Doncaster v. Field, 2020 NSSC 257

Supreme Court of Nova Scotia Citation: Doncaster v. Field , 2020 NSSC 257 Date: 20200922 Docket: 1207-003679(079303) Registry: Truro Between: RALPH IVAN DONCASTER Petitioner v. JENNIFER LYNN FIELD Respondent DECISION Judge: The Honourable Justice Scott C. Norton Heard: September 18, 2020 Decision: September 22, 2020 Counsel: Ralph Doncaster, self-represented Jennifer Field, self-represented By the Court: [ 1 ] The parties have had a lengthy history of litigation relating to the children of their marriage. The most recent decision is that of the Nova Scotia Court of Appeal ( 2019 NSCA 61 ), ordering that Mr.

Doncaster shall have access with his two youngest children, Grace (born October *, 2003, age 16) and Kate (born March *, 2005, age 15) on the same terms that he has access with his two oldest children. [ 2 ] The Court of Appeal stated (paras 36-38): …I would order that Mr. Doncaster have access with Grace and Kate on the same basis as the parties agreed with Max and Mia, namely that he will have access with Grace and Kate as arranged directly by Grace and Kate with him. Ms. Field shall provide Grace and Kate with an email address and phone number to contact Mr. Doncaster. Mr.

Doncaster may write to Grace and Kate by mail no more than once per month care of Ms. Field at the address she provided to him for Max and Mia. [37] Mr. Doncaster will have no other contact or access with Grace and Kate. He shall not attend any events or activities that Grace or Kate are involved with or attend at their home or schools, unless he is invited by them or Ms. Field to do so . Hopefully Mr. Doncaster’s compliance with this will reduce the concerns of Grace and Kate of him imposing on their privacy. [38] Mr.

Doncaster may apply for an access review no earlier than six months from the date of the Order to be issued allowing this appeal. [ 3 ] The Court of Appeal Order was dated July 16, 2019. [ 4 ] On February 27, 2020 Mr. Doncaster filed Notice of Application in Court for an order expanding access with his two youngest children. The application is contested by the Respondent Jennifer Field. I was appointed Case Management Judge on January 16, 2020. As such, the matter came before me for hearing on September 18, 2020 after a delay due to the Covid-19 pandemic and the resulting restriction on court hearings.

Background [ 5 ] The history of the relevant proceedings in this matter is conveniently set out in the Decision of the Court of Appeal: [3] Mr. Doncaster and Jennifer Lynn Field, the respondent, have been litigants in this Court and in the Nova Scotia Supreme Court multiple times since they separated on January 29, 2011. Several of their appearances in court have involved Mr. Doncaster’s access with his four children. The resulting decisions provide significant detail about the difficulties that gave rise to the present situation where Mr. Doncaster has not had access with Grace or Kate since 2012.

I will only repeat here the background necessary to put this appeal in context. [4] Justice J. Edward Scanlan, then a judge of the Supreme Court, gave oral reasons and on March 5, 2012 granted an interim order (1) preventing Mr. Doncaster from having any access or contact, direct or indirect, with his children and (2) requiring that a parental capacity and a psychological assessment be done of him. Following completion of these assessments, Mr. Doncaster’s interim access application was heard by Justice Cindy A. Bourgeois, then a judge of the Supreme Court.

At the end of that hearing on December 19, 2012, Justice Bourgeois addressed the parties orally indicating that Mr. Doncaster’s access with his children would be reintroduced starting with letters to be vetted by the children’s counsellor. Her written reasons were released on March 7, 2013 ( 2013 NSSC 85 ). [5] On March 25, 2013, before Justice Bourgeois granted an order, Mr. Doncaster made a motion seeking an order requiring the children’s counsellor to deliver his letters to his children.

During the hearing of that motion before Justice Bourgeois, the children’s counsellor indicated that she was no longer willing to vet the letters and that Mr. Doncaster had filed a professional misconduct complaint against her. Justice Bourgeois’ written reasons dismissing Mr. Doncaster’s motion were dated May 7, 2013 ( 2013 NSSC 149 ). Her subsequent July 5, 2013 Order provided that Mr. Doncaster would have no access or contact, direct or indirect, with his four children.

She also ordered him to get medical treatment and cognitive behavioural therapy to give him (1) insight into how his behavior is perceived by others and (2) strategies to enable him to conduct himself more positively. She ordered that he was not to initiate an access review for a minimum of three months. [6] Mr. Doncaster’s appeal of Justice Bourgeois’ decision to this Court was dismissed ( 2014 NSCA 39 ). He was permitted to initiate another access review and an Order dated April 15, 2014 was issued.

Leave to appeal to the Supreme Court of Canada was denied October 9, 2014. [7] The parties were then divorced by Divorce Order and Corollary Relief Order dated December 3, 2014. Mr. Doncaster successfully appealed to this Court the equalization payment which he was ordered to pay to Ms. Field ( 2016 NSCA 25 ). This Court’s Order, allowing this aspect of his appeal, was issued on April 12, 2016. Subsequently, the parties consented to an Amended Corollary Relief Order, which was granted on April 6, 2017 by Justice Campbell. It provided, among other things, that Ms.

