Bruno v. Keinick, 2012 NSSC 336

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Bruno v. Keinick, 2012 NSSC 336 Date: 20120921 Docket: 1206-004799 Registry: Sydney Between: Maureen Adele Bruno Applicant v. Paul Anthony Keinick Respondent LIBRARY HEADING Judge: The Honourable Justice Theresa M. Forgeron Heard: July 12 and 13, 2012 and September 21, 2012, in Sydney, Nova Scotia Oral Decision September 21, 2012 Written Decision: October 10, 2012 Subject: Family - parenting and maintenance. Issue: High conflict parenting arrangement; retroactive child support;

section 7 activity expenses. Result: The mother was found to be primarily responsible for the conflict and the disruption of the father daughter relationship. A parenting regime was structured to meet the child ’ s needs. Therapeutic counselling ordered to improve communication and to reaffirm the father ’ s presence. Review dates also ordered. Retroactive child support granted, effective when father ’ s salary increased. Retroactive support will be used to pay for child ’ s therapy.

Section 7 activity expenses refused given the father ’ s inability to pay because of the needs of his two, disabled children and because activity expenses are not extraordinary in the circumstances of this case. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . FAMILY COURT OF NOVA SCOTIA Citation: Bruno v. Keinick, 2012 NSSC 336 Date: 20120921 Docket: 1206-004799 Registry: Sydney Between: Maureen Adele Bruno Applicant v.

Paul Anthony Keinick Respondent Judge: The Honourable Justice Theresa M. Forgeron Heard: July 12 and 13, and September 21, 2012, in Sydney, Nova Scotia Oral Decision September 21, 2012 Written Decision: October 10, 2012 Counsel: Jennie Donnelly McDonald, for the Applicant Maureen Bruno Paul Keinick, unrepresented By the Court : [ 1 ] Introduction [ 2 ] Children usually have two foundational relationships - one with their mother, and one with their father. Loving parents provide stability, security, and structure to their children. Children prosper when loving, parental relationships are maintained.

Conversely, children are harmed when these relationships are disrupted. [ 3 ] Dakota, the ten year old daughter of Maureen Bruno and Paul Keinick, is one such child. Dakota’s relationship with her father was disrupted, causing Dakota to experience emotional harm. [ 4 ] In this decision, the court will examine the circumstances that caused the disruption in this father daughter relationship. The court will then produce an order that will re-establish and reaffirm that relationship.

The court will also determine child maintenance issues which, not surprisingly, were not resolved given the acrimony. [ 5 ] Issues [ 6 ] The court will determine the following six issues in this decision:

a) What material changes in circumstances have occurred since the issuance of the corollary relief judgement?

b) What caused the disruption in the father daughter relationship?

c) What parenting plan is in Dakota’s best interests?

d) Should retroactive child maintenance be awarded?

e) Should

section 7 activity expenses be awarded?

f) What provisions apply to the ongoing payment of child support? [ 7 ] Background [ 8 ] The parties were divorced in December, 2006. At that time, Dakota was placed in the joint custody of both parties pursuant to the minutes of settlement which were executed in the fall of 2006. The parenting and child maintenance provisions of the minutes were based upon Ms. Bruno residing out of province. [ 9 ] Conflict between the parties soon emerged. Several days after the divorce issued, Mr. Keinick filed an application.

This resulted in an order being issued on December 22, 2006, which confirmed the Christmas parenting schedule. [ 10 ] Further litigation was initiated when Ms. Bruno returned from Ontario to live in Sydney on a permanent basis. Ms. Bruno applied to vary the maintenance and custody provisions of the corollary relief judgement. The consent, interim variation order of August 14, 2007 detailed the new parenting arrangements, which continued to be based on joint custody. This order also preserved the right of either party to claim primary residence of Dakota, and for Ms.

Bruno to make a retroactive child support claim, during the final hearing. [ 11 ] Further, the 2007 interim order established Dakota’s primary residence. Under this order, Dakota would live primarily with Ms. Bruno and attend school in Sydney. Mr. Keinick, who lived in Waverley, was granted structured and unstructured parenting time. In addition to being granted reasonable access, Mr. Keinick was scheduled to exercise parenting time with Dakota every second weekend from 4:00 p.m. on Friday until 5:00 p.m. on Sunday, which would be extended to Thursday, or Monday, if there was no school.

In addition, the order stipulated that the parties were to share access transportation. Other provisions, relating to medical appointments and child support, were also itemized. [ 12 ] In 2007, Mr. Keinick married Georgina. Their twin sons, Nate and Gavin, were born in 2008. Mrs. Keinick quit her full time job to meet the special needs of Nate and Gavin, who have development delays and are blind. Dakota shares a loving relationship with her brothers. [ 13 ] Parenting arrangements continued to be a source of difficulty for the parties.

In September 2009, the parties agreed, in writing, to vary the access provisions of the court order. This variation was made to accommodate Dakota’s Tae Kwon Do commitments. Access would be monthly, rather than bi-weekly, but with additional access periods during the holidays and summer months. This arrangement was extended, again in writing, to include the school year commencing September, 2010 until June, 2011. No further extensions were agreed upon. [ 14 ] The acrimony escalated and reached its zenith in November, 2010 following a verbal altercation between Ms. Bruno and Mrs. Keinick during an access exchange.

Their heated argument unfortunately occurred in Dakota’s presence. Thereafter, Ms. Bruno restricted, and, at times, eliminated access.

