Pruneau v McCarthy, 2023 NSSC 118

SUPREME COURT OF Nova Scotia Citation: Pruneau v McCarthy , 2023 NSSC 118 Date: 20230411 Docket: SFHPSA , No. 106799 Registry: Halifax Between: Joseph Pruneau Applicant v. Elizabeth McCarthy Respondent Judge: The Honourable Justice Cindy G. Cormier Heard: December 15, 2022, in Halifax, Nova Scotia Counsel: Janice Beaton KC, for the Applicant Christopher Robinson, for the Respondent By the Court: 1 Introduction [ 1 ] On July 27, 2021, Elizabeth McCarthy filed a Notice of Variation Application pursuant to the Parenting and Support Act , seeking to vary the Order issued in May 2020 following a two-day contested hearing in March 2020. She sought: (

a) to vary the child’s parenting arrangement from primary care and custody with Mr. Pruneau to shared parenting arrangement between Mr. Pruneau and herself; (

b) an order directing that Ms. McCarthy make all decisions related to the child’s education; (

c) a finding of denial of time or interaction with the child pursuant to

section 40 of the Parenting and Support Act ; specifically, she referenced denial related to summer parenting time. Ms. McCarthy claimed there were problems with the

interpretation of the order. The issue of the

interpretation of the order as it relates to summer parenting time was addressed by me in a case conference in July 2022. An Order issued amending the clause to clarify my intent regarding summer parenting time ; and (

d) costs. [ 2 ] On August 5, 2021, Ms. McCarthy filed an Amended Notice of Variation Application requesting: (

a) that I terminate her child support obligation; and (

b) that I retroactively vary child support for the period between “July 2017 and October 31 st 2018, when child support was owed from Joseph Pruneau to Ms. McCarthy, the recipient parent.” In March 2020, I dismissed Ms. McCarthy’s application for retroactive child support for the specified period. Ms. McCarthy had failed to file the relevant financial information. She cannot relitigate the issue now. [ 3 ] On October 6, 2021, the parties appeared before me and both indicated they intended to retain legal counsel. In his pre- conference letter to the court, Mr. Pruneau stated that Ms. McCarthy’s claim he had denied her parenting time is directly related to the parties’ disagreement about the

interpretation of the clause included in the Order. Mr. Pruneau requested that I dismiss the matter as Ms. McCarthy had failed to present any facts which could prove a material change in circumstances. I adjourned the matter to allow the parties to obtain legal advice. [ 4 ] On October 15, 2021, counsel for Mr. Pruneau, Janice E. Beaton QC, as she was then, filed a Notice of New Counsel. Subsequently in March and April 2022, Ms. Beaton was in touch with the court to obtain a Certificate for Judgment and an Execution Order.

On June 6, 2022, a Certificate of Judgment was granted with respect to the costs ordered against Ms. McCarthy following the trial heard in March 2020. [ 5 ] On June 10, 2022, Mr. Pruneau filed a Response to Variation Application pursuant to

section 37 of the Parenting and Support

Act seeking to address parenting; parenting time (primary care time in excess of 60%); and seeking an order that Ms. McCarthy’s parenting time be reduced due to her failure to follow the Order; costs; and Security for Costs pursuant to the Parenting and Support Act s. 40(8) (my emphasis). [ 6 ] In his Response, under “other proceedings” Mr. Pruneau listed the following proceedings” involving he and Ms. McCarthy: (

a) Emergency Protection Order, HFX No. 454413 with EPO granted to Ms. McCarthy on August 12, 2016. Ms. McCarthy applied for and was granted an Emergency Protection Order. Mr. Pruneau left his home while Ms. McCarthy remained in Mr. Pruneau’s home. The Order gave Ms. McCarthy possession of Mr. Pruneau’s residence until September 12, 2016; (

b) Mr. Pruneau subsequently filed an application to have Ms. McCarthy ordered to vacate his home, HFX No. 457397. A Consent Order issued on December 16, 2016, confirmed Ms. McCarthy had no interests in his property and that she was required to vacate his home by January 16, 2017; (

