time Tessa is with him. Ms. Serroul uses the confusion with the fluoride slip as an example of miscommunication that can affect Tessa given the split in access during her school week. [ 22 ] Ms. Serroul does not wish to continue to communicate through emails, or at least not with the frequency that she feels she is required to do so, that is, on a daily basis. [ 23 ] Ms.

Serroul believes that the restricted access time to the father is necessary so that Tessa will be with her every day during the school week and two of the four weekends per month. She believes that Tessa is tired when she returns from Mr. McKinnon ’ s house. She believes Tessa needs a school routine where she leaves the same house each day. [ 24 ] Ms. Serroul outlines the problems with Mr. McKinnon to include the bickering emails between them, that she and he cannot talk, they cannot discuss Tessa ’ s sleep, menu issues or discipline. She believes that she knows nothing about the father ’ s routine with Tessa.

She maintains that Mr. McKinnon will not discuss routines at all with her. [ 25 ] Ms. Serroul was very critical of Mr. McKinnon for failure to clarify that he signed the school slip permitting Tessa to have fluoride treatment. She advised that Mr. McKinnon told her he signed something but she didn ’ t know that it was a fluoride permission slip. She did agree that they were able to figure out that he had actually signed a slip relating to the fluoride rinse at school.

Her concern as stated in the evidence was, she didn ’ t know that her daughter had actually had the treatment and stated: “ I didn ’ t even know she ’ d

have a swish, and a swallow and spit and I asked her did you spit...I didn ’ t get notified and that ’ s my point ” . Ms. Serroul admitted on cross examination that she did not tell Mr. McKinnon that she was taking Tessa to the dentist as required by the court order. She also admitted that she did not tell Mr. McKinnon that she was changing Tessa ’ s general practitioner, although that was also required in the consent order. [ 26 ] When questioned by the Court as to whether or not it was unwise for a child to have two doctors where Mr. McKinnon did not know there was another physician, Ms.

Serroul reluctantly agreed that the child should only have one physician. [ 27 ] Ms. Serroul indicated that she did not place Mr. MacKinnon ’ s name on the school registration form because she thought he could attend the school and do it himself. She was not able to explain why she placed her cousin on the school registration form as the person to contact should Tessa have an emergency. When asked how she would feel if Mr. McKinnon had filled out Tessa ’ s school registration form in the same manner she indicated “ I would probably wonder why he did it, I guess ” . [ 28 ] Ms.

Serroul was asked to explain the tone of her response to Mr. McKinnon ’ s request for information on Tessa ’ s first day in school. She responded in part: “she had a great time, she met one little girl, your plan is to continue in this consent order until it gets changed. As for what Tessa needs next week I have provided it for her while in my care you provide whatever you think is necessary while in your care. Exercise your right to third party information from the school. I am not in agreement with this order any longer. Contact your lawyer immediately,” (Exhibit 3C). [ 29 ] The Court asked Ms.

Serroul what prompted the tone and content of her response to Mr. McKinnon when Mr. McKinnon ’ s query was neutral on nature. “Court: That was a great finish to Tessa’s first day in school wasn’t it? Answer: Yes, but I did answer how she was doing and then. Question: What provoked..what happened..am I missing an email where he said something to you? Answer: I don’t know. Question: That caught you off guard or. Answer: Well he always.

Question: It seems everyone is being polite to everyone and then all of a sudden at 9:13 at night on her second or first day of school she’s saying ‘exercise your right to third party information, I am not in agreement with this order any longer contact your lawyer immediately.’ Answer: Well first I did answer his question of how she was doing. Question: Yes, I read.

Answer: And then he said ‘first and foremost which is always how the argument start and I guess I reacted to that and we, we have always been discussing changes and he didn’t want to change and then he’s asking me what she needs, it is like she doesn’t need anything but clothing, everything is provided. She needs...I mean he had her a backpack and a lunch bag, really there was nothing much else she needs. Question: But why not just say that? Answer: In hindsight I probably should have. Question: ‘Exercise your right to third party information.’ Why not just answer the question?

