Pennell v. Larkin, 2022 NSSC 233

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Pennell v. Larkin, 2022 NSSC 233 Date: 20220818 Docket: SFH MCA No. 105179 Registry: Halifax Between: Courtney Pennell Applicant v. Liam Larkin Respondent Library Heading Judge: The Honourable Justice R. Lester Jesudason Heard: June 1, 2 and 3, 2022, in Halifax, Nova Scotia Final Written Submissions: June 27, 2022 Written Decision: August 18, 2022 Subject: Decision-Making and Parenting Arrangements, Shared Parenting Considerations, Impact of Family Violence, Duty of Counsel to Assist Parties in Exploring Settlement (Subsection 54C(1) of the Parenting and Support Act , 2015, c. 44, s. 2 ), Review of Parenting Arrangements.

Summary: Parties have a five-year-old son who, under an August 2018 Consent Order, has lived primarily with the Mother. The August 2018 Consent Order specified that it was the parties’ intention to move towards a shared parenting arrangement. Variation Application brought in September 2020. Both parents sought changes to parenting arrangements and child support. Mother sought to maintain primary care while Father sought shared parenting. Parties agreed there has been a material change of circumstances. Child entering primary in September 2022. Issues:

(1) What decision-making arrangement is currently in the child’s best interest?

(2) What parenting arrangement during the school year is in the child’s best interest?

(3) Should a review of parenting arrangements be ordered? Result: Court discussed duties of lawyers under section 54(1)(

C) of Parenting and Support Act and the impact of family violence on best interest analysis. Mother granted final decision-making authority for non-medical decisions and primary care during the school year. While reviews should not routinely be ordered, circumstances warranted either party being able to request a review of the parenting arrangements no earlier than June 2023. 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: Pennell v. Larkin, 2022 NSSC 233

Date: 20220818 Docket: SFH MCA No. 105179 Registry: Halifax Between: Courtney Pennell Applicant v. Liam Larkin Respondent Judge: The Honourable Justice R. Lester Jesudason Heard: Last Written Submission: Written Release: June 1, 2 and 3, 2022, in Halifax, Nova Scotia June 27, 2022 August 18, 2022 Counsel: James Violande for Courtney Pennell Matt Conrad and Jenna Shaddock for Liam Larkin By the Court: 1.0 INTRODUCTION [ 1 ] This decision is all about Braylen.

He’s five years old and enters primary this September in the early French Immersion program at Horizon Elementary School. [ 2 ] Braylen’s parents, Courtney Pennell and Liam Larkin, love him dearly. They affectionately describe him as “the easiest quirky kid, “so polite and smart”, “truly one of the best behaved kids you will see” and a “a fun-loving, happy little boy”. [ 3 ] Braylen’s parents aren’t the only ones who describe him in glowing terms. For example, Ms. Pennell’s sister, Brittany Pennell, describes him as a “wonderful, respectful, and happy little boy” while Mr.

Larkin’s mother, Aine Larkin, describes him as having a “very sweet, kind, and gentle personality”. [ 4 ] Sadly, despite the joy Braylen has brought to many, he now finds himself at the heart of a heated dispute between his parents who cannot agree on how to make major non-medical decisions for him, and where he should live during the school year. I have therefore been asked to decide these issues for them. In doing so, I will: • Provide an overview of the relevant family and litigation background;

• State the issues I have to decide; • Outline the parties’ positions and arguments in relation to the issues; • Discuss the relevant law; and • Do my analysis and give my conclusion on the issues. 2.0 FAMILY AND LITIGATION HISTORY 2.1 Family History [ 5 ] The parties met in 2012 or 2013 and began dating exclusively in August of 2014 or 2015. They had an on again/off again relationship from that point forward during which they lived together at various times with the last time ending in June 2020. [ 6 ] The parties agree that their relationship was unhealthy and was, at times, toxic.

The had frequent verbal arguments. Ms. Pennell also alleges that Mr. Larkin physically assaulted her on at least four occasions between December 2015 and July of 2017, and also on a fifth occasion in May of 2021. Mr. Larkin denies these allegations. [ 7 ] Braylen was born in February 2017. The parties identify him as having both Mi’kmaq and African Nova Scotian heritage in recognition that Ms. Pennell identifies as Mi’kmaw, while Mr. Larkin identifies as African Nova Scotian. 2.2 Prior Proceeding [ 8 ] In April 2017, Ms.

Pennell filed a Notice of Application seeking, amongst other things, an order respecting parenting arrangements for Braylen. [ 9 ] A few months later, Mr. Larkin was criminally charged with assaulting Ms. Pennell on four occasions between December 18, 2015, and July 20, 2017. He was required to provide an undertaking to not communicate directly or indirectly with Ms. Pennell except through a third party. The parties therefore communicated predominately through Ms. Pennell’s sisters, Brittany Pennell and Yolanda Pennell, along with Mr. Larkin’s friend, Nick Sommerfeld.

These individuals also assisted with parenting exchanges for Braylen. [ 10 ] The criminal assault charges never went to trial. Ms. Pennell says she was young and naïve and, when she met with the prosecutor, did not push for the charges to proceed. Thus, the charges were withdrawn and Mr. Larkin’s undertaking ended. [ 11 ] The parties attended settlement conferences with counsel in November 2017 and June 28, 2018. At that time, Ms. Pennell was a registered nurse working shift work on a two days, two nights, and five days off schedule, while Mr.

Larkin was a student at NSCC enrolled in the Sheet Metal Fabrication program. [ 12 ] At the June 28, 2018, settlement conference, the parties reached agreement on all issues relating to parenting and child support. A Consent Order was issued on August 3, 2018. [ 13 ] The recitals to the August 2018 Consent Order state that “it is the intention of the parties to move towards a shared parenting arrangement of their son, Braylen”. [ 14 ] The Order also provided, amongst other things: • The parties would have joint custody of Braylen; • Ms. Pennell would have primary care of Braylen; • Mr.

Larkin would have parenting time around Ms. Pennell’s work

schedule as follows: o From 6:00 a.m. until 8:00 p.m. each day on Ms. Pennell’s two day shifts. o From 3:00 p.m. the day of her first night shift until 3:00 p.m. on her first day off. o One day during Ms. Pennell’s days off.

If this occurred on a weekday, his time would be from 3:00p.m. until 8:00p.m. and if it was on a weekend, his time would be from 9:00a.m. until 8:00p.m. o Additional parenting time as agreed between the parties. o The parties were to share Easter and Christmas holidays equally. o Each parent had the first option to care for Braylen if the other needed child care. • During the summer months of June, July and August, Mr. Larkin would pay Ms.

Pennell child support of $162 per month but, during the school year, he would not pay child support, but would instead provide $75 per month towards the cost of diapers and wipes for daycare. The parties would also proportionately share the cost of childcare with Ms. Pennell covering 75% of the cost and Mr. Larkin covering 25% of the cost; and • Either party could apply for a review of the Consent Order after Mr. Larkin graduated from his program at NSCC without needing to establish a material change of circumstances. [ 15 ] The parties resumed living together in Ms.

Pennell’s home around October 2018 and continued doing so until April or June of

2019. They then lived separately before moving back in together again from October of 2019 to June of 2020 after which time they stopped living together for good. [ 16 ] The parties agree that they were largely able to co-parent effectively for most of 2018 and 2019. It appears that, during this period, they essentially lived together like roommates who were co-parenting Braylen as part of a convenient and practical arrangement. Mr. Larkin was able to exercise his parenting time in Ms. Pennell’s home and him being present to look after Braylen was convenient for Ms.

Pennell given her work schedule. 2.3 Current Proceeding [ 17 ] The current proceeding arises from a variation application filed by Ms. Pennell on September 21, 2020, seeking changes to child support. Mr. Larkin filed a Response to Variation Application on January 7, 2021, seeking changes to both parenting arrangements and child support. [ 18 ] For most of the current proceeding, the parties have represented themselves although they were encouraged early on to seek legal assistance. On October 19, 2021, I scheduled a three day variation hearing for June 1, 2, and 3, 2022.

