S.L.A., Applicant, – v. –, 2023 NBKB 153

FDM-389-2021 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON Date: September 12, 2023 Neutral Citation: 2023 NBKB 153 BETWEEN: S.L.A., Applicant, – and – D.A.S., Respondent. DECISION BEFORE: Madam Justice Marie-Claude Bélanger-Richard AT: Moncton, N.B. DATES OF HEARING: May 1, 2 and 3, 2023 DATE OF DECISION: September 12, 2023 APPEARANCES: Anne Gall, for the Applicant Zara C. Morrison, for the Respondent

Summary: Family Law Act - Parenting order and child support – Parents living 350 km apart BÉLANGER-RICHARD, J.:

INTRODUCTION [ 1 ] During a 2-year relationship with the Respondent (the “father”), the Applicant (the “mother”) gave birth to a child named A.J.G.S. (“A” or the “child”). The child is now 3 years old. The parties are not married and consequently, this matter is governed by the Family Law Act , S.N.B. 2020, c. 23 (the “ Family Law Act ”). [ 2 ] The main issue in these proceedings is the parenting arrangement for A. The mother wants the majority of the parenting time with the child and the father takes the position that shared parenting time is in the best interests of the child.

This issue is complicated by the distance between the parents’ homes, which is approximately 350 km. The parties’ financial obligations to the child are also part of the issues I have to decide. ISSUES [ 3 ] The following issues require a determination: 1. What parenting order is in the best interests of the child A.? 2. What prospective child support should be paid for the benefit of A.? 3. Should costs be awarded? I will now address each issue.

FIRST ISSUE: PARENTING ORDER [ 4 ] Section 52(2) of the Family Law Act gives jurisdiction to this Court to make a parenting order and it reads as follows: The Court may make a parenting order providing for the exercise of parenting time or decision-making responsibility in respect of 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. [ 5 ] Section 50(1) of the Family Law Act states that the only consideration in making a parenting order is the best interests of the child. Section 50(2) of the Family Law Act defines the concept of best interests and reads as follows: 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. [ 6 ] In considering the above factors, section 50(3) of the Family Law Act mandates the Court to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. [ 7 ] There are two main components to a parenting order: the decision-making responsibility and the parenting time.

A) Decision-making responsibility [ 8 ] Decision-making responsibility means the responsibility of making significant decisions about a child’s well-being, including in respect of health, education, culture, language and spirituality, and significant extra-curricular activities (

section 1 of Family Law Act ). [ 9 ] Having joint decision-making responsibility means that the parties must have a meaningful consultation with one another when an important decision arises and must attempt to make a joint decision in the best interests of their child. It is well recognized by the courts that joint decision-making responsibility requires a degree of cooperation between the parents and the ability to effectively communicate with each other: J.H. v.

T.H. , 2017 NBCA 7 , at para. 8 . [ 10 ] During these proceedings, both parties changed their respective position regarding decision-making responsibility. In her Application filed on June 28, 2021, the mother asked for joint decision-making responsibility with the authority to make the final decision in case of disagreement. At the hearing, she made a motion to amend her pleading and she sought sole decision-making responsibility.

Then, during final submissions, her counsel said her client was agreeable to have joint decision-making responsibility with the father as long as she had the final say. [ 11 ] Initially, the father requested joint decision-making responsibility. During his cross-examination, he agreed that the mother could have the final authority to make a decision in case of disagreement. His only concern was about the possibility of another relocation by the mother.

I believe this can be addressed by adding the following clause in the final order: The mother cannot change the child’s residence from the greater Fredericton area, without providing the father with a 60-day notice of the proposed move and obtaining the written consent of the father or a court order to allow the move. The notice must include the

address of the proposed new place of residence, the date of the proposed move, and a proposed parenting schedule. [ 12 ] Considering the agreement of the parties on this issue, I will therefore order that the parties shall have joint decision-making responsibility with the mother having final authority to decide in case of disagreement. [ 13 ] I wish to mention that although the communication between the parties has not always been appropriate and respectful (especially following the separation), things have improved in the last six months.

While the mother has expressed some concerns about being manipulated by the father and not being advised of the child’s enrolment in a daycare by the father, I find that the parties have been able to cooperate in the best interests of A. For example, the mother made up the father’s missed parenting time when there were snowstorms, or the child was sick. Another example of collaboration between the parties occurred when the mother’s other child, W., was born prematurely and because of health issues, had to stay at the hospital for over 40 days.

The mother stayed with W. and asked the father to keep A. for a longer period than usual. The father agreed and ensured that A. was available to speak with his mother whenever she called. [ 14 ] The mode of communication was addressed by both parties during the hearing. The mother prefers to use emails and suggests that a telephone call would be appropriate in case of emergency. The father uses text messages because of the poor internet connection he occasionally has.