c) Mr. Pruneau was charged with assault under the Criminal Code against Ms. McCarthy and he was acquitted following trial in Provincial Court. This decision was rendered January 11, 2018; and (

d) A Child Protection Proceeding was commenced, File No. SFHCFSA-103786. Pursuant to a court order, the child was placed in Mr. Pruneau’s care and Ms. McCarthy’s parenting time was supervised by the Minister of Community Services, with her parenting time moving to her parents’ home as of August 1, 2017, and the supervision requirement being lifted thereafter. [ 7 ] On June 15, 2022, following an inquiry by the court, Mr. Christopher Robinson advised the court that he was not officially retained by Ms. McCarthy and that he would file a Notice of New Counsel if he was. [ 8 ] On July 5, 2022, counsel for Mr. Pruneau, Janice Beaton KC, filed a pre-conference

summary outlining Mr. Pruneau’s position: (

a) Regarding clause 5(

h) about summer parenting time contained in the Order issued in May 2020, Mr. Pruneau understood that Ms. McCarthy was seeking various changes to the existing Order based on her perception that he had denied her parenting time pursuant to clause 5(h). Mr. Pruneau sought to have Ms. McCarthy’s application dismissed. (

b) He argued that in addition to Ms. McCarthy wanting to address the issue of the

interpretation of certain clauses (summer parenting time) in the Order, he objected to Ms. McCarthy relying on events pre-dating the trial held in mid March 2020 as support for a variation of certain terms included in the Order. (

c) Mr. Pruneau argued that the issue of retroactive child support was res judicata as it was dismissed at trial, as set out at paragraphs 29 and 30 of the Order. At the motion hearing on December 15, 2022, I agreed with Mr. Pruneau’s position on this point. [ 9 ] In response to Ms. McCarthy’s variation application, Mr. Pruneau sought: (

a) termination of clause 4 which grants Ms. McCarthy an extra day of parenting time on an alternating weekly schedule. The parties have both indicated there is significant conflict/disagreement and a lack of clarity related to this clause in the Order. I am prepared to hear both parties on this issue without the need for Ms. McCarthy to post security for costs; and (

b) to vary clause 5(

i) such that “Ms. McCarthy may only request an extra three-hour block of parenting time as contemplated by Clause 5(i)(ii).” Again, both parties have suggested the clause is unclear and creates conflict. I am prepared to hear both parties on this issue without the need for Ms. McCarthy to post security for costs. [ 10 ] Mr. Pruneau suggested that both parties were taking the position that: (a) “the frequently irregular parenting exchanges arising from Ms. McCarthy’s exercise of clause 4 are difficult to manage and may be disruptive to the child.” Mr.

Pruneau argued that “every extra block of parenting time requested by Ms. McCarthy necessitates lengthy communications often resulting in a dispute.” I find it is in the child’s best interest for me to review clauses 4 and 5 of the Order issued in May 2020. [ 11 ] On July 12, 2022, Mr. Pruneau appeared with his counsel Janice Beaton KC. Ms. McCarthy appeared alone. Ms. McCarthy sought a hearing to address the issues of summer parenting. I provided direction to the parties regarding the intent of the summer parenting clause. I directed Ms. Beaton KC, to file an Amended Order clarifying clause 5(h).

The Amended Order (Family Proceeding) was later filed with the court on July 14, 2022, and issued August 17, 2022. [ 12 ] Ms. McCarthy also sought an order that the child’s therapy with his current therapist (Matt Cohen and at times Stephanie Dean-Moore) be terminated and that the child see a new therapist chosen by Ms. McCarthy. Ms. McCarthy suggested Leslie Hartman and Associates as a psychotherapist, arguing that the child’s therapist would not speak with her and the one she wanted to have in place would communicate with both parents. (

a) At trial in March 2020, Ms. McCarthy sought an Order prohibiting Mr. Pruneau from attending any specialist appointments she facilitated for the child. Ms. McCarthy also stated she was not prepared to attend any appointments Mr. Pruneau arranged and/or attended with the child. (

b) Following the contested hearing in March 2020, I granted Mr. Pruneau decision making in relation to the child’s health concerns. Given my previous findings and stated concerns about Ms. McCarthy’s apparent struggle to work with others (in particular Mr. Pruneau) and put the child’s needs first, and without any expert evidence suggesting the child’s health is at risk presently, I find it is not in the child’s best interests to revisit the issue of decision making related to the child’s health.