The parties were given filing deadlines for same. [ 19 ] Both parties did eventually retain lawyers to represent them with Mr. Larkin retaining two lawyers from the same firm to represent him only about three weeks before the hearing, and without having filed his required materials. [ 20 ] After Mr. Larkin retained counsel, I had to deal with a number of urgent procedural issues on an emergency basis including: • Mr. Larkin’s counsel’s request to adjourn the hearing to give them additional time to prepare; • Mr. Larkin’s counsel’s request to file materials for the hearing late; • Ms.

Pennell’s request to strike any late materials filed by Mr. Larkin; and • Ms. Pennell’s request for significant costs should the hearing be adjourned or Mr. Larkin be allowed to file materials late. [ 21 ] When dealing with these issues, I expressed significant concern about the hearing being delayed given that it had been scheduled for many months, and that Braylen’s future parenting arrangements were in limbo including how ongoing decisions for him would be made, where he would go to primary, and how much time he would spend with each parent.

Fortunately, through emergency pre-trial telephone conferences and correspondence, all these issues were able to be resolved without delaying the start of the hearing. It was also agreed that both parties could be later heard on the issue of costs incurred in dealing with these pre-hearing issues. 2.4 Agreements of the Parties [ 22 ] When the parties and counsel appeared for the first day of the trial on June 1st, 2022, there were many issues in dispute.

Based on the pre-hearing briefs, the parties’ positions appeared far apart on many of them. [ 23 ] In an effort to streamline the issues, and possibly narrow the focus of the parties’ evidence before they took the stand, I spent considerable time at the outset of the hearing digging deeper into the parties’ positions, as well as their underlying rationales for same. [ 24 ] During this initial discussion, counsel candidly acknowledged that they hadn’t made any meaningful efforts to assist the parties in resolving any of the disputed issues. Rather, given that Mr.

Larkin had only recently retained counsel, their focus had been on getting ready for the hearing. [ 25 ] I expressed concern about the lack of effort made to resolve the issues in light of subsection 54C (1) of the Parenting and Support Act , 2015, c. 44, s. 2 . (“ PSA ”) which states: Duty of lawyer 54C

(1) It is the duty of every lawyer who undertakes to act on behalf of a person in a proceeding under this Act to discuss with the person the advisability of negotiating the matters that may be the subject of an order under this Act and to inform the person of the available alternative dispute resolution options to assist in negotiating those matters unless the circumstances of the proceeding are of such a nature that it would clearly not be appropriate to do so. [ 26 ] The importance of giving parties embroiled in family litigation a meaningful opportunity to try to resolve their disputes on their own was recently underscored in the decision of Association de médiation familiale du Québec v.

Bouvier , 2021 SCC 54 where the Supreme Court of Canada spoke of the importance of creating an “agreement culture” in family law.

It emphasized the following: • Mediation is particularly well-suited to family conflicts “because it helps restore better communication between spouses and to preserve their relationship in the future in cases where there are children”: para. 51; • …studies show that parties are more likely to adhere to settlement they have actively shaped: para. 51; • …Family law seeks to manage human relationships in a particularly unique and challenging context…When children are involved, the best interests of the child deserve the ongoing ability of parents to communicate and resolve disputes: para. 135 • The family mediation process, therefore, not only strives to reach settlements.

It also aims to restructure relationships by cultivating dialogue and equipping the parties with the necessary tools to collectively navigate the traumatic upheaval of a family breakdown. It

invites the parties to work together to forge a stronger foundation for a continuing relationship, and the ability to respond to future circumstances: para. 138 • …family mediation sets the groundwork for restructuring relationships that can navigate the traumatic consequences of familial breakdowns on a long-term basis, especially when children are involved: para. 148 [ 27 ] When I dug deeper in the parties’ positions, and their underlying concerns, it became apparent that they may not be as far apart on some of the issues despite what was contained in their pre-hearing briefs. [ 28 ] Thus, given the strong statements contained in the PSA and the Bouvier decision about the benefits of attempting to resolve family disputes especially when children are involved, and also creating dialogue to help restructure family relationships in a positive way, I informed counsel that should they wish some time to have some additional time to discuss whether any of the issues could be resolved before the parties gave their oral evidence, I would give them that opportunity. [ 29 ] To counsels’ credit, they agreed that this would be helpful and expressed their appreciation to be given that opportunity.

Thus, after receiving evidence from one non-party witness who had been waiting in the courthouse to give her evidence, counsel requested that the hearing break and that the parties be given an extended lunch hour to have discussions. I granted that request. [ 30 ] Minutes after breaking, counsel made a further request to not come back during the afternoon to allow them more time to explore settlement. They advised that the parties intended to meet at Ms. Pennell’s lawyer’s office that afternoon and were hoping that some, if not all, of the issues would be resolved.

The further said they were confident that, if all matters could not be settled, the hearing could still be completed in the remaining two days and undertook to advise me of what progress was made by the end of the day. I agreed to their request. [ 31 ] I received an update from counsel at 4:28 p.m. I was advised that while the parties were unable to resolve all the issues, they were able to reach agreements on many of them. Those agreements, combined with agreements subsequently reached during the hearing, have resulted in the parties agreeing on 50 points which I have attached to this decision as

Schedule “A” – Amended Agreed Statement of Facts/Additional Agreements.

Their agreements cover such previously hotly contested issues such as where Braylen would go to primary, right of first refusal, how the parties will communicate with each other, and summer and special time parenting arrangements. [ 32 ] I commend the parties and their counsel for being able to reach so many agreements despite being in a stressful and adversarial hearing. [ 33 ] Needless to say, this case vividly demonstrates why the PSA and the Bouvier decision strongly encourage lawyers and parties to explore agreements in family law proceedings before coming to court.

Indeed, it’s generally far more preferable that parents, who know and love their children better than any judge ever will, make parenting decisions together that they agree are best for their children, rather than have a stranger like me tell them how they must parent their children.

Here, both parents and their counsel have done a great service to Braylen by reaching many agreements which, in my view, resulted in a more focussed and less adversarial hearing on the remaining disputed issues. 3.0 ISSUES : 3.1 Material Change [ 34 ] The parties agree that the terms of any Variation Order arising from this proceeding should completely replace the terms of the August 2018 Order. [ 35 ] Given that this is a variation application, I must be satisfied that there has been a material change of circumstances since the time of the August 2018 Order before I have the jurisdiction to vary it. [ 36 ] Here, the parties agree that there has been a material change of circumstances from the time of that Order for various reasons including: • Both parents’ personal and professional circumstances have changed since the time of that Order in a way which directly impacts on Braylen’s ongoing parenting arrangements and child support; and • Braylen will be entering primary in September which necessitates a new parenting arrangement. [ 37 ] I agree that there has been a material change of circumstances since the August 2018 Order and that I have the jurisdiction to vary same. 3.2 Remaining Disputed Issues [ 38 ] In light of parties’ agreements, the remaining issues I have to decide are: Issue 1: What decision-making arrangement is in Braylen’s best interests?

Issue 2: What parenting arrangement during the school year is in Braylen’s best interests? Issue 3: Should I order a review of the parenting arrangements? [ 39 ] I will deal with Issues 1 and 2 together before addressing Issue 3. 4.0 ISSUE 1: DECISION MAKING

4.1 Agreements [ 40 ] Again, to the parties’ credit of the parties, they agree on many aspects of how major decisions should be made for Braylen. Specifically, they agree: • They will make decisions that are in Braylen’s best interests and will put his best interests above their own; • They will meaningfully consult on all major decisions before any such decisions are made; • They will jointly make all major medical health decisions.

If they are unable to agree on a major medical decision after meaningful consultation, they will defer to the opinion of the relevant medical professional; • Unless otherwise agreed to, Braylen’s family doctor will continue to be Dr. Izzard and his dentist will continue to be Dr. Lowe of Eastern Passage Family Dental; • Braylen will continue to see Dr.

McHenry of the Halifax Allergy and Asthma Clinic; • They will notify the other parent of all appointments relating to Braylen and both parents will have the opportunity to attend same; • Either parent is entitled to make emergency medical decisions, if necessary, and will notify the other parent as soon as practical thereafter; • They will primarily communicate through the electronic app, Our Family Wizard, and will keep their communication child- focused.