Field would consent to an access review no earlier than October 31, 2017. [8] Accordingly, Mr. Doncaster again applied for access with his four children and a pre-trial conference was held with Justice Campbell on October 25, 2017. [ 6 ] Justice Campbell held the hearing and made the decision which was appealed by Mr. Doncaster, resulting in the decision of the Court of Appeal. [ 7 ] The applicant relies on his own affidavit and the affidavit of his spouse Jaqueline Doncaster. The respondent relies on her own affidavit. All 3 witnesses were cross-examined in court. Both parties filed written briefs and Mr.

Doncaster filed a reply brief. I have carefully considered all the evidence and submissions both written and oral. Issue [ 8 ] The issue before the court is whether Mr. Doncaster is entitled to expanded access to his children. In advance of the hearing, I requested Mr. Doncaster to clearly articulate the nature of the expanded “access” he was seeking. In his brief he stated: “An order expanding my access with Grace and Kate to permit access once per month and permitting me to attend public activities that [the children] are involved in. I am also requesting the ability to communicate by phone, text, and email.

An order requiring Ms. Field to comply with s. 16(5) of the Divorce Act , and, more specifically, to disclose any information under her control or in her possession related to the health, education and welfare of Grace and Kate.” [ 9 ] The Court of Appeal Order dated July 16, 2019 provided that “Mr. Doncaster may apply for an access review no earlier than six months from the date of this Order”. Mr.

Doncaster characterizes the Court of Appeal Decision and Order as “interim” and being “subject to review” after six months and, therefore, that he is not required to show a material change in circumstances. [ 10 ] With respect, the Court of Appeal Decision and Order did not provide for review of their order by this court, nor did it alter the requirements of the Divorce Act ( s.17(5) ) that when seeking a variation of a custody order, an applicant must first show that there has a been a change in the means, needs or other circumstances of the child , that requires variation of the order having regard to the best interests of the child.

When a court orders that a party is entitled to a review without the requirement of meeting the change in circumstances test, the order specifically states that. The Court of Appeal Order did not. [ 11 ] Accordingly, I will first assess whether the applicant has met the test under s. 17 (5) of the Divorce Act that there has been a pivotal or material change in circumstances since the Court of Appeal Order. Put differently, has the applicant established that the existing order no longer satisfies the children’s parenting needs? [ 12 ] The affidavit evidence of Mr.

Doncaster as to events since the Court of Appeal Order is found in paragraphs 49 -55:

49. Since July 2019, I have sent seven letters to Kate. I have received no replies. 50. The body of my most recent letter to Kate is attached as Exhibit “A”. I address each letter “Dear Kate, and sign each with “LoveDad”. 51. Since July 2019, I have sent seven letters to Grace. I have received no replies. 52. The body of my most recent letter to Grace is attached as Exhibit “B”. I address each letter “Dear Grace, and sign each with“Love Dad”. 53. On 2019-12-06 I emailed Ms. Field and asked, “Are you willing to let me meet with Kate and Grace after January 15th?” I did notreceive a response. 54.

On 2020-02-07, I emailed Ms. Field requesting the following information about Kate and Grace, no later than February 21st: a. A list of their classes started in September 2019. b. Any exam scores available since September 2019. c. A list of their classes as of February 17, 2020. d. Details of any extracurricular activities Grace and Kate are involved in. 55. As of 2020-02-25, I did not receive any response from Ms.

Field." [13] The evidence does not support the conclusion that there has been any change in circumstances since the Court of Appeal Orderother than the fact that the applicant sent letters to his daughters and has received no response.

There certainly has been no pivotal ormaterial change in circumstances established by the applicant that would provide the court with the jurisdiction to vary the existingparenting arrangements and I would dismiss the application on that basis. [14] In the event that I am found to be in error about the need to establish a material change in circumstances, I have assessed theevidence before me as to the needs, means and other circumstances of the children and consider whether such would support a variationof the existing parenting order. [15] Mr.

Doncaster in his submissions relied heavily on the maximum contact principle. In addition to the comments made by theCourt of Appeal in the present proceeding, Mr. Doncaster cited the following passages from the decision of Justice Haliburton inFichaud v Fichaud 2002 NSSC 35: 17 It may be, and obviously it is speculation on my part, that what [the son] thinks he is doing by cutting off his father is assistingyou in fighting a battle. 19 …He has a right to the benefit of two parents.

The Divorce Act, as I said earlier, mandates that the arrangements which are to bemade for child custody, are the arrangements which will best promote maximum contact with both parents. So, it is incumbent on bothof you, unfortunately in this, as things turn out, primarily Ms. Osborne, I guess with you to foster an environment and an attitude both inyourself and in David which will encourage or promote the greatest possible contact with both parents. [16] Mr.