[ 13 ] On July 12, 2022, the parties participated at a court conference. Mr. Pruneau gave notice he would be seeking to have his motion for security for costs heard prior to case management being scheduled in advance of any variation hearing. Ms. McCarthy suggested that Mr. Robinson may be representing her. A motion hearing for security for costs was scheduled October 4, 2022 , and case management was scheduled on October 26, 2022 . (my emphasis) I advised the parties that if Mr. Robinson was retained and either date did not work for him, then he could contact Ms.

Beaton KC, and our scheduling department to work out new dates. [ 14 ] On July 12, 2022, Mr. Robinson filed a Notice of New Counsel confirming he would be representing Ms. McCarthy. [ 15 ] On August 12, 2022, as directed by me, Ms. Beaton KC on behalf of Mr. Pruneau filed a Notice of Interim Relief (Family Proceeding), seeking “security for costs” pursuant to section 40(8) of the Parenting and Support Act and Civil Procedure Rule 45. [ 16 ] On September 8, 2022, a Conference Memorandum with the above noted adjourned dates was sent by me to both parties’ counsel. On September 22, 2022, Mr.

Pruneau filed a brief addressing the issue of Security for Costs, requesting security for costs in the amount of $7,000.00 . [ 17 ] On September 28, 2022, Mr. Robinson sent correspondence requesting an adjournment of the motion hearing to address security for costs, indicating in part that he had been: retained on a limited scope and he was unaware that during the July 12 th call (telephone court conference on the record, inserted by me) “that the security for costs motion was discussed and directed to be filed until I received, by email, copies of the Notice of Motion filed August 12 th .

The Notice indicated the matter was to be heard on October 4 th … my availability was never canvassed by counsel…I have only recently been retained to represent Ms. McCarthy regarding the Security Motion, however, I can only participate in the hearing if it is adjourned to a later date; I am unavailable October 4 th (really that entire week), and I would not have been available had counsel canvassed my

schedule before filing the Notice. [ 18 ] On September 29, 2022, Ms. Beaton KC, wrote opposing Mr. Robinson’s request for an adjournment of the Motion for Security for Costs hearing. Mr. Beaton stated that if I granted the adjournment sought by Mr. Robinson that Mr. Pruneau would be seeking costs. [ 19 ] Ms. Beaton KC, argued that: if Ms. McCarthy was acting on her own behalf, she had a responsibility to communicate all scheduled court dates to any counsel she subsequently retained. [ 20 ] Ms.

Beaton KC suggested additionally: when filing the Notice of New Counsel (July 12, 2022) the first step new counsel takes is to inquire about the next court dates, not only by asking his client but also by confirming with the Court. [ 21 ] Ms. Beaton KC argued that: Ms. McCarthy had done nothing to advance her application since filing her Amended Notice of Variation Application in August 2021… that Mr. Pruneau would incur “costs thrown away” if the adjournment of the motion was granted and she sought $1,200.00, payable forthwith by Mr. Robinson. Ms.

Beaton KC argued that it was appropriate that costs be paid by counsel as Mr. Robinson had acknowledged the delay of the motion from October 2022 to December 2022 was due to his schedule. Ms. Beaton quoted Rule 77.12(1) subsection (2)(c). [ 22 ] On September 29, 2022, Mr. Robinson responded to Ms. Beaton’s letter by stating that: he objected to Ms. Beaton’s assumptions about Ms. McCarthy’s privileged solicitor client conversations between he and Ms. McCarthy. Mr.

