AB v. MB, 2022 NSSC 388

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: AB v. MB , 2022 NSSC 388 Date: 20221115 Docket: Proth. No 1201-72379 SFH-D-116919 Registry: Halifax Between: AB Petitioner v. MB Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard: November 7 – 9, 2022 and November 15, 2022

Summary: Fact-specific: where would children live during father’s deployments, whether to change schools, how to pay for certain children’s expenses, contact between oldest child and mother and whether there was a material change in circumstances allowing a variation of parenting arrangements imposed at a binding settlement conference. Key words: Family, Child support, Shared Parenting, Family Violence, Variation, Material change in circumstances Legislation: Divorce Act , R.C.S. 1985 (2 nd Supp.), c. 3, subsection 2(1), subsection 16(1), clause 16.1(4)(d), clause 16(3)(b), subsection 16(2) Federal Child Support Guidelines , SOR-97/175,

section 9 , 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: AB v. MB , 2022 NSSC 388 Date: 20221115 Docket: 1201-72379; SFH-D 116919 Registry: Halifax Between: A.B. Petitioner v.

M.B. Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard : November 7-9, and 15, 2022 Counsel: Jennifer L. Schofield for Ms. B Kerri-Ann Robson for Mr. B Introduction Divorce [ 1 ] The jurisdictional requirements have been met, and there is proof of permanent marriage breakdown. There is no bar to divorce such as collusion, condonation, or connivance. I grant the divorce and will endorse the Divorce Order on receipt of the marriage certificate. Issues corollary to the divorce [ 2 ] There are 4 issues corollary to the divorce and 1 final issue: 1.

What will be the parenting arrangement for the 3 youngest children during Mr. B’s deployments? 2. Where will the 3 youngest children attend school? 3. How will the parents pay the costs of the 3 youngest children’s outerwear, school supplies, cellphones, and haircuts? 4. What parenting time with Ms. B is in the oldest child’s best interests? 5. Has there been a material change so that Ms. B may proceed with an application to vary parenting arrangements for the children? What will be the parenting arrangement for the 3 youngest children during Mr. B’s deployments? [ 3 ] As a member of the Armed Forces, Mr.

B may be subject to deployments. The parties disagree whether the 3 youngest children should continue in their shared parenting arrangement when Mr. B is away from home for more than 2 days. [ 4 ] Mr. B says the children should “follow the shared parenting arrangement” and Ms. B says the children should remain with her for any deployment longer than 2 days, spending time, such as meals or overnights, with Mr. B’s new partner and the oldest child, who lives primarily with Mr.

B, during their father’s deployment. [ 5 ] I must decide this issue based on children’s best interests: Divorce Act , R.S.C. 1985, (2 nd Supp), c. 3, section 16(1). [ 6 ] According to Mr. B’s evidence, until the 3 youngest children reach grade 9, their school hours are from 8 a.m. until 2 p.m. They are picked up by the bus at about 7:10 – 7:15 a.m. and dropped off at the end of the day by about 2:45 – 2:50 p.m. [ 7 ] Ms. B is a stay-at-home parent. She was voluntarily released from her employment by the Canadian Armed Forces for medical reasons in 2007.

On a daily basis, she’s available to care for the children from the time they wake up until they catch the bus, and again after school. When required, she is also available to collect them from school and care for them if they are ill, and to take missing items to them at school. She is available on in-service or professional development days and on snow days when school is cancelled. [ 8 ] Ms. L, Mr. B’s new partner, works part-time at the IWK Health Centre. She works from 7:30 a.m. – 3:30 p.m., Monday to Friday. She leaves for work at 6:30 a.m. and returns home at 4:10 p.m. According to Ms.

Logan, she has 20 vacation days each year and uses them throughout the year, during the summer and at Christmas. This means that not all of these vacation days are available for her to be home for the 3 youngest children during Mr. B’s deployments. [ 9 ] While Ms. L says she is willing to maintain the shared parenting

schedule while Mr. B is away, she is neither available to care for the children before school nor after school on the days they would be with her during Mr. B’s deployment if he is deployed during the school year. In Mr. B’s Parenting Statement, he explained that he’s had to take advantage of the flexibility available in his work hours so that he could be at home when 3 youngest children arrived home from school. [ 10 ] Neither Mr. B nor Ms. L identified this problem or provided any solution to it.

