R.N. v. L. M., 2014 NSSC 396

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: R.N. v. L. M. , 2014 NSSC 396 Date: 2014-11-07 Docket: SFH-MCA 080263 Registry: Halifax Between: R.R.N. Applicant v. L.M.M. Respondent LIBRARY HEADING LIBRARY SHEET Judge: The Honourable Justice Elizabeth Jollimore Heard : October 27, 2014

Summary: Mother terminated father’s access to couple’s seven year old daughter and made reported to law enforcement and child welfare authorities that child had disclosed sexual abuse. Child made no disclosures during three separate interviews with social workers and police. Evidence suggested mother was coaching child who displayed atypical behaviour. Mother sought supervised access for child. Unsupervised access awarded, with transitional

schedule because child had not seen father for approximately one year. Child continuing to be followed by health professionals for concerns relating to her behaviour. Key words: Common law relationship, CPR (2009) 5.11, Family - access to children, Family - child custody, Maintenance and Custody Act , domestic violence Legislation: Maintenance and Custody Act , R.S.N.S. 1989, c. 160,

section 18 Nova Scotia Civil Procedure Rules, Rule 5.11 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: R.N. v. L. M. , 2014 NSSC 396 Date: 2014-11-07 Docket: SFH-MCA 080263 Registry: Halifax Between: R.R.N. Applicant

v. L.M.M. Respondent Restriction on publication: Publishers of this case please take note that subsection 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication. Subsection 94(1) provides: No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or relative of the child.

Publishers of this case further take note that in accordance with subsection 94(2), no person shall publish information relating to the custody, health or welfare of the child. Judge: The Honourable Justice Elizabeth Jollimore Heard : October 27, 2014 in Halifax, Nova Scotia Oral Decision: November 7, 2014 Written Release: November 12, 2014 Counsel: Jennifer K. Reid for R.R.N. Karlan S. Modeste for L.M.M. Introduction [ 1 ] This is the written version of an oral decision I made on November 7, 2104. It has been edited, for completeness and to remove identifying information, but is otherwise unchanged.

This is an application under the Maintenance and Custody Act , R.S.N.S. 1989, c. 160. It relates to the parenting of E, who was born in March 2007 and is now 7. E’s father, Mr. N, and Ms. M, E’s mother, cohabited for six years, from approximately 2004 until 2010. They separated in 2010 when E was three. [ 2 ] Initially, in January 2014, Mr. N applied for an access order. Approximately six weeks later, he filed a motion for interim access. Ms. M filed a response to the application in March 2014, seeking an order for access.

Though directed by Justice MacDonald at a conference in June 2014 to amend her pleadings to claim custody, Ms. M didn’t do so. [ 3 ] Neither party has claimed any other relief, such as child maintenance or costs. Preliminary matters [ 4 ] Shortly before I heard this application, Justice MacDonald granted an order compelling the Department of Community Services to disclose all of its records relating to this family. These were disclosed very late to Mr. N’s lawyer, and they were even later in reaching Ms. M’s lawyer. As well, the records were not copied in their entirety.

This appears to be a matter of working too quickly rather than intentionally failing to provide full disclosure. [ 5 ] Mr. N’s lawyer had subpoenaed an employee from the Department of Community Services and a member of the Royal Canadian Mounted Police. As a result of the late and incomplete disclosure of records from the Department of Community Services, the application was heard on the basis of the testimony of the subpoenaed witnesses and without the records from the Department of Community Services being entered into evidence. [ 6 ] Mr. N initiated the application and filed an affidavit.

When Justice MacDonald set filing deadlines, she set a deadline for Ms. M to file her affidavit and the affidavits of any witnesses she intended to call and a deadline for Mr. N to file reply evidence. Reply evidence may come from any witness, but it is limited to addressing that portion of the respondent’s case which was not known or anticipated when the initial affidavit was filed. Typically these are the only affidavits filed: the applicant’s case; the respondent’s case; and the applicant’s reply. Each party’s case may include evidence from other witnesses.

Depending on the deadlines fixed, some judges may allow the parties to offer brief oral testimony. [ 7 ] In this application, after Mr. N filed his reply affidavit, Ms. M filed three further affidavits: her own, one from her common law partner, and one from her grandmother. None of these affidavits contained material which was unknown to Ms. M when she filed her first affidavit. All three affidavits were filed less than two clear days before the application was heard, leaving Mr.