Robinson reiterated, that he was “on a limited retainer” and “not retained to address the Motion until September 28 th whereupon he wrote the Court. ” [ 23 ] The problem I have with Mr. Robinson’s position is that he states he was only retained on September 28 th , 2022. By then, Mr. Robinson clearly knew the date scheduled for the motion and arguably he should not have accepted the retainer if he was unable to appear at the motion hearing already scheduled on October 4, 2022. [ 24 ] However, on or about October 3, 2022, I granted Ms. McCarthy’s adjournment request.

The motion for security for costs was adjourned to December 15, 2022 . I advised counsel that Mr. Pruneau’s request for costs of $1,200.00 due to the adjournment of the motion would be assessed following the motion hearing re-scheduled to December 15, 2022. I notified counsel I was not going to order Mr. Robinson to pay costs personally, but I would consider costs against Ms. McCarthy. [ 25 ] Counsel should never assume an adjournment will be granted by the court.

Before counsel agrees to represent a litigant, counsel must be sure they are available for scheduled court appearances, especially for contested motions or hearings. I granted the

adjournment in this case because in July 2022 I believed Mr. Robinson was retained to represent Ms. McCarthy. I did so because I had initially believed Mr. Robinson would be counsel of record on all matters and I had stated to the parties on the record that the dates could be changed if Mr. Robinson was not available for those dates. I had not anticipated Mr. Robinson would wait until the motion hearing was fast approaching to advise the court about his initial partial retainer, his late retainer to represent Ms. McCarthy on the issue of security for costs, and his scheduling problem. [ 26 ] On November 30, 2022, Mr. Pruneau filed an Amended Response to Variation Application pursuant to

section 37 of the Parenting and Support Act . Mr. Pruneau added “compensatory parenting time pursuant to s. 40(5)(b)” as a request. Mr. Pruneau alleged that Ms. McCarthy had failed to return the child to his care as scheduled on November 22, 2022, and that Ms. McCarthy only returned the child to his care after school on November 28, 2022. Despite the child’s subsequent return to his care shortly before he filed his motion, Mr. Pruneau requested to be heard regarding upcoming Christmas parenting time. Mr. Pruneau anticipated further differences of opinion and conflict with respect to the

interpretation of the Order issued in May 2020. A hearing was scheduled for December 20, 2022 to deal with Christmas parenting only. [ 27 ] In addition, Mr. Pruneau noted that as of November 1, 2022, Ms. McCarthy was in default of 25 months of costs payments in the amount of $849.71 per month, for a total of $21,242.75 . [ 28 ] On December 9, 2022, Mr. Robinson wrote to the court in response to contact between court administration and Mr. Robinson’s office on December 8, 2022, wherein the scheduling office attempted to

schedule the Christmas parenting hearing on December 20, 2022. Mr. Robinson advised the court that he was NOT retained on the issue of Christmas parenting and “Ms. McCarthy would be appearing on her own behalf during that hearing.” Mr. Robinson confirmed he or his office had notified Ms. McCarthy about the Christmas parenting hearing and the filing deadline for her affidavit. [ 29 ] On or about December 13, 2022, the court date stamped two letters from Ms. McCarthy: (

a) The first letter from Ms. McCarthy was dated December 12, 2022. She stated she did not intend to represent herself in relation to the pending hearing December 20, 2022, on the issue of Christmas parenting/adherence to the court ordered Christmas parenting schedule. She claimed she had discussed the matter with Mr. Robinson on December 9 th , 2022, and she had arranged for him to represent her; and (

b) In the second letter from Ms. McCarthy dated December 13, 2022, she requested an “extension for affidavit filings” and directions from me regarding witnesses. She raised concerns about: (i) “Mr. Pruneau’s increasingly vextatious (sic) and multiple filings on issues within a body of concerns that comprise a Variation Application proceeding already before the courts, begun by myself as Applicant August 2021 and which is next scheduled for a case management session January 5 th 2023. There was no evidence on the face of either letter from Ms.

McCarthy suggesting she had copied her letters to opposing counsel or to Mr. Robinson. The letters were forwarded by the court to counsel, including to Mr. Robinson. [ 30 ] On December 13, 2022, 4:18 pm, Mr. Robinson sent electronic correspondence to the court and to counsel indicating that: although I am counsel of record for Ms. McCarthy, I am not, at present, retained to address the matter of Mr. Pruneau’s recent motion scheduled for December 20 th (Christmas parenting time), and in the event I am retained I cannot appear before the New Year.” My emphasis. Mr.

