H.M., Applicant v. D. M.,, 2023 NBKB 140

2023 NBKB 140 Court File No.: FDF-256-2019 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF FREDERICTON UNDER THE Family Law Act , S.N.B. 2020, c. 23 BETWEEN: H.M., Applicant -and- D. M., Respondent Before: The Honourable Mister Justice Danys R.X. Delaquis Date of hearing: May 18 and 19, 2023 Date of Decision: August 4, 2023 Appearances: Natacha I. Bosse - for the Applicant Grant Ogilvie, K.C. - for the Respondent

Summary of Proceeding: Parenting Order under the Family Law Act involving mental heath considerations DECISION DELAQUIS, J.: OVERVIEW

[ 1 ] The focus of the hearing was whether it was in the child R.I.M.M.’s (D.O.B. …2014, “the child”) best interests to resume the equal parenting time arrangement that was in place before the Mother’s mental health crisis from November 18, 2022, to January 30, 2023. [ 2 ] The Father believes that the Mother is in transition, recovering and not ready to assume full-time parenting duties on a week on, week off basis in accordance with the Domestic Contract and Addendum. The Father wants sole decision-making responsibility in addition to primary care of the child.

He alleges that the Mother intentionally did not inform him of her mental health crisis and further relies on evidence from his partner and the Mother’s sister to support his position. The Father proposes that parenting by the Mother should only take place every second weekend in addition to the agreed upon time for holidays and special occasions. [ 3 ] For reasons that will be discussed below, I find it is in the child’s best interests to return to an equal shared parenting arrangement gradually.

In this case, the Father’s position is a marked departure from what the parties had agreed to in the Domestic Contract signed in December 2018 and the Addendum dated January 11, 2021. I will attach some weight to the Domestic Contract and Addendum. The equal parenting time arrangement was working to the benefit of the child, who is doing reasonably well despite his parents’ communication issues. [ 4 ] Even when faced with the knowledge of the extent of the Mother’s mental health crisis, the Father remains hyper-focused about her alleged intention to hide her mental health issues from him.

His expectations of what she should do amid this crisis reflects a misunderstanding of her precarious state at that time. The Father’s unwillingness to show some empathy and cooperate with the Mother in a potentially life and death moment for the benefit of the child left an impression with the Court. [ 5 ] Furthermore, the medical evidence does not support the Father’s position. The treating psychiatrist, Dr. Haji Adam Vayani, confirmed that at the time of her discharge, the Mother “was doing well and was more than capable of taking care of her children”.

The Mother’s therapist, Bobby Ross believes that the Mother “is actively engaged in her parenting and very supportive in her children’s development”. The Mother returned to work and is following all recommended treatment. She shows good insight by nevertheless recognizing that a period of transition may be in the child’s best interests before resuming full shared parenting duties.

BRIEF PROCEDURAL HISTORY [ 6 ] On March 6, 2023, the Mother filed a Notice of Motion requesting an abridgment of time to be heard because the child had not yet been returned to her for any parenting time after her discharge from the hospital. The Mother asked for a return to full shared parenting time with the child. The request for an abridgment was granted and a hearing was held on March 14, 2023. [ 7 ] I rendered an oral decision on March 17, 2023, and denied the request on an interim, interim basis.

However, I did issue a parenting order that provided the Mother with parenting time on a gradual basis with decision-making responsibility and primary care to the Father pending the disposition of the motion. I further ordered that the motion be heard on May 18-19, 2023. [ 8 ] After some discussion with the parties, the Mother amended her Notice of Motion by consent to include the parenting time relief that she was seeking in her original Application filed in 2019 as it pertained to access during holidays and special occasions.

Understandably, redoing this judicial exercise yet again was not appealing to the parties, nor an effective use of their financial resources. [ 9 ] The parties therefore agreed to proceed to a Final Hearing on a parenting order that encompassed decision-making responsibility and parenting time under the Family Law Act , S.N.B. 2020, c. 23 ( FLA ). The issue of child support was scheduled to be heard on June 5, 2023, even before the Motion was filed. Based on the timing of this hearing, the determination of child support was deferred to another date by consent.

If the parties cannot resolve this issue after this decision is rendered, they will be heard as soon as possible. ISSUES [ 10 ] The issues that the parties have asked me to decide are the following:

1. Does the Applicant need to establish a material change in circumstances? 2. What Parenting Order is in the child’s best interests? 3. Costs. ISSUE 1 – DOES THE APPLICANT NEED TO ESTABLISH A MATERIAL CHANGE? [11] At the outset of trial, I raised the issue of whether the Applicant had to establish a material change in circumstances whenthere was a Domestic Contract and Addendum in place, but no prior order, on parenting.

The issue of material change was canvassed bythe parties in their Pre-Hearing Briefs with the belief that the Applicant may need to cross this threshold to obtain the relief sought. [12] Counsel informed the Court that they found no jurisprudence from New Brunswick that was on point. However, they didsubmit case law from other jurisdictions to support the principle that no material change in circumstances needs to be established:Campbell v. Campbell, 2016 SKCA 39 ; Lloyd v. Lloyd, 2018 SKQB 116 ; Belfour v. Belfour, 2007 SKQB 295; Wouters v.

Wouters 2008 NWTSC 61 . [13] Counsel agree that no material change needs to be proven in this case based on the specific language in Clause 7(

c) of theDomestic Contract, which was not amended in the Addendum. Clause 7(

c) waives the requirement of either party to establish a materialchange in circumstances if they cannot resolve an access issue. For clarity, Clause 7(

c) reads as follows: (c) [D.M.] and [H.M.] acknowledge that the aforesaid access may, at a future date, be extended by mutual agreement.

In the event thatthey are not able to resolve the access issue to their mutual satisfaction, either party shall be at liberty to apply to a court of competentjurisdiction for resolution of the issue. [D.M.] and [H.M.] acknowledge and agree that should the matter be submitted to the Court fordetermination, neither party shall be required to prove a material change in circumstances from the date of the Agreement and anyrequirement for proof of change of circumstances is hereby waived. [14] In Campbell v.