In the case of an emergency, they can communicate by telephone; • Each parent can request and obtain information directly from all third party service providers involved with Brayden including, but not limited to, teachers, medical professionals, doctors and dentists; • Braylen will attend Horizon Elementary School and will be enrolled in the Early French Immersion Program when he enters primary this September; and • Neither party will relocate outside of the HRM without the express written consent of the other party or a court order. 4.2 Non-Medical Decisions [ 41 ] In light of the parties’ agreements, I will focus my discussion on the parties’ positions and arguments on the disputed issue of how non-medical decisions should be made for Braylen.

Position of Ms. Pennell [ 42 ] Ms. Pennell suggests that the parties should consult on all major decisions involving Braylen and that the parent who reaches out to the other parent regarding a major decision should be able to make the decision if the other parent doesn’t respond within 24 or 48 hours. She submits that if the parties cannot come to an agreement after significant consultation, she should be given final decision-making authority. [ 43 ] In support of her position, Ms.

Pennell makes various arguments including, but not limited to, the following: • The evidence shows that she has been the parent who has put in the effort to research and register Braylen for childcare, school and extracurricular activities. • The evidence also shows that she has been willing to engage with Mr. Larkin regarding major decisions and that, even when they didn’t initially agree, she reflected further, did additional research, and ultimately conceded to Mr. Larkin’s requests. By contrast, Mr.

Larkin simply expresses a position on an issue (e.g. “Braylen should go to a 4+ program”) but does not provide well-researched suggestions for her to consider. • It’s inefficient for the parties to have to resort to litigation or an alternative dispute resolution process every time that they cannot agree on a major decision. She says that, as Braylen’s primary caregiver, she’s in the best position to determine what’s in his best interests. Position of Mr. Larkin [ 44 ] Mr.

Larkin agrees that there should be a meaningful consultation on major non-medical issues but says that, in the event of a disagreement, that the parties should defer to an agreed upon third party professional, where appropriate, or use an alternative dispute resolution method. [ 45 ] He makes various arguments in support of his position including, but not limited to, the following: • Ms. Pennell has previously made unilateral major decisions regarding Braylen without consulting with him, let alone meaningfully consulting with him, as required under the August 2018 Order. He says Ms.

Pennell admitted that she made the decision to enrol Braylen in counselling without informing him, enrolled him in the 4+ Program without consulting him, and arranged for Braylen to have his Covid-19 vaccinations without informing him. • He asserts that Ms. Pennell has not demonstrated that she will exercise final decision-making in good faith and says that if she was given final decision-making authority, he would effectively be removed from all decision-making in relation to Braylen.

• It’s in Braylen’s best interests to have two equal parents who are both motivated to act in his best interests. 4.3 Allegations of Ms. Pennell Making Unilateral Decisions [ 46 ] In her post-hearing brief of June 21, 2022, Ms. Pennell addresses three occasions where it was alleged that she made unilateral decisions despite the August 2018 Order specifying that the parties had joint decision-making authority. I summarize her position on those occasions as follows: 4+ Program [ 47 ] Ms. Pennell says that while she initially felt that Braylen should remain in daycare instead of a 4+ Program as suggested by Mr.

Larkin, she did eventually enroll Braylen into the Aboriginal Head Start 4+ Program at the Mi’kmaq Child Development Centre in Halifax. [ 48 ] Ms. Pennell says that email exchanges (Exhibit 7) demonstrate that she and Mr. Larkin had substantial discussions regarding whether Braylen should remain in daycare versus attending a 4+ Program. She says that while she initially disagreed with Mr. Larkin, he didn’t present her with a reasonable or well-researched plan to support his position. Rather, he simply argued that he thought a 4+ Program was best for Braylen and discussions then broke down. [ 49 ] Ms.

Pennell says that, despite her initial resistance, she reflected on Mr. Larkin’s request and researched available 4+ Programs. She then found one that was culturally appropriate for Braylen which was near Mr. Larkin’s employment and also free. She therefore enrolled Braylen in this program for 3 days per week and advised Mr. Larkin. She says Mr. Larkin never expressed any concerns about the choice of this 4+Program until filing his affidavit in May 2022. School [ 50 ] Ms. Pennell acknowledges that, in February 2022, she enrolled Braylen in the early French Immersion Program at the Horizon Elementary School.

She says she notified Mr. Larkin of same promptly afterwards and Mr. Larkin responded by removing Braylen’s registration at that school without proposing or engaging in any discussions for any alternative schools. [ 51 ] Ms. Pennell says that while Mr. Larkin initially testified that the parties had never discussed Braylen attending Horizon Elementary School previously, she did indeed have discussions with him about it. Specifically, when he was shown an email from April 2021 which demonstrated that they had discussed Braylen going to the school (Exhibit 7), Mr.

Larkin acknowledged that he had forgotten about this, and agreed that the parties had indeed previously discussed this. [ 52 ] Ms. Pennell says that given that the parties now agree that Braylen will enter primary at Horizon Elementary in the early French Immersion Program, Mr. Larkin’s actions in unregistering Braylen from that school demonstrate that he was simply being disagreeable to what he wrongly viewed as her unilateral actions, rather than taking a position based on any consideration of Braylen’s best interests. Medical Appointments [ 53 ] Ms.

Pennell agrees that she rescheduled a follow up medical appointment for a breathing specialist for Braylen. She says that appointment was originally scheduled as a follow up appointment arising from a prior Emergency Room visit. [ 54 ] She says that Mr. Larkin acknowledged during cross-examination that she is a health professional and has been the parent who has primarily been dealing with Braylen’s medical care and was the only parent at the initial Emergency Room visit. Mr.

Larkin also acknowledged that when she rescheduled the appointment, she advised him that he could attend if he wished. [ 55 ] In conclusion, Ms. Pennell says that she has consistently acted appropriately when making decisions for Braylen and there is no merit to Mr. Larkin’s claims that she has acted in a unilateral manner which effectively excludes him from decisions. [ 56 ] Mr. Larkin doesn’t agree. In his Response Submissions dated June 27, 2022, he states: • While the parties did have general discussions regarding a 4+ Program, there was no agreement between them on a specific program and Ms.

Pennell made the decision unilaterally. • Ms. Pennell does not allow him to take on the role of booking medical appointments. For example, when she rebooked the specialist appointment, she booked it at a time when he couldn’t attend. While he agrees that he has historically permitted Ms. Pennell to take on the role of booking medical appointments for Braylen, this was only because he wanted to avoid confrontation, not because he doesn’t want to be actively involved in making medical appointments for Braylen. • Ms.

Pennell unilaterally enrolled Braylen into Horizon Elementary School which was problematic for him because there was no Excel program and she refused to allow any third party to transport Braylen. It was only after she has now agreed to his mother transporting Braylen to school that Horizon became a workable solution such that he now agrees to Braylen going there. 5.0 ISSUE 2: ONGOING PARENTING ARRANGEMENTS [ 57 ] It appears that notwithstanding the terms of the August 2018 Order, the current parenting arrangement which has been followed since August 2021 has Braylen with Mr.

Larkin every Tuesday, Wednesday and Thursday evening from after his pre-school program until 8:00 p.m., as well as every second weekend from Friday at 4:00 p.m. until Sunday at 6:00 p.m. Braylen spends the rest of his time with Ms. Pennell. 5.1 Agreements [ 58 ] Again, to the parties’ credit, they now agree to several changes with respect to parenting arrangements going forward. I summarize

some of their agreements as follows: • During the summer vacation, the parties will alternate parenting time with Braylen on a week about basis from the Sunday following grading day until the Sunday before school resumes; • The parties agree on the time that Braylen will spend with each parent during the Christmas Holiday Break, March Break and Easter Break; • Each parent will have reasonable telephone time with Braylen when he is with the other parent; • Parenting exchanges will occur at Braylen’s school, when possible.

If this cannot occur, the parent whose parenting time is ending will drop Braylen off at the end of the other parent’s driveway; • Mr. Larkin’s mother can facilitate transportation for Braylen and assist with any before or after school childcare which Mr. Larkin may require during his parenting time. Mr. Larkin is also entitled to enroll Braylen in a registered childcare facility, if required, and will be responsible to pay the full cost associated with same. He is also permitted to use any other party, mutually agreed upon in advance in writing, to provide before and after school care for Braylen. Ms.

