Boutilier-Robar v. Robar, 2012 NSSC 279

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Boutilier-Robar v. Robar, 2012 NSSC 279 Date: 20120808 Docket: SFSNMCA-078980 and SFSNMCA-079455 Registry: Sydney Between: Anita Boutilier-Robar Applicant v. Mathew Robar Respondent And Between: Arleigh Robar and Shirley Lantz Applicants v. Anita Boutilier-Robar and Mathew Robar Respondents LIBRARY HEADING Judge: The Honourable Justice Theresa M. Forgeron Heard: May 23 and 24, 2012; June 14 and 15, 2012 in Sydney, Nova Scotia Written Decision: August 8, 2012

Summary: Mother seeks an order for the return of her 4 year old daughter to her care. Paternal grandparents, with the support of father, seek an order for sole custody of the child. Issue: Custody and Access

Result: Paternal grandparents awarded sole custody. Best interests of child displaced parental claim to custody. Access provided to mother and father. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Boutilier-Robar v. Robar, 2012 NSSC 279 Date: 20120808 Docket: SFSNMCA - 078980 and SFSNMCA - 079455 Registry: Sydney Between: Anita Boutilier-Robar Applicant v. Mathew Robar Respondent And Between: Arleigh Robar and Shirley Lantz Applicants v. Anita Boutilier-Robar and Mathew Robar

Respondents Judge: The Honourable Justice Theresa M. Forgeron Heard: May 23 and 24, 2012; June 14 and 15, 2012, in Sydney, Nova Scotia Written Decision: August 8, 2012 Counsel: David Raniseth, for Anita Boutilier-Robar Coline Morrow, for Mathew Robar Mark Gardiner, for Arleigh Robar and Shirley Lantz By the Court: [ 1 ] Introduction [ 2 ] Children grow and develop within a family structure. Usually, parents, as head of the family unit, will play a pivotal role in their child ’ s development.

On occasion, however, other adults, such as grandparents, will assume this responsibility. [ 3 ] In this decision, the court must determine who will assume this responsibility for Danielle, the four year old daughter of Mathew Robar and Anita Boutilier-Robar. Anita submits that Danielle should be returned to her care.

Mathew, and his father and stepmother, Arleigh Robar and Shirley Lantz, want Danielle to continue to live with Arleigh and Shirley. [ 4 ] This parenting decision will centre on Danielle ’ s best interests, as discussed within the legislative framework of the Maintenance and Custody Act , and based upon the unique factual circumstances that comprise Danielle ’ s life. [ 5 ] Issues [ 6 ] The following issues will be answered in this decision: a.What principles apply to this proceeding? b.What custodial arrangement is in Danielle ’ s best interests? c.What access arrangements are in Danielle ’ s best interests?

[ 7 ] Background Information [ 8 ] Danielle was born on May 31, 2008, in HRM. At that time, Anita and Mathew were living in an apartment that they shared with Anita ’ s four year old son, Miguel. Anita developed post-partum depression following Danielle ’ s birth, but quickly sought medical help and received treatment. As a result, the post-partum depression resolved. [ 9 ] Mathew and Anita were married on September 19, 2008. They moved from HRM to Cape Breton in the spring of 2009. Initially, Mathew and the children lived with a relative in Loch Lomond, while Anita lived in Glace Bay.

An apartment was secured fairly quickly in Glace Bay; this became the family home. [ 10 ] Anita and Mathew separated in June 2009. Mathew remained in the apartment, while Anita and the children moved in with a relative. In August 2009, the parties reconciled. The apartment once again became the family home. [ 11 ] Reconciliation was short lived. Separation occurred in early January 2010. Mathew moved in with relatives, while Anita and the children continued to reside in the apartment. Mathew saw Danielle and Miguel on a daily basis.

The parenting arrangement was flexible. [ 12 ] In approximately August 2010, Mathew moved to HRM, and then to Bridgewater. He had frequent telephone conversions with Danielle. Because the parties had limited financial resources, and neither owned motor vehicles, Matthew had no physical contact with Danielle. Anita impressed upon Mathew that Danielle was missing him. [ 13 ] In early January 2011, Mathew and Anita agreed upon a loose parenting schedule. They agreed that Danielle would spend about two months with each party, on a rotating basis.

Danielle was not quite three years old. [ 14 ] From January to March 2011, Danielle lived in Bridgewater and had no physical contact with her mother. From March until June, Danielle lived with Anita and had no physical contact with her father. From June until August, Danielle lived in the Bridgewater area and had no physical contact with Anita. From August until October 8, Danielle lived with her mother and had no physical contact with her father. From October 8, 2011 until present, Danielle has lived in the Bridgewater area.

