K.P. Applicant And: N.G. Respondent, 2019 NLSC 108

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR FAMILY DIVISION Citation : K.P. v. N.G. , 2019 NLSC 108 Date : May 23, 2019 Docket : 200904T0312 Between: K.P. Applicant And: N.G. Respondent Before: Justice Brian F. Furey Reasons for Judgment Given Orally Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: April 1 – 3, 2019 and April 5, 2019 Date of Oral Judgment: May 16, 2019

Summary: The father, K.P., applied to vary a Consent Order for custody and access which provided for joint custody of the child, primary residence with the mother, N.G., and specified parenting time to the father. He now sought a shared parenting arrangement and child support based on the parenting arrangement. The mother, N.G., disagreed with the changes sought by the father.

Held: The Court found that there has been a material change in circumstances and that it was in the best interests of the child that the parents be granted joint custody. A shared parenting arrangement was ordered. Child support followed the parenting arrangement. The father was ordered to pay child support to the mother based on his 2018 income. Appearances: Donald J. Gallant, Q.C. Appearing on behalf of K.P. Gary P. Kearney, Q.C. Appearing on behalf of N.G. Authorities Cited: CASES CONSIDERED: Contino v. Leonelli-Contino , 2005 SCC 63 ; and Fritz v. Tate , 2006 NLUFC 45 .

STATUTES CONSIDERED: Children’s Law Act , R.S.N.L. 1990, c. C-13 ; and Child Support Guidelines Regulations , N.L.R. 40/98 . TEXTS CONSIDERED: Mr. Justice Harvey Brownstone, Tug of War: a Judge’s Verdict on Separation, Custody Battles and the Bitter Realities of Family Court (Toronto, Ontario: ECW Press, 2009). REASONS FOR JUDGMENT Furey, J. : INTRODUCTION [ 1 ] I have considered the evidence that was presented to the Court on April 1 – 3, 2019. I have also considered the submissions of counsel on April 5, 2019.

I have found these very helpful. [ 2 ] This matter involves the consideration of an appropriate parenting arrangement for M. who was born in March 2008. [ 3 ] N.G. and K.P., who were never married, were in a relationship for a period between late 2006 and mid-2008. There was some disagreement between the parties as to the exact length of the relationship. It ended in August 2008. [ 4 ] M. is the only child of N.G. and K.P. She is the subject of a Consent Order (hereinafter the “Order”) dated September 17, 2010 which was filed in this Court on October 19, 2010.

The pertinent clauses of the Order are: 1 The Applicant and the Respondent have joint custody of the child, M.E.G.-P. (DOB: . . ., 2008). 2. The principal place of residence of M.E.G.-P. (DOB: . . ., 2008) shall be with the Respondent, N.G. 3. The Applicant, K.P., shall have reasonable access to M.E.G.-P. (DOB: . . ., 2008) upon giving reasonable notice to the Respondent, N.G., including overnight access on the weekends as mutually agreed to by the parties hereto. 4.

All access is to be exercised in the City of Corner Brook, NL. [ 5 ] Prior to that, a Consent Order for Child Support was filed on February 3, 2009, which required K.P. to pay child support to

N.G. for the support of M. Child support has been recalculated annually since the Consent Order. background [ 6 ] K.P. filed an Originating Application for Variation on April 3, 2018 seeking to vary the Order. K.P. sought joint custody of M., a shared parenting arrangement of week on/week off, and a sharing of special occasion holidays. He also sought a change in child support to a set-off amount if shared parenting was granted. [ 7 ] N.G. filed a Response. She disagreed with the remedies sought by K.P. She sought full custody of M. [ 8 ] An Interim Application was filed by K.P. on May 15, 2018.

He indicated that prior to filing the Originating Application for Variation he had been getting access to M. on every weekend. On one weekend, access occurred from Friday at 6 p.m. until Sunday at 3 p.m. On the next weekend, access occurred from Friday at 6 p.m. until Saturday at 3 p.m. That arrangement continued on an alternating basis. He had not had access to M. since April 21, 2018. He sought shared custody of M. on a week on/week off basis. [ 9 ] After a hearing on June 14, 2018, I granted an Interim Order which provided for the following: 1.

Six hours of access by K.P. to M. on Father’s Day, June 17, 2018; 2. Weekend access for K.P. from June 22, 2018 at 2:30 p.m. to June 25, 2018 at 8 a.m.; 3. During the summer of 2018, access for K.P. from Thursday, July 5, 2018 at 5 p.m. to Sunday, July 8, 2018 at 12 p.m. and continuing every second Thursday to Sunday thereafter until the start of the school year in September of 2018; 4.

During the summer of 2018, access for K.P. from Wednesday, July 11, 2018 at 4:30 p.m. to Thursday, July 12, 2018 at 8 a.m. and continuing every second Wednesday to Thursday thereafter until the start of the school year in September of 2018; 5. At the start of the school year in September of 2018, access for K.P.: i. Every other Friday to Monday, starting Friday, September 14, 2018 at 2:30 p.m. until Monday, September 17, 2018 at 8 a.m. and continuing every second Friday to Monday thereafter; and ii.

Every other Wednesday to Thursday, starting Wednesday, September 19, 2018 at 2:30 p.m. until Thursday, September 20, 2018 at 8 a.m. and continuing every second Wednesday to Thursday thereafter. [ 10 ] The

schedule set out in clauses 5. i. and ii. is currently in place. issues [ 11 ] A number of issues have to be determined in this matter: 1. Has there been a material change in circumstances that affects the best interests of M.? 2. If so, what is the appropriate parenting arrangement for M.? 3. What Order for child support should be granted? the law [ 12 ] When considering the parenting of a child of parents who are not married, the provisions of the Children’s Law Act , R.S.N.L. 1990, c. C-13 (hereinafter the “ Act ”) apply.