Campbell supra, the Saskatchewan Court of Appeal referred to two other appellate decisions, Sappier v.Francis 2004 NBCA 70 and Sather v. McCallum 2006 ABCA 290 S.K.C.A. 39 and concluded at paragraph 25 that these cases“show that court orders can either on the agreement of the parties or at the behest of the court contain variation provisions which do notrequire a material change in circumstances”. [15] In Lloyd v. Lloyd, the parties signed a “comprehensive Interspousal Agreement”.

The Mother argued that the Father’sapplication seeking to restrain her from relocating should be dismissed because he had not demonstrated a material change incircumstances. The Court disagreed and noted that the statutory threshold requiring a material change in circumstances did not apply toagreements regarding parenting arrangements. This is what the Court said at paragraphs 12 and 13 on this point: [12] I do not find this argument persuasive. The law respecting the statutory threshold requiring a material change in circumstancesdoes not apply to arrangements prescribed in a parenting agreement.

While, practically speaking, the same type of analysis may beappropriate in some cases, a party seeking an interim order that differs from the terms of a parenting agreement need not meet anythreshold test before the court will consider the merits of the application. The proceeding is a fresh application focused solely upon thebest interests of the child. [13] Furthermore, the terms of a parenting agreement are not binding on the court.

They are simply one factor the court will considerwhen determining what parenting arrangement is in the best interests of the child: Gordon v Goertz, (SCC), [1996] 2SCR 27 at para 69; S.K. v R.K., 2015 SKQB 235, 479 Sask R 94; J.L.P. v J.R., 2014 SKQB 366 at para 6, 461 Sask R 139; and Watch vWatch (1999), (SK KB), 182 Sask R 237 (QB) at paras 6 to 8.

The weight to be afforded to the agreement willdepend on a number of factors including the circumstances surrounding the negotiation and execution of the agreement, the date of theagreement, any changes since the agreement was reached, the formality of the agreement, and whether, in fact, the terms of theagreement were implemented, followed and appear to be in the best interests of the child at this time. [16] Belfour v. Belfour, supra is a case where the Father applied for a variation of an interim parenting order after a pre-trialconference resulted in settlement of all outstanding issues.

The Court explained the issue at paragraph 12:

[12] Part of the relief sought is a variation of a memorandum of settlement. A settlement agreement is an arrangement between parties,akin to a separation agreement or interspousal contract, and not a court order. Neither the applicable legislation nor The Queen's BenchRules allow for or contemplate an application for variation of an agreement. See Steiner v. McKnight, 2001 SKQB 12, 2001 SKQB 12, 14 R.F.L. (5th) 193.

The appropriate procedure would be to bring a notice of motion claiming interim relief at which time theexistence of the agreement would become a factor to take into account when determining the merits of the motion. Accordingly, theapplication, insofar as it pertains to the application to vary the memorandum of settlement, is dismissed. [17] In Wouters v. Wouters, 2008 NWTSC 61 , the relationship between the spouses was very acrimonious. TheirAgreement provided for joint custody with the Mother having primary care of three children. The parenting arrangement becameunworkable for various reasons.

The Court decided that because of the Agreement between the parties, there was no requirement to showa material change in circumstances at paragraph 12: [12] In my view there is no need for either party to show a change in circumstances when seeking an order that is different from thecustody provisions of a separation agreement where there is no court order, although as a practical matter the party seeking a change willhave to show that there is a good reason why the custody provisions in the agreement should not prevail.

The governing principle is thebest interests of the children. [18] Counsel for the Father also relied upon s. 39 of the Marital Property Act, S.N.B. 2012, c.107 to make the further point that theCourt may disregard a domestic contract where it is in the best interests of the child to do so: 39 In the declaration of any matter respecting the support of a child or parenting time or decision-making responsibility with respect to achild, the Court may disregard any provision of a domestic contract pertaining to it if, in the opinion of the Court, to do so is in the bestinterests of the child. [19] I am satisfied that the Applicant does not need to establish a material change in circumstances in this case for the followingreasons. [20] First, Clause 7(

c) is clear: the parties’ intention after consulting counsel to waive the requirement of material change wherethere is no Order of the Court should be upheld. Here, the parties decided to settle the question of parenting time in the DomesticContract and Addendum and contemplated a mechanism to address future conflict on parenting. There is certainly merit to parentsresolving parenting issues, with the benefit of legal advice and full disclosure, instead of relying on the Courts to make decisions forthem. Indeed, there are important public policy reasons that encourage settlements in family law matters.

In the seminal case of Gordonv. Goertz, (SCC), McLachlin J. explains: Parental agreements should be the rule and must be encouraged since parents are generally in the best position to assess the best interestsof the child. In addition, such agreements minimize ongoing parental conflict and litigation, which are clearly not in the best interests ofchildren. Research on the emotional impact on children of such conflict, notwithstanding its limits, widely supports this common senseobservation. See Young, […], at p. 80 (per L’Heureux-Dubé J.); N. Weisman, […], at pp. 54-61; R.

Krell, “The Emotional Impact onChildren of Divorce and Custody Disputes”, in R. S. Abella and C. L’Heureux-Dubé, eds., Family Law: Dimensions of Justice (1983),175. [para. 114] [21] Second, irrespective of the intention of the parties, I must still conduct a best interest of the child analysis in accordance withthe FLA. I am not bound to blindly follow any agreement without considering whether the relevant provisions legitimately reflect thebest interests of the child. In my view, this is a Motion that is focused only on the best interests of the child. As the Supreme Court ofCanada stated in Gordon v.

Goertz, at paragraph 69: 6. Agreements between parents as to any right of the child, be it custody, access or child support, are not binding on courts and must beviewed in light of the best interests of the child (Pelech v. Pelech, (SCC), [1987] 1 S.C.R. 801, at p. 845 (per Wilson J.);Richardson v. Richardson, (SCC), [1987] 1 S.C.R. 857, at p. 869 (per Wilson J.); Willick, supra, at p. 686 (per SopinkaJ.) and at p. 727 (per L'Heureux-Dubé J.); G. (L.) v. B. (G.), (SCC), [1995] 3 S.C.R. 370, at pp. 396-99 (per L'Heureux-Dubé J.)).

