H.M.-T.. Applicant v. D.R.G.M., 2023 NBKB 50

2023 NBKB 050 COURT FILE: FDF 256-2019 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: H.M.-T.. Applicant and D.R.G.M. Respondent Before: The Honourable Mister Justice Danys R.X. Delaquis Date of hearing: March 14, 2023 Date of Decision: March 17, 2023 Appearances: Grant Ogilvie, K.C. - for the Applicant Natacha I. Bosse - for the Respondent

Summary: Abridgment Motion to enforce parenting time DECISION

DELAQUIS, J., (ORALLY): INTRODUCTION [ 1 ] The Applicant brought a Motion on March 6, 2023, seeking an abridgment of time and relief under the Family Law Act , S.N.B. 2020, c. 23 (hereinafter the FLA ) and a Domestic Contract for what she describes as a return to “regular parenting time” with the child R.I.M. [D.O.B. …May 2014], who is now 8 years old, but will soon turn 9 years old. [ 2 ] The parties were not married, but the Applicant confirms that their relationship ended in August 2016. [ 3 ] The request for an Abridgment of time was granted by this Court with a return date of March 14, 2023, in addition to permitting the Respondent to file responding documentation on or before March 10, 2023.

This ruling relates to the hearing heard on an abridgment of time basis on March 14, 2023. [ 4 ] The Respondent filed voluminous affidavit evidence opposing this Motion, much of it conflicting with the evidence of the Applicant. [ 5 ] Although I have reviewed and considered all of the Affidavit evidence in the Record on Motion, I will not refer to all of it in detail in these reasons. PRELIMINARY ISSUE [ 6 ] The Respondent raised a preliminary issue with respect to the admissibility of Exhibits B, C and E attached to the Applicant’s Affidavit. [ 7 ] Exhibit B is a 1-paragraph letter from Dr. A.

Vayani dated December 22, 2022, addressed “to whom it may concern”. Dr. Vayani is the Applicant’s treating psychiatrist. In that letter, Dr. Vayani provides an opinion as to the Applicant’s diagnosis but also, more importantly, with respect to the safety of her children. The Applicant states in her Affidavit at paragraph 20 that: 20. The doctor agreed to keep me here. I did this out of my own free will, to protect myself and my children.

I attach a letter dated December 22, 2022, from my consulting psychiatrist stating that I was there voluntarily as Exhibit B to this my affidavit. [ 8 ] Exhibit C is a 2-sentence letter from Dr. Vayani dated January 30, 2023, confirming that the Applicant was an inpatient at the Hospital from November 18, 2022, to January 30, 2023, but also gives an opinion with respect to her mental stability and ability to look after her children. The Applicant attaches Exhibit C further to paragraph 21 of her Affidavit as follows: 21. I ended up at the DECH for two months and was discharged on January 30th, 2023.

I attached the letter relating to my discharge to this my affidavit as Exhibit C. [ 9 ] Exhibit E is a report from Dr. Krishnaswamy dated November 6, 2019, pertaining to the child’s allergies. The Applicant sought to enter this report into evidence in response to previous allegations from the Respondent about the condition of her parents’ home where she resides, and where the child stays with her during parenting time. Dr. Krishnaswamy provides an opinion as to the cause of the allergies in Exhibit E, which is attached pursuant to paragraph 34 of the Applicant’s Affidavit, which reads as follows: 34.

As far as the dust allergy. Dr. Krishnaswamy has told me, and I verily believe this to be true, that the dust allergy was minimal and could possibly subside in the future. This was at a time when I lived in an apartment, not at my parents and [the Respondent] was complaining about dust and mold then. I attached the diagnosis from Dr. Krishnaswami as Exhibit E to this my affidavit.

[10] The Respondent argues the impugned Exhibits should be struck as they offend Rule 39.01(4) of the Rules of Court. ThatRule reads as follows:

(4) Subject to

section 34 of the Judicature Act, an affidavit for use on a motion need not be confined to statements of fact within thepersonal knowledge of the deponent, but may contain statements as to the deponent’s information and belief, if the source of thedeponent’s information and the deponent’s belief in the statements are specified in the affidavit. [11] The Applicant takes the position that the Affidavit was drafted in the context of a request for an abridgment of time andconsequently there was no time to obtain an affidavit from the physicians. The Applicant intends to obtain an affidavit from Dr.

