MacNamara v. Bond, 2022 NSSC 385

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: MacNamara v. Bond , 2022 NSSC 385 Date: 20221205 Docket: Halifax No. SFHPSA-108292 Registry: Halifax Between: William James MacNamara Applicant v. June Elizabeth Bond Respondent LIBRARY HEADING Judge: The Honourable Justice C. LouAnn Chiasson Heard: November 21 and 23, 2022, in Halifax, Nova Scotia

Summary: The father applied to vary child support for two children, retroactively and prospectively. The mother also requested the court vary child support and requested the court impute income to the father. She also requested that the court include the father’s pre- tax corporate income into his income for the purpose of calculating support. The court allowed the retroactive claim for child support in part. The court did not include the pre-tax corporate income of the father but did impute income to him pursuant to s.19 of the Federal Child Support Guidelines.

Key words: age of majority, Family- decision making, Family- parenting time, Family- shared parenting, Family- child support, Family- child support retroactive,

Section 7 expenses, imputed income, pre-tax corporate income Legislation: Divorce Act, R.S.C. 1985, C.3 (2 nd Supplement ) THIS INFORMATION SHEET DOESN’T 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: MacNamara v. Bond , 2022 NSSC 385 Date: 20221205 Docket: Halifax No. SFHPSA-108292 Registry: Halifax

Between: William James MacNamara Applicant v. June Elizabeth Bond Respondent Judge: The Honourable Justice C. LouAnn Chiasson Heard: November 21 and 23, 2022, in Halifax, Nova Scotia Written Release: February 13, 2023 Counsel: Sarah Squires for the Respondent By the Court: [ 1 ] The parties were in a common law relationship which ended in 2018. They have three children: A. (12), G. (9) and J. (4). In April 2021 Mr. McNamara applied to vary the Court Order granted in 2018. The application to vary requested all three children be placed in his primary care. [ 2 ] Ms.

Bond also applied to the court seeking to have the children returned to her care pursuant to the Order of 2018. She withdrew her application when the children commenced having parenting time with her in the spring of 2021. She continues to request a variation to the current de facto parenting arrangement. [ 3 ] Prior to the hearing, the parties agreed that A. would remain in the interim care of Mr. MacNamara and G. would remain in the interim care of Ms. Bond. ISSUE [ 4 ] The sole issue before the court was the parenting arrangement for J. Each parent was seeking primary care of J. BACKGROUND [ 5 ] In 2018 Ms.

Bond was granted sole care and custody of the three children. Mr. MacNamara did not provide any evidence to the court in 2018 and did not appear before the court. [ 6 ] Mr. MacNamara acknowledges that he was struggling with mental health and addiction issues at the time of the parties separation. He indicated that the difficulties came to a head with the 2017 suicide of his child from a prior relationship. He indicated that he sought help with his issues and has been sober from drinking for over three years. He testified that he is better able to manage his mental health. [ 7 ] Mr. MacNamara alleges that Ms.

Bond struggled and continues to struggle with alcohol abuse. Ms. Bond denies she has any difficulties with alcohol. [ 8 ] In the spring of 2021, Mr. MacNamara requested the court address decision making and the parenting

schedule for the three children. He indicated that he wanted the court order to reflect the reality of the parties at the time. Mr. MacNamara asserts that the parties were co-parenting the children. [ 9 ] Ms. Bond was served with the application in October 2021. She was opposed to changes to the 2018 Order. She acknowledged that she threatened to reduce Mr. MacNamara’s time with the children following her receipt of his court application, but it would appear as though Mr. MacNamara continued to have the children in his care a significant amount of time. [ 10 ] In December 2021, Mr.

MacNamara did not return the children to Ms. Bond following his parenting time. He alleged difficulties with Ms. Bond’s parenting including an assertion that Ms. Bond permitted a third party to physically discipline the children. He also indicated concerns in relation to Ms. Bond’s drinking. Ms. Bond denies those allegations. [ 11 ] She commenced a court application pursuant to s. 41 of the PSA on January 11, 2022. She was seeking the children to be returned to her care. That application was discontinued in February 2022, after the children had been returned to her care. In May 2022 Ms.

Bond made a motion for interim relief which was amended in June 2022 seeking to address the issue of interim parenting time. [ 12 ] On an interim basis, the parties have agreed on the parenting

schedule of the older two children. The interim application relates solely to the parenting

schedule of the youngest child, J.. Ms. Bond is proposing that J. have parenting time with Mr. MacNamara every 2 nd weekend from Friday to Sunday. Mr. MacNamara is proposing that J. is in his primary care and has parenting time with Ms. Bond every 2 nd weekend. [ 13 ] J. is in pre-primary. Mr. MacNamara has indicated his opposition to this enrolment and indicated he does not believe that J. is

ready for pre-primary. [14] Between January and December 2021, Mr. MacNamara had care of J. 56% of the time. Ms. Bond does not dispute that Journeyspent relatively equal time with each parent throughout 2021. All that changed in December 2021. Mr. MacNamara withheld thechildren and they remained in his care until February 2022. [15] From February 2022, Mr. MacNamara has had parenting time with J. as permitted by Ms. Bond. The parenting

schedule forMr. MacNamara with J. was reduced to approximately one weekend every second week. The parties currently have a split custodyarrangement as it relates to the older two children. [16] Prior to the incident in December 2021, the parties were able to effectively manage the children’s

schedule of parenting timebetween themselves. Emails were exchanged which showed a high degree of cooperation and communication. Mr. MacNamaraindicates that he and members of his family were able to provide assistance and support to Ms. Bond and the children. [17] Both parties allege significant difficulty with the other party’s ability to parent: Mr. MacNamara alleges that Ms. Bond abusesalcohol and is unable to provide for J.’s daily needs such as clothing and hygiene. [18] Ms. Bond alleges that Mr.