He however testified that he would be agreeable to use emails. [ 15 ] Another issue related to communication is the fact that the mother becomes anxious when she sees a message coming from the father. In the course of the hearing, a suggestion was made to use a journal that the parties would exchange when the child goes from one residence to the other residence. This journal would allow each parent to report anything significant about the child that the other parent should be aware upon the child’s arrival at his or her home.

A journal would eliminate most, if not all, notices of a message coming from the father and would help the mother’s anxiety. Both parties agreed to use a journal and I will so order. I would add that if something comes up and cannot wait for the exchange of the journal, a parent may send an email to the other parent. Also, in case of emergency, a parent should immediately call to inform the other parent about the urgent situation. [ 16 ] Overall and with the consent of both parties, I find that joint decision-making responsibility with the mother having the final authority is in the best interests of the child A.

B) Parenting time [ 17 ] The father asks for shared parenting time with a

schedule of one week on and one week off. The father testified that shared parenting time should be ordered because it is in the best interests of the child to spend equal time with both parents. He feels alienated because he and A. do not have enough time together and he cannot teach him things like hunting and fishing . [ 18 ] Shared parenting time is sometimes misconceived as being in the best interests of a child simply because the child spends approximately the same amount of time with each parent.

While a child generally benefits from maximum contact with both parents, section 50(6) of the Family Law Act stipulates that it must be consistent with the best interests of the child. [ 19 ] Even if I were to accept the father’s position, a shared parenting

schedule will not work when the child starts school because the parents live 350 km apart. On cross-examination, the father stated that he would be willing to move to Fredericton so that the child could attend school in Fredericton. He did not explain why he had not yet considered moving earlier to reduce the current travel time between his home and the mother’s home. He has not explained why the decision to move can wait another two years. [ 20 ] The mother wants to have the majority of parenting time with the child A. Until the child starts school, she is willing to maintain the current

schedule (from Thursday to Sunday every other week). Eventually, in about two years, this will have to change unless the father resides in Fredericton. [ 21 ] As mentioned above, the parenting time

schedule must be consistent with the best interests of the child A. I will now review the factors that must guide the analysis of the best interests of a child with the evidence heard and received at the hearing. The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including First Nations upbringing and heritage

[ 22 ] The mother is a Metis through her father. She has her status card and would like the child to have his status card as well. Although she has not personally participated in First Nations activities, she would like to introduce A. to these activities. As part of the holiday schedule, the mother asked that A. be with her for a few hours on the Truth and Reconciliation Day. Due to the distance between the parties’ residences, she realizes that this may not be possible every year.

If the child is in his care, the father is willing to allow the mother to spend a few hours with A. on this particular statutory holiday as long as the child does not have to travel to Fredericton. The child’s needs, including the need for stability, given the child’s age and stage of development, The history of his care, and 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 [ 23 ] In light of the affidavit evidence and the parties’ testimony, I am satisfied that the mother has been the child’s primary caregiver since birth.

There is little dispute that she was primarily, if not entirely, responsible for the care of A. during the parties’ relationship. The father testified that he worked 12 to 14 hours a day when A. was born. He added that A. slept a lot. In other words, and according to his own testimony, he had no opportunity to care for A. The mother agreed that the father worked a lot and said that he did not provide much of any care for the child during their relationship.

The father also mentioned that during the first year of the child’s life, A. was with the mother for about three months, visiting the mother’s family in Nova Scotia. When the parties separated, the child was 15 months old. [ 24 ] The father testified that at the time of A.’s birth he felt alienated because the mother was breastfeeding and not expressing her milk. He felt that he could not bond with A. simply because he could not feed him.

This sounds like a rather simplistic view of what it means to care and bond with a child. [ 25 ] The mother testified that the father drank a lot during the relationship and was very abusive when he was drunk. The mother described incidents of verbal and physical abuse. The father gave his own version of some, but not all, of the incidents. The father denied drinking excessively prior to the separation. I will discuss the incidents of domestic violence later in this decision. [ 26 ] Following an incident of domestic violence at separation, the mother obtained an Emergency Intervention Order on April 8, 2021.

The mother and A. went to live with the maternal grandmother and remained there until August 2021. The father was criminally charged with assault on the mother, proffering threats, mischief and resisting arrest. The father did not see the child A. for less than a month. The father filed an application to set aside the Emergency Intervention Order. On April 28, 2021, the mother agreed to modify the terms of the Emergency Intervention Order and consented to the father having supervised parenting time with A. For the next two months and a half, the father had two hours per week of supervised parenting time.