There has been no physical contact between Danielle and her mother since October 8, 2011. [ 15 ] Arleigh and Shirley did not become extensively involved in Danielle ’ s life until January 2011. From January until March 2011, they frequently provided child care for Danielle when Mathew was working, or catching up on sleep. Mathew was employed as a bouncer in a local bar. Danielle ’ s relationship with her grandparents began to deepen and mature. [ 16 ] Arleigh and Shirley ’ s role expanded once more in July 2011. In July, Danielle moved in with Arleigh and Shirley, while maintaining regular visits with Mathew.

This arrangement arose because of Mathew ’ s inability to afford appropriate housing for Danielle. In June, Mathew had moved into a rooming house where hygienic and safety issues quickly surfaced. [ 17 ] Danielle returned to live with her mother in mid-August 2010. In September, Shirley connected with Anita so that she could speak with Danielle on the telephone. Shirley told Anita that Danielle had spent the summer living with them, and that she and Arleigh missed Danielle.

Shirley also confirmed that Danielle was welcomed to stay with them at any time. [ 18 ] When Danielle returned to the Bridgewater area in October 2011, she moved in with Arleigh and Shirley, while having frequent visits with her father. This arrangement continued until Mathew moved back to HRM, in late spring of 2012. Physical contact between Mathew and Danielle is now less frequent.

[ 19 ] In the fall of 2011, Arleigh and Shirley enrolled Danielle in swimming lessons, as well as a preschool program. Danielle thoroughly enjoyed both activities. [ 20 ] In December 2011, Anita and Mathew had discussions about Christmas access. Mathew wanted Danielle to remain in the Bridgewater area, while Anita wanted Danielle returned to Glace Bay. Danielle remained in the Bridgewater area. [ 21 ] In mid-January 2012, Anita received a letter from Shirley and Arleigh.

The letter confirmed that Anita would soon be receiving legal documents to “ make Danielle ’ s home with us official. ” The grandparents also noted that they hoped “ this legal stuff gets over quickly, and smoothly, and Danielle can in fact embrace her new life. ” The stated rational for this plan was Danielle ’ s need for a permanent routine, stability, and happiness. Access options were also addressed. [ 22 ] Upon receiving this letter, Anita filed an emergency ex parte motion on January 17, 2012. She sought an order returning Danielle to her custody.

The court refused to proceed on an ex parte basis, but arranged for an inter partes hearing on February 17, 2012. Dates were assigned for the filing of affidavits. [ 23 ] On February 15, Arleigh and Shirley filed an application seeking custody of Danielle, as well as leave to apply for custody. [ 24 ] On February 17, Anita requested an adjournment so that she could retain a lawyer. Before granting the adjournment, the court confirmed that there would be no change in Danielle ’ s living arrangements pending a hearing. Anita acknowledged this statement, but maintained her adjournment request.

The adjournment was granted. The hearing was rescheduled to April 19 and 20. Dates were assigned for the filing of affidavits and briefs. [ 25 ] A pre-trial conference was convened on April 18 at Anita ’ s request. Counsel advised that Anita did not provide him with the necessary documentation to prepare an affidavit until April 10, the date her affidavit was to have been filed. Anita was therefore requesting a second adjournment.

The adjournment was again granted, but subject to the caveat that the primary residence of Danielle would not be changed pending the hearing. [ 26 ] May 23 and 24 were assigned as the rescheduled hearing dates. Given the time that had passed since the initial applications were filed, the court deemed it appropriate to have the matter resolved on a final basis, in the best interests of Danielle, and with the consent of counsel. The May 23 and 24 dates were, therefore, designated as final hearing dates, and not interim hearing dates. [ 27 ] The contested hearing proceeded on May 23 and 24.

Because the evidence was not concluded, additional court time was assigned on June 14 and 15. In addition to the parties, the following witnesses testified: Vanessa Gaudet, Dwayne Pickford, Megan Stewart, Edward Robar, Scott Brewster, and Heidi Robar. After oral submissions were received, the matter was adjourned for decision. [ 28 ] Analysis [ 29 ] What principles apply to this proceeding? [ 30 ] Parenting determinations must be based upon the applicable legislation and case law. All parties have sought relief pursuant to the Maintenance and Custody Act .

Section 18(2) of the Act , provides the court with the authority to make a parenting order on the application of a parent, or other person with leave of the court. The parties consented to leave being granted to Arleigh and Shirley. [ 31 ] Section 18(4) of the Act creates a statutory presumption that parents are equally entitled to custody, as between themselves, and third parties, but subject to the child best interests as stated in sec. 18(5).

[32] The presumption that parents are entitled to custody can be rebutted in the child’s best interests. The child’s best interests, orthe welfare of the child, is the paramount consideration in any parenting decision. In King v. Low (SCC), [1985] S.C.J.No. 7, McIntyre J. briefly reviewed the progressive evolution of custody laws, from one based on parental rights, to one based on the bestinterests of the child.