[ 11 ] While Mr. B and Ms. L say routine is important for the children – this speaks only to the parenting schedule. This doesn’t address the other aspects of the 3 youngest children’s routine – having an adult care for them before and after school, on Professional Development days or snow days, when they are sick, or having forgotten items brought to them. [ 12 ] I find it is in the best interests of the 3 youngest children that they remain with Ms. B for all Mr. B’s deployments of more than 2 days. Where will the 3 youngest children to attend school? [ 13 ] A is 12 at attends Grade 7.

A uses third person plural pronouns. B is 10 and in Grade 5. 7-year-old P is in Grade 3. These 3 children all attend École des Beau-Marais, a school that has classes from primary to grade 8. When the children reach grade 9, they will all attend École secondaire Mosaïque – the school that their oldest sibling, Z, currently attends. [ 14 ] Mr. B initially wanted me to order A to attend École du Carrefour. He then asked that I make no order about A’s school. Ms. B asked me to order that A remain at École des Beau-Marais. [ 15 ] Mr.

B wanted me to order that P attend École Bois-Joli. [ 16 ] The parents agree that the curriculum at all schools is the same. I do not know whether all the schools operate on the same timetable. It appears they are not served by the same bus so they would travel to and from school separately. [ 17 ] If the children’s schools are changed, this will add 1 additional school to the number of schools they must attend. A will attend 3 different schools in a 3-year span.

B will attend 3 schools in a 5-year span and P will attend 3 different schools in a 3-year span (and 4 in a 7-year span). [ 18 ] If the children’s schools are changed, it will also mean that P is at a different school from A and B. P and Ba are particularly close to each other, the closest of any of the siblings. [ 19 ] Mr. B says that as students reach the later grades at École des Beau-Marais, some children transfer to other schools, leaving fewer students at École des Beau-Marais. Being in smaller classes is usually a positive – a lower student-to-teacher ratio. However, Mr.

B suggests that the students who are left behind are problematic. There’s no specific evidence of this actually happening in fact – and I must deal in facts, not speculation of what the future may bring. Mr. B says P gets frustrated playing with older children. If P transferred schools, he’d be back in exactly this situation as one of the youngest students when he attends École du Carrefour in Grade 5. [ 20 ] Ms. B says that École des Beau-Marais is the only school in the Orange Zone, so it was closed (because of COVID) less than the other schools. This evidence wasn’t contradicted.

This means the children could continue in person learning as opposed to online learning if there are further lockdowns. [ 21 ] Mr. B says that the facilities at the other schools are superior: they have larger gyms, libraries, and outside space (such as playground or sports fields). [ 22 ] Against the inferior facilities at École des Beau-Marais, I must balance the advantages of its familiarity for the children and the familiarity of the staff and faculty with the B children. The school principal, secretary, teachers, and bus drivers have a history with these children and look out for them.

Transportation to and from school is also easier if the children remain at École des Beau-Marais. [ 23 ] The evidence I heard is that the children’s parents don’t always look out for them. For example, the parents’ communication failure meant that no one was looking out for B when she was left at scout camp. In meeting the children’s need for security, the benefits of remaining at École des Beau-Marais outweigh the shortcomings in its facilities. [ 24 ] I order that the 3 youngest children remain at École des Beau-Marais. This can be changed by the parties’ agreement of the parties or a court order.

I specifically include A in this decision because there must be certainty. Without an explicit direction, there is no default position about where A attends school. And without a default position, there can be conflict between the parents. How will the parents pay the costs of the 3 youngest children’s outerwear, school supplies, cellphones, and haircuts? [25] Mr. B estimated the annual cost of the 3 youngest children’s outerwear, school supplies (including back packs, water bottles, lunch bags), cellphones, and haircuts at $3,530 annually. Ms. B didn’t dispute this estimate.

Reviewing each parent’s current Statement of Expenses, I find this is a reasonable estimate for these costs. [26] Mr. B was asked about Ms. B sharing the shopping with the children. He responded, “If she asked me if she could buy a jacket, why would I say no.” Mr. B attached no particular value to the task of shopping for or with the children, while Ms. B did. [27] In deciding this, I consider 5 points. [28] First, these parents can’t agree on how to pay for these items. That speaks to their level of conflict and lack of communication. The Bs separated over 3 years ago. Typically, conflict reduces over time.

