Weagle v Kendall, 2022 NSSC 383

SUPREME COURT OF Nova Scotia Citation: Weagle v Kendall , 2022 NSSC 383 Date: 20221205 Docket: SFHPSA , No. 116050 Registry: Halifax Between: Joseph Daniel Weagle Applicant v. Olivia Kendall Respondent Judge: The Honourable Justice Cindy G. Cormier Heard: May 30, May 31 June 1, 2022, in Halifax, Nova Scotia Counsel: Jennifer Reid, for the Applicant Ashley Dutcher, for the Respondent By the Court: 1 Introduction: [ 1 ] The parties, Mr. Weagle and Ms. Kendall, began a relationship in July 2017. They had known each other for six months when Ms.

Kendall said she “accidentally conceived A.” With the help of her father, Douglas Kendall, Ms. Kendall purchased a house in Dartmouth Nova Scotia. When Ms. Kendall learned she was pregnant, Mr. Weagle wanted to move in with Ms. Kendall immediately. However, Ms. Kendall wanted Mr. Weagle to address his drug use and money management problems, and she wanted him to have a plan for his parenting time with his son from a previous relationship. [ 2 ] Ms. Kendall and Mr. Weagle moved in together a few weeks before their daughter, A, was born in September 2018.

A experienced health problems at birth and underwent open heart surgery in January 2019. In February 2019, the parties separated after Ms. Kendall learned Mr. Weagle was meeting up with another woman, Ms. Beliveau. Ms. Kendall stayed in her home in Dartmouth, Nova Scotia while Mr. Weagle moved into his parents’ home in Fall River, Nova Scotia. A has resided primarily with Ms. Kendall since the parties separated in February 2019. [ 3 ] There was some disagreement about whether Mr. Weagle began working outside the province while he was still living with Ms. Kendall and A, or after the parties separated.

From February 2019 until April 2019, when Mr. Weagle returned from working outside the province most weekends, he cared for A at his parent’s home in Fall River, Nova Scotia. [ 4 ] In April 2019, Ms. Kendall became concerned about Mr. Weagle’s parenting time with A. She would not allow Mr. Weagle to care for A overnight and she insisted that his parents supervise his parenting time until Mr. Weagle could provide her with proof he was not abusing substances which would interfere with his ability to care for A. Ms. Kendall offered to pay for Mr. Weagle’s drug testing. Mr.

Weagle’s supervised parenting time was scheduled on every Thursday from 3:30 pm to 6:30 pm and every Sunday from 9:00 am to 6:00 pm, and other times as agreed between the parties. 1.1 The parties positions [ 5 ] On October 2, 2019, Mr. Weagle, representing himself, filed a Notice of Application seeking to address the issues of custody, parenting arrangements and child support involving parents or guardians, pursuant to sections 18 and 9 of the Parenting and Support Act . [ 6 ] Mr. Weagle filed his own Parenting Plan with his original Notice of Application filed in October 2019. He was seeking an order for: (

a) shared decision making; (

b) for A to continue to reside primarily with Ms. Kendall; and

(

c) specified parenting time to accommodate his travel for work outside Nova Scotia. [ 7 ] Ms. Kendall filed a Response on December 2, 2019. Ms. Kendall was requesting: (

a) sole decision-making responsibility A. (Ms. Kendall has since stated that she is happy to share joint custody with Mr. Weagle); (

b) agreement to take the advice of a third-party professional involved in A’s care (the parties have agreed to add this term to an order); and (

c) final decision-making authority if the parties could not agree. (Mr. Weagle is opposed to Ms. Kendall having final decision- making authority if they cannot agree.) 1.2 Change in Mr. Weagle’s position [ 8 ] On June 19, 2020, both parties were represented by legal counsel when they appeared before the Court. Mr. Weagle changed his position and he sought a shared parenting arrangement. Shortly thereafter, in September 2020, Mr. Weagle moved to Ingramport, Nova Scotia – 43.1 km away from Ms. Kendall and A – to live with Ms. Beliveau and her son from a previous relationship, N. [ 9 ] Mr.

Weagle began exercising weekend parenting time with his son from another relationship, AD, in Ingramport, Nova Scotia. However, because of the distance between his new home and AD’s mother’s, Ms. Snow’s home (approximately one hour), Mr. Weagle mostly exercised his weekday parenting time with AD at his parent’s home in Fall River. [ 10 ] Shortly after Mr. Weagle moved in with Ms. Beliveau in September 2020, in or around October or November 2020 and after both parties had participated in urine analysis testing, Ms. Kendall agreed to allow Mr. Weagle unsupervised parenting time with A. In December 2020, Mr.

Weagle’s parenting time expanded to every second weekend and a day each week, with the addition of shared holidays and other extra parenting time as agreed between the parties. Mr. Weagle continued with the same parenting

schedule up to trial in May 2022. [ 11 ] On November 18, 2020, Ms. Kendall filed an Amended Response to Application seeking authorization from the Court to relocate to Ottawa, Ontario with A, pursuant to

section 18E through H of the Parenting and Support Act . Her reasons included but are not limited to: increased support from her family and friends in or around Ottawa, Ontario and elsewhere; the lack of support both financial and emotional from Mr. Weagle and his family in Nova Scotia; and for her own career advancement. [ 12 ] A 3-day trial was originally scheduled January 18, 19, and 20, 2022. Mr. Weagle requested an adjournment, asking that the trial be held later to allow the trial to be held in-person.

An in-person trial was re-scheduled to May 30, 31, and June 1, 2022. 2 Issues 2.1 Decision making [ 13 ] Both parties have agreed to share decision making with respect to A. [ 14 ] Both parties have agreed to take the advice of a third party professional involved with the care of A. [ 15 ] Mr. Weagle opposes Ms. Kendall’s request for her to have final decision-making authority if the parties cannot agree. 2.2 Parenting arrangements [ 16 ] In January 2021, Mr. Weagle advised the Court he opposed Ms. Kendall’s application to relocate with A to Ottawa Ontario. Mr.

Weagle sought primary care of A in Halifax, Nova Scotia. 2.3 Child Support 2.3.1 Determination of the parties’ incomes for child support purposes: [ 17 ] Ms. Kendall accept Mr. Weagle’s income as disclosed for 2019 and 2020: (a) 2019: $67,635.00; (b) 2020: $43,166.64; and (

c) Ms. Kendall was uncertain about Mr. Weagle’s income for 2021 but suggested that based on an hourly rate of $31.00 per hour and a 40-hour work week his annual income for child support should be $64,480.00 attracting a monthly child support payment of $551.03. (

d) She noted that Mr. Weagle had been paying her $210 per month in child support. [ 18 ] She suggested that according to their incomes for 2021, her proportionate share based on $67,219.32 would be 51% and his share based on $64,480.00 would be (49%).

2.3.2 Ms. Kendall is seeking: [ 19 ] Ms. Kendall sought a retroactive recalculation of the table amount of child support owed by Mr. Weagle for A back to October 2019: Mr. Weagle suggested he owed retroactive child support in the amount of $3,548.45 , and he proposed paying $50.00 per month. While Ms. Kendall sought a retroactive child support award of $4,853.10 . [ 20 ] She is also seeking to have Mr. Weagle pay the prospective table amount of child support: if Ms. Kendall is granted authority to relocate with A to the Ottawa, Ontario area, she seeking that Mr.

Weagle pay child support commencing June 1 st , 2022 based on an annual income of $64,480.00, attracting a monthly payment of $551.03 which would be reduced by $300.00 to account for Mr. Weagle’s expected costs of travel for his parenting time with A, resulting in a child support payment of $251.03 per month. [ 21 ] She is seeking a retroactive recalculation of Special and Extraordinary Expenses and for Mr. Weagle to pay his proportionate share of A’s childcare expenses from 2020, 2021, and up to trial in May 2022. (

a) According to her Statement of Special or Extraordinary Expenses filed on March 23, 2021, Ms. Kendall suggested A’s daycare costs averaged $327.58 per month. Ms. Kendall calculated the parties respective proportionate shares of childcare costs based on Mr. Weagle’s income of $43,166.64 and her income $40,478.88. Mr. Weagle’s share being 52% she has asked that Mr. Weagle be ordered to pay $506.48 . (

b) According to Ms. Kendall’s Updated Statement of Special or Extraordinary Expenses filed December 14, 2021, daycare costs averaged $339.00 per month. For 2021 Ms. Kendall’s income was $55,097.44 and defaulting to Mr. Weagle’s 2020 income of $43,166.64 , Mr. Weagle’s share of A’s day care costs would be 44%: $744.04. (

c) Ms. Kendall claimed a contribution to childcare for A between January 1, 2022 and May 31, 2022 based on Mr. Weagle’s income of $64,480 and her income of $67,219.00, asking the court to order Mr. Weagle to pay his proportionate share 49% of the net costs of childcare for A: $221.97 . (

d) Ms. Kendall was seeking a total retroactive award for childcare of $1,472.49 . [ 22 ] Prospectively, Ms. Kendall was seeking to share the cost of any prospective special or extraordinary expenses on a proportionate basis. She asked that Mr. Weagle’s “prospective child support obligations pursuant to both sections three and seven, be determined by taking into account any necessary travel expenses.” [ 23 ] Ms. Kendall has stated she would reduce Mr. Weagle’s table amount of child support by $300.00 per month to account for his costs to exercise parenting time with A.

