M.D. applicant v. N.R., 2022 NBKB 220

M.D. v. N.R. - 2022 NBKB 220 FDC-108-2020 COURT OF KING'S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF CAMPBELLTON BETWEEN: M.D. applicant -and- N.R. respondent Subject: 1. Decision making-responsibility and parenting time for 14 and 16 years old 2. Child support variation denied for lack of diligent prosecution BEFORE: The Honourable Mr. Justice Larry Landry AT: Campbellton, N.B.

DATES OF HEARING: August 30, 31 and September 1 st , 2021, May 9-13 and 19, August 19, September 6, 2022 (plus other case management hearings) DATES OF FILING OF LAST AFFIDAVITS: September 28 and October 4, 2022 DATE OF DECISION: November 10, 2022 COUNSEL: Gabrielle Doucet for the applicant M.D. Rita Godin, K.C., for the respondent N.R. DECISION Landry J.:

[ 1 ] M.D. and N.R. are the parents of two teenagers, A and T, ages 14 and 16. The main issue here is to decide if the youngest one should continue to travel from Dalhousie to Halifax to see her father roughly every three weeks or even move to Halifax to stay with him. [ 2 ] The parents separated in February 2009, when the children were a little less than 1 and 3 years old. At the time, the family was living in Halifax. [ 3 ] The parties are divorced since May 2013.

In April of the same year, a judge of the Nova Scotia family court granted them joint custody of the children and most of the parenting time to the mother. The judge also allowed the mother to move permanently to Dalhousie. The father could see his daughters on weekends once every three weeks, plus six weeks in the summer and at other times during holidays. It remained like this for more than seven years. [ 4 ] In the fall of 2020, the mother filed an application and a motion to obtain full decision-making responsibility and exclusive parenting time.

This was allocated ex parte to the mother on an interim basis by Ferguson, J. of this Court. All physical access with the father was cancelled. [ 5 ] The oldest daughter still refuses to see her father. Parenting time with the youngest resumed in the summer and fall of 2021. [ 6 ] The parties’ requests to this Court have changed considerably since the filing of the Notice of Application in November 2020 and Responding Document in August 2021.

At first, the mother wanted to terminate all access between the father and the children, and the father was asking that both daughters move with him in Nova Scotia, with full decision-making responsibility to him. [ 7 ] On the last day of the hearing of the application, the parties told the Court that they had come to an agreement as to T and that she will not have to see her father unless she decides to do so. [ 8 ] Parenting time will continue with A. Although the mother does not ask that she sees the father less often, she wants A to decide for herself.

During his testimony, on May 12, the father said he wanted A to stay with her mother and filed a proposed parenting plan for the time he would like her to spend with him in Halifax. But whatever the situation will be, the father stated that parenting time should not be decided by the child. [ 9 ] Finally, out of the blue, in his post-trial brief filed on July 14, the father is now asking that A move with him in Nova Scotia.

Jurisdiction and variation [ 10 ] This application has been filed under the Divorce Act 1 and this Court is being asked to vary an order 2 of the Supreme Court of Nova Scotia dated April 29, 2013. The order has legal effect across Canada and can be varied by this Court in accordance with the Act 3 . [ 11 ] Before I can vary an existing parenting order, I must usually be convinced that there has been a change in the circumstances of the child since the last order 4 . But here, the parties agree that changes have occurred since the 2013 order, and both are asking this Court for a variation.

With the consent of the parents, I agree that I can vary the order, if it is in the best interests of the children. [ 12 ] It must also be remembered that I am looking at the 2013 Nova Scotia order and not the ex parte orders of Ferguson J. or those I rendered since then. I am not bound by any of those orders rendered since November 13, 2020,

neither by the conclusions of Ferguson J. or even mines. Those were interim orders meant to address the situation of the parties and the children between the filing of the Notice of Application and this decision. _______________________________________ 1 Divorce Act , R.S.C. 1985, c. 3 (2 nd Supp .). 2 Trial Record –

Part 2, pages 176-187. 3 Divorce Act , s. 20(2) and (4) . 4 Divorce Act , s. 17(5) . [ 13 ] Of course, be it for an original parenting order or for a variation, one requirement matters: the Court shall only consider the best interests of the children 5 .