Things went well during the supervised parenting time. Then, on July 19, 2021, the parties consented to the following terms that are part of an Interim Consent Order: - the parties shall have joint decision-making responsibility regarding the child A. with the mother having the final say in case of disagreement; - the father shall have parenting time with the child A. every second Wednesday from 3:30 p.m. until 6:30 p.m., every second weekend from Friday at 6:00 p.m. until Sunday at 3:00 p.m., and such other parenting time as agreed between the parties. [ 27 ] In March 2022, the father’s parenting time

schedule changed again to accommodate a request made by the mother. The father’s parenting time changed to every other week from Thursday until Sunday. By that time, the mother and A. had moved to Fredericton to live with the mother’s new partner, M.S. [ 28 ] M.S. and the mother are the parents of a new baby boy, W., who is 7 months old. The family lives in M.S.’s parents’ home where they have separate quarters. M.S.’s father, J.S., testified at the hearing that he and his wife provide some assistance and support to M.S. and the mother. When he is not away for employment, J.S. likes to spend time with A.

He testified that A. can have tantrums when he comes back from his father’s home and that it takes a lot of patience to calm him down. The mother also mentioned that A. was more aggressive and difficult when he came back from his father’s home. [ 29 ] After the separation, the father moved in with his parents in Hillsborough. He continues to live there in the basement, where he

has his own apartment. He claims that his parents support him, however, his mother is still working. Although his mother intends to retire soon, he admits that he does expect her to become more involved with A. [ 30 ] The mother expressed some concerns about the child’s safety while he is with his father. The mother mentioned that A. is allowed to sit on his father’s knees and “drive” a bulldozer on construction sites. The father confirmed this but explained that it was after hours, and his employer did not object. Another concern is the father’s purchase of a dirt bike.

The mother wrote to the father that A. was too young to use a dirt bike. The father has not responded to her message. At the hearing, the father explained the kind of equipment that is required to make it safe for A. to use the dirt bike. Needless to say, there is a lot of equipment needed to make it safe for a 3-year- old child. At the hearing, the father also kept changing his story as to what speed limit the dirt bike was set. The father does not know if A. will like to drive a dirt bike but he bought it anyway. [ 31 ] The father admits that the mother has been a “very good mother” to the child.

I am satisfied that the mother has been a constant presence and support for the child, providing stability, love, and a secure environment throughout A.’s life. She has been responsible for and has attended all medical appointments for the child. The father attended only a few medical appointments. Since the separation, the mother has always informed the father about any upcoming medical appointment for A. and after the appointment, she has given him a report. [ 32 ] By all accounts, A. is a smart and very active child. He is a healthy child. He also has good manners and likes to help his parents.

It is evident that A. has been appropriately stimulated and guided to develop and grow to his full potential. 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 [ 33 ] I have no doubt that A. loves his parents, and they love him dearly. A. also benefits from the love of his maternal grandmother with whom he resided from April to August 2021. The mother’s new partner, M.S., his parents, and A.’s new brother, W., also provide affection and love to A.

Finally, on his father’s side, A. benefits from the love and affection of his paternal grandparents. There is no question that A. is surrendered by people who love him, support him and want the best for him. [ 34 ] Prior to his relationship with the mother, the father lived with another partner who had a son called J. The father testified that even though J. is not his biological son, he asked for visits with J. and voluntarily paid child support for approximately three years. While J. used to spend every weekend with the father, he no longer wants to come to his house.

The father explained that J. prefers playing video games than coming to his house. Consequently, the father sees him occasionally. The father testified that A. and J. have not seen each other for almost two years. I am not convinced that there is a meaningful relationship between A. and J. Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent [ 35 ] I am satisfied that the mother has always acted in the best interests of A. to promote and maintain the relationship between the child and his father.

Even though she obtained an Emergency Intervention Order in April 2021, she agreed in a matter of weeks to modify the Order and to allow supervised parenting time between A. and his father. A few months later, she consented to another Order providing for unsupervised parenting time and more parenting time to the father. As testified by the father, the mother has always made up any missed parenting time due to snowstorms or the child being sick. The mother has also kept the father informed about the child’s health issues, medical appointments or daycare.

The mother testified that she knows and understands how important it is for A. to have his father’s presence in his life. I am satisfied that despite the fear and anxiety that the father’s behavior causes, the mother has always demonstrated her willingness to support and maintain the child’s relationship with his father. [ 36 ] I am also satisfied that the father respects the strong bond and relationship between the mother and A. Although he wishes more parenting time with the child, the father seems to acknowledge that he cannot displace the strong relationship between A. and his mother.