Part III of the Act deals with custody and access. Subsection 26(1) states that the mother and the father of a child are equally entitled to custody of their child. Subsection 31(1) sets out that a court in matters dealing with an application involving the parenting of a child is guided by what is in the best interests of the child. [ 13 ]

Section 31 states: 31(1) The merits of an application under this

Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child.

(2) In determining the best interests of a child for the purposes of an application under this

Part in respect of custody of or access to a child, a court shall consider all the needs and circumstances of the child including (

a) the love, affection and emotional ties between the child and, (

i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child's family who live with the child, and (iii) persons involved in the care and upbringing of the child;

(

b) the views and preferences of the child, where the views and preferences can reasonably be ascertained; (

c) the length of time the child has lived in a stable home environment; (

d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and the special needs of the child; (

e) the ability of each parent seeking the custody or access to act as a parent; (

f) plans proposed for the care and upbringing of the child; (

g) the permanence and stability of the family unit with which it is proposed that the child will live; and (

h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

(3) In assessing a person's ability to act as a parent, the court shall consider whether the person has ever acted in a violent manner towards (

a) his or her spouse or child; (

b) his or her child's parent; or (

c) another member of the household, otherwise a person's past conduct shall only be considered if the court thinks it is relevant to the person's ability to act as a parent. [ 14 ]

Section 35 dealing with the variation of an order states: 35

(1) A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in the province unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. (2) Subsection (1) does not apply to an order made under subsection 34(2) or subsection 41(2) or (6). evidence [ 15 ] I heard evidence from the parties as well as K.P.’s parents. [ 16 ] M.P., K.P.’s mother, and W.P., his father, now live in Nova Scotia.

His mother testified that she and her husband saw M. frequently when they lived in Corner Brook because K.P. had M. with him a lot. [ 17 ] M.P. and M. were quite close. They have a good relationship. She described M. as very affectionate, a loving child. She always felt M. was a mature girl for her age. She was very independent. [ 18 ] K.P.’s and N.G.’s relationship was not a long one. They were together and then they would break up. It was not a good relationship. [ 19 ] M.P. thought M. was a month or two old before K.P. had access to her.

When K.P. had M. with him, he would ask questions but he wanted to do everything for M. M.P. stated that K.P. and M. have a very loving relationship. M. is not scared of her father. M.P. did not have any concerns regarding K.P.’s parenting of M. She said K.P. is a good father. He does a wonderful job with M., who is comfortable at her father’s home and K.P.’s life revolves around his daughter when she is with him. [ 20 ] W.P. testified that he and his wife had a very close relationship with M. when they lived in Corner Brook. It has continued even though they do not live in Corner Brook now.

They had access with M. the weekend prior to the hearing. [ 21 ] He stated that M. is very outgoing, friendly, and a smart girl. M. has a very close loving relationship with her father. She did not look frightened or scared of her father. K.P. does anything a father would do for a child. M. is K.P.’s number one priority.

[ 22 ] He noted that K.P. did not always work in Corner Brook. He also worked in St. John’s, Stephenville, and Port Saunders. He would have access to M. when he was working in those communities. [ 23 ] K.P. testified that he and N.G. were in a relationship for a period of time starting in October 2006 or early 2007. They lived together for short periods. There were constant breakups. N.G. became pregnant. They broke up and then they got back together for a couple of months. It was a few months after M. was born before he had access with her. There was no

schedule of access. Their final separation occurred in August 2008 following an incident between them. [ 24 ] After that, K.P. had some trouble getting access to M. He filed an Originating Application on July 21, 2009, seeking joint custody and specified access to M. The Order which is set out in paragraph 4 above was put in place. His access with M. was mostly on the weekends or when N.G. had to work. At one point, N.G. suggested to him that he should take M. every weekend. [ 25 ] He acknowledged that he worked in a number of different communities outside of Corner Brook – St.

John’s, Stephenville, and Port Saunders. He changed jobs and locations because he had a child. He wanted to get better employment to support his child. He has been paying child support since M. was young and he has never missed a payment. [ 26 ] He was asked about the joint custody aspect of the Order. He understood it to mean he would have equal rights or an equal say in his child’s life. That did not happen. He was not consulted by N.G. about M. participating in religious activities. He was not asked about M.’s surname that was used at school even though she had a hyphenated surname.

He has attended curriculum nights and parent/teacher nights at M.’s school the last couple of years. He was not consulted about M.’s well-being generally although he thought he was consulted on M.’s vaccinations. He has never taken M. to the doctor or the dentist. He said the parties did not talk too much. N.G. told him that it was none of his business and that he had no rights. [ 27 ] K.P. was also asked about the Interim Order that was granted on June 14, 2018. When it started, he said M. was happy to see him. There were several times when he was dropping M. back to her mother’s house, N.G. was not there.

There were several other times when he did not get access with M. because N.G. had taken M. elsewhere. On one occasion, he picked M. up at her babysitter’s home. When he returned to his house, a police officer was waiting for him. The police officer said that the police had received an anonymous call that he was impaired. K.P. said he was not. He was cleared of this allegation. He pointed out that when M. is with him, N.G. calls a couple of times a day. He had no phone calls with M. until September 2018. Phone contact is fairly regular now.

There has been no issue with picking M. up and dropping her off since September 2018 because this occurs at her school. In response to a question from the Court about additional access, K.P. indicated that he did have some parenting time with M. during Christmas 2018 and on her birthday in March 2019 when he took her to lunch. [ 28 ] K.P. is seeking to maximize his time with M. now that he is living and working in Corner Brook. He believes that it would be positive for M. if he had more parenting time with her. He does not believe M. is scared of him.

