Lagace v. Mannett, 2012 NSSC 320

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Lagace v. Mannett, 2012 NSSC 320 Date: 20120829 Docket: 1201-062738; SFHD-059212 Registry: Halifax Between: Matthew Howard Lagace Applicant v. Tammy Anne Mannett Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard: August 28, 2012

Summary: Father successfully applied to vary parenting so that son would live with him. Both parents unsuccessfully applied for retroactive child support. Mother’s access and child support payments determined. Key words: Family, Divorce Act , variation of child custody, access, retroactive child support, child support Legislation: Civil Procedure Rule 5.13 Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3, subsection 16(9), subsection 16(1)),

section 17 Federal Child Support Guidelines , SOR/97-175, clause 3(1)(a), clause 7(1)(a),

Schedule III THIS INFORMATION SHEET DOESN’T 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: Lagace v. Mannett, 2012 NSSC 320 Date: 20120829 Docket: 1201-062738; SFHD-059212 Registry: Halifax Between: Matthew Howard Lagace Applicant v. Tammy Anne Mannett Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard : August 28, 2012 Counsel: Lindsay McFadden for Mathew Lagace Lydia Billingsley for Tammy Mannett

By the Court: Introduction [1] In June 2011, Matthew Lagace applied to vary the parenting provisions of the December 2008 Corollary Relief Judgment grantedin his divorce from Tammy Mannett. Mr. Lagace and Ms. Mannett are the parents of twelve year old Logan. In terms of financialmatters, if he becomes Logan’s custodial parent, Mr. Lagace seeks child support. Both parents claim child support on a retroactive basis. [2] Logan’s parents separated when he was two years old.

Since the earliest parenting order was granted in May 2003, pursuant tothe Maintenance and Custody Act, R.S.N.S. 1989, c. 160, Logan has been in his mother’s primary care. His contact with his father hasbeen stable: Logan sees his father every Wednesday afternoon, from 4 p.m. until 8 p.m., and on alternate weekends from Friday at 5 p.m.until Sunday at 5 p.m.. Throughout, Logan’s parents have had joint custody of him. Applying to vary a parenting order The statutory context [3]

Section 17 of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, governs variation applications. Subsection 17(5) requires thatbefore I vary a custody order, I must be satisfied that there’s been a change in the condition, means, needs or other circumstances of thechild which has occurred since the date of the order being varied. In making any variation to custody, I’m to consider only the bestinterests of the child as determined by reference to that change. [4] Subsection 17(6) instructs me not to consider any conduct that couldn’t be considered in making the order that I’m asked to vary.

This is, in part, a reference to subsection 16(9) of the Divorce Act which admonishes me not to consider “the past conduct of any personunless the conduct is relevant to the ability of that person to act as a parent”. Much has been made of Ms. Mannett’s past circumstances. My concern is not her past circumstances, but her ability to act as a parent. [5] In an application to vary a parenting order, I’m governed by Gordon v. Goertz, (S.C.C.). At paragraph 10 ofthe majority reasons in Gordon v.

Goertz, (S.C.C.), then-Justice McLachlin instructs me that before I can consider themerits of a variation application, I must be satisfied there has been a material change in the child’s circumstances that has occurred sincethe last custody order was made. [6] At paragraph 13, Justice McLachlin was more specific in identifying the three requirements that must be satisfied before I canconsider an application to vary a parenting order.

The requirements are: 1. there must be a change in the condition, means, needs or circumstances of the child or the ability of the parents to meet the child’sneeds; 2. the change must materially affect the child; and 3. the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. [7] Material change is more than a threshold to be crossed before varying a parenting order. All parenting applications, includingvariation applications, are determined on the basis of the child’s best interests.

Initially proving that there has been a material changeestablishes that the current order is no longer in the child’s best interests and must be changed to do so. Identifying the change which hasoccurred informs how the new order should be formulated to reflect the child’s best interests in the new circumstances. The burden of proof [8] Mr. Lagace bears burden of proving a material change has occurred because he seeks to vary the parenting order. This burdenwas described in F.H. v.

McDougall, 2008 SCC 53, where Justice Rothstein wrote, at paragraph 49: I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, thetrial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged eventoccurred. [emphasis added] [9] Not every change is a material one: the change must be one which materially affects the child or a parent’s ability to meet thechild’s needs.