Robinson went on to comment about the merits of the motion hearing regarding parenting. [ 31 ] Once again, counsel must be very clear about limited retainers. As of December 8, 2022, Mr. Robinson knew the parenting matter was scheduled to be heard on December 20, 2022, and on December 9, 2022, he confirmed with court administration that he was not retained on the issue, and that Ms. McCarthy would be representing herself. [ 32 ] If Mr.

Robinson was not retained for the hearing on December 20, 2022, then in his letter to the court on December 13, 2022, he should not have had any expectation and could not expect the court to grant an adjournment if after December 9, 2022 he had agreed to represent Ms. McCarthy in relation to the Christmas parenting issue, but he then required an adjournment. Counsel should not accept a retainer from a client on a matter if they are not available for previously scheduled motion or hearing dates unless there is consent of all parties and the judge approves the adjournment. [ 33 ] On December 14, 2022, Ms.

McCarthy sent further correspondence requesting an adjournment of the hearing with respect to Christmas parenting time scheduled on December 20, 2022. She stated in part: In further communication with Mr. Robinson yesterday I advised that I will expand my retainer this week to have him also represent me in response to Mr. Pruneau’s motions upon the new year, when a full response under my current legal counsel can be made to the Court and when Mr. Robinson is available. Again, there was no evidence on the face of Ms. McCarthy’s letter indicating Ms. McCarthy had copied her letter to opposing counsel or to Mr.

Robinson. [ 34 ] On December 14, 2022, following my direction, at 10:47 am court administration sent electronic communication to all parties directing that the motion for security for costs would be going ahead on December 15, 2022, as planned. Following my direction, at 3:18

pm court administration also sent electronic correspondence to all parties (including Mr. Robinson) directing that the interim hearing on Christmas parenting scheduled December 20, 2022, would be going ahead as planned. This should not have been necessary. Motion hearings and trials are presumed to be going ahead absent a ruling from the judge on the matter. [ 35 ] On December 19, 2022, Ms. Beaton KC requested the case management conference scheduled for January 4, 2023 be adjourned to allow for me to provide the parties with a written decision with respect to security for costs. Mr. Robinson agreed. Ms.

Beaton KC proposed that the case management conference be rescheduled after February 28, 2023. 2 Issues [ 36 ] Should Ms. McCarthy be ordered to post for security for costs before the court considers her request to consider varying the parenting arrangement to a shared parenting arrangement, based on denial of parenting time or a material change of circumstances? [ 37 ] If so, what amount of security for costs should be ordered? By what date should it be paid? [ 38 ] Should the issues raised by Mr. Pruneau in his original Response proceed? If so, should Ms. McCarthy be ordered to post security for costs?

Should both parties be heard on whether it is in the best interest of the child for clauses 4 and 5 of the Order to be reviewed? [ 39 ] Should Mr. Pruneau’s request for “compensatory parenting time pursuant to s. 40(5)(b)” of the Parenting and Support Act , made after Ms. McCarthy kept the child in her care between November 21 and November 28, 2022, contrary to the parenting schedule, proceed? If so, should Ms.

McCarthy be ordered to post security for costs? [ 40 ] Should the court provide the parties with a further opportunity to ask that certain terms included in the May 2020 Order to be clarified by the Court? [ 41 ] Costs: (

a) costs of the adjournment from October 2022 to December 2022 in the amount of $1,200.00; and (

b) costs of the motion hearing held on December 15, 2022. 3 Facts [ 42 ] In June 2022, a judgment was registered against Ms. McCarthy and an Execution Order was issued. Costs were ordered in the amount of $40,786.49 to be paid in monthly installments of $849.71 commencing in October 2020. Mr. Pruneau claims, and Ms. McCarthy has not refuted, that as of November 2022 she had not made any payments toward the costs award granted in September 2020. [ 43 ] Ms. McCarthy requested I deal with child support for a period before the trial was held in March 2020. I dismissed her application in March 2020 due to Ms.