[15] In December 2010, Mr. Keinick stopped paying child support. The Maintenance Enforcement Program did not seekenforcement because Mr. Keinick was showing a credit by virtue of earlier payments made without court order. He resumed payingchild support once the credit was exhausted. [16] Ms. Bruno filed another variation application on February 9, 2011, despite the fact that the 2007 variation had not beenresolved on a final basis. Ms. Bruno sought to change the terms of access and child support. She also sought

section 7 add-ons foractivity and health expenses. [17] A pre-trial conference was convened on November 17, 2011. A parental capacity assessment was requested, and ordered. The court also directed the parties to follow the current court order. Trial dates of February 27 and 28 were assigned. [18] Immediately following the pretrial conference, Mr. Keinick contacted Ms. Bruno’s lawyer to

schedule visits in conformitywith the court order. Ms. Bruno refused. She also refused to share access transportation. Mr. Keinick filed a contempt application onDecember 11, 2011. [19] A second pre-trial conference was scheduled, at the request of counsel, on January 25, 2012. The parties consented to anadjournment of the variation application because the parental capacity report would not be finalized by February. July dates weresecured for the variation application.

The contempt application proceeded on February 27 and 28. [20] Only three access visits occurred after the November pre-trial conference and the February 27 and 28 court dates. Afterhearing the evidence and submissions, an oral decision was rendered on the contempt motion on March 29, 2012, with the writtenversion being reported at 2012 NSSC 140. [21] Ms. Bruno was found guilty of civil contempt for failing to comply with the parenting provisions of the court order. Thepenalty phase of the contempt proceeding was adjourned until May 22, 2012, and an oral decision was rendered at that time.

Thereported decision is found at 2012 NSSC 218. A suspended penalty was imposed on Ms. Bruno. During this period, Ms. Bruno wasdirected to comply with the parenting

schedule and to engage in counselling to address parenting deficits. All costs associated with thecounselling were to be born by Ms. Bruno. The penalty order issued on June 21, 2012. [22] The parties next appeared for the variation hearing on July 12 and 13, 2012. Dr. Landry, Ms. Bruno, Mr. Keinick and Mrs.Keinick testified. Oral and written submissions were tendered.

The court adjourned for oral decision on September 21, 2012. [23] Analysis [24] What material changes in circumstances have occurred since the issuance of the Corollary Relief Judgement? [25] Before a court can vary a custody or maintenance order, a material change in circumstances is required pursuant to sec. 17 ofthe Divorce Act. In Gordon v. Goertz, (SCC), [1996] 2 SCR 27, the Supreme Court of Canada discussed the meaningof a material change in circumstances in the custody context. A material change must affect the child, or the ability of the parents tomeet the best interests of the child.

A material change occurs when a judge would likely have crafted a different order, had the new factsexisted at the time the original order was made. The new facts could not have been reasonably contemplated or foreseen at the time theoriginal order was made. [26] The following material changes have occurred in respect of parenting since the last court order:

a) Ms. Bruno is no longer living out of province and has taken up permanent residence in Sydney.

a) Ms. Bruno is no longer living out of province and has taken up permanent residence in Sydney.

b) Dakota’s relationship with her father was disrupted. [ 27 ] The following material changes have occurred in respect of maintenance since the last court order:

a) After Ms. Bruno returned to the province, the extraordinary access expenses were no longer being incurred.

b) Mr. Keinick’s income increased. [ 28 ] The parenting and maintenance issues are thus properly before the court for consideration. [ 29 ] What caused the disruption in the father daughter relationship? [ 30 ] Position of the Parties [ 31 ] Ms. Bruno listed a number of factors which she states weakened the father daughter relationship. These included the following:

a) Dakota has a strong attachment to Ms. Bruno. Dakota misses her mother when she is away. Ms. Bruno is not able to contact Dakota while she is with the Keinicks.

b) Dakota is neglected at the Keinick home. Problems identified include failing to attend to hygiene; forcing Dakota to eat until she becomes sick; favouring the twins; failing to spend time with Dakota; exposing Dakota to other children who bully her; and the constant yelling and screaming of Mrs. Keinick.

c) Dakota requires more time in the Sydney area to participate in extracurricular activities. [ 32 ] In contrast, Mr. Keinick states that Ms. Bruno is responsible for the relationship difficulties between he and Dakota as evidenced by the following:

a) Ms. Bruno consistently and unilaterally failed to follow the parenting schedule.

b) Ms. Bruno involved Dakota in the access arrangements.

c) Ms. Bruno unilaterally restricted, and then eliminated access between November, 2010 and November, 2011; and only permitted access sporadically thereafter.

d) Ms. Bruno interfered with his parenting time by constantly calling and texting Dakota when Dakota is in Mr. Keinick’s care.

e) Ms. Bruno made disparaging comments against Mrs. Keinick.

f) Ms. Bruno failed to assume ownership of her negative behaviours. [33] Decision [34] In reaching my decision, I must apply the best interests principle as stated in sec. 17 (5) of the Divorce Act. The best interestsprinciple has been described as one with an inherent indeterminancy and elasticity: MacGyver v. Richards, (ONCA), [1995] 22 OR (3d) 481 (C.A.) paras. 27 - 29. The test is a fluid concept that encompasses all aspects of a child, including thechild’s physical, emotional, intellectual, and social well being. [35] Further, I must have recourse to 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. In every civil case, the courtmust scrutinize the evidence when deciding whether it is more likely than not that an alleged event has occurred. The evidence must notbe considered in isolation, but must be based upon its totality. The evidence must always be clear, convincing and cogent to satisfy thebalance of probabilities test. [36] Credibility impacts upon burden of proof. In Baker-Warren v.

