Fedortchouk v. Boubnov, 2017 NSSC 233

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Fedortchouk v. Boubnov, 2017 NSSC 233 Date: 20170831 Docket: 1201-065948 Registry: Halifax Between: Iana Fedortchouk Petitioner and Pavel Vladimirovich Boubnov Respondent Judge: Associate Chief Justice Lawrence I.

O’Neil Heard: December 7, 8, 9, 2015; January 25, 26, 27, 2016; February 10, 12, 22, 24, 29, 2016; October 17, 18, 19, 21, 24, 2016; November 15, 21, 2016; March 3, 17, 20, 21, 2017; and May 9, 2017, in Halifax, Nova Scotia Written Submissions: May 2017 Counsel: Iana Fedortchouk, Self-Represented Pavel Boubnov, Self-Represented By the Court : Introduction [ 1 ] The parties are the parents of four children. Three of the children are under the age of majority.

The oldest child is attending a post-secondary educational institution and the parties have not asked the Court to rule on ongoing parenting or support issues related to him. All four children have been enmeshed in the parents’ marital litigation and ongoing conflict since the parties’ separation on October 1, 2010. [ 2 ] The parties made oral submissions on May 9, 2017. While this decision was under reserve, the parties once again were in this Court.

In my absence, Justice Jollimore issued a ruling relative to the parenting of the youngest child. [ 3 ] The father filed an emergency application to confirm that he would be the primary care giver for the youngest child while the

mother was out of the country from June 10 to June 30, 2017. Justice Jollimore ruled that he would be. [ 4 ] That the application was necessary is illustrative of the high level of conflict which exists. [ 5 ] On August 3, 2017 Mr. Boubnov requested a judicial conference to address what he describes as a unilateral decision to register Galina Boubnova, D.O.B. February 25, 2002 at Citadel High School. She had been attending Sacred Heart School. [ 6 ] Mr. Boubnov also seeks a Voice of the Child Assessment for the said child, as well as for the child Iakov Boubnov, D.O.B.

February 25, 2005. [ 7 ] Their litigation has consumed a significant amount of the parties’ resources as measured in time, energy, money and quality of life.

Their litigation has also consumed significant Court resources including judicial resources and the time of outside professionals forced to intervene in the lives of members of this family. [ 8 ] Although the Court does not have empirical evidence or a professional assessment of the toll this litigation has taken on the children, the Court does have extensive evidence as to the children’s circumstances and is satisfied they have paid a heavy price because of this conflict. Parents’ Relationship [ 9 ] The father claims that the mother has long engaged in conduct he describes as parental alienation.

For purposes of this discussion, I will use the expression to mean she undermines his role as a parent in various ways. He alleges she does this by speaking negatively of him, including his professional and personal standards and his level of responsibility. [ 10 ] In the first decision in this matter, I described the parties as having different parenting styles. This is a significant understatement. [ 11 ] The father has a more relaxed parenting style. He is balanced in his response to and his assessment of circumstances involving the children.

He is also respectful and understanding of the role of each parent and indeed the role of the Court. Given he is a lawyer, some of this is understanding. [ 12 ] The mother’s presentation is that of a highly intelligent, focused and ambitious person. She is confident in her views and often single minded. [ 13 ] She holds the father in contempt. Through the many days of this litigation, beginning in 2013, she has insulted, demeaned and attempted to diminish the father.

Even in the face of frequent admonishment from the Court, the behavior would be repeated before the Court. [ 14 ] She has been unable to discipline herself and to keep her emotions in check even in the face of the Court. It is not difficult to imagine what she must be communicating to the children, about the father, both verbally and non-verbally. [ 15 ] This is a high conflict divorce. [ 16 ] The mother has chosen on occasion to disregard Court Orders. [ 17 ] In all of the circumstances, I am satisfied on a balance of probabilities that the mother will use all, in her power, from time to

time to dictate the terms of the father’s parenting. The Court must therefore carefully consider the authority and discretion accorded to each parent when outlining the parenting arrangement for the children. In determining what is in the best interests of these children, the foregoing dynamic must be a significant consideration. [ 18 ] To assist the parties and interested persons to know the context of this decision, I will repeat the introduction and the

summary of litigation forming part of my first decision, released September 9, 2013 ( Fedortchouk v. Boubnov , 2013 NSSC 277 ): Introduction [1] The parties married in 1993 and separated on October 1, 2010. The subject separation agreement was registered April 28, 2011. An application to vary was filed June 6, 2011; a Petition for Divorce on February 20, 2012. [2] The parties immigrated from Russia in 1999 with their oldest child. Three other children were born in Canada. They settled in Victoria where Mr. Boubnov obtained a law degree and Dr. Fedortchouk completed her studies in geology.

They left Victoria in 2006 and lived in Whitehorse for one year (August 2006 - July 2007) and then moved to Halifax where Dr. Fedortchouk currently is a tenured professor at Dalhousie University and Mr. Boubnov practices law. [3] They have four children: Arsenij, born September 8, 1995; Galina, born May 12, 2002; Iakov, born February 25, 2005 and Anton, born September 15, 2010. [4] The middle children have been in a shared parenting arrangement since January 2010. The youngest has always been in Dr. Fedortchouk’s primary care and the oldest has been in Mr. Boubnov’s primary care since late September 2011.