Pennell’s consent to same will not be unreasonably withheld; • Both parents shall have the right of first refusal to provide childcare for Braylen should the other parent need it for at least 24 hours during their parenting time; • Both parents shall be entitled to travel with Braylen within Canada during their parenting time and will provide an itinerary to the other parent 30 days before any intended travel; and • The parties can make mutually agreed upon changes in writing to the parenting arrangements and any such changes will not prejudice the rights of either party. 5.2 Parenting Time During the School Year [ 59 ] The remaining issue which they can’t agree on is what should be the parenting arrangements for Braylen during the school year.

I will therefore outline each party’s position and supporting arguments in relation to same. Ms. Pennell’s Position [ 60 ] Ms. Pennell’s position has changed from her pre-hearing position. Her pre-hearing position was that Mr. Larkin’s parenting time during the year should be limited to every second weekend from Friday after work until Sunday at 7:30 p.m. as well as one evening a week from after work until 7:30 p.m. She also agreed that if there was a holiday or in-service day that fell adjacent to Mr.

Larkin’s parenting time, his time would be extended to include that day. [ 61 ] However, before she took the stand to give evidence, her counsel advised that she had a revised position. Specifically, in addition to agreeing that Braylen should spend equal time with each parent when he was not in school, she also suggested that, during the school year, Mr. Larkin should have parenting time every second week from Thursday after school until Sunday at 7:30 p.m. as well as on Wednesday after school until 7:30 p.m. during the “off week”. She still agreed that if Mr.

Larkin’s weekend parenting time falls adjacent to a holiday or an in-service day, then it will be extended to include that day. [ 62 ] In support of her revised position, Ms. Pennell makes a number of arguments. I summarize some, but not all of them, as follows: • While she acknowledges that Braylen’s relationship with Mr. Larkin is important, and that Braylen should spend liberal time with his father, Mr. Larkin’s request for shared parenting, while potentially well-intentioned, is unworkable, not logically feasible, or well thought out.

It would be too disruptive for Braylen. • While she agrees that her proposed arrangement “pulls back” Mr. Larkin’s parenting time during the school year, Braylen would spend equal time with each parent during the summer when structure is less important. • While her plan is not a “perfect plan”, it’s the most reasonable plan put before the court which balances consistency and stability for Braylen, while maximizing contact with his father. • Mr.

Larkin’s plan for shared parenting is further complicated because the parties are unable to communicate directly because of his recent conviction for assaulting her back in May 2021. She says she is fearful for her safety around Mr. Larkin due to this assault and other incidents of domestic violence which have occurred in the past. • Shared parenting requires a greater level of communication between the parties than is present now. • Braylen needs stability and consistency, particularly during the school year. Under Mr.

Larkin’s shared parenting plan, Braylen would have to get up between 5:30 a.m. and 6:00 a.m. on school days when he is with Mr. Larkin compared to 7:15 a.m. when Braylen is with her. While even under her plan, Braylen would have to get up early on one school day every two weeks when he is with Mr. Larkin, this would only occur on every second Friday and Braylen can sleep in on Saturday if needed.

She submits that this “one-off disruption” is reasonable when balanced against the value of Braylen having the additional parenting time with his father. • She has been Braylen’s primary caregiver since birth and it’s appropriate that she continue to do so moving into his school years. She works from home so can ensure that Braylen wakes up well rested and gets to school safely.

She has the flexibility to get to the school quickly in the event of an emergency and to care for Braylen at home when he is sick without having to take time off from work. • The evidence establishes that she has historically put Braylen before everything else while Mr. Larkin has prioritized work over Braylen. She says that the past is the best indicator of the future, and that her plan is a well thought out plan which would see her

continue as Braylen’s primary caregiver. Position of Mr. Larkin [63] Mr. Larkin’s position also changed from his pre-hearing position. His pre-hearing position was that the parties should have ashared parenting

schedule during the school year on a 2-2-3 schedule. In his affidavit sworn to on May 17, 2022, he said, “I do not thinkBraylen is old enough for a week-on/week-off

schedule because the amount of time without seeing one parent will be too significant”:para. 70. [64] However, Mr. Larkin’s revised position is that, similar to what the parties have now agreed to for the summer school break, theparties should have a week about shared parenting arrangement during the school year. [65] In support of his position, Mr. Larkin makes several arguments. I summarize some, but not all of them, as follows: • He has been resilient with efforts to be an equal parent to Braylen but Ms. Pennell has denied him this opportunity.

It’s in Braylen’sbest interests to have two parents to guide him, be there for him, and to raise him. He, like Ms. Pennell, wants to be the disciplinarian, thecook, the cleaner, the provider, the one who puts Braylen to bed, and the one who wakes up with him in the middle of the night. He saysthat being a parent is the hardest, most rewarding role that a person can have and seeks the opportunity to be an equal parent, with all thebenefits and all the responsibilities. • Under the existing parenting arrangement, Braylen is used to seeing him 9 out of every 14 days. Ms.

Pennell seeks to reduceBraylen’s time with his him to 5 out of 14 days which includes a 10-day period where Braylen would only see him for 3.5 hours. • A week on/week off

schedule would allow for Braylen to have a consistent bedtime and school routine, reduce conflict betweenthe parents, and result in fewer transitions while keeping the transitions at the school. • While he has promoted Braylen developing a positive attitude and relationship with Ms. Pennell, the same cannot be said aboutMs. Pennell. For example, Ms. Pennell once refused to transition Braylen back to his care after a month of withholding him unless hesigned a contract.

She has also sent him hurtful texts while he has remained respectful to her in all communications. • The parties have shown that they can communicate effectively regarding Braylen. Now that the no-contact restriction has beenlifted, the parties agreed to communicate using Our Family Wizard. The parties have also agreed to attend co-parenting counsellingwhich will likely help their communication even more. • The evidence has shown that both parents put Braylen’s needs above their own and that their co-parenting relationship isimproving. He seeks to work with Ms.

Pennell to ensure Braylen has a consistent routine at both homes. • Both parents have been significantly involved in Braylen’s care since birth and have strong bonds with him. • It is illogical to switch Braylen’s summer routine of week about parenting arrangement in September given that he would havebeen accustomed to spending equal time which each parent during the 10 weeks of the summer: • Although he and Ms.

Pennell have had a troubled relationship, they have done a remarkable job isolating Braylen from theirconflict. 6.0 ANALYSIS OF ISSUES 1 AND 2 6.1 Legislation and Law [66] Any parenting decision I make must be governed by

section 18 of the PSA. Under subsection 18(5), the paramount considerationis Braylen’s s best interests and I am required to consider all relevant circumstances, particularly those ten circumstances outlined insubsection 18(6). [67] As well, subsection 18(8) of the PSA directs me to give effect to the principle that Braylen should have as much contact with eachparent as is consistent with his best interests which must include a consideration of the impact of any family violence, abuse orintimidation. [68] When determining Braylen’s best interests, parental preferences and rights play no role.

Furthermore, determining best interestssimply isn’t a matter of scoring each parent on a generic list of factors. I must analyze the legislative best interests factors using abalanced and comparative approach: Young v. Young, (SCC), [1993] 4 SCR 3 and D.A.M. v. C.J.B., 2017 NSCA 91. [69] Here, Mr. Larkin seeks a shared parenting arrangement. When considering a request for shared parenting, courts in decisions suchas Hammond v. Nelson, 2012 NSSC 27 and Gibney v.

Conohan, 2011 NSSC 268 have provided additional considerations whenassessing whether shared parenting is in a child’s best interests. [70] I won’t list all of the factors but they broadly include things such as proximity of the parents’ homes, availability of each parent,whether a reduction in transitions between households can be achieved through a shared parenting arrangement, disruption to thechildren, the level of conflict between the parties, each parent’s motivation and capability to realize their parenting opportunity for thebest interests of the children, and other factors. [71] In A.N. v.