Section 16 of the Divorce Act shows a list of factors to be considered but other relevant factors can also come into play. Furthermore, the analysis is sometimes different for each child, and this is the case here, as their circumstances are different.

My primary consideration for T and A shall be their physical, emotional and psychological safety, security and well-being 6 . [ 14 ] Now, before addressing the fact situation and the issues to be resolved, I must say that at the end of this trial, which lasted eight days and for which over a thousand pages of documents were filed with the Court, the parties agreed more with each other than at the outset. I don’t know if they realized it, though. Then, as I mentioned earlier, the father changed his position in his post-trial brief.

What brought the termination of all access on December 1 st , 2020 [ 15 ] Up until December 2020, the 2013 order was followed, for the most part. Change of scheduled parenting time with the father frequently happened, but the children were seeing him regularly, as per the order. During the first year of the pandemic of Covid-19, after the March Break of 2020, the parenting time with the father was stopped until the summer. Then, his daughters went to see him in Halifax for two weeks in July and two weeks in August.

The next scheduled parenting time was supposed to be for the Thanksgiving weekend, in October. _______________________________________ 5 Divorce Act , s. 16 . 6 Divorce Act , s. 16(2) . [ 16 ] However, a few days before the planned trip to Halifax, T started to panic, telling her mother she did not want to go and that she would run away if she had to go. She wanted to call child protection services, to which her mother answered that she could do that if she wanted. [ 17 ] T, who was 14 at the time, did in fact contact child protection services and they took her call very seriously.

T and A were met in school by social worker Camille Blaquière, who testified at the hearing of the application. T talked to her about emotional and physical abuse going on at her father’s place. She had suicidal thoughts and was ready to kill herself if she would be going back there. Ms. Blaquière also met the mother and told her that social services could intervene if she let the children go to Nova Scotia.

She advised the mother to file an action in court. [ 18 ] M.D. immediately took those steps, cancelled the Thanksgiving visit to Halifax and filed her Notice of Application shortly after, which eventually lead to the December 1 st , 2020 ex parte order. All access between the father and the children were terminated by Ferguson J. and full custody granted to the mother, all on an interim basis.

The oldest daughter T [ 19 ] T’s situation is quite complex, but the parties thought they had come to an agreement as to how to deal with her mental health and refusal to see her father. Exceptionally, she did testify at the hearing, as per psychologist Kimberly Wilson’s recommendation 7 . Like all other members of the family, she was also assessed by psychologist Olga Komissarova, who prepared a report 8 and testified as well. [ 20 ] Ms. Komissarova opined that T had borderline personality functioning or traits, but that it is not a full-blown disorder.

She added that it could become a full borderline personality disorder if the attachment continues to be broken and the relationship is not restored with the father. She also talked about a possible post-traumatic stress disorder. [ 21 ] I found T to be a very intelligent young woman when she was on the stand and she appeared to be truthful. However, Ms. Komissarova described her as being very emotional and sensitive. She also said that she will have difficulty adapting to relationships, including with her father, and that teenagers with borderline traits tend to cut off the parent no longer in the family.

It is often that they will take one side in cases like this, where the child has one main provider. [ 22 ] Olga Komissarova also explained that for teenagers with borderline personality features, everything can be blown out of proportion, when there is a perceived threat. They always anticipate danger. The psychologist also stresses the importance of therapy, and that dialectical behaviour therapy is very effective. However, she also added that parents need to be _______________________________________ 7 Report of Kimberly Wilson, L.