The court held at para. 12: The law relating to the custody of children and the rights of parents where custody claims are involved has undergone progressivechange since early in the nineteenth century when the parent, usually the father, had a right to custody of an infant child unlessdisqualified by reason of some serious circumstance, having to do with the welfare of the child, making him unfit to have custody. Bylegislative intervention and evolving case law the situation has changed.

The law has moved, first, toward an increase in maternal rights;a progressive diminution of parental rights; and then, a corresponding increase in the consideration of the interest or welfare of the infant,as the significant factor in custody determination.

This latter factor has become progressively more important until it may now be saidthat the welfare of the child is the paramount consideration when the courts address the problem. [33] The fact that the best interests of the child dominates all parenting decisions was confirmed at para. 27 of that decision,wherein the court held as follows: This conclusion is consistent with modern authority in this court and others: see Racine, Beson , and Re Moores and Feldstein .

I wouldtherefore hold that in the case at bar the dominant consideration to which all other considerations must remain subordinate must be thewelfare of the child. This is not to say that the question of custody will be determined by weighing the economic circumstances of thecontending parties. The matter will not be determined solely on the basis of the physical comfort and material advantages that may beavailable in the home of one contender or the other.

The welfare of the child must be decided on a consideration of these and all otherrelevant factors, including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the court, whenresolving disputes between rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth,development and education of the child so that he will be equipped to face the problems of life as a mature adult. Parental claims mustnot be lightly set aside, and they are entitled to serious consideration in reaching any conclusion.

Where it is clear that the welfare of thechild requires it, however, they must be set aside. [34] In J.F. v. T.E. and G.E. 2010 NBCA 14, Quigg J.A. extensively reviewed the interplay between parental claims and the bestinterests’ analysis. She confirmed that parental claims are secondary to the best interests’ needs of a child. Parental claims will not beset aside if the parental tie is a meaningful and positive force in the child’s life. Parenting decisions must always be viewed from thechild’s perspective. [35] Further, there is nothing in the decision of O’Brien v.

Thomson, 2004 NSCA 34, which dilutes the test set out in King v. Low,supra., and as exhaustively discussed in J.F. v. T.E. and G.E., supra. In O’Brien v.

Thomson, supra, Hamilton, J.A. confirmed thatparental claims to custody are entitled to serious consideration, and must not be lightly set aside, unless it is clear that the welfare of thechild requires it at para. 27: ...parental claims to custody are entitled to serious consideration and must not be lightly set aside, unless it is clear the welfare of thechild requires it... [36] The best interests’ principle has been described as one with an inherent indeterminancy and elasticity: MacGyver v. Richards(1995), (ON CA), 22 O.R. (3d) 481 (Ont. C.A.), paras. 27-29.

The test is a fluid concept that encompasses all aspectsof a child, including the child's physical, emotional, intellectual, and social well being. The court must review the plans of rivalclaimants and chose the course which will best provide for the healthy development of the child. In Foley v. Foley (1993) (NS SC), 124 N.S.R. (2d) 198 (N.S. S.C.), Goodfellow, J. provided a series of factors for courts to consider and balance indetermining the child’s best interests.

Courts typically examine such factors when assessing competing parenting plans. [37] Further, in making this decision, the court must review the burden of proof and credibility principles. In F. H. v. McDougall,2008 SCC 53, Rothstein J. confirmed that there is only one standard of proof in civil cases - that is, proof on a balance of probabilities. Inevery civil case, the court must scrutinize the evidence when deciding whether it is more likely than not that an alleged event occurred.The evidence must not be considered in isolation, but must be based upon its totality.

The evidence must always be clear, convincing, andcogent to satisfy the balance of probabilities' test.

[ 38 ] Credibility impacts upon burden of proof. In Baker-Warren v. Denault , 2009 NSSC 59 (N.S. S.C.) , this court reviewed the factors to be considered when making credibility determinations, at paras. 18 to 20. These factors were approved in Hurst v. Gill , 2011 NSCA 100 , at para. 16 . I have applied this law. [ 39 ] In reaching my decision, I have assigned the civil burden of proof to Arleigh and Shirley because they are attempting to displace the statutory presumption set out in sec. 18(4) of the Maintenance and Custody Act . I have considered the legislation, case law, and the submissions of the parties.

I have reviewed the evidence in its totality and have made the necessary credibility determinations. [ 40 ] What custodial arrangement is in Danielle ’ s best interests? [ 41 ] Position of Anita [ 42 ] Anita states that it is in Danielle ’ s best interests to be returned to her primary care. She is not opposed to a joint custody arrangement with Mathew. Anita states that Danielle can visit her paternal grandparents when she is with Mathew.