Section 10 of the Child Support Guidelines does not require me to use the schedules. I find that with Ms. Kendall’s consent I can consider Mr. Weagle’s costs to exercise his parenting time. [ 24 ] Mr. Weagle has stated he will only be able to contribute $50.00 per month for any special or extraordinary expenses for A. Without a formal undue hardship application from Mr. Weagle or a clear agreement between the parties, I am not prepared to waive Mr. Weagle’s responsibility to share proportionately the net cost of A’s childcare required for Ms.

Kendall to accommodate her work. [ 25 ] A’s dance classes which cost $169.95 per month were included in Ms. Kendall’s Statement of Special or Extraordinary Expenses but not referenced in her submissions. Without clear representations about why A’s dance classes would qualify as an extraordinary expense, I am not prepared to order Mr. Weagle to contribute to the expense. [ 26 ] Ms. Kendall also seeks costs. 2.3.3 Mr. Weagle’s position on child support: [ 27 ] If Mr. Weagle is granted primary care of A, he is seeking the table amount of child support to be paid by Ms.

Kendall be reduced by $300.00 per month to account for the increased costs of parenting time due to travel. He proposes any costs related to travel be born by Ms. Kendall. He proposes a proportionate sharing of

section 7 special or extraordinary expenses for A that are agreed upon in advance by the parties. [ 28 ] If Ms. Kendall is granted authority to move to Ottawa with A, Mr. Weagle proposes to pay the table amount of child support for A based on his line 2021 income, which he suggests would attract a payment of $387.90 per month. [ 29 ] He has suggested he is unable to afford to pay the travel costs to exercise his parenting time with A and he proposes those costs be born by Ms. Kendall. He further suggested he is unable to afford to pay a proportionate share of all

section 7 expenses claimed by Ms. Kendall and can only afford to contribute $50.00 per month toward agreed upon

section 7 expenses for A. 3 Mr. Weagle’s request for primary care of A in Nova Scotia [ 30 ] Mr. Weagle pointed out that Nova Scotia is the only home A has ever known and that A has a strong connection with him, his immediate family, and his extended family in Nova Scotia. [ 31 ] Mr. Weagle explained that A is bonded to her siblings, including: her stepbrother, N, and her half-brothers, AD and D, with another baby brother expected in August 2022.

She has benefited from opportunities to spend time with his immediate and extended family at his parents’ cottage at Hackett’s Cove where his family gathers during the summer. Mr. Weagle’s mother has stated that they open the cottage up in April each year.

[ 32 ] I accept that A’s home has always been in Nova Scotia. She has connections with people in Fall River, Hackett’s Cove, and as of September 2020, Ingramport. I also find that A has developed relationships with people in Dartmouth where she lives primarily with Ms. Kendall, including at her daycare and at her extracurricular activities. [ 33 ] A has developed relationships with her caregivers and friends at the day cares she has attended in Dartmouth, Nova Scotia.

A has also developed relationships while participating in extracurricular activities such as dance classes and previously when she participated in Kindermusik. A has a doctor, a dentist, and possibly a specialist she has seen over the years in Nova Scotia. I have considered and I accept that A has many relationships in Nova Scotia. [ 34 ] With the obvious exception of Douglas Kendall, who Mr. Weagle argued is not residing in Ottawa Ontario, Mr. Weagle has claimed that A has never met Ms. Kendall’s extended family from Ottawa, Ontario. In addition, Mr. Weagle claimed that Ms.

Kendall had always indicated to him that she was not close to her brother Wesley Kendall or her sister-in-law. [ 35 ] Mr. Weagle advised the Court that if he is granted primary care of A and Ms. Kendall relocated to Ottawa, Ontario without A, he proposed Ms. Kendall have block parenting time in the summers, over extended holidays, and on special occasions. When responding to Ms. Kendall’s plan to have A travel to see Mr. Weagle in Halifax if she was granted authority to move, Mr.

Weagle stated that he would not be able to help facilitate A’s exchanges for parenting time with him due to his other commitments. 4 Ms. Kendall’s reasons and her plan for relocation [ 36 ] Considering a parent’s reasons for moving can be “relevant, and even necessary, to assess the merits of a relocation application;” however, “a moving parent need not prove the move is justified.” ( Barendregt v Grebliunas, 2022 SCC 22 ) . Ms. Kendall’s reasons for relocating must be considered only to the extent they are relevant to A’s best interests. [ 37 ] Ms.

Kendall was working for the Canada Mortgage and Housing Corporation (CMHC) as an Account Representative when in late October or early November 2020, she received a promotion. Subsequently, Ms. Kendall sought the Court’s authorization to relocate to Ottawa, Ontario, stating, among other reasons for the move, that she believed she could only advance “so far” in her career while residing in Halifax, Nova Scotia. I accept that Ms. Kendall would have more opportunities to advance in her field of work if she resided in Ottawa, Ontario. [ 38 ] Ms.

Kendall stated that at the end of January 2022, she started another position: a twelve month contract as Senior Officer. She stated that the position was “technically based out of CMHC’s head office” which is located in Ottawa, Ontario. [ 39 ] She would have to return to her former position, at a lower salary, if she is unable to retain a permanent Senior Officer position by January 2023. She is earning $67,219.23 in her new position. Ms. Kendall’s contract runs between January 2022 and January 2023. Ms.

Kendall argued that for her to work long-term in a specialist or management role, she would need to relocate to Ottawa, Ontario. [ 40 ] In his affidavit dated May 26, 2022, Mr. Weagle indicated that he understood Ms. Weagle’s position had changed, and a move was no longer required for her employment or for her advancement in her chosen field. Even if Mr. Weagle is right, Ms. Kendall’s request to relocate to Ottawa, Ontario does not turn on that one issue alone. I must consider which plan is in A’s best interests: living primarily with Ms. Kendall in Ottawa, Ontario or with Mr.

Weagle in Ingramport, Nova Scotia, based on all the relevant evidence. [ 41 ] Ms. Kendall owns her home in Dartmouth, Nova Scotia. She purchased the home with her father, Douglas Kendall’s, financial help in 2017. She explained that the title and the mortgage are in Douglas Kendall’s name and he hopes to relocate to Ottawa, Ontario. She and her father share responsibility for the expenses related to the home and her father also purchased Ms. Kendall a vehicle. [ 42 ] Since Ms.

Kendall and her father purchased the home in Dartmouth, Nova Scotia, her father, Douglas Kendall has been in and out of her home, staying with Ms. Kendall and Mr. Weagle prior to A’s birth and after. He again lived with Ms. Kendall and A for extended periods of time after the parties separated. Douglas Kendall has provided financial, emotional, and practical support to Ms. Kendall and A. [ 43 ] Ms. Kendall indicated that her house was purchased for $225,000 and she believes she can sell it for $400,000. However, Ms.

Kendall does not want to sell her house or look for a new house in the Ottawa area until she knows the outcome of her relocation application. If granted authority to relocate with A, Ms. Kendall hopes to sell her home and move to the Ottawa area, possibly to Nepean where her brother resides with his wife. [ 44 ] Ms. Kendall explained that Mr. Weagle’s family were initially very supportive of her; however, with the exception of a few emails from Christine Weagle (Mr. Weagle’s mother) during Covid-19 lockdowns, they “have completely removed her from their lives and do not communicate with her.” [ 45 ] Ms.

Kendall explained that her extended family and her very close long-term friend reside in or around Ottawa, Ontario. Specifically, her brother Wesley Kendall and his wife Maria; her good friend Dawn Elma; her aunt and uncle Joanne Kendall and Yves Damphouse; her cousin Evan Damphouse; her cousin Gabrielle Damphouse; her uncle and his fiancé Simon Kendall and Aiza; and her close cousins Renay and Paul Gioancos, who have two young children; are her supports, and they reside around the Ottawa Ontario area. [ 46 ] I accept that Mr. Weagle’s family has not been supportive of Ms. Kendall in recent years and that Ms.