Denault, 2009 NSSC 59, this court reviewed the factors to beconsidered when making credibility determinations at paras. 18 - 20. These factors were approved in Hurst v. Gill, 2011 NSCA 100, atpara 16. I have applied this law. [37] In reaching my decision, I have considered the legislation, case law, and the submissions of the parties. I have reviewed theevidence, in detail, and made necessary credibility determinations. Based upon these considerations, I find two factors led to thedisruption in the father daughter relationship. The first relates to a natural progression in Dakota’s development.

The second relates tothe parental acrimony which is largely fuelled by Ms. Bruno. [38] In respect of the first factor, I accept Dr. Landry’s opinion. He noted that children of Dakota’s age typically begin to investmore of their psychological energies into their own friends and activities, and less time with parents. As a result, with the exception ofholidays and vacations, it is in Dakota’s best interests to spend approximately one long weekend a month in Waverley with her father. This arrangement will meet Dakota’s current developmental needs.

It should also be noted that both parties agreed in principle with thisrecommendation. [39] The second factor is more troubling because it relates to parental acrimony and Dakota’s attempt to navigate through thisconflict. Ms. Bruno is largely responsible for this conflict, although Mr. Keinick, and his wife, played a somewhat minor role byoccasionally engaging in inappropriate, reactive responses. My conclusions are drawn from my findings of fact which include thefollowing:

a) Dakota and Ms. Bruno have an enmeshed relationship. I accept Dr. Landry’s finding on this point. This enmeshment is atypicaland has led Dakota to adopt harmful coping strategies.

b) Dr. Landry stated that Dakota’s refusal and hostility towards exercising access in Waverely, has very little to do with Waverleyand her father, or the events taking place there. Rather, the hostility is based upon Dakota’s anxieties and concern for Ms. Bruno.

c) Dr. Landry noted that although children between the ages of 7 and 12 usually identify with the same gender parent, suchidentification does not typically manifest itself to the point of access refusal. I accept this evidence.

d) Dakota is extraordinarily sensitive to Ms. Bruno’s feelings. Dr. Landry noted, and I accept, that children are influenced by bothdirect and indirect methods of manipulation. Indirect influences can include such things as a raised eyebrow or a scowl. I find thatDakota has been exposed to both direct and indirect manipulation. Dakota was present for the most unfortunate exchange between Mrs.Keinick and Ms. Bruno. Further, Ms. Bruno has great difficulty masking her feelings for the Keinicks, particularly Mrs. Keinick. Incourt one expects parties to be on their best behaviours. Yet, Ms. Bruno’s voice dripped with distain and hostility on many occasions

when discussing the Keinicks. Ms. Bruno’s hostility is best exemplified by the racist text message that she sent Mr. Keinick. I accept that Ms. Bruno authored this message and the text was not altered by Mr. Keinick. Dakota is not immune to her mother’s feelings that are conveyed by her indirect cues and direct verbalizations.

e) Dr. Landry stated that Dakota is reconstructing her memories because of the loyalty conflict that she is experiencing. This is not an appropriate coping mechanism. Dakota is not mature enough to deal with the acrimony, nor the loyalty conflict she experiences. As a result, Dakota is, unknowingly, substituting loving and happy memories with negative memories in an effort to please her mother. Dakota is being robbed of an important part of her childhood, and of the benefits that flow from having the guidance and support of a loving father.

f) I accept Dr. Landry’s example of this construct. Mr. Keinick brought Dakota in for an interview immediately following an access visit. This was a visit that Dakota had not wanted to attend. Dakota was interviewed separately. Dakota reported having engaged in a wide variety of activities in Waverley, including swimming, exploring, skating, and playing board games. Dakota reported that she had “lots of fun” and was smiling while she recounted her adventures with enthusiasm. Dr. Landry used a “feeling thermometer” to get an objective rating of the weekend.

Dakota rated her weekend 7 out of 10. (By way of comparison, she rated her experience at Tae Kwon Do, about which she is passionate, as 8 out of 10). The same mechanism was used to discuss her feelings of anxiety during the access weekend. She rated her anxiety as 2 out of 10. Subsequently, Ms. Bruno brought Dakota in for an interview. Dr. Landry met separately with Dakota. When discussing the same visit, Dakota stated that she did not want to attend any future visits because she didn’t enjoy the last visit. When confronted with the results from the “feeling thermometer”, Dakota was surprised.

Dakota no longer remembered the visit as a positive one. Dakota was adamant that she had not had a good time while in Halifax, despite being shown the “feeling thermometer.”

g) Dakota’s loyalty conflict is also evident in her many attempts to accentuate her mother, while minimizing her father. When asked about activities that she did with her father, Dakota consistently responded by discussing activities that she enjoyed with her mother. In addition, Dakota spontaneously told Dr. Landry that her mother worried about her getting hurt or missing her when she was with her father. When discussing the horse riding that Dakota participated in while with her father, Dakota complained that she really wasn’t being taught anything. Horse riding is an activity that Dakota enjoys. Such comments are not typical of children Dakota’s age.

h) Ms. Bruno lacks the requisite insight, at this stage, to fully appreciate the problems that the dysfunctional enmeshment are having on Dakota. When asked, Ms. Bruno was unable to identify any concerns that had arisen because of the enmeshment. To the contrary, Ms. Bruno focussed on Dakota’s academic and activity successes and her compliant behaviours. Ms. Bruno saw nothing wrong with the fact that Dakota was reconstructing her memories. Ms. Bruno was dismissive of the long term mental health and emotional difficulties that Dr. Landry stated frequently arise in children who experience loyalty conflict. Ms.