He seems willing to support this relationship by expressing the possibility of moving to Fredericton. [ 37 ] However, at times the father has made threats to the mother that he would not return the child. The last time it happened was less than two months prior to the final hearing. The father denied this last threat. When Exhibit 3 containing such a threat was put to him, he said that he may have worded his message the wrong way. Because of the threats, the mother does not trust the father.

While the father has always returned the child to the mother, this does not excuse his threats and the pressure and stress he has caused to the mother. Causing anxiety and fear in the child’s main caregiver also has an impact on the child. I hope that the father will realize that his behavior

is inexcusable and is not conducive to the development of a trusting relationship between two estranged parents. Simply put, the father has nothing to gain by engaging in this type of behavior. The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained [ 38 ] This factor is not relevant due to the child’s age. The plans for the child’s care [ 39 ] As discussed above, the father asks to have parenting time with the child on alternate weeks until the child starts school. The father is a heavy equipment operator.

In a calendar year, he usually works from mid-May to October. Depending on the weather and the contracts, his seasonal employment may however be extended to the end of November. [ 40 ] The father testified that he cannot take every Friday off and consequently he enrolled A. to a daycare close to his residence. He told the mother that he was registering the child to a summer camp, but she later found out it was a daycare center that A. was attending.

The lack of clear communication with the mother about this daycare caused a major issue between the parties and the child lost his place at the daycare in late December 2022. [ 41 ] At the hearing, the father testified that A. will be able to go back to this daycare center. This is therefore part of his plan if he has shared parenting time. However, the father starts work at 7:00 a.m. and the daycare center opens at 7:30 a.m. The father can finish his day of work late, but the daycare center closes at 6:00 p.m.

The father said that his employer is flexible, and that he can work longer hours when he does not have the child in his care. However, the father has not explained how the child will be dropped off or picked up from the daycare center when he is at work. Overall, I do not find that the father has a clear, certain, and convincing plan for the care of the child in a shared parenting arrangement. [ 42 ] In his mother’s care, A. has a regular routine. He has been attending the same daycare for the last year. M.S. and his parents provide constant support to the mother.

In Fredericton, A. did swimming lessons and played soccer. It is evident that A. thrives under the care of her mother. This is why the mother wishes to continue the same parenting arrangement and asks for the majority of parenting time with A.

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 and 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 [ 43 ] During the relationship, both parties admit that there were verbal arguments and name calling between the parties.

In his Affidavit, the father made allegations that the mother’s behavior became erratic in December 2019, and she continued to act erratically during the relationship. The only description he provides regarding that behaviour is that the mother was mumbling and talking to herself during one incident. The lack of details and the general allegations fail to convince me that the mother was mentally instable during the relationship. In my opinion, it is evident that the parties were not seeing eye to eye during the relationship.

[ 44 ] In her Affidavit and during her testimony, the mother described various incidents of aggression and violence on the part of the father. The mother testified that the father was rarely sober during the relationship and when intoxicated, he was abusive and violent. I find that the mother’s testimony was credible because there were context and details, and the mother was consistent in describing the various incidents. [ 45 ] While the father provided some explanations for some incidents (not all of them), he generally denied having been physically violent with the mother.

In his Affidavit at para. 43, he added, in response to these allegations, that the mother “has a history of mental instability and making false allegations against me”. Again, there is no foundation in the evidence for the father’s allegations. [ 46 ] Having heard the parties and considered all of the evidence, I am satisfied that the father, when intoxicated, was aggressive and physically violent toward the mother. The father’s use of alcohol is not an excuse for his behavior and abuse.

Because of this behavior, the mother seeks an order preventing the father from consuming alcohol while the child is in his care. The father does not oppose this request and I will issue such an order. [ 47 ] Despite this history of verbal and physical abuse, the parties have been able to cooperate and communicate regarding the child’s well-being.

Since the separation, the mother has not reported any incidents of violence, nor has she expressed any concern about the father being intoxicated while A. is in his care. [ 48 ] After the separation, there were some inappropriate messages with sexual connotation sent by the father to the mother. There have been threats of not returning the child as I mentioned before. Despite that history, the mother is willing to continue communicating with the father as long as their communication is child focused.

The exchange of a journal should allow the parties to be more constrained in their messages and more focused on the child’s well-being, needs and interests. Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child [ 49 ] The father was convicted of resisting arrest and breach of an undertaking. He was on probation for a period of one year. His period of probation expired at the end of March 2023 without any incident. At the time of the hearing, the father faced another criminal proceeding for breaches of his undertaking.