Kendall’s supports, her family and her long-term friends reside in or near Ottawa, Ontario. I also accept that Ms. Kendall’s family and friends would be in a better position to offer support to Ms. Kendall and A if the relocation was authorized to the Ottawa, Ontario area. [ 47 ] Ms. Kendall denied Mr. Weagle’s claims that A had not met any of her family in Ottawa, Ontario or that Ms. Kendall is not close to her brother Wesley Kendall. Ms. Kendall did acknowledge that in-person contact with her family and her friend in the Ottawa, Ontario area had been difficult during Covid-19.

[ 48 ] A did meet some extended family members in Newfoundland. In addition to Ms. Kendall’s father, other relatives and friends visited Ms. Kendall and A in Dartmouth, Nova Scotia. Ms. Kendall’s mother visited Ms. Kendall and A in Nova Scotia from Pittsburgh, Pennsylvania in November 2019. Ms. Kendall suggested that if she moved to Ottawa, Ontario with A, that her mother would be able to visit them from Pittsburgh, Pennsylvania several times per year. [ 49 ] Ms. Kendall explained that she and A have kept in touch with Ms. Kendall’s father, her mother, and her other family and friends virtually. Ms.

Kendall’s brother, Wesley Kendall, and her father, Douglas Kendall, both testified at the trial and they confirmed they had met A, and they continue to speak with Ms. Kendall and with A regularly via video calls. Both confirmed they were prepared to provide support to Ms. Kendall and A if they relocate to Ottawa, Ontario. [ 50 ] In her affidavit sworn in March 2021, Ms. Kendall also made several additional arguments about how she would be better able to provide for A’s needs if they moved to Ottawa, Ontario. Ms.

Kendall attached information about the benefits of living in Ottawa Ontario including information comparing sales tax. I am aware of but I have not relied on that evidence in coming to my decision. [ 51 ] In preparing her plan for A, Ms. Kendall considered Mr. Weagle’s costs of exercising parenting time with A.

She reported that at the time of trial “flights for two persons from Halifax and Ottawa” ranged in price from $461.00 - $503.00 one way.” [ 52 ] In her brief she stated: the Guardianship program through WestJet allows parents or guardians to escort children between the ages of 2 and 18 on most WestJet flights. With the purchase of a guardian fare, the guardian is eligible for a reduced fare, but is required to return to their departure city within 24 hours.

I take judicial notice there are programs in place through some airlines to help families who must accompany minors for their parenting time. [ 53 ] If permitted to move, Ms. Kendall has stated that she would be agreeable to Mr. Weagle exercising expanded block parenting time. Specifically, Ms. Kendall was agreeable to Mr. Weagle having care of A for an entire month while Ms. Kendall arranges for her and A to move to Ottawa, Ontario. [ 54 ] In addition, Ms. Kendall stated she would be agreeable to Mr. Weagle exercising the following ongoing parenting time with A: (

a) One full month of parenting time for Mr. Weagle with A in the summer to be exercised in June, July or August (as A was not in school at the time Ms. Kendall swore her affidavit). In oral submissions Ms. Kendall confirmed she would be open to more than one month. (

b) Have A in his care for two weeks in December initially indicating until A starts school. In her brief she expanded by stating: Given A will commence pre-primary September 2022, the parties will equally share A’s Christmas Break moving forward. For Christmas 2022, Mr. Weagle will have A in his care from the start of the school break until half-way through the school break, at which time, A will be returned to Ms. Kendall’s care. In 2023, Ms. Kendall will have A in her care from the commencement of A’s school break until half-way through the school break, at which time A will be in Mr. Weagle’s care; (

c) Have a further two-week period of parenting time between his parenting time at Christmas and in the summer, she initially suggested in March or April. In her brief Ms. Kendall stated: A will spend every March Break in Mr. Weagle’s care; (

d) Ms. Kendall would consider other reasonable requests for additional parenting time for Mr. Weagle in Ottawa. In her brief Ms. Kendall stated: Mr. Weagle shall have other additional parenting, upon reasonable request, to be exercised in Nova Scotia and Ms. Kendall shall facilitate any further parenting time between Mr. Weagle and A to take place in Ottawa; and (

e) In her brief, Ms. Kendall also offered Mr. Weagle liberal telephone and videochat time with A. [ 55 ] Ms. Kendall stated that she: Recognizes that Mr. Weagle’s ability to exercise parenting time in Ottawa may be limited due to travel costs and she is agreeable to flying to Nova Scotia with A during some of Mr. Weagle’s parenting time and / or participate in some of the travel / driving in order to accommodate Mr. Weagle’s parenting time. … …she is agreeable to other reasonable requests for additional parenting time and facilitating any further parenting time between Mr. Weagle and A that would take place in Ottawa.

[ 56 ] If Ms. Kendall is granted authority to relocate to the Ottawa, Ontario area she proposed reducing Mr. Weagle’s table amount of child support from $551.03, to $251.03 per month, a reduction of $300.00 per month. Ms. Kendall proposed that Mr. Weagle would be responsible for all travel costs related to his parenting time with A. 5 Law [ 57 ] In Barendregt v.

Grebliunas , supra , the Supreme Court of Canada stated that the “crucial question is whether relocation is in the best interests of the child, having regard to the child’s physical, emotional, and psychological safety, security and well-being.” The inquiry is highly fact specific. [ 58 ] Mr.

Weagle argued that Barendregt , supra was distinguishable from his circumstances as “there were significant considerations around family violence and the Court emphasized the importance of that consideration.” He also referenced paragraph 98 in Barendregt supra : [98] The difficulties inherent to the best interests principle are amplified in the relocation context. Untangling family relationships may have profound consequences, especially when children are involved.

A child’s welfare remains at the heart of the relocation inquiry, but many traditional considerations do not readily apply in the same way. [ 59 ] In addition to commenting on the issue of family violence, the Supreme Court of Canada in Barendregt , supra commented on many other aspects of relocation applications.

I agree that family violence is an important consideration but I find that family violence is not a prerequisite for granting a relocation application. [ 60 ] In Barendregt , supra the Supreme Court of Canada stated that the trial judge was “most notably concerned about the father’s animosity towards the mother.” The Court commented favourably about the trial judge’s consideration of who would most likely foster a positive relationship with the other parent and the Court was not prepared to overturn the trial judges decision because there had been improvements in the parties’ relationship: [159] … most notably, the trial judge was concerned about the father’s animosity towards the mother and the possibility that it could influence or otherwise impact the children: paras. 41-42… And the children and the mother would benefit from family support in Telkwa, including from her parents and siblings: para. 44. … [161] … However, the trial judge expressed serious reservations about whether the father would foster a positive relationship between the children and their mother. [183] First, although counsel for the mother did not advance the father’s animus as a factor that supported relocation, the state of the parties’ relationship was obviously relevant… it is important to be aware of the social and legal barriers to women disclosing family violence in family law proceedings. [184] Second, the parties’ acrimonious relationship was far from a relic of the distant past… [185] …Not only can indirect exposure to conflict have implications for the children’s welfare, the trial judge found there was a significant risk that conflict between the parties would spill over and directly impact the children… [186] Fourth, the record discloses no indication that the trial judge forgot, ignored, or misconceived the evidence showing improvements in the parties’ relationship… And in any event, cooperating, staying, or reconciling with a party does not necessarily indicate that an incident of abuse or violence is not serious: … In the end, what mattered was the trial judge’s conclusion that it was unlikely that the parents could work cooperatively to promote the children’s best interests in a shared parenting structure in the near future para. 42. [ 61 ] In Barendregt supra the parties had a shared parenting arrangement.

In this case, the parties did not. A has always been in Ms. Kendall’s primary care. [ 62 ] Mr. Weagle has argued that the parenting relationship was unilaterally determined by Ms. Kendall. At one point in his submissions, he stated he had always been seeking a shared parenting arrangement. Mr. Weagle’s initial plan filed with this Court in October 2019 indicates otherwise. [ 63 ] I must consider A’s history of care from her perspective – not from the perspective of what Mr. Weagle may have wanted and when he may have wanted it. If I decline Ms.

Kendall’s application for authorization to relocate with A to Ottawa, Ontario, I must first find it is in A’s best interests to be placed in Mr. Weagle’s primary care in Ingramport, Nova Scotia. 6 Parenting Arrangements I cannot consider [ 64 ] I did not ask Ms. Kendall, but she has made it clear to me that she is not moving to Ottawa, Ontario without A. Ms. Kendall stated that if I deny Ms. Kendall authorization to relocate with A to Ottawa, Ontario, she will be seeking primary care of A in Halifax, Nova Scotia. [ 65 ] Again, I did not ask Mr. Weagle, but he stated that if Ms.

Kendall remained in Halifax, Nova Scotia with A, he would be seeking a shared parenting arrangement and he would not be seeking primary care of A. He explained he was seeking to increase his regular parenting time with A and work toward a shared parenting arrangement with a 4/3/3/4

schedule and eventually a week-on week- off parenting

schedule with A.