Bruno did not appreciate that robbing Dakota of a normal and healthy relationship with her father was damaging. Ms. Bruno must gain better insights. Education, therapy and counselling will be ordered to correct these parenting deficits. I am hopeful, that with education, therapy and counselling, Ms. Bruno will make the necessary changes to her own behaviours so that Dakota can be a child again.

i) Contrary to what was alleged by Ms. Bruno, Mr. and Mrs. Keinick are appropriate and excellent parents. Their home is welcoming, nurturing and child focussed. There are no health or safety issues. Dakota is not forced to eat food that she dislikes until she gets sick. Dakota is encouraged to eat a balanced diet and to try new foods. Dakota’s hygiene is appropriate at the Keinick home. Dakota has friends in Waverley who are not bullies. The Keinick home is not turbulent. Mrs. Keinick does not yell and scream constantly.

Dakota does not take second fiddle to the twins, but is a valued and loving member of the Keinick household. Dakota gains many benefits from having a relationship with her father, stepmother, and brothers.

j) In contrast, Mr. Keinick showed significant insight into the problems and also was measured in his responses. On most occasions, Mr. Keinick was able to follow a pattern of non-reaction and conciliation. This, despite the parenting history between he and Ms. Bruno, and the history between Ms. Bruno and his wife. Mr. Keinick will nonetheless be required to attend counselling to strengthen and improve the skills that he already possesses. [ 40 ] The parental conflict must stop so that Dakota is free from the loyalty divide she experiences. There have been inroads made.

In particular, Dakota was relaxed and relieved when Ms. Bruno and Mrs. Keinick were able to maintain a “business like” conversation during a recent access exchange in Sydney. The parties must build on such strengths. I am hopeful that with education, counselling, and therapy, Dakota’s best interests will be given priority.

[ 41 ] What parenting plan is in Dakota ’s best interest? [ 42 ] Position of the Parties [ 43 ] There were several agreements reached regarding the variation of the parenting provisions of the corollary relief judgment. These were read into the record at the commencement of the hearing and will be incorporated in the variation order.

Remaining areas of contention included the timing of the monthly visits in Waverley; whether additional visits should occur in the Sydney area; whether the Victoria Day weekend and Labour Day weekend should be in addition to the monthly visits, or in substitution of the monthly visits; the summer schedule; the March break schedule; transportation issues; travel issues and telephone access. [ 44 ] I have reviewed the evidence in detail, as well as the submissions of the parties.

In reaching my decision I have focussed solely on the best interests of Dakota in light of her developmental and emotional needs and given the unique circumstances of this case. The following parenting plan will form the basis of the corollary relief judgment and shall vacate all previous parenting provisions: Custody

a) The parties shall share joint custody of their child, Dakota Grace Keinick, whose date of birth is **.

b) The primary residence of the child will be with Maureen Bruno. School Term

Schedule

c) Subject to the holiday and vacation

schedule stated herein, Dakota will be in the care of Paul Keinick one weekend per month from 3:00 p.m. on Friday until 3:00 p.m. on Sunday. The visitation will be extended to 3:00 p.m. on Thursday, if Friday is a non-school day, and until 3:00 pm. on Monday, if Monday is a non-school day.

d) The monthly visitation

schedule will be finalized no later than August 15 of each school year, and will maximize long weekends by coordinating monthly visits with scheduled in service or other non-school days.

e) For the 2012 - 2013 school year, the monthly weekend access will be as follows: September, 2012 : Dakota will be in the care of Paul Keinick from 1:00 p.m. on Friday, September 21 until 3:00 p.m. on Sunday, September 23. October, 2012 : Dakota will be in the care of Paul Keinick as stated in the Thanksgiving Day weekend schedule. November, 2012: Dakota will be in the care of Paul Keinick from 3:00 p.m. on Friday, November 9 until 3:00 p.m. on Monday, November 12. December, 2012 : Dakota will be in the care of Paul Keinick as stated in the Christmas schedule.

January, 2013 : Dakota will be in the care of Paul Keinick from 3:00 p.m. on Friday, January 18 until 3:00 p.m. on Sunday, January 20.

February, 2013 : Dakota will be in the care of Paul Keinick from 3:00 p.m. on Friday, February 15 until 3:00 p.m. on Sunday, February 17. March, 2013 : Dakota will be in the care of Paul Keinick as stated in the March Break vacation schedule. April, 2013 : Dakota will be in the care of Paul Keinick from 3:00 p.m. on Friday, April 19 until 3:00 p.m. on Sunday, April 21. May, 2013 : Dakota will be in the care of Paul Keinick as stated in the Victoria Day weekend schedule. June, 2013 : Dakota will be in the care of Paul Keinick from 3:00 p.m. on Friday, June 14 until 3:00 p.m. on Sunday, June 16.