He was to appear in criminal court in August 2023. CONCLUSION ON PARENTING TIME [ 50 ] After considering all of the factors and the best interests of the child, I conclude that the mother should have the majority of parenting time with A. As described above, she has been his main caregiver, has provided stability and security in his life, and has provided him with a loving and supportive environment. In his mother’s care, A. has a consistent routine and benefits from appropriate discipline and stimulation.

A. is thriving in his mother’s care and the current parenting arrangement is therefore in his best interests. [ 51 ] It is also important for A. to maintain a relationship with his father. The father brings different interests and benefits to the child that would help shape his personality. However, due to the distance between the parents’ residences and the parents’ work schedules, there are not many options for developing a parenting schedule. I believe that the current

schedule is the best option for the time being. [ 52 ] Therefore, the father shall continue to have parenting time from Thursday at 3:00 p.m. until Sunday at 3:00 p.m. If there is a statutory holiday on Monday following the father's weekend, the father’s parenting time shall be extended to Monday at 3:00 p.m. The father shall be responsible to pick the child up at the daycare in Fredericton on Thursday and the mother shall be responsible to pick the child up at the father’s residence on Sunday.

In the event either of the parties is unable to personally transport the child for parenting time, either party may choose a third party known to the child to assist with transportation but shall give advance notice to the other party. [ 53 ] I realize that when the child starts kindergarten, it will be impossible for the parties to continue this parenting

schedule with the child attending school on Fridays. However, by that time, the father may have decided to move closer to the child’s home. Not knowing what the situation will be in about two years and if any changes will occur, I will not decide what should happen to the father’s parenting time then.

[ 54 ] As to holidays and vacations, the parties agreed on many of them. In light of their agreement, or what each of them proposed (when there was disagreement), I rule on the holidays and vacations as follows:

a) Christmas holiday shall be split equally as follows: commencing in 2023 and thereafter on any odd-numbered year, the mother shall have the child from December 23 at 3:00 p.m. until December 30 at 3:00 p.m. and the father shall have the child from December 30 at 3:00 p.m. until January 7 at 3:00 p.m. ; commencing in 2024 and thereafter on any even-numbered year, the father shall have the child from December 23 at 3:00 p.m. until December 30 at 3:00 p.m. and the mother shall have the child from December 30 at 3:00 p.m. until January 7 at 3:00 p.m.

b) March Break: the parties shall alternate the March Break with the father having the child in 2024 and thereafter on any even- numbered year and the mother having the child in 2025 and thereafter on any odd-numbered year; when the father has the March Break, it shall include his regular weekend with the child which means the following: if the 1 st weekend of March Break would be the father’s regular weekend with the child, his parenting time shall be from Friday at 3:00 p.m. until next Friday at 3:00 p.m. with the mother having the 2 nd weekend of March Break; if the 2 nd weekend of March Break would the father’s regular weekend with the child, his parenting time shall be from Sunday at 3:00 p.m.(1 st weekend of March Break) to next Sunday at 3:00 p.m.

When the mother has the March Break, it shall not include the father’s regular weekend with the child, e.g., either the 1 st or 2 nd weekend of March Break.

c) Easter (Thursday at 3:00 p.m. to Monday at 3:00 p.m.): the parties shall alternate Easter with the mother having the child in 2024 and thereafter on any even-numbered year and the father having the child in 2025 and thereafter on any odd-numbered year;

d) Father’s Day: if the child is not with the father on that day, the father shall have parenting time with the child from Saturday (prior to Father’s Day) at 3:00 p.m. until Sunday (Father’s Day) at 3:00 p.m. For Mother’s Day, the mother shall have the same

schedule (Saturday at 3:00 p.m. until Sunday) if the child is in the father’s care on that day.

e) Child’s birthday: the parent who does not have the child under his or her care shall be allowed to have a telephone or Facetime call with the child on that day.

f) Truth and Reconciliation Day: if the child is under his father’s care on that day, the mother shall be allowed to spend 3 hours with the child on that day as long as the child does not have to travel a long distance to do so.

g) Vacations: each party shall have two non-consecutive weeks of vacation per calendar year with the child; the mother shall advise the father of her chosen weeks before March 1 st of each year and the father shall advise the mother of his chosen weeks before April 30 th of each year; a week vacation shall start on a Sunday and shall end on the next Sunday; the parties shall take into consideration the father’s regular weekend to avoid that the child does not see either parent for a period longer than 7 days. [ 55 ] I will also order that the parties shall cooperate in obtaining a passport for the child.