MacNamara is unable to co-parent J. as a result of his consumption of cannabis, his poor decisionmaking related to education, an unwillingness to foster her relationship with the children, and an inability to effectively communicatewith her. [19] Para 75 of her affidavit filed November 3, 2022, states: “I am hopeful that Mr. MacNamara and I can continue to communicate about the children in a reasonable and respectful way. I want tokeep conflict between Mr.

MacNamara and I to a minimum and I would like to return to the cordial relationship we once had where wecould co-parent.” [20] She further indicated that from October 2019 to December 2021, the majority of the text messages between the parties relatedto communicating about the children and the parenting schedule. She indicated that there were “only a few instances where wedisagreed on parenting time.” [21] Despite the cooperation prior to December 2021, neither party asserts that shared parenting can continue. Each is seeking tohave interim primary care of J..

LAW & ANALYSIS [22] The paramount consideration in addressing parenting arrangements is the best interests of the children. This is codified in s.18(5) of the Parenting and Support Act, R.S.N.S. 1989, c. 160, (PSA) and is recited in virtually every reported decision addressingparenting. All other matters, including the expressed wishes of the parents are secondary to what is in J.’s best interests. [23] The test of what is in a child’s best interests is expansive and elastic.

The Supreme Court of Canada in Young v Young, (SCC), [1993] 4 S.C.R. 3, confirmed that the best interests analysis involves a balancing of the unique facts in each parent/child relationship. The PSA, supra, sets out factors that may be considered at s. 18(6). Not all factors are relevant to every case. Aseach child is unique, so are the facts and the factors to be considered when determining what is in their best interests. [24] Sometimes, parties have lost sight of what an interim application is meant to address. It is a bandaid resolution to a parentingarrangement when the parents cannot agree.

It is made without all the evidence available at a final trial and it is based on limitedevidence. [25] The short term nature of an interim order was highlighted by the court in Hewitt v McGrath, 2010 NSSC 275, at para 1: 1 This is an interim proceeding and, as is the case with all proceedings involving children, I must decide what is in the best interest ofthis particular child.

However, the determination of this child's best interest is made understanding that an interim order is intended to beof short duration and is to deal with the immediate problem of where a child should live and what role each of the parents should playuntil a court has an opportunity to conduct a full investigation into the best interests of the child at a later hearing. [26] This was cited with approval in the case of Matthews v Matthews, 2017 NSSC 335. [27] The case of Lunn v Lunn, 2004 NSSC 174, underscored the need to ensure a continued relationship of the child with bothparents. [28] At the interim stage, the court is often swayed by the status quo of the child unless there are compelling reasons to change thestatus quo at this stage.

The courts have been very clear that the status quo cannot be unilaterally imposed by one party (DP v RB, 2007,PESCAD 25). [29] As noted in Belisle v Henneberry, 2019 NSSC 277, at para 6: 6 During an interim hearing, the court targets the temporary parenting arrangement that will be the least disruptive, and the mostsupportive of the child: Pye v. Pye, [1992] N.S.J. No. 133 (N.S. T.D.) ; Stubson v. Stubson, [1991] N.S.J. No. 210 (N.S. T.D.) ; Foley v.Foley, (NS SC), [1993] N.S.J. No. 347 (N.S. S.C.) ; M. (A.) v. Y. (A.), [2012] N.S.J. No. 33 (N.S. S.C.) ; and Horton v.Marsh, 2008 NSSC 224 (N.S. S.C.) .

The focus of an interim hearing is thus on the preservation of the status quo, unless the status quo isno longer in the child's best interests. The status quo is the parenting arrangement that the parties followed without reference to theunilateral conduct of one parent: Kimpton v. Kimpton, [2002] O.J. No. 5367 (Ont. S.C.J.) , and provided that the status quo is notcontrary to the child's best interests.

[ 30 ] Counsel for Ms. Bond urged the court to consider the credibility of the parties. She referenced the factors to be considered by the court as set out in the case of Baker-Warren v Denault , [2009] NSJ 209 . The contradictory evidence at the hearing was often provided by Ms. Bond, not Mr. MacNamara. [ 31 ] One example of the contradictory evidence relates to Ms. Bond’s assertion that Mr. MacNamara did not request any parenting time with J. until Boxing Day 2018. On cross examination, however, she acknowledged that Mr.