N with virtually no opportunity to respond. [ 8 ] Most contested proceedings in the Family Division in Halifax proceed on the basis of affidavit evidence. This provides

disclosure to the parties without the expense or delay of discoveries. It utilizes the court’s time efficiently. Parties are to provide all of the factual evidence upon which their claim is based in the affidavits they file. Information is not to be withheld for use in a later “ambush”. [ 9 ] I did not have an explicit motion to allow the affidavits to be filed late: Mr. N asked that I refuse to accept them. Civil Procedure Rule 5.15(2) requires that when I address a motion to allow a late affidavit, I consider the prejudice that would be caused to Ms.

M if the application proceeded without these affidavits, the prejudice to Mr. N if I allowed the affidavits to be filed (including the prejudice from an adjournment), and, if the application was adjourned, the public interest in making the best use of court facilities, judges’ time, and court staff’s time. [ 10 ] The prejudice to Ms. M is that she’s unable to rely on them in support of her case. However, there was nothing to prevent her from filing these affidavits earlier or from more fully canvassing the evidence in these affidavits in her own earlier affidavit. Ms.

M offered no explanation why the evidence in the three late affidavits wasn’t offered earlier. [ 11 ] The prejudice to Mr. N could be resolved by allowing him to offer direct evidence in response to the affidavits and, possibly, allowing him to tender more witnesses. These options would require more time than was available and require an adjournment to complete the hearing. [ 12 ] Mr. N filed his application in late January 2014 when he hadn’t seen E for two months. A hearing date had been scheduled in September and adjourned at Ms. M’s request and over Mr. N’s objection.

When the matter came before me, eleven months had passed since Mr. N had last seen his daughter. [ 13 ] I declined to allow the late filing of affidavits by Ms. M, her common law partner and her grandmother. This ruling did not limit the evidence Ms. M could have offered, where the contents of the affidavits were known prior to the date when Ms. M filed her first affidavit. As well, the ruling ensured that E’s relationship with her father would be resolved without further delay. [ 14 ] With her affidavit, Ms.

M filed a psychological assessment report comprised of twenty-two pages, some of which were blank (which may be the result of a copying error). This was prepared by Anne Hines Farris in June 2014. It was offered in the context of Ms. M’s evidence that E’s school has done psychological assessments and referred E to the IWK Health Centre “for additional assessments in relation to concerns in her development, behaviour and social interactions.” Ms. M said that E’s school has “provided various counselors, special programming and a great deal of support” to her and E.

The psychological assessment report offered Anne Hines Farris’ opinion of E’s intellectual abilities, her academic achievement and her behaviour. It offered recommendations. The report is of an opinion. Anne Hines Farris’ curriculum vitae was not offered, and Anne Hines Farris was not made available to be questioned about her opinion. I declined to admit the report into evidence. [ 15 ] At the outset of the application, I referred the parties to the Court of Appeal’s decision in Slawter v. Bellefontaine , 2012 NSCA 48 , where that Court quashed a decision that a parent’s access be supervised.

The trial judge had given no indication during trial that he contemplated making such an order. It hadn’t been claimed by any of the parties or sought by any of them during the hearing. This meant that no one had the opportunity to lead evidence, cross-examine or make submissions on this possible outcome.

The Court of Appeal held that ordering supervised access, in these circumstances, constituted an error of law. [ 16 ] I raised this decision to preface my comment to the parties that, as I was reading their affidavits I wondered whether, at conclusion of evidence, I might want to consider the prospect of a parenting arrangement not sought by either parent, such as shared custody or changing E’s custody. I wanted to alert the parties so that they would consider these options in presenting their evidence, questioning witnesses and making their submissions.

Family history [ 17 ] The parties had been cohabiting for approximately three years when their daughter, E, was born in 2007. The following year they moved from British Columbia to Nova Scotia. Both parents described the relationship as one involving physical and emotional abuse. Mr. N was twice arrested, and he was required to complete a course relating to domestic violence. He said that by his own choice, he remained in the course longer than required so he could derive the fullest benefit of it.

He said the consequences of his actions became apparent to him when, following one incident, young E refused to be near him the following day. He said that since then his behaviour has changed. Mr. N directly answered questions about the couple’s abusive relationship. He said that Ms. M was also verbally and physically abusive. Ms. M did not agree with this. She described events as one-sided. [ 18 ] Since their relationship ended in 2010, both parents have formed new partnerships. Mr. N’s partner, SB, described her relationship with Mr. N as “very positive”.

She said there has “never been any abuse, either physical or emotional, between us.” [ 19 ] Both parents offered evidence about the division of labour in caring for E when she was an infant and toddler. E is now seven years old, and this information is of limited relevance to me. [ 20 ] According to Ms. M’s affidavit, in 2010 she started to notice E’s behaviour change: E seemed depressed, anxious and was having social difficulties. While Ms.