Has there been a material change in circumstances? [10] In his first affidavit, the evidentiary basis for Mr. Lagace’s claim is set forth as: a. Logan has attended seven different daycares or schools and lived at five different addresses since June 2002; b. Mr. Lagace’s report that Logan’s been asking questions about living with his father and step-mother; c. Mr. Lagace’s report that Logan stated, two weeks earlier, that he now wanted to live with father and step-mother;

d. Mr. Lagace’s report of remarks from Colleen Latta, Joanne Mannett and Kathleen (no surname was provided) regarding an incidenton June 11 (the incident isn’t described); e. Mr. Lagace’s report that Joanne Mannett said she witnessed Tammy Mannett and her then-boyfriend enter a “known drug house”and Joanne Mannett’s description of their physical appearance; f. Mr. Lagace’s report of what Joanne Mannett said Tammy Mannett told her in answer to a question about Logan’s whereabouts; g. Mr. Lagace’s report of Logan’s question about “snorting” his allergy medication and Logan’s explanation for this question; h. Mr.

Lagace’s report of Logan’s description of his mother’s sleeping habits; i. Mr. Lagace’s report of Logan’s description of who attends the home; and j. Mr. Lagace’s report of Logan’s description of how he thinks about talking to his mom. [11] With the exception of the information relating to Logan’s daycares, schools and homes, the evidentiary basis for Mr. Lagace’sclaim contained in this affidavit is hearsay. In a later affidavit, Mr. Lagace tells me that Joanne Mannett has recanted her statements. [12] None of the women whose comments Mr.

Lagace repeats, testified and no reason was offered for why they did not to support aclaim that the hearsay was necessary. There was no evidence to support the reliability of the remarks attributed to the women. [13] Civil Procedure Rule 5.13 makes clear that the rules about hearsay apply to applications. The hearsay evidence of commentsfrom Colleen Latta, Joanne Mannett and Kathleen is not admissible. [14] Hearsay is admissible in limited circumstances. The admissibility of these remarks is determined after applying the analysis inR. v. Khan (S.C.C.). [15] In

summary, then-Justice McLachlin (who wrote the decision on behalf of the unanimous court) said that there were tworequirements for the admission of hearsay repetition of a child's statement: necessity and reliability. Necessity refers to whether it isreasonably necessary to admit the hearsay statement. The inadmissibility of the child’s evidence may be one basis for determining thereis necessity. Reliability refers to relevant considerations including the timing of the statement; the child’s demeanour, personality,intelligence and understanding; the absence of any reason to expect fabrication of the statement.

There’s no strict list and there is noarea of evidence that should always be regarded as inherently reliable. [16] With regard to the first requirement of necessity, there’s been no determination that Logan’s evidence wouldn’t be admissibleand, as a result, that hearsay is necessary to put his comments before me. In this case, the issue of necessity hasn’t been addressed atall. Reliability requires a “circumstantial guarantee of trustworthiness” around the statement before the statement may be admitted intoevidence. Chief Justice Lamer explained reliability in R. v.

Smith (SCC) at paragraph 31 where he said that the word“guarantee” when “used in the phrase ‘circumstantial guarantee of trustworthiness’ does not require the reliability by established withabsolute certainty.” Instead, if the circumstances don’t create the concerns that are usually associated with hearsay evidence, theevidence should be admissible, even though cross-examination isn’t possible. [17] In R. v. Khan (S.C.C.), the Supreme Court of Canada identified different matters I can consider in deciding ifthere is a circumstantial guarantee of trustworthiness.

These include matters such as: the timing of the statement; Logan’s demeanour,his personality, his intelligence and his understanding; and the absence of any reason to expect fabrication of the statement. There’s noabsolute list of circumstances to be considered in determining reliability. [18] Here, I’ve been offered no evidence about Logan’s intelligence or personality, his demeanor in making the alleged statements,whether there’s reason (or not) for him to fabricate comments: there’s nothing that can assist me in determining whether there’s acircumstantial guarantee of trustworthiness.

I’ve been told virtually nothing about the situations in which Logan is said to have made theremarks attributed to him. [19] In the absence of anything to satisfy me that the hearsay is either necessary or reliable (and I am to be satisfied of both if it is tobe admitted), I do not admit it. This means that there’s little evidence in Mr.

Lagace’s initial affidavit to support the occurrence of amaterial change. [20] There is the issue of Logan’s changed residences and daycares or schools, but it isn’t clear from this affidavit how many of thosechanges occurred after December 2008 when the Corollary Relief Judgment was granted. It’s obvious that Logan had started school bythe time his parents divorced, so the changes in his daycare arrangements pre-date the order that Mr. Lagace is seeking to vary.

Itappears that changes in Logan’s home and school are not a new circumstance, but continuation of a trend that existed throughout theparents’ separation. [21] Mr. Lagace filed a second affidavit in April 2012. In it, Mr. Lagace was more specific about the changes to Logan’s home,daycare and school. According to this affidavit, Logan lived in four different homes prior to Corollary Relief Judgment being issued andhe attended three different daycares. Mr. Lagace details further changes of home and school since the Corollary Relief Judgment wasgranted and argues that this transience is a change in circumstances.

