A.D.D. Applicant, – v. –, 2023 NBKB 097

FDF-169-2014 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF FREDERICTON Citation: 2023 NBKB 097 BETWEEN: A.D.D. Applicant, – and – T.T.W. Respondent. DECISION BEFORE: Madam Chief Justice Tracey K. DeWare AT: Fredericton, New Brunswick DATE OF HEARING: March 23 and 24, 2023 DATE OF DECISION: May 31, 2023 APPEARANCES: Grant M. Ogilvie, Q.C., Solicitor for the Applicant

T.T.W., on his own behalf DEWARE, C.J. INTRODUCTION [ 1 ] This case centers around the appropriate parenting arrangements for one little boy. The original Notice of Application in this matter was filed in April of 2014, nine years ago. The parties managed the issues surrounding the care of their son, A.T.W., pursuant to an interim consent order until the fall of 2020. Regrettably, the co-parenting relationship broke down at that time and has remained irrevocably unworkable leading up to this hearing in March 2023.

FACTS [ 2 ] The Applicant, A.D.D. and the Respondent, T.T.W., commenced a relationship in 2009 and lived together until October 2013. On March 13, 2012, the parties welcomed their only child, A.T.W., a healthy little boy. [ 3 ] The parties purchased a home together in the summer of 2010. The down payment for the home was gifted from the Respondent’s parents. During their cohabitation, the Respondent paid the mortgage on the home as well as the property tax and insurance. The Applicant paid the utility bills as well as groceries for the family during the period of cohabitation.

During the initial stages of the relationship, the Applicant was employed at Dooley’s, and the Respondent was a member of the armed forces. [ 4 ] The Applicant suggests that the breakdown of the relationship occurred as a result of the Respondent’s drinking and anger issues. The Respondent became aggressive when he was under the influence of alcohol. The Applicant suggests the Respondent is controlling and emotionally abusive. The Applicant maintains that these behaviours have continued, at times, in the post separation period.

The Applicant does acknowledge that there have been periods since 2014 when the parties were able to co-parent relatively well. [ 5 ] The parties’ first appearance in court was in July of 2014. An interim order was issued at that time which provided shared and equal parenting time with A.T.W. The parties would alternate A.T.W.’s care on a week on / week off basis. At one point following the issuance of the interim order, the Respondent attended a detox centre in British Columbia to address his issues with alcohol. A.T.W. remained in the care of the Applicant while the Respondent was receiving treatment.

With the exception of this period, A.T.W. was in a shared parenting arrangement spending alternating weeks with each parent from 2014 until 2021. [ 6 ] The Respondent retired from the military in January of 2016. The Respondent has not worked since that time. The Respondent suffers from Post Traumatic Stress Disorder. The Respondent testified that he is not able to work as a result of his condition. [ 7 ] The Respondent’s annual income is reported at $68,000.00.

The evidence in the file indicates the Respondent’s income over the relevant period to be as follows: 2014 59,918.00 2015 60,448.00 2016 81,391.00 2017 57,101.00 2018 35,289.00 2019 56,660.00 2020 57,120.00 2021 68,095.00 [ 8 ] The Applicant is employed full time with NB Power and earns $87,000.00 a year. The Applicant works regular shifts on a Monday to Friday work week. [ 9 ] The Respondent paid child support in the amount of $400.00 from the time of the interim order until 2020. The printout from the Office of Support Enforcement indicates that all payments were made between August 2014 and September 2020.

The Respondent has not paid any child support since that time. [ 10 ] In the fall of 2020, the Respondent filed a motion requesting a variation of child support. The Respondent maintains that all of the motions that have been filed by the Applicant since October 2020 are in retribution for his attempts to reduce the amount of child support he was paying.

The Applicant suggests that the Respondent has not paid sufficient child support, and there is child support owing to her. [ 11 ] The Applicant sets out her assessment of the amount of child support arrears owing at paragraph 98 of her pre-hearing brief as follows: Child Support Owed Breakdown

October to December 2020 $

(459) Shared PT - $153 x 3 months January to September 2021 $

(468) Shared PT - $52 x 9 months October to December 2021 $ 1,773.00 Applicant sole PT (October 5, 2021) - $591 x 3 months 2022 $7,092.00 Applicant sole PT - $591 x 12 months January to March 2023 $ 1,773.00 Applicant sole PT - $591 x 3 months Total: $ 9,711 [ 12 ] Following the parties’ separation, the Respondent remained in the home. The Respondent was solely responsible for all expenses related to the home post separation. The Respondent sold the home in the summer of 2022.

The net sale proceeds from the home in the amount of $71,607.84 have been retained in the trust account of the solicitor who handled the transaction pending the resolution of this matter, William Walker. [ 13 ] The Department of National Defence confirmed in correspondence dated November 5, 2014, that the Applicant would be entitled to $10,700.00 from the division of the Respondent’s pension funds from the military. [ 14 ] The situation between these parties began to deteriorate in the fall of 2020, as a result of disagreement over compliance with restrictions related to the pandemic.

The Applicant suggests that the Respondent’s mental health deteriorated significantly commencing in the fall of 2020. [ 15 ] The parties were back before the Court in December 2020 on an urgent basis. The Respondent wanted to take the child outside the province over the holidays when travel between provinces was then restricted. Isolation periods when a person was returning to the province were required, and the Applicant was unable to accommodate this with her work schedule.

The Applicant filed a motion and was granted an abridgment of time as the Respondent intended to remove A.T.W. from the province over the course of the Christmas holidays. An order was issued at the time precluding the removal of A.T.W. from the province. [ 16 ] In May of 2021, the Applicant filed a further motion with the Court seeking a variation of the interim parenting order as a result of her increasing concerns over the Respondent’s behaviour. The Respondent had begun discussing the idea of homeschooling A.T.W. which was concerning to the Applicant.

