R.B. Applicant And: A.H. Respondent Corrected Judgment : The text of the original judgment was corrected on December 19, 2018 v. a description of the correction is, 2018 NLSC 247

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR FAMILY DIVISION Citation: R.B. v. A.H., 2018 NLSC 247 Date: December 6, 2018 Docket: 201602F1000 Between: R.B. Applicant And: A.H. Respondent Corrected Judgment: The text of the original judgment was corrected on December 19, 2018 and a description of the correction isappended. Before: Justice Alexander MacDonald Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: November 27, 2018 Appearances: Benjamin P. Curties Appearing on behalf of the Applicant James M.

Molony Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Pumphrey v. Pumphrey (1997), (NL CA), 148 Nfld. & P.E.I.R. 340, 29 R.F.L. (4th) 283(Nfld. C.A.); MacDonald v. MacDonald (1998), (NL CA), 161 Nfld. & P.E.I.R. 39, 36 R.F.L. (4th) 257 (Nfld. C.A);

Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, 19 R.F.L. (4th) 177; R. (F.F.) v. F. (K.) 2013 NLCA 8; Carter v. Brooks(1990), (ON CA), 30 R.F.L. (3d) 53, 77 D.L.R. (4th) 45 (Ont. C.A.); R. v. Khelawon, 2006 SCC 57 STATUTES CONSIDERED: Children’s Law Act, R.S.N.L 1990, c. C-13 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT MACDONALD, J.: INTRODUCTION [1] G.H. is the son of R.B. and A.H. He is two and a half-years-old. [2] G.H. lives with his mother.

He sees his father for unsupervised parenting for three hours on Tuesdays and Thursdays and onSundays for four hours. [3] R.B. seeks shared parenting with equal parenting time. I granted R.B. permission to proceed with an interim application forshared parenting under Rule F19.02 (1) when the trial scheduled for October 29, 2018 could not proceed because of A.H.’s absence. [4] I will grant R.B.’s application and order on an interim basis, shared parenting shared on the basis set out in Parenting Timestarting on page 17. I also have awarded him his costs.

ISSUES [5] The issues in this Application are: Issue 1: Is this matter appropriate for an interim application? In particular: (

a) Is there a compelling change in circumstances from the last interim order? (

b) Is there an immediate need to hear the interim application as irreparable harm will likely occur before the matter can proceedto a final hearing? Issue 2: Is it in G.H.’s best interest to make an award for shared parenting? Issue 3: What is the appropriate interim Parenting Order? DISCUSSION Issue 1 (a): Is there a compelling change in circumstances from the last interim order? [6] I find that R.B. has established a compelling and material change in circumstances. [7] Rule F19.02 provides that the Court may grant R.B. permission to proceed with an application to vary an interim order if Ifind that: (

a) there is a compelling change in circumstances from the last interim order to ground this interim application; and (

b) there is an immediate need to hear the application as irreparable harm will likely occur before the matter can proceed to trial. [8] Since the parties’ separation in September 2016, A.H. has consistently opposed G.H. having overnight parenting with hisfather. [9] G.H.’s current parenting arrangements are contained in an Order of December 14, 2017, amending orders granted on June 8and October 3, 2017. These orders provide that G.H. live with his mother and see his father for unsupervised parenting for three hourseach on Tuesday and Thursday, and on Sunday for four hours.

At the hearing A.H. said she offered R.B. additional weekday parenting. [10] His father now seeks equal parenting time. [11] The question is what has changed since December 14, 2017? [12] A.H. did not attend the trial on October 29, 2018. Her relationship with her third lawyer ended three days before the start of thetrial. She says she was at a medical appointment on the day that the trial started and submitted a note purportedly from Eastern Health toprovide this assertion. [13] Eastern Health did not sign the note. Furthermore, the copy submitted is part of the form only. I find that it is not a complete

copy and there is no evidence that Eastern Health, in fact, issued it. [14] I find that A.H. failed to attend the trial without proper excuse.