He said he has a good relationship with her. [ 29 ] K.P. owns his own home in Corner Brook. He is employed as a manager of Corrections with the provincial Department of Justice and Public Safety. His permanent position is in Port Saunders. He has been in a temporary position with the Department in Corner Brook since January 2018. He intends to stay in Corner Brook. His salary is $85,300. His income in 2018 was $88,055.63, part of which included severance paid to government employees. [ 30 ] K.P. acknowledged that he smokes marijuana and uses alcohol. That does not occur in M.’s presence.

He does not have a criminal record. [ 31 ] K.P. expressed concern for M. in N.G.’s care. That related to emotional issues N.G. told him she had a number of years ago. He was afraid that this might happen to M. [ 32 ] He explained that M. had a music app on her cell phone. He said he was concerned about this because her profile was public and the followers on her app were mainly adult men who could comment on M.’s pictures and posts. He spoke to N.G. about it. She got mad at him. She said he should not have done this and he was hurting M.’s self-esteem.

He understood that the app is not on M.’s phone now. [ 33 ] On cross-examination, K.P. stated he knew some of M.’s school friends because they had been at her birthday parties at his house. He has also seen her friends in school. He is aware of the activities M. takes

part in with her friends both in school and outside of school. There was no issue with M. maintaining contact with her friends if she were living with him part of the time. His and N.G.’s homes are less than a five minute drive apart. [ 34 ] In response to questions from the Court, K.P. stated he and N.G. have very little communication with each other. He texts her but she does not respond. If there is an issue about M., he would prefer that the parties text each other because there is a written record.

He would be open to attending a communication information session if that were suggested or ordered by the Court. [ 35 ] He said that M. likes being at his house. He believes she enjoys herself. She never complains. She has never said anything to him that she is not happy with him. [ 36 ] He noted that he loves his daughter and he wants more access with her. He believes the best interests of M. are served by her parents having a shared parenting arrangement. Texting with N.G. should be the communication process because it would reduce any conflict M. might be exposed to.

During the school year, pick-ups and drop-offs for M. should be at her school as it is in the current Interim Order. Special occasion access should be put in place for Christmas, Easter, and other significant times. During the summer, each party should have some block access with M. He asked that summer access only occur in Canada. M. would not have to get a passport and she would not be able to go outside of Canada. [ 37 ] N.G. is the mother of two children – N. who is 17 years of age and M. N.G. and her children live in Corner Brook. They have lived in the same area for 10 years.

[ 38 ] N.G. has been a home support worker for the past eight years. She is currently on an ease-back program having sustained an injury to her leg in September 2017. Her income in 2018 was $15,631.09 comprised of employment, employment insurance, and workers’ compensation benefits. She also receives the Canada Child Benefit for both children. [ 39 ] She and K.P. began a relationship in 2006. They lived together for nine months. They had a number of separations.

She said she was often pushed around and felt she was stuck in a very abusive relationship with K.P. [ 40 ] When M. was about six months old, there was an incident between K.P. and her. She had been out with her sister drinking. K.P. was looking after M. She and her friends stayed at the bar until 2 a.m. She took a taxi home but she paid the cab driver $100 to drive her around the city until she got home at 3 a.m. There was a confrontation between K.P. and her. She slapped him in the face. She said K.P. hit himself in the face and cut his nose with a butter knife. She called the police. K.P. then left.

A police officer came to her home and said he had no concerns. [ 41 ] N.G. testified that K.P. did not contact her about having visits with M. He called about his mother seeing M. That was when M. was between three and six months old. There was no access arrangement put in place. K.P. was living in St. John’s and there was just no interest there. [ 42 ] When a

schedule was put in place, N.G. said K.P.’s access was every second weekend. At one point, he gave up access on Sundays and had access on Wednesdays. When asked if access occurred every weekend, she replied it was only every second weekend and it was more for his mother. [ 43 ] When K.P. got a new job in Corner Brook, he did not ask for any additional access. After the Originating Application for Variation was filed, there were times when M. could go with her father because he was not impaired. [ 44 ] She was asked about the Order filed in this court on October 17, 2010.

She said she did not know that joint custody of M. was in the Order. [ 45 ] She acknowledged that M. had a hyphenated name on her birth certificate. The person who gave her the birth certificate told her that the hyphenated name gave her the option to use either name for M. [ 46 ] N.G. testified that M. told her about spending more time with her father in a week on/week off schedule. When K.P. asked M. about that, M. agreed with him because she was scared of her father. M. felt she had no other way to express herself.

N.G. stated at one point that M. said she wanted to see her father once a month and that she wanted to stay with her mother, her brother, and her guinea pig. [ 47 ] She said, “I don’t believe anyone has a right over my daughter except me”. N.G. believed her daughter has rights and that she should have some say in this matter. [ 48 ] N.G. indicated that M., who is in grade 5, is doing well in school. She has very little homework and usually gets it done in school. [ 49 ] N.G. and M. are members of the Qalipu First Nation Band. N.G. applied for status for herself and the two children in 2017.

She and M. attended a powwow in the summer of 2018. She was asked if they planned to attend any Qalipu activities this summer. She replied that she was not aware of any and that maybe she should look into it. On cross-examination, she indicated that she and M. only went to one Qalipu event and that she was not aware of the Qalipu website listing regular meetings. M. has a retainer for her teeth and is soon getting braces, the cost of which is covered by their membership in the Qalipu First Nation Band. [ 50 ] N.G. said that she and M. go to the beach in the summer and go camping.