f) Dakota will be in the care of Paul Keinick for three additional weekend access visits, to take place in the Sydney area, during the school year, with one visit to be scheduled during the fall, one visit to be scheduled during the winter, and one visit to be scheduled during the spring. Paul Keinick will provide Maureen Bruno with 30 days written notice of his intention to exercise the Sydney weekend access. Access will begin at 6:00 p.m. on Friday and will end at 3:00 p.m. on Sunday, or at such other times as agreed to by the parties. Summer Vacation

g) Unless the parties agree otherwise in writing, Dakota will be in the care of Paul Keinick from 3:00 p.m. on July 12 until 3:00 p.m. on July 22 of each and every year; from 3:00 p.m. on August 9 until 3:00 p.m. on August 19 of each and every year; and on the Labour Day weekend from Friday at 3:00 p.m. until Monday at 3:00 p.m. of each and every year. October Thanksgiving Weekend

h) Thanksgiving weekend is deemed to cover the period from 3:00 p.m. on Friday until 3:00 p.m. on Monday of every Thanksgiving Day weekend in October. Dakota will be in the care of Paul Keinick during the Thanksgiving Day weekend of the even numbered years. Dakota will be in the care of Maureen Bruno during the Thanksgiving Day weekend of the odd numbered years. Christmas Break

i) The Christmas Break is deemed to cover the period from 3:00 p.m. on December 19 until 3:00 p.m. on January 2.

j) During the even numbered years, Dakota will be in the care of Paul Keinick from 3:00 p.m. on December 19 until 3:00 p.m. on December 26. Dakota will be in the care of Maureen Bruno from 3:00 p.m. on December 26 until 3:00 p.m. on January 2.

k) During the odd numbered years, Dakota will be in the care of Maureen Bruno from 3:00 p.m. on December 19 until 3:00 p.m. on December 26. Dakota will be in the care of Paul Keinick from 3:00 p.m. on December 26 until 3:00 p.m. on January 2. March Break

l) The school March Break is deemed to cover the nine day period from 3:00 p.m. on Friday of the last day of school until 3:00 p.m. on Sunday before school recommences. Dakota will be in the care of Paul Keinick during the school March Break of each and every year. Easter

m) Easter is deemed to cover the period from 3:00 p.m. on Holy Thursday until 3:00 p.m. on Easter Monday. Dakota will be in the care of Maureen Bruno during the Easters of the odd numbered years. Dakota will be in the care of Paul Keinick during the Easters of the even numbered years. Victoria Day Weekend

n) The Victoria Day weekend is deemed to cover the period from 3:00 p.m. on Friday until 3:00 p.m. on Monday of the Victoria Day weekend in May of each year. Dakota will be in the care of Paul Keinick during the Victoria Day weekend of each and every year. Telephone Access

o) Each party will have telephone access to Dakota once per day when Dakota is in the care of the other parent, and provided telephone service is available. The party making the telephone contact will assume the cost of all long distance and other charges including any charges which arise by virtue of international communication. Access Suspension Due to Illness or Weather

p) In the event of illness or poor road conditions, Paul Keinick will make the determination as to whether Dakota will travel. If Paul Keinick determines that Dakota cannot travel, then Paul Keinick will have make up access for all the parenting time missed at times which are convenient to Paul Keinick and as communicated to Maureen Bruno in writing, but which cannot be taken during the holidays.

q) Neither party has the authority to unilaterally cancel or suspend this parenting schedule. Changes to this

schedule must be by consent and in writing, other than as stated in clause (

p) herein. Transporation

r) Paul Keinick, or any third party on his behalf, is responsible to transport Dakota from Sydney to Waverley for visitation purposes. Maureen Bruno is responsible for having Dakota prepared and ready for travel. Maureen Bruno is responsible, either directly or through a third party, to have Dakota leave the home and enter the vehicle of Paul Keinick, or of the third party present to transport Dakota. The parenting

schedule will be followed regardless of Dakota’s expressed wishes to the contrary. Paul Keinick should, where feasible and practical, be primarily, personally responsible for the transport of Dakota for the majority of the visits.

s) Maureen Bruno, or a third party on her behalf, is responsible for transporting Dakota from Waverley to Sydney at the conclusion of visitation. It is the responsibility of Paul Keinick, or a third party on his behalf, to have Dakota prepared and available for Maureen Bruno, or a third party on her behalf, to transport Dakota back to Sydney at the conclusion of the visits. Maureen Bruno should, where feasible and practical, be primarily, personally responsible for the transport of Dakota for the majority of the visits. Vacation and Holiday Travel and Passport

t) Each party will notify the other of travel plans involving Dakota. Notice will include dates of travel, place of travel, address where Dakota can be reached, and any applicable flight details. Each party has the right to travel with Dakota internationally without the prior approval of the other party.

u) Paul Keinick will hold Dakota’s passport. Paul Keinick will make Dakota’s passport available to Maureen Bruno when she requires the passport for international travel with Dakota. Maureen Bruno will return Dakota’s passport to Paul Keinick immediately after the conclusion of Dakota’s international trips. Each party will cooperate in signing any letters that are required to accommodate international travel with children. (The court is concerned that Ms. Bruno may attempt to hinder Dakota’s international travel with her father by failing to provide the passport in a timely manner, or at all.

The court holds no such concerns about Mr. Keinick. For this reason, Mr. Keinick will retain and secure Dakota’s passport when not in use). Access to Professional Records and Information

v) Each party has the right to communicate with all professionals involved in Dakota’s care, and each has the right to obtain information and documentation respecting Dakota from all medical professionals, educators and social welfare professionals, without the prior consent of the other party. Communication About Dakota Between the Parties

w) Matters relating to Dakota’s health, education, religion or general welfare will be the subject of communication between the parties, unless there is an emergency. All communication will be respectful and child focussed and will be primarily facilitated by email communication. All email communication will be compellable for court purposes. Each party will provide the other party with an up-to- date email address where he/she can be reached, and any changes thereto on a timely basis. Each party will maintain internet access and a current email address so that communication can be facilitated.