This failure delayed resolution of the matter, maintained thestatus quo and denied the possibility of R.B. having overnight parenting. [15] On October 29, 2018, I concluded that the delay of the trial in these circumstances in itself, constitutes a compelling andmaterial change of circumstances, and I find so now. [16] In September 2018, A.H. applied for disclosure of the Department of Children, Seniors and Social Development (“CSSD”) filerelating to G.H. because she believed it contained information pertaining to R.B.’s parenting.

I ordered disclosure and CSSD disclosedits file to the parties and counsel provided it to me. [17] My review of the 314 pages of the file reveals that CSSD has no open protection file against R.B. despite numerous complaintsmade by A.H. including the complaints contained in her affidavit. CSSD concluded that these complaints do not give rise to childprotection concerns. [18] On October 29, 2018, I concluded that the contents of the CSSD file constitute a compelling and material change incircumstance, and I find so now.

Issue 1 (b): Is there an immediate need to hear the application as irreparable harm will likely occur before the matter canproceed to trial? [19] I find that there is an immediate need to hear the application as irreparable harm will likely occur before the matter can proceedto trial. [20] For all of his short life, G.H. has never spent more than four hours in a row with his father. This calls into question, what is theimpact on G.H.? [21] Being a parent means putting him to bed when he is tired, comforting him when he wakes and consoling him when he is sad.

Being a parent means hugging him when he is lonely, feeding him when he is hungry and cleaning him when he is dirty. Being a parentmeans all of this, and so much more. [22] Being a son is to have all of this, not only from your mother but also from your father. [23] G.H. has had little access to his father because his mother alleges that R.B. is not a fit parent. [24] While I cannot turn back time and restore to G.H. what he has lost, I can stop this loss from continuing. I will do so, but only ifI am satisfied that it is in G.H.’s best interest.

Thus, a delay of four months, and possibly much longer, will likely cause G.H. irreparableharm. For a two and a half-year-old, four months is an eternity. Issue 2: Is it in G.H.’s best interest to make an award for shared parenting and, if so, on what terms? [25] I find it is in G.H.’s best interest that his mother and father have joint custody and shared parenting. [26] I find that it is in his best interest that the parenting order phase-in to allow everyone to adjust to the revised schedule. [27] The details of the Interim Parenting Order are contained in Parenting Time starting on page 17.

The Order shall remain ineffect until further order of this Court, until the parties agree otherwise or until disposition of this matter after trial. CHARACTERISTICS OF INTERIM ORDERS [28] This is an interim application. The Court of Appeal in Pumphrey v. Pumphrey (1997), (NL CA), 148 Nfld.& P.E.I.R. 340, 29 R.F.L. (4th) 283 (Nfld. C.A.), observed that interim orders cover the time between the application and the trial. Interim orders provide a reasonably acceptable solution to a difficult problem until the trial.

However, after full investigation of the factsa trial judge can make a completely different decision. [29] Interim applications should be determined on a

summary basis on affidavit evidence. Furthermore, the Court of Appealdirected that a trial date should be set as soon as possible so I can attempt to minimize the uncertainty and disruption to G.H.’s life, whois caught in the middle of his parents’ dispute. [30] I have rescheduled the trial for the first available date, March 25, 2019. [31] Therefore, my order will only be effective until this Court makes a further order after the trial. This order may becomepermanent if the parties accept it.

The Court of Appeal observed that there is nothing wrong with that as long as the parties recognize thebasis for the interim order and understand that the order might well be different from one that a trial judge might issue. [32]

Section 26 of the Children’s Law Act, R.S.N.L 1990, c. C-13, provides that R.B. and A.H. are equally entitled to custody ofG.H. However, there is no presumption for joint custody and equal sharing of parenting. The Court of Appeal rejected this propositionin Pumphrey in the divorce context and in MacDonald v. MacDonald (1997), (NL CA), 161 Nfld. & P.E.I.R. 39, 36R.F.L. (4th) 257 (Nfld. C.A), in the Children’s Law Act context. Furthermore, even if both parents acknowledge the other is a “fit”parent this does not necessarily lead to equally shared parenting. [33] The Supreme Court of Canada in Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27, 19 R.F.L. (4th) 177, directsthat once the applicant has met the threshold of a material change, I must embark upon a fresh inquiry into the best interests of thechildren. In this context, I find there is a material change in circumstance.