McCarthy’s failure to file the necessary financial information. The matter is dismissed. [ 44 ] Ms. McCarthy requested I terminate her ongoing child support obligation. In March 2020, I imputed an income of $35,000 to Ms. McCarthy, finding she was underemployed. Ms. McCarthy has stated that she has not sought out full-time employment outside her pre-existing employment situation. [ 45 ] Many of Ms. McCarthy’s concerns expressed about Mr. Pruneau or the allegations made against Mr. Pruneau which are contained in the information filed in Ms.

McCarthy’s most recent Variation Application are very similar to the concerns and allegations Ms. McCarthy advanced at the hearing in March 2020. In 2020 I determined it was in the child’s best interest to be in the primary care of Mr. Pruneau ( E.A.M . v. J.P.P ., 2020 NSSC 112 .) 4 Law [ 46 ] Mr.

Pruneau has asked me to grant an order for security pursuant to section 40(8) of the Parenting and Support Act and Rule 45 of the Civil Procedure Rules. [ 47 ] Section 40(8) of the Parenting and Support Act reads as follows: 40(8) Where the court is satisfied that it is likely that an order under subsection (5) will not be complied with, the court may additionally order that the respondent: (

a) post security with the court in such amount or form as the court directs; and (

b) report to the court or to a person named by the court at the time and in the manner specified by the court.

[ 48 ] Pursuant to Civil Procedure Rule 45, I may order Ms. McCarthy, who is seeking to vary the Order issued in May 2020, to put up security for the potential award of costs in favour of Mr. Pruneau. Before I do, Mr. Pruneau must establish on balance of probabilities that: (

a) He has properly filed a notice of motion for security for costs and Ms. McCarthy has opposed the motion. I find that he has; (

b) He will have “undue difficulty realizing on a judgement for costs,” if Ms. McCarthy is unsuccessful and her requests are dismissed by me, and costs awarded to Mr. Pruneau. There is evidence of undue difficulty as Ms. McCarthy has failed to pay any costs related to the previous proceeding; (

c) The “undue difficulty” must not arise only from Ms. McCarthy’s lack of means. Income was imputed to Ms. McCarthy due to a finding she was underemployed. Has Ms. McCarthy sought full-time employment commensurate with her skills and experience? Is her “lack of means” self-imposed? (

d) In all the circumstances, it is unfair for the Variation Application to proceed without an order for security for costs. Mr. Pruneau has had to defend himself on multiple fronts at multiple hearings. Ultimately he has been successful, but he continues to have to pay legal fees to respond to Ms. McCarthy’s requests to the court. [ 49 ] Mr. Pruneau’s counsel quoted from Doncaster, at paragraph 6: [6] The high cost of legal representation can in some cases be an access to justice issue. In other cases, legal fees can act as a deterrent to aggressive litigants.

An award of costs is one of the protections that people have from those who would use the court system less as a way to resolve a dispute than as a way to perpetuate one. Clausewitz famously said that war was the continuation of politics / diplomacy by other means. Family litigation should not be allowed to be the continuation of inane, repetitive, vengeful, mean spirited and abusive bickering by other means. (my emphasis). As stated by the honourable Justice Jollimore in Sevgur v.

Islam , 2016 NSSC 111 “The purpose of costs is only achieved when costs orders are paid.” [ 50 ] I have considered the case of Izyuk v. Bilousov , 2015 ONSC 3684 wherein Mr. Justice Pazaratz asks: [1] Is it “in the best interests of the child” that costs orders have teeth? But Pazaratz J., goes on to say: [2] Clearly, finances are unrelated to parenting skills.

And where children are involved we often bend the rules to make sure the right thing happens. [3] But how many times can an impecunious parent play the “inability to pay” care to flaunt the system? [4] Who gets hurt when costs orders mean nothing? [5] The “successful” parent? [6] Our overburdened court system? [7] The child? [8] All of the above? [9] These were some of the issues on this motion for security for costs in this high conflict custody / access file. [ 51 ] Pursuant to Rule 45.02(03) proof of one of the following facts gives rise to a rebuttable presumption that the party against whom the claim is made , Mr.