Each party will review his/her email on a regular basis unless health or other commitments make regular access impossible. Telephone contact will be used if there is an emergency. Therapeutic Interventions

x) Maureen Bruno will cooperate and participate in individual therapeutic counselling, with a qualified professional, for the following purposes:

i) To identify why the father daughter relationship is essential for Dakota ’ s emotional security. ii) To identify how Maureen Bruno ’ s past conduct has negatively affected the relationship between Dakota and her father. iii) To identify ways that Maureen Bruno can encourage Dakota ’ s relationship with her father. iv) To identify how Dakota is negatively affected when she is placed in the middle of parental conflict.

v) To identifying how Maureen Bruno ’ s past conduct, either directly or indirectly, has resulted in Dakota being placed in the middle of parental conflict. vi) To acquire skills on how to isolate Dakota from parental conflict. vii) To acquire skills to have a more balanced and realistic perspective of parenting weaknesses with an aim to strengthen parenting ability. viii) To acquire skills to aid in effective, child focussed communication with Paul Keinick. ix) To acquire information about stages of development of children and adolescents, including the need to foster Dakota ’ s healthy independence and individuality.

x) To assist in the resolution of personal issues involving Maureen Bruno ’ s relationship with Georgina Keinick and Paul Keinick, with an aim to acquire skills to enhance a business-like approach to communication with Paul Keinick on issues concerning Dakota.

y) Paul Keinick will cooperate and participate in individual therapeutic counselling, with a qualified professional, to learn the following information and skills:

i) To acquire information about the impact parental conflict has on children. ii) To acquire skills on how to isolate children from parental conflict. iii) To acquire skills that will aid in effective, child focussed communication with Maureen Bruno. iv) To acquire information about stages of development of children and adolescence.

v) To acquire skills to enhance a more business-like approach to communication with Maureen Bruno on issues concerning Dakota.

z) A child psychologist, or other professional acceptable to both parties, will treat Dakota in a therapeutic setting, individually, and with each party if requested, for the following purposes:

i) To repair, facilitate and strengthen Dakota ’ s healthy relationships with both parents. ii) To teach Dakota critical thinking and healthy problem solving skills so she is better able to cope with parental conflict and the enmeshed relationship which exists between she and her mother. iii) To assist Dakota in maintaining a balanced and realistic perspective of herself and of her parents in an effort to reduce the anxieties that she has for Maureen Bruno. aa) Each party is responsible for the payment of fees associated with his/her therapeutic sessions.

The retroactive child support will be used to pay Dakota ’ s therapy, after any applicable insurance reimbursement is deducted. If these funds are insufficient, each party is responsible for 50% of the remaining costs of Dakota ’ s therapy. bb) All therapeutic interventions will begin forthwith. The therapists will be provided with a copy of Dr. Landry ’ s parental capacity assessment, this decision, and the order.

Reviews cc) The parenting matter is scheduled for review on Wednesday, the 5 day of December, 2012 to obtain confirmation that the therapeutic sessions have commenced for Paul Keinick, Maureen Bruno, and Dakota Keinick. The parties will supply the court, and each other, with the name and addresses of the professionals that have been engaged one week before the hearing. A second review is scheduled for Thursday, August 8, 2013 at 10:30 a.m. at which time the court will receive written confirmation from the professionals as to the status of the therapies. Further, the 2013-2014 parenting

schedule will be confirmed at the August 8 review hearing. Affidavits are to be filed seven days before each review hearing. Relocation dd) Maureen Bruno will provide 60 days written notice of her intention to move Dakota ’ s permanent residence. A permanent move that affects the parenting

schedule stated herein will require the written consent of Paul Keinick or an order from a court of competent jurisdiction. [ 45 ] Should retroactive child maintenance be awarded?

[ 46 ] Ms. Bruno seeks retroactive child support for the table amount and

section 7 expenses effective January, 2007. Mr. Keinick disputes this claim. [ 47 ] Ms. Bruno seeks retroactive support for the following reasons:

a) She did not delay in making the application as she filed for relief in 2007. The 2007 interim consent order preserved her right to apply for retroactive support.

b) Mr. Keinick failed to provide income and income tax information despite Ms. Bruno ’ s repeated requests.

c) Ms. Bruno requires the retroactive support. She is in debt, in part, because of insufficient maintenance payments.

d) Mr. Keinick is in a financial position to pay the retroactive support. [ 48 ] Mr. Keinick denies his obligation to pay retroactive support for the following reasons:

a) Ms. Bruno did little to advance the matter to trial after the interim consent order issued in 2007.

b) Ms. Bruno did not request income or income tax information. When Mr. Keinick received notice, he supplied his records.

c) Dakota has not suffered financially. All of her needs have been met.

d) Mr. Keinick is basically the bread winner for his wife and his two disabled sons. Mr. Keinick cannot afford to pay a retroactive award. [ 49 ] Decision [ 50 ] At this time, I will deal with the retroactive claim for the table amount of child support. The retroactive claim for

section 7 expenses will be determined when the court addresses that issue. [ 51 ] I have reviewed the evidence and submissions. I have determined that a retroactive order is appropriate for the period commencing January 1, 2009, and not January 1, 2007, for the following reasons:

a) The 2007 interim order was based on Mr. Keinick earning $72,000 per annum. Mr. Keinick, however, only earned $64,825 in 2007. In 2008, he earned $72,007. His income did not increase until 2009, when he earned $79,195.

