Penney v. Tufts, 2013 NSCA 126

Nova Scotia Court of Appeal Citation: Penney v. Tufts , 2013 NSCA 126 Date: 20131106 Docket: CA 416996 Registry: Halifax Between: Jason Penney Appellant v. Angela Tufts Respondent Revised Judgment: The text of the original judgment has been corrected according to this erratum dated November 6, 2013 . Judge: The Honourable Justice Joel E. Fichaud Motion Heard: October 31, 2013, in Halifax, Nova Scotia, in Chambers Held: Appellant’s motion for a stay dismissed with costs of $500 in the cause of the appeal.

Counsel: The Appellant in person Leigh Davis and Amber Penney for the Respondent Erratum: Page 2, Paragraph [6], change “April 7, 2013” to read “April 7, 2014”. Nova Scotia Court of Appeal Citation: Penney v. Tufts , 2013 NSCA 126 Date: 20131106 Docket: CA 416996 Registry: Halifax Between: Jason Penney

Appellant v. Angela Tufts Respondent Judge: The Honourable Justice Joel E. Fichaud Motion Heard: October 31, 2013, in Halifax, Nova Scotia, in Chambers Held: Appellant’s motion for a stay dismissed with costs of $500 in the cause of the appeal. Counsel: The Appellant in person Leigh Davis and Amber Penney for the Respondent Reasons: [ 1 ] Mr. Penney requests a stay of the decision under appeal. [ 2 ] Mr. Penney and Ms. Tufts are unmarried parents of a son H, aged five. In 2011 they consented to an Order that set out a parenting program of shared custody with a rotating schedule. Later, Ms.

Tufts applied to vary the parenting program. Her application was under the Maintenance and Custody Act , R.S.N.S. 1989, c. 160, as amended, ss. 18 and 37 . The matter was tried on May 22 and 23, 2013. Justice Jim Williams of the Supreme Court (Family Division) heard testimony from nine witnesses, including Ms. Tufts and Mr. Penney. [ 3 ] Justice Williams’ oral reasons of May 23, 2013 were formalized in an Order issued on October 11, 2013. The judge amended the parenting program to provide more parenting time to Ms. Tufts and less to Mr. Penney. Later, I will refer to the judge’s reasons. The revised parenting

schedule commenced as of the oral decision in May 2013. The judge also ordered Mr. Penney to pay child support of $150 per month and costs of $1,500. [ 4 ] On June 21, 2013, Mr. Penney appealed from the judge’s decision. He says that the variation is not in the child’s interests. [ 5 ] On October 31, 2013, Mr. Penney applied to

schedule the hearing date and for a stay of Justice Williams’ Order. He wishes a stay of the new parenting arrangement, the child support of $150 monthly and the costs award. [ 6 ] I set the dates for filings, and scheduled the hearing for April 7, 2013. [ 7 ] At the Chambers hearing it became apparent that, for the appeal, Mr. Penney intends to rely on fresh evidence that was not before Justice Williams. I gave Mr. Penney specific directions on the process for a motion to adduce fresh evidence in this Court. To reiterate:

(1) Mr. Penney is to file and serve with his Appeal Book, by February 7, 2014, a separate volume entitled “Fresh Evidence”.

(2) That volume is to include, in admissible form, the fresh evidence that Mr. Penney seeks to have admitted by the Court of Appeal. (3) “Admissible form” includes the requirement that any statements are to be in sworn affidavits by witnesses with personal knowledge of the facts that are offered for the truth of those statements.

(4) Any documents should be attached as exhibits to sworn affidavits in the Fresh Evidence volume.

(5) Mr. Penney is to include in his factum, to be filed by February 21, 2014, any submissions that the fresh evidence should be admitted by the Court.

(6) The points to be addressed in those submissions should include why the fresh evidence was not adduced before Justice Williams, why the fresh evidence is credible and reliable, and how the fresh evidence would materially alter the outcome of Justice Williams’

decision.