They also meditate together. [ 51 ] Her son, N., and M. have always lived together with her. They have a wonderful relationship. N. is in grade 11 and will graduate from high school in 2020. He has indicated that he would like to join the Canadian Armed Forces. [ 52 ] The family has four pets – a hamster, a guinea pig, a rabbit, and a dog. M. helps to feed the animals. M. has a YouTube channel devoted to the pets. [ 53 ] With respect to the music app that M. had on her phone, N.G. said she was the one who discussed it with K.P. She talked to M. about it and told her she had to delete it.

She pointed out that M. does not use this app anymore and that she deleted it. [ 54 ] N.G. acknowledged that she made a phone call to the police which resulted in K.P. being investigated in his driveway for impairment. K.P. had come to pick up M. at her babysitter’s. N.G. was there too. He got out of his car. He looked intoxicated to her. She did not have time to stop M. as K.P. was rushing. It was put to her that K.P. said he was told by the police officer that the call was anonymous. N.G. replied that she gave her name.

She believes K.P. is favoured by the police because he works for the Department of Justice. [ 55 ] N.G. was asked about the kind of parenting arrangement she wanted for M. She proposed that M. should visit with her father every second weekend from after school on Friday to Sunday at 6 p.m. She said M. wants to come back early on the weekends. She also proposed that K.P. have overnight access on one night during the other week. It would be his choice of which night. N.G. would like for M. to be with her on Christmas morning. The remainder of the Christmas vacation could be split evenly.

With respect to the Easter vacation, Easter Sunday should be split and she had not planned on dividing the rest of the Easter holiday. She agreed with other special occasion access including M.’s birthday, the parties’ birthdays, Mother’s Day, and Father’s Day. She was opposed to K.P.’s suggestion that each parent have some block access during the summer as his time might interfere with her holidays. She wanted M. to spend most of the summer with her as she always had. She said they do a lot of cultural things indicating that a powwow can run for a week noting that most people do not attend for that long.

She did not want a specific time when K.P. could contact M. by phone when she was not with him because N.G. did not want to be harassed. She did not agree with K.P.’s request of one week on and one week off parenting time because this would be taking M. away from her culture and their native ancestry.

[ 56 ] On cross-examination, N.G. was asked about the Interim Order of June 14, 2018, and particularly the clause dealing with telephone contact between M. and K.P. She was asked why there wasn’t any telephone contact. She responded that it did not seem right. She said she cannot force a 10-year-old to answer the phone. That is abuse. She said she followed what she could follow in the Interim Order. [ 57 ] N.G. stated she has been M.’s full-time caregiver. She was asked who should make decisions about her daughter. Did she feel that the Court should not?

She responded that she was fearful of people making decisions who do not know M. She did not mean any disrespect but she did not believe it is fair. If M. were to spend more time with her father, N.G. said she cannot handle that change, nor could her son, or the family pets. She was satisfied with sharing holidays, such as Easter. She noted the summer is only three months in length. She wanted that time to explore nature with M. They had always done that. As she is a member of the Qalipu, she wanted the whole summer with her child.

Dividing the summer between the parents would be taking her culture away from her because it would be taking her child away. She said she would make it a human rights issue. When asked if she would respect the decision of the Court, she said no. [ 58 ] In response to questions from the Court, N.G. reiterated that she has been M.’s full-time caregiver. She has known M. all her life and she knows M. better than anyone else. She wanted the access for K.P. to remain as every second weekend and one overnight in the other week.

Christmas Day morning and Easter Sunday morning could be alternated with the remainder of those holidays staying as they currently are. [ 59 ] N.G. stated that M. has spent most of her summers with her. M. is the last descendant of N.G.’s bloodline. The time that she and M. spend together and their bond is a very special bond to her. N.G. suggested that if M. spent more time with her father, she will feel trapped and it would be very harmful to M. It would be a drastic change in her life at this time.

In response to a question whether a parenting change could be gradual, N.G. said that she absolutely refused that noting that M. is the last in the bloodline. [ 60 ] N.G. does not want to communicate with K.P. She owed K.P. absolutely nothing. He was a part of the past. She felt K.P. uses communication with her as a form of harassment. It was a reminder of a very bad past. [ 61 ] N.G. suggested that it is in M.’s best interests to maintain the current parenting schedule. M. has had the same structured environment for the past 11 years. She has security.

Any changes will be very emotionally damaging to M. because she cannot see her brother or her pets. submissions [ 62 ] In his submissions, counsel for K.P. stated his client is seeking an Order for shared parenting of M. on a week on/week off

schedule and a change in the child support to reflect a different parenting arrangement. He was agreeable to sharing holidays. He requested a block period of two weeks in the summer for each party. He asked that child support be calculated on a set-off basis in light of a shared parenting arrangement. [ 63 ] The Order of September 17, 2010 set out the parenting of and access to M. It is quite dated. There have been a number of changes with M. and the parties themselves. M. is almost nine years older than when the Order was granted.

K.P. is now living and working permanently in Corner Brook. [ 64 ] The parties had a difficult relationship prior to and after M. was born. It ended in August 2008 following a confrontation between them. [ 65 ] K.P. had access with M. (mainly on the weekends) but there was never a set schedule. He worked in several communities outside of Corner Brook. His counsel pointed out that K.P. exercised access with M. no matter where he worked. He always came back to Corner Brook to see M. [ 66 ] He obtained employment in Corner Brook in January 2018. He hoped he would see M. more often then.

That did not happen because N.G. did not agree. His access was restricted by N.G. [ 67 ] K.P. filed an Originating Application for Variation and then an Interim Application. An Interim Order was granted by this Court on June 14, 2018 setting out specific access for K.P. effective that month. Counsel noted most of the access occurred but not all of it as N.G. did not want to follow the Interim Order. [ 68 ] Counsel suggested that the evidence of N.G. was very concerning, that it was not credible, and that the Court could not rely on it.