Here, it has not. [29] Second, Mr. B has proposed a 5-step process for sharing the 3 youngest children’s costs. This is not the simplest way to proceed. The more complicated the process is, the more likely it is to give rise to problems. [30] Third, Mr. B’s proposed process puts him in control of purchasing all items, accounting for expenses, and determining Ms. B’s future payments.

[31] Fourth, unless the parties annually revise their Corollary Relief Order, this payment will not be enforceable through the Maintenance Enforcement Program because the amount of the payment is not specified in a court order. Given the conflict and poor communication, a payment that is outside the Maintenance Enforcement Program is not desirable. [32] Fifth, Ms. B alleges that there has been family violence. For family violence to exist under the Divorce Act does not require that Mr. B be criminally charged.

It does not require that he be convicted. [33] Family violence under the Divorce Act is, and I’ll refer only to the relevant parts of the definition in section 2(1) : any conduct by a family member toward another family member that causes the other family member to fear for their own safety . This is a broad definition. [34] Ms. B has repeatedly identified her fear for her own safety. She has repeatedly asked Mr. B to respect physical boundaries. Mr. B has repeatedly ignored her fear and her requests to respect physical boundaries. [35] Ms. B has asked Mr. B to respect communication boundaries. Mr.

B has refused to respect these boundaries. [36] Mr. B’s modified proposal (allowing Ms. B to ask him if she may shop with/for the children) puts him in the controlling position which I find is not appropriate, given the existence of family violence. [37] Historically, we dealt with expenses in a very straightforward way: 1 parent received money from the other to pay children’s expenses. The amount was based on the parents’ sworn disclosure of expenses. The objectives of the Federal Child Support Guidelines , SOR-97/175 aren’t precision.

The objectives include reducing conflict and tension between the parties and providing a fair (not exact) standard of support that ensures children benefit from their parents’ financial means. [38] To achieve these objectives, I am ordering that Ms. B be responsible for purchasing the 3 youngest children’s outerwear, school supplies, cellphones, and haircuts annually and that Mr. B pay her child support of $195 each month as his contribution to them. [39] I make this order under

section 9 of the Federal Child Support Guidelines . It is based on the children’s estimated expenses (not the actual expenses as sworn to on the parents’ Statements of Expenses). I have allocated these costs between the parents on an approximate basis, not on a specifically proportionate basis. I do this because

section 9 does not require proportionate sharing. It requires a payment of children’s expenses in such a way as to avoid a marked discrepancy between the children’s standards of living in each household. The amount also reflects the existence of 2 income earners and the sharing of expenses in Mr. B’s home. As such, a change in either parent’s income or in the specific cost of these expenses doesn’t automatically trigger a variation. [40] Ancillary to this, and under clause 16.1(4) (

d) of the Divorce Act , I do order Mr. B create a channel for communication exclusively between himself and Ms. B and that the parties use this channel exclusively when communicating with each other. No one else is to have access to this exclusive means of communication. What parenting time with Ms. B is in the oldest child’s best interests? [41] The parents agree it is in Z’s best interests that he have his primary home with Mr.

B and the parents continue to share decision- making responsibility for him. [42] In August 2021, the parents participated in a binding settlement conference where Justice MacKeigan ordered: • if Z ask the parent having care of him at a particular time, to transition to the other parent’s home on a day or at a time other than the day or time when the other children transition, the parent of whom the request is made may honour it, if the parent whose home Z would transition to agrees. • The parent who receives Z’s request to change the transition time must exercise his or her discretion so that Z can have greater flexibility to transition between homes as he is comfortable, but also such that Z should not be able to strictly dictate his own parenting schedule. • Both parents “should encourage” and “enforce where appropriate” that Z spend a reasonable amount of time with both parents throughout the week (during the school year) or the parenting cycle (during the summer). [43] As the result of Z’s mental health emergency in March of 2022, the parties entered into an “interim” consent order that varied these terms.