(7) Ms. Tufts is to include her written response to the submissions on fresh evidence in her factum, due by March 7, 2014.

(8) Whether or not the fresh evidence is admitted by the Court will be decided by the panel that hears the appeal.

My outline of theprocess should not be taken as a ruling that any fresh evidence will be admitted. [8] I will turn to the motion for a stay. [9] Rules 90.41(1) and (2) state that an appeal “shall not operate as a stay of execution or enforcement of the judgmentappealed from”, but a judge of this Court “may, pending disposition of the appeal, order stayed the execution and enforcement of anyjudgment appealed from or grant such other relief against such a judgment or order, on such terms as may be just”. [10] The test for a stay generally in civil cases is that stated by Justice Hallett in Fulton Insurance Agencies Ltd. v.

Purdy (1990), (NS CA), 100 N.S.R. (2d) 341, paras 28-30 for the former Rule 62.10(2). The applicant for a stay must show thateither (1) there is an arguable appeal, and denial of a stay would cause him irreparable harm and the balance of convenience favours astay, or (2) there are exceptional circumstances making it just that a stay be granted. [11] Those principles are modified in stay motions that involve the welfare of a child. As stated in Reeves v. Reeves, 2010 NSCA6: [20] Fulton’s test is modified in stay applications involving the welfare of children, including issues of custody or access.

That isbecause, in children’s cases, the court’s prime directive is to consider the child’s bests interest. The child’s interests prevail over those ofthe parents, usually the named litigants, on matters of irreparable harm and balance of convenience. Fulton, page 344. Ellis v. Ellis(1997), 1997 NSCA 10 , 163 N.S.R. (2d) 397, at p. 398. Nova Scotia (Minister of Community Services) v. J.G.B., 2002 NSCA34, at ¶ 7. D.D. v. Nova Scotia (Minister of Community Services), 2003 NSCA 146, at ¶ 9-11. Minister of Community Services v. B.F.,2003 NSCA 125 , [2003] N.S.J. No. 421 (Q.L.) (C.A.), at ¶ 13, 19.

Family and Children’s Services of Annapolis County v.J.D., 2004 NSCA 15, at ¶ 10-14. Minister of Community Services v. D.M.F., 2004 NSCA 113, at ¶ 12-15, 20. Family and Children’sServices of Cumberland County v. D.Mc., 2006 NSCA 28, at ¶ 12-13. The Children’s Aid Society of Cape Breton-Victoria v. L.D., 2006NSCA 32 at ¶ 18-19. Gillespie v. Paterson, 2006 NSCA 133 at ¶ 3-4. Crewe v. Crewe, 2008 NSCA 68, at ¶ 7. [21] I summarize the following principles from these authorities. The stay applicant must have an arguable issue for her appeal.

But, when a child’s custody, access or welfare is at issue, the consideration of irreparable harm and balance of convenience distils intoan analysis of whether the stay’s issuance or denial would better serve, or cause less harm to, the child’s interest. The determination ofthe child’s interests is a delicate fact driven balance at the core of the rationale for appellate deference. So the judge on a stayapplication shows considerable deference to the findings of the trial judge. Of course, evidence of relevant events after the trial was notbefore the trial judge, and may affect the analysis.

The child’s need for stability generally means that there should be special andpersuasive circumstances to justify a stay that would alter the status quo. To similar effect: Godin v. Godin, 2011 NSCA 19, para 9 and Doncaster v. Field, 2012 NSCA 44, para 20. [12] Before applying this modified test, it is useful to set out the pertinent findings in Justice Williams’ oral decision of May 23,2013: The application has brought to the Maintenance and Custody Act, Sections 18 and

Section 18 gives the court the authority to makeorders of care and custody concerning the child. It provides that, subject to the Act and orders under the Act, a mother and father of achild are joint guardians and equally entitled to the care and custody of a child unless otherwise ordered. It also provides, in

Section 18.5that in any proceeding under this Act concerning the care and custody of, 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. That is the consideration I have applied in comingto the decisions I have made today.