[22] See also Mercereau v King, 2023 SKKB 99 at paragraphs 19 to 25. [23] Third, I will consider what weight to give the Agreement in the context of my overall analysis of the best interests of thechild. In addition to the cases referred to above on this point, I refer to the recent Saskatchewan Court of Appeal decision of Friesen vFriesen, 2023 SKCA 60 . [24] In that case, the Saskatchewan Court of Appeal considered the Trial Judge’s application of the Lloyd v.

Lloyd, supra decision.The Trial Judge found that it was not in the child’s best interests to give “any effect to the restrictive parenting arrangements set out inthe Agreement” in the context of the Mother’s request to relocate. The Court of Appeal in Friesen v Friesen decided that the TrialJudge’s findings with respect to the Agreement should be read in conjunction with the best interest analysis he conducted. It was open tothe Trial Judge to exercise his discretion in determining what weight should be given to the Agreement. ISSUE 2 – WHAT PARENTING ORDER IS IN THE CHILD’S BEST INTERESTS?

Statutory Framework [25] I am asked to make a parenting order in respect of decision-making responsibility and parenting time. Determination of thisissue requires consideration of s.52 of the FLA, which reads as follows: 52(2) The Court may make a parenting order providing for the exercise of parenting time or decision-making responsibility in respectof any child on application by (

a) one or more parents, or (

b) a person, other than a parent, who stands in the place of a parent or intends to stand in the place of a parent. 52(4) In a parenting order, the Court may (

a) allocate parenting time in accordance with subsection 53(1), (

b) allocate decision-making responsibility in accordance with

section 54, (

c) with regard to communication that takes place during the parenting time allocated to a person, include requirements with respect toany means of communication used between a child and another person to whom parenting time or decision-making responsibility isallocated, (

d) direct the parties to attend a family dispute resolution process, (

e) authorize or prohibit the relocation of a child, (

f) require that parenting time or the transfer of a child from one person to another be supervised,

(

g) prohibit the removal of a child from a specified geographic area without the written consent of a specified person or without a court order authorizing the removal, and (

h) provide for any other matter that the Court considers appropriate. 52(5) The Court may make a parenting order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions in the order that it considers appropriate. [ 26 ] Section 50(1) of the FLA requires that only the best interests of the children be considered when making a Parenting Order. I must therefore consider the factors set out in 50(2) and (3) of the FLA .

The children’s physical, emotional and psychological safety, security and well-being must be given primary consideration pursuant to s. 50(3) of the FLA . Section 50(2) of the FLA states that all factors must be taken into consideration when determining the best interests of the children. [ 27 ] Factors relating to (

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

k) whether any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child were not argued because they are not relevant to this case. [ 28 ] The Mother argued the factor of family violence in her Pre-Hearing Brief. Her argument is that the Father’s alleged “abuse and controlling behavior she has suffered and continues to suffer at the hands of the Father does not warrant an order for him to be awarded a co-parenting situation without including the use of a parenting application to manage their communications”.

The Mother alleged a “History of Abuse” in her Supplementary Affidavit. She alleged more specifically psychological, emotional and financial abuse directed at her. [ 29 ] However, the family violence argument was not pursued with any great vigour at the trial. One of the reasons is that the Father consented to use the parenting Application. There is no allegation or evidence that the child was a victim of any family violence. There is no conduct that is violent or threatening toward the child or the Mother. I am not satisfied that a pattern of coercive or controlling behavior exists in tis case.

The Mother and the child never feared for their safety either, nor have they been abused. In addition, the evidence at trial from Dr. Vayani confirmed that there may be multiple causes that explain the Mother’s mental health diagnoses. The cause(

s) related to the Mother’s mental health instead help contextualize other factors, such as her ability to meet the needs of the child and the history of care. For these reasons, the allegation of family violence has not been stablished and will not factor into my best interests analysis. [ 30 ] I will focus on the factors that are relevant to this case and provide my findings on each of them.

Findings The child’s needs, including the need for stability, given the child’s age and stage of development [ 31 ] This is an important factor to consider because the Father has cast doubt on the Mother’s ability to meet the child’s needs based on recent events surrounding her mental health. In fact, the Father argued that the Mother is, right now, “a mess”. I disagree. [ 32 ] The Father’s position is inconsistent with the best and only medical evidence tendered at trial. Dr.

Vayani has worked 20 years as a psychiatrist and has extensive clinical experience treating patients with a range of mental health issues, including drug addiction. Dr. Vayani was declared an expert in the field of psychiatry. It is difficult to imagine that he would discharge the Mother if he believed that she was “a mess”, as alleged by the Father. Dr. Vayani left me with the distinct impression that the Mother was stable and that she posed no safety risk to either herself or, significantly, to the child.

[ 33 ] The Discharge

Summary prepared by Dr. Vayani confirms that the Mother voluntarily sought out assistance. She was depressive and had suicidal thoughts. She recognized that she was not doing well and informed Dr. Vayani that she could not confide in the Father for help. The Mother’s medication was insufficient to treat the stressors that overwhelmed her at that time including, finances, the move to her parents, dealing with her Father’s dementia and the Father. Dr. Vayani confirmed that the Mother cooperated and complied with all recommended treatment.

The diagnosis at the time of discharge was Major Depressive Disorder and Borderline Personality Disorder. She was prescribed Seroquil, Effexor and Paxil upon discharge. [ 34 ] The reason the Mother was in care for approximately 2.5 months is because it took some time for Dr. Vayani to adjust the medication to meet her specific needs. The evidence is not that the Mother was continuously getting progressively worse. The Discharge

Summary states that: “[T]here was gradual improvement in her mental status with regards to her depression and suicidal thoughts”. The first weekend of her admission she requested, and was granted, weekend passes. Her course in the hospital involved some unexpected setbacks because of new trigger/stressors, which Dr. Vayani described in his Discharge

Summary as follows: These stressors or particularly related to her ex-boyfriend (Father of her eight years old son) will give her tough time, called child protection and she was contacted by the social worker from child protection while she was in hospital. When this issue gradually settled down, her ex-husband started giving her tough time. She was also not happy living with her parents and thinning [sic] about moving. [ 35 ] Dr. Vayani indicated during cross-examination that any call to CPS was unwarranted because she was already in distress and in the hospital.

