T.L.D. v. R.H., 2022 NSSC 103

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: T.L.D. v. R.H. , 2022 NSSC 103 Date: 20220408 Docket: Halifax No. 1201-070900 Registry: Halifax Between: T.L.D. Applicant v. R.H. Respondent Library Heading Judge: The Honourable Justice Samuel Moreau Heard: October 12 and 15, 2021 in Halifax, Nova Scotia Written Decision: April 13, 2022 Subject: Change in circumstances, parenting arrangement, parenting time, decision making, child support, voice of the child report.

Summary: Variation Application filed by the mother in relation to the issues of custody, parenting arrangements, and decision making. The mother requests a shared parenting arrangement, the father wishes to maintain the status quo (the child remain in his primary care). A voice of the child report dated March 6, 2021, is of significant relevance to the matter. Issues:

(1) Has there been a change in circumstances to warrant varying the C.C.R.O. issued June 20, 2018?

(2) If there has been a change in circumstances, which parenting arrangement is in D’s best interest, including the issues of primary care, parenting time, decision making?

(3) The appropriate child support obligation flowing from the parenting arrangement. Result: Status quo - primary care remains with father, parenting time as per the child’s wishes, mother to pay child support in the guideline amount. Both parents shall have independent access to third party service providers. THIS INFORMATION SHEET DOES NOT 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: T.L.D. v. R.H. , 2022 NSSC 103 Date: 20220408 Docket: Halifax No. 1201-070900 Registry: Halifax Between: T.L.D. Applicant

v. R.H. Respondent Judge: The Honourable Justice Samuel Moreau Heard: October 12 and 15, 2021 in Halifax , Nova Scotia Written Release: April 8, 2022 Counsel: T.L.D., Self Represented Kerri Ann Robson, counsel for the Respondent By the Court: Introduction [ 1 ] This matter originated with the Notice of Variation Application filed by T.L.D. on September 25, 2019. [ 2 ] The parties were divorced by the Divorce Order issued on June 20, 2018. [ 3 ] T.L.D. and R.H. are the parents of the child, D., born in 2008.

For ease of reference, I shall refer to T.L.D. as the “mother” and R.H. as the “father” throughout this decision. [ 4 ] The mother requests changes to the Consent Corollary Relief Order (C.C.R.O.) issued June 20, 2018, in relation to the issues of custody, parenting arrangements and decision making. The father filed a Response to Application on December 12, 2019. [ 5 ] As per paragraph 1 of the C.C.R.O. the mother was granted primary care and residence of D. Paragraphs 2 - 6, inclusive, addresses the father’s parenting time and paragraphs 7 and 8 the issue of relocation.

Specifically, the mother was prohibited from relocating D. outside the Halifax Regional Municipality without the father’s prior written consent or by Order of the Court, and she was required to provide the father with 90 days notice of her intention to relocate. Background Information [ 6 ] The mother’s Notice of Variation Application filed September 25, 2019, included a request to relocate D. to Kentville, Nova Scotia.

The father’s response filed December 12, 2019, sought to vary custody and also addressed the issues of parenting and child support. [ 7 ] The Interim Consent Order issued on January 15, 2020, provides that the father have interim primary care and residence of D.; that D. be registered at __ school commencing January, 2020; that the mother have parenting time with D. every Friday afterschool to Sunday at 6:00pm and all other times by mutual agreement upon reasonable request. The father’s child support obligation was suspended effective October 15, 2019.

The Interim Consent Order also included a provision addressing D’s counselling sessions with J.M. [ 8 ] The trial was 2 days in duration; October 12 th and 15 th , 2021. In total the Court heard viva voce evidence, (cross-examination) from 5 witnesses, including the parties. The non-party witnesses were R.M., a social worker from the Department of Community Services, M. W. who authored the Voice of the Child Report dated March 6, 2021 and the father’s partner, C.Y.. By consent, M.W. was qualified as an expert in the area of wishes of children and influence on the wishes of children.

All direct evidence was by way of Affidavit, with the exception of the two professional witnesses. The affidavit of C.T. sworn May 4, 2021, was tendered and marked as Court Exhibit 10 and entered by the consent of the parties without the need for cross-examination. [ 9 ] Prior to addressing the substantive issues, I wish to address correspondence filed with the Court by the mother on October 14, 2021. I confirm this correspondence came to my attention on October 18, 2021. In her correspondence the mother states as follows: “In light of the new evidence Ms.