[66] He suggested he was open to other shared parenting schedules, provided he has two weekends per month of parenting time withA, in addition to other parenting time. He is willing to continue to provide all the transportation for his parenting time with A if Ms.Kendall remains in Nova Scotia. [67] If a shared parenting arrangement was in place, Mr. Weagle stated that he would be agreeable to paying the set-off tableamount of child support for A to Ms. Kendall. However, he argued that given their current incomes, it would be Ms.

Kendall who wouldbe responsible to pay the set-off table amount of child support for A to him. However, he stated he would not seek child support fromMs. Kendall under a shared parenting arrangement. [68] The set-off is a starting point only. If the parties had a shared parenting arrangement, the Court would need to consider sections9(a)(

b) and (

c) of the Child Support Guidelines. Without considering all the circumstances, it is unclear whether or not Mr. Weaglewould be ordered to pay child support to Ms. Kendall if the parties had a shared parenting arrangement. [69] Under a shared parenting agreement, Mr. Weagle stated he would only be willing to pay childcare costs arising from hisparenting time. He would not agree to pay childcare costs arising from Ms. Kendall’s parenting time. He explained that his sisteroperates a daycare out of her home, and she could care for A at a lower cost. [70] In the alternative, Mr. Weagle stated that his partner, Ms.

Beliveau, could care for A during both his and Ms. Kendall’sparenting time, cost free. I would note that the parties reside 43.1 km from each other, with Ms. Beliveau based out of Ingramport, NovaScotia. [71] Mr. Weagle suggested that if Ms. Kendall remained in Halifax, Nova Scotia with A, he would agree to share the costs of othersection 7 expenses for A proportionately if those costs were agreed between the parties as they arose. In the past, Mr. Weagle has notcontributed to any

section 7 expenses for A. [72] The Supreme Court of Canada in Barendregt, supra commented about the trial judge’s task and what courts must and must notconsider when deciding a relocation case at first instance and otherwise: [99] …a judge has the onerous task of determining a child’s best interests in the tangle of competing benefits and detriments posed by either outcome: Hejzlar v. Mitchell Hejzlar, 2011 BCCA 230, 334 D.L.R. (4th) 49 at para 23.

And as Abella J.A. (as she then was) onceobserved, “[i]t can be no more than an informed opinion made at a moment in life of a child about what seems likely to prove to be in that child’s beset interests”: MacGyver v. Richards (1995), (ONCA), 22 O.R. (3d) 481 (C.A.), at p. 489. [112] The approach to mobility issues when they are raised at first instance, as in this case, differs from the approach to such issues whenthey are raised by way of a variation application, as in Gordon.

Without a pre-existing judicial determination, a parent’s desire torelocate is simply part of the factual matrix in the assessment of what parenting arrangement is in the best interests of the child… … [114]…The history of parenting arrangements is always relevant to understanding a child’s best interests. … [115] The crucial question is whether relocation is in the best interest of the child. … [129] That said, the court should avoid casting judgement on a parent’s reasons for moving. A moving parent need not prove the moveis justified.

And a lack of a compelling reason for the move, in and of itself, should not count against a parent, unless it reflectsadversely on a parent’s ability to meet the needs of the child: … [132] Concerns about parenting time with the child will inevitably be engaged in relocation cases: the crux of the dispute is whether it isin the child’s best interests to move notwithstanding the impact on their relationship with the other parent.

In other words, this concernis folded into the central inquiry before the court. … [154] …traditional considerations bearing on the best interests of the child must be considered in the context of the unique challengesposed by relocation cases.

In addition to the factors that a court will generally consider when determining the best interests of the childand any applicable notice requirements, a court should also consider: • the reasons for the relocation; • the impact of the relocation on the child; • the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and thelevel of involvement in the child’s life of each of those persons; • the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside; • the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decisionmaking responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travelexpenses; and

• whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance. The court should not consider how the outcome of an application would affect either party’s relocation plans — for example, whether the person who intends to move with the child would relocate without the child or not relocate . (my emphasis).

These factors are drawn from s. 16.92(1) and (2) of the Divorce Act and largely reflect the evolution of the common law for over 25 years. [155] As I have explained, several pillars underlying the Court’s reasoning in Gordon have shifted over time, leading courts and now legislatures to refine, modify, and supplement the Gordon factors.

These refinements leave us with a clear framework going forward. … [164] … [169] The mother’s need for emotional support was a relevant consideration in the best interests analysis… A move that can improve a parent’s emotional and psychological state can enrich a parent’s ability to cultivate a healthy, supportive, and positive environment for their child. Courts have frequently recognized that a child’s best interests are furthered by a well-functioning and happy parent: Burns v.

Burns , 2000 NSCA 1 , 183 D.L.R. (4 th ) 66, at pp. 81-82… … [171] …Relocation that provides a parent with more education, employment opportunities, and economic stability can contribute to a child’s wellbeing: … [172] Similarly, the additional support of family and community at the new location can enhance a parent’s ability to care for the children: … Extended family, for example, can provide additional support to children while their parents begin to navigate the new terrain of post-separation life:… [173] It is often difficult to disentangle the interests of a parent from the interests of a child.

Indeed, “the reality that the nurture of children is inextricably intertwined with the well-being of the nurturing parent” is far from novel: Pelech v. Pelech … A child’s welfare is often advanced in tandem with improvements in the parent’s financial, social and emotional circumstances… … [ 73 ] The Parenting and Support Act (amended), SNS 2021, c. 15 , applies in this case: Relocation 18E

(1) In this

Section and Sections 18F to 18H, (a) “person planning to relocate” means (

i) a person who is planning a change of that person’s place of residence and is a parent or guardian or a person who has an order for contact time with the child, (ii) a parent or guardian who is planning a change of both that person’s and the child’s place of residence, and (iii) a parent or guardian who is planning a change of the child’s place of residence; (b) “relocation” means a change to the place of residence of (

i) a parent or guardian, (ii) a person who has an order for contact time with the child, or (iii) a child, that can reasonably be expected to significantly impact the child’s relationship with a parent, a guardian or a person who has an order for contact time with the child.

(2) A person planning to relocate shall notify, at least sixty days before the expected date of the planned relocation, the parents and guardians of the child and any person who has an order for contact time with the child of the planned relocation.

(3) The notification under subsection (2) must be in writing and must include (

a) the date of the planned relocation; (

b) the location of the new place of residence and, if known, the address; (

c) all available contact information for the person giving the notification; and (

d) the proposed changes to decision-making responsibility, parenting arrangements, parenting time, contact time and interaction resulting from the relocation.

(4) and (5) repealed 2021, c. 15, s. 7 .

(6) This

Section does not apply where an agreement registered under this Act or a court order provides a different notification requirement for a planned relocation. … Authorization or prohibition of relocation 18G

(1) Subject to a court order authorizing or prohibiting the relocation of a child or an order changing or waiving the notification requirements, when the notification requirements under

Section 18E have been complied with, the relocation of the child may occur on or after the date of the planned relocation, unless an application is made to the court to prohibit the relocation within thirty days of receiving the notification.

(2) On application by (

a) a parent or guardian of the child; (

b) a person with an order for contact time with the child; or (

c) any person that has been granted leave of the court to make the application, the court may make an order authorizing or prohibiting the relocation of a child and may impose terms, conditions or restrictions in connection with the order as the court thinks fit and just.

(3) An application for an order authorizing or prohibiting the relocation of a child may be filed at any time prior to or after the relocation occurs. Relocation considerations 18H

(1) When a proposed relocation of a child is before the court, the court shall give paramount consideration to the best interests of the child. (1A) The burden of proof under subsection (1) is allocated as follows: (

a) where there is a court order or an agreement that provides that the child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child, unless the other party is not in substantial compliance with the order or agreement, in which case clause (

e) applies; (

b) where there is a court order or an agreement that provides that the child spend the vast majority of the child’s time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child, unless the party who intends to relocate the child is not in substantial compliance with the order or agreement, in which case clause (

e) applies; (

c) where there is no order or agreement as referred to in clause (

a) or (

b) but there is an informal or tacit arrangement between the parties in relation to the care of the child establishing a pattern of care in which the child spends substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child; (

d) where there is no order or agreement as referred to in clause (

a) or (

b) but there is an informal or tacit arrangement between the parties in relation to the care of the child establishing a pattern of care in which the child spends the vast majority of the child’s time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child; (my emphasis) (

e) for situations other than those set out in clauses (

a) to (d), all parties to the application have the burden of showing what is in the best interests of the child. [ 74 ] Both parties argued that the applicable burden was outlined in 18(H)(1)(c), of the Parenting and Support Act RSNS 1989, c 160 . Mr. Weagle qualified his argument by stating: (he) acknowledges that it is not a shared parenting arrangement at this time, thus, there are no presumptions in favour of the move or against it, but rather each party bears the burden to show what is in A’s best interest. [ 75 ] The Parenting and Support Act RSNS 1989, c 160 has been amended and 18(H)(1)(

c) does not apply in this case. In addition, Mr. Weagle quoted from

section 18H(3) of

Chapter 160 which was repealed . [ 76 ] The Parenting and Support Act (amended), SNS 2021, c. 15 , is the applicable legislation in this case and

section 18 (h)(1a)(

d) reproduced above, sets out the applicable burden of proof in this case: Mr. Weagle has the burden of proving that it is not in A’s best interests to move to the Ottawa, Ontario area with her mother. [ 77 ] Other applicable sections of the Parenting and Support Act (amended), SNS 2021, c. 15 include but are not limited to the following: …