Psych., August 27, 2021, exhibit A-1. 8 Report of Olga Komissarova, MPsy, December 20, 2021, exhibit R-2. involved with therapists as well, so that they can learn about how to deal with a child with a complex mental health condition like T. [ 23 ] On the last day of the hearing, the parents took the morning to discuss a plan for T and came to a so-called agreement. This plan provided for treatment or therapy for T and both her parents. It would also give T the power to decide by herself if and when she wants to see her father again. An order was submitted and signed in that regard after the hearing.

No parenting time is allocated to the father, although it is not formally terminated, as T could decide to see him when she wants. [ 24 ] However, the order that I signed was submitted without the consent of the lawyers for both parents. Further hearings had to be held. The father argued that the signed order did not reflect the agreement of the parties. Eventually, both agreed that the order should be set aside and argued on the unresolved issues.

Parts of it were still agreed upon. [ 25 ] The main part of the parenting order for this Court to decide is to whom should be allocated the decision-making responsibility. The 2013 order granted joint custody to the parents. Amendments to the Divorce Act now speak of decision-making responsibility. 9 [ 26 ] T is now 16 years old. This issue is not as important as the parties see it. Be that as it may, I must still make an order that I consider to be in her best interests. The factors _______________________________________

9 Divorce Act , s. 16.1 and 16.3 . found at s. 16(3) , (4) and (5) of the Divorce Act were all considered but I will focus on those who are the more relevant to T’s circumstances: her age, stage of development and needs, her views and preferences, the plan for her care, the ability and willingness of each parent to care for and meet the needs of T and to communicate and cooperate with each other. [ 27 ] Family violence and its impact must also be considered 10 , as it is alleged by the mother.

Past conduct can be taken into consideration if it is relevant to the exercise of decision-making responsibility 11 . [ 28 ] It is to be remembered that when children have attained the age of 16 years, they are allowed to make many decisions by themselves. For instance, they can apply for an adult passport.

Also, the Medical Consent of Minors Act states that: The law respecting consent to medical treatment of persons who have attained the age of majority applies, in all respects, to minors who have attained the age of sixteen years in the same manner as if they had attained the age of majority. 12 [ 29 ] Restrictions on work by children found in the Employment Standards Act 13 usually stop when they are 16.

Under the Education Act , children must go to school until they obtain their high school diploma or until they reach 18 years of age. 14 However, parents can no _______________________________________ 10 Divorce Act , s. 16(3) (

j) and 16(4) . 11 Divorce Act , s. 16(5) . 12 R.S.N.B. 1973, c. M-6 .1, s. 2 . 13 S.N.B. 1982, c. E-7.2, s. 39 and 40 . 14 S.N.B. 1997, c. E-1.12, s. 15(1) b). longer be charged of a provincial offence if their child do not attend school when the child has attained the age of 16. 15 [ 30 ] Because there were still disagreements on what should be the plan for T to restore attachment between her and her father, each party was allowed to file a further affidavit on that issue. The mother attached a letter from T to her affidavit.

Although she wants to pursue therapy, she wrote this in her letter dated September 24, 2022: “ Respectfully, I feel strongly that any type of therapy should be on my own terms .” 16 [ 31 ] Even though the Court was told that there was an agreement on a plan for T at the end of the hearing of the application, I still had concerns and was not sure if the plan could be part of a court order. In fact, this is a case where a lawyer should probably have been appointed for T, but it was not discussed at the hearing. Given her age, T’s views should be considered.

Here, they are quite clear: she does not want her father in her life for the time being. [ 32 ] Having listen to T and her mother’s testimonies, I find that there were not any attempts by the mother to sever ties between T and her father. In fact, she did all she could to abide by the 2013 order until T called child protection services in the fall of 2020. Hence, T has been alienated from her father for two years now, but I see no evidence putting the blame on the mother. _______________________________________

15 Education Act, S.N.B. 1997, c. E-1.12, s. 15(8) . 16 Affidavit of M.D., September 28, 2022. [ 33 ] The proposed plan for restoring T’s attachment with her father, even if it was agreed upon for the most part by the parties, is no longer workable. One psychologist named in the plan has been unavailable very often recently and nothing shows that she will be able to assist in the short term.