Section 37 of that Act gives the court, on application to make an order that varies an order ofcustody or access where there has been a change in circumstance since the making of the order or the last order. There is no question that there has been a change in circumstances here. [H] is older. The shared parenting order has not worked for[H]. Both parents agree it’s been effective. It must be changed. Mr. Penney and Ms. Tufts have demonstrated an inability tocommunicate in a fashion that puts [H]’s interests first.

Both of them have, at times, place[d] their own needs ahead of [H]’s needs, theirown concerns, fears, animosities, anger have played too big a role in their behaviour and interactions with each other. Ms. Tufts has beenat times unduly inflexible and immature; Christmas scheduling, calling the police, seeming that she has not – is opposed to the schoolchoice of Mr. Penney’s despite the fact that she has not explored childcare arrangements at the other school or among those. Mr. Penneyhas demonstrated a pattern of behaviour, not responding to requests, name calling, attempting to bully Ms.

Tufts into a week aboutschedule, not following through with prescribed medications, double doctoring, being purposely, I conclude, difficult at times. All of itmakes it clear that the shared parenting arrangement did not work for this couple and will not work at this time. I say at this time. [H] isyoung. Hopefully two, three, four years from now the parenting arrangement, the parenting interaction I should say, settles down andthe question of parenting might be revisited. I conclude that Mr.

Penney has been attempting to exert power and control over parenting and perhaps, to some degree, out of anger andfrustration; has lost sight of what was important and engaged in behaviour that has been aggressive, hurtful and, in the end, made it clearthat effective communication between he and Ms.

Tufts is not now possible in the context of a shared parenting arrangement. [H] cannotbe left to the buffeting winds of a parenting plan that has parents who cannot agree to follow through on the most basic of things, forinstance, following through on a medically-prescribed medication; what time to exchange his care; what extracurriculars to place him in. All of these are issues they can’t agree on. All of them are issues that, under the current arrangement with no parent making a finaldecision, leaves [H], as I say, buffeting between the winds of their respective views. Mr.

Penney has crossed the line in a good deal ofhis behaviours and communications. The evidence indicates he is a good father when with [H]. His behaviour when interacting with

Ms. Tufts is problematic. He and [H] need boundaries and a clear understanding parenting rules and expectations. I believe that he is, and can be, a good father. I believe he has slipped or perhaps not yet learned how to communicate more effectively. He needs to understand that the aggressive and passive aggressive behaviours he has demonstrated have the potential to threaten his ability to have a meaningful relationship with [H] in the future. Mr. Penney I am assuming at this time has, and should have, a meaningful role in [H]’s life.

When I say that his behaviours have the potential to threaten his parenting role, I mean it. If the kind of things that have occurred, the name calling, the passive aggressive behaviours, the refusing to respond to simple requests like does 10 o’clock work for you, does 2 o’clock work for you, what time do you expect to be there? If that kind of behaviour continues, he will really be saying that it’s more important to him to be difficult than it is to have a positive relationship with his child. Ms.

Tufts is not perfect but I do conclude that some of her behaviours and, based on the evidence, have been influenced by her growing distaste for dealing with Mr. Penney and that distaste was fuelled, in large part, by his behaviour, not alienation. Simply put, if someone is really difficult with any one of us, we’re not going to like to deal with them. Mr. Penney is really difficult in terms of his past dealings with Ms. Tufts. [H] requires certainty. I conclude that Ms.

Tufts is, by temperament, demonstrated behaviour, financial means, in a better position to provide primary parenting to [H] in a way that is consistent with his best interests. Mr. Penney is aggressive, pushy and passive aggressive behaviours cause concern. I cannot conclude that it would be in [H]’s best interests to be in his primary care at this time. [H] needs: 1) somebody in charge; 2) less exposure to conflict, fewer exchanges, and, 3) and this is important too, the opportunity to have a meaningful relationship with both parents and their extended families.