Prior to late September 2011, the oldest was also in Dr. Fedortchouk’s primary care. [5] The Court advised the parties that it would address their financial issues first and then consider anticipated applications to vary the parties’ parenting arrangement as set out in their separation agreement registered on April 28, 2011. [6] In January 2013 Dr. Fedortchouk advised the Court and Mr. Boubnov that she wished to further modify her application. She wanted to take the children to Zurich for six months beginning July 1, 2013, and to another location to be determined for the following six months. Dr.

Fedortchouk has been approved for a year long sabbatical. [7] She emphasized that she needed to have a Court ruling before the end of March 2013. That was not possible. Mr. Boubnov was not prepared to respond to this request in January 2013. The Court decided to proceed with the January 2013 hearing and to deal only with the parties’ disagreement about financial issues. The Court decided it would only hear the ‘mobility’ application as part of its consideration of parenting issues at a later date. [8] The hearing to address financial matters proceeded on January 28 and 30, 2013.

Additional time was required and evidence was also heard on Monday, February 4, 2013. Dr. Fedortchouk completed her evidence that day. [9] The Court resumed on February 6, 2013 on an emergency basis to address a disagreement between the parties that arose over whether the youngest child would be cared for by his father in March when Dr. Fedortchouk was to be away for two weeks. The alternative was a plan prepared by Dr. Fedortchouk to leave Anton with a child care provider known to the child. The Court ruled on this matter on February 6, 2013 after hearing from the parties. History of Litigation

[10] For ease of reference the following chronology is given. It is telling evidence of the high conflict between the parties and puts the current hearing in context. [11] As stated, the parties entered a separation agreement dated December 20, 2010. In April 2011, Dr. Fedortchouk sought to vary the terms of the agreement. However, the agreement had not yet been registered. She therefore registered the agreement on May 6, 2011 and re-filed her variation application on June 6, 2011.

She was seeking inter alia primary care of the children pursuant to the terms of the Maintenance and Custody Act , R.S.N.S. c. 160, 1989. Divorce Act S.C. 1985, c. 3 (2nd Supp .). [12] On December 12, 2011, June 4, 5 and 6, 2012 were set aside to hear the matter. [13] Justice Legere Sers’ conference memorandum reflecting the parties’ appearance before her on December 12, 2011contains the following: 3. The Court encouraged the parties to seek other opportunities to resolve the outstanding issues, in particular, a mediator or a collaborative law lawyer. 4.

The parties are currently operating under a Separation Agreement registered with the Supreme Court of Nova Scotia on May 6, 2011. Ms. Fedortchouk filed an application to vary, based on a change of circumstances, and seeks: a. Primary care of the three younger children; b. Amended parenting schedule; c. Sole decision-making authority for any medical, extracurricular, education or other issues relating to the children; d. Retroactive and prospective child support based on actual income retroactive to October 2011; e. Retroactive and prospective contribution to

Section 7 expenses, proportionate to the income of the parties retroactive to October 2011, and wishes this amount to be fixed; f. Set off of any entitlement to Mr. Boubnov from the equity of home, if a retroactive award is granted; g. Impute income to Mr. Boubnov, i.e., mileage; h. Authority to file an application for a passport; i. Order for Production for the medical file of Mr. Boubnov; and j. Consolidation of this proceeding with a future Petition for Divorce. 5. Ms. Fedortchouk is also seeking a parental assessment of Mr. Boubnov’s parenting skills. She seeks disclosure of his medical file. a. Mr.

Boubnov does not agree to the disclosure of the entire medical file. He shall consider obtaining a further letter from his doctor which speaks to the issue of his ability to focus or parent a child. b. If he chooses not to produce such a letter or the letter is not acceptable to Ms. Fedortchouk and she chooses to subpoena the doctor, the Court is prepared to provide directions on the vetting and/or sealing of the materials. 6. Mr. Boubnov agrees that Ms. Fedortchouk can file an application for the passports for the children.

7. The parties agree to attend counselling sessions with Debra Garland to assist them in co-parenting the children. 8. Mr. Boubnov intends to file an application to vary, based on a change in circumstances and shall file a reply affidavit, identifying what he is seeking. He advised he is currently seeking: a. Joint custody with primary care of the middle two children, with generous access to the mother and primary care of the oldest son; b. Child support, retroactive to October 1, 2011; c. Proportionate sharing of

Section 7 expenses, such as child care. [14] However, Justice Williams was required to deal with the parties on an emergency basis in December 2011 and scheduled an emergency hearing before me in January 2012. Justice Williams also ordered a custody and access assessment. [15] A Petition for Divorce was filed February 20, 2012 by Dr. Fedortchouk. An answer on March 9, 2012. By virtue of the Divorce Act S.C. 1985, c. 3 (2nd Supp .) the divorce proceeding subsumed the Maintenance and Custody Act, R.S.N.S. c. 160, 1989 proceeding.

Hearing dates had already been scheduled for June 4, 5 and 6, 2012 to address the ‘MCA’ application. A one hour conference with the parties was therefore scheduled before me for late March, 2012 to confirm future hearing dates and issues to be addressed. [16] Ms. Dianne Paquet appeared as counsel with Dr. Fedortchouk and Mr. Boubnov was self represented on March 30, 2012. On March 30, 2012 the Court learned that an assessment ordered in early January 2012 would not be ready for the June hearing. Mr.

Boubnov suggested that the June hearing dates could, as an alternative, be used to hear his evidence and arguments in favour of setting aside the parties’ separation agreement. The Court observed that it might be necessary to adjourn the hearing dealing with the custody and access issues, but kept the June 2012 hearing time to address the property issues should the adjournment of the other issues be necessary. [17] Filing deadlines were set with the understanding that the parties may not be ready to use the June 2012 hearing dates to address custody and access issues but could possibly deal with Mr.