This order provided for a plan to support the reunification of the relationship between Ms. B and Z. Ms. B was to engage Dr. Kayfitz to facilitate counseling with Z. Both parents were to work with Dr. Katfitz and Erica Lundberg to support Z’s counselling sessions with Ms. B. “The parties” were to notify Ms. Lundberg of Dr. Kayfitz’s involvement. [44] There was a plan and timeline for Z to meet with his mother that considered any recommendations from Ms. Lundberg. Mr. B was to transport Ze to and from the visits. [45] In the 6 months since the consent order was granted, the meetings between Z and Ms.

B have not happened. Z says he wants no contact and expresses anxiety about spending time with Ms. B. [46] Dr. Kayfitz testified that he was unaware of any of the details of the interim consent order requiring him to facilitate and support Z’s counselling with Ms. B. Dr. Kayfitz had never seen the order before he testified. Dr. Kayfitz had no communication with Erica Lundberg beyond a case conference. I do not know when that occurred. Dr. Kayfitz began working with the parents in June 2022, but the goals for his work did not include reunification of the relationship between Ms. B and Z.

[47] It may be another failure of communication that where “the parties” were ordered to notify Ms. Lundberg of Dr. Kayfitz’s involvement, neither of them did this – or let Ms. Lundberg or Dr. Kayfitz know of the work they were expected to do. [48] I will parenthetically note for counsel that this also exposes a problem that is not entirely unusual – counsel frequently oblige unsuspecting professionals to do things in court orders that the professionals don’t know about – and without considering whether the person is available or able, professionally or ethically, to do what is being demanded. [49] Mr.

B offers no plan. He appears content to let Dr. Kayfitz, Erica Lundberg and Alex Wolf work away, without any shared sense (among the 3 of them) of a plan, a goal, or each person’s

part in a plan, or reaching a goal. [50] Ms. B wants Z to continue counselling with Erica Lundberg and Alex Wolf. She wants to continue to be able to ask them questions and get information from them. This has been ordered. [51] To ensure that the work of Dr. Kayfitz, Erica Lundberg and Alex Wolf can be co-ordinated, I order that: 1. No later that December 1, 2022, Ms. B must provide a copy of the April 1, 2022, interim consent order to: a. Dr. Kayfitz b. Erica Lundberg and c. Alex Wolf 2. No later than 14 calendar days after the Corollary Relief Order is issued, Mr. B must provide a copy of it to Dr. Kayfitz, Ms.

Lundberg and Mr. Wolf. 3. No later than December 1, 2022, each parent request a case conference at the Department of Community Services involving Ms. Steele, Dr. Kayfitz, Erica Lundberg, Alex Wolf, and the parents so there can be a discussion about Z and the allied professionals and, if professionally and ethically appropriate, the professionals can coordinate their work toward the goal of reunifying Z and his mother. [52] I am ordering that there be contact between Z and Ms. B.

The contact will be significantly within Z’s control so that he has agency and a sense of security about the contact. [53] Some form of contact must occur a minimum of once each month, starting in December 2022. I am outlining 3 options. Z must choose 1 or come up with his own option – and communicate this to Ms. B no later than November 30. [54] One option is proximity contact – Z may permit Ms. B to bring his siblings to the McDonald’s where he works for a meal while he is working. This proximity contact would last no more than 30 minutes.

It would not involve interaction or speaking between Z, his mother, or his siblings. This is simply the matter of being in the same place. Z will decide if this is an option he wants. If he chooses it, he will pick the date and time. If Z wishes, he can have Mr. B available in the parking lot. Ms. Logan will not be present. [55] A second option is communication contact – Mr. B has had success in encouraging Z to text his mother. This option means Z will write his mother. Z will decide if this is an option he wants.

Writing to her means a communication (by text, email, or letter) of no less than 50 words on any topic. [56] A third option is therapeutic contact – Z may invite Ms. B to attend a meeting with Mr. Wolf or Ms. Lundberg. Again, Z will decide if this is an option he wants. Z would control when that meeting was and how long Ms. B would be allowed to stay so this could be just a few minutes long. If Z wishes, he can have Mr. B available in the parking lot. Ms. Logan will not be present. [57] Alternately, if there is a different type of contact that Z wants to propose, he may do that.