J.S., 2018 NSSC 146, Justice Beaton provided a helpful

summary of some key considerations when faced with a requestfor shared parenting. She stated: [8] Over the past ten years, the Court has produced a number of decisions identifying the conditions needed to support theimplementation of a shared parenting regime. Reflecting the circumstances of many different families, these decisions, whether

approving or rejecting in any given case the sought-after shared parenting construct, have recognized the importance of key characteristics: a shared parenting arrangement requires the Court to be confident that the parents are committed to, have demonstrated and will be able to continue with a high degree of integration, cooperation, respect and flexibility in and for their respective parenting styles.

The parents’ approaches need to leave the Court confident that the application of the requirements…to the particular circumstances, along with the ultimate assessment of what is in the best interests of the child(ren), can lead to a conclusion that a shared parenting arrangement is reasonable, realistic and workable. [9] Central to the question of whether shared parenting will be ordered is a consideration of the parties’ ability to communicate in a timely, meaningful and respectful way, an ingredients which is the backbone of the key characteristics referred to above, and crucial to their operation in a manner that best suits the needs of the child(ren).

Courts are not looking for shared parenting arrangements of perfection – as borne out in decisions such as Gibney v. Conohan 2011 NSSC 268 and Clarke-Boudreau v. Boudreau 2013 NSSC 173 – however parents do need to satisfy the Court that it is realistic to expect they can put the child(ren)’s needs first and foremost in their communication and decision-making. [Emphasis added]. 6.2 Review of Best Interests Factors (

a) Braylen’s physical, emotional, social and educational needs, including his need for stability and safety, taking into account his age and stage of development [ 72 ] Clearly, Braylen is a delightful little boy. While he’s had some health issues, by all accounts, he is thriving with his physical, emotional, social and educational needs being met well. [ 73 ] I make a finding of fact that Ms. Pennell has been the parent who has been most responsible for same after the parties separated largely because Braylen has been in her primary care. [ 74 ] To his credit, Mr.

Larkin acknowledges how well cared for Braylen has been in Ms. Pennell’s care. Indeed, in his affidavit sworn to on May 17, 2022, he says: “Courtney is a good mother. I am happy and comfortable with her as the mother to our child. Braylen has everything he needs from her being in a stable home and she has stable job security. I will never have to worry about Braylen going without when Braylen is with her.” (para. 47) [ 75 ] Mr.

Larkin also wants to be able to consistently demonstrate, as he says, being the “disciplinarian, the cook, the cleaner, the provider and the one who puts Braylen to bed and wakes up with him in the middle of the night”. [ 76 ] While Mr. Larkin’s desires to be a more actively involved parent are commendable, this case cannot be determined by either parent’s wants or desires. Rather, it must be about what’s best for Braylen at this crucial stage of his life as he enters primary in September. (

b) each parent’s willingness to support the development and maintenance of the Braylen’s relationship with the other parent. [ 77 ] I agree with Mr. Larkin that he has been willing to support the development and maintenance of Braylen having a positive relationship with Ms. Pennell. [ 78 ] I also accept that, as Mr. Larkin suggests, there have been times when Ms. Pennell has restricted his parenting time and has sent him inappropriate messages. For example, when the parties had some difficulty coordinating Ms. Pennell dropping off Braylen to spend time with Mr.

Larkin over the Christmas holiday in December 2020, she sent him a text message suggesting he was “lucky” to get any parenting time from her. [ 79 ] Notwithstanding the above, I conclude that these were very isolated incidents and must be viewed in the overall context that, for much of the time after the parties separated, the parties were unable to communicate and make parenting arrangements directly because of Mr. Larkin’s criminal charges. No doubt this exacerbated the tensions between the parties and made Ms. Pennell’s ability to communicate with Mr.

Larkin and facilitate parenting time more challenging. [ 80 ] Despite these challenges, I’m satisfied that Ms. Pennell generally did attempt to keep Mr. Larkin informed about issues involving Braylen by following the requirement to communicate through third parties. For example, on May 11, 2022, she asked her sister, Brittany Pennell, to share the following updates to Mr.

Larkin which Brittany Pennell subsequently did: • “Braylen received his 2/2 COVID vaccine May 2022 – did well no concerns – Liam can access his online vax pass with Braylen[’s] healthcard. • Dentist cleaning in May 2022 – no concerns – no further comments/worries with teeth griding as he still has his baby teeth – brush better on his inner back molars (tongue side).” [ 81 ] Furthermore, to the extent Mr. Larkin pled guilty to assaulting Ms.

Pennell in May 2021, he must accept that he directly contributed to the resulting tensions and impediments caused by the no-contact restriction which may have impacted on him being more regularly involved in Braylen’s life. [ 82 ] Thus, when I consider all the evidence, I make a finding of fact that Ms. Pennell does support Braylen having a positive relationship with Mr. Larkin and has, for the most part, tried to facilitate Mr. Larkin having parenting time with Braylen despite the difficulties created by the no-contact order arising from Mr. Larkin’s criminal charges. Indeed, I note that:

• She acknowledged during cross-examination that Braylen loves spending time with Mr. Larkin and “absolutely loves his dad”; • She has now agreed to equal sharing of parenting time during non-school time; • Her revised position on how much time Braylen should spend with Mr.

Larkin during the school year has increased from her pre- hearing position; • She suggested that she would be open to possibly considering a shared parenting arrangement in the future should the parties’ communication improve and has now agreed to participate in co-parent counselling with the goal of improving their communication; and • She has also agreed to a review of parenting arrangements by June 2023. This impliedly suggests that she is not looking for Mr. Larkin’s parenting time to now be “cast in stone” forever, and recognizes that it could possibly be further increased at a review. (

c) the history of care for Braylen, having regard to Braylen’s physical, emotional, social and educational needs. [ 83 ] While I accept that both parties were involved in Braylen’s care when they lived together, there is no question that Ms. Pennell has provided significantly more daily care of Braylen since the parties separated. Again, to his credit, Mr. Larkin acknowledges that Braylen’s needs have been consistently supported and met by Ms. Pennell while in her primary care. (

d) the plans proposed for Braylen’s care and upbringing, having regard to his physical, emotional, social and educational needs. Ms. Pennell’s Plan [ 84 ] Ms. Pennell has clearly structured her personal and professional life to ensure that she is fully available for Braylen.

She currently works from home with flexible hours which would allow her to pick up Braylen from school in an emergency and also stay home with him when he is sick without taking time off from work. [ 85 ] Her plan is essentially to continue as she has been doing – structure her life so that her focus can be on ensuring that Braylen’s needs continue to be met. She believes that her plan, while not perfect, best ensures Braylen’s need for stability and consistency as he enters primary.

For example, she argues that unlike in her home where Braylen would only have to get up at 7:15 a.m. to get ready for school, he may have to get up between 5:30 a.m. and 6:00 a.m. if in Mr. Larkin’s care during the school week. Mr. Larkin’s Plan [ 86 ] Mr. Larkin seeks a week about parenting arrangement. Clearly, this would represent a significant change to Braylen from the current arrangement during the non-school year. [ 87 ] Mr.

Larkin believes a week about shared parenting arrangement is now in Braylen’s best interests and is clearly eager to be given the chance to be, as he describes it, “an equal parent” and do all the “heavy lifting” parenting duties. [ 88 ] Mr. Larkin currently lives in his mother’s [Aine Larkin’s] home and pays his mother rent. He leaves for work each weekday at 6:30 a.m. so plans to involve his mother in helping him look after Braylen and assist with transportation. [ 89 ] When I consider the parties’ competing parenting plans, I conclude that Ms.

Pennell’s plan is more reliable, realistic and well- thought out than Mr. Larkin’s plan for several reasons including the following: • Since separation, both parents agree that Ms. Pennell has done the majority of the “heavy-lifting” parenting duties for Braylen and that Braylen has thrived while in her care. I find that there is every reason to believe that she will continue to ensure Braylen’s needs will be met in a positive way under her plan of care. • Mr. Larkin’s plan seems to be very much of a moving target. For example, in his affidavit of May 17, 2022, he asserted that a week on/week off

schedule would not be good for Braylen as he didn’t think Braylen was old enough for such an arrangement and that the amount of time without seeing each parent would be too significant. However, slightly over two weeks later, Mr. Larkin began insisting that a week about parenting arrangement would now be in Braylen’s best interests. • Similarly, in his affidavit of May 17, 2022, Mr. Larkin indicated that he now has a support system because his mother, Aine Larkin, moved from the Yukon to Nova Scotia to live with him.