18H(3) In deciding whether to authorize a relocation of a child, the court shall not ask or permit a party who opposes the relocation to ask whether the party who intends to relocate the child would relocate without the child or not relocate if the child’s relocation is prohibited. (my emphasis) 18H(4) In determining the best interests of the child under this Section, the court shall consider all relevant circumstances, including (

a) the circumstances listed in subsection 18(6); (

b) the reasons for the relocation; (

c) the effect on the child of changed parenting time and contact time due to the relocation; (

d) the effect on the child of the child’s removal from family, school and community due to the relocation; (

e) the appropriateness of changing the parenting arrangements; (

f) compliance with previous court orders and agreements by the parties to the application; (

g) any restrictions placed on relocation in previous court orders and agreements; (

h) any additional expenses that may be incurred by the parties due to the relocation; (

i) the transportation options available to reach the new location; and (

j) whether the person planning to relocate has given notice as required under this Act and has proposed new decision making responsibility, parenting time and contact time schedules, as applicable, for the child following relocation.

(5) The relocation of a child is deemed to constitute a change in circumstances for the purpose of a variation order under

Section 37.

(6) A relocation of a child that has been prohibited by the court under subsection 18G(2) does not, in itself, constitute a change in circumstances for the purpose of a variation order under

Section 37. 7 The Best Interest Test [ 78 ] The best interest test is outlined at section 18(6) of the Parenting and Support Act .

To determine A’s best interests, I must consider all relevant circumstances, including all the factors outlined in section 18(6) of the Parenting and Support Act . 7.1 Factor number 1 – all about A [ 79 ] The first factor I must consider is set out at section 18(6)(a): the child’s physical, emotional, social, and educational needs, including the child’s need for stability and safety, taking into account the child’s age and stage of development; [ 80 ] A was born in September 2018 with a heart condition: an atrial septal defect and ventricle septal defect.

In January 2019, A was diagnosed with “failure to thrive” and she underwent open heart surgery on January 24, 2019. Ms. Kendall oversaw A’s medical care. The surgery was successful. [ 81 ] A’s maternal grandfather, Douglas Kendall, lived with A at Ms. Kendall’s house in Dartmouth, Nova Scotia immediately following her birth until she was four months old, and for extended periods after his initial stay, including when Ms. Kendall identified she had concerns about Mr. Weagle’s care of A in April 2019. I find that A has a special bond with Douglas Kendall. [ 82 ] A had three siblings when this matter was heard.

From birth in 2017, A had contact with her half brother AD (believed to be 14 years old at trial) on weekends while the parties lived together until they separated in February 2019 when A was approximately five months old. [ 83 ] Between February 2019 and December 2020, A had contact with AD some Sundays at their paternal grandparents home in Fall River. After December 2020, A had contact with AD every second Saturday and some Sundays at Mr. Weagle’s and Ms. Beliveau’s home in Ingramport, Nova Scotia. Mr. Weagle explained that A and AD shared a room.

He explained further that their personal items were stored in the same room but AD usually slept elsewhere when A was staying with Mr. Weagle. [ 84 ] A has known D, Mr. Weagle’s and Ms. Beliveau’s son, since his birth in February 2021. A has contact with D every second weekend, possibly on Mr. Weagle’s one weekday visit per week, and on holidays. Ms. Kendall expressed concern that Mr. Weagle and Ms. Beliveau did not keep Ms. Kendall advised about D’s pending arrival in February 2021. Ms. Kendall suggested that A was initially upset and confused by D’s arrival and she would have liked to have prepared A. Ms.

Kendall noted that A does love babies and she has adapted to the new addition to Mr. Weagle’s home. [ 85 ] A initially had contact with N, Ms. Beliveau’s son from another relationship, as AD and N were best friends. When Mr. Weagle would drop AD off at Ms. Beliveau’s home for “play dates” with N he sometimes had A with him. A continued to have some contact with N while Mr. Weagle had care of A and was with Ms. Beliveau. As of December 2020, A would see N approximately every second weekend. [ 86 ] After the parties separated in February 2019, Mr.

Weagle was exercising his parenting time with A most weekends at his parent’s home until April 2019. Between April 2019 and approximately November 2020, Mr. Weagle’s parents supervised his parenting

time with A twice per week. I find A would have had developed a close bond with her paternal grandparents during that period. Mr. Weagle’s parents, especially his mother, has maintained contact with A and has maintained a close bond with her. [ 87 ] While Ms. Kendall was on maternity leave, she attended Kindermusik classes with A and A later participated in dance classes. The dance classes took place on Sundays at the Zatzman Sportsplex. Both Ms. Kendall and Mr. Weagle took A to her dance classes. [ 88 ] Ms. Kendall stated that when A was three months pregnant with A, she and Mr.

Weagle talked about daycare as an option for A. They agreed A would attend daycare. Ms. Kendall indicated that she and Mr. Weagle toured the daycare and Mr. Weagle expressed no objection. [ 89 ] In July 2020, when Ms. Kendall returned to work, A was enrolled at St. Josephs Daycare. A began attending the Dartmouth Child Development Centre in January 2021and she is dropped off at daycare just before 9:00 am and picked up at 3:30 pm “at the earliest.” [ 90 ] I did not ask Ms.

Kendall, but she has advised me that if I deny her request to relocate with A, she is considering enrolling A in pre-primary at Harbour View Elementary or possibly enrolling A in the bilingual program at Shannon Park. The parties agreed A should stay in her current daycare to avoid further change until a decision is made by this court regarding Ms. Kendall’s request to relocate with A. [ 91 ] A identifies Ms. Kendall’s home in Dartmouth, Nova Scotia as “the blue house.” Ms. Kendall’s residence has been A’s primary residence since her birth in September 2018. [ 92 ] In September 2020, Mr.

Weagle moved to a house in Ingramport, Nova Scotia, forty three minutes from the Ms. Kendall’s house (the aforementioned blue house). A identifies Mr. Weagle’s home as “the red house.” As noted above, at Mr. Weagle’s four- bedroom home, A had been sharing a bedroom with Mr. Weagle’s son AD. It is unclear whether the sleeping arrangements were adjusted following the expected birth of Mr. Weagle’s and Ms. Beliveau’s second child together in August 2022. [ 93 ] Ms. Kendall has paid for A’s daycare, her extracurricular activities, and she maintains medical and dental insurance for the benefit of A. Mr.

Weagle’s mother pays Ms. Kendall

section 3 child support for A on behalf of Mr. Weagle. Mr. Weagle has explained that he prefers to make certain the child support payments to Ms. Kendall are managed and recorded. He has stated that if he is short money to pay child support to Ms. Kendall for A one month, he just reimburses his mother later. [ 94 ] In the summer of 2021, Ms. Kendall began saving for A’s post-secondary education by contributing to a RESP for A. Ms.

Kendall advised that if she continues to contribute as expected, the projected balance will be $102,000.00 when A reaches 18 years of age. 7.2 Factor number 2 – co-parenting [ 95 ] The second factor I must consider is set out at section 18(6)(b): each parent’s or guardian’s willingness to support the development and maintenance of the child’s relationship with the other parent or guardian. [ 96 ] Mr. Weagle has a history of co-parenting with his son AD’s mother Ms. Snow. Ms. Snow testified at trial and stated she had known Mr. Weagle since 2006 and they have a child together, AD. [ 97 ] Ms.

Snow stated that she and Mr. Weagle separated when AD five years old and Mr. Weagle had care of AD every second weekend and Tuesday and Thursday evenings. Ms. Snow stated that since their separation, she and Mr. Weagle were able to “put AD first, sharing their parenting time and their responsibilities.” She noted that she had observed that Mr. Weagle had grown as a person compared to when he was younger, when he liked to go out drinking. [ 98 ] Ms. Snow stated that near the end of AD’s elementary school years, she became the manager at a shoe store, and she now works most weekends.