I disagree: Logan lived a peripatetic lifestyle before the CorollaryRelief Judgment was granted and this lifestyle existed throughout the course of earlier court orders.

[ 22 ] Mr. Lagace alleges other changes in his second affidavit: a. Ms. Mannett has had several different jobs since 2002; b. Ms. Mannett has had “several live in boyfriends” since 2002; c. Mr. Lagace claims that Ms. Mannett has “had several pets come and go since 2002”; and d. Mr. Lagace offers hearsay evidence from Kathleen Shields, Joanne Mannett and Courtney Maloney, a social worker at the Department of Community Services. [ 23 ] With regard to Ms. Mannett’s employment, Mr. Lagace hasn’t identified what change has occurred since the Corollary Relief Judgment was granted in December 2002.

It isn’t clear how changes to her employment would be material to Logan or her ability to meet Logan’s needs. [ 24 ] Mr. Lagace’s comments about Ms. Mannett’s boyfriends don’t constitute a material change that has occurred since the date of the order he seeks to vary. While he’s provided first names for different men, he’s said they lived at addresses where Ms. Mannett lived prior to the divorce. He names only one man, Brent Smith, who moved in with Ms. Mannett in 2006 (prior to the Corollary Relief Judgment) and who continued to live in her home until the spring of 2012. Ms.

Mannett’s “several live in boyfriends” pre-date the Corollary Relief Judgment. [ 25 ] With regard to pets, Mr. Lagace complains that Ms. Mannett adopts or buys pets and, after a short period, she gives them away which “causes devastation” to Logan. Again, there’s no evidence to show that this is something which has occurred since the parents were divorced. The evidence suggests that there are no pets in her home at present and that there have been no pets there since the Corollary Relief Judgment was granted.

The most recent pet-related event related to me occurred in 2006 - 2007, prior to the date of the Corollary Relief Judgment. [ 26 ] Lastly, Mr. Lagace has not offered any reason to admit the hearsay remarks attributed to Kathleen Shields or Joanne Mannett. Courtney Maloney was a witness. Ms. Maloney didn’t acknowledge comments which Mr. Lagace attributed to her in his affidavit. It is a matter of Mr. Lagace’s personal knowledge that Ms. Mannett called him and asked him to take Logan early for an access visit. Ms.

Mannett’s explanation for this request wasn’t consistent with any requirement by the Department of Community Services that Logan must go to his father’s home following a violent fight in her home. Ms. Mannett didn’t tell Mr. Lagace that Logan spent the night at shelter. This evidence is admissible. [ 27 ] Mr. Lagace’s second affidavit goes on to report further hearsay from Logan which is inadmissible for the same reason I’ve noted in paragraphs 14 to 19, above. In fact some of the hearsay evidence is simply a repetition of information in Mr. Lagace’s first affidavit. I note that quotations in Mr.

Lagace’s second affidavit that are attributed to Logan are not identical to quotations attributed to Logan in Mr. Lagace’s initial affidavit. [ 28 ] In 2009, Ms. Mannett contemplated a move to Alberta. In the absence of a full hearing, she moved on a temporary basis for approximately two months and her custody was suspended: Logan remained in Nova Scotia with his father. When Ms. Mannett returned to Nova Scotia, Logan was returned to her. [ 29 ] In the summer of 2011, Mr. Lagace brought an emergency application for Logan’s custody and reported to the Department of Community Services that Ms.

Mannett had been arrested for public drunkenness. Ultimately, he cancelled the emergency application without any change to Logan’s parenting arrangement and it is only now that the matter is being addressed. [ 30 ] Mr. Lagace argues that Ms. Mannett is unstable and he puts himself forth as the stable parent. A comparison of the parents’ stability isn’t the issue at this point. At this juncture, the issue is whether there’s a material change constituted by Ms.

Mannett’s changes in employment and housing. [ 31 ] In December 2011, the Supreme Court of Canada released two decisions relating to spousal support variation applications: L.M.P. v. L.S . , 2011 SCC 64 and R.P. v. R.C . , 2011 SCC 65 . While those were applications to vary spousal support, the decisions are pertinent, especially the decision in R.P. v. R.C . , 2011 SCC 65. In the majority reasons in that case, authored by Justices Abella and Rothstein (with whom Justice Binnie, LeBel and Deschamps concurred), the court identified “crucial evidentiary gaps”.