Anita states that Danielle should be returned to her care for a number of reasons, including the following: a.She has always been Danielle ’ s primary care giver; b.She had no knowledge that Arleigh and Shirley had assumed the primary care giving role when Danielle was in Bridgewater. She did not acquiesce or agree with this parenting arrangement.

Anita did not abandon Danielle; c.As soon as she discovered the intention of the paternal grandparents, Anita made a court application to regain custody; d.Danielle and Miguel enjoy an excellent and supportive relationship which must be maintained for Danielle ’ s healthy development; e.Danielle was, and is, a happy and loving child whose physical, emotional, and recreational needs are, and have been, met while in Anita ’ s care; and f.There is no reason why Danielle should not have the benefit of being raised by at least one of her parents, when Anita is capable and willing to fulfil this role. [ 43 ] Position of Mathew [ 44 ] Mathew favours an order placing Danielle in the custody of Arleigh and Shirley, for a number of reasons, including the following: a.Danielle ’ s emotional, physical, and social needs are best met by Arleigh and Shirley; b.He is financially unable to provide Danielle with the life that she deserves because of his inability to maintain employment and a stable residence; and c.Danielle is happy and thriving in the care of Arleigh and Shirley.

[ 45 ] Position of Arleigh and Shirley [ 46 ] Arleigh and Shirley seek sole custody of Danielle for a number of reasons, including the following: a.They ensure that Danielle ’ s emotional needs are consistently being met in a loving and nurturing environment; b.Because of their involvement, Danielle has found much needed stability, love, routine, and structure. As a result, Danielle has blossomed emotionally and socially; c.They will ensure that Danielle ’ s educational needs are a priority. Arleigh and Shirley enrolled Danielle in preschool.

Further, they regularly engage in activities designed to teach Danielle age appropriate skills in an interesting and enjoyable way; d.They are attuned to Danielle ’ s social needs. They enrolled Danielle in preschool to ensure regular contact with other children. They arrange for play dates with children the same age through relatives and friends. They involved Danielle in swimming so that she would not fear water.

They want Danielle to participate in activities that suit her interests and which will develop confidence, sportsmanship, and team building skills; and e.They deeply love Danielle and she, in turn, deeply loves them. [ 47 ] Arleigh and Shirley outlined their plans for access. They will ensure that Danielle has frequent contact with Mathew. Should his home environment improve, they will facilitate overnight visits. [ 48 ] To ensure that the reintroduction of Anita into Danielle ’ s life is positive, Arleigh and Shirley want to engage a professional.

They note the lack of consistent contact between Anita and Danielle. Arleigh and Shirley do not want Danielle to be confused or upset. They do not want to jeopardize Danielle ’ s emotional well being. [ 49 ] Decision of the Court [ 50 ] The court must establish a primary care parent for Danielle. Shared parenting is not in Danielle ’ s best interests.

Further, shared parenting is not feasible where Anita lives in Glace Bay; Mathew resides in HRM; and Arleigh and Shirley live in the Bridgewater area. [ 51 ] To resolve the question of the custodial designation and the primary care parent, I must examine the various factors that compose the best interests ’ test in the context of the parenting plans that each party presented.

Foley -type factors will form the frame work of this discussion, and will include an examination of the following factors: a.Physical Needs; b.Emotional Availability; c.Relationship Between Child and Caregivers; d.Primary Care History; e.Educational Needs; f.Social, Cultural, and Recreational Needs;

g.Spiritual and Moral Development; h.Maximum Contact Principle; i.Family Connections and Supports; j.Assistance of Experts; k.Role Model; l.Discipline; m.Violence; and n.Wishes of Danielle. [52]After reviewing these factors, I have determined that it is in Danielle’s best interests to be placed in the sole custody of Arleigh andShirley for the reasons which I will now explain. [53] Physical Needs [54] I am satisfied that Anita and the paternal grandparents can adequately meet Danielle’s physical needs. Anita resides in abungalow style home in Glace Bay, which includes a lovely backyard.

There are three bedrooms in the home, and a developedbasement. Danielle will have her own bedroom. Anita is an excellent housekeeper, and the home is safe. Anita, and her new partner,have the financial ability to ensure that Danielle is fed nutritious meals, and will be appropriately attired. [55] Similarly, Arleigh and Shirley can meet the physical needs of Danielle. Their home is situate at Middle La Have and is areconstructed school house. Danielle has her own bedroom, which is decorated to suit Danielle’s age and interests. The home is cleanand well maintained.

The paternal grandparents will continue to ensure that Danielle is fed nutritious meals, and is appropriatelydressed. [56] Neither party’s plan is superior as it relates to this factor. [57] Emotional Availability [58] I conclude that Arleigh and Shirley have been emotionally available to Danielle, while Anita has not. I further conclude thatArleigh and Shirley have a stronger capacity to be emotionally available to Danielle in the future, while Anita’s ability is compromised. Anita does not appreciate Danielle’s need for stability and consistent, positive parental contact.