Vayaniand/or call him as an expert at the hearing of the motion. [12] First, with respect to Exhibit E, the Applicant does state that she is informed by Dr. Krishnaswamy and verily believes herinterpretation of the diagnosis. However, as discussed with counsel, it was agreed that it was not a document that would carry any weightwith the Court given that it 3 years old and touches upon what can be described as a peripheral issue, at best. Counsel for the Respondentdid not pursue his argument on Exhibit E with any vigor on that basis. [13] The Court was referred to the case of Fletcher v. Mitrovic, 2009 NBQB 240 .

In that case, the Court addressed asimilar evidentiary question which was described as a “Deficiencies in the Affidavit” issue. Justice Morrison reminded counsel of themeaning and the plain wording of Rule 39.01(4), and stated at paragraphs 14 to 16: 13. Fletcher argues that the affidavit of Mr. Blois filed in support of the Defendants’ motion is inadmissible as hearsay. She argues thatthe affidavit is based on information received by the deponent but does not state that the deponent believes the information.

TheDefendants concede that parts of the affidavit are based on information and that there is no statement of belief accompanying thoseparagraphs. The Defendants argue that Rule 39.01 permits the use of hearsay evidence in affidavits filed in support of motions. 14. The general rule is that allegations in affidavits shall be confined to statements of fact, within the personal knowledge of thedeponent (Rule 4.05(2)). There is an exception to that rule for affidavits for use on motions.

Such affidavits may contain statementsoutside the personal knowledge of the deponent if based on information and belief and the source of the information and belief arespecified (Rule 39.01(4)). The Defendants’ counsel urges the Court not to take a “formalistic approach.” The Defendants’ counsel relieson Rule 1.03(2) and argues that the Court should take a liberal

interpretation and not reject his affidavit merely because it omits thewords “information and belief”. He argues that it is contrary to the spirit of the Rules to reject his affidavit merely because it does notcontain what he describes as the “magic words.” I disagree. 15. The words “information and belief” in an affidavit are not “magic words”. They are essential. In order to bring oneself within theexception to the hearsay rule contained in Rule 39.01(4), it is not sufficient to merely give a statement as to the source of informationwithout a statement as to belief (New Brunswick v.

Carleton Enterprises Ltd. (1973), (NB KB), 8 N.B.R. (2d) 19). InRocan Forestry Service Ltd. v. Royal & Sun Alliance Insurance Co. of Canada (2002 CarswellNB 190), Justice Rideout stated atparagraph 12: The law in New Brunswick is now very clear. The facts deposed to must be within the knowledge or belief of the deponent. If it is asituation of belief, the deponent must give an explanation for his belief. 16. Those portions of Mr. Blois’ affidavit based on information are inadmissible because they do not state that the deponent believes theinformation. The paragraphs in question are paragraphs 5, 9 and 10.

Although paragraphs 9 and 10 do not explicitly state that they arebased on information, they purport to incorporate correspondence with Dr. Robinson as information relied upon. For all intents andpurposes, it is as if the paragraph read, “I am informed by Dr. Robinson that . . . (content of letter).” As will be discussed later, theappropriate practice would have been to have Dr. Robinson provide an affidavit. [14] I have taken the liberty of referring to Justice Morrison’s reasoning in Fletcher v. Mitrovic, supra in full because it hasbeen followed in other cases.

[15] In Francoeur v Beaulieu, 2017 NBQB 9 , Lavigne, J. (as she then was), explicitly adopted as her own therationale in Fletcher v. Mitrovic, supra. Here is what Justice Lavigne said in Francoeur v Beaulieu, supra at paragraphs 2 to 6: [2] The only affidavit evidence filed on behalf of the defendant Nadia Ouellette is that of Ms. Edith Comeau, who is identified as “aCasualty Claims Representative II with Intact Insurance Company, the insurer of Nadia Ouellette”.

The plaintiff alleges that paragraph 3of this affidavit should be struck from the record because it contains hearsay evidence that is not compliant with Rule 39.01(4) of theRules of Court as the deponent did not state that she believes the information therein.

Paragraph 3 reads as follows: “Annexed hereto asExhibit ‘A’ is a true copy of the statement given by Nadia Ouellette to the Independent Adjuster retained by Intact, Richard Michaud, onOctober 8, 2014.” Exhibit “A” is a statement of three pages signed by Nadia Ouellette. [3] While Rule 39.01(4) allows for affidavit evidence not confined to statements of fact within the personal knowledge of thedeponent, it clearly states that statements, as to his information and belief, must specify the source of the information and his belieftherein. In her affidavit, Ms.