The Respondent was increasingly vocal over his objections to Covid 19 restrictions. The Applicant and the Respondent were unable to agree on how to manage the Covid 19 restrictions, then in place, which had an impact on A.T.W.’s activities. [ 17 ] A.T.W. lived with the Respondent 50% of the time until the fall of 2021. The Respondent was an involved parent and coached A.T.W.’s sport teams.

While there were tensions at times between the parties, the Respondent appears to have been a good parent to A.T.W. prior to the difficulties which arose amidst the Covid 19 pandemic. [ 18 ] The parties were before the Court in June 2021. At that time, the Applicant was granted sole decision-making responsibility for all matters related to A.T.W.’s health and well-being. The Respondent continued to have parenting time with A.T.W. pursuant to the regular schedule.

During the summer of 2021, the Applicant continued to have concerns with the Respondent’s behaviour given his very strong opposition to Covid 19 pandemic protocols. [ 19 ] In September 2021, A.T.W. had a hockey game on the University of New Brunswick campus. The Respondent arrived at the rink with A.T.W. who was in his care at that time. Neither the Respondent nor A.T.W. were wearing a mask despite the requirement on the university premises to do so. An altercation occurred between the Respondent and the Applicant’s father.

As a result of this incident, security at the University of New Brunswick advised the Respondent he was no longer welcome on the campus. A.T.W. was present for the confrontation between his father and grandfather. This was understandably upsetting for the child. [ 20 ] The parties were yet again before the Court on October 8, 2021. At that time, the motions judge was asked to consider the appropriate parenting arrangements for A.T.W. given the Respondent’s refusal to follow Covid 19 restrictions as well as his increasingly erratic behaviour.

The Respondent made it clear to Justice Godbout at that time that he would not allow the child to be vaccinated nor would he allow the child to participate in any activities where vaccination was required. Following this appearance, Justice Godbout issued an interim order granting the Applicant sole physical parenting time and sole decision-making responsibility for the child.

The court order also confirmed that if a vaccine became available for children, the Respondent was to be notified of the Applicant’s intention to have A.T.W. vaccinated, and he would have seven days to file a motion to seek intervention preventing the vaccination. [ 21 ] On November 29, 2021, the Applicant’s lawyer emailed the Respondent to advise that A.T.W. would be receiving his vaccine. The Respondent provided the following response via email: Mon, Nov 29, 2021 at 11:32 AM That is disgusting. Children virtually have zero risk but yet you want to inject him a bio weapon. “We didn’t know” will not be an excuse

when children start dying. Wake the fuck up. Its not about a virus! it’s about control. You and A.D.D. now have both been informed of the risks and now you both will be personally held responsible if anything happens to my son. Unbelievable how fucking stupid people really are. I will never consent to my son being injected with anything. Never contact me again you fucking monsters. [ 22 ] While the Respondent did answer Mr. Ogilvy’s office’s email with profanity and displeasure, he did not seek the intervention of the Court to prevent A.T.W.’s vaccination as he was entitled to do pursuant to the order.

During the trial of this matter in March 2023, the Respondent became aware that A.T.W. had been vaccinated. This news was obviously extremely distressing to the Respondent who left the courtroom in an emotional state and required time to compose himself before the trial could continue. There is no question but that the Respondent’s strong feelings about vaccination are genuinely held. [ 23 ] In January of 2022, the Respondent began to send “notices” to the Applicant.

One such notice dated January 24, 2022 stated as follows: Greetings to the woman: A.D.; i: a man; write this notice in regards to a claim of property of i; in this instance the son of i; i, state A.T.W. is the property of i, and i, will require our contract to be adhered to as i, consider this a wrong. i, state A.T.W. is not subject to any experimental or non experimental gene therapies, needles, injections, vaccines, immunizations, boosters, doses or inoculations; unless i, give written and verbal consent in the presence of 2 other man or woman determined by i, to witness the autograph of i, i, stated A.T.W. is not subject to any rapid test, pcr test, covid-19 test, antigen test, or wearing of any mask or face shield unless i, give written and verbal consent in the presence of 2 other man or woman determined by i, to witness the autograph of i; i, say if said property is restored within the next 2 days i, will forgive this wrong; i, state all herein be true and will verify at open court: T.T.W.: a man. [ 24 ] On February 22, 2022, the Respondent sent the Applicant yet another notice advising he would be seeking $1,000,000 in compensation in addition to $1,000.00 a day unless A.T.W. was returned to his care.

The notice states: Notice Date: 22 February 2022 to the woman: A.D.; i, a man: T.T.W. write this third notice in regards to a claim of property of i, in this instance the son of i; i, state A.T.W. is the property of i, and said property of i, has yet to be restored; i, state i, have tried to seek remedy in the private for the controversy and wrongs you have done to i, as per the first and second notices i have sent; i, say i, now consider this a trespass by way of theft; and i, invite and require you to attend a court of law; If you do not have a lawful excuse as to why you stole the property of i, i, will seek $1,000,000 in compensation plus court fees plus $1000/day the trespass continues as this is a most grievous trespass as it is regarding the property of i, i, say if said property is restored within the next 24 hours i, will forgive this most grievous trespass; i, state in my last notices i, referred to our agreement as a contract, which was incorrect, as i, have not signed a contract with you; we have an agreement we have been following for until you stole said property October 2021; i, state all herein be true and will verify at open court; T.T.W.: a man. [Emphasis mine] [ 25 ] In the early part of 2022, the Respondent’s behaviour during court appearances became increasingly difficult to manage.