My conclusions are drawn from thefollowing findings: a.Anita failed to appreciate the negative impact that an alternating, two month access arrangement would have on Danielle. Under suchan arrangement, the only contact with the noncustodial parent would be by telephone, mail, or text messaging. Neither Anita, norMathew for that matter, appreciated the emotional toll that such an arrangement would have on Danielle, a vulnerable child, who was notquite three years old. At no time, did Anita seek professional advice as to the appropriateness of such an arrangement.

The parentingschedule caused significant problems for Danielle. She was confused and upset from the lack of stability and structure. I accept theevidence of Arleigh, Shirley, Edward and Heidi Robar, and Scott Brewster which confirmed that Danielle was withdrawn andinappropriate in her relationships with other adults and children. Danielle consistently sought to be hugged and held by adults, even bystrangers. She did not interact with other children and adults in a typical fashion. These reactions are not surprising, given the parentingstructure that had been put into place.

Although my findings on this point are drawn from the evidence presented, I also acknowledge thecases which provide general guidelines about age appropriate parenting plans: Chaisson v. Williams, 2012 NSSC 224, para 16, perMacDonald, J. and Ursic v. Ursic, (On CA), paras 34 and 35, per Laskin J.A.

b.Anita did not have sufficient telephone contact with Danielle when she was living in the Bridgewater area, although Anita did text Mathew several times a week. I find that telephone communication between Anita and Danielle was not as frequent as Danielle required in her circumstances. The amount of telephone contact varied from once every three days, to once every two to three weeks. Anita did not, and does not, appreciate why such limited contact failed to meet the emotional needs of Danielle.

Anita ’ s limited telephone contact was further reduced once Mathew ’ s cell phone was no longer working as of January 2012. From January until March 2012, Anita had absolutely no contact with Danielle. Anita finally phoned Danielle around the end of March 2012. Anita then maintained weekly telephone contact for a while, which she later reduced to one call every two weeks.

At no time did Arleigh or Shirley attempt to restrict telephone contact between Danielle and Anita. c.Anita stated that she “ cut off ” all contact with Danielle, for about two months, because she was “ very upset ” and was “ undergoing a lot of stress. ” Anita was afraid that she might cry, or she might make comments that she would later regret. Anita did not explain why she did not send letters to Danielle during this period.

This is another example of Anita placing her own emotional needs in priority to Danielle ’ s needs. [ 59 ] These are but a few examples of Anita ’ s deficits as they relate to emotional availability. These deficits were not inconsequential or of a passing nature. A primary care parent must be emotionally available to meet the needs of their child. Anita ’ s ability to do so is grievously compromised. [ 60 ] In contrast, Arleigh and Shirley have consistently shown that they are emotionally available to meet Danielle ’ s needs. Arleigh and Shirley did not intend to become primary care parents.

They had already raised their children. They had purchased their dream property, and were renovating their home to suit their semi-retirement plans. They intended to travel the world. Their plans began to erode when Arleigh and Shirley were confronted with the needs of their young granddaughter, and the fact that Danielle ’ s parents were not willing or able to meet her needs. [ 61 ] Arleigh and Shirley tried to address their concerns with Mathew, but with little success. They then contacted child protection authorities in the hope that the situation would improve. This avenue was not fruitful.

In late fall 2011, Arleigh and Shirley ultimately determined that they would seek custody to provide Danielle with the stability and emotional support that she required. Arleigh and Shirley showed insight into Danielle ’ s needs. They have demonstrated that they are committed to, and emotionally available to meet, the ongoing needs of Danielle. Danielle is fortunate to have them in her life. [ 62 ] Relationship Between Child and Caregivers [ 63 ] The evidence confirms that Arleigh and Shirley have a stronger and more stable relationship with Danielle, than does Anita.

I accept the evidence of Arleigh and Shirley, Heidi and Edward Robar, and Scott Brewster. The relationship between Danielle and the paternal grandparents is strong because it is founded on love, emotional availability, structure, routine, and stability. Danielle ’ s relationship with Arleigh and Shirley is characterized by love, affection, genuine interest, and respect. It is a relationship where Danielle has, and will thrive.

Danielle will continue to develop a sense of family, while maintaining a healthy sense of self, because of the nature of her relationship with Arleigh and Shirley. [ 64 ] In contrast, I find that the relationship between Danielle and Anita is not strong and stable. Anita did take Danielle on walks, to outings, movies and barbeques, and visits with friends. Despite these activities, I find that Danielle does not enjoy a strong and healthy bond with Anita.

