J.M. v. A.L., 2013 NSFC 1

FAMILY COURT OF NOVA SCOTIA Citation: J.M. v. A.L. 2013 NSFC 1 Date: 20130115 Docket: FYMCA - 071178 Registry: Yarmouth Between: J.M. Applicant v. A.L. Respondent Editorial Notice Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Judge John D. Comeau Heard: November 28, 2012 at Yarmouth, Nova Scotia Counsel: Oliver Janson, Esq. For the Applicant Celia Melanson, Esq. For the Respondent The Application / Introduction: [ 1 ] This is an application for custody and access with the emphasis on access.

The Respondent is not opposed to access but would want it to be supervised. [ 2 ] The Applicant is the father of B., born May *, 2010 and I., born August *, 2011. The Respondent is the mother of the children.

[ 3 ] The Court has received post trial summations in the form of briefs from counsel for the parties. In the final analysis, the Applicant father is not asking for custody but unsupervised access. [ 4 ] The parenting time the Applicant is requesting would be unsupervised and a few days a week. He would take I. overnight but B. only during the day. In requesting this parenting time, he admits that presently he is not set up for the children, but that could be corrected. ISSUES : Custody / Access The Facts: [ 5 ] The Applicant father lives outside of Yarmouth with his mother and her boyfriend.

He indicates that he understands that the Respondent mother wants sole custody and supervised access for him and what he wants is unsupervised “ parenting time ” . He has not seen the children since July. In the past (and not so much in the present) he has turned to alcohol because “ it took away the hurt ” from his problems. [ 6 ] In the past also he assaulted the Respondent mother and the Minister of Community Services got involved under the CFS Act .

As a result, he went through counselling and supervised access and then the Minister got out of their lives. [ 7 ] The Applicant went to jail for the domestic dispute which resulted in assaults. He went to Harvest House (alcohol recovery residence). It is not disputed he still drinks alcohol but says he would not do this when the children were present. He also says that he attends addiction services once a week. There is also evidence that his mother drinks in the home where the Applicant resides and the children would be visiting. His mother denies that she has a drinking problem.

It is clear that the Applicant has been calling the Respondent to see his children but she has not responded. [ 8 ] On one occasion the children ’ s babysitter, who was hired by the Respondent mother, called to see if he wanted to see his children. He took them to his home and the Respondent mother came there with a number of people to get the children back. This was described as a big scene. [ 9 ] The evidence discloses that he has had a very bad relationship with the Respondent mother. It was a very violent one because of his actions.

He has criminal convictions for more than one assault on the Respondent mother. He received house arrest, and has numerous breaches of probation and breach of recognizance, all from drinking alcohol and all involving the Respondent mother as the victim. [ 10 ] The Respondent mother describes these assaults on her as mainly when he was drinking. She says he went to Harvest House (alcohol treatment center) for three months, leaving there voluntarily before the usual six months. He is still drinking and “ bugs her ” when under the influence.

The fact that he drinks, it was revealed on cross-examination, could be a breach of his present Probation Order. [ 11 ] There has been access by the Applicant. He says he had the children several times overnight since he left Harvest House. The Respondent mother indicates his motivation is to get back with her and she can ’ t talk to him because “ it ’ s always about me and him ” . [ 12 ] She did allow some access over the summer but she is concerned about his drinking and proposes supervised access with a

person she is content with (not his mother or her boyfriend). Access would be a couple of hours twice a week. If she knew he was notdrinking, only then, would she agree to unsupervised access. [13] There has been no medical (professional) evidence that he has conquered his drinking which, based on the evidence, has been aproblem and the Respondent mother believes it is still a problem. The Law: 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 (

b) 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 court shallapply the principle that the welfare of the chid is the paramount consideration. [14] The Nova Scotia Court of Appeal in Slawter v. Bellefontaine, 2012 NSCA 48 (Can LII) indicated the burden is on the parentrequesting supervised access to “demonstrate that restrictions are in the best interests of the children”. [15] This decision describes in great detail, in addition to the burden referred to above, the concept of supervised (restricted access). 1.

Supervised Access [39] There can, of course, be no dispute that access is to be determined only according to what is in the best interests of a child. TheSupreme Court of Canada in Young v. Young, (SCC), [1993] 4 S.C.R. 3, [1993] S.C.J.

No. 112 (Q.L.), was divided inresult over whether the restrictions on access requested by the custodial parent and imposed by the trial judge were properly imposed.But I can discern no practical differences in the test to be employed. [40] L’Heureux-Dubé J., dissenting in result, discussed access inlight of the paramountcy of the best interests prism: A.60 Access rights exist in recognition of the fact that it is normally in the interests of the child to continue and foster the relationshipdeveloped with both parents prior to the divorce or separation.