Boubnov’s application to set aside the parties’ separation agreement and some financial issues. [18] On May 23, 2012 the hearing dates were removed. The assessment had only recently been initiated and Mr. Boubnov was not in a position to proceed with his application to set aside the separation agreement. September 5, 2012 was confirmed as a return date for a status report. [ 19 ] Shortly thereafter, on June 1, 2012 Mr. Boubnov filed a Notice of Motion seeking an order to vary the custody and access arrangement governing the parties’ children. [ 20 ] Days later, on June 6, 2012 Mr.

Boubnov filed a Notice of Motion for Interim Relief. The enforcement officers of the Maintenance Enforcement office had taken steps to enforce arrears. These steps resulted in Mr. Boubnov being unable to run his law practice. A telephone conference was held with me on June 19, 2012. In response to a Motion by Correspondence from Mr. Boubnov, the Court issued an order on a ‘without prejudice’ basis providing relief to Mr. Boubnov. I ordered Mr. Boubnov to pay $400 per month as child support and $250 per month towards the arrears until the matter returned on September 5, 2012.

The Court also addressed the parties travel with the children over the summer of 2012. [ 21 ] On September 5, 2012; the January 2013 hearing dates were confirmed. In January 2013 the involvement of the children in extra curricular activities was to be addressed as well as financial issues. Two days were set aside for this purpose. The financial issues to be addressed were child support, special expenses for the children and arrears. The June 20, 2012 order was continued. Dr. Fedortchouk was given authority to arrange for child care for the three younger children in the interim.

[ 22 ] The custody and access report was received by the parties in late November 2012. [ 23 ] The Court learned from Dr. Fedortchouk in January 2013 that her plan now included removing the three younger children from Canada for extended period(

s) while she was on sabbatical between July 2013 and June 2014. In light of this change, the Court agreed with Mr. Boubnov that the custody and access hearing could not proceed in January 2013. However, the Court directed the parties to prepare to address financial issues. They were reminded that they had two days to do so. [ 24 ] Dr. Fedortchouk’s evidence commenced January 28, continued on January 30, 2013 and was scheduled to finish on February 4, 2013. On February 4, 2013 additional time was set aside on February 6, 2013 for Dr.

Fedortchouk to complete her case. [ 25 ] However, the time reserved on February 6 was required to address a new conflict that arose between the parties. [ 26 ] Dr. Fedortchouk proposed to be away from February 6 to March 4, 2013 and did not want to leave their youngest child Anton in Mr. Boubnov’s care, other than on weekends.

The Court assisted the parties in resolving the matter and issued a ruling that recognized each party’s point of view. [ 27 ] Over the coming days the scheduling office communicated with the parties with a view to identifying days when they would be available to conclude the financial aspect of the hearing. [ 28 ] Superimposed on this scheduling challenge was the need to

schedule a hearing to determine if Dr. Fedortchouk could leave Canada with the children for all or part of her sabbatical. It was clear that a significant block of time was required for the mobility request alone. Dr. Fedortchouk was persistent in pressing for dates before the end of March 2013 to meet various deadlines she had. [ 29 ] On March 8, 2013 Dr.

Fedortchouk filed a Notice of Motion for interim relief and sought an order for interim custody and child maintenance. [ 30 ] On April 22, 2013 the Court convened a telephone conference with the parties to address another conflict over the timing of their daughter’s surgery on her tonsils. [ 31 ] The parties again participated in a telephone conference with me on April 29, 2013. Mr. Boubnov expressed concern that Dr. Fedortchouk was alienating the children. Dr.

Fedortchouk expressed urgency about the need to obtain Visas for the children and the desire to have the children leave with her on August 9, 2013. [ 32 ] The Court confirmed that it would attempt to move the trial scheduled for July 29 - August 8, 2013 to an earlier date. On May 1, 2013, the parties were advised that this was not possible. [ 33 ] I received numerous letters from Dr.

Fedortchouk over the spring of 2012, each asserting an urgent situation existed that required the Court’s attention. [ 34 ] No continuation of the January 2013 hearing could be scheduled because of the need to address new issues and because the parties were not available on earlier dates. [ 35 ] On April 22, 2013 the Court set aside eight (8) days commencing July 29, 2013 for completion of a hearing to address financial issues and to also address Dr.

Fedortchouk’s application to take the children with her for one academic year; for six months to Zurich and then for six months to Hawaii where she proposed to complete her sabbatical studies. At the commencement of this hearing on July 29, 2013, the Court was told that Hawaii was no longer an option. Germany or Australia are now the options.

[ 36 ] On July 29, 2013 the parties agreed to deal with the mobility issue in priority to all other issues. As the hearing progressed, it became obvious that this was all that could be addressed. Issues [ 37 ] The issue for the Court’s consideration is whether relocation of the children for the period August 2013 - June 2014 should be permitted. History of Parenting [ 38 ] The parties’ separation agreement dated December 20, 2010 contains the following clause: 16. The timesharing

schedule with respect to the children shall be as follows: (

a) The parents shall have shared custody of Arsenji on a flexible basis with the residential arrangements to be determined in accordance with the child’s wishes. (

b) With respect to Galina and Iakov the parents shall have shared custody on a flexible basis. For specificity, each parent shall have the children with them for at least forty percent of the time for purposes of

Section 9 of the Child Support Guidelines. (

c) Anton shall remain in the primary care of the Wife. (

d) Access to all of the children shall be arranged on a flexible and liberal basis with the intent that the children shall spend as much time as possible with both of the parents. [19] The June 20, 2012 order addressed the issue of enforcement action being taken by the Maintenance Enforcement Program: June 20, 2012 Order WHEREAS Pavel Boubnov, the Respondent, has made a Motion by Correspondence seeking relief on a “without prejudice basis” of the arrears which are in dispute and which are being collected by the Maintenance Enforcement Program and which arrears are to be adjudicated on September 5, 2012.