Comeau says that she has “true personal knowledge of the facts set out herein;” however, her affidavitcontains no statement of belief. Exhibit “A,” i.e. Ms. Ouellette’s statement, contains facts clearly not within the deponent’s personalknowledge and nowhere does it indicate the deponent’s belief therein. [4] With regard to the defendants’ suggestion that the Court should rely on Rule 1.03(2) and admit the challenged evidence, Imake mine the observations of Morrison J. in Fletcher v. Mitrovic, 2009 NBQB 240, [2009] N.B.J.

No. 272, at paras. 14 and 15: (…) [5] In the present case, the best practice would have been to have the defendant, Nadia Ouellette, provide an affidavit attestingto the facts contained in her statement. [6] Paragraph 3 of Ms. Comeau’s affidavit, including the annexed statement, is struck from the record as it contains inadmissiblehearsay evidence. [Emphasis mine] [16] Then, in Layton v. Foulem, 2019 NBQB 124 , the late Justice Walsh reiterated the clear purpose and meaning ofRule 39.01(4), relied upon Fletcher v.

Mitrovic, supra in addition to providing his insight into the Court’s duty in determining thisevidence issue. I first refer to Justice Walsh’s comments at paragraphs 9, to set the stage: [9] In this vein, the Plaintiff did in his affidavit attach several reports from medical and occupational health professionals ostensiblysupporting his claim of complete disability. As well, he attached an e-mail from his former employer’s human resources administratorregarding the otherwise continuing availability of work in the occupation/field he was engaged when injured.

This form of evidencepresentation is permitted in the context of advance payment motions. Direct affidavits of the authors are not required (See: Smith v.Agnew at paras. 51-55). The Court in Smith v.

Agnew observed that “Rule 39 [of the Rules of Court] governs applications such as theone that concerns us here” [and] “that Rule should be interpreted and applied in a manner that facilitates the attainment of the object of s.265.6” (at para. 51). [17] Justice Walsh then, after confirming that that Plaintiff did not depose to his belief of any of the hearsay evidence asrequired by the Rule 39.01(4), and referring to Fletcher v.

Mitrovic, supra, concluded at paragraph 11 as follows: [11] Although courts are invested with a wide discretion to receive evidence (intended to be used at trial) on an advancepayment Motion (See: Smith v. Agnew, infra at para. 51), it cannot abdicate its responsibility to ensure at least rudimentarycompliance with the laws of evidence admissibility. The admission of hearsay, especially opinion evidence, is exceptional.

In thecontext here, Rule 39 would permit such evidence provided the deponent of the affidavit swears or affirms belief in the materialattached, whether that be a purported expert opinion or another kind of relevant third person statement. This was not done. Theeffect is harsh, but the impugned paragraphs of the Plaintiff’s affidavit and the corresponding attachments must be struck. [Emphasis mine] [18] The rationale set out in Fletcher v. Mitrovic, supra, wholeheartedly followed in Francoeur v Beaulieu, supra andreinforced Layton v. Foulem, supra is persuasive and I will also follow it.

[19] The practice of simply attaching documentary hearsay to Affidavits in non-compliance with Rule 39.01(4) of the Rules ofCourt is to be discouraged, as noted in the case law referred to above. This is even more so when attempting to rely on expert opinionevidence, because such evidence brings into play a host of other considerations that the Court must consider. The admissibility ofopinion evidence in this context is, as Walsh J. noted in Layton v. Foulem, supra, exceptional. One exception is s. 265.6(2) of theInsurance Act R.S.N.B. 1973, C.I-12 advance payment applications, as noted by the Court of Appeal in Smith v. Agnew at paragraph 53: [53]

Section 265.6(2) requires the judge to focus on the evidence to be adduced at trial on the issue of the defendant’s liability for thespecial damages for which an advance payment is sought. It follows that the evidence on a motion under s. 265.6 may include expertreports that the parties intend to use at trial. Neither an affidavit by the authors nor their viva voce testimony is required. [20] In this case, the impugned Exhibits are without question hearsay, in addition to containing expert opinion evidence.

Here,the Applicant omits any statement of “information and belief” in her Affidavit as it relates to the impugned Exhibits. The Applicant hasnot provided, in the words of Justice Walsh, “rudimentary compliance” with Rule 39.01(4). The words “information and belief” are“essential,” as Justice Morrison noted in Fletcher v. Mitrovic, supra., to bring the hearsay evidence within the exception provided inRule 39.01(4). I find that the words information and belief are also and especially important considering the Court’s gatekeeper duty as itpertains to expert opinion evidence: see White Burgess Langille Inman v.