[34]

Section 31 of the Children’s Law Act compels me to consider what is in G.H.’s best interests. I am to consider the factors setout in subsection 2. Furthermore, I am to be cautious of relying on the status quo by ordering he stay where he is. There is nopresumption in favour of the status quo but it is but one element I can consider in making my decision. (R. (F.F.) v. F. (K.), 2013 NLCA8) [35] Both parents should bear the evidentiary burden of demonstrating where the best interests of G.H. lie as in Carter v. Brooks(1990), (ON CA), 30 R.F.L. (3d) 53, 77 D.L.R. (4th) 45 (Ont.

C.A.). [36] Our Court of Appeal expects that the parents should file a brief history of the marriage, the name and age of the child, the rolesplayed by each parent for childcare prior to separation, the existing and proposed childcare arrangements, where the child is to live andhow each parent will exercise access. They should provide an explanation of the circumstances that may justify the alteration of theexisting routine pending final disposition. (Pumphrey) [37] R.B. has presented such a plan. He tells me of: (

a) his love and affection for his son, his love of doing everything with him and his desire to protect him; (

b) the training he has and courses he will complete to assist him being a father; (

c) a typical day with G.H. and tells me of his nap, bed and wake-up times. He tells me about taking G.H. to the gym, to Lester’sFarm, to parks and to the grocery store. He tells me about visits with family and friends; (

d) playing, singing and reading with G.H. He tells me of the toys he keeps for him is his home. He tells me how much his sonloves these activities and what changes he would make if he was able to see him more; (

e) his plans for his son’s diet and discipline; (

f) how he will accommodate G.H. at his home. He tells me he does not intend to leave St. John’s; (

g) about his and G.H.’s relationship with his extended family in particular J.R., who is close to both G.H. and his father; (

h) his strong relationship with his father and about the influence his late mother had on him. He tells me about the impact thathis sister’s premature death had on his whole family; (

i) about his job; (

j) his daycare plans and where his son should go to school when that time comes; (

k) about his extracurricular activities, his health and his tobacco habit which he is trying to quit; and (

l) his proposal for A.H.’s parenting and access. [38] I believe R.B.’s plea meets the criteria required by the Court of Appeal. He focuses on his son and not on the parent’srelationship with each other. [39] A.H. has not provided me with a similar plan.

She continues to deny G.H.’s father overnight access relying not only of theallegations of family violence but also many other complaints about R.B.’s behavior, both in affidavits filed in this Court and in frequentand numerous complaints to CSSD. [40] She identifies two incidents of family violence. [41] The first she says occurred on November 28, 2016 when R.B. was so angry with her that he shook her while she was holdingtheir son in her arms.

The other occurred on December 4, 2016, when she says he threw a car seat in her presence. [42] Based on these two incidents, she obtained an Emergency Protection Order (“EPO”) on December 5, 2016 from the ProvincialCourt. At the hearing to continue the EPO she raised that R.B. said he would hire someone to kill her. The Provincial Court judgeordered the continuation of the EPO.

R.B. provided an explanation for this comment to me and to another Provincial Court judge whodismissed A.H.’s application for a Peace Bond on the basis that there was no reasonable grounds for A.H.’s fear. [43] Despite this ruling, she continues to ask me to rely on these two year old allegations as evidence of his unsuitability to haveovernight access with his son. [44] However, that is not the only evidence she submits. She also asks me to consider the following complaints: (

a) R.B. cut his son’s hair in violation of this Court’s order. She submitted a private investigation report in which the investigatormeasured G.H.’s hair prior to access by his father and after and noted that at least two areas where the child’s hair been cut onemeasuring under 4 cm. I find the methodology underlying the report questionable. The investigator acted under the direction of A.H. and I do not consider it anindependent report. I do not consider this report relevant to my decision; (

b) R.B. returned G.H. to her with a bump on his eyebrow; (

c) G.H. said “mommy bitch” after a parenting with R.B.;

(

d) R.B. fails to conform to her view of G.H.’s diet; (

e) R.B. failed to conform to her view of G.H.’s

schedule for napping eating and sleeping; and (

f) Someone at a daycare saw G.H. wrestling. She blames his activities because of his contact with his father. [ 45 ] She also made numerous other complaints to CSSD. R.B. refers to many of these complaints in his filed affidavit. [ 46 ] The details of these complaints, are contained in the 314 pages of the CSSD file. Can I admit this report as evidence in the absence of testimony from the authors of the file? [ 47 ] CSSD disclosed the file on A.H.’s application. A.H.’s counsel did not object when R.B.’s counsel provided me with a copy.