One of these evidentiary gaps was fatal to the variation application. In R.P. v. R.C . , 2011 SCC 65 there was no evidence about the former husband’s ability to pay spousal support when the order sought to be varied was granted. Without this evidence it was impossible to prove his ability to pay had materially changed. In determining whether there’s been a material change one must know the circumstances at the point from which the change is measured. Here, in many regards, Mr. Lagace has alleged there have been material changes since 2008, but he has not provided evidence of the circumstances in 2008.

In some circumstances, the changes he has alleged are actually a continuation of circumstances which existed in 2008 and before. [ 32 ] Mr. Lagace says that he was unaware Ms. Mannett was engaged in at least one drug purchase and had a violent altercation with her cohabiting partner in 2005. These events are alleged to have occurred well before the parties’ divorce. Mr. Lagace says this is a material change because he only became aware of this information recently. This information isn’t personally known to Mr. Lagace. It’s not personally known to Ms.

Maloney: it was reported in the Department of Community Services case recordings. Ms. Mannett denies she was involved in a drug purchase, but she does admit that her partner assaulted her. [ 33 ] There was a physical fight between Ms. Mannett’s former partner, Brent Smith, and his son at Ms. Mannett’s home in March

2012. This resulted in Ms. Mannett and Logan leaving the home and going to a shelter where she and Logan remained overnight. Thepolice were called and they, in turn, reported the matter to the Department of Community Services which became involved to extent ofensuring that Logan was removed from Ms. Mannett’s home. [34] Ms. Mannett’s circumstances are not ideal. However, unless these circumstances have changed, I lack jurisdiction to vary theorder. I have jurisdiction to vary the order only if there has been a material change. [35] There are “evidentiary gaps” in much of the evidence Mr.

Lagace has offered because he’s failed either to prove the situationwhich existed at the time of the order that he seeks to vary or to offer admissible evidence of the current situation. [36] I’m required to scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged eventoccurred. Once the inadmissible evidence is stripped away, the volume of evidence Mr. Lagace offers is considerably reduced. [37] I am left with evidence that the police were called to Ms. Mannett’s home in 2005 as the result of a physical fight where herpartner struck her.

I have evidence that she was arrested for public drunkenness in 2011. I have evidence that her partner allowedunsavoury individuals into their home, that he and his son were involved in a physical fight that Logan heard (but didn’t see), and thatsomeone was arrested at her address. [38] From this, it’s clear that as a result of her personal relationships, Ms. Mannett has, on multiple occasions, exposed Logan tounsafe circumstances.

I accept that this is a material change which affects her ability to meet Logan’s needs. [39] I’ve spent considerable time in these reasons identifying exactly what the material change is. I’ve done this for a number ofreasons. First, I want to be clear in identifying what the material change is and what it is not. Second, since the variation order mustaddress what is best for Logan in the changed circumstances, I need to be specific about the change that I’m addressing. What variation should be made to the current order? [40] Each parent wants Logan to have his principal residence with him or her.

While evidence wasn’t specifically structured toaddress the factors listed at paragraph 16 in Foley, (NS S.C.), it can be reviewed in that fashion. [41] Logan will be thirteen years old in a few months. He’s entering grade seven this September. He’s active in bowling and ridinghis scooter. He is very attached to his mother, who has been his primary residential parent since he was two. He’s changed homes,daycares and schools frequently with no apparent ill-effect. I want to be particularly clear about this to Mr.

Lagace: there’s no evidencethat Logan has any difficulties arising from his mother’s general lifestyle. Her multiple moves have not been shown to have resulted inpoor school attendance, poor academic performance, exacerbation of his asthma. To the extent that Logan functions well at school, withhis friends and in his extra-curricular activities, this has a very great deal to do with his mother’s efforts as his primary care-giver. [42] That said, the two circumstances – Ms.

Mannett’s arrest for public drunkenness and her failure to keep undesirable individualsand events out of Logan’s home – are sufficiently serious that they must be addressed. Logan is put in harm’s way when dangerousindividuals and events are in his home. Statutory direction [43] In Foley, (NS S.C.), Justice Goodfellow noted that the governing legislation may contain directions for mydecision-making.

The directions in the Divorce Act, are found in subsections 16(9) and 16(10) which require that past conduct as it iswhere it is relevant to parenting ability, a child should have as much contact with each parent as is consistent with the child’s bestinterests, and the willingness of each parent to facilitate contact should be considered. [44] The past conduct that Mr. Lagace describes (transience, multiple jobs, multiple partners) hasn’t been shown to affect Ms.Mannett’s ability to parent.

Despite the various changes in her circumstances, there are no concerns voiced that Logan’s done poorly atschool or in his activities, that he lacks friends, is isolated or his health has been compromised. [45] The conduct that’s been accepted as a material change is relevant to Ms. Mannett’s ability to parent: it appears that in choosingher partners she doesn’t consider the impact of their lifestyle, whether she adopts it or not, on Logan’s safety. There has been physicalviolence in her home. She has been the victim of it. Logan has been exposed to it.