Abbott and Haliburton Co., 2015 SCC 23 . [21] More specifically in this case, and in reference to Exhibit B for example, the Applicant says in her affidavit, that the reportfrom Dr. Vayani dated December 22, 2022, states “that I was there voluntarily (…)”. The Applicant may state she was at the Hospital“voluntarily” without Exhibit B and, with respect, while Exhibit B does state that, it also goes beyond that point. [22] I appreciate the context of this motion and counsel’s argument that there was a sense of urgency here. However, Exhibit Bis dated December 22, 2022, and Exhibit “C” is dated January 30, 2023.

These Exhibits were prepared several weeks before the Motionwas filed on March 6, 2023. They were not prepared at the last minute for the purpose of addressing this urgent motion. Finally, it will beopen to the Applicant to obtain an affidavit from Dr. Vayani and/or to call him/her as an expert at the hearing if she wishes. There maybe situations where a party may convince the Court to exercise its discretion under exceptional circumstances to receive such evidence,especially if Rule 39.01(4) is followed.

However, this is not such a case. [23] For these reasons, I will strike Exhibits B, C and E from the Applicant’s Affidavit. [24] On another evidentiary note, counsel for the Respondent sent to the Court after the hearing a copy what purports to beredacted documents from the Minister of Social Development (“MSD”). There is reference in some of the Affidavit evidence to theMSD’s involvement in this case. [25] In any event, these redacted documents submitted by email after the hearing were not reviewed or considered as they arenot properly before the Court.

If the parties feel that these documents from the MSD are relevant to the issue raised in the Motion, theymay file Affidavit evidence to have them admitted properly and in accordance with the Rules of Court. FACTS [26] The parties signed a Domestic Contract on December 19, 2018. The custody and access parts of the agreement do notrefer to equal parenting time. [27] On January 11, 2021, the parties executed an Addendum to the Domestic Contract which, according to the Applicantmodified the parenting arrangement to one week on, one week off. (see para 15 of the Applicant’s Affidavit).

The Addendum was notproduced by either party. [28] An Interim Court Order issued on February 25, 2021, in the context of a request to enforce the child support provisions ofthe Addendum to the Domestic Contract, refers to the parenting arrangement at the time in the recitals as follows:

WHEREAS the parties are the parents of the child, namely [R.I.M., born ….2014] and the parties share parenting time based on a week-on/week-off schedule; [29] The parties agreed at the hearing that prior to November 2022, before the Applicant was admitted to the Hospital formental health reasons, that they did have a one week-on, one week off shared parenting arrangement. [30] The Applicant was discharged from the Hospital on January 30, 2023. Since that time, she has not enjoyed equal parentingtime with the child.

ISSUE [31] Should the Applicant’s request to enforce the shared parenting time arrangement of one week on, one week off, beallowed until the Motion can be heard on its merits? LAW AND ANALYSIS [32] I begin by referring to the comments of the late Justice Walsh in S.M.S. v. T. M. P.-S., 2010 NBQB 329 , whichI find apposite to this matter. That matter involved a ruling on two motions on an expedited basis on various issues including what wasthen referred to as custody and access for two children.

Justice Walsh began by reminding the parties of the nature of the hearing atparagraphs 4 to 6: [4] Interim hearings such as this are different. They are limited by time and the nature of the evidence before it. The evidence is inaffidavit form, and as usual, there is great conflict in the competing affidavits. In these circumstances, our Court of Appeal has directedjudges to try to find “a reasonable temporary solution” to a very difficult problem from a host of options, pending the full hearing (See:Legault v. Rattray (NB CA), [2003] N.B.J. No. 442 (C.A.) at para. 4).

What is a reasonable temporary solution tothis extremely difficult problem for these parties? [5] Oftentimes Courts will look to the status quo (See: LeBlanc v. Khallaf 2010 NSSC 219 at paras. 2, 3). The difficulty, of course, isin determining the status quo. Indeed, by the very nature of family dissolution there is no such thing as a true status quo; it can never bethe same as it was. The best a Court can do is to find what is as close to the status quo, and even then there is no presumption that thestatus quo is an order that a judge must make.

It is one of several options that are open to judges as potential reasonable temporarysolutions. [6] The single concern of the Court, and the Court’s analysis, must be “child centred”, that is, what is in the “best interests of thechildren”. The Divorce Act, under which these proceedings are governed, specifically requires that we only focus on the best interests ofthe children (s. 16 (8)). Also found in the Divorce Act is a statutory principle called the “maximum contact principle,” that is, childrenshould have as much contact with each parent as is in their best interests(s. 16 (10)).