He believed that the Mother was a truthful patient. [ 36 ] The Mother sates in her Affidavit at paragraph 35: 35. As for my mental health, I am followed by the psychiatrist at the Victoria Health Center. I've registered to do the STEP program. I was diagnosed with borderline personality disorder and this program is helpful in the long term to resolve issues related to emotions. It was said and I believe this to be true, that I was in survival mode for so long during my relationship that my identity was gone and I did not know how to deal [sic]. This program should help. It is a 6-month program. [ 37 ] Dr.

Vayani’s opinion, which I accept, was that the Mother was mentally stable and capable of taking care of her children. The Mother had returned to baseline and was functioning at the same level she was before she was admitted in November 2022. Counsel for the Father suggests that Dr. Vayani is not an expert in parental assessment. Dr.

Vayani is, however, an expert able to give opinion evidence in relation to his diagnosis, treatment, observations, the Mother’s state of mind, her ability to function in the community from a mental health perspective and whether she is a risk to herself or to others, including the child. Dr. Vayani’s expertise as a psychiatrist is broader than counsel for the Father suggests. In fact, counsel consented to his field of expertise. I believe that Dr. Vayani is imminently qualified. He was aware of the context of these proceedings.

I am satisfied that if he had any significant concerns about the Mother being able to function and care for the child from a psychiatric perspective, he would have disclosed them to the Court. Dr. Vayani’s opinion in no way exceeded his expertise in this matter. [ 38 ] The child is nine years old. By all accounts, the child is doing reasonably well in all aspects of his life. He is healthy, athletic, active, and is involved in extra-curricular activities such as piano, football and skiing. Football is three times per week, piano every second Friday.

The child enjoys, and asks, to play soccer, basketball, and ski as well. Skiing activities happen on the weekend during the season. According to the Father, the child has no issues at school, “has always been good in school” and has never needed a tutor.

[ 39 ] The Mother works from 8:30 a.m. to 2:00 p.m. during the week and can therefore care for the child after school and on weekends. One of the challenges that emerged from the evidence is whether the Mother can, and will, continue to ensure that the child attends activities, especially skiing. She argues that she cannot meet the same standards that the Father has when it comes to activities for the child because her household income is nominal compared to his. The Father expects the child “to be as successful as he can be”.

He simply does not believe that the Mother has any desire to bring the child to activities. [ 40 ] The Father and M.C. have a young daughter. M.C. is a lawyer and teaches as well. M.C. is not working now but since maternity leave ended, she has, according to the Father, started “taking a few files.” They are both home right now because the Father was on parental leave as well until it ended in February 2023.

The Father works for a local construction company “sometimes.” [ 41 ] It is important for this child, who has been described as athletic and active, to continue to attend extra-curricular activities, including football and skiing because it is good for his physical and psychological development. This is true for as long as he wants to be involved, has fun, and his participation benefits his overall well-being.

This does not take away from any of the activities the Mother wants to enjoy with the child during her parenting time. [ 42 ] The Father is prepared to pay for all costs associated with skiing, including ski gear and registration. This approach in essence removes the Mother’s concerns about the financial hardship she may face in making sure the child attends skiing. Once the child support issue is resolved, her financial situation should stabilize. Child support belongs to the child and is meant for the child.

The child’s activities do not overlap; he does not play spring and summer football and ski at the same time. [ 43 ] Sometimes parents must make sacrifices to ensure that their children attend extra-curricular activities because the focus is not on what the parents want: it is for the benefit of the child. To that extent, I do not believe that a parallel parenting order, as suggested by the Mother, will achieve this objective.

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 [ 44 ] The Mother alleges that the Father is too demanding on the child and maintains a standard that the child cannot meet, which presumably means that they have a strained relationship. I was not satisfied that this in fact depicts the nature of the child’s relationship with his Father.

In my view, their relationship is strong and healthy. [ 45 ] The Father says that the Mother’s relationship with the child is not very good because she is unstable and parents the child very differently, i.e. she is late for activities. The fact that parents may have different parenting styles does not mean that their relationship with the child is not good. I am satisfied that the nature of the Mother’s relationship with the child is different than with his Father, but that it is also strong and healthy. [ 46 ] The child has a good relationship with all siblings.

The Mother has two other children from a previous marriage who are now 15 and 19 years old, respectively. [ 47 ] The Father and M.C. have a young child who will, I am sure, develop a strong bond with the child over the next several years. [ 48 ] There was little evidence presented about the child’s relationship with the grandparents.

Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent [ 49 ] This is an important consideration in this case mainly due to the history of care outlined below, the history of poor communication and because recent events demonstrate an unwillingness to support the Mother’s relationship with the child in the face of what was a very real mental health crisis. [ 50 ] It is obvious that it would be detrimental to the child’s emotional well-being if anything serious happened to his Mother. Any suggestion to the contrary is unreasonable.

Yet, in this case the focus from the Father, when the Mother was admitted to the hospital right up to the time of trial, was not entirely child focused. I say this because the Father has focused on the Mother’s alleged intention to mislead him about her mental health instead of being mindful of the repercussions that it was having, and would continue to have, on the child in that moment.

Indeed, the Mother’s sister, O.M., reinforced the Father’s perspective at paragraph 30 of her Affidavit. [ 51 ] The Mother was worried about surviving the day, but he expected her to simply call him to give him the details when he knew or ought to have known that he was a stressor in her life. As she testified: “I just broke”. She was not in a state of mind to act perfectly.

She made sure the child was safe and understood that the Father would necessarily assume care for the child during her absence. [ 52 ] During this whole ordeal, the Father has not demonstrated a willingness to foster in a meaningful manner, the child’s relationship with the Mother. There is no evidence from the Father that he was in any manner empathetic toward what the Mother was going through. He in fact relies upon what happened to now bring to the Court’s attention his historical concerns about her parenting, maintains that she is “a mess” and cannot parent.

He admitted in cross-examination that he has done a lot of reading to educate himself about mental health and stated that he has not been there with her to understand “her reality”. Yet he lived with her for years, admits that she told him about her childhood trauma, that he knew she suffered from some mental health issues and that she took medication well before November 2022. [ 53 ] In addition, as will be discussed in more detail below, he trusted the Mother with primary care of the child while he worked out West for years and later agreed to a formal shared parenting arrangement.