M made these observations, she didn’t identify any steps she took at that time to pursue counseling for E or to investigate the cause of these changes in her behaviour. [ 21 ] In her affidavit, Ms. M said that E would make inappropriate comments or gestures or would withdraw and want to be alone. Ms. M said she noticed E didn’t want to wipe herself after using the bathroom. Ms. M said she believed E was “unhappy at school or where [they] lived”. They moved and E changed schools last fall. After this, Ms. M said she was told that E was trying to kiss and cuddle with her male teachers. [ 22 ] Once, Ms.

M observed that E tried to urinate while standing up. This appears to have occurred after E saw her father doing this – he had taken her into the washroom at a fast food restaurant when he and she were there. He wanted to use the washroom and couldn’t leave her alone. Either she came into the stall or he left the door open so he could watch her. It isn’t possible to say when these events

occurred. Neither parent provided a chronology. [ 23 ] Her parents’ separation in August, 2010 was the first of various changes for E. Mr. N said that from November 2010 until November 2011, he saw E on alternate weekends from Saturday at noon until Sunday at noon. Thereafter, he was allowed to see E for a full day, either Saturday or Sunday, on alternate weekends. [ 24 ] Both her parents began new relationships in 2012 and began to cohabit with their new partners within months of starting to date them. According to each parent, the other parent responded poorly to his or her new relationship. Ms. M says that Mr.

N began to request more contact with E once he was dating SB. Mr. N denies this and says that Ms. M was willing to allow E more time with him, because Ms. M wanted to spend time with KC. Regardless of the reason, both parents agree that when each re-partnered in 2012, E began to spend more time with her father. [ 25 ] In February 2012, Ms. M began to share an apartment with KC. Two months later, they moved to a different apartment. Three months later, they moved into a house where they lived when E’s half-brother was born. One year later, in November 2013, the family moved again.

This move required E to change schools. Since changing schools, there has been at least one report from the school about E. [ 26 ] Ms. M’s new partner, KC, was the conduit for communication between the parents about E and access. KC had the couple’s sole cell phone which would frequently “run out of minutes” midway through each month, leaving Mr. N with no way to communicate about E or access. Mr. N said that communication with KC was reasonable initially: he and SB would see E on average every three weeks on Sundays. Transfers would occur at a public location like the mall where KC worked or, later, at Sobeys.

Over time, communication with KC dwindled. Mr. N understood that KC was working nights. Mr. N felt KC was ignoring his text messages. If Mr. N contacted Ms. M she wouldn’t respond. Eventually, Mr. N and SB were seeing E only once each month. [ 27 ] Mr. N said he’s paid $100.00 biweekly in child maintenance, making two or three payments each month. He said his payments didn’t begin immediately after the separation and that in recent months he couldn’t make the payment because Ms. M closed the account into which he was depositing his payments. Mr.

N said that the date of his payments varied, but they were always paid. There is no child maintenance order in place, and child maintenance has not been claimed in this application. Mr. N earned $23,026.00 in 2013. At this income level, his monthly child maintenance payment is $193.00. [ 28 ] Ms. M said that on November 3, 2013 when E came home from a visit with her father, she “made a gesture and comment of a sexual nature, which concerned” Ms. M. Ms.

M decided at that point not to allow any further visits between E and her father. [ 29 ] Approximately one month later, on December 2, 2013, after repeated text messages requesting a visit with E, Mr. N received a text message from KC’s phone which said: Its just not a good time lots going on with [E] and lots of inapropiate behaviour at school so it has recently been recommended that she be stricktly monitored by [Ms. M] and myself. Meaning as of last Friday she basically doest leave our sight aside from going to school. Which needless to say has made this a really interesting week.

So I apologize for not getting back to you more rapidly just been a little busy dealing with this stuff. @ [ 30 ] According to Mr. N, following this text, he spoke with KC on the phone. KC explained that the concerns about E at her school had to do with her trying to cuddle a male teacher. It does not appear that the school reported this to the Department of Community Services. Mr. N said that in this conversation, he was not told that there were any allegations or concerns relating to him. [ 31 ] After unsuccessful efforts to reach Ms. M and KC, Mr. N contacted Ms.

M’s grandmother trying to arrange to see E over the Christmas holidays. Apparently in response, he received a text message on December 27, 2013 from KC’s phone. The message said: Basically you have no more visitation rights. Supervised or otherwise. No phone contact. We will be taking you to court. The next contact with us will be through our lawyer. And you should avoid contacting [Ms. M]’s family. As I said the next contact from us will be through our lawyer. Regardless of this text message, no lawyer contacted Mr. N and when the motion first came to court more than three months later, Ms.