Pursuant to Rule F32.01 (2), I may consider documents filed unless A.H.’s counsel objects prior to trial. A.H.’s counsel did not so object. [ 48 ] Furthermore, under Rule F32.02(2), I can consider an affidavit which contains information a person learned from someone else if the affidavit is used in an interim application and the source of the information is identified. [ 49 ] R.B. referred to many of the complaints referred to in the CSSD file and to the extent he did so, I may accept this evidence.

A.H.’s counsel did not seek leave to cross-examine CSSD employees. [ 50 ] However, for the purposes of my analysis, I will assume the content of the CSSD file is not admissible under one of these two rules. [ 51 ] In such a case, I must decide if the report is excluded by any rule of evidence? If not, does its prejudicial effect outweigh its probative value?

I can also consider the principled approach and ask, is the out-of-court statement necessary and reliable? [ 52 ] I find that I may admit those parts of the file relating to A.H.’s complaints against R.B. under an exception to the hearsay rule in that the admission is not to establish the truth of the complaints but to establish that A.H. made them. I do not need to decide if any of A.H.’s complaints are true.

I find that its probative value outweighs any potential prejudicial effect. [ 53 ] Even if, by admitting the fact that A.H. made the complaints, I am in effect accepting the truth that she made them, under the principled approach to admission, I find the evidence is both necessary and reliable. ( R. v. Khelawon , 2006 SCC 57 ) [ 54 ] I find the evidence is necessary. I am to decide what parenting arrangement is in G.H.’s best interest. His mother is making serious complaints about his father’s parenting ability.

It is relevant whether A.H. made complaints against R.B. she subsequently abandoned. [ 55 ] I find the evidence is reliable. The file is largely notes of conversations between CSSD and A.H., and emails from her to CSSD. The state charges CSSD with the responsibility of investigating child protection complaints like those made by A.H. It has no interest in the proceedings other than the best interests of G.H. [ 56 ] My review of the CSSD file shows that A.H. made dozens of complaints about R.B.’s parenting, including: (

a) he argued with her on a parenting changeovers and returned her son late; (

b) he has an unstable baby gate at home; (

c) he had someone break into her house; (

d) he had someone try to run her car off the road when she was driving with G.H.; (

e) he played his guitar loudly next to G.H.’s ears; (

f) he has a sex, drug and rock ‘n’ roll lifestyle; (

g) he stole clothes from her; (

h) he deliberately attempted to harm his son by giving him formula; (

i) he deliberately injured G.H. and caused G.H.’s digestive problems by giving him sweet potato baby food. She sent CSSD pictures of his stool; (

j) he has an impaired driving conviction in 2015 and this makes him an unsuitable parent. R.B. admits he was convicted of impaired driving; (

k) he did not assist in the preparation for G.H.’s birth because he did not pick up diapers and other materials needed for G.H.; (

l) he fell asleep while at the hospital when she was giving birth to G.H. He would sometimes not wake when G.H. cried in the hospital; (

m) he recorded their conversation. She neglects to report a listening device found in a diaper bag she gave R.B.; (

n) he exhibits signs of a mental breakdown. He is aggressive verbally. He is an emotionally abusive father with drinking and drug issues. He has mood swings and personality shifts. I note that A.H.’s psychiatric diagnoses are not supported by physicians or

counsellors; and (

o) he made sexually inappropriate comments about his son. [ 57 ] She complained that D.B., R.B.’s father, arranged for his church congregation members to watch her. [ 58 ] Despite these complaints, CSSD has repeatedly closed its child protection file. Furthermore, I find it significant that she neglected to raise the complaints at this hearing when she believed that they were significant enough to report to CSSD as child protection concerns. [ 59 ] CSSD interviewed A.H.’s physician, Dr.

