D.M.T. v. C.R.L., 2011 NSFC 22

FAMILY COURT OF NOVA SCOTIA Citation: D.M.T. v. C.R.L., 2011 NSFC 22 Date: 20111007 Docket: 08C057494 Registry: Yarmouth Between: D.M.T. Applilcant v. C.R.L. Respondent LIBRARY HEADING Editorial Notice Identifying information has been removed from this electronic version of the library sheet. Judge : The Honourable Judge John D. Comeau, J.F.C. Heard: Comeauville, Nova Scotia, Dec e mber 9, 2010 and July 21, 2011 - and - Digby, Nova Scotia April 12, 2011 and June 14, 2011 Issue: Custody/access/schooling (condition to custody)

Summary: The parties are the parents of a female child born December * , 2006. There was agreement following their

Summary: The parties are the parents of a female child born December * , 2006. There was agreement following their separation over custody and access with a shared parenting plan of four days rotation. The communication and agreements deteriorated when the mother had a relationship with a same sex partner. There were allegations of domestic violence between the two. Also excessive use of alcohol (drugs) involving the mother. Access to the mother was to be supervised. Two homestudies were prepared with the last one dealing with the contact and or relationship of the child with the mother’s partner.

Results: The parties agreed at trial that supervised access was no longer required. The second updated homestudy recommended a return to a shared parenting (joint custody) scenario. The mother’s partner was now working in Alberta, had turned her life around and although there was still an ongoing relationship the partner only visited on occasion. The assessor found the partner and the child got along very well and it would not be contrary to the child’s best interests to have a relationship with her.

The Court found that the parties should return to a shared parenting arrangement as they had communicated well in the past. Joint custody ordered on a week on week off basis. School - the Court ordered that the child attend school recommended by the father as the child was registered there and the mother had attended that school’s orientation with the child. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. IN THE FAMILY COURT OF NOVA SCOTIA Citation: D.M.T. v.

C.R.L., 2011 NSFC 22 Date: 20110912 Docket: 08C057494 Registry: Yarmouth Between: D.M.T. Applicant v. C.R.L. Respondent

Editorial Notice Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Judge John D. Comeau, J.F.C. Heard: Digby, Nova Scotia, April 12, 2011 and June 14, 2011 - and - Comeauville, Nova Scotia December 9, 2010 and July 21, 2011 Counsel: Matthew Dill Esq., for the Applicant Kay L. Rhodenizer Esq., for the Respondent __________________________________________________________________ DECISION __________________________________________________________________ The Application : [ 1 ] The contest between the parties has a long history.

This is an application brought by the Respondent on October 4, 2010 to vary (initially ex parte) the provisions of a custody and parenting consent order issued on November 28, 2008 (due to a written error it may appear to be November 18, 2008). The parties’ child S., born December *, 2006 is the subject of the proceeding. [ 2 ] Initial court date was October 14, 2010 and at that time both parties appeared and a consent inter partes order was made. A review date was set for December 9, 2010.

On this date pre-trial discussions indicated the Respondent who is the father of the child, was asking for sole custody and supervised parenting to the Applicant who is the mother of the child. The Applicant mother requests a return to the November 28, 2008 order which provided for a parenting

schedule referred to as “a reciprocal four day on, four day off access with full disclosure to both parties of anything that affects the welfare of the child”. [ 3 ] There was an interlocutory interim consent order reached concerning custody and access on October 14, 2010. This order and the November 28, 2008 order (referred to as November 18, 2010 order) was replaced by another interlocutory interim consent order dated January 6, 2011. The order authorized a home study assessment and provided for joint custody with the father being the primary caregiver.

An information clause was inserted that required the father to inform the mother about “significant things” that affect the welfare of the child. Decisions of this nature were to be made in mutual consultation. If disagreement resulted, the father was to make the final decision.

[4] The mother was to have supervised parenting time every second weekend from 6 p.m. Friday to 6 p.m. Sunday and each weekovernight at 3 p.m. Wednesday to 3 p.m. Thursday. Access during holidays was also set out and such other access as the parties couldagree upon. Provision was made in case of storms and prohibitions that provided for moderate use of alcohol within a supervisor’sdiscretion were set out. Non-exposure of the child to second-hand smoke was the responsibility of the mother. Respectful and courteousinterchanges were provided for.