Another intervener was also mentioned in the plan but there are now allegations of conflict of interest, and she no longer wants to be involved. [ 34 ] I accept from the evidence of Olga Komissarova that it would be in T’s best interests if she could have a healthy relationship with her father. Her future will most likely be affected by this absence of relationship. Therapy is most likely necessary. But at this time, I am not convinced that forcing a plan on her will serve her best interests.

She is quite adamant on this: she strongly believes that her psychological issues are related to abuse suffered from her father. [ 35 ] N.R. has acknowledged that not knowing about his daughter’s state of mind made it difficult for him to help her in any way or to understand what she was going through. This being said, he does not admit any wrongdoing nor any abuse.

When asked what he would tell T if he had the opportunity, he did say, however, that he is sorry for anything that he caused in her life that gave her pain, that he loves her and that he would do anything for her. [ 36 ] I don’t have to decide if there was abuse or not by the father to decide the issue. I am however convinced that decision-making responsibility and parenting time for T should be granted to the mother. Of course, if ever T decides to contact and see her father, it will not be prohibited. I’m convinced that N.R. wants to be present in his daughter’s life.

I hope he will still be there when needed and when T opens the door. The youngest daughter A [ 37 ] A is now 14 years old. Parenting time with her father was also terminated by the December 1 st , 2020 interim ex parte order but has since resumed. She wants to pursue her relationship with her father. The evidence of both parents shows that all the time she spent with her father since August 2021 went well and was beneficial.

The mother believes that the situation is even better than before. [ 38 ] She did mention, in her post-hearing affidavit dated September 28, an event which would have made A feel uncomfortable. However, this should not have been raised in that affidavit. The reason why I allowed a further affidavit to be filed was related to the plan for T. I will not consider this new untested evidence. [ 39 ] As mentioned earlier, the father asked, during the hearing, that his regular parenting

schedule with A get back to what it was under the 2013 order, which was basically every third weekend, starting on Thursday night. However, his post-trial brief now shows a complete turnaround from what he had expressed during his testimony. He now wants A to move with him in the Halifax area, at least for six months. [ 40 ] The father fears that if A continues living with her mother, the same thing that happened with T will occur with A.

In other words, he wants to prevent A from being alienated. “ The ‘danger’ in this case is that A is going to follow the same footsteps as her sister T” 17 , according to N.R. [ 41 ] I understand the father’s worries, but there is not a shred of evidence that would lead to such a conclusion. A court cannot decide a case on speculations. [ 42 ] A has been seeing her father regularly since parenting time resumed in the summer and fall of 2021. Testimonies from both parents confirm that all is going well.

There have been minor disagreements between the parents as to what were supposed to be the exact dates when A would be with her father, for instance. This can often put a stress on the child. Nevertheless, I can only conclude that the relationship between A and her father is good and there is no indication that she might not want to see him again.

[ 43 ] That being said, it is also obvious that at 14 years old (13 at the trial), A also wants to have her say as to when she will go see her father in Halifax. In a

summary of a clinical interview, psychologist Kimberly Wilson wrote that A “ explained that she wanted to stay with her mother and sister. However, she would like to pass time, like a month during the summer. And every second year to be able to pass Christmas and March break with her father .” 18 _______________________________________ 17 Post-Trial Arguments of the Respondent, July 14, 2022, page 54, paragraph 135. 18 Supplementary Trial Record –

part 4-1, page 454. [ 44 ] In her report, Olga Komissarova stated that A’s wishes included “ to visit her dad at her and his convenience .” 19 The youngest daughter also told both psychologists that she does not like the traveling, “ the long ride that [it] takes to get to her dad’s place, but she is always happy once she gets there .” 20 [ 45 ] The father has concerns about the different rules or routines in both households.