Since that time, she takes responsibility for AD’s care during the week and Mr. Weagle has AD every weekend although they rotate Sundays. [ 99 ] Ms. Snow stated that when Mr. Weagle moved an hour away from her to Ingramport, Nova Scotia, he started exercising his weekday parenting time with AD at his mother’s home in Fall River, Nova Scotia. Ms. Snow indicated she was close to the Weagle family and that AD’s friend and now stepbrother, N, Ms. Beliveau’s son, resides with Mr. Weagle. [ 100 ] Ms. Snow confirmed that she and Mr. Weagle did not continue their regular parenting

schedule through Covid-19 lockdowns as they live too far apart. AD participated in online schooling at his father’s house. [ 101 ] Ms. Snow stated that she and Mr. Weagle never experienced any communication issues, and she did not worry about AD’s safety when he was with Mr. Weagle. Ms. Snow noted that Mr. Weagle had always paid child support as agreed in 2013, and the amount he pays has not changed since 2013. [ 102 ] Ms. Snow stated that both she and Mr. Weagle had been involved in supporting AD after he was diagnosed with ADHD. She and Mr.

Weagle have also shared the cost of providing AD with tutoring and his braces. However, Ms. Snow clarified that Mr. Weagle’s half of the payment for AD’s braces comes from the table amount of child support he has paid for AD since 2013. [ 103 ] Ms. Snow described Mr. Weagle as consistent and dependable and as being very involved with AD. She indicated that Mr. Weagle goes skating with AD in the winter, and he goes swimming and to the family camp with AD in the summer. She noted that Mr. Weagle and his parents attend every one of AD’s soccer games. She described Mr. Weagle as a huge support to her.

AD goes to his paternal grandmother’s home after school anytime she and her family are unavailable and he stays overnight at times.

[ 104 ] Ms. Snow commented about Mr. Weagle treating his stepson, N “as his own” and she confirmed that AD and N are close friends. Ms. Snow spoke positively about Mr. Weagle’s partner, Ms. Beliveau, stating that Ms. Beliveau had made Mr. Weagle’s house a home for her son AD. [ 105 ] However, at trial Ms. Snow was asked about a message she sent to Ms. Kendall: Our entire relationship I tried to get him help. Its been like six years and he hasn’t yet. Wasn’t my fault. Or yours, it’s his. And he has to want to be better. He 1000% had adhd. My poor child is too much like him. Joey loves his kids.

He’s a good person, he’s just immature af. Ill be real, I gave up on him after 8 whole damn years cause I was sick of being the only responsible person. And he would disappear for days to party… After being asked to review her message to Ms. Kendall on the witness stand Ms. Snow became tearful and stated, “a lot has changed since then.” She recalled clearly telling Ms. Kendall that Mr. Weagle “loves his kids and they would figure it out.” Ms. Snow went on to say: “I have seen many big changes in Joey, especially these past couple of years.” [ 106 ] Ms.

Kendall indicated she had had concerns initially about the safety of Mr. Weagle’s vehicle and she had also believed Mr. Weagle would sometimes drive while under the influence of substances. Ms. Kendall explained that was why she initially wanted to provide all transportation for A. Ms. Kendall stated that Mr. Weagle “bullied” her and she eventually relented. [ 107 ] I accept Ms. Kendall’s friends’ testimony about a “camping trip” her friend, Mr. Weagle, and Ms. Kendall went on in 2017 when Ms. Kendall was pregnant with A. Although the camping trip took place before A’s birth, the witness’ testimony about Mr.

Weagle’s interactions with AD and her testimony about Mr. Weagle driving after taking medication prescribed to another and smoking cannabis, provides support for Ms. Kendall’s initial concerns about Mr. Weagle’s maturity level and his decision making. [ 108 ] I accept that Mr. Weagle was driving while under the influence of another person’s medication and/or cannabis to and from the campsite and that AD was in his car on the way back from the campsite. In addition, based on the description of the bottles of medication falling “out of the glove compartment” I have concerns about what Mr.

Weagle was doing with all the medication at that time. [ 109 ] Ms. Kendall’s father, Douglas Kendall stated that he met Mr. Weagle in 2017, before A was born. He indicated he had observed that on Mr. Weagle’s days off work, Mr. Weagle would start drinking alcohol early in the morning, he would pass out in the afternoon, and he would wake up approximately 12 hours later. [ 110 ] Douglas Kendall stated that in late 2018 or early 2019 he had opportunities to observe Mr. Weagle interact with his son, AD. He noted that Mr.

Weagle did not provide any structure or direction for AD and that he yelled at AD “a lot” and AD would yell back or would cry. Douglas Kendall observed that after Mr. Weagle yelled at AD, Mr. Weagle would spend the rest of the day in bed, eating his meals in bed as well and Ms. Kendall would care for AD during Mr. Weagle’s parenting time. This was the parties first attempt at co- parenting. [ 111 ] Mr. Weagle suggested that while the parties resided together, he travelled to Prince Edward Island Monday through Thursday for work, and he would care for A upon his return on Friday until Sunday.

He suggested he was a very hands-on father. Ms. Kendall suggested Mr. Weagle started working outside the province after they separated in February 2019. [ 112 ] Mr. Weagle acknowledged that when A was born, Ms. Kendall’s father, Douglas Kendall, moved in full-time. Mr. Weagle suggested that Douglas Kendall provided much of the care for A “given Ms. Kendall’s understandable physical limitations as a result of her c-section” and the “difficult birth.” [ 113 ] For the first four months of A’s life, it was Ms.

Kendall who took A to the IWK Hospital several times per week to seek treatment for A’s atrial septal defect and ventricle septal defect. Ms. Kendall reported that Mr. Weagle only attended a few of A’s medical appointments. [ 114 ] I accept that it is entirely possible Mr. Weagle was working and could not attend the appointments; however, the relevant point is that it was Ms. Kendall who was with A and it was Ms. Kendall that A learned to rely on primarily. Ms. Kendall took the necessary steps to address A’s condition. [ 115 ] While Douglas Kendall lived with the parties, he observed Mr.

Weagle leaving the home regularly without telling Ms. Kendall where he was going or when he was coming back. He further observed that Mr. Weagle left Ms. Kendall to care for A, including while A was sick with a congenital heart disease. He stated it was Ms. Kendall who ensured A received proper medical care, and it was Ms. Kendall who scheduled and attended A’s doctor appointments. It was also Ms. Kendall who arranged for A’s childcare. [ 116 ] I accept that at times Mr. Weagle “helped” Ms. Kendall care for A while he was living with Ms.

Kendall and her father, Douglas Kendall, for the first four months of A’s life. However, I find Ms. Kendall was clearly the parent who made sure A’s needs were met and based on Douglas Kendall’s testimony, that her primary support was often her father and not Mr. Weagle. [ 117 ] Ms. Kendall alleges that while A was in hospital in 2019 for her surgery, Mr. Weagle left the hospital to “blow off steam.” She claimed he left with her debit card as he did not have money to get out of the parking garage, and he went to play video lottery terminals, and he also went to a tavern. [ 118 ] Ms.

Kendall stated that she confronted Mr. Weagle and he indicated he would pay the money back. Ms. Kendall did not report any further concerns about Mr. Weagle misusing or taking her money. However, she stated that also while A was in hospital in January 2019, Mr. Weagle began vomiting and he had to go home. Ms. Kendall believes Mr. Weagle was experiencing withdrawal symptoms, and this was “the first time in a long while” that Mr. Weagle was sober. [ 119 ] Whatever the reason for Mr. Weagle’s inability to stay in hospital with A and Ms. Kendall in January 2019, once again, it was

Ms. Kendall who remained with A, and it is Ms. Kendall that A learned she could rely on. I am prepared to accept that Mr. Weagle was likely more involved with A’s care after January 2019, when A was home from the hospital and Douglas Kendall left the home for a period. [ 120 ] February 2019 was the last time Mr. Weagle and Ms. Kendall were living together with A, aside from perhaps a few attempts at reconciliation after February 2019. Ms. Kendall explained that the parties initially separated in February 2019 after a trip she had planned for the three of them to Cape Breton Nova Scotia.

She initially became concerned when during the car ride to Cape Breton when A cried and Mr. Weagle became increasingly irritated and at one point yelled “just go the fuck to sleep A.” [ 121 ] Ms. Kendall indicated that upon arriving at their hotel in Cape Breton, Mr. Weagle told her he would be gone for one hour but “he left them for six hours.” When Mr. Weagle returned in the “early morning hours,” Ms. Kendall stated he smelled of cigarettes and alcohol. [ 122 ] She stated that they remained in Cape Breton for another night, and when Mr. Weagle refused to get up in the morning, she looked through Mr.