Robson has submitted, I will require M.W. and R.M. back for redirection. After seeking legal advice this morning at 10:04AM both, M.W. and R.M. provided incorrect information to the Court and will be required to clarify their errors. Attached is the evidence to support. 1. 4 email exchanges between M.W. and me 2. The copy of the email, R.M. referenced to in Court” The correspondence dated October 14, 2021 is signed by the mother and attached to it is six pages of what appears to be email exchanges between the mother and M.W. and the mother and other individuals.

I am unsure if counsel for the father was provided with a copy of same correspondence. [ 10 ] Even if the said correspondence had been brought to my attention prior to or on October 15, 2021, I would not have permitted M.W. nor R.M. to be recalled for as the mother terms it “redirection”. I confirm the mother had ample opportunity to question both M.W. and R.M., which she did. I further confirm both parties were provided with the opportunity to tender and have exhibits marked during the preliminary stages of the trial, which they did.

Also, on October 15, 2021, the mother made no mention of her October 14, 2021, correspondence, nor voiced request(

s) in any form with respect to same correspondence. The mother’s correspondence dated

October 14, 2021, has no bearing and/or weight on the trial and this decision. Issues [ 11 ] The issues in this matter are: 1. Has there been a change in circumstances to warrant varying the C.C.R.O. issued June 20, 2018? 2. If there has been a change in circumstances, which parenting arrangement is in D’s best interest; including the issues of primary care, parenting time, decision making; and 3. The appropriate child support obligation flowing from the parenting arrangement. Positions of the Parties [ 12 ] Paragraph 454 of Court Exhibit 2 encapsulates the relief sought by the mother.

She seeks primary care and sole decision making responsibilities, including a 90 day period during which D. will be in her primary care and residence, and she will have full decision making responsibility. During the first 30 days of the 90 day period, the maternal grandmother, D.N. would care for D. in the mother’s home. The mother would reside elsewhere. Subsequent to the 30 day period, D. and the mother would engage in counselling sessions to “rebuild our mother daughter bond”. The 90 day period is termed by the mother; “a transition period to reintroduce D”.

The father is to have no direct contact with D. during this 90 day transition period with the exception of supervised phone calls.

There would be no communication whatsoever with C.Y. [ 13 ] Subsequent to the 90 day period, a “possible shared parenting plan could be introduced pending” the father “enrolls in parenting class or other therapy, where D. will live with both” the father “and I for equal or almost equal amounts of time with week to week shared time.” [ 14 ] Also, the mother requests “Family therapy with immediate family members and” the father’s “common law partner” C.Y. if she “chooses to do so” and either party be required to pay a fine of $1000.00 per day should it be determined a parent is preventing/denying parenting time to the other parent.

The mother also seeks provisions addressing both parent’s access to third party reports or records, that D. not be removed from the Halifax Regional Municipality without the consent of both parties and ongoing disclosure for the purposes of child support. [ 15 ] In the paragraph addressing ongoing disclosure for child support purposes, the mother requests copies of the father’s financial disclosure for the years 2018 and 2019. She indicates the father may owe retroactive child support for those years.

Retroactive child support was not pleaded by the mother in her Notice of Variation Application filed September 25, 2019, nor by the father in his Response to Application filed December 12, 2019. Also, paragraph 16 of the C.C.R.O. issued June 20, 2018, provides that the father’s child support payments be made through the Maintenance Enforcement Program of Nova Scotia. Neither party provided documentation from Maintenance Enforcement regarding payments made and/or arrears owing nor any calculations with respect to same.

I have not been provided with any substantive evidence with which to contemplate a claim for retroactive child support. Should the mother wish to pursue such a claim, she may file an application supported by the necessary documentation. [ 16 ] Within the

section of her Affidavit evidence containing the relief she seeks the mother also included a paragraph with the heading, “Property Division”.

On October 12, 2021, during the preliminary stages of the trial, the parties confirmed that property division is not an issue in this proceeding and the issues to be considered are those as stated in the mentioned Notice of Variation Application and Response to Application. [ 17 ] The father requests that D. remain in his primary care, that the mother’s regular parenting time and holiday parenting time be scheduled as per D.’s wishes and that the mother pay child support commencing January 1 st , 2020.