He says his mother can drive Braylen to school in the mornings as he has to leave for work at 6:30 a.m. However, when Mr. Larkin and Aine Larkin gave oral evidence slightly over two weeks later, it became clear that the details of Mr. Larkin’s plan still needed to be worked out and, in many cases, were unknown. Specifically, their evidence included: o Aine Larkin has taken a leave of absence from her last teaching position in the Yukon and came to Nova Scotia in February 2022 to help Mr. Larkin look after Braylen. She will be retired from her current position in the Yukon in December 2022 and then on leave.

She intends to go back to teach in the Yukon but will stay in Nova Scotia to assist her son “if needed”. o Aine Larkin still rents an apartment in the Yukon and has her vehicle there. She has no vehicle in Nova Scotia but relies on friends for transportation or walks to where she needs to go. o She will be getting her own place in Nova Scotia and will not be living with Mr. Larkin.

She has an apartment lined up for October 2022 located about a 15-minute walk away from her current home and is waitlisted for another apartment “around the block” from her current home which she hopes may become available earlier than October. o While she will not be living with Mr. Larkin, she is prepared to do “whatever is necessary” to help out Mr. Larkin when it comes to

looking after Braylen. However, she and Mr. Larkin have not discussed specific requirements of what this may entail should Braylen be placed in a shared parenting arrangement but she understands he will require her to help out with picking up and dropping off Braylen when Mr. Larkin is working. She wasn’t aware whether she would need to go to Mr. Larkin’s home in the morning to care for Braylen or whether he would come to her place. She was also unable to say how she would get Braylen to school during the morning, if required, other than to say she could rely on friends for drives. o Mr.

Larkin is hoping to purchase his mother’s home in Nova Scotia but is not sure if and when that will happen. (

e) Braylen’s cultural, linguistic, religious and spiritual upbringing and heritage [ 90 ] Braylen has both Mi’kmaw and African Nova Scotian heritage. Both cultures have rich and vibrant histories in this province and have made valuable contributions in all aspects of society. Unfortunately, these communities have also faced many historic injustices and systemic discrimination. Thus, Braylen may have to deal with these challenges as he grows up.

Fortunately, he has two excellent role model parents who I’m satisfied are committed to fostering his culture and heritage and supporting him with any challenges which he may face based on same. [ 91 ] Mr. Larkin’s adoptive mother is Irish. In his post-hearing written submissions of June 22, 2022, Mr. Larkin’s counsel argues that Ms. Pennell has diminished the role of Irish heritage when it comes to a consideration of Braylen’s best interests. Specifically, Mr. Larkin’s counsel argues: “Aine is of Irish heritage and Courtney stated that she sees no value in Braylen learning Irish heritage.

This comment illustrates Courtney’s one-sided view of what is in Braylen’s best interests. We submit all cultures are important and Braylen’s best opportunity to be exposed to those cultures most important to him is to be with each parent for an equal amount of time.” (p. 9) [ 92 ] With respect, I don’t find this argument persuasive especially because at no time did Mr. Larkin himself assert in his evidence that Irish heritage was at all important to himself or to Braylen. Mr. Larkin identifies as being African Nova Scotian. Both parents have agreed that Braylen’s heritage is Mi’kmaw and African Nova Scotian.

Neither suggested in any of their evidence that they believe fostering the Irish heritage of Mr. Larkin’s adoptive mother is of any significance when determining Braylen’s best interests. [ 93 ] Thus, the characterization by Mr. Larkin’s counsel of Ms. Pennell having a “one-sided view of what is in Braylen’s best interests” because she didn’t place importance on fostering Irish heritage for Braylen is unwarranted. With respect, it’s not the judge or the lawyers who should identify what culture and heritage should be important to a child. Rather, this should be left to the parents who know their child best.

In this case, the parents have identified the important culture and heritage for Braylen as being his Mi’kmaw and African Nova Scotian culture and heritage. Again, to their credit, they have committed to fostering Braylen’s culture and heritage from both sides of his parentage. I commend them for doing so. (

f) Braylen’s views and preferences given his age and stage of development [ 94 ] Given Braylen’s young age, this is not a significant factor. Even if it was, the parties agree that Braylen enjoys spending time with both of his parents so this is a neutral factor. (

g) the nature, strength and stability of the relationship between Braylen and each parent [ 95 ] Both parents acknowledge that Braylen has a strong bond with the other parent. I agree that Braylen clearly has excellent, stable and loving relationships with both parents. Their love for him was evident when they testified in the hearing. Braylen is blessed to have two loving and supportive parents who are, in turn, blessed to have him as their son. (

h) the nature, strength and stability of the relationship between Braylen and each sibling, grandparent and other significant person in his life [ 96 ] Braylen has a close relationship with several members of Ms. Pennell’s family including his maternal aunts, uncles and cousins with whom he regularly spends time. His aunts, Yolanda Pennell and Brittany Pennell, filed affidavits and testified during the hearing. I have considered all the evidence and won’t review it except to state that, as an overall comment, it is clear that Ms.

Pennell’s extended family play a very significant role in Braylen’s life. [ 97 ] In his affidavit of May 17, 2022, Mr. Larkin says that until recently when his mother moved back to Nova Scotia, “It was always Braylen and I”. At the hearing, he also testified that besides a close friend who he considers to be family, Nick Sommerfeld, that no other paternal family members, besides his mother, are involved in Braylen’s life. (

i) the ability of each parent to communicate and cooperate on issues affecting Braylen; and (ia)any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of Braylen; [ 98 ] The parties agree that communication between them in presently poor and that due to no-contact orders previously put in place because of Mr. Larkin’s criminal charges, they have had to use third parties (Brittany Pennell, Yolanda Pennell and Nick Sommerfeld) to facilitate communication between them. [ 99 ] While all the criminal charges have now been resolved as a result of Mr. Larkin’s recent guilty plea to assaulting Ms. Pennell in May 2021, contrary to

Section 265 of the Criminal Code , Mr. Larkin is currently subject to conditions under a Probation Order which, amongst other things, required him to have no direct or indirect contact or communication with Courtney Pennell except:

a) Through a lawyer;

b) In accordance with a written separation agreement or court order for access to a child or children;

c) With the express consent of Courtney Pennell and only through text or email. [ 100 ] These restrictions remain in place until May 17, 2023, after which time they will be lifted so long as Mr. Larkin complies with all of the various terms and conditions of his Probation Order. [ 101 ] Given the parties’ poor communication, they agree to use the electronic app, Our Family Wizard, to communicate with each other. Commendably, both parties also appear committed to trying to get professional assistance to improve their communication. Specifically, as noted in

Schedule “A”, they agree that they shall attend co-parenting counselling, where either or both parties attend individually with the same counsellor, or where one party appears in person and the other party appears by phone for a joint session. I therefore order that the parties participate in co-parenting counselling designed to improve communication and co-parenting strategies in Braylen’s best interests and leave it to the appropriate professional to direct the specific parameters of any such counselling in accordance with the parties’ agreement. (

j) the impact of any family violence, abuse or intimidation, regardless of whether Braylen has been directly exposed, including any impact on (

i) the ability of the person causing the family violence, abuse or intimidation to care for and meet the needs of Braylen, and (ii) the appropriateness of an arrangement that would require co-operation on issues affecting Braylen including whether requiring such co-operation would threaten the safety or security of Braylen or of any other person. [ 102 ] Family violence, in any of its forms whether physical, emotional, psychological or financial abuse is a significant factor to consider when determining the best interests of children. This was recently underscored by the Supreme Court of Canada in Barendregt v.

Grebliunas , 2022 SCC 22 , where the Court emphasized: • Children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives (para. 143); • Harm to children can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it (para. 143); • Domestic violence allegations are notoriously difficult to prove and family violence often takes place behind closed doors and may lack corroborating evidence.

Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support (para. 144); • Family violence often goes unreported. Findings of family violence are a critical consideration in the best interests analysis.

Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child (paras. 145-146); • It is important to be aware of the social and legal barriers to women disclosing family violence in family law proceedings (para. 183); and • Cooperating, staying, or reconciling with a party does not necessarily indicate that an incident of abuse or violence was not serious (para. 186). [ 103 ] Here, the parties disagree on the extent to which there was family violence in their relationship.

In her affidavit sworn to on April 14, 2022, Ms. Pennell gave detailed accounts of four physical assaults which she says were perpetrated against her by Mr. Larkin between December 2015 and July 2017 and another which occurred in May 2021 when Braylen was around. Her sister, Brittany Pennell, also filed an affidavit in which she confirmed that she directly observed Mr. Larkin assault Courtney Pennell on one occasion and was present to deal with the aftermath of other assaults.

She attached to her affidavit pictures taken of the injuries allegedly suffered by Courtney Pennell from these assaults. [ 104 ] In his affidavit sworn to on May 17, 2022, Mr. Larkin does not provide any evidence with respect to the first three allegations of physical assault made by Ms. Pennell except to say that the allegations “are untrue and her claims were dismissed”. He argues that the fact that the criminal assault charges were withdrawn demonstrates that they were altogether unfounded. [ 105 ] Mr.

Larkin did address in his affidavit the last criminal charges including the charges of assault and forcible confinement from May 2021 for which he pled guilty of an assault under

section 265 of the Criminal Code resulting in his current Probation Order. [ 106 ] In relation to the May 2021 incident, he suggested, amongst other things that: • Ms. Pennell physically assaulted him; • He and Ms. Pennell had a verbal altercation; • He did not physically assault Ms. Pennell but pled guilty to a “verbal assault” for which he received a conditional discharge; • He wished he had simply walked away from the situation; and • He will follow the terms of his conditional discharge as directed by a probation officer. [ 107 ] In addition to the no contact provision, Mr. Larkin’s Probation Order requires him to attend for a mental health assessment and

counselling for anger management as directed by his probation officer. Mr. Larkin testified that he met with his probation officer in May 2022 and because he had previously completed an anger management course, he has no more requirements to meet under the Probation Order other than to maintain good behaviour. [ 108 ] In Ms. Pennell’s post-hearing submissions of June 21, 2022, her counsel argues that because neither Ms. Pennell or her sister were cross-examined about any of the evidence they gave about the physical assaults perpetrated by Mr. Larkin, their evidence should be accepted. [ 109 ] In Mr.

Larkin’s Reply Submissions dated June 27, 2022, his counsel states: “Courtney was not cross-examined on the alleged domestic violence incidents because Liam addressed them in his affidavit. There was no reply to Liam’s version of events in his affidavit. We submit that given there was no reply to these events, Liam’s version should be accepted. The false allegations should not overshadow the real issue in this matter, which is what is in Braylen’s best interests.” (para. 6) “…the allegations of physical violence are set out in Courtney’s affidavit. Liam’s version of events are set out in his affidavit. Mr.

Violande cites paragraph 144 of Barendregt v Grebliunas , 2022 SCC 22 . We submit that in that case the court was referring to cases where pervasive domestic abuse was occurring, but the abused was unable to prove the abuse because it happened behind closed doors and therefore proof of one event may be enough to infer that the abuser’s evidence in its totality is credible. That is not the situation here. The allegations here are of a few isolated events over a six-plus year time period. Liam explained each event and most predated the current order.” (para. 18).

The facts are that Courtney and Liam have had disputes that have escalated. Liam regrets his role in these disputes. Courtney has expressed no remorse for her role and instead is taking on the role of a victim .” (para. 19) [Emphasis added] [ 110 ] When considering the parties’ contrasting evidence about the alleged physical assaults, I find Mr. Larkin’s evidence questionable and, with respect, his counsel’s arguments not persuasive. Specifically, I rely on the following: • I find that Courtney Pennell’s and Brittany Pennell’s evidence on the issue of domestic violence to be more credible than Mr.

Larkin’s evidence. Their evidence include specific details of the assaults and included pictures of the injuries which Ms. Pennell suffered from same. Their evidence was not challenged through cross-examination. • While Mr. Larkin argues that Ms. Pennell provided no reply to his “version of events” in relation to the first three allegations of physical assault, Mr. Larkin simply provided a blanket denial without providing anything more about his “version of events”. Thus, there was really nothing of substance for Ms.

Pennell to respond to in relation to his version of events in relation to those allegations of assault. • I disagree with the implied suggestion that issues of family violence should be minimized in the context of what Mr. Larkin’s counsel argues is the “real issue” of Braylen’s best interests. While clearly Braylen’s best interests is the paramount consideration, as made clear from the PSA and the Supreme Court of Canada in Barendregt , family violence is and should be a significant consideration when assessment the best interests of children who can be harmed by direct or indirect exposure to domestic violence.

Indeed as the Supreme Court of Canada emphasized in Barendregt , family violence is a “critical consideration in the best interests analysis”. • Mr. Larkin’s counsel’s

interpretation that the Barendregt decision was referencing situations where there is “pervasive domestic abuse” is, with respect, misguided. Indeed, the Supreme Court of Canada rightly emphasized that even one incident may raise safety concerns and may enhance the significance of other factors such as the need for limited contact. Thus, I disagree with Mr.

Larkin’s counsel’s suggestion that the allegations of family violence in this case should be minimized on the basis that they are “a few isolated events” or that “most predated the current order”. • While I acknowledge that the older criminal assault allegations never went to trial and that, at law, Mr. Larkin is presumed innocent of any criminal wrongdoing in relation to those charges, it concerns me that Mr.

Larkin would again, in the midst of this variation proceeding, find himself charged with new criminal charges for which he ultimately pled guilty to the offence of assault under s. 265 of the Criminal Code . While Mr. Larkin’s counsel argues that Ms. Pennell has “expressed no remorse for her role and instead is taking on the role of a victim”, the fact is that she was the victim in relation to the assault charge which Mr. Larkin plead guilty to. Thus, to cast aspersions against Ms.

Pennell that she is “taking on the role of a victim” is, in my view, completely unwarranted. 7.0 CONCLUSIONS ON ISSUES 1 AND 2 [ 111 ] I have considered the evidence, the law and the submissions of the parties. After applying a holistic and child-centered focus for Braylen, I will now give my conclusion in relation to Issues 1 and 2. 7.1 Issue 1: Decision-Making [ 112 ] As noted earlier, I order all the agreed upon terms with respect to decision-making contained in

Schedule “A” including how the parties will make major medical decisions for Braylen. [ 113 ] With respect to non-medical decisions for Braylen, I order: • The parties must meaningfully consult on same in writing through the agreed upon method of using the app, Our Family Wizard, or any other agreed upon method; • Each party must respond in writing to any request for input on any such decisions within 48 hours failing which the requesting parent can make the decision if no response is received; • Should the parties, after meaningful consultation, be unable to agree on a major non-medical decision involving Braylen, Ms. Pennell is given final decision-making authority.

[ 114 ] I find this decision-making arrangement to be in Braylen’s best interests for the following reasons: • Ms. Pennell has clearly been the parent who has made the vast majority of major decisions for Braylen both before and after the parties separated. She has consistently demonstrated the ability to make good decisions for him which ensure that his physical, emotional, social and educational needs are met well. Braylen has thrived under her primary care. • While I agree that there have been occasions where Ms. Pennell hasn’t always meaningfully consulted with Mr.

Larkin on major issues as required under the August 2018 Consent Order, I accept, without necessarily condoning, that she generally had valid concerns when she failed to do so and wasn’t intentionally trying to minimize Mr. Larkin’s role in Braylen’s life. Furthermore, meaningful communication between the parties was made far more difficult because of Mr. Larkin’s criminal charges and, at least in relation to the May 2021 incident for which he pled guilty to assaulting Ms. Pennell, he must accept that he was directly responsible for the undertaking being put in place.

To the extent that the criminal proceedings appear to now be largely behind the parties, I am satisfied that, on a go forward basis, Ms. Pennell understands the importance and need for timely and child-focussed consultation on all major issues with Mr. Larkin and that she cannot make those decisions unilaterally. • Both parties acknowledge that they currently have poor communication but are committed to trying to improve same now.