In so finding, I also discount the conclusions offered by some of the witnesses, including Vanessa Gaudet, Karen Gilmet, Dwayne Pickford, and Megan Stewart. [ 65 ] Vanessa Gaudet ’ s evidence lacked appreciable details. Further, if Ms. Gaudet actually visited Anita four to five times a week from the summer of 2009 to September 2011, she would have met Mathew at some point. Yet, Ms. Gaudet stated that she never met Mathew. During the summer of 2009, Mathew and Anita reconciled and were living in the same home until after Christmas 2009.

Further, from January until August 2010, Mathew lived near the family apartment and visited Danielle and Miguel daily. If Ms. Gaudet was in fact visiting Anita as frequently as she alleges, she would have seen, and interacted, with Mathew on at least some occasions. Ms. Gaudet ’ s evidence must be scrutinized as a result. [ 66 ] Karen Gilmet had limited opportunity to observe Anita parent Danielle because she did not become a “ good ” friend until the

summer of 2011. Danielle was only living with her mother for about two months during this period. [ 67 ] Likewise, Dwayne Pickford, who is Miguel ’ s father, did not have extensive opportunity to observe Anita parent Danielle because he lived in HRM. Mr. Pickford attended Anita ’ s home to pick up and drop off Miguel for access. He was not present for social visits. [ 68 ] Megan Stewart ’ s evidence lacked descriptive details. Ms.

Stewart ’ s recollection was at times clouded by her strong friendship with Anita. [ 69 ] Despite the fact that Anita did engage in activities with Danielle, I nonetheless find that the relationship that Danielle has with Arleigh and Shirley is stronger than the relationship that Danielle has with Anita. Anita ’ s lack of emotional availability, compounded by her lack of contact with Danielle, contribute to this finding. I do not accept Anita ’ s assertion that she was having frequent contact with Danielle while Danielle was living in the Bridgewater area.

If Anita was having as frequent communication as she alleged, and I conclude that she did not, then Anita would have been aware that Danielle was living with her paternal grandparents since July 2011, attending preschool and swimming lessons, and establishing a home life. Danielle was not prohibited from speaking with her mother. Anita knew very little about Danielle ’ s circumstances because Anita did not talk to her daughter.

The relationship between Danielle and her mother did grow because of the lack of meaningful communication. [ 70 ] Primary Care History [ 71 ] When Danielle was first born, Anita was diagnosed with post-partum depression. There is little evidence, other than speculation, to suggest that the post-partum depression negatively affected the relationship between Anita and Danielle. I am not prepared to make such a finding. [ 72 ] Prior to separation, Mathew and Anita were actively involved in Danielle ’ s care.

After the parties separated, Anita assumed the role of primary care giver until the rotating, two month parenting

schedule was put into place in January 2011. Arleigh and Shirley became Danielle ’ s primary care givers when she lived in the Bridgewater area effective July 2011 until mid-August 2011 and then from October 8, 2011 until present. [ 73 ] I further find that Anita knew in September 2011 that the paternal grandparents had been providing primary care to Danielle by virtue of the telephone conversation which Shirley had with Anita.

Anita would have known that Danielle was attending preschool and swimming had Anita kept in regular contact with Danielle in the fall and winter of 2011. [ 74 ] I also find that Anita did very little to regain her status as primary care parent when confronted with the knowledge that the loose parenting arrangement was unravelling. The two month rotating access

schedule would have resulted in Danielle spending Christmas 2011 with Anita. By December 18, Anita was aware that Mathew would not be returning Danielle. Although Anita contemplated legal action, she did not file a court application. Nor did Anita file a court application after she lost all phone contact with Mathew in January 2012. Anita only filed a court application for Danielle ’ s return after she received the letter from Arleigh and Shirley in mid-January 2012.

Further, Anita requested two adjournments which resulted in further delays in the hearing of the application. [ 75 ] As a result, I find that the primary care history favors Arleigh and Shirley. [ 76 ] Educational Needs [ 77 ] All parties appear to be capable of meeting Danielle ’ s educational needs. [ 78 ] Social, Cultural, and Recreational Needs

[ 79 ] All parties appear to be capable of meeting Danielle ’ s social, cultural, and recreational needs. [ 80 ] Spiritual and Moral Development [ 81 ] The plans of the parties are quite similar. All recognize the importance of moral development, although none of the parties plan to adopt a particular religious philosophy, but all are open to supporting Danielle ’ s wish to do so. Neither party presented a plan that was superior to the other. [ 82 ] Maximum Contact Principle [ 83 ] Generally, children benefit from maximum contact with their parents.