He would like similar practices at both places. [ 46 ] For instance, he testified that reasonable restrictions should be in place for screen time, that phones should not be allowed at the table, etc. He also states that M.D. is letting A be involved too much in scheduling her time with her father. N.R. said that the communication should be between the two parents, and not with the child, when determining the parenting time. According to him, this caused the loss of his parenting time with A during the last March Break.

He blames the applicant, saying that she proposed other activities to the child and that she did not discuss with him any potential changes to the parenting time ordered by this Court on December 22, 2021. 21 As a result, there was no parenting time between A and her father during March Break. _______________________________________ 19 Report of Olga Komissarova, MPsy, December 20, 2021, page 50, exhibit R-2. [ 47 ] Communication is in fact difficult between the parents and has always been. Over the years, they still were able to make various changes to scheduled parenting time.

Even after the cancelled time during March Break, the parties reached an agreement to allow A to go on a skiing trip in Québec with her father and miss a few school days. [ 48 ] A has a learning disability and a diagnosis of Tourette syndrome. Both conditions are well managed, and she has no major difficulties in school. The mother has been her main caregiver, at least since they moved to Dalhousie. [ 49 ] The child has a strong relationship with both parents and their extended families. It is obvious that both parents love their daughter dearly and A also loves them equally.

They also want the other parent to be involved in their child’s life. [ 50 ] Of course, the rules and routines may not be the same in each household. This is often the case when parents separate. This will create difficulties, but everybody has to learn to live with the situation. Most of the time, this will not affect the ability of a parent to ensure the safety, security, wellbeing and development of a child. [ 51 ] As to the ability and willingness of each parent to communicate and cooperate with one another, I say again that it is difficult.

There has been ongoing communication, mostly via email or text messages, over the last few years. The

mother tries to avoid direct communication. She testified that she had been abused during the relationship and she’s feeling that she his controlled when speaking to her ex-husband, that he wants to dominate. She wanted to keep the peace with him, to assume that he was a good father, and she always encouraged her daughters to go see their dad. In fact, she said that sometimes, they were mad because she was forcing them to go.

She also stated that the father often made requests to change the planned parenting time and that most of the time, she agreed. [ 52 ] Even though the communication is not good, I am of the opinion that both parties tried to maintain it over the years and that it worked for close to seven years. [ 53 ] Altogether, I don’t see any valid reasons to change the primary residence for A at this time. Both parents will continue to share decision-making responsibility. A has a good relationship with her father. She likes being with him, most of the time.

Maybe that after high school, she will decide to pursue higher education. Halifax has good schools and universities. This could be a good opportunity for the father and the daughter to share the same household. Only time will tell. [ 54 ] As for the parenting time, once again, when a child is 14 years old, her views and preferences should be looked at closely. It does not mean that the child always has the final say, but in this case, it is very important. For approximately seven years, A had to travel from Dalhousie to Halifax every three weeks during the school year and stay there for the weekend.

She is tired of this and wishes to travel less often. She still wants to go at her father’s place, but only for longer periods. [ 55 ] A will then be with her father in Halifax 22 for five weeks during the summer, plus the March Break and one week during the Christmas holidays. The father can also come to the Restigouche area as he did when his parenting time resumed in 2021, which worked very well. I am aware of the financial costs explained by the father, but it is still open to him.

More parenting in Halifax (or elsewhere) is still possible, but A’s views and preferences will be taken into consideration by the parents. An accompanying order will give more particulars for the parenting time. Support order and imputation of income [ 56 ] N.R. is paying monthly child support of $495 for the benefit of his two children, as per the 2013 Nova Scotia order 23 . In her application, M.D. is asking a retroactive variation of the child support order currently in place and that special expenses also be reviewed. N.R. did not address the support issue in his responding document 24 to the application.