The police have made an arrest at her home. [46] The Divorce Act speaks of past conduct that is relevant to present parenting ability. In this regard I consider the past incident ofdomestic violence in Ms. Mannett’s home. This occurred at the time when Mr. Lagace alleges Ms. Mannett was attempting to purchaseillegal drugs for her partner. She denies buying drugs, but she does not deny the violence and the police involvement. [47] The statutory direction regarding contact between parents and a child is that there should be as much contact as is in the child’sbest interests.

This and the issue of facilitating contact will be addressed later. Physical environment

[ 48 ] Mr. Lagace lives in Timberlea in a three bedroom home where Logan has his own room. Logan has friends in this neighbourhood which has recreation facilities. It’s close to the bus he’d take to school. Mr. Lagace has said this is a stable residence, however the history provided in his affidavit is unclear. He says that when the Corollary Relief Judgment was granted, he was living with his girlfriend in her apartment where they lived for eight months. From there, they moved to an apartment in Highfield Park where he says they lived for three years.

He says he bought a home in Timberlea in September 2006 and has lived there. [ 49 ] Ms. Mannett lives in Halifax, approximately five minutes away from the school she proposes Logan will attend. Her home is a rented portion of a house. I have no other information with regard to it. This is a new home for her. [ 50 ] Neither parent complains about the other parent’s home. Health needs [ 51 ] Both parents are capable of dealing with Logan’s health care, though each complains the other hasn’t been vigilant in sharing information about Logan’s health or medical care.

Discipline [ 52 ] Neither parent provided me with information about Logan’s discipline. I have no evidence that he’s required discipline at home, school or in any of his extra-curricular activities. Role model [ 53 ] This is where the bulk of Mr. Lagace’s evidence falls. All the hearsay he’s gathered and reports suggest that Ms. Mannett is a bad mother. The admissible evidence and that which I’ve identified as a material change relate to Ms. Mannett’s ability to provide a positive role model. Mr. Lagace describes himself as the stable parent. His years of stable employment have recently come to an end.

It’s clear that Ms. Mannett’s circumstances are less stable than Mr. Lagace’s. Mr. Lagace’s personal relationship is more stable and a more appropriate model for Logan. Wishes of the child [ 54 ] There’s been no formal investigation of Logan’s wishes. I have hearsay reports from various sources which don’t speak to Logan’s desires in this particular situation. A formal child’s wish assessment might have been helpful in this case, but one hasn’t been done.

Assistance of experts [ 55 ] I don’t interpret Justice Goodfellow’s reference to “experts” as meaning someone who is qualified in the course of litigation to provide expert testimony. I interpret this to mean those individuals outside of the family who might have assisted family, such as social workers. [ 56 ] I heard evidence from Courtney Maloney, who’s worked at the Department of Community Services for five years. She says that Logan’s very attached to his mother. Each parent’s time availability

[ 57 ] Since this application began, each parent has begun new employment. Mr. Lagace no longer works any night shifts and Ms. Mannett’s hours have been reduced by twenty-two hours during each four week period. She no longer works overnight. As a result, each parent’s availability has improved. Cultural development [ 58 ] I have no evidence that cultural development is a particular concern with regard to Logan. Physical and character development [ 59 ] Logan’s involved in any formal extracurricular activities such as bowling and football. His bowling is an activity that he undertakes with his father. Taking

part in organized activities contributes to Logan’s character development. Both parents are capable of meeting Logan’s physical and health needs. Development of self esteem and confidence [ 60 ] There was no specific evidence with regard to this issue. [ 61 ] Neither parent diminished the love the other has for Logan in their testimony. Obviously, the unconditional love each has for Logan is an integral element of Logan’s self-esteem and his self-confidence. [ 62 ] To the extent that the parents do not co-operate, they challenge Logan’s development.

Each parent needs to know what is happening with Logan so that he or she can meet his needs. Each parent’s failure to communicate with the other undermines the support Logan gets from the other parent. Financial contribution [ 63 ] Each parent argues that the other has failed to live up to his or her obligation to support Logan financially. It’s clear that Ms. Mannett hasn’t paid any child support to Mr. Lagace since Logan went to his father’s home in March 2012. [ 64 ] Mr.