N.G. admitted she discussed a matter with M. regarding her friends that had been brought up in court prior to her evidence being completed. She testified that during the altercation between K.P. and her in August 2008, K.P. hit himself in the face and then cut his nose with a butter knife. The police and Child and Youth Services had told her about referral sources. The Order of September 17, 2010 was not the Order N.G. understood it to be and someone must have changed it. I would point out that the original of this Order, as contained in the court file, was signed by counsel for both N.G. and K.P.

She said the Royal Newfoundland Constabulary would not take statements from her because of who K.P. was and where he worked. [ 69 ] He continued that some of the other statements N.G. made to the Court were unreasonable. She was of the view that only she as a mother knows what is best for M. To change the Order would go against her native (or indigenous) culture. Counsel commented that N.G. had no respect for the Court. [ 70 ] Counsel concluded that there has been a change in circumstances. K.P. is now living in Corner Brook full-time. He wants to spend more time with his daughter and is able to do that now.

He has a stable home environment. It is to M.’s benefit to spend more time with her father. He suggested there is no evidence that there will be any negative impact on M. [ 71 ] The Court and the parties are always guided by the principle of the best interests of the child. Counsel submitted it is in the best interests of M. to spend equal time with both parents. A shared parenting arrangement would ensure that.

[ 72 ] Counsel for N.G. stated that she is opposed to K.P.’s request for shared parenting. N.G. wants to retain the current parenting arrangement – M. in her primary care, K.P. having access every second weekend and one other weeknight, as well as special occasion access. She is also opposed to a split of M.’s summer vacation. [ 73 ] Counsel referred to

section 31 of the Act , particularly subsection (2) and the list of factors set out there in determining a child’s best interests. He reviewed the evidence offered on paragraphs (a) – (h). He suggested that the two most important factors to consider are the love, affection, and emotional ties between M. and her mother and her brother and the stability of her home environment. He asserted that these two factors favoured N.G. Counsel also referred to subsection (3) dealing with whether a person has ever acted in a violent manner towards a spouse (or partner).

He noted there was a lot of evidence of what happened between the parties about 11 years ago. He suggested that not a lot of weight should be given to this. It should not have any impact on the Court. [ 74 ] Counsel pointed out that K.P.’s counsel had suggested the material change in circumstances was that K.P. was now living in Corner Brook. He submitted that is not necessarily in M.’s best interests. [ 75 ] Counsel noted that K.P. is seeking to have child support based on a set-off amount under

section 9 of the Child Support Guidelines Regulations , N.L.R. 40/98 (hereinafter the “ Guidelines ”). That

section states: 9 Where a parent exercises a right of access to, or has physical custody of, a child for not less than 40% of the time over the course of a year, the amount of the order for support of the child shall be determined by taking into account (

a) the amounts set out in the applicable tables for each of the parents of the child; (

b) the increased costs of shared custody arrangements; and (

c) the conditions, means, needs and other circumstances of each parent and of a child for whom support is sought. [ 76 ] He referred to Contino v. Leonelli-Contino , 2005 SCC 63 , which was discussed by Noonan, J. in Fritz v. Tate , 2006 NLUFC 45 . As there is a considerable disparity in incomes between the parties, he submitted that there should be no deduction in child support by way of set-off. [ 77 ] He also noted that N.G. receives the amount of $913.50 per month as the Canada Child Benefit for both of her children. If there was an Order for shared parenting, she would lose one-half of this amount.

That would lower N.G.’s standard of living as well as M.’s standard of living. Counsel suggested this was another reason not to depart from a straight Guidelines ’ amount in N.G.’s favour. [ 78 ] In reply, counsel for K.P. stated that N.G. has referred to her and M.’s heritage as members of the Qalipu First Nation Band. They had only attended one event sponsored by the Qalipu. He suggested that M. is a child who has two cultural heritages. No one heritage outweighs the other.

Both should be respected. analysis Parenting [ 79 ] As I noted earlier, when the Court is dealing with a matter involving the parenting of a child, it is guided by what is in the best interests of the child. [ 80 ] With respect to a material change in circumstances, I am satisfied to find, based on the evidence presented, that there has been a material change in circumstances. At the time the Order was granted, M. was a young child approximately two and one-half years of age. She is now 11 years of age and in her sixth year of school.

She has had more consistent contact and more access with her father than when the Order was granted. K.P. has also lived and worked permanently in Corner Brook for the past year and a half. He intends to remain in Corner Brook. [ 81 ] A thorough analysis of the best interests of a child is achieved by consideration of all the factors set out in subsection 31(2) of the Act . There are eight factors. It is not an exhaustive list. I have reviewed these factors in light of the evidence I heard. [ 82 ] A decision regarding the parenting of a child is a difficult one.

It is a decision that significantly impacts the child as well as both parents. [ 83 ] What parenting arrangement is in the best interests of M.? I believe an Order outlining a detailed parenting arrangement is in her best interests. I reviewed the evidence presented at the hearing in some detail to show the lives these parties and their daughter, M., have lived, as well as the submissions of counsel, the case law provided by counsel, and other case law dealing with parenting arrangements. Throughout my review, I have only considered the best interests of M.

She is the only reason why this matter is before this Court. [ 84 ] In the cases, I note the following principles: 1. Every case must be decided on a fact-specific basis and nowhere is this more emphasized than in custody/access/parenting plan cases. To state the obvious, no two family situations are ever the same. 2. Maximizing contact between both parents and their child is important. 3. A child should have a sense of home which affords a sense of stability. A child should be able to have a stable and consistent place to call home.