The history of care of the child [ 54 ] The Mother has been the child’s primary caregiver until her mental health crisis in November 2022. In September 2013, shortly after the Mother became pregnant with the child, she moved in with the Father. The child was born in 2014. The Father worked out West at that time, but eventually returned to New Brunswick to settle down. The parties were never married. After living together for close to four years, they separated in 2016.

[ 55 ] The Father confirmed in his testimony that he had no issue with the Mother having primary care of the child while he worked out West, despite her mental health issues. Their relationship got progressively worse and became argumentative to the point that the Father moved into his Father’s house in 2016-2017.

It was suggested on cross-examination of the Father that it was stressful for the Mother to adhere to his high standards. [ 56 ] Shortly after separation in 2016, the Father became involved in another relationship with his current partner, M.C. [ 57 ] The parties signed a Domestic Contract in December 2018. The Domestic Contract provided for joint custody of the child but that the Mother shall be the “primary day to day custodial parent”. The Domestic Contract provided that the Father shall have custody and care of the child a minimum of six consecutive days and nights.

It further provided that if the parties cannot agree to mutually resolve access issues that they would be at liberty to apply to the Court, but that “neither party shall be required to prove a material change in circumstances (…)” as noted above. [ 58 ] The Father was aware during the period of co-habitation that the Mother suffered from Depression. He knew she was taking medication during their relationship as well. In fact, he swears in his Affidavit at paragraph 15 that: “ For as long as I have known the applicant, she has struggled with her mental health and with finding a purpose”.

The Domestic Contract was signed by the Father with this knowledge in mind. It was also signed while the Father was involved in a relationship with M.C., and just before they started living to together in 2019. [ 59 ] The Father’s evidence is that coparenting “ has been extremely difficult to manage because the applicant often lies or withholds important information from me regarding [the child], which I outlined below”. The Mother’s perspective is different as set out in her affidavit evidence and in cross-examination.

More specifically, she refers to various incidents to support what she describes as psychological, emotional, and financial “abuse” by the Father. She testified that she “cowers before him”. She does however agree that they have communication issues. [ 60 ] The Minister of Social Development was previously involved with this family and again when the mental health crisis happened. There is some dispute about who complained to the Minister, when the complaints were made and why. They were unsubstantiated and after the Mother was discharged, the ongoing investigation was closed.

The Father testified in re-direct that he only became aware of the ongoing MSD investigation at the trial. [ 61 ] Notwithstanding the Father’s concerns about co-parenting, and the Mother’s parenting style, the Domestic Contract was amended on January 11, 2021, when the parties signed an Addendum. The Addendum confirmed joint and shared custody of the child with an access

schedule of one week on, one week off. Although the Addendum also provided for payment of child support based on a set off calculation in addition to provisions relating to special expenses, the parties agreed that all other terms of the Domestic Contract remained enforceable. [ 62 ] The Father indicates in his Affidavit that he had concerns about the child having allergies in the fall of 2022. There was a dispute about what the doctor told the parties.

In any event, the Father confirmed in cross-examination that the child has no allergies, no asthma, and no health issues. [ 63 ] The equal parenting time agreement was in effect from January 11, 2021, to November 18, 2022, or approximately 22 months.

The Father alleges that prior to November 2022 that the child “would always return to my care looking or feeling unwell (…). It would take the child a day or two to recover from being in his Mother’s care. I observed [the child] being mentally and physically exhausted after spending one week in his Mother's care”. In essence, the Father believes that the child was “suffering mentally and emotionally because of the environment he was living in with his Mother”.

His counsel suggested that the Father has showed “great restraint” in the circumstances. [ 64 ] However, it was suggested on cross-examination that the Father did nothing to fix or address his concerns which allegedly existed over an extended period. D despite his significant concerns regarding the child’s well-being, the Father never sought counselling for the child, never spoke to any teachers, the family doctor or a psychologist and never requested that the child’s views and preferences be assessed in a Voice of the Child report or in any other manner.

His evidence is based solely on his observations. [ 65 ] The child has been in the Father’s care since the Mother experienced her mental health crisis in November 2022. The Father says in his Affidavit that “the change I have seen in [the child] in these last few months is drastic. I have observed [the child] flourish and I have watched the stress evaporate from his face”. The suggestion here by the Father (and others) is that the child has no stress and is flourishing, despite knowing that his Mother is not well.

I am left with the impression from this evidence that the child is not worried or concerned about his Mother. I am skeptical about this evidence, if indeed that is the intent behind it, because it was the child who informed the Father that “I am worried about my mom” the week before she was admitted to the hospital. [ 66 ] I have some concerns about the Father’s evidence with respect to the Mother’s alleged behavior before she was admitted to the hospital. He relies on statements made by the child the week before her admission such as, “I am worried about my mom” and “I am worried she is not being safe”.

The Father then extrapolates from the child’s statements that: “It is my belief that the child was questioning his Mother's safety because he was observing her self-destructive behavior and was living in an unstable environment”. However, the Father had no personal knowledge to support his belief, because he alleges that the Mother intentionally withheld such information from him in any event: I spoke with the Applicant on the phone while she was in the psychiatric ward and she confessed to me that [the child] was not thriving in her care prior to her going to the hospital.

She withheld from me just how bad her situation was until she was in the psychiatric ward and could no longer deny it. [ 67 ] The Father has read into the child’s statements facts they do not really convey. I only take from the child’s statements that he was worried about his Mother. If the Father’s belief was as he states, what did he do immediately after the child informed him about these concerns? His affidavit is silent on this point. The Father may argue that communication between them was not good, so any attempt to act at the time would have been futile.

But if the Father did in fact interpret the child’s statements as he says he did, that the Mother was self-destructing and was living in an unstable environment, it would be incumbent upon him to at least try to confirm his suspicion, for the benefit of the child. Instead, the child’s statements are being interpreted with the benefit of what happened one week later when the Mother was admitted to the hospital. [ 68 ] In any event, the Mother disputes the Father’s version in her Affidavit: Contrary to paragraph 14, I am unaware of this as [the child] never showed or mentioned any of these concerns to me.

Contrary to his paragraph 15, I was not in the right frame of mind, and I do not recall this conversation with him. I did not withhold any information. [The father] knew where I was.