Doncaster says that similarly, the respondent must foster an environment in herself and in Grace and Kate that willencourage and promote the greatest possible contact with both parents. [17] The maximum contact principle is not absolute. In Young v Young, (SCC), [1993] 4 S.C.R. 3, McLachlin J., asshe then was, wrote at pp. 116-118: Parliament has adopted the “best interests of the child” test as the basis upon which custody and access disputes are to be resolved. Three aspects of the way Parliament has done this merit comment. 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 lookonly at the best interests of the child in making orders of custody and access. This means that parental preferences and “rights” play norole. (emphasis in original) Second, the test is broad. Parliament has recognized that the variety of circumstances which may arise in disputes over custody andaccess is so diverse that predetermined rules, designed to resolve certain types of disputes in advance, may not be useful.

Rather, it hasbeen left to the judge to decide what is in the “best interests of the child”, by reference to the “condition, means, needs and othercircumstances” of the child. Nevertheless, the judicial task is not one of pure discretion. By embodying the “best interests” test inlegislation and by setting out general factors to be considered, Parliament has established a legal test, albeit a flexible one. Like all legaltests, it is to be applied according to the evidence in the case, viewed objectively. There is no room for the judge’s personal predilectionsand prejudices. The judge’s duty is to apply the law.

He or she must not do what he or she wants to do but what he or she ought to do. Third, s. 16(10) provides that in making an order, the court shall give effect “to the principle that a child of the marriage should have asmuch contact with each spouse as is consistent with the best interests of the child.” This is significant. It stands as the only specificfactor which Parliament has seen fit to single out as being something which the judge must consider.

By mentioning this factor,Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact ismaximized. The modifying phrase “as is consistent with the best interests of the child” means that the goal of maximum contact

of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may berestricted. But only to that extent.

Parliament’s decision to maintain maximum contact between the child and both parents is amplysupported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal DeprivationReassessed (1981), Robin Benians, “Preserving Parental Contact: a Factor in Promoting Healthy Growth and Development in Children”,in Jo Tunnard, ed., Fostering Parental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families(1982). [Emphasis added] [18] In Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27, McLachlin, J. (as she then was) stated: [24] The second factor which Parliament specifically chose to mention in assessing the best interests of the child is maximum contactbetween the child and both parents. Both ss. 16(10) and 17(9) of the Act require that “the court shall give effect to the principle that achild of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child”.

Thesections go on to say that for this purpose, the court “shall take into consideration the willingness of [the applicant] to facilitate” thechild’s contact with the non-custodial parent. The “maximum contact” principle, as it has been called, is mandatory, but notabsolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; ifother factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v.

Young, (SCC), [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J. [Emphasis added] [19] It is clear from the evidence before me that Grace and Kate choose not to have the invited contact with Mr. Doncaster. Graceis turning 17 and entering her final year of high school. Kate is turning 16. At these ages, the legislature has deemed them matureenough to work and to drive motor vehicles with all the attendant responsibility. Kate is in the process of making adult decisions abouther academic future and post secondary education. The evidence from both parties is that they are highly intelligent and mature youngwomen.

Both have made their views clear through the Voice of the Child Report they participated in and through their response, or moreprecisely, lack of response to the applicant’s letters.

They are presently of an age that their personal views and choices as intelligent andmature young women are deserving of the court’s respect and consideration, while recognizing that this is only one factor to beconsidered. [20] I pause here to observe here that there is no expert evidence before the court that maximum contact would be in the bestinterests of these children. [21] The evidence establishes that Grace and Kate are well established and happy in their present living arrangement with theirmother and her new partner with whom they have positive individual relationships.

They have a loving and supportive relationship withtheir new grandparents. The children are excelling educationally and in extra-curricular pursuits. Their means and needs are completelyand adequately provided for by their current arrangement. [22] It is important to recall that it is not the best interests of the parents that is the statutory demand, but rather the best interests ofthe child. Having shown no interest in responding to the correspondence received from Mr.

Doncaster, and in consideration of themeans, needs and other circumstances, and while considering the principle of maximum contact, I am ultimately persuaded that it is inthe best interests of Kate and Grace to not vary the existing parenting arrangement. [23] To be completely clear, this means that all the existing corollary relief orders of this court prior to the Order of the Court ofAppeal continue. The additional provisions ordered by the Court of Appeal also continue. The applicant is correct that the Court ofAppeal Order did not restrict his access to information from the school or other third parties.

However, the prior order of this court didrestrict access to this information and those provisions were not rescinded or amended by the Court of Appeal Order. For further clarity,the order of this court dated July 5, 2013 provided: “5. All decisions regarding the children of the marriage, including their health, education, social development and all other aspects oftheir care shall be made by Jennifer Field. 6.

Ralph Doncaster shall have no access or any contact, direct or indirect, … or receive information from third party providersregarding the children of the marriage.” So that there is no confusion about this, the order that issues from my decision will confirm that Mr. Doncaster is not entitled to access torecords from any third parties including those in the fields of health, education or social development. [24] The application is dismissed with costs in the amount of $1500 payable by Mr. Doncaster to Ms. Field forthwith. [25] The Order will provide that Mr.

Doncaster is not permitted to file any notice to vary the parenting arrangement for 12 monthsfrom the date of the order. [26] Order accordingly. Norton, J.