In the circumstances I conclude that it is in the best interests of [H] at this time to be in the primary care and custody of Ms. Tufts. … With respect to child support Mr. Penney is consenting to an order of $150 a month. As I understand his counsel, it’s based on his income of $21,000 or projected income of $21,000. … I want to be clear on this to both of you. The situation that’s gone on is intolerable. I’ve got real concerns here and I guess, Mr. Penney, my concerns are more for you in the situation.

I’m concerned that some of the kind of behaviour that has been going on, if it escalates or continues, is going to end up with a court restricting the contact you have with your son even more. I don’t want that. The evidence I’ve heard indicates you’re basically a good parent when you’re alone with [H]. In other circumstances I would do exactly what Mr. Eagan has just asked about. I would probably build in an overnight or something sort of part way through that longer week or something like that. In looking at this, what your situation needs now is not more exchanges. [H] doesn’t need more exchanges.

So I’m erring on the side of, if you like, restricting, to some extent, the contact you have with your son at this point in time. But I’m doing that because I want to make sure you have extended contact in the future. As they say, you know there’s a saying about parenting. It’s a long pony ride. [H] is four years old. What we want right now is the order that I’ve just made to be a building block of something that’s healthier, more stable and allows the two of you to go forward.

There is nothing in what I’m saying here today that says that if things go smoothly for the next year or two years that it can’t be extended into something more or closer to what you are asking for, Mr. Penney. … [ 13 ] For his stay motion, Mr. Penney mounts a frontal assault on Ms. Tufts’ credibility. His affidavit and his submission assert that Ms. Tufts lied to the Court about virtually every topic in her testimony. He submits that the judge was deceived by these lies, ignored the relevant evidence and misunderstood the child’s best interests. He blames his trial lawyer for not adducing better evidence. Mr.

Penney tendered a lengthy affidavit with substantial hearsay, opinion and speculation, and retrospective evidence that was not before Justice Williams. [ 14 ] Ms. Tufts’ affidavit for the stay motion says that, since the new parenting arrangement began May 2013: … [H] is thriving. [H] spends his days in school and absolutely loves it. He is doing very well on the current schedule. He sleeps better, is less moody, eats more, and is generally happier all around. [H] appears to benefit greatly from the regular routine and

schedule that he participates in for the 10 days that he is with me. On the previous schedule, [H] frequently displayed actions of anger and confusion with both myself and the previous baby sitter, … Ms. Tufts’ affidavit then replies to each of Mr. Penney’s allegations of her past misconduct. [ 15 ] I reiterate the test from Reeves . The question for me is whether the stay’s issuance or denial would better serve, or cause less harm to, the child’s interests. This is a delicate, fact-driven balance at the core of the rationale for appellate deference to a trial judge’s findings.

The child’s need for stability generally means that there should be special and persuasive circumstances to justify a stay that would disturb the status quo . [ 16 ] Justice Williams heard testimony from nine witnesses. Those included Mr. Penney and Ms. Tufts, who each were cross- examined by counsel. On the stay motion, I have affidavits and no cross-examination. Mr. Penney’s affidavit contains much inadmissible evidence.

That is the foundation from which I am asked to pierce the deference and contradict Justice Williams’ findings. [ 17 ] I decline to disturb those findings, even on the provisional basis that is contemplated by the stay procedure. [ 18 ] Mr. Penney doesn’t grasp Justice Williams’ point. The judge’s message was that (1) this is about the child, and isn’t a battle between parents,

(2) Mr. Penney’s reflexive aggression to Ms. Tufts has damaged his son, (3) a tranquil pause would be therapeutic for the child and, (4) if Mr. Penney just took those directions to heart, then potentially a court might restore his earlier parental contact at some future date after the respite. Mr. Penney’s approach to the stay motion – an implacable attack on Ms. Tufts – does not persuade me that the judge erred in the premise for his assessment of the child’s best interests. [ 19 ] I dismiss the stay motion, with costs of $500 in the cause of the appeal.

Fichaud, J.A.