Any child support already paid to the father by the mother would be credited and the child support obligation would be subject to the annual recalculation program. Change in Circumstances [ 18 ] Before considering the issues as stated, I must first be satisfied that there has been a change in circumstances since the making of the Consent Corollary Relief Order issued June 20, 2018. Section 17(5) of the Divorce Act states: Factors for custody order

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change. [ 19 ] Clearly the provisions of the Interim Consent Order issued January 15, 2020, reveal a change in the condition, means, needs or other circumstances of D. since the making of the Consent Corollary Relief Order.

As I am satisfied there has been a change in circumstances, I must now consider the parenting arrangements best for D. Law [ 20 ] The area of legislation which directs my analysis of the parenting arrangements in D.’s best interests is as contained in

section 16 of the Divorce Act . Section 16 (1) , (2) , (3) , (5) and (6) are applicable in this case : Best Interests of the Child

(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contactorder.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical,emotional and psychological safety, security and well-being.

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any otherperson who plays an important role in the child’s life; (

c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; (

d) the history of care of the child; (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (

g) any plans for the child’s care; (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular withone another, on matters affecting the child; (

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issuesaffecting the child; and (

k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any personunless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under acontact order. Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as isconsistent with the best interests of the child. [21] In S.S. v. J.G. 2021 NSSC 228, Justice Marche provides a very helpful synopsis of case authorities relating to a child’s bestinterests and the best interest factors.

At paragraphs 28 to 33, inclusive, she writes: [28] Section 18(8) of the Act states that in making an order concerning parenting arrangements the court shall give effect to theprinciple that a child should have as much contact with each parent as is consistent with the best interests of the child, the determinationof which includes a consideration of the impact of any family violence, abuse or intimidation. [29] The list of best interest factors is non-exhaustive. The weight to be attached to any factor varies from case to case dependingon the circumstances: Foley v.

Foley, (1993) (NS SC), 124 NSR (2d) 198. [30] In determining what is in the child’s best interests, I must compare and balance the advantages and disadvantages of eachproposed parenting scenario: D.A.M. v. C.J.B., 2017 NSCA 91. [31] The best interest test is the only test and parental preferences and rights play no role in the determination of a child’s bestinterests: Young v. Young, (SCC), [1993] S.C.J. No. 112, para. 202. [32] Parents do not have a right to shared parenting; the paramount consideration is the child’s best interests: Kaiser v. Bezanson,2021 NSFC 2.

[33] Courts have identified effective communication and cooperation between parents as essential components of shared parenting. Shared parenting is usually not appropriate when parenting relationships are rife with mistrust, disrespect, poor communication, and where there is little hope that the situation will change: PM v. MW, 2021 NSSC 72 . [ 22 ] In S.S. v. J.G. supra, Justice Marche’s analysis was directed by the Parenting and Support Act. The best interest factors as legislated in the Divorce Act and Parenting and Support Act are congruent.

Analysis in accordance with the best interest factors set out at section 16(3) of the Divorce Act the child’s needs, given the child’s age and stage of development, such as the child’s need for stability. [ 23 ] Every child at any age or stage of development should have the benefit of being raised in a stable and conflict free environment. I recognize this is the ideal.

I also recognize it is trite to state that the ideal cannot always be achieved, however it is not trite to accentuate the importance of maintaining an environment as close to or mirroring the ideal. [ 24 ] The evidence substantiates the occurrence of events and periods of instability and unsound judgment which directly relate to D.’s circumstances. My analysis contemplates these occurrences as they are relevant to this factor. [ 25 ] On June 12, 2020, the mother was taken to a local hospital by the police as she allegedly intended to harm herself by jumping off a bridge.

On cross examination the mother indicated that on the same date she consumed alcohol and subsequently travelled to the Halifax Regional Municipality with “suicidal ideation”. She was kept in hospital overnight and released the following morning. The mother had an access visit with D. on June 14, 2020. The father says that during the visit (which occurred at a local eatery), while waiting in the parking lot he observed D. twice attempt to leave the establishment and be prevented from doing so by the mother.

Subsequently D. did not share any particulars of the visit with the father, but indicated she did not wish to see the mother again. On June 14, 2020, the mother sent an email to C.Y. (Court Exhibit 8, Tab 10, exhibit D). [ 26 ] The events of June 12, 2020, are concerning. However the email sent by the mother to C.Y. on June 14, 2020, is possibly more troubling. I do not accept the mother’s response on cross examination that her purpose in sending the email to C.Y. was to avoid D. being caught in the middle of conflict between the parties.