Pruneau, will have “undue difficulty realizing on a judgment for costs and that the difficulty does not arise only from the claiming party’s lack of means”: … The party claimed against has an unsatisfied judgment for costs in a proceeding in Nova Scotia or elsewhere. Mr. Pruneau has proven there is an unsatisfied judgment against Ms.

McCarthy payable to him. [ 52 ] Pursuant to Rule 45.02(04) I may also order security for costs in either of the following circumstances: The security is authorized by legislation (it is authorized pursuant to section 40(8) of the Parenting and Support Act .) … [ 53 ] Pursuant to Rule 45.03 an order for security for costs must require the party making the claim to give security of a kind described in the order, in an amount equal to or lower than that estimated for the potential award of costs, by a date stated in the order.

[ 54 ] Pursuant to Rule 45.04(01) an order for security for costs stays the proceeding, or that part of the proceeding for which the security is due, until the security is given, or the claim is dismissed. Pursuant to Rule 45.04(3), if Mr. Pruneau is granted an order for security for costs, he may make a motion for dismissal of the claim if the party ordered to provide security fails to do as ordered. [ 55 ]

Section 2 of the Parenting and Support Act defines “custody” as meaning: the responsibility and authority for the care and upbringing of a child and for the making of decisions regarding the care, supervision and development of the child.

Section 2 also defines “parenting time” as: the time when, under an agreement or a court order, a parent or guardian is with the child. 4.1 The Parenting and Support Act [ 56 ]

Section 10, among other things, provides that an order for child support shall be in accordance with the Provincial Child Support Guidelines . [ 57 ] Subsections 18 (1) and (5) provide as follows: 18

(1) On application by a parent or guardian…, the court may make an order respecting (

a) custody; (

b) parenting time; (

c) a parenting arrangement dealing with any of the areas set out in subsection 17A(3); (

d) a parenting plan made under

Section 17A; and (

e) any other matter the court considers appropriate. [ 58 ] Subsection 18(5) indicates that in any proceeding under this Act concerning custody, parenting arrangements, parenting time, contact time or interaction in relation to a child, the court shall give paramount consideration to the best interests of the child. [ 59 ] Subsection 18(6) provides a list of circumstances that are to be considered when determining a child’s best interests and reads: (

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; (

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; (

c) the history of care for the child, having regard to the child’s physical, emotional, social and educational needs; (

d) the plans proposed for the child’s care and upbringing, having regard to the child’s physical, emotional, social and educational needs; (

e) the child’s cultural, linguistic, religious and spiritual upbringing and heritage; (

f) the child’s views and preferences, if the court considers it necessary and appropriate to ascertain them given the child’s age and stage of development and if the views and preferences can reasonably be ascertained; (

g) the nature, strength and stability of the relationship between the child and each parent or guardian; (

h) the nature, strength and stability of the relationship between the child and each sibling, grandparent and other significant person in the child’s life; (

i) the ability of each parent, guardian or other person in respect of whom the order would apply to communicate and cooperate on issues affecting the child; and

(

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

i) the ability of the person causing the family violence, abuse or intimidation to care for and meet the needs of the child, and (ii) the appropriateness of an arrangement that would require co-operation on issues affecting the child, including whether requiring such cooperation would threaten the safety or security of the child or of any other person. [ 60 ] Sub-section 18(7) provides: When determining the impact of any family violence, abuse or intimidation, the court shall consider: (

a) the nature of the family violence, abuse or intimidation; (

b) how recently the family violence, abuse or intimidation occurred; (

c) the frequency of the family violence, abuse or intimidation; (

d) the harm caused to the child by the family violence, abuse or intimidation; (

e) any steps the person causing the family violence, abuse or intimidation has taken to prevent further family violence, abuse or intimidation from occurring; and (

f) all other matters the court considers relevant. [ 61 ] And, notably, sub-paragraph 18(8) provides: In making an order concerning custody, parenting arrangements or parenting time in relation to a child, the court shall give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child, the determination of which, for greater certainty, includes a consideration of the impact of any family violence, abuse or intimidation as set out in clause (6)(j). 5 Ms. McCarthy’s arguments 5.1 Impecunious [ 62 ] Ms.