The principle of maximum contact is not absolute. Itis maximum contact that accords with the child’s best interests. Some think that it means absolutely equal time with each parent. That isnot what the principle stands for (See: A.M.K.H. v. K.A.M. 2003 NBCA 33 at para. 20). [33] Justice Walsh then embarked upon a discussion of how the best interests of the children analysis may be considered giventhe nature of an interim hearing: [9] It is never an easy task.

For this Court it is important to keep in mind the nature of this hearing, which I mentioned, because thenature of the hearing gives focus to the nature of the decision I have to make. When we talk about a child’s best interests, generally weare speaking about the child’s short-term and long-term interests.

When we make decisions regarding custody, we are not only lookingat tomorrow, we are looking at when the child is 10, when the child is 15; we are looking at the future, subject to any material changesthat occur over the years. [10] But, with an interim order a Court really cannot focus on the long-term interests of the child. This is because of the limited natureof the evidence, the inability to assess credibility in traditional ways, and a whole host of other problems. The assessment of a child’s

long-term interests in an interim hearing would be more a feature of a guess than reasoned judgement. [11] The short-term interests of a child, though, are more susceptible to reasoned judgement, for obvious reasons. I only need to cover aforeseeable point in the future, until we can have a full and complete hearing, until, hopefully, the family situation tension will reducesomewhat and until, maybe, the parents can talk through their counsel, or otherwise. [34] The Applicant relies upon N.E.R. v.

J.D.M., 2011 NBCA 57 to argue that the equal parenting time arrangementshould not be changed based upon conflicting evidence. That matter was an appeal of a decision made pursuant to s. 17 of the DivorceAct, R.S.C. 1985, c. 3 (2nd Supp.) and ss. 7 and 8 of the Federal Child Support Guidelines, SOR/97-175 varying legal custody, access,and child support. [35] The hearing of the Motion in that case proceeded strictly based on affidavits filed with the Court. In other words, there wasno viva voce (oral) evidence, nor cross examination of any witnesses with respect to the contents of the affidavits.

However, counsel forthe parties filed pre-hearing briefs and presented oral arguments at the hearing of the motion. [36] One of the issues before the Court of Appeal was whether the trial judge erred by varying the existing custody and accessarrangement and child support payment solely based on conflicting affidavit evidence.

In finding that there was an error or law, the Courtof Appeal stated at paras 19-21: [19] In this case, a review of the affidavits put before the motion judge reveals a substantial dispute of the evidence that specificallyrelated to the issues of material change in circumstances and the best interests of the child, the exact questions he was called upon toadjudicate. [20] It is my view that in a situation such as the one before us, where the judge was confronted with completely conflictingaffidavits and a highly visible level of animosity between the parties, he should have disregarded the agreement by counsel not to callviva voce evidence nor to conduct cross examination of the deponents and set the matter down for a full hearing.

He should not havemade an order which altered custody and access on the basis of the obviously conflicting affidavits before him. [21] Therefore, the motion judge erred in law by varying the custody, access, and child support order on the basis of affidavitevidence which contained a substantial dispute of facts. [37] In J.H. v. T.H., 2017 NBCA 7 , Madam Justice Baird referred to the nature of interim hearings and how trialjudges decide such matters based on affidavit evidence: [9] In Benoît v. Reid (1995), (NB CA), 171 N.B.R. (2d) 161, [1995] N.B.J.

No. 553 (C.A.) (QL), Bastarache J.A. (ashe then was) reasoned when there is contested affidavit evidence and where the dispute focuses on a change in the custody of a child,viva voce evidence should be received. This is a laudable objective; however, the time constraints imposed on judges who sit in theFamily Division courts make this objective moot at best. Consequently, the majority of court orders which address interim child custodyare determined by way of affidavit evidence. See also D.G. v. H.F., 2006 NBCA 36, [2006] N.B.J.