Answer: I should have but he doesn’t trust me he thinks I am holding back information, he thinks I am not telling him anything or everything so I mean... [ 30 ] On cross examination when presented with Exhibit No. 7, an email from Mr. McKinnon dated November 2, 2010 Ms. Serroul did agree that the one email set out below was information that she would not have known if not from Mr. McKinnon ’ s communication. This email is as follows: “(November 2, 2010) Tessa had a sore throat today since in picked her up Sunday.

The last few days would have kept her home if it were not for the fact that Tessa was fine in the morning and eating well. Today and yesterday Tessa had a cinnamon melt at McDonald’s. I had her dressed warm today. Ms. Burton says Tessa was feeling chilly...the kids wait until 8:30 a.m. to go into class. The school’s first letter said kids were not to be late, now that the weather is colder the new letter says not to be too early. Tomorrow I will be dropping her off a little later. I can’t make tonight’s meeting, I want to see how Tessa is feeling. Thank you for your change of heart.

It was a little long the last few weeks waiting around between 2 pm and 5 pm to bring Tessa to Tim Horton’s for a drop off. You can pick Tessa up at 2 pm and I will do likewise on Friday.” [ 31 ] During testimony Ms. Serroul advised that she had two copies of Tessa ’ s first report card but made no effort to provide one copy to Mr. McKinnon prior to the parent teacher meeting. She gave no reasonable explanation for failing to supply information to Mr. McKinnon while complaining Mr. McKinnon does not provide her with information. Mr. Hector McKinnon : [ 32 ] Mr.

McKinnon gave evidence that the consent order that he originally sought to vary remain the same. However, he wanted defined substantial summer access. He wishes to have Tessa in his care when Ms. Serroul is called out to work. As well he requests the order to be altered to allow him to pick up the child midafternoon instead of five p.m. [ 33 ] Regarding summer access Mr. McKinnon requests that he have Tessa in his care on a two week rotation. Ms. Serroul wishes summer access for Mr. McKinnon be one extra night every second weekend. If he is working Ms. Serroul proposes Mr.

McKinnon have two weeks during the summer. [ 34 ] Currently summer access is per clause 16 and 21 of the consent order. Clause 16 and 21 provide: 16. The regular

schedule shall be interrupted for the following holidays and the regular shall resume on the same basis that it was interrupted at the conclusion of the following holidays: (holidays listed on page 7).

21. As the child is currently less than 2 years of age, the parties recognize that the current

schedule shall continue for the summer of 2007. The summer access with each parent shall increase, however, with the age of the child. The parties shall endeavor to review and agree upon an appropriate summer access

schedule for the child each summer. [ 35 ] Mr. McKinnon advised that in his view the email communication does work and he believes he provides emails regarding Tessa ’ s time with him on a daily basis. Mr. McKinnon tendered a number of emails to support his view that, most of the time, communication by email is not a problem. [ 36 ] Mr. McKinnon stated he has a routine that he follows daily when Tessa is in his care. He advises he and Tessa attend church when she is with him on Sunday. [ 37 ] Mr.

McKinnon was unable to advise why he never attended any of Tessa ’ s swimming classes even though he was able to attend. Mr. McKinnon wished to attend her skating at school but was not comfortable doing so if Ms. Serroul ’ s boyfriend, Mr. Dunphy, was in attendance. He views this problem as solved if Mr. Dunphy does not attend school skate. Mr. McKinnon gave no reason why he is uncomfortable if Mr. Dunphy attends Tessa ’ s extracurricular with her mother. [ 38 ] Mr. McKinnon wishes the Court to examine the fact that he never misses access with Tessa and is able to follow a

schedule and make sure that Tessa is in school on time. He provides her clothes and lunches. He provides a bedroom for her which is appropriately furnished. He advised that she does not sleep in his bed unless she has had a bad dream. [ 39 ] Mr. McKinnon advised that the Tim Horton ’ s New Year ’ s Eve (December 31, 2010) disagreement with Mr. Dunphy was not caused by him but he wishes it had not occurred. [ 40 ] Mr. McKinnon outlines in detail the difficulty he has with the exchange of alternate years for Tessa ’ s birthday parties and emails were tendered in support of his position. [ 41 ] Financially Mr.