The maximum contact principle is always subject to the child ’ s best interests. [ 84 ] Anita states that she will respect the maximum contact principle as it relates to Mathew. She also notes that the paternal grandparents can visit Danielle when Danielle is scheduled to be with Mathew. [ 85 ] Arleigh and Shirley seek a sole custody order so that they will be in a position to direct the healthy development of Danielle. They strongly oppose the alternating, two month access

schedule developed by Mathew and Anita because of its negative impact on Danielle. I agree. Arleigh and Shirley propose that they retain a psychologist to assist with the re-establishment of the relationship between Danielle and Anita. The transition must ensure that Danielle does not experience instability or fear of abandonment. I agree. [ 86 ] Danielle was subject to significant instability after her parents permanently separated in August 2010. This instability resulted in Danielle experiencing emotional difficulties.

Danielle must understand that her home is with her paternal grandparents, and that she will be visiting not only her father, but also her mother. Access must be age appropriate, and based upon Danielle ’ s sense of time, and Danielle ’ s needs. The court ordered parenting plan will take these various values and considerations into play. [ 87 ] Maximum contact includes a willingness to follow court ordered access and to share information.

The court finds that Arleigh and Shirley will respect and follow the court order, and will have no difficulty sharing information about Danielle with Anita and Mathew as directed in the court order. [ 88 ] Family Connections and Supports [ 89 ] The parties presented valid plans for the continued involvement of family and friends in Danielle ’ s life. Because of the distance between the Bridgewater area and Cape Breton, it is impossible for Danielle to have frequent contact with all family members.

Nonetheless, I find that Shirley and Arleigh will cooperate to ensure that Danielle is given meaningful opportunities to continue her relationship with Miguel, and her new sibling to be born this year to Anita and her boyfriend. [ 90 ] The paternal grandparents have ensured that Danielle spent time with her maternal aunt in HRM during Christmas, and are supportive of Danielle having contact with Miguel when he is in HRM, either visiting his father or his maternal aunt.

In addition, Shirley and Arleigh are committed to travelling to Cape Breton, on a monthly basis, to ensure ongoing contact with Anita and Danielle ’ s siblings. [ 91 ] Under the plan of the paternal grandparents, Danielle will continue to maintain regular contact with Mathew. Mathew and Danielle have a strong bond.

Further, Danielle will continue to have the support of the extended paternal family who live in HRM and the Bridgewater area, including Edward and Heidi Robar and their children; Jason and his children; and many other family and friends. [ 92 ] Anita notes that Danielle enjoys a close relationship with her brother, Miguel, and that this relationship should be maintained. I agree. Anita also notes the support of family and friends, including her new boyfriend.

[ 93 ] Anita and the paternal grandparents have provided plans that will continue the involvement of family, extended family, and friends. Danielle is fortunate to have so much support. [ 94 ] Assistance of Experts [ 95 ] I find that the paternal grandparents ’ plan is superior to Anita ’ s plan in relation to the assistance of experts. Arleigh and Shirley have sought medical and dental assistance for Danielle in the past. They also want to engage a psychologist to ensure a smooth transition as the relationship between Danielle and Anita is normalized.

Arleigh and Shirley are willing to accept the assistance of experts, and also recognize when such assistance is appropriate. [ 96 ] Anita, unfortunately, does not have the same level of insight. For example, Anita did not even think that professional advice should be sought before a two month access rotation was implemented. Danielle will likely receive more professional assistance in the custody of Arleigh and Shirley. [ 97 ] Role Model [ 98 ] Arleigh and Shirley are better role models than is Anita because they established a consistent, stable, nurturing environment for Danielle.

Danielle ’ s safe haven is with Arleigh and Shirley. [ 99 ] While living with Arleigh and Shirley, Danielle will be exposed to many positive role models who include not only the paternal grandparents, but their extended family and friends who support, encourage, and are involved in Danielle ’ s life. [ 100 ] Anita did not provide Danielle with a stable home life and thus is not an effective role model. [ 101 ] Discipline [ 102 ] All parties are capable of ensuring proper discipline in a manner that is safe and free from violence. [ 103 ] Violence [ 104 ] I have no evidence to suggest that either home is violent.

Anita, Arleigh and Shirley seem to appreciate that violence has absolutely no role in any family relationship. [ 105 ] Wishes of Danielle [ 106 ] I have no direct evidence as to Danielle ’ s wishes. [ 107 ] Primary Care Parent

Summary [ 108 ] I have determined that it is in Danielle ’ s best interests to be placed in the sole custody of Arleigh and Shirley. In so doing, I have given serious consideration to Anita ’ s claim. This claim had to be set aside because priority was assigned to Danielle ’ s best interests. Danielle ’ s immediate and long term development will be best met under the loving care and direction of Arleigh and Shirley.

[ 109 ] Arleigh and Shirley will ensure that Danielle is given a loving, happy, stable and nurturing home life. Under their guidance, Danielle will have the emotional, educational, moral, and social support that she requires to develop into an independent, productive, and well-adjusted adult. [ 110 ] I have determined that an order for sole custody is in Danielle ’ s best interests.