AND WHEREAS the parties have four dependent children born of their relationship who are: Name of Child Date of Birth Arsenij Boubnov September 8, 1995 Galina Boubnova May 12, 2002 Iakov Boubnov February 25, 2005 Anton Boubnov September 15, 2010 AND WHEREAS on June 20, 2012, the parties, both self-represented, attended this Court by way of a telephone conference.

NOW UPON MOTION IT IS ORDERED THAT: 1. Prospectively, the Respondent, Pavel Boubnov, will pay to the Petitioner, Iana Fedortchouk, the sum of $400.00 per month for the care of the parties’ four children commencing July 2, 2012 and continuing on the 1 st day of each month thereafter until otherwise ordered by this Court. 2. Pending the hearing scheduled for September 5, 2012 before the Honourable Associate Chief Justice Lawrence O’Neil, the Respondent, Pavel Boubnov, shall also pay the sum of $250.00 per month towards the arrears of child support owing.

Such payment shall also commence on July 1, 2012 and continue on the 1st day of each month thereafter until otherwise ordered by this Court.

Provided the Respondent, Pavel Boubnov, pays the prospective child support as ordered herein and the $250.00 each month toward the arrears up to and including September 5, 2012 no further steps shall be taken by or on behalf of the Petitioner, Yana Fedortchouk, to collect any child support arrears that may be owing until the matter returns to Court on September 5, 2012. [20] Following a judicial conference with the parties on September 5, 2012, the following issues were identified: Issue(s) 2.

The parties were before the Court for a discussion of the parenting arrangement governing their four (4) children and also with respect to the sharing of child care and recreational expenses associated with the children. 3. The issues for adjudication in January 2013 are: (1) the ongoing parenting arrangement in as much as it relates to the children’s involvement in extra-curricular activities; (2) the sharing of special expenses including child care and recreational expenses for the children; and (3) the calculation of any arrears of child support or contribution to s.7 expenses. 4.

The Order of June 20th, 2011 is renewed and continued until further order of the Court. [21] The Court Memorandum following telephone conferences with the parties on April 22 and 29, 2013 records the following as the status of the outstanding litigation at that point: Issue(s) 2. The parties were already before the Court for a hearing to determine the parenting arrangement governing their four (4) children and also with respect to the sharing of child care and recreational expenses associated with the children. Evidence in that matter was commenced in January 2013. The matter was adjourned. 3.

On the eve of the January 2013 hearing, Iana Fedortchouk applied to vary the parties’ parenting arrangement to permit her to relocate with the children for the academic year 2012-2013. She proposes to study in Switzerland from July - December 2013 and then in Maui for 3 - 5 months in early 2014. 4. On April 22nd, 2013, a hearing of the mobility application and completion of the hearing dealing with financial issues was scheduled for July 29th, 2013 to August 9th, 2013 inclusive. 5. At the completion of the telephone conference on April 22nd, 2013, a follow up telephone conference was scheduled for

Monday, April 29th, 2013. The purpose of the April 29th, 2013 telephone conference was to hear from the parties on whether they had an interest in settlement negotiations. 6. Prior to April 29th, 2013 and following the April 22nd, 2013 telephone conference, each of the parties wrote the Court to complain of the ongoing stress in the lives of the children and attributable to the conflict between the parties. As a result, the Court advised the parties that the Court would attempt to reschedule the hearing from July 29th, 2013 to August 9th, 2013 inclusive to the May - June period of 2013. 7.

The Court has advised the parties, by separate letter, that the hearing could not be rescheduled and would proceed as scheduled commencing July 29th, 2013. 8. On May 1st, 2013 the Court wrote the parties that earlier dates for the hearing could not be found and the hearing would proceed from July 29th, 2013 to August 9th, 2013 inclusive. The Court offered May 27th, 2013 for a one day emergency hearing to address parenting issues. 9.

The parties were further advised that in the near future, an Emergency Hearing of one day’s duration would be scheduled to address ongoing access issues. [22] Following the ‘mobility hearing’ over the summer of 2013, the Court concluded as follows: [183] Given the foregoing conclusion, the following is also ordered: 1. Mr. Boubnov’s obligation to pay part of the ongoing child care expense and arrears of the same is continued. This obligation is reflected in an order of this Court dated June 20, 2012. Any other obligation on Mr. Boubnov to pay Dr. Fedortchouk for past or ongoing child care expenses is suspended.

Mr. Boubnov has been subject to an order to pay $650 per month for child care (ongoing and arrears) since June 2012. 2. Primary care of the parties’ children Arsenij, Galina and Iakov is to rest with Mr. Boubnov. 3. Primary care of the child Anton is to rest with Dr. Fedortchouk. She is authorized to travel with and keep him in her custody while she is in Europe on sabbatical between September 1, 2013 and July 1, 2014. For the month of August 2013, Anton shall be cared for by Mr. Boubnov.