This being said, the right to access and the circumstances in which it takesplace must be perceived from the vantage point of the child. Wherever the relationship to the non-custodial parent conflicts with the bestinterests of the child, the furtherance and protection of the child’s best interests must take priority over the desires and interests of theparent.

B. 61 As the ultimate goal of access is the continuation of a relationship which is of significance and support to the child, access must becrafted to preserve and promote that which is healthy and helpful in that relationship so that it may survive to achieve its purpose.Accordingly, it is in the interests of the child, and arguably also in the interests of the access parent, to remove or mitigate the sources ofongoing conflict which threaten to damage or prevent the continuation of a meaningful relationship. [41] McLachlin J., as she then was, expressed the same overall approach:

G. 210 I conclude that the ultimate criterion for determining limits on access to a child is the best interests of the child. The custodialparent has no “right” to limit access. The judge must consider all factors relevant to determining what is in the child’s best interests; afactor which must be considered in all cases is Parliament’s view that contact with each parent is to be maximized to the extent that thisis compatible with the best interests of the child. The risk of harm to the child, while not the ultimate legal test, may also be a factor to beconsidered.

This is particuarly so where the issue is the quality of access. -- what the access parent may say or do with the child. In suchcases, it will generally be relevant to consider whether the conduct in question poses a risk of harm to the child which outweighs thebenefits of a free and open relationship which permits the child to know the access parent as he or she is. It goes without saying that, asfor any other legal test, the judge, in determining what is in the best interests of the child, must act not on his or per personal vies, but onthe evidence. A. [23] Supervised access is an exceptional remedy.

A child is entitled to share in the daily life of his/her parents unless such is not in thechild’s best interests to do so. Access is the right of the child and not the right of the parent. There is no presumption that contact withboth parents is in the best interests of the child, although such contact generally is: Young v. Young (1993) (SCC), 160N.R. 1 (S.C.C.) and Abdo .

Abdo (NS CA), (1993) 126 N.S.R. (2d) 1 (C.A.) B. [24] Supervised access is appropriate in specific situations, some of which include the following: C. [a] where the child requires protection from physical, sexual or emotional abuse; D. [b] where the child is being introduced or reintroduced into the life of a parent after a significant absence; E. [c] where there are substance abuse issues; or F. [d] where there are clinical issues involving the access parent. G. [25] Supervised access is not appropriate if its sole purpose is to provide comfort to the custodial parent.

Access is for thebenefit of the child and each application is to be determined on its own merits. [16] The Court of Appeal further concluded that in discussing these precedents, the purpose was partly to show that supervisedaccess for an indefinite period is a rare occurrence. Supervised access is periodic in nature subject to review. Conclusion / Decision: [17] There is a history of domestic problems between the parties.

The Applicant father was the aggressor fuelled by alcohol, whichculminated in his conviction for assaults on the Respondent mother. [18] There have been subsequent breaches of probation and/or undertakings. By his own evidence the Applicant father admits hecontinues to drink alcohol but says he would not do it when he would have the children. He does not attend AA but continues withaddiction services according to his evidence. He left an alcohol treatment center early. [19] As indicated, there is no evidence from this body or any other, that he has his drinking under control.

Letters his counsel wasattempting to put in evidence (from medical professionals) were rejected as a result of the objection from counsel for the Respondentmother. The signatures to the letters were not available for proof of content or cross-examination.

[ 20 ] This is an issue of quality of access where risk of harm to the children may be a factor. The burden of proof on the Respondent mother to show that restriction of access in the children ’ s best interests has been discharged by the Applicant father ’ s evidence that he still drinks and doing so, contrary to a Probation Order. The concern is also that there is drinking in the home in which he would bring the children.

Each case is determined based on its facts and the circumstances for parenting that exist. [ 21 ] In the case before the Court, there is an obstacle that prevents the Applicant father from achieving the goal referred to in s. 18. His problem drinking has not been explained or resolved to the satisfaction of the Court. Substance abuse remains a problem and in the best interests of the children, requires supervised access for a period of time to be reviewed at a further date. [ 22 ] The Court orders that the Respondent mother have custody and the Applicant father have daytime supervised access.

The supervision is to be agreed upon by the parties. At the present time, the supervisor shall not be the Applicant ’ s father ’ s mother. Suggested names have been set out in the Respondent mother ’ s (counsel) brief as S.C. or B.C. (The parties know what these intials mean). Access shall be reasonable supervised parenting time. [ 23 ] The onus is on the Respondent mother to set up the access regiment which should be at least twice a week for three hours. [ 24 ] This matter will be reviewed within three months, namely a date in April, 2013.

The clerk of the Court or Family Court Officer shall contact counsel to set a date convenient to them and the parties. Counsel for the Respondent mother shall prepare the order. _____________________________ JOHN D. COMEAU Judge of the Family court of Nova Scotia