[ 69 ] It was only during cross-examination that the Court was informed of the Father’s explanation to the child about what is going on with his Mother. The child was advised by the Father that his Mother was in the hospital for various reasons, that she has an illness in her brain and was getting proper help. The Father said that the parenting

schedule will change until he receives more information. According to the Father, the child was quiet, then “bounced back” and no further discussions happened over the last few weeks. [ 70 ] The Father candidly admitted that the Mother was a “great mom once upon a time”, but that he does not know the Mother now like he did in years past. He hopes that she can get back to who she once was, eventually. [ 71 ] After the Interim, Interim Order was issued on March 17, 2023, the child has asked the Father when he may stay with his Mother overnight. However, this option was never offered to the child. [ 72 ] The Father now basically agrees with the special occasion and holiday

schedule that was requested in the Mother’s original Notice of Application filed in 2019. The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained [ 73 ] There was very little evidence on this factor likely because of the child’s age (9). No Voice of Child Report was requested by any party. The child has not been referred to, or attended, any counselling. Some of the child’s views have been expressed through the lens of the parents as reflected in the affidavit evidence. In certain instances, their affidavit evidence is conflicting.

For these reasons, I do not believe this factor carries much weight in determining the issue that confronts the Court in this case. Any plans for the child’s care [ 74 ] The Mother’s plan is to continue to pursue treatment of her mental health, keep working about 30 hours per week and care for the child. The Mother showed good insight, in my view, when she agreed to “not send him [the child] full-time” and to “slowly wean him” back to a full one week on, one week off, parenting

schedule because she wants the child to be “Okay”. [ 75 ] The Father does not yet know exactly what his plan is for the child because he and M.C. have not yet returned to work full- time. I am satisfied however that the absence of a specific plan by the Father now is in no way detrimental to the child. In other words, both parents have, or will put in place, a plan for the child while he is in their respective care that is proper.

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 [ 76 ] There is no evidence to suggest that either parent would not be able or willing to follow an order of the Court. In fact, the Mother suggests that a very detailed order is necessary because the Father insisted on following the “black letter” of my previous Interim, Interim Order.

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 [ 77 ] The Father submits that their communication issues preclude joint decision making. As Baird, J.A. stated in J.H. v.

T.H. 2017 NBCA 7 at paragraph 33 : “In child custody cases where it is clear the parents are not able to effectively communicate with each other, the pivotal factor, in my opinion, is whether the court is satisfied sufficient safeguards are in place so as to insulate the children from the parental conflict.” [ 78 ] In Canadian Family Law (7 th Edition) at page 558, the authors Julien Payne and Marilyn Payne refer to a number of decisions for the proposition that while ongoing conflict is not an automatic ban to “some form of joint custody or shared parenting order, the

degree of conflict may be sufficiently high to preclude such an order.” The authors then refer to the comments of Justice Pentelechuk in AJU v GSU , 2015 ABQB 6 at paragraph 76 : “[c]ommunication issues and lack of cooperation for a couple caught in the turbulence of divorce should not be compared to an impossible standard that does not exist in the most functional of families.” It is important to consider the nature and extent of the conflict. [ 79 ] In this case my consideration and analysis of the evidence shows that: • Both parents have been involved consistently in the care of the child; • Both parents have much to offer in terms of decision making despite their different approaches; • Both parents have made efforts to optimize the child’s best interests despite their somewhat different parenting styles since 2016; • A lot of communication and cooperation issues have arisen in respect of the child’s participation in extracurricular activities, which is a root problem that will be addressed in the Order; • Despite the parents’ disagreements, the child is doing reasonably well overall, including in school; • The Agreement regarding shared parenting was put in place since 2018 with one change in 2021 which added consistency and continuity; changing that arrangement now may be disruptive to the child; • Both parents have showed restraint in terms of their communication.

There is no evidence of vicious text messages or offensive language toward one another; • There is no evidence of abusive behavior by any parent directed toward the child resulting from their communication issues; • Overall, the child has been reasonably insulated from the communication problems and not used as a pawn by one parent to gain favor over the other. [ 80 ] To be clear, there have been “ups and downs” in terms of the communication between the parties. The Father indicated in his affidavit that there were times when he thought “she seemed to have it together” and it gave him hope.

The mother was sometimes extremely friendly, other times hostile, but that she was “hot and cold”. Perhaps one of the reasons is because the Domestic Contract and Addendum do not provide the parties with any guidance. A Court Order will fill those gaps. [ 81 ] Both parties submitted draft Orders setting out the specific relief they seek at my direction. Both Orders are very detailed. I agree that a detailed Order is necessary in this case because it will, along with proper use of the parenting Application, help alleviate some of the ongoing communication issues that exist between the parties.

Conclusion on Decision-Making Responsibility and Parenting Time [ 82 ] The parties agreed to “joint custody” in their Domestic Contract with the Mother being “the primary day to day custodial parent” of the child. They confirmed their intention in the Addendum but changed the parenting time of one week on, one week off. The Father now argues this is no longer an option based on the Mother’s mental health. [ 83 ] In my view, disenfranchising the Mother as a custodial parent is a serious matter. She did not willingly abrogate her parental responsibilities or act in a manner to harm the child’s interests.

The Mother had a mental health crisis. Based on my appreciation of the evidence, the Mother should not be removed from the role that the parties agreed upon that she have with respect to the child. [ 84 ] In the context of the overall best interest analysis, I have decided to give considerable weight to the Domestic Contract and Addendum in this case for the following reasons: • The Domestic Contract, and especially the Addendum, were agreed upon fairly recently; • Both Agreements are not restrictive in nature.

They do not unreasonably favor one party over another when it comes to their involvement with the child; • The parties had full disclosure of their respective parenting abilities, different parenting styles and communication challenges; • The parties were represented by counsel;

• Neither party requested further changes or amendments to either Agreement between January 2021 and November 2022; • Both parties can meet the needs of the child. [ 85 ] Decision-making responsibility is an important aspect of parenting. It is important for the child that the parents hear the other’s input and discuss issues of concern in matters affecting the child. I am not convinced that it would be in the child’s best interests to be deprived of decisions being made by both his parents.