During a case management conference call before Justice Colford on February 22, 2022, the Respondent insisted on referring to Justice Colford by her first name and maintained he was a free man not bound by the laws of the province. The Respondent sent notices to both the judge, the court stenographer and the Applicant following this court appearance. [ 26 ] As a result of the Respondent’s behaviour in court as well as the filing of documents which did not accord with the Rules of Court , I became involved in this matter in early March 2022.

At that time, given the Respondent’s behaviour and the communications that were being sent to the Court and the Applicant, I adjourned the trial that had been scheduled for March 21 to 23, 2022, as I did not

believe anything productive could be achieved at that time. It was impossible to have a rational conversation with the Respondent at this point. [ 27 ] In March 2022, the Respondent was arrested for criminal harassment of the Applicant. The Respondent was held in jail until March 28, 2022 as he refused to agree to the conditions required for his release. The Respondent’s criminal charges remain pending in provincial court. [ 28 ] On May 26, 2022, I held a case management appearance with these parties.

The Respondent reiterated the same positions he had shared with Justice Colford in that he was not bound by the laws of the province. The Respondent also referred to A.T.W. as “ his property ” and maintained that “ his property ” had been stolen by the Applicant. Given my continued concerns with the Respondent’s behaviour and his ability to parent a child and prioritize the needs of the child, I ordered he undergo a psychiatric evaluation.

The Respondent did not undergo a psychiatric evaluation, nor did he provide the Court with any medical reports from his medical providers to provide some clarity on his mental state and his ability to parent. [ 29 ] On March 9, 2023, the Respondent filed a notice of action with statement of claim attached against several people including the Applicant and her lawyer. In the pleading, the Respondent sets out the allegations against the Applicant as follows: ii. T.T.W. has been wronged by A.D. many times in attempting to peacefully settle differences concerning the raising of mutual-son: A.

A. engages in unnecessary-excessive-litigation, including the use of Public Law Enforcement and Public Prosecution services – and has alleged ‘Criminal Harassment’ based on false or otherwise misleading statements which do not reflect reality – with T. having no prior convictions of Assault. Though it is possible A. may not have intent to do wrong against T and A: wrong is done. Some may describe the wrongs done as ‘Parental Alienation’. A. exhibits characteristics also described as ‘Divorce Related Malicious Parent Syndrome’.

A. alleges she is threatened by, and scared of T. – a reasonable person would not be threatened or scared of T. [ 30 ] In this same pleading, the Respondent claims as follows: [5] The Plaintiff Claims:

a) The right to settle the matter(

s) by jury in honour of Due-Process-of-Law to ensure all are treated fairly. Law-Enforcement and Court actions are a matter of public interest and public standing is expressed through the verdict of a jury.

b) A. and T. no longer interfered with spending time together – restored back to having custody 50%.

c) All outstanding matters in all courts resolved – including over-payment of Child-Support returned.

d) Discharge from Public Office anyone found to be guilty of betraying the Truth: Those who do not wilfully speak the truth are betrayers of the Truth. e) $6.8 Million CDN payable by RCMP because of Gregory Ledoux. f) #1 Million CDN payable by Grant Ogilvie and his insurance provider.

g) Anything else the Jury finds fair and reasonable in the circumstances.

h) Not to be financially retaliated against for bringing forth wrongs done against T. and A. [Emphasis mine] [ 31 ] A.T.W. is a student at the New Maryland Elementary School where he is doing well academically and socially. A.T.W. is currently in the 5 th grade. A.T.W. enjoys hockey and baseball as well as playing video games. A.T.W. has many friends at school and in his neighbourhood. [ 32 ] A.T.W. has been residing full time with the Applicant since the fall of 2021. The Applicant owns a three bedroom mini-home where she resides with A.T.W. A.T.W. enjoys a close relationship with his paternal grand-father.

A.T.W. works with his grand-father in his garage and enjoys running errands with his grand-father. [ 33 ] T.T.W. is in the process of building his own home in Hoyt, a rural area outside of Fredericton. T.T.W. lives at the property with his girlfriend. T.T.W. confirms there is a lot of space available for A.T.W. at his new home, and A.T.W. will have his own bedroom.

ISSUES [ 34 ] The issues for the Court to resolve are as follows: [1] What is the best parenting arrangement for A.T.W.? [2] What is the amount of child support owing? [3] What is the amount of special expenses owing, and how should these be paid on a prospective basis? [4] What is the appropriate division of assets and debts following the breakdown of the relationship? [5] Costs.

[6] How should any amounts owing to the Applicant be paid? LAW AND ANALYSIS Parenting [ 35 ] This matter is proceeding pursuant to the provisions of the Family Law Act , SNB 2020, c 23 .

Section 50 of the Family Law Act provides as follows: Best interests of the child 50(1) The Court shall take into consideration only the best interests of the child in making a parenting order or a contact order . 50(2)In determining the best interests of the child, the Court shall consider all factors related to the circumstances of the child, including (

a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including First Nations upbringing and heritage, (

b) the child’s needs, including the need for stability, given the child’s age and stage of development, (

c) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life, (

d) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent, (

e) the history of care of the child, (

f) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained, (

g) any plans for the child’s care, (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child, (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child, (

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child, and (

k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 50(3) When considering the factors referred to in subsection (2), the Court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 50(4)In considering the impact of any family violence under paragraph (2)(j), the Court shall take the following factors into account: (

a) the nature, seriousness and frequency of the family violence and when it occurred; (

b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (

c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (

d) the physical, emotional and psychological harm or risk of harm to the child; (

e) any compromise to the safety of the child or other family member; (

f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (

g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their

ability to care for and meet the needs of the child; and (

h) any other relevant factor. 50(5)In determining what is in the best interests of the child, the Court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order. 50(6)In allocating parenting time, the Court shall give effect to the principle that a child should have as much time with each person in respect of whom the order would apply as is consistent with the best interests of the child. [Emphasis mine] [ 36 ] This is a very sad case.