M appeared without counsel. Investigations by the Department of Community Services and RCMP [ 32 ] According to Terri Pitcher, a social worker employed by the Department of Community Services, she met with E and then with E, her baby half-brother, Ms. M and KC following a referral that Ms. M had been yelling and swearing at E. [ 33 ] Later, in November 2013, there was a referral that Ms. Pitcher believed came from Ms. M, saying that E was demonstrating sexualized behaviour and mimicking the actions of a man masturbating. Ms. M brought E to Ms.

Pitcher’s office where E was interviewed privately on December 13, 2013. E made no disclosure of sexual contact or abuse. After the interview Ms. Pitcher spoke with Ms. M, letting her know the file would be closed. [ 34 ] According to Ms. Pitcher another referral came to the Department of Community Services six days later, on December 19, 2014. This referral came from E’s school: E had been in the sickroom where she said that her dad did bad things to her. E said that she couldn’t see her dad anymore and that she missed him. E said that her stepdad sometimes yelled. E provided no further information.

Before this referral could be investigated there was another referral on January 6, 2014, this time from the police who had received a report on January 1, 2014. [ 35 ] The police referral was the result of a complaint by Ms. M that E was doing inappropriate things to her baby half-brother. Ms. M said she found E in the basement playroom with her one year old brother, “holding her baby brother’s hand against her vagina and rubbing herself.” Ms. M said she asked E where she learned to do this and E told her “daddy [RN – the child used her father’s first and

last names] showed me how to do that, but he said I wasn’t supposed to do that with my brother”. Ms. M said that this was not the first time she contacted the police about her suspicions of E being sexually abused by Mr. N and SB. [ 36 ] On January 7, 2014, E was jointly interviewed by Constable Margaret Sharpe of the RCMP and Hans Rhindress, a co-worker of Ms. Pitcher’s. Ms. Pitcher was unavailable to participate in the interview. The interview took place at the Community Services office. E did not disclose any behaviour which Constable Sharpe felt warranted continuing a criminal investigation.

Constable Sharpe testified that E was a very active little girl and seemed bright. E was “super active” and it was hard to keep her attention and to get a narrative from her. [ 37 ] In the interview, E mentioned that she had bad daddy and a good daddy, and she used her father’s first and last name to identify Mr. N as the bad daddy. When asked to “tell us” why he was the bad daddy, E said because he “was rude”. The interviewers used open- ended questions in eliciting information from E. When asked what she meant by “rude”, E “grabbed at her jeans” and said he “does this”.

She was asked “what do you mean?” and she answered “well I’ve never seen him do that”. She was then asked “why would you say that?”, and she answered “I don’t know”. She said that she missed her father, and he missed her. Constable Sharpe said it was not possible to get more information from E without leading her, suggesting answers to her. [ 38 ] Following the interview with E, Constable Sharpe and Mr. Rhindress met with Ms. M, to tell her that the RCMP would no longer be involved, but the Department of Community Services could stay involved. [ 39 ] According to Ms.

Pitcher, there was another referral from the school when E described herself as “rude” because she pinches her little brother’s penis. Ms. Pitcher phoned Ms. M who said that she was arranging counseling through KC’s employee assistance program. [ 40 ] Ms. Pitcher met with Mr. N and SB in early April 2014. This was the first time she met them. She had not met with them earlier because she understood from Ms. M that Mr. N had no contact with E. The meeting was initiated by Mr. N who called saying he had just learned of the Department’s involvement with E. According to Mr.

N, he first learned of the allegations against him when the parties appeared before Justice MacDonald to hear his interim motion for access. This was scheduled for April 4, 2014. [ 41 ] Mr. N’s reaction to Ms. Pitcher’s review of her file was one of shock and tears. Both he and SB denied any sexual abuse. Ms. Pitcher described them as “surprised and taken aback”. She said she told him that E had been interviewed and made no disclosure. She saw the matter not so much as one of child protection but something for Mr. N and Ms. M to work out. She said “we weren’t going to deny him access” to E. Ms.

Pitcher said the same information was confirmed with Ms. M. [ 42 ] Some of Ms. Pitcher’s evidence was difficult to follow. She appeared not to have reviewed her file before testifying, and she had difficulty following her notes which were on double-sided pages that were not stapled together and appeared to be in no particular order. [ 43 ] In early April Ms. M made a further referral: SB was either involved in E’s sexual abuse or was a witness to it. [ 44 ] Constable Sharpe’s involvement resumed on April 14, 2014 when she received an email describing another referral.