b) Although I find that Ms. Bruno did not request financial or income tax information from Mr. Keinick, as she alleged, Mr. Keinick’s income did nonetheless increase after January 1, 2009. His obligation to increase support payments was not dependent on a disclosure request.

c) Mr. Keinick should have increased the table amount of support when his income increased in 2009.

d) Retroactive support is required to defray Dakota’s therapy expenses.

e) Although Mr. Keinick’s budget is understandably tight, the retroactive payment can be accommodated by a payment

schedule over time. [ 52 ] The retroactive payment is calculated as follows, in the circumstances of this case, and based upon the Maintenance Enforcement Program record: Year Income Earned Annual Due Annual PaidDeficit 2009 $79,195 $8,172 $6,960$1,212 2010 $81,458 $8,388 $6,380$2,008 2011 $74,349 $7,704 $5,305$2,399 2012 $74,349 $5,661(9 months) $6,003($342) $29,925 $24,648$5,277 [ 53 ] The above calculation takes into account the following three points:

a) The new tables which came into effect on December 31, 2011.

b) The assumption that Mr. Keinick continued to pay monthly child support of $667 to present. If this assumption is incorrect, I reserve jurisdiction to recalculate the support based upon updated payment information.

c) Mr. Keinick not benefiting from the MEP overpayment for the period predating the court order. [ 54 ] The retroactive award will be payable as follows:

a) Mr. Keinick making direct payments to the professional undertaking Dakota’s therapy to a maximum of $5,277, exclusive of insurance reimbursement, and as the account is rendered.

b) In the event the professional’s account is less than $5,277 upon completion of the therapy, then Mr. Keinick will pay the retroactive amount in regular monthly instalments of $100 until the retroactive award is paid in full.

c) Mr. Keinick will supply Ms. Bruno, and the court, with a copy of all invoices and insurance particulars for Dakota’s therapy at the August 2012 review hearing. [ 55 ] Should sec. 7 activity expenses be awarded? [ 56 ] Ms. Bruno seeks a retroactive and ongoing award for sec. 7 expenses associated with piano, which are $840 annually; Tae Kwon Do, which are $499 annually; and art lessons which are $600 annually. Ms. Bruno states that she requested contribution for these

expenses from Mr. Keinick in the past, and on an ongoing basis, and he has refused to pay them. Ms. Bruno states that these expenses have provided considerable benefits to Dakota including the development of her skills and talents, as well as increasing her confidence and independence. She states these expenses are extraordinary, reasonable, and necessary. Ms. Bruno notes that she is not seeking contribution for riding expenses because these continue to be paid by her parents. [ 57 ] Mr. Keinick disagrees with the payment of sec. 7 activity expenses. He states that Ms.

Bruno did not request contribution for extraordinary expenses until she filed her claim in February, 2011. Mr. Keinick states that he is not in a financial position to pay for such expenses. [ 58 ] This court recently distilled the principles which emerged from case law regarding sec. 7 activity expenses in the decision of MacDonald v. Pink 2011 NSSC 421 . These principles are now repeated as follows:

a) Section 7 of the Guidelines provides the court with the jurisdiction to grant a discretionary award: T.(D.M.C.) v. S.(L.K.) 2008 NSCA 61 at para. 25 , per Roscoe J.A.

b) The starting point is the assumption that the table amount will ordinarily be sufficient to provide for the needs of the child: T.(D.M.C.) v. S.(L.K.) , supra, at para. 25 , per Roscoe J.A. The burden therefore rests on the party asserting the claim. Proof is on a balance of probabilities and based upon clear, cogent, and convincing evidence: C.(R.) v. McDougall , supra

c) The sec. 7 analysis is fact specific -- one that must be determined on a case by case basis taking into consideration the necessity and reasonableness of the expense, and the obligation of the noncustodial parent to contribute to the expense: Staples v. Callender 2010 NSCA 49 , at para. 32 , per Bateman J.A.

d) Section 7 cases determined prior to the 2006 amendment may not be applicable: T.(D.M.C.) v. S.(L.K.) , supra, at para. 21 , per Roscoe J.A.

e) It is preferable to first determine whether expenses are necessary in relation to the child's best interests, and reasonable in relation to the means of the parents under sec. 7(1) before determining the applicability of sec. 7(1A) of the Guidelines : T.(D.M.C.) v. S.(L.K.) , supra, at para. 27 , per Roscoe J.A.

f) If the court decides that the expenses meet the requirements of sec. 7(1), then activity expenses must be further scrutinized pursuant to sec. 7(1A): T.(D.M.C.) v. S.(L.K.) , supra, at para. 27 , per Roscoe J.A.

g) Section 7(1A) calls for a two part test. First, the court is to determine whether or not the claimed expenses exceed those which the custodial parent could reasonably cover given her total income, and the amount of child support being received.

h) If the first test is not applicable, then the court must have recourse to sec. 7(1A)(b). This second test requires the court to review a number of factors, including a proportionality inquiry, and an inquiry into the nature and number of activities, any special needs or talent of the child, the overall cost of the activities, and any other similar and relevant factors: T.(D.M.C.) v. S.(L.K.) , supra, at para. 32 , per Roscoe, J.A.

i) The custodial parent does not need to prove that a child is at an elite level in order to have an extracurricular activity included as a sec. 7 expense: Staples v. Callender , supra, at para. 32 , per Bateman J.A. Case law is not consistent in its

interpretation of "necessary" in the context of sec. 7(1) of the Guidelines . Some cases espouse a restrictive reading. For example, in C.(V.) v. B.(J.D.) , supra, at para. 32, and S.(T.L.) v. M.(D.J.) , supra, at para. 48, the court held that "necessary means something more than desirable", and referenced the dictionary meaning of "absolutely essential" or "needed in order to obtain a desired result." An opposite view is advanced in other cases, and as reviewed by Julien and Marilyn Payne in Child Support Guidelines in Canada, 2009 , at pg. 226 wherein the authors note as follows: ...