During the month of August 2013 Galina and Iakov are to be in their mother’s care and the Court is told she proposes to travel with them to Europe. She is planning to return to Halifax in early September 2013 at which time she will take custody of Anton. 4. While each parent has primary care of a child or children until July 1, 2014, that parent will make decisions as to the care and activities of the children. Any changes in the current education plan for Galina and Iakov must be communicated to Dr. Fedortchouk by Mr. Boubnov.

Any health or other significant issues pertaining to any of the children shall be communicated to the other parent in a timely way. 5. In the event that Dr. Fedortchouk returns to Halifax after December 2013 with a view to remaining, the shared parenting arrangement for Galina and Iakov shall not be reinstated. The parties are directed, however to cooperate to ensure the middle children will maximize their time with Dr. Fedortchouk over the winter of 2014. The Court is concerned that a requirement that shared parenting be reinstated will result in more disruption for the children and more conflict.

A final divorce hearing in June or July 2014 will resolve the issue of the children’s parenting into the future.

The Court is concerned that financial considerations are a significant factor influencing the position of each parent and the plan put forward for the children. More specifically, the child support implications and the potential requirement to contribute to the special expenses for the children are burdens each parent wishes to avoid. 6. The parties are directed to not discuss this litigation or any of the evidence offered or arguments made by either party with the children. They are directed to actively protect the children from being exposed directly or indirectly to their conflict. 7.

If either parent has the opportunity to spend time with a child in the other parent’s care because of a short visit to Europe or Nova Scotia as the case may be, the parties shall cooperate to ensure access occurs. 8. The Court is aware of the provision of the separation agreement pertaining to the payment of the child care expense for Anton. Dr. Fedortchouk is reminded that any child care arrangement she makes for Anton must be reasonable and economical. She is advised that her decisions in this respect may come under Court scrutiny. 9.

Effective September 1, 2012, the parties will be under an obligation to pay ongoing child support to the other. Dr. Fedortchouk will earn approximately $80,000 as salary during her sabbatical and $4,200 per month for the seven months she will be in Zurich. She will also have free accommodation in Zurich. In addition, she will earn approximately $27,000 over the year in rental income (before deductions). For the purpose of determining her child support obligation I am determining her annual salary to be $100,000. I fix Mr. Boubnov’s salary at $40,000.

This I do on a without prejudice basis given that the parties’ financial history needs to be more fully explored and adjustments can be made at that time. This will be a split custody situation. On this basis, the offsetting child support obligation payable by Dr. Fedortchouk is $1,434. This reflects Mr. Boubnov’s obligation to pay $336 for one child in Dr. Fedortchouk’s care and Dr. Fedortchouk’s obligation to pay $1,760 for three children in Mr. Boubnov’s care. Dr.

Fedortchouk is also ordered to contribute $500 per month as a contribution to the special expenses of the children, including child care commencing September 1, 2013. Both parties are directed to maintain complete records of their expenditures on the children. Neither has blanket authority to incur expenses without consulting the other. Each should be aware that, at a later date, an expense may be ruled as excessive and not shareable as an obligation of the other parent. 10. The total calculation is therefore as follows: $650 payable by Mr.

Boubnov for care of Anton as per June 2012 order ($400 ongoing and $250 on arrears) $336 child support for Anton $986 payable by Mr. Boubnov $1,760 child support payable by Dr. Fedortchouk $500 for special expenses for the children $2,260 The net amount payable by Dr. Fedortchouk is therefore $2,260 - $986 = $1,274. This shall be paid to Mr. Boubnov commencing September 15, 2013

The Court has estimated special expenses in an effort to avoid further litigation and to provide certainty for this family until thefinal hearing in June/July 2014 [23] A final divorce hearing was contemplated for the period June-July 2014.

For a variety of reasons, it did not take place at thattime. [24] The father filed a Notice of Motion seeking a finding of contempt on April 28, 2015 and he filed a Notice of VariationApplication. [25] The matter was pre-trialed on May 27, 2015, at which time a further pre-trial was scheduled for July 8, 2015 and a five-daytrial was scheduled for August 2015. [26] On July 8, 2015, the Court expressed concern that the need to address pre-hearing motions would now delay the trial.

As aresult, August 12, 2015 was reserved to hear pre-trial motions and six (6) days in September and one (1) day in October 2015 werereserved for the hearing. [27] On September 14, 2015, the parties agreed to a two (2) day settlement conference to be held on October 8 and 9, 2015 andback up trial dates in December 2015 were anticipated. The settlement conference was unsuccessful. [28] The trial was rescheduled to commence December 7 – 9, 2015 and it did so.

It continued on January 25 – 27, 2016; February10, 12, 22, 24 and 29, 2016 and a March hearing day was removed due to the illness of a party. [29] The Court reserves a significant part of the summer Court

schedule for ‘back to school’ and ‘mobility’ applications. As aresult, the matter was rescheduled for a further five (5) days in October and November 2016 but additional time was required. The Courtheard further evidence on October 17, 18, 19, 21, 24 and November 15 and 21, 2016. [30] The matter was again scheduled for continuation. Evidence was received on March 17, 20 and 21, 2017. Summation tookplace on May 9, 2017.

Conclusion [31] The Court proposes to address the parenting and ongoing child support issues first and the parties’ financial history and specialexpenses claim will be addressed in a separate decision, given the need to reach conclusions flowing from the parties’ financial history, aprocess that will be very time consuming. [32] The parenting decision must be based on an assessment of the children’s best interests. [33] At paragraph 7 in J.(C.) v.