McKinnon advised the Court that he was obligated with the physical care and support of his mother until October of 2008 which impeded his ability to work. He advised that he has made tentative plans to attend Marconi Campus in the fall (2011) to take courses prepatory to laboratory technician training. Mr. McKinnon admits that no vocational assessment has been done to date and he has not yet had his meeting with the personnel responsible for admission to an upgrading program.

His plans for September 2011 are to enroll in school but he had not, as of June 13, 2011, actually prepared or filed an application for any course. [ 42 ] Furthermore Mr. McKinnon believes that he is in a state of ill health and has been for an unspecified period of time. He maintains that one physician has indicated that he ’ s incapable of working due to his back and other health problems. Mr. McKinnon stated his inability as being unable to stand for any long periods of time. Mr. McKinnon is not taking any prescriptive drugs for his back problem; he advises he uses over the counter Tylenol.

Any other medications he believes will interfere with his epilepsy. Mr. McKinnon has not seen a physiotherapist for his back since October 2008. Mr. McKinnon believes that a medical report was tendered in court to support his inability to work. [ 43 ] Mr. McKinnon was unable to provide a job search but he did indicate that he made a phone call to a local call centre to see if he could secure part time employment. He did not examine whether or not the call centre would permit him to be employed full time and simply change his physical position from time to time to alleviate discomfort. [ 44 ] Mr.

McKinnon appears to understand that Ms. Serroul may have difficulty with the fact that he ’ s not paid meaningful maintenance in a three (3) year period, however, he believes he did contribute by providing transportation for Tessa to travel back and forth from Antigonish when Ms. Serroul was attending St. F.X. University.

[45] Mr. Blaine McKinnon, Hector McKinnon’s cousin, gave evidence. Mr. Blaine McKinnon was a probation officer for 30 yearswith Correctional Services. He believes, based on his own observations, that Mr. McKinnon is an attentive father and enjoys his timewith Tessa. He has witnessed Mr. McKinnon’s frustration with communication regarding access. Mr. Blaine McKinnon confirmed thatMr. Hector McKinnon did ask him in the past year or so to acquire materials for him in relation to the topic of vocational advancements. [46] The Court heard evidence from Mr.

John Janega, Intake supervisor with Department of Community Services in Sydneyregarding a referral from Mr. McKinnon to investigate whether or not there was any sexual impropriety between Mr. Dunphy and Tessaand to examine whether or not the child was at risk of emotional harm. The referral was received in November 2010, investigated andfound to be unsubstantiated. [47] Mr. Janega advised that after Mr. McKinnon’s referral, Ms. Serroul made a referral that Mr. McKinnon was makinginappropriate comments to Tessa. No action was taken on that referral. [48] The Court heard evidence from Mr. Dunphy, Ms.

Serroul’s male friend. Mr. Dunphy does not live with Ms. Serroul but theyhave been in a relationship for approximately a year and a half. Mr. Dunphy indicated that when he first met Mr. McKinnon on anearlier occasion he introduced himself, advised that he was in a relationship with Laura Serroul and that he was not a pedofile. [49] Mr. Dunphy describes the Tim Horton’s incident on December 31, 2010 where he observed Mr. McKinnon in an agitatedstate. Mr. McKinnon told Mr. Dunphy he would “get yours...” and that Mr. Dunphy was stupid. During this exchange Mr.

McKinnonused foul language; all the while he was holding Tessa by the hand. Mr. Dunphy advised that he gets along well with Tessa. [50] Mr. Dunphy advised that Mr. McKinnon’s referral to Children’s Aid almost “ruined” his life. However, he has no problemengaging in counselling although he is nervous in relation to Mr. McKinnon. Statutory Law: [51] The statutory law applicable in this particular case is s.37(1) and 18(5) of the Maintenance 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. Case Law: [52] The case law in relation to a variation of an existing order is found in the decision of then Justice McLaughlin in the SupremeCourt of Canada decision of Gordon and Goertz. Gordon v. Goertz (1996), (SCC), 134 D.L.R. 321 outlined a two-tiered test to determine whether an existing custody arrangement should be altered.