4. The importance of communication between the parents and their ability to cooperate with each other cannot be stressed enough. [ 85 ] With respect to the evidence in light of the factors set out in subsection 31(2) of the Act , I make the following findings: (

a) Love, affection, and emotional ties [ 86 ] Both parents love M. and want to spend time with her. They want to be involved in her life. I believe that M. will require the love and support of both her parents and should receive that. (

b) Views of the child [ 87 ] M. is 11 years old. She is still a young child. N.G. stated that M. is scared of her father and does not want to have any increased access with him. K.P. stated that he sees no indication of M. being scared of him. She enjoys her time with him. She told him that she would like to spend more time with him. The evidence of all the witnesses clearly show M. loves her parents. Her views should be considered but the decision regarding where she should live is not one she should have to make. I repeat that she is still a young child. (

c) Length of time the child has lived in a stable home environment [ 88 ] M. has lived in Corner Brook all her life. Her parents were not together for very long after her birth. They separated in August 2008. She has lived primarily with her mother and her older brother since her birth. She has a close and loving relationship with her mother and her brother. N.G. has provided for M. on a daily basis. K.P. has always had a level of access to M. over the years. There has never been a specific schedule. His access has increased over the past few years and has usually occurred in his home in Corner Brook. (

d) The ability and willingness to provide the child with guidance, education, and the necessaries of life and (

e) The ability of each parent to act as a parent [ 89 ] The evidence shows that both parents have the ability to act as a parent to M. They have provided for M. The parents likely have different parenting styles as most parents do. I would encourage both parents to be more consistent in their parenting of M. N.G. has been a more involved parent because M. has spent more time with her. K.P.’s parents noted that he is a wonderful father to M. She is his number one priority. [ 90 ] The Order of September 17, 2010 and the Interim Order of June 14, 2012 have not, in my view, been followed in full by N.G.

Some of the access granted to K.P. has not occurred. K.P. acknowledged that his access improved when he was able to pick up and drop off M. at school after the school year started in September 2018. (

f) Plans proposed for the care and upbringing of the child [ 91 ] K.P. wants to increase his parenting time of M. He seeks a week on/week off shared parenting arrangement. [ 92 ] N.G. wants the current parenting arrangement to remain in place. She would continue to have M. in her primary care with K.P. having specified access. (

g) The permanence and stability of the family unit [ 93 ] N.G. has lived with her son and M. in the same residence for almost 11 years. She is committed to being a family unit with her two children. N.G. is not in a relationship. [ 94 ] K.P. is not in relationship either. He wants to spend more time with M. and to be a more significant part of M.’s life. (

h) The relationship by blood [ 95 ] N.G. and K.P. are the biological parents of M. [ 96 ] In addition, I note that M. has a half-brother, N., who is six years older than her. Sibling relationships are important to children. N.G. testified that N. will be graduating from high school in June 2020. He would like to join the Canadian Armed Forces after graduation. It is likely that sibling relationships are more important when the children are closer in age.

From my review of the case law, it is not a factor to be given more priority than any other factor. [ 97 ] N.G. and her two children are members of the Qalipu First Nation Band. She and M. have been exploring their cultural heritage together. Her counsel noted N.G. has to be the parent to foster and promote this. I agree that a child’s culture and heritage is a factor to be considered in assessing a child’s best interests. I would suggest that M. is the child of two cultures, one of which is indigenous. It is not discriminatory in any way to reveal to a child, such as M., that she is a child of two cultures.

She should have the opportunity to experience both of her cultures. I would encourage both parents to respect this and to help M. with this. [ 98 ] As I have commented in other matters in this court, change is a constant in all our lives. As a general principle, children are adaptable in their lives. They change schools. They change friends. Many change families, not because of their actions but because of the actions of their parents.

Any change in the parenting arrangement proposed by K.P. will cause a change in the type of contact M. has with her mother, her brother, and her pets. [ 99 ] Having considered the evidence presented at this hearing, I have no hesitation in finding that: 1. Both parents love M. and want to spend time with her. They want to have a good relationship with her. They want to be involved in her life. I believe M. requires the love and support of both her parents. 2. Neither parent lacks parenting skills. There appears to be a difference in parenting styles. Consistency in parenting is very important

for a child. 3. Maximizing contact between a child and her parents is important for the child. The case law states that maximizing contact does not necessarily mean it is equal or shared. It is contact that is in the best interests of the child. 4.

Both parents have a legal (as well as a moral) responsibility to always act in the best interests of their daughter. [ 100 ] I believe an Order outlining a detailed parenting arrangement is in the best interests of M. and hopefully will assist both N.G. and K.P. in effectively committing to and following this arrangement. [ 101 ] It is a reality of the times in which we live that many couples with a child come together through partnership or marriage, separate or divorce after a period of time, and then move on with their lives.

The crux of this is change – for the parents and for the child. [ 102 ] The parties identified that communication between them is an issue. Lack of communication or poor communication between parents can negatively impact the parenting of a child. Communication between parents who have separated and who are parenting a child is critical to the child’s reasonable and proper social and emotional development. In my view, there is certainly room for improvement in this matter.

Good communication must always be child-focused, respectful, consultative, and informative. [ 103 ] I want N.G. and K.P. to have a positive relationship with M. They should want that too. M. can benefit from the love, guidance, and care of both her parents. I sincerely hope that both parents want this also. [ 104 ] I refer the parties to a passage from a book written by Mr. Justice Harvey Brownstone entitled Tug of War: a Judge’s Verdict on Separation, Custody Battles and the Bitter Realities of Family Court (Toronto, Ontario: ECW Press, 2009).

He stated: Being mature means loving your children more than you dislike your ex-partner. Being mature means caring enough about your children that you will force yourself to deal in a civilized way with someone you may hate. Being mature means putting your children’s needs ahead of your own. It means truly understanding and accepting that your children are entitled to love and be loved by both of their parents. . . . Mature people fully understand that even though they no longer love each other, they are the most qualified people to make important decisions for their children.