Weagle’s telephone and she learned Mr. Weagle had been meeting up with Ms. Beliveau for drug related reasons. When she confronted Mr. Weagle about meeting up with Ms. Beliveau, Mr. Weagle responded by stating that he only “cheated” on her because she was “not giving him enough attention” and “he kept it a secret out of respect for her.” [ 123 ] Ms. Kendall indicated that Mr. Weagle yelled at her “for most of the drive home from Cape Breton to Dartmouth.” She further claimed that Mr. Weagle stated she did not give him enough attention as she was too busy attending to their sick newborn baby, A. [ 124 ] Mr.

Weagle’s behaviour while travelling to and from Cape Breton with Ms. Kendall and A, including yelling at A to go to sleep and yelling at Ms. Kendall, was abusive. Upon the parties return to Dartmouth with A, Mr. Weagle left Ms. Kendall’s home to live at his parent’s home in Fall River. [ 125 ] Mr. Weagle claimed that for approximately nine months following the parties’ separation in February 2019, he had parenting time with A almost every weekend, including overnights. He claimed Ms. Kendall only insisted on supervised care of A in September 2019 when she learned he had started dating Ms.

Beliveau. [ 126 ] I find that overall, Ms. Kendall is a more reliable witness with respect to general timelines and I accept her evidence about timelines over Mr. Weagle’s testimony on that point. I accept that Ms. Kendall has known about Mr. Weagle’s and Ms. Beliveau’s relationship since February 2019 and that she insisted his parenting time be supervised after an incident on April 12, 2019, not in September 2019. [ 127 ] On April 12, 2019, Ms. Kendall observed Mr. Weagle “handling A recklessly” around her and her neighbours during a scheduled visit. Ms. Kendall once again “went through” Mr.

Weagle’s telephone and she learned that he had just met up with Ms. Beliveau, apparently with the intent to take “ice pills” or “energy pills” (a common street names for methamphetamine) together just prior to his visit with A. [ 128 ] Mr. Weagle denies using “ice pills” prior to his visit with A. Whether he took “ice pills” or “energy pills” or not, Ms. Kendall was concerned about how he was handling A. I accept Ms. Kendall had reason to believe Mr. Kendall may be under the influence of a substance on that date. I accept it was after that incident that Ms. Kendall requested Mr.

Weagle not have any overnight parenting time with A and that his parenting time be supervised by his mother. [ 129 ] It is possible Mr. Weagle may have had parenting time with A almost every weekend, including overnights after the parties separated until the incident on April 12, 2019, which I referenced above. However, I find that it is more likely than not that Mr. Weagle required the support of his mother and or sister while he was exercising his weekend parenting time with A in Fall River between February 2019 and April 2019. [ 130 ] Ms. Kendall stated that on April 27, 2019, after she had requested Mr.

Weagle’s parenting time be supervised, Mr. Weagle was scheduled to have parenting time with A while his parents were away in Florida. She allowed Mr. Weagle to have an unsupervised visit. She called ahead to Mr. Weagle to let him know she was on the way with A and when she arrived in Fall River, Mr. Weagle did not come to the door. She let herself into Mr. Weagle’s parents’ home and she observed what appeared to her to be leftover cocaine and a rolled up $20 bill on a table. [ 131 ] Ms. Kendall indicated she cleaned up the residue of what she believed to be cocaine to ensure A would not get her hands on it.

She said was worried about confronting Mr. Weagle, as she indicated Mr. Weagle often lost his temper when she did. When she woke Mr. Weagle, he was “acting strangely”: he kneeled, he kissed her feet, and he told her he loved her. [ 132 ] Despite her concerns, Ms. Kendall left A with Mr. Weagle and she contacted his sister, Julie. Mr. Weagle’s sister assured Ms. Kendall she intended to stop by her parent’s house. In addition, Ms. Kendall was aware that Mr. Weagle’s parents were returning from Florida that day. I accept Ms. Kendall’s evidence regarding this incident. [ 133 ] Mr.

Weagle has acknowledged past addiction issues. However, he denied any of his past addiction issues ever affected his ability to parent A. Although Mr. Weagle denied taking “energy” or “ice pills” before his parenting time with A on April 12, 2019, he did not deny having taken them at other times. [ 134 ] I find that due to Ms. Kendall’s first-hand observations of Mr. Weagle’s drug use, she had a legitimate reason for concern about Mr. Weagle’s ability to care for A. I accept that Ms. Kendall continued to have legitimate concerns about how Mr.

Weagle’s ongoing substance misuse in 2019, part of 2020, and to a much lesser extent concerns about his use of substances in 2021, might affect A. [ 135 ] Mr. Weagle has claimed that Ms. Kendall also struggled with addictions. I find that due to her association with Mr. Weagle, it is more likely than not that Ms. Kendall also used illegal substances or has misused substances at times but most likely before A’s birth. The evidence, including evidence of the level of care Ms. Kendall provided for A and her ability to maintain employment and advance in

her career, supports a conclusion that she was not using substances in a manner which could negatively impact A. [ 136 ] I find that although Ms. Kendall most likely misused substances before she learned she was pregnant with A, after A was born Ms. Kendall was able to meet A’s needs. I accept Ms. Kendall was legitimately concerned about Mr. Weagle’s ability to care for A when she insisted Mr. Weagle no longer have overnight visits with A and that his parenting time with A be supervised. [ 137 ] Ms. Kendall indicated that although she was on maternity leave, she initially believed she was required to allow Mr.

Weagle to have care of A every weekend when he was home from working out of province. Considering that Mr. Weagle and Ms. Snow had an arrangement whereby Mr. Weagle had care of AD every weekend (rotating Sundays), it is more likely than not that Mr. Weagle told Ms. Kendall that was the norm and they both may have believed it was. [ 138 ] It is unclear whether Ms. Kendall understood that the arrangement Mr. Weagle and Ms. Snow had in place only came into being when Ms. Snow started working most weekends. It is not the norm for one parent to never have any parenting time with a child on weekends. [ 139 ] Ms.

Kendall stated that she began attending counselling in the spring/summer of 2019 to “navigate co-parenting with a drug addict.” She attended counseling “to assist her with managing her fear and internal conflict surrounding Mr. Weagle’s parenting time with A.” I accept that Ms. Kendall attended counseling for the purpose of improving the parties’ co-parenting relationship. [ 140 ] Ms. Kendall explained that any anxiety or depression she experienced during her relationship with Mr. Weagle or shortly after they separated was situational and due to external factors and not chronic. For example, Ms.

Kendall stated that she experienced stress when she learned that Mr. Weagle was cheating on her, and that she experienced stress related to adapting to life after the parties separated. She confirmed she took responsibility for her own mental health by seeking counseling. [ 141 ] Ms. Kendall stated that over the summer of 2019 she became increasingly concerned about the care Mr. Weagle was providing for A. Ms. Kendall expressed some of the following concerns: (

a) On July 1 st 2019, after A spent two nights with Mr. Weagle, A was returned to Ms. Kendall without having been bathed or given sufficient formula or water. A experienced “severe dehydration”; (

b) On July 14, 2019, A was once again returned to Ms. Kendall without having been bathed or, from Ms. Kendall’s point of view, without having received sufficient formula. Mr. Weagle argued that A was too old for formula, that his water was too dirty to give A a bath, and he did not have soap for A; (

c) On July 29, 2019, Mr. Weagle had a car accident on his way to pick A up; he did not have a visit with A that day or explain to Ms. Kendall what happened; (

d) On August 4, 2019, Ms. Kendall asked Mr. Weagle to return A by 6:00 pm as usual, to allow A to get to bed on time but he refused. Mr. Weagle arrived at Ms. Kendall’s car with A at 7:00 pm; (

e) On August 6, 2019, Mr. Weagle missed his parenting time with A and did not provide any explanation; (

f) On August 8, 2019, Mr. Weagle forcibly took A. (

g) On August 15, 2019, Ms. Kendall indicated that A was returned to her once again without being bathed, and Mr. Weagle stated he did not have any soap; (

h) On September 5, 2019, Mr. Weagle cancelled his scheduled parenting time with A as he did not have a car seat to transport A; (

i) On September 6, 2019, Mr. Weagle refused to speak with her about what A’s new sleeping arrangement in his new apartment would look like; [ 142 ] There is insufficient information about Mr. Weagle’s alleged car accident for me to come to any conclusions. Accidents do happen. However, I find the risk of dehydration and lack of consistency when feeding A, could have placed A at risk of harm or at the very least made A very uncomfortable. I find that on several occasions in the summer of 2019 Mr.

Weagle failed to prioritize A’s basic needs such as to be fed a consistent diet, to be bathed, not be exposed to conflict, and to have a consistent and predictable sleep and visitation schedule. [ 143 ] Mr. Weagle moved out of his parent’s home in or around September 2019 and I understand Mr. Weagle moved in with a female friend who had her own young child. Based on all of Ms. Kendall’s concerns leading up to her insisting Mr. Weagle’s parenting time be limited and mostly supervised in mid April 2019, and given her ongoing concerns in the summer of 2019, I find her reluctance to allow Mr.