The party seeking the variation in custody mustdemonstrate a material change in the child’s circumstances that was not foreseen or could not have been anticipated at the time of theoriginal custody order. If a material change has been proven, then the custody arrangement can be reviewed. The Supreme Court re-affirmed that the best interest of the child is the appropriate and only test at this second stage. The court outlined a number of factors forjudges to consider in determining the child’s best interests (p. 340) 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 interest of the child in all the circumstances, old as well as new? [53] Depending on the determination made on material change, the Court may then consider the decision of Foley v.

Foley(1993) (NS SC), Carswell NS 328 (SC) (para 16) where Justice Goodfellow outlined pertinent factors that a courtshould consider in making a best interests determination. Given the decision I have made, reference to these factors is not necessary. Findings: [54] I find that Ms. Serroul has proven on a balance of probabilities that she is on military disability, however, is able to work everysecond weekend and some additional days on an “on call” basis. Ms. Serroul is also studying online to enhance her current degree.

Sheis able to provide physically for Tessa and is actively involved in Tessa’s school and extracurricular activities. Ms. Serroul also managesto provide for all of Tessa’s financial needs assisted only by small and infrequent sums garnisheed from Mr. McKinnon’s income. [55] With the exception of the recent New Year’s Eve incident and the referral to Children’s Aid Society, Mr. McKinnon, I find, has been appropriate in his communication with Ms. Serroul. Ms. Serroul’s expectations of meaningful communications are notrealistic. Ms. Serroul is unable to view her own conduct where it is negative.

Examples are: 1) her overreaction to the fluoride slipincident, 2) her failure to provide him with Tessa’s primary report card in a timely manner, 3) her failure to provide the school withfundamental information that Mr. MacKinnon was the parent of Tessa and a person to be contacted in the event of an emergency, 4) herretaining a new and second physician for Tess without informing Mr. MacKinnon. [56] I have reviewed the tendered emails from both parties as exhibited and find the antagonist who causes the dispute to intensifyis Ms. Serroul and not Mr. McKinnon. [57] I find as well that Mr.

McKinnon has a solid relationship with his daughter. I find he exercises his access promptly and is ableto take care of all of Tessa’s physical needs. I find Mr. McKinnon has made himself unable to properly provide for Tessa financially. I

find that Mr. McKinnon underestimates the contribution made by Ms. Serroul to fill the voids that he may have been able to fill himself had he a mature course of training or working as is expected of him when he has a dependent. [ 58 ] I find that Mr. McKinnon has unreasonable expectations of Ms. Serroul where he expects her boyfriend not to attend Tessa ’ s school skating, yet while he picks up Tessa from swimming he does not attend her swimming when he would be able to do so. [ 59 ] Shortly before this hearing commenced, Mr.

McKinnon reported to the Children ’ s Aid Society that possibly his child was at risk of sexual or emotional harm. He referred that Mr. Dunphy may place Tessa at risk of sexual harm. I find this referral to be totally unacceptable. It was not supported by the investigation by Children ’ s Aid nor, more importantly, was it ever explained by Mr. McKinnon to the Court as to why such a course was taken. If Mr. MacKinnon felt there was such risks these ought to have been addressed in his evidence.

I would have expected him to explain his actions, eg. why he felt his daughter was at risk or why he believes she is no longer at risk. [ 60 ] In relation to the incident at Tim Horton ’ s on New Year ’ s Eve (2010), I accept Mr. Dunphy ’ s version of events. I find Mr. McKinnon became angry in manner and speech in Tessa ’ s presence, without cause. [ 61 ] I do accept Mr. Dunphy ’ s concern with Mr. McKinnon given that Mr. McKinnon did report him to the Children ’ s Aid Society for investigation as to whether or not there is substantial risk that Tessa was emotionally or sexually abused by Mr. Dunphy.