Prior to 2021, the Respondent was a good, involved, and engaged parent. Since 2021, the Respondent has prioritized his views on Covid 19 restrictions and his embrace of the notion of being a “ free man ” over the needs of his child. The Respondent has gone from a parent who had his child in his care 50% of the time to a parent who has not been with his child since the fall of 2021.

This is an extremely unfortunate turn of events and particularly sad for the child at the heart of this matter, A.T.W. [ 37 ] The Respondent’s behaviour since the fall of 2021 has been erratic, out of touch with reality, and extremely difficult to navigate. I requested a psychiatric evaluation of the Respondent in the summer of 2022 with the hopes that such an evaluation could reassure me as to the Respondent’s continued ability to parent despite his strong political views and eccentric beliefs.

Regrettably, the Respondent has either chosen to ignore the need for such information or just doesn’t understand the importance of same. Regardless of which conclusion can be made, the result is the same. The Respondent has been unable to prioritize the needs of A.T.W. by assuring the Court that A.T.W. will be properly cared for when with his father. [ 38 ] Section 51(1) and 51(2) of the Family Law Act provides the Court with the ability for the Court to order an examination or an evaluation of a parent.

The sections states: Court may order examination or evaluation 51(1)In any proceeding under this Act that affects a child, if the Court determines that it would be in the best interests of the child to do so, the Court may require that the child, a parent or any other person living with the child or in a close relationship with the child so as to be in a position to influence the nature of the care and supervision exercised with respect to the child, undergo a psychiatric, psychological, social, physical or any other examination or evaluation specified by the Court, before or during the hearing. 51(2) In the event of the refusal or failure by any person to participate in an examination or evaluation ordered by the Court, or to consent to the examination or evaluation of a child under the person’s care, the Court may draw inferences that appear to the Court to be warranted under the circumstances. [Emphasis mine] [ 39 ] In this case, I was of the strong view that a psychiatric or psychological evaluation of the Respondent was necessary.

My understanding is that the Respondent does have a treating psychiatrist and does have medical care available to him with Veteran’s Affairs. While the legislation provides the Court with the means to order a psychiatric or psychological evaluation, the practical application of these powers is quite another story. In this case, the Respondent simply did not follow the court Order and made no attempt to undergo a psychiatric evaluation nor to provide the Court with medical evidence from his current caregivers which could speak to these issues.

The Court is left with no choice but to draw inferences from the Respondent’s failure to provide this information as provided by section 51(2) of the Act . [ 40 ] Throughout the trial in this matter, the Respondent’s focus remained on vaccines, the government’s inappropriate response to the pandemic, the Nuremberg trial following World War II, and generally conspiracy theories. This trial is about a little boy, it is not about a pandemic nor is it about government action. These issues have absolutely nothing to do with the matter at the heart of this trial.

The Respondent’s inability to recognize this important fact bolsters the Court’s preoccupation as to his ability to properly care for this child. [ 41 ] There was nothing the Respondent testified to at the trial, nor offered as evidence during the trial, which counters the Court’s serious preoccupation as to the impact of his current viewpoints and behaviour on A.T.W. should A.T.W. return to his care. This is a very regrettable conclusion. There are many parents who hold unusual personal or political beliefs that are excellent parents.

Similarly, many parents who suffer from mental health challenges including PTSD are excellent caregivers for their children. Neither unusual viewpoints nor mental health challenges preclude a person’s ability to parent nor to be a good parent. [ 42 ] “ The Best Interests of the Child ” analysis in this case is heavily influenced by the Court’s significant concerns over the

Respondent’s mental health as well as the potential impact of family violence on A.T.W. In this case, it is difficult to envision how anytype of co-parenting arrangement could ever work. The fact that the Respondent served the Applicant with a Statement of Claim justdays prior to this trial and after spending 18 months without his child does not suggest things are improving nor bode well for the future.In his present mindset, the Respondent is simply incapable of putting the needs of A.T.W. ahead of his own.

I question at this juncturethe Respondent’s ability to recognize A.T.W.’s needs. [43] The typical analytical factors to be applied as set out in the Family Law Act are simply not that helpful in this case. Usually, ananalysis involves a weighing of the strengths and weaknesses of both parents and an evaluation of how the child is best cared forbetween willing and engaged parents. In this particular matter, the Respondent is willing in the sense that he dearly loves A.T.W., thisdevotion is not questioned by the Court.

However, the Respondent is no longer engaged with A.T.W. and seems incapable of taking thenecessary steps to reinstate his relationship with his son. The Respondent’s preoccupations in 2023 are to continue to rehash the concernsraised since 2021. The fact that the Respondent is not spending time with his son does not appear to trigger any self-reflection at all onwhat changes he may need to make to be a parent. [44] The witnesses called by the Respondent at trial did not provide evidence relevant to A.T.W.’s best interests. Retired physician,Dr.

Ron Samuels, testified as to the inhumane nature of lockdowns and the fact children should never wear masks. Dr. Samuel’stestimony was brief as he had not been declared an expert witness and sought to provide opinions on the pandemic. Dr. Samuel raised theissue of the Nuremberg Code and reminded the Court that you cannot use experimental procedures on citizens. The Court concluded Dr.Samuel’s testimony at that point. The other witnesses the Respondent called, Kim Price and Eric Pierre, have never met A.T.W.