This time, E was said to have disclosed that Mr. N stuck sticks into her. The referral made reference to no one other than Mr. N. There was no reference to SB. [ 45 ] Ms. M called Terri Pitcher on April 14, 2014 and said she had taken E to meet with Shireen Singer at the IWK Health Centre. Ms. M said that Ms. Singer diagnosed E with post-traumatic stress disorder. Ms. Pitcher said she spoke with Ms. Singer on April 17, 2014. According to Ms. Pitcher’s notes, Ms. Singer conducted a post-traumatic stress disorder screen but did not offer a diagnosis. E did not make any disclosure to Ms. Singer. Together, E and Ms.

Singer read a book, and E said that KC yells at her and makes her cry. E said that her mom and KC keep her safe at home and that Mr. N helps her with Angry Birds and “tries to trick her by being nice”. She said that “daddy [N] would have a big timeout in jail”. [ 46 ] Ms. Pitcher and Constable Sharpe interviewed E at the Child Advocate Centre at the IWK Health Centre on April 23, 2014. Constable Sharpe said E was very active, swinging off chairs and stepping on them. E said that she didn’t know the difference between the truth and a lie and immediately followed this by saying that Mr. N was bad and rude.

Constable Sharpe thought it was odd that E would go directly to Mr. N. She said it was almost like E knew why she was coming to the interview. Constable Sharpe explained that when children are interviewed, the interviewers say that they want to chat with the child, and they speak very generally because they don’t want the child to know why the interview is being conducted.

They ask general questions when the interview begins, to establish rapport with the child, before moving to questions about the child’s home and family. [ 47 ] Constable Sharpe said that E was asked why she would say her father was bad and rude, and E responded by saying “he does this to me” and pulling at her jeans by her upper leg. When E was asked “why do you do that?”, E said “I don’t know”. She was asked why she didn’t know and she responded, “my mom told me he does that”. E was asked “when?” and she said when she was “three”.

E also mentioned that “daddy [N] is going to a big time out.” E explained that he was going to jail and that her mom said he was mean so he was going to jail. [ 48 ] E also talked about having sticks in her feet, and being camping with no adults around. The description Constable Sharpe gave of E’s remarks was of a series of non sequiturs . Constable Sharpe and Ms. Pitcher shared the task of interviewing E: whoever had E’s attention would ask the questions.

Her answers were so disconnected that it was necessary to ask direct questions such as whether she was describing a dream when she talked about camping and having sticks in her feet. [ 49 ] Constable Sharpe felt that E might have been influenced or coached in what to say during the interview. She said the influence may have come from Ms. M because when E said she didn’t know something, and was asked why she would say it, E would say it was because her mother told her. [ 50 ] Constable Sharpe was struck by E’s attention span: she wasn’t able to maintain eye contact, sit still or sustain a conversation.

[51] Following this interview, Constable Sharpe and Ms. Pitcher spoke with Ms. M. Constable Sharpe said that the RCMP file wasbeing closed, and that she was going to speak with Mr. N. Constable Sharpe said that Ms. M was very frustrated. According toConstable Sharpe, Ms. M said that E had told a counsellor or social worker what had happened. Constable Sharpe said “we found thatnot to be the case”. [52] Immediately after this interview on April 23, 2014, Ms. M called Donna Best. Ms. Best is the child advocate at the IWK HealthCentre. Ms. M called Ms.

Best to say that E was crying in the car because she didn’t want to speak with Constable Sharpe or TerriPitcher because they didn’t know her name and Mr. N put his finger in her vagina. [53] E wasn’t interviewed following this referral. Terri Pitcher had interviewed E, Constable Sharpe and Hans Rhindress hadinterviewed E, and Constable Sharpe and Terri Pitcher had interviewed E. Constable Sharpe felt there was nothing to be achieved by afurther interview. [54] Constable Sharpe met, one-on-one, with Mr. N on May 1, 2014. She said she cautioned him and explained that he was not underarrest. She said Mr.

N started from the beginning of his relationship with Ms. M and was “up front” and told her about past situationswith the police and Ms. M. She said that Mr. N told her things that he “probably didn’t have to tell me”. She felt he was “prettyforthcoming”. He described that he was seeing E for less than eight hours each month and always in the presence of SB. [55] Constable Sharpe also met with SB; again it was a one-on-one meeting. She heard that SB took time off work so that she couldbe with Mr. N when E visited.