I accept that Mr. Dunphy for his own reasons wishes not to be in the presence of Mr. McKinnon. His concerns in that regard are valid at this time. Maintenance: [ 62 ] Pursuant to the order Mr. McKinnon was to provide maintenance to Ms. Serroul in the amount of $150 a month. He has not made any payments voluntarily since August of 2008. He asks that the amount be reduced and that the arrears be extinguished. I find as a fact that Mr. McKinnon has not provided any reason for his failure to comply with the order. Mr. MacKinnon has not provided a medical report from any physician outlining his inability to work.

Exhibit No. 10, a letter from Ms. Candee McCarthy to Ms. Coline Morrow does reference that she did receive a medical assessment document possibly from someone called Shelly Johnson. Ms. McCarthy indicates she only received part of that report. I find a medical report was never tendered and the author of the documentation referenced in Exhibit 10 was never identified as being able to give opinion evidence. No evidence was provided to support Mr. McKinnon ’ s position that he suffers disability or disease preventing him from full time employment. [ 63 ] MacGillivray v Ross [2008] N.S.J.

No. 506 provides a review of case authorities and a legal analysis for imputing income per s.19 of the Guidelines. Based on MacGillivray and the case law referenced therein, I find Mr. McKinnon on a balance of probabilities is intentionally unemployed. I find Mr. McKinnon has failed to satisfy the court on the balance of probabilities that there is any illness that disables him from working full time. [ 64 ] I find Mr. McKinnon has not provided any evidence in support of his inability to work despite requests by opposing counsel to provide same.

He has provided no evidence whatsoever for his failure to find meaningful employment to support his dependent child and meet his obligations. I find as a fact that Mr. McKinnon has been given ample opportunity to provide medical evidence to support his position that he can only work at certain positions or only work part time; however, he has failed to provide such evidence which I am satisfied was requested prior to trial, discussed during pretrial prior to trial and not provided or prepared between the six month lapse in completing this matter. I find Mr.

McKinnon has had ample opportunity to obtain and secure medical evidence and has totally failed to do so. [ 65 ] I find based on the evidence provided that Mr. McKinnon has not during the preceding four years availed himself on any job retraining that may accommodate his physical ailments, if such ailments do exist. I find Mr. McKinnon has not availed himself on any educational program, even up to the date that he gave evidence on June 13, 2011. [ 66 ] For the purpose of clarity, Mr.

McKinnon owes $150 per month from September 30, 2007 to the present, minus any payments referenced in Exhibit No. 13 and minus any subsequent amounts garnisheed from Mr. McKinnon. I acknowledge that Mr. McKinnon is currently in receipt of social assistance; however, based on the evidence provided Mr. McKinnon should be employed.

[ 67 ] Mr. McKinnon shall satisfy the arrears in a six month period or in accordance with a

schedule achieved between Mr. McKinnon and M.E.P., to be achieved within 60 days. He shall not sell or encumber his real property until arrears are satisfied by payment in full or an accepted payment regime through M.E.P. If Mr. McKinnon fails to comply with these terms Ms. Serroul shall have judgement for the full sum of arrears calculated up to the date of default. [ 68 ] In the post trial submissions received by Mr. McKinnon ’ s counsel on July27, 2011, counsel asked if the court was open to re- examining whether or not Mr. McKinnon was actually involved in a program in the fall of 2011.

Given the finding made that Mr. McKinnon has not provided any medical reasons for his inability to seek employment in a meaningful manner and to provide to the best of his abilities, the Court finds that there is no reason to eliminate any arrears. Moreover it is not the Court ’ s role nor should it be to oversee whether or not Mr. McKinnon has finally committed to some form of vocational improvement in the fall of 2011. I find there is no basis to hear additional evidence on Mr. McKinnon ’ s vocational pursuits. [ 69 ] Summer access was not defined in the consent order.

Summer access was to expand as Tessa grew but the parties cannot agree. I find it is in Tessa ’ s best interest that access be set at a two week rotation with both parent ’ s responsible for Tessa ’ s attendance at her extracurricular activities. [ 70 ] Mr. McKinnon is driven by his fear that Ms. Serroul is trying to block him from being a father and parent. Ms. Serroul believes that Mr. McKinnon will continue to undermine her and send her emails which she considers to be inappropriate, resulting in unacceptable stress to her in her day to day functioning. These are not matters a court can correct easily.