If a party intends to travel internationally with the child, he or she shall give a 90-day notice to the other party indicating the address of the destination, the mode of transportation (including itinerary) and a contact number. The non-traveling party shall not withheld his or her consent without reasonable grounds and shall cooperation in signing any required consent letter. [ 56 ] Finally, the mother asked for a restraining order under

section 81 of the Family Law Act . The father was not opposed to such an order as long as it does not impede communication about the child. I will therefore make the following order: The parties shall communicate in a respectful way and while communicating with the mother, the father shall refrain from annoying, harassing or interfering with her pursuant to section 81(1) (

a) of the Family Law Act . SECOND ISSUE: CHILD SUPPORT [ 57 ] As stated in Child Support Guidelines in Canada, 2022 at page 193, “[i]t is not for a court to dictate a person’s future employment but the earning capacity of a spouse should be measured against what is reasonable in light of his or her background, education, training, and work experience.” [ 58 ] In 2020, the mother declared a total income of $20,096. In 2021, her income was $31,312, which included over $4,000 in tuition assistance. In 2022, her declared income was $22,235.

[ 59 ] At the time of the hearing, the mother was on a maternity leave. She testified that she would return to work as an educational assistant in October 2023. She estimated that her annual income would then be approximately $27,000. The father did not dispute the mother’s testimony. [ 60 ] Given the mother’s income history and her evidence, I accept that the mother’s income for child support purposes will be $27,000 as of October 1 st , 2023. [ 61 ] The father claims that his current income for child support purposes is $27,557.

The mother asks the Court to impute to the father an income of $45,499 based on what he was earning in 2020. [ 62 ] The father testified that in 2020, he worked for a construction company, was laid off and received employment insurance benefits until May. He applied for and received CERB benefits when the Covid-19 pandemic hit. He worked for another construction company until August. He also sold lobsters later in the year and was paid an hourly rate. His declared income in 2020 was $47,045. [ 63 ] In 2021, the father’s declared income was $19,437.

The father explained that he was sick during that year and was hospitalized from July 5 to 18. He tried to sell lobsters, but this was not a success. He received CERB benefits. [ 64 ] The father testified that he could not work until May 2022 due to his illness. He then began working as a heavy-equipment operator for a construction company, earning $20 an hour and working 40 to 50 hours per week. He worked until late October 2022. He then started receiving employment insurance benefits ($862 every two weeks). The father produced T4 slips showing a total income of $23,717.

Adding the employment insurance benefits he received, I have calculated that the father’s total income in 2022 would have been just under $30,000. [ 65 ] At the hearing, the father was still receiving employment insurance benefits and was expecting to go back to work in two weeks. He anticipated a busy (50 hours per week) and longer season (until late November).

I therefore estimate that his 2023 income will be approximately $37,000 considering his employment insurance benefits ($862 every two weeks) from January to mid-May and in December, and adding his salary ($20 per hour X 50 hours per week) from mid-May to end of November. [ 66 ] Given the father’s testimony, his training and work experience and his income history, I therefore impute to the father an income of $37,000.

Based on the New Brunswick 2017 Table for one child, the father must pay $297 per month in child support to the mother for the benefit of A., commencing on October 1 st , 2023, and thereafter on the 1 st day of each month. I note that neither party asked and made submissions for an adjustment of child support for the previous years. [ 67 ] According to her Financial Statement filed on May 1 st , 2023, the mother incurs daycare costs in the amount of $755 per month since July 2023.

I did not receive any evidence on the net amount that the mother pays or will be paying as of October 1 st , 2023, when she returns to work. The father is willing to contribute to these costs and has not provided any evidence in that regard. I will therefore order that the parties shall contribute in proportion of their incomes to the net daycare costs commencing on October 1 st , 2023. Given the parties’ incomes, the mother’s share is 42% and the father’s share is 58%.

The parties shall exchange the necessary information to calculate the net daycare costs. [ 68 ] Through his employment, the father has insurance coverage for health and dental expenses and the child is a named beneficiary. The child’s fee portion is $55.72 per month. The mother accepts to contribute to these fees in proportion of the parties’ incomes. Therefore, the mother shall pay to the father $23.40 per month commencing on October 1 st , 2023, and thereafter on the 1 st day of each month as long as the child is a named beneficiary under the father’s health and dental plan.

I will order that the father provides confirmation to the mother on or before March 1 st of each year that the child is covered by his health and dental plan for these payments by the mother to continue.

THIRD ISSUE: COSTS [ 69 ] Rule 59 of the Rules of Court of New Brunswick gives a broad discretion to a court regarding the award of costs and lists a number of factors to consider in dealing with that issue: 59.01 Authority of the Court

(1) Subject to any Act and these rules, the costs of a proceeding or a step in a proceeding are in the discretion of the court and the court may determine by whom and to what extent costs shall be paid.