S., who provided opinions about the appropriateness of A.H.’s view of R.B. and her possible motivations for the position she takes about his parenting. R.B. referred to Dr. S.’s opinions in his affidavit. [ 60 ] I will not admit the evidence of Dr. S.’s reported opinions. I find it is hearsay opinion evidence and is inadmissible. It is one thing to accept evidence of statements made by the A.H. to CSSD to establish she made particular complaints. It is another to accept opinion evidence given to CSSD. It is not an exception to the hearsay exclusion as it only has evidentiary value if it is true.

Furthermore, I am not satisfied on the reliability of the evidence in the absence of her testimony. A.H. had subpoenaed Dr. S. to appear at the postponed trial. [ 61 ] Likewise, E.K. a counsellor, who was consulted by both parents, was reported to say that neither appeared to have mental health issues with either parent.

Again, I find this hearsay opinion evidence inadmissible. [ 62 ] She also makes a series of complaints, both to CSSD and in her affidavit, about R.B.’s father and G.H.’s grandfather, D.B., who is a priest. [ 63 ] A.H. says he has unacceptable views on gender identity, gender roles and sexual orientation. She says that G.H. refers to God because of his influence. She says he has unacceptable views about the status of an unborn fetus. A.H. repeats some of these complaints in her affidavit filed in this matter. [ 64 ] I find his involvement with his grandchild is not detrimental to him.

The parents will raise their child, not the grandparents. D.B. filed an affidavit in which he expressed his love for his grandchild and son, and his past love for G.H.’s mother. I found his affidavit compelling. [ 65 ] Not surprisingly, he does not deny his belief in God nor he does not deny his views on the status of an unborn fetus. It should come as no surprise that a priest believes in God or that he supports the position of his church on abortion. People of goodwill can disagree on such matters. This does not mean he cannot see his grandchild.

Furthermore, I have no evidence that D.B. discriminates against anyone because of his or her gender roles or identity or their sexual orientation. [ 66 ] I find that A.H. has not established that R.B. is prone to family violence, is a bad parent, would deliberately hurt his child and is not capable of raising his child. Furthermore, she has not established that D.H. should not see his grandson. [ 67 ] In her initial court pleadings, A.H. indicated she would allow R.B. a gradual increase in access after her son stopped breastfeeding.

Furthermore, A.H. has not asked me to supervise R.B.’s access or parenting, and in fact, she unilaterally increased the Court-ordered parenting. [ 68 ] These actions contradict her position that R.B. is not fit to co-parent their son. [ 69 ] I do not doubt that R.B. has struggled with the needs of a newborn child, but I do not believe that the struggles are more or less significant than any first time father would encounter. In fact, A.H. may have exacerbated this problem by restricting G.H.’s access to his son. [ 70 ] Furthermore, A.H. has not provided me with a plan for parenting her son.

She repeats her complaints about R.B.’s behavior and does not concentrate on the best interest of G.H. [ 71 ] Parents will often disagree about the length of their child’s hair, diet and schedule. These are difficult issues even if parents are together. However, these parents are not together and will not likely be so. [ 72 ] Co-parents cannot micromanage the other’s parenting. It is best for G.H. if they could agree on a common approach to such matters but this is not a requirement for co-parenting.

They have to learn to worry about the big issues and not the small. [ 73 ] A.H. submits that even if I were to find that co-parenting is appropriate, I should not do so because a trial judge could disagree. [ 74 ] I reject this submission. There is no presumption in favour of the status quo. The current situation has gone on for two and half years based on largely unsubstantiated complaints. Her submission might have more weight if she had not deliberately failed to attend the trial. The trial should have been finished. The Court may have issued a decision.

G.H. should not continue to suffer the loss of his father’s affections because of his mother’s actions to thwart resolution of the matter. Issue 3: What is the appropriate Interim Parenting Order? [ 75 ] R.B. has proposed either week on/week off parenting or alternating weekday and alternating weekend parenting. [ 76 ] I do not consider week on/week off access appropriate for a two-year-old, and the day on/day off

schedule is more appropriate. [ 77 ] However, as G.H. has never spent an overnight alone with his father, I order that the parents phase in the new parenting

schedule as follows.