K.(G.), 2015 NSSC 248, Justice Jesudason summarized the governing legal principles: [6] Like any proceeding under the Divorce Act involving children, I am obliged to take into consideration the best interests of S asdetermined by reference to her condition, means, needs and other circumstances (s. 16(8) of the Divorce Act). [7] The concept of "best interests" has been the subject of much jurisprudence. In Young v. Young, (SCC), [1993] 4S.C.R. 3, McLachlin J., as she then was, stated the following in paragraphs 202 to 206: 202 First, the "best interests of the child" test is the only test.

The express wording of s. 16(8) of the Divorce Act requires the court to

look only at the best interests of the child in making orders of custody and access. This means that parental preferences and "rights" playno role. 203 Second, the test is broad…it has been left to the judge to decide what is in the "best interests of the child", by reference to the"condition, means, needs and other circumstances" of the child. Nevertheless, the judicial task is not one of pure discretion. Byembodying the "best interests" test in legislation and by setting out general factors to be considered, Parliament has established a legaltest, albeit a flexible one.

Like all legal tests, it is to be applied according to the evidence in the case, viewed objectively. There is noroom for the judge's personal predilections and prejudices. The judge's duty is to apply the law. He or she must not do what he or shewants to do but what he or she ought to do…[emphasis added] [8] Guidance on applying the best interests concept has been provided in many cases from this province such as Foley v. Foley, (NS SC), [1993] N.S.J. No. 347 and Burgoyne v. Kenny, 2009 NSCA 34 . In the latter case, Bateman J.A., as shethen was, stated: 25 …each case must be decided on the evidence presented.

Nor is determining a child's best interests simply a matter of scoring eachparent on a generic list of factors. As Abella J.A., as she then was, astutely observed in MacGyver v. Richards (1995), (ON CA), 11 R.F.L. (4th) 432 (Ont. C.A.): 27 Clearly, there is an inherent indeterminacy and elasticity to the "best interests" tests which makes it more useful as legal aspirationthan as legal analysis. It can be no more than an informed opinion made at a moment in the life of a child about what seems likely toprove to be in that child's best interests.

Deciding what is in a child's best interests means deciding what, objectively, appears most likelyin the circumstances to be conducive to the kind of environment in which a particular child has the best opportunity for receiving theneeded care and attention. Because there are stages to childhood, what is in a child's best interests may vary from child to child, fromyear to year, and possibly from month to month. This unavoidable fluidity makes it important to attempt to minimize the prospects forstress and instability. ... 29 Deciding what is best for a child is uniquely delicate.

The judge in a custody case is called upon to prognosticate about a child'sfuture, and to speculate about which parenting proposal will turn out to be best for a child.

Judges are left to do their best with theevidence, on the understanding that deciding what is best for a child is a judgment the accuracy of which may be unknowable until laterevents prove -- or disprove -- its wisdom. [34] The oldest child will soon be 22 and is attending post-secondary education; he has lived with his mother since August 2014 andit is anticipated that this will continue. [35] The second child Galina just passed her fifteenth (15th) birthday and she lived with her father until October 2016. Since then,she has lived primarily with her mother.

The father is prepared to accept that she should decide where to live. I agree that this is thecorrect approach to determine her parenting

schedule including her time with each parent. The Court will nevertheless issue a scheduleof parenting time and directs the parties to support the schedule. The existence of the

schedule may take the decision away from thischild and discourage the parents from attempting to influence the child’s ‘wishes’. [36] The third child Iakov is twelve (12) and one-half (1/2) years of age and lives primarily with his father. [37] The youngest child Anton will soon be seven (7) years of age. He has always been in the primary care of his mother. Thefather wishes to move this to shared parenting beginning January 1, 2018 and to have parenting time every other weekend until then. The mother wishes to maintain her primary care of the youngest child. - Shared Parenting of the Youngest Child Anton

[38] In Gibney v. Conohan, 2011 NSSC 268 beginning at paragraph 89 and in a number of subsequent decisions, I reviewed theprinciples to apply when the Court must decide whether shared parenting of a child(ren) should be put in place. These continue to be theprinciples the Court must apply and the considerations the Court must make. I have considered each of them. [39] For ease of reference, I repeat paragraph 89-90 inclusive: as follows: [89] Shared custody is defined by the Federal Child Support Guidelines at s. 9 SOR / 97-175 as amended and by s. 9 of the Nova ScotiaChild Maintenance Guidelines, N.S.

Reg. 53/98 as amended. It is defined by the amount of time a spouse/parent exercises a right ofaccess to, or has physical custody of a child. When that reaches forty percent a shared custody situation exists. The arrangement impliesa greater role for the parents in the management of the child (ren) and may impact on the child support obligations of the parents. Theleading case on the latter issues is Contino v. Leonelli-Contino, 2005 SCC 63 , [2005] S.C.J. No. 65; 2005 SCC 63.

Althoughthe word custody denotes decision making authority there is no statutory direction on how decision making authority associated withshared custody (parenting) is to be allocated. [90] The ‘Act’ at s. 18(4) directs that “the father and mother of a child are joint guardians.of the child” unless otherwise ordered. Awide range of descriptions of the decision making authority are possible in a shared parenting arrangement. All decisions need not resultfrom an agreement reached by the parties.