TheRespondent met these individuals at protest rallies during the pandemic. [45] The Respondent’s limited involvement with A.T.W.’s school since the fall of 2021 has been negative. School officials were soconcerned with communications they received from the Respondent surrounding the vaccine clinics they felt security was necessary.The Respondent’s communications with the Applicant and her lawyer were completely inacceptable. The Respondent was involved in aphysical altercation with the Applicant’s father in front of A.T.W.

Significantly, during the trial, the Respondent seemed to have noinsight into how inappropriate such behaviours are nor how damaging it could be for A.T.W. [46] In my view, given the manner the Respondent interacts with the Applicant coupled with his failure to improve nor demonstrateany willingness to change, render a collaborative parenting arrangement impossible. At this juncture, I struggle to identify what parentingtime could be made available for the Respondent which would be in the best interests of A.T.W.

This is not a situation where the Court’sconcerns can be addressed with a brief period of supervision or gradual reintegration of the child into the parent’s life. [47] The Respondent has been a good father in the past and hopefully, some day, he can be a good father again. However, this Courtis unwilling to submit A.T.W. to the potential upheaval of reintroducing the Respondent into his life without solid assurances that theRespondent is truly able to prioritize the needs of the child.

Further, the Applicant cannot be expected to navigate communications withthe Respondent given the history of family violence and the Respondent’s barrage of meritless legal proceedings. A.T.W. and theApplicant are entitled to peace, the Respondent does not appear to be in a place in his life where he can provide that. [48] The issue of family violence is a significant concern in this matter. While I have no reason to believe the Respondent would everintentionally harm A.T.W., his apparent lack of insight into how damaging his behaviour can be on A.T.W. is alarming.

In arriving at theconclusion that parenting time with the Respondent right now is not in A.T.W.’s best interests, the presence of family violence inconjunction with the Respondent’s mental stability loom large in the court’s reasoning. In G.S. and D.S. v. A.S. and M.C., the lateJustice John Walsh of this court stated at paragraph 20 as follows: [20] Indeed, the outright termination, or even supervision of access, is not a remedy Courts embrace, unless clearly required ina child’s best interests. This is seen in the analysis found in V.S.G. v.

L.J.G.: In considering these cases and others, the factors most commonly considered by the courts in terminating access are the following: 1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and orfear. See M.(B.P.) v. M.(B.L.D.E.), supra; Stewart v. Bachman, [2003] O.J. No. 433 (Sup.Ct.); Studley v. O'Laughlin, [2000] N.S.J. No.210 (N.S.S.C.) (Fam.Div.); Dixon v. Hinsley, (ON CJ), [2001] O.J. No. 3707. 2.

History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the childand/or presents a risk to the child's safety and well-being. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J. No. 769(N.B.Q.B.); Abdo v. Abdo (1993), (NS CA), 126 N.S.R. (2d) 1 (N.S.C.A.); Studley v. O'Laughlin, supra. 3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent.See Tremblay v. Tremblay (1987), (AB KB), 10 R.F.L. (3d) 166; Reeves v. Reeves, [2001] O.J. No. 308 (Sup.Ct). 4.

Ongoing severe denigration of the other parent. See Frost v. Allen, [1995] M.J. No. 111 (Man.Q.B.); Gorgichuk v. Gorgichuk, supra.

5. Lack of relationship or attachment between noncustodial parent and child. See Studley v. O'Laughlin, supra; M.(B.P.) v. M.(B.L.D.E.), supra. 6. Neglect or abuse to a child on the access visits. See Maxwell v. Maxwell, supra. 7. Older children's wishes and preferences to terminate access. See Gorgichuk v. Gorgichuk, supra; Frost v. Allen, supra; Dixon v. Hinsley , supra; Pavao v. Pavao, [2000] O.J. No. 1010 (Sup.Ct.) . [Emphasis mine] [ 49 ] The relationship between these parties over the course of the last many months has been extremely difficult.

The Respondent is facing harassment charges in provincial court where the Applicant will be called to testify. The Respondent continues to serve the Applicant with “notices” and more recently a statement of claim. At times, the Applicant and A.T.W. have gone to live with her father because she is fearful of being in her home. The Applicant has developed a safety plan for herself and A.T.W. with the assistance of Victim Services, RCMP, and Social Development. These behaviours have now been going on for quite some time.

These behaviours are harmful and have caused considerable stress to the Applicant and one can only assume have also had an impact on A.T.W. [ 50 ] The Court has great difficulty to maintain a dialogue with the Respondent given his unpredictable and uncontrollable behaviour. If the Chief Justice, while sitting in a court of law, flanked by sheriffs, is unable to have a reasonable conversation with the Respondent, it is hard to imagine how challenging it would be for the Applicant.

While I acknowledge the Respondent was far more co-operative and calm during the trial of March 2023 then in previous court appearances, his uncontrollable and unpredictable behaviour remain a serious preoccupation for the Court. These concerns are coupled with the Respondent’s position that he is not bound by the laws of the province. Given the Respondent’s candid admission that he does not recognize or respect court orders, the issue of enforcing the terms of a parenting order are very problematic.

The Respondent commented at trial that he believes “ he can do whatever he wants as A.T.W.’s father regardless of any court order ”. [ 51 ] The evidence tendered at trial satisfied me that A.T.W. is doing well in the care of the Applicant. A.T.W. is doing well at school, enjoys sports and has a wide circle of friends. There is nothing before the Court which would suggest A.T.W. is not thriving in the care of the Applicant. I have no concerns that it would be against the best interests of A.T.W. to remain in the sole care of his mother. I am sure A.T.W. misses the Respondent.