After all, parents know their children best. Children deserve to have parents working together as a team in all matters affecting their welfare . [Emphasis added] [ 105 ] I ask N.G. and K.P. to remember that passage as they move forward in the parenting of their daughter. Child support [ 106 ] The determination of child support is based on the parenting arrangement for a child. K.P. sought to have child support based on a shared parenting arrangement. N.G. asked that child support remain as it is.

Her counsel suggested that no change occur in child support even if a shared parenting arrangement is ordered because of the disparity in the parties’ incomes. [ 107 ]

Section 9 of the Guidelines deals with child support in the context of shared custody. The provisions must be applied if the 40 percent criterion is satisfied. All criteria in paragraphs (a), (b), and (

c) must be considered. [ 108 ] The simple set-off amount is the starting point for a

section 9 analysis. [ 109 ] In that regard, the parties provided the Court with their estimated incomes for 2018 during the hearing. When I was giving my oral decision, I asked the parties if they had filed their income tax returns for 2018 and if they had received their Notices of Assessment. They indicated that they had. I requested that the parties file their Notices of Assessment by May 21, 2019. The Court received K.P.’s Notice of Assessment and N.G.’s Tax Return

Summary. [ 110 ] K.P.’s income in 2018 was $88,618 with union dues of $168. His income for child support purposes is $88,450. The child support payment for that income is $782. N.G.’s income was $15,631.90. The child support payment for that income is $121. The difference between the two amounts is $661. [ 111 ] Paragraph 9 (

b) of the Guidelines requires the Court to consider the increased costs of a shared parenting arrangement. Neither party presented any evidence on costs. [ 112 ] Paragraph 9 (

c) of the Guidelines requires the Court to consider the condition, means, needs, and other circumstances of each parent and the child. K.P. is currently the only person living in his home. In a shared parenting arrangement, M. would be with him up to half the time. N.G. lives with her two children. She receives the table amount of child support for M. That is currently $663 per month in accordance with a Recalculation Notice filed in this court on July 26, 2018. She also receives the amount of $913.50 monthly for the Canada Child Benefit which is $456.75 for each of her children.

That amount is payable for each eligible child aged 6 to 17 years. A child must be under 18 years of age. Her counsel suggested that if shared parenting is ordered, she would lose one-half of this amount resulting in a lowering of her standard of living and M.’s standard of living. In my view, a shared parenting arrangement would only affect the portion of the Canada Child Benefit that relates to M. N.G.’s total Canada Child Benefit will possibly be affected when her son, N., turns 18 years of age in light of the eligibility requirement that a child be under 18 years of age.

That has nothing to do with any potential shared parenting arrangement regarding M. I would suggest it would be easier, based on the current incomes of the parties, for K.P. to absorb paying the additional amount of $121 for child support than for N.G. to have that amount deducted from child support and to have a decrease in the Canada Child Benefit for M. No evidence was presented by the parties on this issue other than what is set out in paragraphs 75 to 77 above.

Therefore, in the particular circumstances of this matter, I find that a set-off amount is not appropriate and that K.P. should pay child support to N.G. for the benefit of M. based on his 2018 income effective June 1, 2019. disposition [ 113 ] Based on the evidence presented, the submissions of counsel, and, most particularly, the best interests of M., I have concluded

that it is in the best interests of M. that she be placed in the joint custody of her parents. [ 114 ] I, therefore, make the following Order: Parenting 1) Commencing 15 days from the filing of these Reasons, N.G. and K.P. shall have joint legal custody of M. (DOB: March 2008). Joint legal custody means that both parents will share equal responsibility and authority in making major decisions regarding M.’s health, education, religion, extracurricular and recreational pursuits, and all other major areas of her life. The parties shall consider the advice of those service providers dealing with M.

The parties shall attempt to make their decisions by agreement in a child-focused, respectful, consultative, and informative manner. Should the parties be unable to resolve a major decision after both have made their views known to each other, the parties shall consult with a mediator regarding the matter before commencing any further litigation. 2) The parties shall have shared physical custody of M. on a bi-weekly rotating

schedule wherein each parent has M. in their care on alternating seven day periods commencing at 3 p.m. on Fridays subject to the condition that M. shall be in the care of her mother every Tuesday overnight from 3 p.m. on Tuesday to 8 a.m. on Wednesday. 3) The parties shall adopt a flexible and reasonable approach to the parenting

schedule in the event of illness or other activities of M. Requests for changes to the

schedule by either parent shall be considered and accommodated wherever reasonable and possible. 4) Each parent shall ensure that M. attends scheduled activities and events while she is in their care. 5) Neither parent will arrange activities for M. when she is scheduled to be with the other parent without the other parent’s consent. 6) Each parent shall be responsible for the transportation of M. to their home for the commencement of their physical parenting unless the parties otherwise agree. 7) Discussions at the transfers of M. shall be limited to polite and respectful greetings; there shall be no discussions regarding parenting issues at the transfers; and the persons present at the transfers shall remain calm and respectful. 8) M. is permitted to take her clothes and other personal possessions back and forth between her parents’ homes if she wishes. 9) Each parent shall be entitled to make one telephone call to M. on any day that she is out of their care.

The telephone call shall be made at 7 p.m., or such other time as the parties agree, and may last up to 15 minutes. 10) Both parties are entitled to spend time with M. on her birthday. The parent who is not scheduled to parent M. on her birthday is entitled to spend three hours with M. on that day at a time agreed upon by both parties. 11) N.G. shall have M. on her birthday and on Mother’s Day every year. 12) K.P. shall have M. on his birthday and on Father’s Day every year. 13) The parties shall have an equal amount of time with M. during the Christmas school holidays.