Given the subject matter and content, it is difficult if not impossible to deduce that the intention of the email was to avoid D. being caught in the middle of conflict.

Given the events of June 12, 2020, I consider it reasonable to conclude that the intention of the email was to provide justification for the mother’s circumstances and behaviour on that day. [ 27 ] The mother’s hypothesis that her lengthy voicemail messages left for the father on July 3 rd , 2021, was as a result of “a trauma response” and not other reasons such as intoxication leads me to ask whether an assessment of her credibility is warranted. The mother provided no substantive evidence, expert or otherwise, as to the status of her mental health or related issues from which she may suffer.

Without such evidence, the nature and timing of the voicemail messages leads me to the conclusion on a balance of probabilities that the mother was intoxicated, if not heavily so, at the time she left those messages. [ 28 ] As a young teenager D. is at a formative stage of her development. She requires stability and security to achieve her full potential in this very important stage. I use the word security in the figurative sense. Based on the evidence before me I am satisfied these elements are foremost in the father’s approach and parenting style.

The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life. [ 29 ] I am satisfied D. has a strong relationship with both parents. Her relationship with the father is more grounded and secure. The nature of that relationship offers D. greater stability than the nature of her relationship with the mother. The evidence demonstrates that D. has a good relationship with C.Y. [ 30 ] Unfortunately it appears that D.’s relationship with her brother, K. and maternal grandmother, D.N., is fractured.

It is incumbent on both parents and in D.’s best interests that they work with her to restore those relationships. Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse. [ 31 ] The father encouraged contact between D. and the mother and presently does not dissuade same. He is of the view that based on D.’s age and stage of development, she is able to articulate her wishes regarding parenting time with her mother.

I am satisfied the father accedes to D.’s requests for parenting time with the mother. [ 32 ] The mother tendered volumes of correspondence (text messages and emails), I surmise, to demonstrate that the father controls her parenting time with D. I do not accept that assertion. The evidence does not support it. [ 33 ] The father’s discussion with C.Y. regarding the mother’s circumstances within earshot of D, was inappropriate. However, I do not accept the mother’s characterization that it was an intentional act, emblematic of the father and C.Y’s stance regarding D.’s parenting time with the mother.

The history of care of the child [ 34 ] Subsequent to separation, the mother had primary care and residence of D. In October, 2019, the parties commenced a shared arrangement with each parent having equal care. In January, 2020, they agreed to the terms of an Interim Order including that the father have primary care and residence of D.

The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained. [35] This factor is of significant relevance. As per the order issued by Justice Jollimore on November 4, 2020, a voice of the childreport was prepared by M.W., dated March 6, 2021. As noted M.W. was called as a witness and by consent qualified as an expert in thearea of wishes of children and influence on the wishes of children. M.W. has given expert evidence in many cases before the SupremeCourt (Family Division) and is well versed in his area of expertise.

M.W. provided his evidence in a straight forward and candid manner.The mother discounts the contents of the voice of the child report and the conclusion(

s) reached by M.W. She asserts the voice of thechild report is not “true evidence”. [36] M.W. found D. to be forthright in expressing her views and feelings. He indicated his prior practice was to speak with thesubject child in person. However, because of the Covid 19 pandemic and its resultant policies and practices, D. was interviewedvirtually, via Zoom. M.W. describes D. as intelligent, delightful and having the maturity beyond that of a typical 12 year old. M.W. is ofthe opinion that D. was not coached or manipulated in relation to the contents of his report.

M.W.’s description of D. is consistent withthe views offered by both parents. [37] The voice of the child report speaks for itself. D. makes it clear she wishes to live with the father. Below is an excerpt frompage 4 of the report: D. indicated that she was seeing her Mother approximately every second weekend but the visits were not going well. She stated thefollowing: “We were arguing constantly. Mom was still drinking.” At the time, D. had very positive comments to make about her Father and C.Y.. On September 11th, 2020, D. noted that things escalated at her Mother’s residence.

Her Mom apparently took her phone andnew glasses. She alluded to some grabbing by her Mother and the realization that she was not feeling safe. D. left her Mother’s home on September 11th and stopped visiting her Mother with only a couple of exceptions. D. did spend a couple of hours with her Mother onChristmas day and has had several phone calls with the majority ending poorly with numerous arguments. The issue that repeated onseveral occasions focused on why D. was not wanting to visit.