Lagace doesn’t deny that, at various times, he hasn’t paid child support and that he’s underpaid his child support since 2009. [ 65 ] The Corollary Relief Judgment obliged Mr. Lagace to pay monthly child support in the total amount of $441.50. This amount was based on Mr. Lagace’s annual income of $32,675.00 and was comprised of the payment of $336.00 pursuant to clause 3(1)(

a) of the Guidelines and the payment of $105.50 for childcare expenses, pursuant to clause 7(1)(

a) of the Guidelines. [ 66 ] Mr. Lagace’s 2009 tax

summary showed him to have a total income of $51,360.00 in that year. His 2010 tax

summary showed a total income of $41,739.00. I’ve adjusted the figures shown on his 2009 and 2010 income tax documents to deduct his union dues as required by

Schedule III of the Federal Child Support Guidelines . His 2011 tax

summary showed his total income to be $46,468.00. I have no information about union dues for 2011, so I may have overstated his income somewhat for 2011. [ 67 ] Based on annual income of $51,360.00, the monthly child support payment pursuant to clause 3(1)(

a) of the Guidelines is $447.00. In other words, Mr. Lagace’s total monthly child support payments in 2009 were less than the amount he owed, based on his income, pursuant only to clause 3(1)(

a) of the Guidelines . In 2010 and 2011, the difference was less dramatic but it is clear that he still underpaid his clause 3(1)(

a) obligation and, likely, contributed to Logan’s childcare expenses in an amount that was disproportionate to his income. Mr. Lagace was ordered to provide annual disclosure of his tax materials to Ms. Mannett. He didn’t do so and he didn’t take steps to adjust his child support when his income increased. [ 68 ] Mr. Lagace has financed Logan’s bowling. The bowling cost generally doesn’t exceed the Canada Child Fitness Tax Credit available to offset it. Sonya Lagace (Mr. Lagace’s wife) has provided health insurance coverage for Logan.

This cost hasn’t been identified for me: there’s a figure shown on the insurance form, but I haven’t been told whether that’s an additional amount beyond what is paid to cover Mr. and Ms. Lagace or if, in fact, there is any additional cost to covering Logan. Extended family support

[69] There is no evidence of any particular support offered by either parent’s extended family. Mr. Lagace’s wife has been supportiveby caring for Logan while Mr. Lagace worked at his previous employment. Facilitating contact [70] Generally, Logan’s had a regular pattern of access since his parents separated. The Corollary Relief Judgment incorporates theterms of a 2003 order under the Maintenance and Custody Act. [71] Since March 2012, Logan’s lived at his father’s. There’s been no order in place governing access. Mr. Lagace says that he’sfacilitated access.

However, he hasn’t allowed Logan to spend time with his mother overnight and, notably, he hasn’t allowed Logan anyface-to-face contact with his mother for the three weeks immediately preceding this hearing. I am shocked that a person would testifythat he’s facilitated access and admit that he’d taken no steps to ensure that there was access during the previous three weeks. Mr.Lagace explains this by saying that Ms. Mannett “didn’t call”. Mr. Lagace has a car while Ms. Mannett does not. Mr. Lagace livesoutside the city. Logan lives with Mr. Lagace. Mr. Lagace controls Logan’s activities, such as attending camps.

Facilitating contact isall about furthering access, not responding only when requests are made. Mr. Lagace has not facilitated contact. [72] Unilaterally, Mr. Lagace has limited Logan’s phone contact with Ms. Mannett so that it can’t occur after 6:30 p.m., though Mr.Lagace says Logan doesn’t go to bed until 9:00 or 9:30. [73] Early in August, Ms. Mannett refused to return Logan at the end of a visit over the holiday weekend. She says that Loganwanted to stay and notice was given to Mr. Lagace that Logan would be staying. Of course, this violated Mr. Lagace’s rule that Logannot stay with his mother overnight.

I can appreciate Ms. Mannett’s frustration with Mr. Lagace’s restrictions. However her actionsplaced Logan in the middle of her disagreement with Mr. Lagace and resulted in calls to law enforcement officials to attempt to resolvethe dispute. Between the parents, Ms. Mannett is preferred for her access facilitation. Long range plan [74] There was little comment about long term plans for Logan. To the extent there was any, it focused on which school Loganwould be able to attend based on his residence. Financial consequences [75] Here, there is an accompanying application for child support for Logan.

Overall it appears that, between two parents, Mr.Lagace was not making financial provision for Logan that was commensurate with his means. Even if parents don’t like existingparenting arrangement, that is absolutely no reason for either parent to deprive Logan of the benefits of his or her income. In the contextof Willick (S.C.C.), and Richardson (S.C.C.), the Supreme Court of Canada noted four core principlesof child support.