No. 158 (QL), per Larlee andDeschênes, JJ.A. [38] More recently, Baird, J.A. granted leave to appeal in C.S. v D.S., (NB CA). In that case, the Appellantsought leave to appeal a decision in first instance made pursuant to the provisions of the FLA, which varied an ad hoc shared parentingarrangement with respect to three children. Madam Justice Baird stated at paragraph 9 in reference to motion’s judges’ reliance onaffidavit evidence that: [9] In considering the motion for leave to appeal, I am persuaded:

1. The issue of how motion judges treat conflicting affidavits where interim parenting orders are being sought is not without conflict(see; Fougère v. Fougère (1987), (NB CA), 77 N.B.R. (2d) 381, [1987] N.B.J. No. 26 (C.A.) (QL); D.E.M. v. D.M.C.(1988), (NB BR), 92 N.B.R. (2d) 13, [1988] N.B.J. No. 721 (Q.B.) (QL); D.G. v. H.F., 2006 NBCA 36, 297 N.B.R.(2d) 329; N.E.R. v. J.D.M., 2011 NBCA 57, 377 N.B.R. (2d) 147, at para. 16; Henheffer v. Barry, 2016 NBQB 29, [2016] N.B.J. No. 100(QL)); 2. I have doubts about the correctness of the order.

Here, I highlight the lack of a best interests of the child analysis (see J.H. v. T.H.,2017 NBCA 7, [2017] N.B.J. No. 16 (QL), at para. 36; T.M.D. v. J.P.G., 2018 NBCA 15, [2018] N.B.J. No. 44 (QL), at paras. 26-32;L.S. v. M.S., 2019 NBCA 64, [2019] N.B.J. No. 235 (QL); N.A.T. v. S.A.T., 2019 NBCA 87, [2019] N.B.J. No. 368 (QL); J.J.S. v. E.M.S.,2021 NBCA 23, [2021] N.B.J. No. 131 (QL)); and 3. The proposed appeal involves matters of sufficient importance to the administration of justice. How should interim custody andaccess hearings be conducted when there is conflicting affidavit evidence?

Are judges required to conduct a best interests of the childanalysis under s. 50 of the Act when making interim orders for parenting? Should mathematical calculations under the Guidelines bedelegated to counsel in circumstances where there has been a failure to comply with financial disclosure obligations under the FederalChild Support Guidelines, SOR/97-175? [39] On September 15, 2022, the appeal was dismissed with reasons to follow: see C.S. v. D.S., 2022 NBCA 51 .

Tothe best of my knowledge, reasons have not yet been given by the Court of Appeal in that matter. [40] I do not believe the Court of Appeal has stated that as a matter of law, a Judge faced with conflicting evidence on anabridged or interim, interim parenting order hearing, must automatically hear viva voce testimony every time. A hearing on anabridged basis is tantamount to determining an issue on an emergency basis and is exceptional. As I understand the Court of Appeal’srationale in N.E.R. v.

J.D.M., supra, it is the final determination of the merits of a Motion to vary a parenting order that requires vivavoce (oral) testimony in the face of conflicting evidence. [41] I note that the Notice of Motion before me is not a Motion to Change, or to vary, another custody, access, or parentingorder. In this case, there is no parenting Order to vary. In fact, unlike in N.E.R. v. J.D.M., supra this is a hearing of the Motion heard onan abridged basis, not a determination of the merits of the Motion. This is in essence an interim, interim hearing.

In any event, I havedetermined that the merits of the Motion shall be decided based on viva voce testimony, on an expedited basis. [42] Nor do I understand the Court of Appeal in N.E.R. v. J.D.M., supra to state that in circumstances such those in the withinmatter, the Motion’s Judge must automatically default to the so-called “status quo” until viva voce testimony is heard. [43] In S.M.S. v. T. M. P.-S. supra, Justice Walsh stated at paragraph 5 that “there is no presumption that the status quo is anorder that a judge must make.

It is one of several options that are open to judges as potential reasonable temporary solutions.” I agree forseveral reasons. [44] First, the so-called “status quo” may not always be in the short, and/or long-term, best interests of the child. The bestinterests of the child must be the focal point at any hearing of a Motion seeking a parenting order or variance of such an Order. The Courtcannot ignore or fail to consider what is in the best interests of the child simply because the Motion is heard on an abridged or interim,interim basis even if the evidence is imperfect.

Whether a Motion seeking such relief is heard on an abridged basis (‘interim, interim”),or at a full hearing on the merits of a Motion with viva voce testimony, is of no moment: the Court must consider the best interests of thechild. [45] Second, Judges hearing an abridged motion prior to a full hearing must exercise their discretion in rendering a decision,almost immediately.

Conducting mini hearings in that context is not practical, efficient, and certainly not cost-effective for the litigants. [46] Third, it will be open to the Court to accept, reject, or otherwise weigh all of the evidence after the affiants testify and aresubjected to cross-examination at the hearing on the merits of the Motion, and possibly make a different decision.