For example, he may propose taking over responsibility for telling his mother when he has meetings with Alex Wolf (with no obligation to relay any other information about the meetings to her) for 1 month: for example, “I am seeing Alex today.” [58] Z may use the same option each month or he may change it, advising Ms. B by the final day of the previous month. [59] I am specifically ordering that Ms. B may provide Z with Christmas and birthday gifts. [60] I am aware of Z’s expressed anxiety about seeing his mother. Unilateral communication has been manageable so far without any incident.

So, these options are modest. They don’t give Ms. B the contact she would like, but they ensure that Z is responsible for maintaining contact with his mother. Has there been a material change so that Ms. B may proceed with an application to vary parenting arrangements for the children? [61] The Supreme Court of Canada describes “material change” in Gordon v. Goertz , 1996 at paragraph 12. Has there been a change in t he children’s needs or the ability of the parents to meet those have changed in a fundamental way? Might the previous order have been different had the circumstances now existing prevailed earlier?

The change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. [62] I have no written reasons explaining Justice MacKeigan’s thinking in making her decision following the binding settlement conference, so I can only reason from the terms of Her Ladyship’s order. [63] I conclude that there has been a material change for 4 reasons.

[64] First, the terms of the order from the binding settlement conference that relate to Z’s parenting time explicitly anticipated that Z would spend a reasonable amount of time with both parents throughout the week during the school year and during the summer parenting cycle. It was not anticipated that he would go for months on end with no contact. His lack of contact is a material change in Ms. B’s ability to meet Z’s needs. This is a change in the nature of their relationship, which is an aspect of Z’s best interests under clause 16(3) (

b) of the Divorce Act . Most significantly, this is a change in Z’s emotional, and psychological safety, security, and well-being, which are primary considerations in his best interests under subsection 16(2) of the Divorce Act . [65] Second, Z’s full-time residence at his father’s has also changed the younger 3 children’s relationship with him. The nature and strength of each child’s relationship with their siblings is an aspect of their best interests.

This is a material change that could not have been reasonable anticipated. [66] Third, we learned of one material change during the hearing itself: A has harmed themself.

This speaks to A’s physical, emotional, and psychological safety, security, and well-being, which are primary considerations in their best interests under subsection 16(2) of the Divorce Act . [67] Fourth, Justice MacKeigan’s order compelled joint decision-making responsibility for all children, written communication, and opinion exchange in good faith efforts to reach consensus, polite, respectful, and child-focused communication, shielding the children from negative comments about the other parent and matters pertaining to the litigation. It was recommended that the parties enroll in co- parenting counselling.

The parents were to consult with each other before enrolling the children in activities that “may” interfere with the other’s parenting time. [68] The evidence shows that many of these aspects of the order have been violated. As judges, we do not anticipate that parents will breach our orders and thereby fail to do that which has been ordered to be in the children’s best interests or do that which has been found not to be in the children’s best interests. [69] Overall, the level of interaction required of the parents was high.

Higher than one would expect where, for example, only one parent had decision-making responsibility. Co-parent counselling only began on June 9, 2022 – almost a full year after it was recommended. [70] Both parties admitted Adam Kayfitz was an expert in clinical psychology able to offer expert therapy on co-parenting and helping parents with their children. [71] Dr. Kayfitz was contracted to provide counselling for the parents to mitigate the risk that their co-parent conflict was having on the children.

So, at this point – after Z’s mental health emergency – there was a determination that there was a risk to the children from their parents’ conflict and something must be done. This risk was not identified when Justice MacKeigan’s order was made nor was the need for professional assistance to mitigate it. [72] Further, I have Dr. Kayfitz’s expert opinion that there is an equal or less chance that the parents would be able to meet the goals required to mitigate the risk their conflict creates for their children. [73] Because I have found there is a material change, the terms of my decision as they relate to Ms.

B’s parenting time with Z are subject to variation, just as the parenting terms relating to the 3 youngest children. [74] So, the parties will proceed to case management with Justice Chiasson on December 1. I will provide Justice Chiasson with a transcript of my decision and the indices of the exhibits entered at this trial to assist her in case management. Your case management conference briefs will be due no later than November 24, 2022. [75] Ms. Schofield will prepare the divorce and corollary relief orders and file the marriage certificate. Elizabeth Jollimore, J.S.C. (F.D.) Halifax, Nova Scotia