Weagle to exercise his parenting time in his new apartment, with a new roommate and child, was reasonable at that time. [ 144 ] Although Mr. Weagle had support from his roommate and others after he moved out of his parents’ home, Ms. Kendall stated that on numerous occasions she had had to pack bottles for Mr. Weagle to give A. She claimed she provided bottles for Mr. Weagle to give A on October 10, 13, 18, and 20, 2019. Ms. Kendall also stated that on another occasion she had to pack diapers for A’s parenting time with Mr. Weagle. [ 145 ] Ms.

Kendall stated that in December 2019 she began making a note about the times Mr. Weagle was late for his scheduled parenting time with A or when Mr. Weagle did not show up at the drop off. She claimed that on December 1, 5, and 7, 2019 Mr. Weagle was not present when A was dropped off; on December 22, 2019 he was asleep when she arrived with A; on December 25, 2019 Mr. Weagle was either not present or he did not greet Ms. Kendall when she dropped A off; on December 29, 2019 Mr. Weagle was not present when A was dropped off or he did not greet her; on January 12, 2020 Mr.

Weagle was 10 minutes late for drop off; and on March 1, 2020, Mr. Weagle was 30 minutes late. I understand that if the visits were at Mr. Weagle’s parent’s home she left A with Mr.

Weagle’s parents. [ 146 ] In September 2020, Mr. Weagle moved in with Ms. Beliveau. It was around that time that Mr. Weagle agreed to participate in urinalysis testing if Ms. Kendall did as well. The results were negative for substances Ms. Kendall was particularly concerned about. [ 147 ] In October or November of 2020 Ms. Kendall agreed Mr. Weagle could have unsupervised parenting time with A. In December 2020, Ms. Kendall agreed to expand Mr. Weagle’s parenting time to every second weekend, once per week in the evening on week days, holidays, and other parenting as agreed. [ 148 ] Mr.

Weagle denied “generally...many of the allegations in relation to drug use and all of the allegations in relation to safety concerns for his parenting of A or AD as outlined in Ms. Kendall’s affidavit.” Considering Ms. Kendall’s affidavit evidence, Mr. Weagle’s refusal to participate in drug testing between April 2019 and mid 2020 (not hair follicle testing), and his failure to request an interim hearing, I find it is more likely than not that at that time Ms. Kendall had legitimate concerns about how Mr.

Weagle’s lifestyle might affect his ability to care for A. [ 149 ] Based on the results of urinalysis testing in the Fall of 2020, I conclude that Mr. Weagle was no longer abusing the same substances. I accept that Mr. Weagle most likely gained some control over his lifestyle and/or his addictions when he moved to Ingramport with Ms. Beliveau. [ 150 ] Based on a number of factors including, but not limited to, Mr. Weagle’s ability to maintain stable employment in advance of trial, I am prepared to accept that Mr. Weagle is no longer abusing “hard drugs.” In addition, I am satisfied that if Mr.

Weagle occasionally misuses substances, that Ms. Beliveau, or other adult family members will be available as sober caregivers. [ 151 ] Ms. Beliveau stated that she did not have any concerns related to Mr. Weagle’s drinking and had not observed him to have a problem with drugs. She stated that Mr. Weagle had never exhibited “any verbal or physical violent tendencies or outbursts in my presence.” She stated that she and Ms. Snow, AD’s mother, have an excellent relationship, communicating multiple times throughout the week. She stated that they have spent time together on holidays. [ 152 ] Mr.

Weagle stated that he had never been involved with the police or Child Protection Services. I accept Ms. Kendall’s evidence that Mr. Weagle contacted Child Protection Services and made a report about Ms. Kendall. I believe Ms. Kendall when she says that she contacted Child Protection Services and they confirmed Mr. Weagle had made a report and it was not investigated. [ 153 ] I accept Ms. Kendall’s evidence about the incident which occurred on April 30, 2021: (

a) A became dysregulated when Mr. Weagle’s mother, Christine Weagle, and her stepbrothers, AD and N, arrived to pick A up. A was upset that her father was not picking her up and A would not get in Christine Weagle’s car. After approximately five minutes, Ms. Kendall and her father approached Christine Weagle, AD, and N, and they retrieved A. (

b) Ms. Kendall contacted Mr. Weagle to ask that he pick A up as his mother was not able to make A go with her. (

c) An hour later, Mr. Weagle’s mother drove Mr. Weagle to Ms. Kendall’s home to get A. Mr. Weagle got out of the car, and he came to Ms. Kendall’s door and Mr. Weagle “started banging on her window and ringing the doorbell.” When Ms. Kendall opened the door, Mr. Weagle started “screaming at” Ms. Kendall while holding on to A, who Ms. Kendall observed had initially presented as excited to see Mr. Weagle but then began to scream and cry. (

d) Ms. Kendall believed Mr. Weagle was intoxicated. Ms. Kendall’s father called 911. The dispatcher directed everyone to stay on the property until the police arrived; however, Mr. Weagle refused to stay and “he ran off down the road with A.” His mother, Christine Weagle, then “drove off after them” and Christine Weagle stopped and picked Mr. Weagle and A up. (

e) Ms. Kendall stated that Mr. Weagle later claimed he had food poisoning. His mother had a very different version of the incident. I accept Ms. Kendall’s version of this event. I find that Mr. Weagle did not pick A up himself because he was intoxicated. Although Mr. Weagle clearly made the right decision not to drive while intoxicated, the incident does raise concerns about Mr. Weagle’s decision to take intoxicating substances when he was scheduled to care for A and concerns about Mr. Weagle’s behaviour toward Ms. Kendall in the presence of A and others. [ 154 ] Mr.

Weagle confirmed that he continues to occasionally smokes cannabis, but he claimed he is always sober while in a parenting role. He stated that he “does not drink and drive, nor drive while under the influence of drugs or alcohol.” He stated he does “not put the safety of his children at risk and none of the children have ever been at risk in his care.” [ 155 ] I accept that Mr. Weagle’s lifestyle has changed for the better in the fall of 2020. I believe Mr. Weagle has been in a better position to provide care for A since December 2020. I accept there is always a sober caregiver in Mr.

Weagle’s home but I am not convinced Mr. Weagle is always the sober caregiver for the entire weekend when he has parenting time with A. [ 156 ] In addition to leaving Ms. Kendall to make decisions related to A’s health care needs and to

schedule A’s appointments and arrange for her child care, Mr. Weagle also left Ms. Kendall to pay for all of A’s special or extraordinary expenses. Ms. Kendall has paid and continues to pay for A’s childcare, for her extracurricular activities, and for her medical and dental insurance coverage. [ 157 ] Ms. Snow stated that she and Mr. Weagle have shared expenses for AD’s extracurricular activities. A has not received the same level of financial support from Mr. Weagle. His co-parenting relationship with Ms. Snow is not the same as it is with Ms. Kendall. Mr.

Weagle has not prioritized A’s needs in the same way he has prioritized AD’s needs. [ 158 ] According to Ms. Snow’s testimony, Mr. Weagle has paid Ms. Snow the same amount of child support since 2013, almost twice

as much as he is paying Ms. Kendall Ms. Snow’s claim that she and Mr. Weagle are sharing the cost of AD’s braces is not necessarily accurate. The base amount from 2013 has never changed and Ms. Snow is using that same amount of child support to cover a AD’s orthodontics. I am not convinced Ms. Snow is aware of AD’s right to both

section 3 and

section 7 child support from Mr. Weagle. [ 159 ] In addition to his financial responsibility for AD, in September 2020 Mr. Weagle took on what appears to be at least some financial responsibility for his new partner’s, Ms. Beliveau’s son, N. Ms. Beliveau stated that she does not receive child support from N’s father and she does not intend to return to the workplace. [ 160 ] Ms. Beliveau and Mr. Weagle have decided Ms. Beliveau will not return to work and she will stay at home to care for their toddler D and the child they were expecting in August 2022. Mr. Weagle suggested Ms.

Beliveau can provide any necessary childcare for A if A remains in Nova Scotia. [ 161 ] Ms. Beliveau indicated “there are millions of examples of occasions” when Ms. Kendall made “ridiculous demands” on Mr. Weagle. When Ms. Beliveau’s face appeared in the camera during a virtual call between Mr. Weagle and A, that Ms. Kendall stated she would not allow him to see his daughter if it happened again. I accept that this incident happened. I find Ms. Kendall’s comments were inappropriate. [ 162 ] Ms. Kendall explained that she did not want Mr.

Weagle having someone else take responsibility for his parenting time with A. Ms. Kendall

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