Parenting Time [ 78 ] Starting December 7, 2018 until January 5, 2019: • Saturday from 8:30 a.m. until 5:30 p.m. - R.B.’s parenting • Tuesday from 5:30 p.m. until Wednesday 5:30 p.m. - R.B.’s parenting • Thursday from 8:30 a.m. until 5:30 p.m. - R.B.’s parenting • A.H. parenting remaining time [ 79 ] Starting January 5, 2019 until February 2, 2019: • Saturday from 8:30 a.m. until Sunday 8:30 a.m. - R.B.’s parenting • Tuesday from 5:30 p.m. until Wednesday 5:30 p.m. - R.B.’s parenting • Thursday from 8:30 a.m. until 5:30 p.m. - R.B.’s parenting • A.H. parenting remaining time [ 80 ] Starting February 2, 2019, until further order of this Court: • Saturday from 8:30 a.m. until Sunday 8:30 a.m. - R.B.’s parenting • Tuesday from 5:30 p.m. until Wednesday 5:30 p.m. - R.B.’s parenting • Thursday from 8:30 a.m. until Friday 8:30 a.m. - R.B.’s parenting • A.H. parenting remaining time [ 81 ] 2018 Christmas: • R.B.’s Tuesday, December 25, 2018, parenting will occur on Sunday, December 23, 2018 from 12:00 noon until Monday, December 24, 2018 12:00 noon. [ 82 ] 2018 New Years: • R.B.’s parenting on Saturday the December 29, 2018 will occur on Monday, December 31, 2018 at 12:00 noon until Wednesday, January 2, 2019 at 12:00 noon. [ 83 ] 2019 Mother’s Day and Father’s Day: • Notwithstanding the ordered schedule, A.H. shall be entitled to access with her son from 12:00 noon until 6:30 p.m. on Mother’s Day and R.B. is entitled to access with his son from 12:00 noon until 6:00 PM on Father’s Day. [ 84 ] 2019 Summer Holidays: • If the Court does not make a final decision by June 30, 2019, the parents will each parent their son for one consecutive seven-day period between July 1, 2019 and August 31, 2019.

A.H. will have the first choice of the week followed by R.B. There is no compensation time for the other parenting time missed because of this parenting time. ANCILLARY ORDERS [ 85 ] The parents will changeover parenting pursuant to this Court’s order of December 14, 2017, and in particular, the parties will meet at McDonald’s in Paradise at the beginning of parenting and will meet at Tim Horton’s in the Orange Store on Water Street at the end of parenting.

The parents may agree in writing to change the times of day and the location of the changeovers. [ 86 ] The parents shall communicate respectfully with each other and only in relation to matters about parenting G.H. Each parent shall consult and inform the other about G.H.’s medical, educational or childcare needs.

Each parent is entitled to attend any appointments relating to the same. [ 87 ] The parents shall not speak in a derogatory manner in the presence of G.H. about each others parent’s family, including their siblings, parents, grandparents, aunts, uncles, or any new partner or spouse, or about J.R. [ 88 ] The parents shall not move G.H. outside the St. John’s metropolitan area, nor travel with him outside the Avalon Peninsula, without the prior written consent of the other parent. [ 89 ] I will not order any restrictions on G.H. seeing his grandparents.

I will not order any restrictions about G.H. seeing J.R., or calling him uncle, if that is his father’s wish. I will not order who may or may not cut G.H.’s hair. [ 90 ] I order that A.H. provide R.B. with a certified copy of G.H.’s birth certificate. [ 91 ] My decision on the parenting is without prejudice to any subsequent decision by the trial judge after full hearing of the evidence.

COSTS [ 92 ] R.B. has been successful in this Application and I will award him costs. I order that A.H. pay R.B.’s costs according to Column 3 of the Scale of Costs in Rule 55 of the Rules of the Supreme Court, 1986 , S.N.L. 1986 c.42, Sch. D. _________________________________ ALEXANDER MACDONALD Justice APPENDIX Correction made on December 19, 2018: 1. The date in paragraph 82, page 19 was changed from December 30 to December 31, 2018.