Day to day decisions affecting a child are typically made by the parent exercising “access to,or having physical custody “ of the child. Other decisions require a consensus to be effective but this is not always the case. The currentstate of the law is that in most cases, regardless of the parenting arrangement, joint custody is ordered. Most parents accept the obligationand need to consult each other and to keep each other informed on all issues affecting their child(ren). [91] Jurisprudence on the issue of whether shared parenting should be ordered is very fact specific.

I agree with the comments ofJustice Wright in Hackett v. Hackett [2009] N.S.J. 178, at paragraph 13: 13. It is all well and good to look at other cases to see how these principles have been applied, but the outcome in othercases is really of little guidance. Every case must be decided on a fact specific basis and nowhere is this to be more emphasized than incustody/access/parenting plan cases. To state the obvious, no two family situations are ever the same. [92] Within the assessment of the best interests of a child when shared parenting is proposed a number of factors frequently proveimportant.

These factors are refinements to the best interests analysis discussed earlier. The factors are the following: 1. The proximity of the two proposed homes to each other is an important factor to consider. This is relevant to assessing howshared parenting will impact on all aspects of a child’s life, including what school the child will attend, what recreational or socialrelationships will be disrupted or preserved and how available each parent will be to the other should shared parenting be ordered; 2.

The availability of each parent to the child on a daily basis and the availability of step-parents is an important consideration. Acourt should also consider the availability of members of the respective extended families and whether a shared parenting arrangementimpacts negatively or positively on a child’s relationship with the extended family; 3. The motivation and capability of each parent to realize their parenting opportunity for the best interests of the child.

If a parent isnot truly motivated to use the parenting opportunity to enhance the child’s relationship with him/her, that weighs against sharedparenting; 4. Whether a reduction in transitions between households can be achieved by a shared parenting arrangement. This is particularlyimportant when transitions frequently give rise to conflict between the parents; 5. Whether “mid-week” parenting time or contact with the other parent can be structured without disrupting the child.

Thiscontact might be after school or after supper time, for example, the objective being the elimination of extended periods without contactbetween the child (ren) and a parent and it is an opportunity for a child to share life’s experiences with both parents in a timely way. Theeasier and less disruptive “mid-week” access is to arrange, the more attractive shared parenting becomes;

6. The opportunity, if any, that shared parenting provides for each parent to be involved in decisions pertaining to the health,educational and recreational needs of the child; the level of interest each parent has in participating in decision making in these areas isrelevant to this assessment. As the opportunity increases so does the case for shared parenting; 7. The extent to which shared parenting enhances the development of a routine in each parent’s home. In many cases, the moretraditional every other weekend

schedule for the non-primary care parent means a routine cannot be developed; 8. Shared parenting imposes responsibility on each parent to share the parenting burden and to be involved in decisions pertainingto the health, educational and recreational activities of the child and requires an assessment of each parent’s willingness to assume theirshare of that responsibility after entrusted with it. Shared parenting is about more than sharing the child’s time, it is very much aboutsharing the daily responsibility of parenting; 9.

Related to the preceding is a consideration of the employment and career benefits that may accrue to each parent as a result of ashared parenting arrangement and a more equal sharing of the parental responsibilities; 10. Whether improvements in the standard of living in either or both households may accrue as a consequence of a sharedparenting arrangement; 11. The willingness and availability of parents to access professional advice on the issue of parenting; 12.

The “elephant in the room” in many custody/access disputes is frequently the financial consequences of the court’scustody/access order and the extent to which the allocation of parenting time creates a winner or loser. Three factors must frequently beassessed:

a) whether a parent’s proposed parenting plan is really about the child support consequences that flow from a shared parentingarrangement or the alternative;

b) the manner in which a primary care parent can use his/her position to have power and control ofparenting; and

c) whether a parent will abuse the parenting opportunity as a result of anger or insecurity, for example. The parentingregime is often not changed to shared parenting because the parties are too conflictual, notwithstanding that the conflict may result froma power imbalance in the parents’ relationship flowing from the parenting arrangement in place. Courts must be cognizant of thisdynamic; 13. An assessment of the parenting styles.

That assessment should consider the questions posed by Justice MacDonald in C.(J.R.) V.C.(S.J.) 2010 NSSC 85 , at paragraph 12: -- What does the parent know about child development and is there evidence indicating what is suggested to be "known" has beenor will be put into practice? -- Is there a good temperamental match between the child and the parent?

A freewheeling, risk taking child may not thrive well in theprimary care of a fearful, restrictive parent. -- Can the parent set boundaries for the child and does the child accept those restrictions without the need for the parent to resort toharsh discipline? -- Does the child respond to the parent's attempts to comfort or guide the child when the child is unhappy, hurt, lonely, anxious, orafraid? How does that parent give comfort and guidance to the child? -- Is the parent emphatic [empathetic ?] toward the child?

Does the parent enjoy and understand the child as an individual or is theparent primarily seeking gratification of his or her own personal needs through the child? -- Can the parent examine the proposed parenting plan through the child's eyes and reflect what aspects of that plan may causeproblems for, or be resisted by, the child?

-- Has the parent made changes in his or her life or behaviour to meet the child's needs, or is he or she prepared to do so for the welfare of the child?

I must now consider what the evidence allows me to conclude when these factors are applied. - Parenting: The Youngest Child Anton [ 40 ] I am satisfied primary care of the youngest child should continue with the mother, with significant parenting time for the father. [ 41 ] I have come to this conclusion because it offers the best opportunity for this child to have parenting time with each parent and to benefit from the strengths each parent has. [ 42 ] It is clear that the child will benefit from his exposure to his father and his father’s parenting style and value system in particular.