MacNamara had repeatedly asked to be present for J.’s birth but was not allowed by her to be present. [ 32 ] Ms. Bond stated that the first time she was not aware of the concerns related to her alcohol consumption until February 2022. The evidence is clear that the concerns related to Ms. Bond’s alcohol consumption were raised prior to February 2022. [ 33 ] Another example of credibility issues resulted from Ms. Bond’s assertion that she was not drinking when she called the police in 2020. Her call was made in relation to a street party in contravention of covid restrictions. The telephone call of Ms.

Bond to the police was entered by consent of the parties and indicated quite clearly that she was drinking that night. The issue is not that she was impaired that evening. The issue was that she had categorically denied drinking at all that night. [ 34 ] The evidence of Mr. MacNamara also had some inconsistencies, although not to the extent of Ms. Bond’s.

He indicated on cross examination that he discussed the pre-primary curriculum with the teacher and then contradicted himself when he indicated that he did not have any knowledge of the curriculum. [ 35 ] I have taken into account the factors noted in section 18(6) of the PSA , supra , as well as other relevant circumstances in J’s life. The level of conflict between J’s parents since December 2021 mandate that he has stability and security to the extent possible. He is currently enrolled in pre-primary. [ 36 ] Mr.

MacNamara referred on a few occasions to the fact that the parties had J. later in life and therefore their time with him should be maximized. The age of the parties does not mean that J. should miss opportunities afforded to other children his age. His enrolment in pre-primary is a positive stabilizing influence for him during this period of conflict between his parents. [ 37 ] Mr. MacNamara has indicated that J. should not have been enrolled for a number of reasons. First he indicated his opposition because J. could not properly clean himself after using the bathroom.

In cross examination he recognized that the teacher advised that this was not an issue and is a common occurrence with children J.’s age. [ 38 ] He then indicated his opposition because the children were not taught anything of significance and that it was essentially a babysitting/ play group. Evidence of Ms. Bond is accepted by the court that pre-primary has a positive influence for J. and is preparing him for school through socialization and other educational opportunities. [ 39 ] The interim order will contain a provision confirming J.’s enrolment and attendance at pre-primary.

He will remain in the current school and will attend each day of the program. It will be the responsibility of the parent with care of J. on any given weekday that they will transport J. to school on time. [ 40 ] Both parties accuse the other of interfering in the relationship between the children and themselves. Ms. Bond threatened to lessen Mr. MacNamara’s time when she was served with the court application, despite the parties sharing parenting time with the children. Mr. MacNamara has accused Ms. Bond of inappropriate supervision of the children and allowing the children to be abused by a third party.

He has made the accusation in front of the children. [ 41 ] The evidence lends credence to the fact that both parents have referenced the other parent in negative ways in front of the children. Both parents have an obligation to ensure that the children are shielded from the conflict. There will be a provision in the interim order which prohibits either party from speaking in a derogatory manner about the other parent.

The order will also contain a positive obligation on each parent to ensure that they do not allow any third party to speak in a derogatory manner about the other parent in the children’s presence. [ 42 ] In relation to J.’s basic needs of clothing, food and hygiene, the court finds that both parents are able to adequately provide the basic needs for him. The concerns of Mr. MacNamara include his assertion that socks that are too small, boots are too big, nails are too long and the children are too dirty. The evidence at this hearing do not support that Ms.

Bond has not attended to J.’s basic needs. [ 43 ] The evidence does confirm that the majority of the day to day responsibilities fell to Mr. MacNamara and his current spouse. Ms. Bond must ensure that she is bearing her responsibility in these areas as well and not leaving the tasks to Mr. MacNamara. [ 44 ] Another factor to consider is J.’s attachment to his siblings. One lives with his mother and one lives with his father. Any parenting

schedule that would favour one parent over the other will mean that his time with one of his siblings may be impacted. A relatively equal sharing of time would mean that he would have relatively equal time with each of his siblings. [ 45 ] Early in J.’s life, the evidence may lead to the conclusion that he was in the primary care of Ms. Bond. This, however, was not J.’s reality in 2021. Prior to the conflict arising (in part as a result of the court application), J. was in the care of each of his parents essentially on an equal basis. Despite Ms.

Bond’s request for interim primary care of J., she acknowledges that J. has a strong relationship with both of his parents and spent relatively equal periods of time with each parent in 2021. [ 46 ] The communication of the parties has been strained since December 2021. Prior to that time, and as noted in the evidence of Ms. Bond, the parties were able to remain child focussed and communicate effectively. CONCLUSION [ 47 ] Whether the parties share parenting on a long term basis remains to be determined.

In the interim, however, J. will return to the shared parenting arrangement he had prior to the court application and the difficulties of December 2021. He will be with each parent on

a week on/ week off arrangement with the transition being Friday after school/ evening. The court reserves the right to set the specific transition time if the parties are unable to agree. [ 48 ] As noted, the Interim Order will continue a provision that each party will ensure that they will not speak in a derogatory manner about the other parent nor will they allow third parties to speak negatively about the other parent in the presence of the children. The order will also contain a provision that neither parent shall be impaired by drugs or alcohol in a child caring role. J.’s continued attendance at his pre-primary program will also form part of the Order. Chiasson, J.