According to SB, they did not bathe E, except possibly once after painting when E had to change herclothes. SB said she and Mr. N live in a small apartment so interactions with E would be observed. Constable Sharpe felt SB was “openand honest”. [56] The information from SB suggested there was little opportunity for Mr. N to have sexually abused E: there was little privacy inthe apartment and little time, if any, when Mr. N was alone with E. [57] When Ms. M took E to be interviewed by Shireen Singer, she requested that E have a physical examination. Dr.

Alfredperformed an external examination on April 23, 2014 and, according to Terri Pitcher, Dr. Alfred reported seeing no signs of trauma. Dr.Alfred spoke to Ms. M about E’s hygiene and expected to follow up with a letter to her. Parents’ positions [58] Mr. N’s application sought joint custody and an immediate transition to reinstate access. Initially, Ms. M sought an order thatMr. N have no access.

At the beginning of the hearing, her counsel advised that she was willing to consider supervised access with third-party service providers offering guidance on the appropriate transition. [59] Both parties agreed that Mr. N should have access to third parties who could provide information about E.

Accordingly, I orderthat both parents may directly contact E’s teachers, school authorities, health care providers, doctors, dentists, counselors, therapists andadults involved with her extracurricular activities to request information about E and each may receive information directly from theseindividuals or affiliated institutions. Mr. N must arrange receipt of E’s report cards, school progress reports and school pictures. Mr.

N’sname shall be added as an emergency contact for those individuals or institutions who maintain such records for E, and he is authorizedto have contact with her, to pick her up or drop her off at places as required by my decision. The Maintenance and Custody Act [60]

Section 18 of the Maintenance and Custody Act governs decisions about parenting children. According to subsection 18(4), achild’s mother and father are joint guardians and equally entitled to care and custody of the child unless a court orders otherwise. Subsection 18(6) outlines factors which I must consider in determining what parenting arrangements are in E’s best interests, because herbest interests are the paramount consideration.

Custody [61] In Rivers, (NS SC) at paragraphs 50 to 53, Justice Stewart identified a series of questions to be considered indetermining whether joint custody is in a child’s best interests. Her decision was in the context of a corollary relief proceeding under the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, but I believe that the same considerations are relevant to a determination under theMaintenance and Custody Act. I’ve re-stated Justice Stewart’s questions below. (

a) Has each parent maintained a meaningful relationship with the child? (

b) Does each parent have parenting capabilities that are adequate to meet the child’s needs? (

c) Will the parents be able to make decisions together about the child? (

d) Are the parents able to co-parent despite any conflict between them, isolating their feelings about each other as former partners fromtheir relationship as parents and their child’s needs? (

e) Will the child be involved in conflict between the adults? (

f) Will a joint custody arrangement cause disruption and discontinuity to the child’s developmental needs? [62] Each parent has maintained a meaningful relationship with E. E has made positive remarks about her father during investigativeinterviews. Ms. M’s denial of access has focused on allegations of sexual impropriety. Other concerns she has raised exist because ofthe communication vacuum between the parents: since the parents do not talk, there is plenty of ground for misunderstandings aboutbumps, bruises and words E uses. She has not raised other concerns about his parenting capabilities.

[63] The parents are not able to co-parent. The conflict which existed in their relationship has never been resolved. While Mr. Nreaches out to her, Ms. M cannot engage in any dialogue with him. In this environment they cannot make decisions about E together. Todate, E has been involved in conflict between the adults. Her parents separated four years ago and their relationship has not improved tothe point where they can communicate effectively. [64] Joint custody is not possible in these circumstances, so I must decide who will become E’s primary decision-maker. [65] To date, Ms.

M has been more significantly involved in E’s health care. She argues that she has acted appropriately in referringE’s actions and conduct to child welfare authorities and police and in denying contact between E and her father. In his submissions, Mr.N argued that every time an investigation was closed, a new referral would be made. Implicit was the suggestion that Ms. M wasmanufacturing the referrals. However, two referrals came from E’s school (that E was trying to cuddle male teachers and that she saidshe pinched her half-brother’s penis). I am unable to conclude that Ms. M’s actions have been malicious.

Isolating a child from a personalleged to have abused the child is appropriate. Here, that isolation was maintained for many months after law enforcement and childwelfare authorities concluded their investigations. There have been no further allegations since the spring. Ms. M was very slow toconsider the reintroduction of access between E and her father, though this could have been managed in a safe fashion well before now. [66] Ms. M’s actions cause concern that if she is the sole decision-maker, her decisions may not respect Mr. N. For his part, Mr.