In odd years, N.G. shall have M. from December 24 at 12 p.m. to December 25 at 2 p.m. and from December 26 at 6 p.m. until December 31 at 12 p.m. K.P. shall have M. from 2 p.m. on December 25 until December 26 at 6 p.m. and from December 31 at 12 p.m. for the remainder of the Christmas school holidays, after which the regular parenting

schedule will recommence. In even years, the opposite shall occur. 14) The parties shall have an equal amount of time with M. during the Easter school holidays. In even years, N.G. shall have M.

for the first half of the school holiday and K.P. shall have her for the second half, after which the regular parenting

schedule will recommence. In odd years, the opposite shall occur. 15) The regular

schedule will be suspended commencing in the summer of 2019 to allow each party to have M. for a two week block of time. The parties shall notify one another of their intended dates not later than June 15, 2019. In subsequent years, starting in 2020, the parties shall notify one another of their intended dates not later than May 15 of each year.

In the case of a conflict in scheduling, N.G. shall have priority in odd years and K.P. in even years. 16) Should either party require overnight childcare for two evenings or more when M. is in their care, he or she shall give the other parent the first opportunity to care for M. before making other childcare arrangements. 17) N.G. or K.P. may travel with M. within Newfoundland and Labrador; however, a phone number where M. can be contacted shall be provided to the other parent at all times. 18) Neither N.G. nor K.P. shall remove M. from the province of Newfoundland and Labrador without the express permission of the other parent, which shall not be unreasonably withheld, or further order of this Court.

During any such travel, the parent shall provide full particulars of the plan, in writing, to the other party, including the address at which M. will be staying, travel itineraries and a phone number. Should a passport be required for M., the parents shall cooperate with each other in providing the necessary information to make the application. The passport will be made available to either parent as required.

The parties shall cooperate with the execution of any passport renewal applications and/or travel letters that may be required. 19) Both parents are entitled to request and receive information about M. from her teachers, daycare providers, medical professionals and any other professional providing services to M.

Each parent shall be listed on all documents pertaining to M. and shall be entitled to attend any of M.’s scheduled appointments. 20) The parent with care of M. on any given day has the right to make day-to-day decisions, including for routine medical care, and shall keep the other parent fully informed by email of any minor illnesses, emergencies, treatments, and medications administered or prescribed while M. is in his or her care. 21) In the event of a medical emergency or serious illness, both parents have the authority to authorize emergency medical care and shall immediately and promptly notify the other parent given the nature of the emergency or the illness.

During any period of illness or recovery, each parent shall have generous and reasonable contact with M. consistent with the conditions of this Order and the welfare and happiness of M. 22) The parties shall keep each other informed as to any upcoming appointments or activities for M. 23) The parties will provide each other with their phone numbers and mailing addresses (including email) and notify the other of any changes in advance of such change. 24) The parties shall communicate with each other in a child-focused, respectful, consultative, and informative manner. 25) Neither parent will speak, or permit any of their guests to speak, negatively about the other parent in front of M. and the parties will ensure that M. does not witness or hear any arguments between them. 26) Neither party shall post anything on Facebook, or any other public social media forum, about the other parent that could be viewed as a derogatory comment.

Both parents shall speak with their family members and request that their respective family members also refrain from doing this. 27) Neither parent shall discuss with M., nor with any other party in her presence, present or past legal proceedings or issues

between the parents.

Each parent may respond briefly in a reasonable child-focused manner to questions with respect to matters initiated by M. 28) Neither parent shall question M. about the other parent’s personal life and activities. 29) Each parent shall encourage a close and continuous relationship between M. and the other parent. 30) The parties are entitled to arrange additional access or to rearrange the access outlined herein (including exchange times) if they so wish. 31) The parties are encouraged to engage in separate counselling programs to improve their communication skills with each other regarding the parenting of M.

Child support 32) Based on the 2018 gross annual income of $88,450 and the Newfoundland and Labrador child support tables, K.P. is required to pay to N.G. for the support of M.P.-G. (DOB: March 2008) the amount of $782 per month, effective the 1st day of June, 2019, and continuing on the 1st day of each month thereafter. 33) The standard recalculation clause shall be included. The effective date of this Order is June 1, 2019. The child support amount will be reviewed one year after June 1, 2019. Closing comments [ 115 ] I offer these final comments to the parents.

Parenting is a challenge, but, more importantly, it is a privilege. There is a new issue every day but you have to take each day as it comes. It is really between the two of you as parents and, most particularly, your child, M. You have to be consistent in your approach to parenting. You have to be respectful to each other. You have to remember that you are doing this for your child. Essentially, you have to work together for the sake of your child. [ 116 ] You have worked on some issues regarding access for M.

I am very hopeful that you can continue to do this in the future. [ 117 ] You have a wonderful daughter who has been described in very positive terms by you and her paternal grandparents. I have been told that M. loves both of you and the two of you love her. A child has a right to have a meaningful relationship with both of her parents. You have to find ways in which you always do what is best for your child. A child will do different things with her mother than she does with her father as she progresses through school, becomes involved in activities, and, hopefully, goes on to higher education.

I am sure each of you have many dreams for M. It is likely she has many dreams too. What I hope each of you want for M. is for her to be able to say when she reaches adulthood, which is 19 years of age in this province, that she had good times with her mother and she had good times with her father. If your child can say that to you at the end of the day, then you have succeeded as parents. [ 118 ] The detailed Order I have made sets out a roadmap for the parenting of M.

I have developed this based on the best interests of M., after carefully considering what each of you and the other witnesses said, and the submissions of your counsel. I encourage you to cherish your time with your child. Childhood passes quickly. I expect there will be full compliance with this Order. [ 119 ] In the circumstances of this matter, I exercise my discretion and make no order as to costs. BRIAN F. FUREY Justice