Hopefully he will be able to establish a positive relationship with his father in the future should circumstances permit. Child Support [ 52 ] The Respondent disputes the Applicant’s entitlement to prospective and retroactive child support, but he does not contest the income figures provided to the Court. I accept the Applicant’s calculation of the arrears in child support and fix these at $11,484.00.The Court accepts the Applicant’s calculation of retroactive child support as follows: Child Support Owed Breakdown October to December 2020 $

(459) Shared PT - $153 x 3 months January to September 2021 $

(468) Shared PT - $52 x 9 months October to December 2021 $ 1,773.00 Applicant sole PT (October 5, 2021) - $591 x 3 months 2022 $ 7,092.00 Applicant sole PT - $591 x 12 months January to June 2023 $ 3,546.00 Applicant sole PT - $591 x 6 months Total: $ 11,484.00 [ 53 ] The Applicant has sole parenting time of A.T.W. and is entitled to child support. Pursuant to

section 3 of the Federal Child Support Guidelines and considering the Respondent’s income of $68,085.88, the Respondent is obligated to pay monthly child support in the amount of $591.00 . [ 54 ] Given the Applicant’s income of $87,000.00 and the Respondent’s income of $68,000.00, the parties shall share pro-rata special expenses for A.T.W. with the Applicant responsible for 56% of the expenses and the Respondent responsible for 44% of the expenses. [ 55 ] The Applicant claims retroactive childcare expenses from the Respondent for the period 2018 to 2021 in the amount of $2,476.00 broken down as follows:

2018: $496 2019: $780 2020: $780 2021: $420 Total: $2,476 The Respondent has paid $320.00 towards childcare which reduces this total amount owing to $2,156.00. [56] The Applicant also claims from the Respondent the following amounts for

section 7 health care expenses which I understand arepremiums for the Applicant’s health care plan for A.T.W.: 2014: $865 2015: $865 2016: $865 2017: $865 2018: $865 2019: $865 2020: $865 2021: $865 2022: $865 2018: $865 2023: $216.36 Total: $8,001.36 [57] The Respondent did produce a printout from Sunlife confirming coverage for himself and A.T.W. at a monthly cost of $159.21.This is actually more costly than the Applicant’s plan for herself and A.T.W. at $144.24 per month. There is no evidence before theCourt of any specific health care or special expenses that were identified and provided to the Respondent.

In all of the circumstances,both parties have full coverage for A.T.W. and this should be used to pay for his health care expenses with any net shortfall split betweenthe parties on a pro-rata basis. In all of the circumstances, I am not prepared to order the payment of the retroactive health care expensesas requested. [58] The Respondent confirmed during the course of trial that he is opposed to paying any type of child support, and he doesn’tunderstand special expenses. The Respondent confirms he will continue to maintain health care coverage for A.T.W.

The Respondentnotes he should not be required to pay for daycare as he wanted to look after A.T.W. himself and there would have been no fees. TheRespondent indicates that if A.T.W. needs something, he will buy it for him, but he will not make payments pursuant to a court order. Debts and Assets [59] The Applicant suggests she is entitled to one half of the joint assets pursuant to the principle of unjust enrichment in common lawrelationships as set out by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10. Justice Walsh reviewed this concept in L.L.v.

M.M., 2017 NBQB 234 at paragraphs 45 and 46 as follows: [45] Since the parties were unmarried, in New Brunswick they have no resort to legislation to help them divide up the assets and debtsfrom their lives together, as is the case for married couples who can resort to the Marital Property Act. However, the law of equity has arole to play, in particular the doctrine of ‘unjust enrichment’ (See: Slade v. Duguay 2015 NBCA 72 at para. 2).

One of the faces of‘unjust enrichment’ is the more recent judicially created concept of “joint family venture” of unmarried couples: At least one other basis for an unjust enrichment claim is easy to identify. It consists of cases in which the contributions of both partiesover time have resulted in an accumulation of wealth. The unjust enrichment occurs following the breakdown of their relationship whenone party retains a disproportionate share of the assets which are the product of their joint efforts.

The required link between thecontributions and a specific property may not exist, making it inappropriate to confer a proprietary remedy. However, there may clearlybe a link between the joint efforts of the parties and the accumulation of wealth; in other words, a link between the "value received" andthe "value surviving", as McLachlin J. put it in Peter, at pp., 1000-1001. Thus, where there is a relationship that can be described as a"joint family venture", and the joint efforts of the parties are linked to the accumulation of wealth, the unjust enrichment should be

thought of as leaving one party with a disproportionate share of the jointly earned assets. [46] It is convenient to turn to a leading text book referencing that case: While asserting that it is not the purpose of the law of unjust enrichment to replicate for unmarried partners the legislative presumption that married partners are engaged in a joint family venture, Cromwell J concluded that the common law of unjust enrichment can and should recognize and respond to the reality that there are unmarried domestic arrangements that are partnerships and the remedy in such cases should address the disproportionate retention of assets acquired through joint efforts.

In the words of Cromwell J: Where both parties have worked together for the common good, with each making extensive, but different, contributions to the welfare of the other and, as a result, have accumulated assets, the money remedy for unjust enrichment should reflect that reality. The money remedy in those circumstances should not be based on a minute totting up of the give and take of daily domestic life, but rather should treat the claimant as a co-venturer, not as the hired help. [Emphasis mine] [ 60 ] The parties purchased the home together in 2010.