The parties now agree that supervised access to the mother is not required. Issues: 1. Change in circumstances; 2. Custody/access/joint custody; 3. Condition to custody regarding which school the child would attend - oral decision made July 21, 2011 - reasons outlined herein. Schooling: [5] The parties were in opposition to the school which the child should attend.

It was necessary for the Court to make a decisionin relation to this because school would have started before a final decision on all issues was rendered. [6] Evidence was provided to the Court that the child was registered in the school recommended by the father. That both partiesattended this school.

The mother took the child there herself for orientation and there is evidence that many of the child’s friends wouldbe going there. [7] The school the mother recommended is five minutes away from her residence but she had not taken any steps to contactschool authorities or have the child registered there. [8] As is the case in most of these disputes, the Court has not received any evidence that one school is better than the other and aseducation is a provincial matter, it is assumed there is consistency in delivery of education services. [9] When one makes an argument put forward by one of the parties and that party has an opportunity to affect the decision of theCourt, it is assumed a pro-active course would have been followed.

That is not the case here. [10] The child will attend the school recommended by the father. The child is registered there and has attended orientation. [11] For the purpose of privacy (publicity ban as provided in the Family Court Act) the name of the school will not be set out inthis written decision but counsel preparing the final order will be more specific in referring to the name. Conditions to custody areauthorized not by statute but in the best interests of the child (see Blois v. Blois (1988), (NS CA), 83 N.S.R. (2d), 328(N.S.C.A).

The Facts: [12] There has been an ongoing dispute between the parties with respect to custody and access of their child S., born December *, 2006. The initial order issued the 28th day of November, 2008 (erroneously referred to as November 18, 2008 in the application to vary)was by consent as a parenting plan on a four day on, four day off rotation, holidays and special occasion parenting was provided for. Theparties agreed to keep the other informed as to “all aspects of the child’s welfare”.

Financial provisions were outlined and a respectfulrelationship clause was inserted. [13] This parenting plan ran into problems which led to the present application. The barrier to the successful implementation of theparenting plan included the relationship the mother developed with a same sex partner. There was evidence of domestic violence betweenthe two.

[ 14 ] The Respondent father became concerned about the child in May, 2009 when the Applicant mother and the child began living with one J.C. He noticed aggressive hitting behaviour in the child and indicates the child once told him mommy and J.C. play “bare bums”. [ 15 ] The Applicant mother describes the relationship with J.C. as non violent physically, although admits they have had verbal disagreements but never in front of the child. She says there is no smoking or excessive drinking with the child present.

She indicates “I do not know what bare bum means and J.C. and I have never acted inappropriately in front of the child”. [ 16 ] She has indicated that J.C. has never struck the child to discipline her and in fact the child likes her and she has been nothing but a loving caregiver to the child. [ 17 ] The Respondent father made reports to the R.C.M.P. and Minister of Community Service which resulted in his dissatisfaction because no action was taken.

There is evidence that the Applicant mother and J.C. were interviewed by an agent of the Minister of Community Services and found everything to be in order. [ 18 ] With respect to this relationship presently, the Applicant mother lives alone near her mother and father. She has a two bedroom home. She remains in a relationship with J.C. who works in * but plans to visit in the fall. J.C. has been supportive of all her endeavours and they remain in telephone and internet contact. There is a denial that she has been a victim of domestic abuse in this relationship.

Denial also that she or J.C. would do anything to cause harm to the child. [ 19 ] Through her counsel, the mother proposes a parenting order that she says would be workable. It is a partial reflection of what the parties had agreed to in 2008. It appears deterioration of consensus occurred as a result of her relationship with J.C. This order would reference parenting time in a respectful and informative atmosphere between the parties in a week on/week off scheduling, special occasion access was provided for.

Schooling and transportation were recommended (the Court did not agree with the mother’s proposal, see supra). [ 20 ] The father does not believe the parties can make joint decisions, although he has now agreed to unsupervised access. He does not believe that the week on/ week off parenting time is in the best interests of the child. His counsel has also proposed an order that provides for unsupervised alternate weekend, a weekly visit each Wednesday, from 3 p.m. to 6 p.m. and other time on special occasions.