A shared parenting arrangement is not necessary for that to occur. A meaningful role for and substantial parenting time for each parent is the best outcome for this child. [ 43 ] The parents live in different parts of the city; and essentially in different communities in the same city. Notwithstanding the efforts, the father will make to ensure continuity of the child’s schooling and social network, a shared parenting arrangement will be destabilizing and is not necessary to achieve the parenting objectives in the child’s best interests.

For that reason, shared parenting is rejected because it is not in Anton’s best interests. - Parenting of the Second Child Galina [ 44 ] The second child Galina is fifteen (15) years of age. She lived primarily with her father in 2014; January-February 2015; May- December 2015; January-October 2016. She has lived primarily with her mother since October 2016. For several years prior to October 2016, this child lived primarily with Mr. Boubnov or in a shared parenting arrangement. [ 45 ] The child has been subject to the tug of war between the parents and has been influenced by that struggle. [ 46 ] Mr.

Boubnov asks the Court to accept Galina’s choices when determining her living arrangement. He says that it is in her best interests that her choices be accepted. He says that he would like her to have an opportunity to state these views to a professional. Ms. Fedortchouk agrees. [ 47 ] Until that occurs, he agrees she should continue to live with her mother and he accepts this to be her choice. Nevertheless, the Court order will provide for weekly parenting time for Mr.

Boubnov with Galina. [ 48 ] I agree that her wishes should be determined by a professional and a Child’s Wishes Assessment related to her residence and her preferred school will be ordered. [ 49 ] In her submission filed May 11, 2017, Ms. Fedortchouk agreed Galina will receive a significant benefit (in 2017-2018) if she returns to the same school she attended in 2016-2017 and that it would be wise to find a way to keep her there for another year. [ 50 ] Mr. Boubnov is authorized to register her at the same school she attended for 2016-2017. He is not directed to do so, only authorized to register her.

He has authority to decide what school she will attend.

- Parenting of the Third Child Iakov [ 51 ] The Court is not persuaded that primary care of the parties’ third child, soon to be thirteen (13) should be altered by this Court given the evidence. The parties have conflicting views of the state of this child’s well-being and happiness. The Court is satisfied he is happy and well cared for in both homes. A significant pressure on this child is the uncertainty surrounding his living arrangement. Many of the concerns about his well being expressed by Ms. Fedortchouk can have multiple explanations. Mr.

Boubnov is clearly not responsible for all that goes wrong; nor is she. [ 52 ] The mother’s evidence with respect to this child’s well-being is unreliable; significantly diminished in reliability by her dislike of Mr. Boubnov and lack of objectivity. The evidence of other parties as to the well-being of the child does not lead to a conclusion that challenges faced by the child are attributable to the father’s parenting. [ 53 ] It is in the interest of this child that the parenting status quo be maintained in so far as it achieves his primary care continuing with his father. Ms.

Fedortchouk’s desire to have more time with this child to assist him with his school work will be reflected in the order to flow from this proceeding. She will have parenting time each weekend and additional time as agreed to with Mr. Boubnov. [ 54 ] The child Iakov has lived primarily with his father since September 2013. It is in his best interests that the stability of his primary care be maintained. Mr. Boubnov is a capable and loving parent. While the primary care parent for Iakov, he has been more supportive of the other parent’s role in Iakov’s life and aware of the importance of that role in Iakov’s life.

I am satisfied he does not attempt to diminish Iakov’s relationship with his mother. [ 55 ] Mr. Boubnov will decide what school Iakov attends. It is not possible for the parties to dialogue on this issue with a view to reaching a consensus. One parent must have decision making in this area and in my view, that person should be Mr. Boubnov. Income of the Parties (January 1, 2017 forward) - The Father [ 56 ] I am satisfied with the father’s evidence as to his current level of income.

Line 150 income as reported on his personal income tax return is the appropriate reference when determining his income for purposes of the child support guidelines. [ 57 ] Although not entered as an exhibit, Mr. Boubnov filed a copy of his e-file for 2015 which reported his line 150 income as $30,125.30, reflecting gross professional income of $109,399. He estimates his 2016 income to have been $33,000. This is the best evidence of his 2016 level of income. A copy of his 2016 Income Tax Return and Notice of Assessment is to be provided to Ms.

Fedortchouk when received. [ 58 ] The argument in favour of imputing income to the father to a level above this amount is not supported by the evidence. The father has a relatively modest income and works very hard to achieve this income.

His claimed business expenses are not outside the range of what are reasonable for him. [ 59 ] When discussing the claim for a retroactive calculation of child support and a contribution to special expenses, I will revisit this issue. - The Mother [ 60 ] Similarly, I am satisfied the mother’s current income derived from her work for Dalhousie University and shown as line 150 income should be accepted as her earned professional income.

[ 61 ] In her submission received March 29, 2017, the mother estimates her ‘salary’ will be approximately $116,000 in 2017. [ 62 ] However, she does receive rental income because she rents rooms in her home to foreign students studying at Dalhousie University. The question of whether additional income should be imputed to her as a result needs to be addressed. Mr. Boubnov addressed it and essentially left it to the Court to consider. [ 63 ] In the circumstances, the Court does not have sufficient evidence upon which to impute income to Ms. Fedortchouk on the basis of the rental income. Order [ 64 ] The parenting order flowing from this decision is attached to this decision. ACJ

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