The test for necessity under section 7(1) of the Guidelines is not synonymous with the bare necessities of life; it refers to things suitable to or proper for the child's station in life bearing in mind his or her requirements at the time. For my part, I prefer the view expressed by Julien and Marilyn Payne.

[ 59 ] The burden is upon Ms. Bruno to prove entitlement to

section 7 activity expenses. Proof is on a balance of probabilities and based upon clear, cogent and convincing evidence. Ms. Bruno has not met this burden for a number of reasons:

a) The expenses are not reasonable given Mr. Keinick’s circumstances. Mr. Keinick’s income is approximately $74,000. In addition to paying monthly child support of $629, he must pay retroactive support, and also provide for his wife and disabled sons. Mrs. Keinick is not employed on a full time basis; this decision is reasonable given the demands of Gavin and Nate. The Keinicks are frugal in the operation of the family budget. Resources are limited. Property holdings are limited. Their home is mortgaged. They are driving a 2006 Honda Civic. The majority of Mrs. Keinick’s RRSPs are her inheritance. There is $3,000 in savings. The Keinick life style is not extravagant.

b) The expenses associated with piano lessons, art lessons and Tae Kwon Do are not extraordinary. They total $1,939 for the year. The Tae Kwon Do expense can also be reduced by application of the sports tax credit.

c) Ms. Bruno has the capacity to earn an income of approximately $35,000 to $40,000 per annum. For a time, Ms. Bruno’s limited her employment searches so that she could assist in her father’s care. Ms. Bruno is an educated woman with a university degree and a community college diploma. Once Ms. Bruno actively searches for employment, I am confident that she will have no difficulty in securing a permanent placement. Given this earning capacity, the sec.7 activity expenses amount to less than 5% of Ms. Bruno’s income.

d) These activities are not necessary in Dakota’s best interests. Dakota’s self esteem can be boosted by the parties resolving their problems. Further, too many activities can limit the time that Dakota has available to spend with her father, brothers, and for unstructured play.

e) Ms. Bruno’s budget is based upon an income of approximately $30,000 when she has the capacity to earn between $35,000 and $40,000. Further, the RESP payment of $150 per month may not be possible or appropriate in the circumstances of this family. The brace expense of $192.68 will now be removed as Mr. Keinick will be paying the additional $500. Further, the extra-curricular expense of $465 was overstated.

The horse riding lessons are a gift from Dakota’s grandparents. [ 60 ] The sec. 7 activity expense claim is therefore rejected, on a retroactive and prospective basis. [ 61 ] What provisions apply to the ongoing payment of child support? [ 62 ] The following provisions were not disputed by the parties and will be included in the child support order:

a) Mr. Keinick will continue to name Dakota on the medical, dental and health plan available to him through his place of employment.

b) Mr. Keinick will pay Ms. Bruno $500 for Dakota’s orthodontic work which was completed in 2010 and 2011. This is in addition

to the $1,000 Mr. Keinick has already paid. The reimbursement will be provided within 30 days.

c) Mr. Keinick will provide Ms. Bruno with a copy of his income tax return, together with all schedules and attachments, and all notices of assessments and reassessments on June 1, of each and every year, commencing June 1, 2013 with the 2012 income information. [ 63 ] In addition, Mr. Keinick will pay $629 per month in ongoing support based upon an income of $74,349 as stated in his 2011 tax return. This amount will be subject to an annual recalculation based upon the prior’s year income, commencing in June 2013. Mr. Kennick is to supply the court and Ms.

Bruno with a copy of his income tax information by June 1, 2013 in contemplation of the review hearing, scheduled for Friday, June 13, 2013 at 11:00 a.m., absent agreement. [ 64 ] The usual clauses relating to enforcement and the maintenance enforcement program will apply to the variation order. [ 65 ] Conclusion [ 66 ] The variation application is granted based upon the material changes in circumstances which have occurred since the issuance of the corollary relief judgement. A detailed parenting

schedule has been created in Dakota’s best interests. The plan is detailed to reduce the opportunity for conflict. Therapeutic counselling for each of the parties and Dakota is to commence forthwith so that communication will improve and the loyalty conflict, which Dakota is currently experiencing, will be reduced and eventually eliminated. Further, review dates have been scheduled to confirm therapy particulars and to specify the parenting

schedule for the 2013- 2014 school year. [ 67 ] Child support is varied retroactively with an annual recalculation to occur in June of each year. This recalculation will also be completed at the review hearing scheduled on June 13, 2013. [ 68 ] Should either party wish to be heard on the issue of costs, written submissions are to be provided no later than October 22, 2012 and responses to be provided no later than October 29, 2012. [ 69 ] Ms. McDonald is directed to prepare the order and provide the draft to Mr. Keinick for his approval as to form. If drafting difficulties arise, contact should be made with my assistant, who will then

schedule a brief chambers appearance. _______________________ Forgeron, J.