The four principles are that: 1. child support is the right of the child; 2. the right to be supported survives breakdown of relationship between the adults; 3. as much as possible, child support should provide the child with the same standard of living the child experienced when theparents were together; and 4. child support will vary, depending on the income of the paying parent. The obligation to support one’s child doesn’t exist only where the parent is happy with the custodial arrangements. Between theseparents, Mr. Lagace’s failure to live up to his financial obligation is a greater shortcoming.

Conclusion with regard to parenting [ 76 ] I have considered all of this evidence and appreciate that in crafting a parenting order, I’m to consider the change which has occurred so the new order can reflect the changed circumstances. [ 77 ] First, a discrete order shall be prepared indicating that each parent is entitled to request and obtain directly from those involved with Logan (his health-care providers, educators, sports coaches and others) information about Logan. This way, Mr.

Lagace need not be concerned that he hasn’t been notified of a medication that Logan is taking and if Logan is involved in an accidental injury while at a friend’s, Ms. Mannett can obtain details of the situation on her own. [ 78 ] Second, Mr. Lagace seeks sole custody so he can make decisions on his own, without consulting Ms. Mannett. This is a curious claim, because when it suits his purpose, Mr. Lagace says that he and Ms. Mannett can communicate effectively by text or occasional phone calls.

The change that has occurred doesn’t relate to the exercise of joint custodial authority so joint custody shall continue. [ 79 ] Third, the material change relates to Ms. Mannett’s poor choice in partners and associates, her use of alcohol and her exposing Logan to dangerous circumstances. This is what must be addressed in my variation of the Corollary Relief Judgment’s parenting terms. [ 80 ] To address the issue of substance abuse, at any time for six hours prior to or while Logan is with her, Ms. Mannett shall not consume alcohol or non-prescribed drugs.

She may only use prescribed drugs in the fashion in which they are prescribed. [ 81 ] In crafting parenting time, I am considering facts that since Logan’s lived with his father, his mother has moved. Logan knows children in his father’s neighbourhood: it’s not clear that has friends who would attend Central Halifax Junior High, the school in his mother’s neighbourhood. As well, Logan is involved in bowling with his father. The parents don’t live anywhere near each other so an arrangement of really generous time-sharing isn’t possible.

Logan has a strong attachment to his mother. [ 82 ] Logan needs to live in a safe home. I order that his primary residence be with his father. During school year (from the weekend following the start of school until the week when school ends, Logan will be with his mother from Friday afternoon (after school) until Sunday evening at 6 p.m. on the first three weekends of every month. If the weekend is extended by a holiday or in-service day, Logan’s access will start twenty-four hours earlier or end twenty-four hours later (or both, in cases such as Easter). If there are bowling activities during these times, Mr.

Lagace may pick up Logan for the activity one hour before it starts and he must return him one hour after it ends. I do understand that, in some cases, an entire weekend may be lost to a bowling tournament, and it’s for that reason I am ordering that Logan have more than alternate weekends with his mother. The distance and transportation make mid-week access impracticable. [ 83 ] Logan may speak to his mother by phone (either his cellphone or his father’s home phone) at any time between 7:30 a.m. and 9 p.m. daily.

If Logan is being disciplined for any reason, his discipline cannot involve the loss of this phone privilege or the use of his phone for calls to his mother. [ 84 ] Each summer, starting at 6 p.m. on the first Friday after school ends, Logan will be with his mother for one week. Ms. Mannett and Mr. Lagace will alternate having Logan with them for one week intervals. Logan will move from one home to the other at 6 p.m. each Friday. [ 85 ] Each summer, from the last Friday before school resumes until 6 p.m. on the evening that is one and one-half days before school starts, Logan will be with Ms. Mannett.

To be clear, the last full day before school starts in September, Logan will be with his father and that full day will start the evening before: i.e., if school started on Wednesday morning, Logan would be at his father’s home starting at 6 p.m. on Monday evening. [ 86 ] Given the

schedule I’ve imposed, it should not be necessary to state it, but to be explicit: if not already with the parent, Logan will spend six hours with his mother on Mother’s Day and with his father on Father’s Day. Both Ms. Mannett and Mr. Logan will identify the six hour period to Ms. McFadden and it will be stated in court order. [ 87 ] Special family events will be given priority over other time and vary the terms of my decision ONLY when both parents agree. If there’s no agreement, the terms of my decision must be followed.

In any event, the parties shall not vary the terms of Logan’s Christmas contact with his parents, especially since this provides for access at Logan’s birthday. [ 88 ] With regard to contact at Christmas, in even-numbered years, Logan will be with his mother from the last day of school until December 25 at 3 p.m. and from December 29 at 6 p.m. until January 1 at 6 p.m. In odd years, Logan will spend this time with his father. Logan’s birthday is December 26. The parent who is not with Logan on December 26 will spend five hours with Logan on December 26.