If the situation was not potentially workable a change in custody would be appropriate. These are matters that must be dealt with in intense counselling where the parties commit to becoming mature parents. [ 71 ] I find the parties never really had a close relationship, at least not a relationship where they cohabited and co-parented Tessa. They have been involved with court applications since May 26, 2006. These parents have provided Tessa with two homes and this has been her reality for years.

Despite the friction between the parents Tessa appears to do well. [ 72 ] I find as a fact that the consent order that the parties agreed to themselves on September 2007 has never been followed by the parties. In particular, communication problems were addressed when the consent order was issued. These problems existed since separation. The parties agreed that they needed intense counselling, yet neither party engaged in intense counselling.

Now in October 2011 it is apparent from the evidence that the parties ’ problems with each other will continue unless and until both of them engage in the intense counselling that they agreed they needed four years ago. [ 73 ] It is significant to note that Ms. Serroul ’ s answer to the question of how to bring peace to this matter is to restrict Mr. McKinnon to very set and limited time periods with his daughter. Mr. McKinnon ’ s answer to the problem is that he be provided more flexible access with his daughter and especially during the time periods that Ms. Serroul is working.

Both parties have shown a very marked inability to self reflect on their own negative behaviours. Given that I find that they have not followed the course of action that they prescribed for themselves four years ago, a course of action I find they really need, I am left to make a clear conclusion on a balance of probabilities that there is no reason to vary the consent order, there is no material change proven.

What we have before us is simply an inability or an unwillingness to follow a carefully crafted order which, if it were done four years ago, most likely the parties would not be in court now arguing about communication. [ 74 ] I recommend that given Mr. McKinnon ’ s unfortunate history with Mr. Dunphy that pickups and drop-offs should be done without Mr. Dunphy ’ s presence until counselling is completed or at least for a one year period. This recommendation is based solely on Mr. McKinnon ’ s inappropriate actions towards Mr.

Dunphy. [ 75 ] I have considered whether or not a variation is justified to require which of the parties will have final decision making authority or whether a third party ought to have final decision making authority. I find that the major point of focus in this case is the parties ’ inability to talk to each other with respect. I would recommend that the emails be reduced to once a week and only more frequently when a situation arises such that one party must contact the other. I would recommend as well that phone communication commence as soon

as the elected therapist deems that such is feasible. It is clear after hearing two days of evidence that neither party can examine their negative conduct, and since they cannot see the error of their ways and how that affects Tessa, they haven ’ t moved forward. Ms. Serroul ’ s sensitivity to everyday words used by Mr. McKinnon and Mr. McKinnon ’ s lack of regard for Ms. Serroul ’ s need for order and determined schedules have been the fundamental problems given rise to this litigation.

Therefore, I have concluded that it would be inappropriate to give either party final decision making authority, nor would it be appropriate to appoint a third party mediator where as stated earlier the course of conduct for these parents was chosen by these parents four years ago. It simply was not followed. [ 76 ] I find Mr. McKinnon has applied to court or to the Minister of Community Services to intervene. While it is essential for these parents to work on the communication problem it is also essential that Mr.

MacKinnon learn to recognize what is a proper intervention and when it is necessary. [ 77 ] I have given my decision in relation to the failure to prove a material change of circumstances of a nature that it would be in Tessa ’ s best interest to change the existing court order; it is not necessary to provide a detailed Foley examination of parenting abilities. It is clear that both parties have a great deal to offer Tessa. It is apparent they both love her dearly. There are problems between them that may in the future cause it to be in Tessa ’ s best interest that a different order be made.

That is not the circumstance today. While the Court must be preventative in examining emotional harm to Tessa if her parents continue to bicker at the immature level they have to date; it is reported that Tessa is doing well in the areas reported. It is not in Tessa ’ s best interests now to change her day to day life which takes place in two homes. She will no doubt do even better once her parents engage in intense counselling to enable them to be mature parents.

This will require them to realize that they do not have to necessarily be fond of each other, they have to realize they are business partners in the business of raising Tessa so that she can achieve her full potential in an optimal or at least appropriate environment. ________________________ M. Clare MacLellan J.