Nhas not been sufficiently involved with E since the separation in 2010, that he would be an appropriate sole decision-maker. He and SBhave not experienced E’s behaviour as it is described by Constable Sharpe, Terri Pitcher or Ms. M. He has not been involved in theschool, police or hospital investigations into her circumstances, so he brings less knowledge to making decisions in those contexts. [67] I conclude that Ms. M should have sole custody of E, meaning that she will be able to make major decisions on E’s behalf. Theturmoil of the past year is significant. If Ms.

M is not able to put that behind her and make decisions motivated by E’s best interests, itmay be that decision-making authority must change. I am unwilling to make such an order at this point. [68] I urge Mr. N to take full advantage of the third-party information order. Personnel at E’s school and the IWK Health Centre aresources of important information about this little girl. Mr. N and SB want to contribute positively to E. They can best do this when fullyinformed of the circumstances.

E’s parenting time [69] In determining E’s best interest, I am required to consider the factors outlined in subsection 18(6) of the Maintenance andCustody Act. This means considering her physical, emotional, social and educational needs, including her need for stability and safety,her age and stage of development. I am also to consider each parent’s willingness to support the development and maintenance of E’srelationship with the other parent, and the history of her care. I am to consider the plans each parent offers and E’s cultural, linguistic,religious and spiritual upbringing and heritage.

I am to consider the nature, strength and stability of the relationship between E and eachof her parents and other significant individuals in her life. I am to consider each parent’s ability to communicate and cooperate on issuesaffecting E and the impact of family violence, abuse or intimidation. [70] I have been given no information which suggests E’s stage of development is either particularly advanced or delayed, thoughthere are unanswered questions about her development. No plans have been identified regarding her particular cultural, linguistic,religious, spiritual upbringing and heritage.

Accordingly, there is nothing to consider having regard to clause 18(6)(e). [71] I have not itemized consideration of each of these factors in my decision.

I have been mindful of the parents’ relationship witheach other, the impact of their past violent relationship, E’s need for stability and continuity and her relationship with each of her parentsand their partners and her young half-brother. [72] When the hearing began, I gave the parents notice that I might order a shared parenting arrangement or change E’s residence,telling them that I was open to all possibilities, particularly where the evidence of two significant witnesses, Constable Sharpe and TerriPitcher, wasn’t known. The evidence of Ms.

Pitcher and Constable Sharpe and the continued involvement of personnel from the IWKHealth Centre all persuade me that E has needs which have not yet been clearly identified or met. [73] E was exposed to her parents’ violent relationship and, then, to many transitions as her parents re-partnered and her homes andschool changed. I’m unwilling to impose any further change to her home or school by removing her from her mother’s primary care. Supervised access [74] Like every other aspect of custody and access, whether access is to be supervised must be determined on the basis of the child’sbest interests.

In L.A.M.G. v. C.S., 2014 BCPC 172 at paragraph 35(c), Judge Woods provided an excellent review of considerationswhich he felt could “legitimately arise” when entertaining the possibility of a supervision order.

Among these, I note some which mustbe acknowledged in these circumstances: the need to protect the child from physical, sexual or emotional abuse, whether the child isbeing re-introduced to a parent after a significant absence, a history of domestic violence between the access and primary care parent anda history of parental alienation. [75] In Abdo, (NS CA), Justice Pugsley wrote the Court of Appeal’s unanimous reasons and made clear that theburden of proof is on the parent seeking to restrict access to show that this is in the child’s best interests. Ms. M bears this burden andshe has not discharged it.

There have been reasonable explanations for events which Mr. N admitted and insufficient proof of eventswhich he denied. E’s behaviour, as described by others, raises concerns about her development, but these concerns have not been shownto be beyond what Mr. N is capable of handling. [76] Ms. M was not explicit in explaining why she no longer sought to prohibit access and was willing to consider supervision. Shedid not specifically identify a reason why she wanted access to be supervised: to ease the return to access or to protect E or both? She didnot address this in her evidence or her argument.

It was not clear whether she no longer believed that E had been sexually abused or ifshe felt that seeking supervision was simply a more reasonable claim.

[ 77 ] At paragraphs 87 to 90 in L.E. S. v M.J.S , 2014 NSSC 34 , I described various types of parenting supervision. If supervision was appropriate in this case, it would be to ensure visits are comfortable for E as she resumes her relationship with her father. However, the evidence I heard from Mr. N is that he had a good relationship with E. SB’s evidence was that E was excited to see her father and “would be trying to jump out of the car at Sobeys before it was even stopped. [E] would run up to [Mr.