That is the nature ofthese proceedings. [47] In my view, given the nature of these proceedings, the objective is to find a reasonable temporary solution that isconsistent with, at minimum, the short-term best interests of the child based on the evidence before me.

[ 48 ] The evidence demonstrates that, by all accounts, this child is now at the center of a family’s hostilities that extends beyond the parents. [ 49 ] The Respondent filed a 117 paragraph Affidavit and takes the position that large swaths of the Applicant’s affidavit are pure fabrication.

At paragraph 8 of his Affidavit, the Respondent states that: ‘I disagree with almost all of the Applicant’s Affidavit”. [ 50 ] The Respondent’s common law partner, M.C., also filed a detailed affidavit touching upon several points, but emphasizes that the week-on/week-off parenting arrangement was detrimental to the child at least in part based on her observations of the child when he returned home. [ 51 ] The Applicant’s sister, O.M., filed a 78-paragraph affidavit setting out her concerns about her sister's parenting ability, her sister’s ongoing mental health issues, the relationship with the Respondent in addition to facts relating to the child's best interests.

She even swears that “my mother and my sister, unfortunately, do frequently lie about small and big details” (see paragraph 33 of O.M.’s Affidavit). Portions of this affidavit contain opinion that I have not considered.

However, it does contain certain factual statements based on the affiant’s personal knowledge or observations of the child, her sister (the applicant) and others. [ 52 ] One of the points made in the affidavits submitted by, or on behalf of the Respondent, is that the child has been doing well lately in terms of school, extra-curricular activities and with respect to his overall well-being; i.e. see paragraphs 103-104 and 106-108 of the Respondent’s Affidavit; paras 32 to 34 of M.C.’s Affidavit and para 39 of O.M.’s Affidavit. [ 53 ] I understand that none of the evidence has been tested by cross-examination.

Both parties intend to challenge opposing evidence. However, I must base my decision on the evidence before me at this time, even if that evidence is imperfect. [ 54 ] It is an understatement to say that the communication and cooperation between the parents is poor now, and has been historically, as well. In fact, the Applicant speaks to the breakdown in communication with the Respondent in paragraphs 44 to 48 of her Affidavit. The Respondent’s evidence on this point is hardly contradictory.

M.C. states at paragraph 12 of her Affidavit that: “I have been a witness to [the Respondent] dealing with what seems to be endless issues coparenting with [the Applicant].” [ 55 ] The fact is that the equal parenting time arrangement that existed in November 2022 changed because the Applicant was facing significant mental health challenges which ultimately led to her admission to the Hospital until January 30, 2023. The Applicant says she has PTSD and Borderline Personality Disorder: see paragraph 8 of her Affidavit. The Applicant needed assistance. She cannot be faulted for seeking treatment.

In fact, the Applicant is still receiving treatment, which she describes at paragraph 35 of her Affidavit: 35. As for my mental health, I am followed by the psychiatrist at Victoria Health Center. I have 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. This program should help.

It is a 6-month program. [ 56 ] I am satisfied that the parental relationship and indeed, the greater familial relationship, does not lend itself to equal coparenting because it is not in the child’s best interests in the short term. [ 57 ] In this case, the short-term interests of the child that are foremost in my mind, based on the evidence before the Court, are his stability and emotional wellbeing. According to the Respondent, “it was [the child] who had to disclose to me that his mother was in the hospital”: see para 74 of his Affidavit.

He also deposes that the child told him shortly prior to the Applicant’s admission to the Hospital that “I am worried about my mom” and “I am worried that she is not being safe”: see paragraph 14 of the Respondent’s Affidavit.

I will not put much weight on the Respondent’s perception or belief about why the child made these statements at that time. [ 58 ] However, it would be understandable that the child is worried about his mother and even more so, after she was admitted because he spoke to her over the phone while she was at in the Hospital and had 3 visits with her when she had day passes: see paragraphs 80, 89 and 91 of the Respondent’s Affidavit and paragraph 27 of the Applicant’s Affidavit. [ 59 ] How recent circumstances have and may affect the child’s best interests in the short term and/or long term remains to be determined and have given me pause for concern at this stage.

A cautious approach in terms of a parenting order is warranted in my view, at this time.

[ 60 ] Upon considering the evidence before the Court and the submissions of counsel, I have decided to not allow, on an interim, interim basis only, a return to equal parenting time as sought by the Applicant. [ 61 ] However, this does not mean that the Applicant is not entitled to parenting time with the child. On the contrary, it is very important that contact with the child be maintained. [ 62 ] Since being discharged, the Applicant has had limited parenting time with the child for reasons that are disputed in the evidence.