This would be in the form of an order for joint custody and provide for consultation on significant decisions that affect the child. Final decisions would be made by him where there is disagreement. Both parties could make direct inquiries to institutions, officials and persons who were involved in the child’s life. He says “D... (the mother) and I do not have a good history of communication on joint decision making”. [ 21 ] Mediation is not available to this court to assist the parties in understanding how to communicate for the purpose of joint decision making.

Home Study : [ 22 ] There was a home study done by Ilonka F. Thomas, MSW, RSW on March 5, 2011. It was further amended on April 6, 2011. The assessor was aware of “one of their main difficulties at this time is ineffective communication about their daughter”. She refers to the mother’s parents telling the father about their concern that she was taking the child to places where there was excessive drinking and smoking of marijuana. There was also evidence of domestic violence between the mother and her same sex partner.

There was some evidence that the mother was afraid of her partner and controlled by her. [ 23 ] The assessor describes the child (through her teacher) “as a busy child, sociable, loving and kind”. She speaks English and French as does her father. Her mother is uni-lingual, English. The teacher also indicated she may not respond to direction and is, instead persistent. [ 24 ] The conclusions reached by the assessor in the March report was that the child remain with the father during the school week and access take place every other weekend (supervision recommended at the time).

She did not have an opportunity to interview the mother’s partner J.C. as she was out of the province. It was her belief that the father’s “parenting are sound and he appears to have the best interests of the child in mind at the time. He is insightful and appears to have good judgement where decision making is concerned

about his daughter”. [25] The purpose of the amended home study in April 6, 2011 was because the mother’s partner J.C. had returned home from andwas available for an interview. She was interviewed twice, once with the child present at the mother’s home. Both parties have resignedthemselves to J.C. working outside the province and returning from time to time. They denied any physical abuse between them. Allother allegations of excessive drinking, use of drugs or smoking in front of the child were denied. [26] The assessor observed an excited positive reaction from the child towards J.C.

The child did not know beforehand she wasgoing to see J.C .and she observed a happy and content child, keen on seeing and relating to J.C. Following her observations with respectto this interaction, parenting and the positive state of the home, the assessor has amended her March recommendation to support sharedcustody of “one week at a time, with transition at 4 p.m. on Sunday afternoon”. The Law: [27] The authority of the Court to deal with custody and access is set out in

section 18 of the Maintenance and Custody Act. “Powers of the court 18(1) In this

Section and

Section 19, ‘parent’ includes the father of a child of unmarried parents unless the child has been adopted.

(2) The court may, on the application of a parent or guardian or other person with leave of the court, make an order (

a) that a child shall be in or under the care and custody of the parent or guardian or authorized person; or (

b) respecting access and visiting privileges of a parent or guardian or authorized person.

(5) In any proceeding under this Act concerning care and custody or access and visiting privileges in relation to a child, the courtshall apply the principle that the welfare of the child is the paramount consideration.” [28] Variation of a court order requires a change in circumstances. “Powers of court 37(1) The court, on application, may make an order varying, rescinding or suspending, prospectively or retroactively, a maintenanceorder or an order respecting custody and access where there has been a change in circumstances since the making of the order or the lastvariation order.

(2) When making a variation order with respect to child maintenance, the court shall apply

Section 10.” [29] The decision of Justice Goodfellow in Foley v. Foley (NS SC), [1993], 124 N.S.R. (2d) 198 is often cited as

helpful for factors the Court might consider. Definition of (sole) custody: [30] In the case before the Court, the Applicant is asking for the custody (primary care) of the children which was defined in Krugerv. Kruger & Baun (1980), (ON CA), 11 R.F.L. (2d) 52 (Ont.

C.A., Thorson, J.A.) P. 78. “In my view, to award one parent the exclusive custody of a child is to clothe that parent, for whatever period he or she is awardedcustody, with full parental control over the ultimate responsibility for, the care, upbringing and education of the child, generally to theexclusion of the right of the other parent to interfere in the decisons.” [31] Another form of custody, is joint custody, which has a different definition, depending on how that form of parenting isconceived by individual parents.