(2) Nothing in this rule shall be construed so as to interfere with the authority of the court (

a) to fix the costs of a proceeding, or a step in a proceeding, with or without reference to a tariff, instead of requiring assessment of the costs , (

b) to allow or refuse costs in respect of a particular issue or part of a proceeding, (

c) to order costs to be assessed on a solicitor and client basis, or (

d) where parties are entitled to costs from each other, to order set-off of the costs . 59.02 Costs of a Proceeding In fixing costs , the court may consider (

a) the amount claimed and the amount recovered, (

b) the apportionment of liability, (

c) the complexity of the proceeding, (

d) the importance of the issues, (

e) the conduct of any party which tended to shorten or unnecessarily lengthen the duration of the proceeding, (

f) the manner in which the proceeding was conducted, (

g) any step in the proceeding which was improper, vexatious, prolix or unnecessary, (

h) any step in the proceeding which was taken through over-caution, negligence or mistake, (

i) the neglect or refusal of any party to make an admission which should have been made,

(

j) whether or not two or more defendants or respondents should be allowed more than one set of costs, where they have defended the proceeding by different solicitors, or where, although they defended by the same solicitor, they separated unnecessarily in their defence, (

k) whether two or more plaintiffs, represented by the same solicitor, initiate separate actions unnecessarily, and (

l) any other matter relevant to the question of costs. [ 70 ] In G. (C.J.) v. T.(L.) , 2011 NBCA 12 , the Court of Appeal made additional comments on the assessment of costs in family matters: 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 to justify the departure: Dupuis v. Moncton ( City) , 2005 NBCA 47 , 284 N.B.R. (2d) 97 (N.B. C.A.) , 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 entitled to them; they are not imposed as punishment on the person who must pay them. Party and party costs are in effect damages awarded to the 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 award of costs under that Rule, trial judges may consider, in addition to success or failure, the amount claimed and recovered, the complexity of the proceedings, the importance of the issues, the conduct of any party which tends to lengthen the proceedings, and any improper or vexatious conduct. [ 71 ] In this matter, the hearing lasted three days and I heard four witnesses. The issues were not complex. There was cooperation between the parties regarding the evidence to be presented.

Overall, the mother was successful in obtaining the majority of the time with the child and an imputation of income to the father. I will therefore grant her costs of $2,000 payable within 60 days of my decision. No disbursements are allowed. DISPOSITION [ 72 ] The terms of my final Order are as follows: 1. Pursuant to

section 50 and 52(2) of the Family Law Act , S.N.B. 2020, c. 23 , the parties shall have joint decision-making responsibility regarding the child A. Each party shall consult meaningfully with one another on important decisions that affect the child’s well-being, including in respect of health, education, culture, language and spirituality, and significant extra-curricular activities, and the parties shall make reasonable efforts to arrive at a joint decision. However, if the parties cannot agree on the ultimate decision to be made, the mother shall have the final authority to make the decision. 2.

The mother shall have the majority of parenting time with the child A. and the child A. shall reside with her. 3. The father shall continue to have parenting time from Thursday at 3:00 p.m. until Sunday at 3:00 p.m. If there is a statutory holiday on Monday following the father's weekend, the father’s parenting time shall be extended to Monday at 3:00 p.m. 4. The father shall be responsible to pick the child up at the daycare in Fredericton on Thursday and the mother shall be responsible to pick the child up on Sunday at the father’s residence. 5.

In the event either of the parties is unable to personally transport the child for parenting time, either party may choose a third party known to the child to assist with transportation but shall give advance notice to the other party. 6. With respect to holidays and vacations, the following

schedule shall be followed by the parties:

i. Christmas holiday shall be split equally as follows: commencing in 2023 and thereafter on any odd-numbered year, the mother shall have the child from December 23 at 3:00 p.m. until December 30 at 3:00 p.m. and the father shall have the child from December 30 at 3:00 p.m. until January 7 at 3:00 p.m.; commencing in 2024 and thereafter on any even-numbered year, the father shall have the child from December 23 at 3:00 p.m. until December 30 at 3:00 p.m. and the mother shall have the child from December 30 at 3:00 p.m. until January 7 at 3:00 p.m. ii.

March Break: the parties shall alternate the March Break with the father having the child in 2024 and thereafter on any even-numbered year and the mother having the child in 2025 and thereafter on any odd-numbered year; when the father has the March Break, it shall include his regular weekend with the child which means the following: if the 1 st weekend of March Break would be the father’s regular weekend with the child, his parenting time shall be from Friday at 3:00 p.m. until next Friday at 3:00 p.m. with the mother having the 2 nd weekend of March Break; if the 2 nd weekend of March Break would the father’s regular weekend with the child, his parenting time shall be from Sunday at 3:00 p.m.(1 st weekend of March Break) to next Sunday at 3:00 p.m.