Although the parties have different parenting styles, they need to focus on their child’s best interests in making decisions. If they are unable to agree they can look to various dispute resolution mechanisms. Simply deciding that they do not want to share decision making after already formally agreeing to do so will not be encouraged in this case. [ 86 ] I do not minimize the Mother’s recent mental health crisis. I appreciate the Father’s concerns, in addition to the evidence presented by M.C. and O.M. in this regard. O.M. has made up her mind about her sister.

Her Affidavit was infused with disdain for her sister. [ 87 ] But these concerns must be balanced against the Mother’s evidence and perspective, in addition to the medical evidence, which I have already accepted. The Mother has only seen her sister, O.M., twice since being discharged and confirmed they have a “distant relationship”. The Mother takes issue with her sister’s evidence and observations after her discharge and says that “[O.M.] came for an hour for the first four days, including my tribunal. After that I have not once heard from her. I called this one time when I needed support.

I ended the call once I felt a void from her and didn’t hear from her.” [ 88 ] The Mother’s testimony was lucid and clear. She did not leave the Court with the impression that she was still in crisis or otherwise struggling. The history of care establishes that the Mother has played a significant role in the child’s life and was his primary care giver up to November 2022.

It appears that the events of November 2022 have given the parties, and certain family members, a reason to express their historical grievances to the Court. [ 89 ] I am satisfied that the Mother’s mental health issues temporarily interfered with her ability to parent the child; however, the evidence satisfies me that she is now able to parent. Her mental illness does not put the child at risk or otherwise endanger his overall well-being. She is stable. She returned to work. The Minister has imposed no restrictions.

I rely on the medical evidence presented at trial and prefer it over other non-expert evidence to the contrary. [ 90 ] The cautious approach that the Father and the Mother have asked me to consider may be put into effect with reasonable terms in the Order. I refer to Crozier v. Crozier 2006 ONSJ 177 for a discussion and

summary of cases that canvass the issue of mental health and parenting. In that case, the Mother had been diagnosed with bipolar disorder. The evidence was that she could lead a normal life with proper medication and regular psychiatric supervision. The Court replaced the Father’s interim order of sole custody with a final order of joint custody. The Court added a proviso that, if the Mother were hospitalized again, the Father would assume full decision-making powers for the child until the Mother’s discharge.

The Rules of Court allow parties to seek prompt relief if an emergency arises and to ensure the safety and well-being of the child. [ 91 ] In my view, the Crozier v. Crozier case is a good example of how the Court may provide a remedy where circumstances may suddenly change to the detriment of the child without compromising maximum contact with a struggling parent. It also highlights how Courts are mindful of the complexity of making parenting orders in cases where mental health issues arise.

Mental health is front and centre in many cases involving parental disputes, and this case is no exception. [ 92 ] To minimize the conflict between the parties, the parenting App shall be relied upon in addition to the detailed conditions of my Order. The Interim Interim Order continued to be in effect up to now and therefore has already provided some gradual parenting time. There have been no issues. Both parties agreed that a gradual approach was justified in this case. However, I will not simply defer to their view.

Whether we call them transition provisions or not is open for debate; they are conditions to be put in place for the benefit of the child. These conditions will address some of the Father’s concerns, in addition to some of the concerns raised in the evidence from M.C. and O.M.

ISSUE 3 – COSTS [93] Both parties have asked for costs. In LTG v CJG, 2011 NBCA 12 , the Court of Appeal stated the principles thatapply with respect to the issue is costs at paragraph 14 to 16: [14] The trial judge is vested with a very broad discretion in relation to the assessment of costs. The exercise of that discretion should notbe interfered with unless manifestly wrong: Saint John Regional Hospital v. Comeau, 2001 NBCA 113, 244 N.B.R. (2d) 201; Ms. P.H. v.Mr. P.H., 2008 NBCA 17, 328 N.B.R. (2d) 245. In British Columbia (Minister of Forests) v.

Okanagan Indian Band, 2003 SCC 71,[2003] 3 S.C.R. 371, LeBel J. stated: The power to order costs is discretionary, but it is a discretion that must be exercised judicially, and accordingly the ordinary rules ofcosts should be followed unless the circumstances justify a different approach. [para. 22] [15] It is trite law that costs normally follow the cause. Should a trial judge decide to depart from that rule he or she is required tojustify the departure: Dupuis v. Moncton (City),2005 NBCA 47, 284 N.B.R. (2d) 97, para. 40.

In Orkin, The Law of Costs (Toronto:Canada Law Book Ltd., 1965), the author states: The fundamental principles of costs as between party and party is that they are given by the court as an indemnity to the person entitledto them; they are not imposed as punishment on the person who must pay them. Party and party costs are in effect damages awarded tothe successful litigant as compensation for the expense to which he has been put by reason of the litigation. [p. 14] [16] Orkin’s observations have, of course, been expanded upon in Rule 59.02 of the New Brunswick Rules of Court.

In fixing an awardof costs under that Rule, trial judges may consider, in addition to success or failure, the amount claimed and recovered, the complexity ofthe proceedings, the importance of the issues, the conduct of any party which tends to lengthen the proceedings, and any improper orvexatious conduct. [94] In my decision dated March 17, 2023, I did not award costs, but indicated that the parties could make submissions at thehearing. That decision denied the Mother’s request for an immediate return to equal parenting time.

However, a parenting order wasmade because the Mother had, in essence, not had any parenting time with the child since she had been admitted to the hospital and theFather remained steadfast in his position. [95] I note that counsel did cooperate on the issue of material change of circumstances and conducted the hearing in a respectfulmanner. There were no unnecessary or prolix cross-examinations of the parties or witnesses. The Father only agreed with the parentingorder applicable to holidays and special occasions in the original Notice of Application filed in 2019 during cross-examination at theHearing.

Not surprisingly, he consented to the amended Notice of Motion thereby eliminating the need to have another hearing onparenting. Lastly, the parties also agreed to try resolve the child support issue on their own to further expediate the hearing. [96] The motion was necessary. The hearing lasted one- and one-half days. One expert was called to testify. It was reasonable inthe circumstances for the Father to insist that Dr. Vayani file an Affidavit, a Notice of Expert and appear for cross-examination in thiscase. However, the Mother has been largely successful.