However, in his pre-trial brief, he is asking for a retroactive adjustment of child support. [ 57 ] The mother also requests that the Court imputes a higher income to the father. Amongst other arguments, she submitted in her written closing arguments that a yearly income of $200,000 should be imputed to N.R., based on his lifestyle and on his failure to file any financial documents with the Court. This is not accurate because on January 6, 2021, he did _______________________________________ 22 The father actually lives outside the city of Halifax but close by. 23 Trial Record –

Part 2, pages 176-187. 24 Trial Record –

Part 1, pages 102-103. file with the Court his personal notices of assessment from the Canada Revenue Agency as well as financial information for his corporations R. Investments Ltd. and R. Marine Ltd., all for the years 2012 to 2018. They were mentioned in the respondent’s pre-trial brief but are not part of the trial record, though, which leads the Court to wonder if they were received by the applicant’s lawyer. Nevertheless, financial disclosure was never discussed in open court. [ 58 ] In fact, the parties did not put their best foot forward on the support issues.

Almost nothing in the testimonies of the parties addressed the financial aspect of this case. M.D. did say that anything N.R. gets from Ski Wentworth is through exchanges, but there is no direct evidence on this nor did she cross-examine the respondent on this or on anything dealing with his income.

[ 59 ] She did say in one of her affidavits 25 that she did not have any record of N.R.’s employment, but once again, it was not raised in court. It was somewhat addressed in her written closing arguments. However, she based her submissions on allegations of facts that are not supported by sworn evidence. Some of them may give rise to speculations, but nothing upon which the Court can base a decision to impute income. [ 60 ] The father did address his financial situation since 2013 in his affidavit of July 2, 2021, trying to explain why his level of income used for the 2013 order has decreased. _______________________________________ 25 Supplementary Trial Record –

Part 4-2, page 685, paragraph 14. The Nova Scotia Supreme Court had found his income to be of $34,177 at the time. His notices of assessments from Revenue Canada show an annual income of less than $10,000 since 2014. For his two corporations, we can see in the income statement information that expenses surpass income almost every year. [ 61 ] Be that as it may, his two corporations have shown important sales figures. For instance, in 2018, sales of goods and services for the two companies were of $322,735 and $170,760 respectively.

This is close to $500,000 altogether, but both corporations are showing a net loss for 2018, like for most of the previous years. Nothing of this was addressed in the evidence, not in direct nor in cross-examination.

It would have been interesting to know what those two corporations are about, why are they kept running if they don’t bring income and, if we look at the expenses, what kind of travels are included in the $34,529 under this head of expense (total for both corporations in 2018 only), just to pinpoint one. [ 62 ] Interestingly, the father did not address the child support issue in his written post-trial arguments.

In his pre-trial brief, he only states that “ The payment of child support will depend on the type of custody and access [and] is asking to adjust child support granted in 2013 retroactive to three years .” [ 63 ] Of course, the parties were more concerned with the situation of their two daughters and dealt mainly with decision-making responsibility and parenting time. Nevertheless, they put the child support issue before this Court and a decision must be rendered on it as well. [ 64 ] I will repeat it: there is a serious lack of evidence on the financial issues.

Another example: the mother is asking for a review of the special expenses, but it was never specifically addressed in the affidavits and oral evidence. [ 65 ] For all those reasons, I will deny the mother’s claim for a variation of child support, imputation of income to the father and any claim for special expenses. I am also denying the father’s request for a retroactive and prospective adjustment of child support. Although his notices of assessment show a very low income, there is not sufficient evidence to warrant a full analysis of this issue.

And even if the evidence did not allow me to impute a higher income than the one established in 2013, it at least convinced me that his income has not really been lower since then. [ 66 ] I will also add that this whole issue would have deserved a better treatment. That said, it is the parties’ responsibility to put their best foot forward when putting applications or requests before the Court. If they don’t, they should not have “a second kick at the can”.

This means that if this issue ever comes back to court, any decision cannot be retroactive to a period before this decision. [ 67 ] Costs will be decided later, after both parties have the opportunity to address the Court in a further hearing. November 10, 2022 Campbellton, N.B. Larry Landry, J.C.K.B.