However, the Respondent has at all times been responsible for the mortgage, property tax and insurance payments for the home. The Applicant did contribute to the cost of the home during the cohabitation by paying utility bills and buying groceries. Subsequent to the separation in 2013, the Applicant contributed no further sums to the home. The Respondent added onto the home in 2016 and made other repairs and improvements. The down payment for the home had been provided by the Respondent’s parents.

In all of these circumstances and given the extremely minimal contribution by the Applicant to the purchase and maintenance of the home, I am not prepared to accord the Applicant an equitable division of the net proceeds. [ 61 ] In the present matter, I have difficulty concluding the parties joint contributed to the equity in the home. The parties agree that the Respondent at all times paid all the costs associated with the home including the mortgage, the property tax, insurance and utilities after the separation.

However, during the course of the cohabitation, the Applicant clearly contributed to the household both in terms of her homemaking efforts in the home and the financial contributions towards groceries and utilities. [ 62 ] The question to be addressed is whether the Respondent will be “ unjustly enriched ” if the Applicant is not entitled to a share the equity in the home. In this case, the contributions to the build up in equity in the home made by the Respondent were far more significant than the contributions of the Applicant.

Further, at the time of separation, the Applicant left the relationship with a Pontiac vehicle that the parties agree was worth approximately $19,000.00 and the Respondent had paid off a lien on the vehicle of $14,000.00. The Applicant did not share this asset with the Respondent at the time of the dissolution of the relationship. Further, while the Applicant maintains she was left with a line of credit of approximately $9,000.00 to $10,000.00 at separation, she concedes that some of this debt may have been incurred after separation.

The significant increase in the equity of the marital home occurred during the post separation period. In all of these circumstances, I cannot conclude that the Respondent has been “ unjustly enriched ” if he retains the equity in the home. [ 63 ] The Applicant is entitled to her share of the Respondent’s pension during the period of cohabitation which has been calculated at $10,700. Given my concern as to the Respondent’s willingness to co-operate in the transfer of these sums, I will order that the clerk of the court may execute any necessary documents to effect the transfer should the Respondent be unwilling.

COSTS [ 64 ] The Applicant has been successful and is entitled to costs. This has been an acrimonious trial rendered difficult and lengthy as a result of the Respondent’s behaviour. The trial was originally scheduled for March of 2022 and adjourned until March of 2023 as a result of the Respondent’s conduct. There have been several interim motions and case management appearances. The Applicant is awarded costs in the amount of $6,000.00 .

PAYMENT OF OUTSTANDING AMOUNTS OWING TO THE APPLICANT [ 65 ] I have determined that the Applicant is entitled to arrears in child support in the amount of $11,484.00 , arrears in childcare expenses in the amount of $2,156.00 and costs in the amount of $6,000.00 . The Respondent made it clear that he would not respect court orders and he would not pay sums owing for his son that were set out in court orders. The Court has complete confidence that the Respondent will live up to his word. [ 66 ]

Section 24 of the Family Law Act states as follows: Order restraining disposition or wasting of assets

24 In or pending an application for a support order under this Act or an order under

section 33 of the Support Enforcement Act, or if asupport order has been made, the Court may make any interim or final order it considers necessary for restraining the disposition orwasting of assets that would impair or defeat the application or support order. [Emphasis mine] [67] In this case, the Court is issuing a support order for the benefit of A.T.W. There are funds available for the payment of thesearrears in a trust account as a result of the sale of the home.

In my view, in order to ensure compliance with the court order in the face ofthe Respondent’s explicit statements that he will not comply, the Court must require payment of these support orders by prioritizing theseover the payment to the Respondent of the equity in his home. [68] In Lynch v. Segal, (ON CA), the Ontario Court of Appeal discussed the use of “vesting” orders in relation tothe enforcement of support orders.

Although the facts in Lynch considered situations where corporations were used to distance a payerspouse/parent from his identifiable assets, the reasoning is nonetheless helpful to the present analysis. Justice Blair, writing for the Court,commented at paragraphs 31 and 32 as follows: [31] The rationale for the vesting power, therefore, is to permit the court to direct the parties to deal with property in accordance with thejudgment of the court. The jurisdiction is quite elastic.

Nothing in the language of either s. 100 of the Courts of Justice Act or s. 34(1)(c)of the Family Law Act operates to constrain the flexible discretionary nature of the power. [32] I do not think any useful purpose is served by attempting to categorize the types of circumstances in which a vesting order mayissue in family law proceedings. The court has a broad discretion, and whether such an order will or will not be granted will depend uponthe circumstances of the particular case. I agree with the appellants that the onus is on the person seeking such an order to establish thatit is appropriate.

As a vesting order -- in the family law context, at least -- is in the nature of an enforcement order, the court will needto be satisfied (as the trial judge was here) that the previous conduct of the person obliged to pay, and his or her reasonablyanticipated future behaviour, indicate that the payment order will not likely be complied with in the absence of more intrusiveprovisions: see Kennedy v. Sinclair, (ON SC), [2001] O.J. No. 1837, 18 R.F.L. (5th) 91 (S.C.J.), affd (ON CA), [2003] O.J. No. 2678, 42 R.F.L. (5th) 46 (C.A.).

Thus, the spouse seeking the vesting order will have alreadyestablished a payment liability on the part of the other spouse and the amount of that liability, and will need to persuade the court that thevesting order is necessary to ensure compliance with the obligation. [Emphasis mine] [69] In the Burton v. Burton, (SK KB), Justice McIntyre considered a request by a petitioner to order thepayment of arrears in support from the Respondent’s share of marital property. In granting the request, Justice McIntyre commented asfollows: If the arrears were child support, ss. 21(2)(

m) would explicitly permit an unequal division. While spousal support is not explicitly listedit can fall within ss. 21(2)(q). Arrears under a support order which required a party to service a joint debt of the parties could also fallwithin ss. 21(2)(q). An order of the nature sought by the petitioner was made by this Court in Demeria v. Demeria, [1995] S.J. No. 753(Q.L.) (Sask. Q.B.), and M.P.F. v. L.G.F., [1993] S.J. 696(Q.L.) (Sask. Q.B.). In this instance there is sufficient matrimonial property to be divided so as to make the order requested by the petitioner.