She went on to add, “Mom is saying that Dad is manipulating me andgetting me to not want to spend time with her (Mom), Mom does not understand that I do not want to see her for several reasons. Shehates that I like Dad.” I did ask D. if her Father was negatively talking about her Mother and interfering with the access. D. responded by stating, “My Dad asksweekly if I want to visit my Mom…. I would like to get along better with Mom, less conflict.” Two very recent visits have gone muchbetter with no arguments.

D. was given the opportunity to state what changes she wanted in the future, with the following response: “I want to live with my Father until I move out (to attend University). I want to visit with my Mother, if I am feeling up to it. As long asthe visits go well, I will visit. With no overnights, as long as I feel up to it. When Mom puts pressure to visit, I don’t want to go. Samefor summer and Holidays.” [38] In the concluding paragraph of the report M.W. indicates D. does not want a specific access

schedule but is open to regularaccess with the mother as long as the conflict is reduced. [39] In S.S. v. J.G. supra, Justice Marche considered competing arguments (shared custody versus primary care) and provides aconstructive review of case law regarding voice of the child reports and the appropriate factors to consider when determining the weightassigned to a voice of the child report. Below are Justice Marche’s comments in paragraphs 34 and 35: [34] Justice Jollimore in John v.

John, 2012 NSSC 324, spoke of the role and the value of a Voice of the Child Report stated atparas 19 and 20: [19] A children’s wish report is one way of providing information about the children’s views to me. It does not allow the children todetermine what their parenting arrangement will be.

It does allow someone who is far more skilled than I, to elicit the children’s wishes,to assess whether children have been coached, manipulated, coerced or subtly influenced in their views, and to identify the basis for theirviews: whether their preference is genuine, mature and appropriate or motivated by inappropriate reasons. [20] I conclude that Mr. John has shown that a professional opinion is needed. Children’s wishes are a relevant factor to be considered indetermining their parenting arrangement, according to Foley, (NS SC).

A children’s wish report will satisfy the needfor unbiased information about the children’s preferences. It will also provide unbiased information about what motivates thosepreferences and whether their views are uninfluenced. This information is not otherwise available. [35] The Court in Decaen v. Decaen, 2013 ONCA 218, at para 42, provided the following guidance in assessing child’s wishes: [42] In assessing the significance of a child's wishes, the following are relevant: (

i) whether both parents are able to provide adequatecare; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (

v) the maturitylevel; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence ofthe parent(

s) on the expressed wish or preference; (

x) the overall context; and (xi) the circumstances of the preferences from the child'spoint of view. [40] I adopt the evaluative methodology proffered by the jurisprudence. I am satisfied a voice of the child report was required in thiscase. I find that in determining the parenting arrangements best for D., consideration of her wishes as manifested in the voice of the child

report is essential for the following reasons: the parent’s respective position(

s) regarding custody and care of D.; the need for unbiased information in relation to D.’s preferences; D.’s age, stage of development, maturity level and unambiguous wish or preference; and the experience and expertise of the professional who interviewed D. and authored the report. [ 41 ] Based on the totality of the evidence I find that D. is an intelligent, insightful and mature (for her age) child who is able to articulate her thoughts and feelings.

The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; [ 42 ] The facts in this matter bear no relevance to this factor. any plans for the child’s care. [ 43 ] The mother’s plan to eliminate the father’s contact with D. (save for supervised telephone calls) during the “90 day transition period,” should she be granted primary care, causes me concern. No viable evidence was provided to support the consideration of such a plan.

To limit a parent who has had primary care of a child for well over one year to supervised phone calls for no valid reason supported by the evidence is not a thoroughly considered and feasible plan. I am satisfied that plan would not be in D.’s best interests. The plan put forward by the father raises no concerns. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child. [ 44 ] Both parents have the ability to provide adequate care and meet D.’s needs. The evidence demonstrates that the father has done this.

Unfortunately the evidence leads me to question whether the mother can maintain an adequate parenting regimen for a prolonged period. The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child. [ 45 ] The father was clear he wishes minimal communication with the mother and only when necessary for the purpose(

s) of issues regarding D. The mother says she has no issue communicating with the father.