When the mother has the March Break, it shall not include the father’s regular weekend with the child, e.g., either the 1 st or 2 nd weekend of March Break. iii. Easter ( Thursday at 3:00 p.m. to Monday at 3:00 p.m.): the parties shall alternate Easter with the mother having the child in 2024 and thereafter on any even-numbered year and the father having the child in 2025 and thereafter on any odd-numbered year; iv.

Father’s Day: if the child is not with the father on that day, the father shall have parenting time with the child from Saturday (prior to Father’s Day) at 3:00 p.m. until Sunday (Father’s Day) at 3:00 p.m. For Mother’s Day, the mother shall have the same

schedule (Saturday at 3:00 p.m. until Sunday) if the child is in the father’s care on that day. v. Child’s birthday: the parent who does not have the child under his or her care shall be allowed to have a telephone or Facetime call with the child on that day. vi. Truth and Reconciliation Day: if the child is in his father’s care on that day, the mother shall be allowed to spend 3 hours with the child on that day as long as the child does not have to travel a long distance to do so. vii.

Vacations: each party shall have two non-consecutive weeks of vacation per calendar year with the child; the mother shall advise the father of her chosen weeks before March 1 of each year and the father shall advise the mother of his chosen weeks before April 30 th of each year; a week vacation shall start on a Sunday and shall end on the next Sunday; the parties shall take into consideration the father’s regular weekend to avoid that the child does not see either parent for a period longer than 7 days. 7. The father shall refrain from consuming alcohol while in the presence of the child. 8.

The parties shall communicate in a respectful way and while communicating with the mother, the father shall refrain from annoying, harassing or interfering with her pursuant to section 81(1) (

a) of the Family Law Act . 9. Neither party shall speak negatively about the other party, his or her family members while in the presence of the child or allow the child to remain in the presence of any individual who is doing so. 10. The parties shall use a journal to provide significant information about the child when the child goes from one residence to the other residence. The journal shall therefore follow the child. If a parent however requires some information about the child from the other parent and it cannot wait at the exchange of the journal, a parent may send an email to the other parent.

In case of emergency regarding the child, a parent shall immediately call the other parent. 11. Both parties shall have access to information concerning the child’s health, education and/or welfare either directly from the other parent or from any of the child’s third-party caregivers. 12. Each party shall keep the other informed of his or her current address and telephone number at all times and inform the other of any changes without delay.

13. The parties shall cooperate in obtaining a passport for the child. If a party intends to travel internationally with the child, he or she shall give a 90-day notice to the other party indicating the address of the destination, the mode of transportation (including itinerary) and a contact number. The non-traveling party shall not withhold his or her consent without reasonable grounds and shall cooperation in signing any required consent letter. 14.

The mother cannot change the child’s residence from the greater Fredericton area, without providing the father with a 60-day notice of the proposed move and obtaining the written consent of the father or a court order to allow the move. The notice must include the address of the proposed new place of residence, the date of the proposed move, and a proposed parenting schedule. 15.

Based on an annual income of $37,000 and the 2017 New Brunswick Table for one child of the Federal Child Support Guidelines , the father shall pay to the mother child support for the benefit of A. in the amount of $297 per month, commencing on the1st day of October 2023 and thereafter on the 1 st day of each month until further Order of the Court. The payment shall be made directly to the Office of Support Enforcement. 16.

Each year, no later than May 15 th commencing on May 15 th , 2024, and as long as there is a child support obligation, the parties shall exchange a copy of their respective Income Tax Return as filed for the previous year. 17. The father shall maintain his medical and dental insurance coverage as long as this coverage is available through his employment and shall designate the child A. as beneficiary under this plan.

Considering a monthly fee of $55.72 for the benefit of the child, the mother shall pay to the father $23.40 per month commencing on October 1 st , 2023, and thereafter on the 1 st day of each month as long as the child is a named beneficiary under the father’s health and dental plan. On or before March 1 st of each year, the father shall provide confirmation to the mother that the child is covered by his health and dental plan for these payments by the mother to continue. 18. The parties shall contribute in proportion of their incomes to the net daycare costs commencing on October 1 st , 2023.

Considering the parties’ incomes, the mother’s share is 42% and the father’s share is 58%. The parties shall exchange the necessary information to calculate the net daycare costs. 19. Within 60 days of this decision, the father shall pay to the mother costs of $2,000. No disbursements are allowed. DATED at Moncton, New Brunswick, this 12 th day of September, 2023. __________________________________________ Justice Marie-Claude Bélanger-Richard Court of King’s Bench of New Brunswick