She submits that a progressive approach to parenting time is proper in the circumstances. This approach is being suggested because it is in the child’s best interests. I agree. [ 63 ] In my view, a reasonable temporary solution is to increase the Applicant’s parenting time with the child on a gradual basis until the Motion is heard on May 18-19, 2023. Pending the disposition of the motion, the Respondent shall have decision-making responsibility and primary care of the child. [ 64 ] The current (not the pre-admission to the Hospital) parenting arrangement shall be maintained until April 7, 2023.

Commencing April 7, 2023, the Applicant shall have unsupervised parenting time with the child every Tuesday and Thursday after school until 9 pm, as well as every Saturday from 9 a.m.-5 p.m., until May 16, 2023. The child shall continue to attend extra-curricular activities during this time. In addition, the parties shall not disparage one another or their families. The parents shall both have access to information about the child’s well-being, including information in respect of the child’s health and education. [ 65 ] The parties may vary this parenting time

schedule by consent through their respective solicitors to accommodate special requests, work schedules or illness for example, or unforeseen circumstances. Any request or refusal to vary the parenting time shall be made by email between counsel. Copies of all emails exchanged between counsel relating to any request or refusal to vary the parenting

schedule shall be filed with the Court prior to the hearing of the Motion. [ 66 ] To help alleviate some of the Applicant’s concerns, an expedited hearing of the Motion shall take place on May 18-19, 2023, as noted above. This will give the Applicant time to file further affidavit evidence, including from Dr. Vayani, if she chooses to do so.

In addition, leave to cross-examine the affiants shall be granted at the hearing for the Motion pursuant to Rule 39.02(2) of the Rules of Court . [ 67 ] I want to be clear that this interim, interim decision is not meant to discourage the Applicant in any manner with respect to what she went through and/or the ongoing challenge she faces in relation to her mental health. I am focused on the child.

DISPOSITION [ 68 ] The relief sought by the Applicant in the Motion to return to equal parenting time, one week on, one week off, is denied on an interim, interim basis pending the determination of the Motion. [ 69 ] Pursuant to s. 52(2) (a), 52(3) , 52(4) (a), (b), (

c) and (

h) and 52(5) of the Family Law Act , S.N.B. 2020, c. 23 , the following parenting Interim, Interim Order is made: 1. The Respondent shall have decision-making responsibility and primary care of the child pending the disposition of the Motion. 2. The Applicant shall have parenting time with the child as follows: (

a) The current parenting arrangement shall be maintained until April 7, 2023.

(

b) Commencing April 7, 2023, the Applicant shall have unsupervised parenting time with the child every Tuesday and Thursday after school until 9:00 p.m., as well as every Saturday from 9:00 a.m. to 5:00 p.m., until May 16, 2023. (

c) The child shall continue to attend extra-curricular activities during this time. (

d) The parties shall not disparage one another or their families. (

e) The parties may vary the parenting time

schedule by consent through their respective solicitors to accommodate special requests, work schedules or illness for example, or unforeseen circumstances. Any request or refusal to vary the parenting time shall be made by email between counsel. Copies of all emails exchanged between counsel relating to any request or refusal to vary the parenting

schedule shall be filed with the Court prior to the hearing of the Motion. 3. 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. 4. The Applicant shall file and serve any affidavit evidence from Dr. A. Vayani, the Applicant’s consulting psychiatrist, along with a Notice of Expert, on or before May 1, 2023, if she chooses to do so. 5. The Applicant shall file and serve any further Affidavit evidence in response to the Respondent’s evidence on or before May 8, 2023. 6.

The parties shall be granted leave to cross-examine the affiants on any affidavits at the hearing of the Motion pursuant to Rule 39.02(2) of the Rules of Court . 7. The Applicant shall file and serve a Supplementary Record on Motion on or before May 12, 2023. 8. The parties shall file and serve Pre-Hearing Briefs on or before May 12, 2023. 9. A hearing of the Motion shall take place on an expedited basis and, more specifically, on May 18-19, 2023, in Fredericton, New Brunswick. 10. There shall be no order as to costs at this time. The parties may address the issue of costs at the hearing on May 18-19, 2023. 11.

This Order is effective March 14, 2023. DATED at Saint John, New Brunswick this ______ day of March 2023. _____________________________

Danys R.X. Delaquis Judge of the Court of King’s Bench of New Brunswick - Family Division