During her summation she stated a willingness to rectify the situation between the father and herself and to “start with a clean slate and move forward” for the benefit of their children. [ 46 ] I do not doubt the mother’s desire to have a civil and workable relationship with the father, however based on the sum of the evidence, I conclude this would only be successful if on her terms. [ 47 ] The mother does not disparage the father in an overt manner, however many of her choices (the email of June 14, 2020, social media posts etc.) have had the same effect.

These choices have contributed to the father withdrawing from any form of relationship with her, except only when necessary and concerning D. [ 48 ] Factors (

j) and (

k) as stated in section 16(3) of the Divorce Act are not applicable in this proceeding. The facts in this matter bear no relevance to these factors. Credibility [ 49 ] I consider it requisite to comment on the mother’s credibility. The position(

s) she adopted during cross examination regarding the events of June 12, 2020, her June 14, 2020, email to C.Y. , parking situation at the father’s residence (when the mother previously attended to pick up D. for visits), the July 3, 2021, voicemail messages left for the father etc. warrants this commentary. [ 50 ] In Boutilier-Robar v. Robar, 2012 NSSC 279 , Justice Forgeron was called upon to determine competing custody claims. At paragraph 38 she offers: [38] Credibility impacts upon burden of proof. In Baker-Warren v. Denault , 2009 NSSC 59 (N.S.

S.C.) , this court reviewed the factors to be considered when making credibility determinations, at paras. 18 to 20. These factors were approved in Hurst v. Gill , 2011 NSCA 100 , at para. 16 . I have applied this law. [ 51 ] In her pre-trial submissions counsel for the father makes reference to Baker-Warren v. Denault , 2009 NSSC 59 . At paragraphs 13 to 19, inclusive, Justice Forgeron comments on the applicable burden of proof in civil cases and the factors to be considered in determining credibility: [13] What is the applicable burden of proof? [14] In F. H. v.

McDougall, 2008 SCC 53 , Rothstein, J. confirmed that there is only one standard of proof in civil cases - proof on a balance of probabilities. He further held that there are no degrees of probability within the civil standard. In every civil case, a judge should take into account the seriousness of the allegations or consequences, or inherent improbabilities; however, these considerations do not alter the standard of proof. In all cases, the court must scrutinize the evidence when deciding whether it is more likely than not that an alleged event occurred.

The evidence must always be clear, convincing, and cogent to satisfy the balance of probabilities test. Testimony must not be considered in isolation, but rather examined based upon the totality of the evidence. [15] The court must assess the impact of inconsistencies on questions of credibility and reliability which relate to the core issues. It is

not necessary for a judge to deal with every inconsistency, but rather a judge must address in a general way the arguments advanced bythe parties: F.H. v. McDougall, supra, paras. 40, and 45 to 49. [16] In considering the arguments advanced by the parties, I have applied the civil burden of proof. I have reviewed the totality of theevidence with reference to the internal consistencies and inconsistencies, and in reference to the position of each of the parties. Indetermining whether either party has met the civil burden of proof, I have looked for clear, convincing, and cogent evidence.

I havemade specific credibility findings based upon the evidence and in light of the civil burden of proof. Each party bears the burden inrespect of the arguments which he/she advanced. [17] What factors have been considered in the credibility determinations which have been made? [18] For the benefit of the parties, I will review some of the factors which I have considered when making credibility determinations. It is important to note, however, that credibility assessment is not a science.

It is not always possible to “articulate with precision thecomplex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the variousversions of events:” R. v. Gagnon 2006 SCC 17, para. 20. I further note that “assessing credibility is a difficult and delicate matter thatdoes not always lend itself to precise and complete verbalization:” R. v. R. E. M. 2008 SCC 51, para. 49. [19] With these caveats in mind, the following are some of the factors which were balanced when the court assessed credibility:

a) What were the inconsistencies and weaknesses in the witness’ evidence, which include internal inconsistencies, prior inconsistentstatements, inconsistencies between the witness’ testimony, and the documentary evidence, and the testimony of other witnesses: Re:Novak Estate, 2008 NSSC 283 (S.C.);

b) Did the witness have an interest in the outcome or was he/she personally connected to either party;

c) Did the witness have a motive to deceive;

d) Did the witness have the ability to observe the factual matters about which he/she testified;

e) Did the witness have a sufficient power of recollection to provide the court with an accurate account;

f) Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonablegiven the particular place and conditions: Faryna v. Chorney (BC CA), [1952] 2 D.L.R 354;

g) Was there an internal consistency and logical flow to the evidence;

h) Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased; and

i) Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving? [52] Certainly the mother has an interest in the outcome of the proceeding, she wishes to have primary care of D. Throughout hercross examination of C.Y. and the father, the mother made several references to a previously held peace bond hearing in ProvincialCourt. [53] C.Y. made an application for a peace bond against the mother. C.Y’s peace bond application was unsuccessful.