N] and say I love you Daddy I missed you Daddy.” [ 78 ] To return to the considerations Judge Woods mentioned in L.A.M.G. v. C.S. , 2014 BCPC 172 at paragraph 35 (c) , I am not satisfied that E requires supervision to protect her from physical, sexual or emotional abuse. While E has not seen her father for almost one year, she is at an age when she knows who he is and his relationship to her. He is not a stranger. The history of domestic violence between Mr. N and Ms. M means contact between them should be minimized when E is transferred at the beginning and end of visits. Mr. N must have a way of contacting Ms.

M. If she prefers it to involve her partner this is acceptable, but it is absolutely unacceptable that there be only one telephone which does not work for days or weeks each month. I’ve touched upon Ms. M’s actions in paragraph 65 and am not to the point of concluding that she has been attempting to alienate E from her father. [ 79 ] I expect that if Mr. N simply reappeared in E’s life, this may cause her some confusion: E says she has been told her father is going to have “a big timeout” and that he is “rude” and “bad”. Ms.

M must prepare E for visits with her father, letting her know that they will happen and when they will happen. Dr. Hopkins, Donna Best and Linda MacEachern must be provided with a copy of this decision which will let them know what is happening for E. Mr. N shall do that. [ 80 ] I am creating a transitional

schedule for E. Beginning this weekend, on November 8 and 9, E will see her father for two hours each afternoon. She will see him for four hours during the afternoon on both November 15 and 16. E will spend six hours with her father on November 23 and she will be with him from noon on December 6 until noon on December 7. E will be with her father for six hours on December 14 and from noon on December 20 until noon on December 21. She will be with father from noon on December 26 until noon on December 28. Mr.

N and SB will determine the times at which visits on November 8, 9, 15, 16 and 23 will occur. [ 81 ] Beginning in 2015, E will be with her father from Friday after school until Monday morning when school resumes on alternate weekends, starting on the weekend of January 9. If the weekend is extended by a holiday (such as Nova Scotia Heritage Day, Good Friday, Easter Monday, Victoria Day, Natal Day, Labour Day or Thanksgiving), the weekend shall be extended by twenty-four hours to encompass the holiday. There shall be no special

schedule for Canada Day or Remembrance Day. Canada Day may fall within either parent’s summer time with E, and Remembrance Day will be spent with the parent with whom E is scheduled to spend that day in any event. [ 82 ] Regardless of whether it falls on his weekend, E will be with Mr. N from 10 a.m. until 6 p.m. on Father’s Day. Similarly, even if it falls on his weekend, E will be with Ms. M from 10 a.m. until 6 p.m. on Mother’s Day. [ 83 ] The school spring break will be divided between the parents.

E will spend the first portion of break with the parent with whom she is spending the first weekend and the second portion of the break, starting at 6:30 p.m. on Wednesday, with the other parent. [ 84 ] I am making no special provision for time with E or the parents on their birthdays. These occasions can be accommodated with parties or celebrations on adjacent weekends. [ 85 ] Starting in 2015, Mr. N may have three periods of block access with E during the months of July and August each year.

Each period shall be no longer than seven days and each period must be separated by at least five days from every other period. Mr. N must notify Ms. M when these periods will be by the end of May of each year. No particular time is set aside for Ms. M to have block access. She is not employed outside the home. If she becomes employed outside the home, the parties may need to revisit this. [ 86 ] I appreciate that Mr. N would like to spend Christmas this year with E and he did not have access with her last year at Christmas.

I am sympathetic to that request but I am more concerned with the need to create a smooth transition for E. So, Mr. N’s Christmas access will occur from noon on December 26 until noon on December 28, 2014. [ 87 ] Beginning in 2015 and continuing in odd-numbered years, E will spend time with her father from December 22 at noon until December 26 at noon. Starting in 2016 and continuing in even-numbered years, E will spend time with her father from December 26 at noon until December 30 at noon. E’s usual access

schedule of alternate weekends will be suspended every year from the day school ends until December 30 at noon when the usual

schedule will resume.

In some even numbered years, this may mean that E will stay with her father from December 26 until she returns to school. [ 88 ] Both parents are able to attend E’s public activities, such as school concerts or team sports. [ 89 ] Each must provide the other with a telephone number and email address where he or she can be reached. [ 90 ] Neither parent may remove E from Nova Scotia for any period in excess of two days unless he or she provides the other parent with thirty days’ notice of his or her intention to remove E from the province, a detailed itinerary outlining where they will be during the absence from the province and information to enable contact while outside Nova Scotia.

Mr. N is able to take E to Cape Breton during his access with her. [ 91 ] Ms. Reid shall prepare the order. ________________________________ Elizabeth Jollimore, J.S.C. (F.D.)

Halifax, N.S.