This time should be selected now and specified in the court order Ms. McFadden is drafting. [ 89 ] In even-numbered years, Logan will be with his mother for the March Break, from the first Friday at 6 p.m. until the second Friday at 6 p.m. Logan will follow this

schedule with his father in odd-numbered years. [ 90 ] Mr. Lagace will be responsible for all access transportation. Prospective child support [ 91 ] Mr. Lagace has claimed support for Logan. Ms. Mannett’s current annual income is $27,377.00. The current Guidelines require a monthly child support payment of $227.00 based on this annual income level. This payment shall begin in September 2012. [ 92 ] I have no Statement of Special or Extraordinary Expenses for Logan, but Mr. Lagace’s affidavit details activity costs for him.

There’s been no evidence that supports a finding that these are extraordinary extra-curricular activities, contemplated by subsection 7(1.1) of the Guidelines . In any event, the exhibits attached to Mr. Lagace’s affidavit indicate that the cost of Logan’s bowling cost is entirely offset by the Canada Child Fitness Tax Credit. I make no order for any contribution to special or extraordinary expenses.

[ 93 ] Logan’s lived with his father for five months, since mid-March 2012, and Mr. Lagace wants child support for that period. This is appropriate. Five months of child support payments at the rate of $227.00 means that Ms. Mannett owes $1,135.00. I order that she pay $95.00 each month toward this amount beginning in September 2012. In this way it will be paid in full with a final payment in August 2013. Retroactive child support [ 94 ] Mr. Lagace seeks support for a period of two to two and one-half months when Ms.

Mannett moved to Alberta in early 2009 and for a one month period when Logan lived with him in June 2011. [ 95 ] When Mr. Lagace filed his variation application in July 2011, he claimed child support from that point forward. He identified no claim for any earlier period. His application was scheduled to be heard on an emergency basis. He discontinued it. Mr. Lagace’s first notice to Ms. Mannett of this claim has come with this hearing. [ 96 ] For her part, Ms. Mannett says that Mr. Lagace didn’t pay her child support from July 2011 to March 2012.

She also claims that he underpaid child support from 2009 onward and she wants that retroactively varied, as well. [ 97 ] Retroactive variations of child support are governed by SCC decision in D.B.S. v. S.R.G., L.J.W. v. T.A.R., Henry v. Henry, Hiemstra v. Hiemstra , 2006 SCC 37 . According to the unanimous reasons in that case, written by Justice Bastarache, retroactive awards are neither automatic nor exceptional.

In considering whether I should make a retroactive award, I am to take a holistic approach, balancing the competing principles of certainty and flexibility, while respecting the core principles of child support.

Those core principles are that: child support is the right of child; the child’s right to support survives the breakdown of the parents’ relationship; child support should, as much as possible, perpetuate the standard of living the child experienced before the parents’ relationship broke down; and the amount of child support varies, based upon the parent’s income. [ 98 ] In determining whether a retroactive award is appropriate, I am to consider: the reason for the parent’s delay in claiming support; the conduct of the parent who ought to have paid (typically viewed to determine if it’s been blameworthy); the child’s past and present circumstances; and whether a retroactive award would result in hardship.

All of these factors must be considered and none is dispositive on its own, according to Justice Bastarache at paragraph 99 in D.B.S. v. S.R.G. , L.J.W. v. T.A.R. , Henry v. Henry , Hiemstra v. Hiemstra , 2006 SCC 37 . [ 99 ] With regard to Mr. Lagace’s claims for support in 2009 and in July of 2011, he’s offered no explanation for his delay in making this claim. In his variation application he didn’t give Ms. Mannett notice of this claim. In any event, Logan wasn’t living with his father in August 2011. [ 100 ] Similarly, Ms.

Mannett hasn’t offered any explanation for her delay in claiming retroactive child support for the period since 2009, when she says Mr.

Lagace was failing to pay sufficient support. [ 101 ] Neither parent has adduced on his or her own, or through cross-examination, any evidence relating to the conduct of the other parent – such as repudiating an obligation to pay or trying to dissuade the residential parent from seeking child support. [ 102 ] I have no information from either parent about Logan’s past or present financial circumstances and, lastly, there’s been no evidence with regard to whether a retroactive award would constitute undue hardship if it was made or how it might be structured to avoid creating hardship. [ 103 ] In these circumstances, I dismiss claims by both Mr.

Lagace and Ms. Mannett for retroactive awards of child support. [ 104 ] Neither party has claimed costs and none are awarded. Ms. McFadden will prepare the order for review by Ms. Billingsley. _______________________________ Elizabeth Jollimore, J.S.C.(F.D.) Halifax, Nova Scotia