The respondentwill still be left with substantial matrimonial property. In determining whether to deal with the arrears in the manner suggested bythe respondent it is appropriate to assess the likelihood the payments will, in fact, be made. On the one hand the respondent has inthe past paid reasonable amounts on account of the support of his wife and children. However, I was left with the distinct impression therespondent made payments in accordance with what he felt was reasonable and on terms controlled by him.

I am not left confident thatthe respondent will voluntarily make the payments and if he remains self-employed enforcement proceedings can beproblematic. [Emphasis mine] [70] In the present matter, the parties were not married, and the Marital Property Act, RSNB 2012, c 107 does not apply. Further, Ihave determined that the Applicant is not entitled to a portion of the equity in the home by virtue of the common law principle of unjustenrichment. I have determined however that the Respondent owes the Applicant $19,640.00 in retroactive support for A.T.W. and costsof these proceedings.

While I accept that the Respondent is entitled to 100% of the equity in the home, I find that this award must beoffset by the sums owing to the Applicant as ordered in this decision. [71] The Family Law Act contains several provisions which may be included in a support order as ordered by the Court. In particular,section 21(2) of the Act provides as follows:

(2) In a support order, the Court may order (

a) an amount to be paid periodically, whether monthly or otherwise and whether for an indefinite or limited period or until the happening of a specified event, (

b) a lump sum to be paid or held in trust, (

c) any specified property to be transferred to the dependant or in trust for the benefit of the dependant or vested in the dependant, whether absolutely, for life or for a term of years, (

d) that one spouse be given exclusive possession of a marital home or part of it for any period the Court directs, (

e) that a spouse, to whom exclusive possession of a marital home is given, pay any periodic payments to the other spouse that are set out in the order with respect to the use of the marital home, (

f) that the household goods within a marital home, or any part of them, remain in the marital home for the use of the spouse given possession, (

g) that a spouse assume the obligation to repair and maintain the marital home or to pay other liabilities arising in respect of the marital home, (

h) that all or any of the money payable under the order be paid into court or to any appropriate person or agency for the benefit of the dependant, (

i) the payment of support to be made in respect of any period before the date of the order, (

j) the payment to the Minister of Social Development, or into court for the Minister of Social Development, of any amount in reimbursement for any payment that has been made in respect of a person under the Family Services Act, (

k) the payment of expenses in respect of the prenatal care and birth of a child, (

l) that the obligation and liability for support continue after the death of the person who is liable to pay support and be a debt of that person’s estate for any period fixed in the order, (

m) that a spouse who has a policy of life insurance as defined in the Insurance Act designate the other spouse or a child as the beneficiary, (

n) the securing of payment under the order, by a charge on property or otherwise, and (

o) the payment of expenses, legal or otherwise, arising in relation to the application for the support order. [Emphasis mine] [ 72 ] In this matter, given the Respondent’s position that he will not make payment in compliance with support orders or court orders generally, I will order the proceeds currently held in trust by William T. Walker be used to secure the payment of the current outstanding amount of $19,640.00 . In concluding this step is necessary, I have considered the previous conduct of the Respondent and the likelihood

that he will ignore the orders in determining this unique relief is necessary. The Respondent receives a pension from the federal government which should facilitate the Applicant’s ability to garnish his income in payment of his future support obligations. CONCLUSION and DISPOSTION [ 73 ] For all the aforementioned reasons, the Court orders as follows: (

i) Pursuant to

section 54 of the Family Law Act , the Applicant shall have sole decision-making responsibility for the child, A.T.W, born March 13, 2012; (ii) Pursuant to section 53(1) of the Family Law Act , the Applicant shall have sole parenting time with the child; (iii) Pursuant to

section 3 of the Federal Child Support Guidelines and given the Respondent’s annual income of $68,000.00, he shall pay monthly child support in the amount of $591.00 commencing on July 1, 2023; (iv) Pursuant to

section 7 of the Federal Child Support Guidelines and given the Applicant’s income of $87,000.00 and the Respondent’s income of $68,000.00, the parties shall share special expenses on a pro-rata basis with the Applicant responsible for 56% of the net cost and the Respondent responsible for 44% of the net cost; (

v) The Respondent is ordered to pay $11,484.00 in arrears in child support and 2,156.00 in arrears in special expenses; (vi) All future payments of child support and special expenses should be paid through the New Brunswick Office of Support Enforcement; (vii) The Applicant is entitled to costs in the amount of $6,000.00 ; (viii) Pursuant to section 21(2) (

n) of the Family Law Act , the total outstanding amounts owing to the Applicant of $19,640.00 shall be secured by and paid out of the funds held in trust by solicitor William Walker; (ix) The Applicant’s claim for an interest in the home located in Charters Settlement is denied; and (

x) The Applicant is entitled to $10,700.00 as a spousal rollover from the Respondent’s military pension. In the event the Respondent has not signed the necessary documents in order to effect this transfer then pursuant to the provisions of the Judicature Act , the clerk of the court in the judicial district of Fredericton is authorized to sign any necessary document on his behalf. DATED at Moncton, New Brunswick, this 31 st day of May 2023. Tracey K. DeWare Chief Justice of the Court of King’s Bench of New Brunswick