In my view, she is entitled to an award of costs in the amount of $750.00 plusHST and reasonable disbursements to be taxed or agreed upon. DISPOSITION

[ 97 ] Pursuant to s. 50(1) , 50(2) , 50(3) , 50(4) , 50(6) , 52(2) , 52(4) (a), (b), (

c) and (h), 52(5) , 53(1) , 55(1) of the Family Law Act , S.N.B. 2020, c. 23 , the following parenting Order is made: 1. The Father shall have primary parenting time with the child until September 4, 2023, at which time the parties shall have shared equal parenting-time with the child of the relationship, R.I.M.M., born (… 2014), such parenting time being exercised on an alternating weekly basis from Monday after school until the next Monday after school. 2. The regular parenting time

schedule shall be in full force and effect commencing Monday, September 4, 2023, first with the Father, and then with the Mother commencing Monday, September 11, 2023. Should there be no school on Monday, the transition for the parent having parenting-time with the child shall occur at 3:30 p.m. on that day. 3. The Mother shall have parenting time with the child in the following manner until September 4, 2023: a.

From the date of this Order to September 4, 2023, R.I.M.M. shall spend the weekend of August 11, 2023, commencing at 5:00 p.m. until August 13, 2023, at 7:00 p.m. and the weekend of August 25, 2023, at 5:00 p.m. until August 27, 2023, at 7:00 p.m.; b. In addition to the parenting time on the weekends set out in clause 3 (

a) above, R.I.M.M. shall spend August 15 th and 17 th from 3:00 p.m. until 9:00 p.m. and August 29 th and 31 st from 3:00 p.m. until 9:00 p.m. 4. The Mother and the Father shall share the following special occasions and holidays: a. Christmas: Christmas holidays shall be shared and alternating. In odd numbered years, the Father shall have the child from Christmas Eve at 12:00 p.m. until Boxing Day at noon. In even numbered years, the Mother shall have the child from Christmas Eve at 12:00 pm to Boxing Day at noon. For the remainder of the Christmas school holiday period, the parties shall have equal time with the child. The Christmas

schedule may be amended by the parties as mutually agreed to; b. Mother’s / Father’s Day: The Father shall have parenting time with the child on Father’s Day commencing Saturday at noon until Sunday at 6:00 p.m., and the Mother shall have parenting time with the child on Mother’s Day commencing Saturday at noon until Sunday at 6:00 p.m.; c. Easter Weekend: The child will spend the Easter Weekend from after school on Thursday to his return to school on Tuesday morning with the Mother on even years, and with the Father on odd years; d. Summer Vacation: The Mother and the Father shall have two consecutive weeks with the child during the summer, and shall set the summer

schedule by the end of June of each year; e. Thanksgiving Weekend: The child will spend Thanksgiving Weekend, from after school on Friday to his return to school on Tuesday morning with the Mother in even years, and with the Father in odd years;

f. New Year’s Day, Valentine’s Day, Family Day, St. Patrick’s Day, Victoria Day, Canada Day, New Brunswick Day, Labour Day, the National Day for Truth and Reconciliation, Halloween, and Remembrance Day, will not affect the regular schedule; g. Child’s Birthday: Both the Mother and the Father shall be able to see the child on his birthday, such times to depend on the child’s school schedule. Reasonable arrangements shall be established between the Mother and the Father prior to the child’s birthday; h.

Both parties may request changes to parenting time or vacation and holiday times from time to time as discussed and agreed to between them taking into considerations work schedules, school schedule, and special unexpected family events by giving each other as much notice as possible when seeking changes to the schedule. 5. The parties may vary the parenting time

schedule by consent and/or in the event of a scheduling conflict and/or an unforeseeable event. 6. The Mother and Father shall have joint decision-making responsibility as it pertains to R.I.M.M.’s health, education and extracurricular activities. In the event of an impasse, the Father shall have final decision-making responsibility regarding R.I.M.M.’s participation in extracurricular activities only. 7. Pursuant to s.55(1) of the Family Law Act , the parties shall both have access to information about the child’s well-being, including information in respect of the child’s health and education.

The parties shall each be at liberty to obtain information directly from doctors, teachers, counselors, day care centers, coaches or any other person involved with the child. 8. The child shall continue to attend extracurricular activities and both parties shall be responsible for ensuring that the child attends his extra-curricular activities during their parenting time including, but not limited to, skiing. More specifically, the child shall be permitted to participate in ski lessons annually. 9.

The Father shall be responsible for the costs associated with the child’s participation in extracurricular activities, including registration fees and expenses for equipment where applicable. For clarity, the Father shall be responsible for all costs associated with skiing, including ski gear and registration fees. However, the Mother shall be responsible to pay for fuel and meal expenses associated with ensuring R.I.M.M.’s participation in extracurricular activities including, but not limited to skiing, while he is in her care. 10.

In the event the Mother is unable or unwilling to ensure that R.I.M.M. attends extracurricular activities during her parenting time including, but not limited to skiing, she shall notify the Father via the parenting application a minimum 24 hours in advance of the extracurricular activity. Upon receiving such notification, the Father shall be permitted to make arrangements for the child to attend this extracurricular activity. 11.

The Mother and the Father shall communicate respectfully and not make disparaging comments to one another, or in front of the child, or allow a third party to make disparaging comments of the other in front of the child. 12. The parties shall use a parenting application for their communications and those communications shall pertain solely to R.I.M.M. 13. The Mother and the Father shall keep each other informed of their home and work mobile/cellular telephone numbers and e-mail

addresses for as long as the child continue to be a "child" within the meaning of the Family Law Act . 14. The parties shall refrain from consuming any illegal drugs while the child is in their care. 15. Pursuant to the Support Enforcement Act , any retroactive or prospective child support shall be suspended until further Order of the Court. 16. The Father shall pay the costs of the motion in the amount of $750.00 plus HST and reasonable disbursements to be taxed or agreed upon within fifteen (15) days of the time of service of this order, pursuant to Rule 59.01 of the Rules of Court . 17.

This Order is effective as of August 4, 2023. DATED at Saint John, New Brunswick this ______ day of August 2023. _________________________________ Danys R.X. Delaquis Judge of the Court of King’s Bench of New Brunswick - Family Division