During thistrial, the mother attempted to characterize herself as an unwitting victim of an orchestrated campaign against her by the father and C.Y.The previously held peace bond hearing bears no relevance to my determinations in this proceeding. However, its repeated mention bythe mother and the picture she attempted to paint, highlighted the inconsistencies in her arguments. [54] With respect to the events/occurrences I identified earlier in this section, many of the mother’s responses to questionsregarding same during cross examination were self-serving and in some instances, incredulous.

Conclusion [ 55 ] In her pre-trial submissions the mother references the following cases: B(RM) v. B(DT), 2019 ABQB 826 , A.M. v. C.H. , 2019 ONCA 762 , and D. v. T., 2021 ONSC 2945 .

These cases are offered in support of her parenting plan, her assertion that D. has been subjected to emotional abuse by the father and C.Y. and also that D. has been alienated and estranged from the mother and her side of the family. [ 56 ] I submit the evidence in this matter does not support the mother’s contentions, and as aforementioned, calls her credibility into question. [ 57 ] I have carefully considered the totality of the evidence, in conjunction with the applicable legislation, the applicable jurisprudence and the parties’ arguments. I confirm the issue of

section 7 or special or extraordinary expenses was not pleaded. [ 58 ] My analysis of the evidence in relation to the legislated factors contained in section 16(3) of the Divorce Act confirms the status quo with respect to the issue of primary care. The evidence clearly demonstrates that D. is an intelligent and mature child, able to articulate her thoughts and wishes. I find that D.’s wishes as stated in the voice of the child report should be considered. [ 59 ] In McLean v.

Gonzalez, 2021 NSSC 167 at paragraph 72 , this Court made the following observation: [72] Each family law case revolves around its own unique facts. Associate Chief Justice O’Neil’s comments at paragraph 18 of Dorey v MacNutt, 2013 NSSC 267 are befitting: [18] Jurisprudence on the issue of whether shared parenting should be ordered is very fact specific. I agree with the comments of Justice Wright in Hackett v Hackett [2009] N.S.J. 179 , 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 other cases is really of little guidance.

Every case must be decided on a fact specific basis and nowhere is this to be more emphasized than in custody/access/parenting plan cases. To state the obvious, no two family situations are ever the same. A shared parenting arrangement is not in D.’s best interests. Shared parenting requires an ability to consult, cooperate, coordinate and arrive at consensus. Griggs v. Brooks, 2016 NSSC 268 . Those elements are not present here. [ 60 ] The evidence confirms a lack of trust and minimal to zero communication between the parties.

Given these difficulties I direct that the mother and the father give careful consideration to utilizing an alternate method of communication such as the Our Family Wizard Application. [ 61 ] I find it is in D.’s best interests that she remain in the primary care of the father and that the other provisions of the Varied Order read as follows: • The mother’s parenting time with D. (including holiday parenting time) shall be as per D.’s wishes. • Both parents shall have independent access to any third party reports and assessments, including but not limited to the areas of health and education. • The father shall have decision making authority, including but not limited to all major decisions. • The mother shall pay child support to the father in the guideline amount commencing January 1 st , 2020, and continuing on the first day of each month thereafter. • Any child support paid by the mother on or subsequent to January 1 st , 2020, shall be credited to her. • The child support obligation shall be enrolled in the annual recalculation program. • The child support obligation shall be registered with the Maintenance Enforcement Program of Nova Scotia. • On or before June 1 st of each year commencing in 2022, the mother shall provide the father with a complete copy of her income tax return, whether filed with the Canada Revenue Agency or not, completed with all schedules, attachments and information slips and her notice of assessment and/or reassessment from the Canada Revenue Agency. • Enforcement Clauses. [ 62 ] Counsel for the father shall prepare the Varied Order. [ 63 ] The parties may file written submissions regarding costs subsequent to the issuance of the Varied Order. ______________________ Samuel C.

G. Moreau J.