Although there have been decisions that go either way, a lot of cases have denied an order for jointcustody, where for example, there is no spirit of trust or cooperation. See Stefanyk v. Stefanyk (NS SC), 1994 CanLII 6390 (NS S.C.), (1994) 128 N.S.R. (2d) 335 (Saunders, S.C.J.). There is, however a presumption of joint custody under

section 18 ofthe Maintenance and Custody Act. See Dayle v. MacNutt (1995), 144 N.S.R. (2d) 301 (Scanlon, S.C.J.) [32] Levy, J.F.C. in R.E.W. v. K.L.S. (1997) F.K. 97-0116 (not reported) decided that because sole custody may be a cause ofmuch irritation and conflict, joint custody was ordered as a way to lessen conflict. See also: Godfrey-Smith v.

Godfrey-Smith (1997), (NS SC), 165 N.S.R (2d) 245 (MacArnold, S.C.J.) Joint custody has also been ordered where there is a ‘realistichope’ that the parties can work together.” [33] The onus is on the Respondent father to show there has been a change in circumstances to vary the November 28, 2008 order.It is a two step process, first, the Applicant must prove a material change, and second, he must prove that as a result of the change theprior order no longer reflects the child’s best interest (see Roberge v. Roberge 2005 Carswell B.C. 31.

Conclusion/Decision: [34] A review of the history of this matter indicates that the parties have in the past been able to agree on the role of each inparenting their child. It is conceded there were minor problems along the way but major problems occurred, mostly in the mind of theRespondent father, when the mother entered into a relationship with a same sex partner. There was concern about that person’s characterand lifestyle. Concerns over domestic violence, drinking, smoking and exposing the child to this.

He was concerned about the improperdisciplining of the child by the third party and possibly inappropriate actions between the mother and her partner in the presence of thechild. [35] This resulted in the mother agreeing to supervised access, something the father requested but now agrees is not necessary. [36] These concerns have not been proven and the mother’s partner now lives in Alberta where she works. She visits the mothermaybe twice a year and during one of these visits the home study assessor had an opportunity to observe and interview her with themother and the child.

She observed a positive state of the home and an excited child, happy to see the mother’s partner. [37] This is a case that should have been settled long ago. Neither party has a complaint about the parenting of the other. They donot live more than a half hour car drive from each other or the school the child will attend.

These type of litigation serves no purposetowards the best interests of the child in that it precipitates bad relations and creates the impression that, one parent is attempting tocontrol all aspects of the child’s life to the detriment of the other. [38] There is some evidence in the past that the parties were capable of making joint decisions with respect to the child’s educationin a French school. That pre-school and sports activities were beneficial to the child. As mentioned, the father’s concern about themother’s partner disrupted their communication and consensus.

This is no longer an issue as confirmed by the assessor.

[ 39 ] The order sought to be varied was at that time in the child’s best interests but there has been some “water under the bridge” so to speak since then. Those issues raised are a change in circumstance but the material change since 2008 is the child will be attending school this month. [ 40 ] The Court has considered the evidence before it came to the conclusion that joint custody is a serious option in this case. There is a history of some consensus. It will require the parties to communicate for the benefit of their child.

They are both good parents and the environment at their particular homes are appropriate for the child. Both parents have extended family that will assist in items they may need such as transportation. [ 41 ] It is in the child’s best interests that the Court make the following order: 1. The parties shall share joint custody; 2. The child will reside with each parent one week at a time with transition at 4 p.m. on Sunday afternoon. Transportation to be by parent who is returning the child; 3. There will be unlimited telephone access by either parent.

When the child is able to communicate electronically this type of access shall be unlimited; 4. Both parents shall keep the other informed about anything that affects the welfare of the child and this shall be done in a respectful way; 5. The mother shall be in receipt of the Child Tax Credit Benefit and the Universal Child Tax Benefit from Canada Revenue Agency; 6. The parties shall share holidays on a 50/50 basis. Christmas Eve 2011 shall be with the mother because of the

schedule set out in the 2008 order; 7. Nothing herein prevents a party from applying for child support. Counsel for the mother shall prepare the order. ______________________________ JOHN D. COMEAU JUDGE OF THE FAMILY COURT