While I am hopeful they will learn better communication strategies in the future, until that happens, it isn’t in Braylen’s best interests to have his parents embroiled in further conflict if they cannot reach agreement on major decisions after meaningful consultation. In such circumstances, it is in Braylen’s best interests that Ms. Pennell, the parent who has successfully made major decisions in Braylen’s best interests since the parties separated, be given final decision-making authority. • While Mr.

Larkin may feel otherwise, the decision-making arrangement I have ordered does allow him to be meaningfully involved in all aspects of major decision-making for Braylen. It does not, as he suggests, effectively remove him from all decision- making in relation to Braylen. Indeed, Ms. Pennell has agreed that both parents should consult on any major decisions and should either seek input from the other parent and if that other parent fails to respond within 48 hours, then the parent seeking input is entitled to make that decision. Thus, this should give Mr.

Larkin comfort that his voice can and will be heard on any major decisions involving Braylen and even potentially gives him the ability to make major decisions in the event he raises an issue for discussion and Ms. Pennell fails to respond to same in a timely basis. 7.2 Issue 2: Parenting Arrangements [ 115 ] Again, I order all the agreed upon terms with respect to parenting arrangements outlined in

Schedule “A”. [ 116 ] With respect to the remaining issue of what parenting arrangement is in Braylen’s best interests during the school year, counsel acknowledged that I’m not limited to the options they have presented to me.

Rather, as part of my overall duty to Braylen, they agreed that I can order any parenting arrangement which I believe is most in Braylen’s best interests at this time based on the evidence and the law. [ 117 ] Having carefully considered the evidence, the law and the submissions of the parties, I find and order that Braylen’s best interests require the following regular parenting arrangement during the school year: Week 1 : Braylen will be in Mr. Larkin’s care from Thursday after school until Sunday 7:30 p.m.; Week 2 : Braylen will be in Mr.

Larkin’s care Tuesday and Thursday from after school until 7:30 p.m.; [ 118 ] As agreed to by Ms. Pennell, Mr.

Larkin’s weekend parenting time will be extended by an extra day should it fall adjacent to a holiday or an in-service day. [ 119 ] I find that such a parenting arrangement is in Braylen’s best interests for a number of reasons including, but not limited to, the following: • I conclude that it’s simply not in Braylen’s best interests to now move to a 50/50 week about parenting arrangement during the school year especially since he will be entering primary in September and requires stability and consistency as he enters this new stage of his life.

Indeed, until the parties’ recent agreement to share non-school summer parenting time equally, Mr. Larkin was only having one full day and night with Braylen every two weeks (i.e. every second Saturday). Having Braylen in Ms. Pennell’s primary care during the school year best ensures that he receives the stability and consistency he requires as he enters primary given that she’s been the parent who has consistently borne the lion’s share of parenting responsibilities when it comes to meeting his daily needs. • Mr. Larkin’s work

schedule requires him to be at work for 6:30 a.m. during the school week. While I commend him for working hard to support himself and Braylen, potentially getting Braylen up extremely early (perhaps as early as 5:30 or 6:00 a.m.) during the school week for the 50% of the time he would be in Mr. Larkin’s care if a week about parenting arrangement was ordered, would not be in Braylen’s best interests especially since Braylen only has to get up at 7:15 a.m. when in Ms. Pennell’s home to make it on time for school. • For the reasons I outlined in paragraph 89, I find that Mr.

Larkin’s week about parenting plan simply lacks details and has too many unknowns at this point to be in Braylen’s best interests. I agree with Ms. Pennell that while it may be well-intentioned, it simply isn’t well thought out at this time. I make a finding of fact that Mr. Larkin’s plan for shared parenting at this time isn’t “reasonable, realistic and workable” as described by Justice Beaton in A.N. v. J.S. , supra.

Furthermore, as emphasized by Justice Beaton, I’m not confident that these parents “have demonstrated and will be able to continue with a high degree of integration, cooperation, respect and flexibility in and for their respective parenting styles” to make a week about shared parenting arrangement work in Braylen’s best interests. • I have considered all the various considerations for shared parenting in the overall context of determining what parenting

arrangement is in Braylen’s best interests. While some of those considerations may possibly support a week about shared parenting arrangement in the future, I find that the parties’ present level of poor communication simply doesn’t make it in Braylen’s best interests to order such an arrangement now. • As noted earlier, especially in light of Mr. Larkin’s recent guilty plea for assaulting Ms.

Pennell, I have ongoing concerns about the impact of family violence, abuse and intimidation in this case which, in my view, factor against a 50/50 parenting arrangement during the school year when structure, consistency and stability are most important for Braylen as he enters primary. • I conclude that the parenting arrangement I have ordered appropriately balances the maximum contact principle as outlined in subsection 18(8) of the PSA within the context of an overall consideration of Braylen’s best interests.

This arrangement ensures Braylen spends a meaningful amount of time with both parents during the school year, and equal, or close to equal, time with both of his parents during the non-school year and holidays.

It allows Braylen to continue to foster and develop positive relationship with both parents in a manner consistent with his best interests. • I make a finding of fact that this arrangement best meets Braylen’s physical, emotional, social and educational needs at this stage of his life including his need for stability and safety. 8.0 ISSUE 3: SHOULD I ORDER A REVIEW OF THE PARENTING ARRANGEMENTS? [ 120 ] During the hearing, I asked both parties to address in their closing submissions whether there should be a review of any parenting plan I ordered and gave my rationale for possibly considering ordering one. [ 121 ] In his closing submissions of June 22, 2022, Mr.

Larkin’s counsel simply writes, “We do not believe that a review is required in these circumstances”. [ 122 ] In her closing submissions of June 21, 2022, Ms. Pennell’s counsel says, “Ms. Pennell is agreeable the Order stipulating that either party may bring this matter back for a review after June of 2023 without needing to prove a material change in circumstances”. [ 123 ] Reviews should not be routinely ordered. When they are, they should be “tightly circumscribed” to avoid being seen as an invitation for parties to simply reargue o relitigate a case: Leskun v.

Leskun , 2006 SCC 24 . [ 124 ] In the present case, however, I conclude that it is appropriate to order that either party can seek a review of the parenting arrangements I have ordered by no earlier than June 1, 2023, without needing to provide a material change in circumstances.

If any review is sought, the party seeking the review must notify of their intention to seek a review and file an affidavit in support of same by no later than by June 15, 2023, failing which it will be assumed that neither party is seeking a review and that any future changes to the parenting arrangement I have ordered will require a proper variation application to be made with proof of establishing a material change of circumstances. [ 125 ] I conclude that this is appropriate for the following reasons: • The parties themselves in the August 2018 Order indicated that it was their intention to move to a shared parenting arrangement.

Unfortunately, progress towards this goal never occurred partly because the parties had a significant period where their ability to work together in positively co-parent Braylen was impacted by the criminal proceedings and the no-contact order.

They have therefore never really been given a meaningful opportunity to demonstrate to themselves, or to the court, that they have a “high degree of integration, cooperation, respect and flexibility in their parenting styles” and that they can consistently communicate in a “timely, meaningful and respectful way”. • Now that the criminal proceeding has been resolved, and the parties have agreed on the method of how they will communicate with each other, and have also agreed to co-parenting counselling designed to improve their communication, I am hopeful that they can learn better strategies that may help them meet their stated aspirational goal to move to a shared parenting arrangement at some point in the future. • A review after June 1, 2023, will provide certainty as to whether Mr.

Larkin has complied with all the terms of his Probation Order which may help reduce some of the present concerns I have about ongoing issues of family violence and intimidation; • By June 1, 2023, many of the unknowns or deficits in Mr. Larkin’s plan for shared parenting may be addressed. He may know where he is living and what role, if any, his mother will have in consistently helping him to care for Braylen; • Braylen will have at least some history of being in a week about shared parenting arrangement given that the parties have agreed to same during the non-school year.

I will have better evidence as to whether such an arrangement worked for Braylen, as well as Mr. Larkin’s ability to consistently meet the day to day parenting duties for Braylen in a positive way. [ 126 ] I caution, however, that simply because I have ordered th

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