I do not grant an order for joint custody for the following reasons: a.No party suggested that a joint custody order should issue between the paternal grandparents and Anita; b.Anita has not been emotionally available to Danielle in the past. Anita lacks insight into Danielle ’ s needs. Anita has not been consistent in her communication with Danielle. As such, Anita ’ s input will not necessarily reflect Danielle ’ s best interests; and c.Arleigh and Shirley must make decisions concerning Danielle. Anita has not demonstrated an ability to respond quickly, or at all, when she is upset or stressed.

Joint consultation will be problematic is such circumstances. [ 111 ] The following parenting provisions will therefore be adopted: a.Danielle Jordan Robar, born May 31, 2008, shall be placed in the sole custody of Arleigh Robar and Shirley Lantz. b.Arleigh Robar or Shirley Lantz shall keep Mathew Robar and Anita Boutilier-Robar informed of all important matters affecting the health, education, social, recreational, cultural, and moral development of Danielle.

Such communication will include copies of all report cards, and information on any organized sporting or recreational activity in which Danielle is enrolled. The information will be provided on a regular basis through email communication once Anita Boutilier-Robar and Mathew Robar supply their email addresses to Arleigh Robar or Shirley Lantz.

Information will be communicated every two weeks. c.Anita Boutilier-Robar and Mathew Robar may contact Arleigh Robar or Shirley Lantz at reasonable times to obtain additional information concerning the health, education, social, recreational, cultural, and moral needs of Danielle. d.Anita Boutilier-Robar and Mathew Robar have the right to access third party information concerning Danielle from all professionals involved in Danielle ’ s care, including educators, medical professionals, coaches, and without the prior consent of Arleigh Robar or Shirley Lantz.

Arleigh Robar or Shirley Lantz shall advise Anita Boutilier-Robar and Mathew Robar of the names, addresses, and telephone numbers of all professionals involved in Danielle ’ s care. Such communication shall be sent via email once Anita Boutilier- Robar and Mathew Robar supply Arleigh Robar or Shirley Lantz with their email addresses. [ 112 ] What access arrangements are in Danielle ’ s best interests? [ 113 ] The access arrangements must meet Danielle ’ s unique needs.

The following access arrangements are found to be in Danielle ’ s best interests and shall be adopted in the court order to be prepared by counsel for Arleigh and Shirley: a.Mathew Robar will exercise reasonable access to Danielle at reasonable times, upon reasonable notice to Arleigh Robar or Shirley Lantz, which access will include regular telephone contact.

b.Anita Boutilier-Robar will exercise reasonable access to Danielle at reasonable times, upon reasonable notice to Arleigh Robar or Shirley Lantz, which will include telephone access, but subject to the following terms and conditions: i)Anita Boutilier-Robar is to have regular and consistent telephone contact with Danielle; ii)Physical access between Danielle and Anita Boutilier-Robar will be transitioned and subject to review. Access will begin once Anita Boutilier-Robar has participated in discussions with the psychologist to be engaged by Arleigh Robar or Shirley Lantz no later than September 7, 2012.

Access will occur one weekend a month, at times to be coordinated between Anita Boutilier-Robar and Arleigh Robar or Shirley Lantz. Arleigh Robar or Shirley Lantz will be responsible for transporting Danielle to Cape Breton for access. Weekend access will occur from Friday to Sunday, during the days, until the relationship between Anita Boutilier-Robar and Danielle has been re-established. Day access will be for approximately three hours on Friday, six hours on Saturday, and three hours on Sunday. This

schedule will be reviewed in January 2013 at a date to be scheduled by the parties. One half day will be obtained, and the parties will file affidavit evidence no later than ten days before the hearing. iii)Arleigh Robar or Shirley Lantz will arrange visits between Danielle and her brother, Miguel, when Miguel is in the HRM.

Danielle will also have reasonable telephone contact with Miguel. [ 114 ] Conclusion [ 115 ] Danielle is placed in the sole custody of Arleigh and Shirley because such an order is in Danielle ’ s best interests based upon the love, stability, structure, and security that they have provided, and will continue to provide to Danielle. Anita ’ s parental claim has not been lightly set aside, and has been given serious consideration. Access between Anita and Danielle will be transitioned and subject to review in January, 2013. [ 116 ] Mr. Gardiner is to draft the order and circulate it amongst counsel.

If there is any contest as to form, counsel are to contact my assistant to arrange for a brief chambers appearance. [ 117 ] If any party wishes to be heard on the issue of costs, submissions should be filed by August 30. Given the financial circumstances of the parties, and the issues at play, I suggest that a cost award may not be appropriate, subject to the submissions of counsel. Forgeron, J.