McCarthy has argued that she lacks the means to pay the costs award. As noted previously, in March 2020 I imputed income to Ms. McCarthy, finding her to be underemployed. In advance of the motion hearing for security for costs heard in December 2022, Ms. McCarthy filed much of her financial information just days prior to the hearing. I would note that she claimed: (

a) According to her Statement of Income sworn December 8, 2022, Ms. McCarthy claimed that her “prospective income in 2022” was $12,389.76 or a monthly income of $1,032.48. That her income in 2019 was $13,816.48; in 2020 it was $19,758.70 ($5,758.70 employment income and $14,000 CERB); and in 2021 $24,059.35 ($2,959.35 employment income $600.00 taxable allowance or other benefits; and $20,500;00 total benefits). (

b) According to her Statement of Expenses also sworn on December 8, 2022, she also claimed that her monthly expenses were $1,692.10 with a deficit of $663.29. (

c) She was unsuccessful in her attempts to get a loan from Simplii Financial, BMO, TD, and the Atlantic Credit Union. (

d) She “had no real property, and no items of any great value.” That she “leased her car, and she had no savings.” She argued that her “difficulty satisfying the outstanding costs order and child support derived solely from her lack of means.” [ 63 ] As noted above, Ms. McCarthy’s income was imputed to her in March 2020. I found she was underemployed based on her skills and experience. At the motion hearing in 2022, there was no convincing evidence suggesting Ms. McCarthy looked diligently for full-time employment commensurate with her skills and experience.

In addition, there was no convincing evidence suggesting that she was unable to look for and retain full time employment for any justifiable reason. [ 64 ] Ms. McCarthy confirmed: she has a Bachelor of Arts in Anthropology with a minor in English, a Masters-degree in Journalism; conservatory training in theatre performance (no diploma, but training); and early childhood education and teaching training. Ms. McCarthy described herself as a permanent unionized employee at Halifax Libraries.

She stated that since May of 2020, when the order was issued following a two-day trial, she had applied for internal competitions only (I don’t believe any were full-time). Ms. McCarthy did not apply for any full-time positions outside Halifax Libraries. [ 65 ] Ms. McCarthy confirmed she took leave from her work with Halifax Libraries sometime between October 2022 and November 2022 and she suggested she did some online work with Halifax Libraries in December 2022. She did not provide any persuasive medical evidence suggesting her leave from work was a medical necessity. [ 66 ] For me to vary Ms.

McCarthy’s income as imputed to her in March 2020, Ms. McCarthy would need to advance credible evidence supporting her decision to be underemployed, or credible evidence supporting a finding that she has done everything she can to

obtain employment commensurate with her skills and experience and has been unable to do so, or present credible evidence (medicalevidence) proving she is unable to work full-time. 5.2 Child’s best interest [67] Ms. McCarthy argued that security for costs was not an appropriate award in this matter because her requests involve aquestion of the child’s best interests. She suggested that both she and Mr. Pruneau agreed that the parenting

schedule was not working,and they were both seeking a determination by the court and both deserved to be heard. [68] Ms. McCarthy suggested that if security for costs was granted, her Variation Application would be dismissed, and Mr.Pruneau’s requests contained in his Response would be heard. She indicated it was her understanding she would not be able to presentevidence about her position on the child’s parenting arrangements and what she feels is in the child’s best interests. Ms. McCarthyargued that in this situation an award for security for costs would breach the principle of Natural Justice. [69] Ms.

McCarthy referenced the decision of the Honourable Justice Ann E. Smith in Septic Pumping Services v. ABCO IndustriesLtd., 2019 NSSC 344 (Can LII) who stated: [10] In Emmanuel v.

Simpson Enterprises, 2007 NSSC 278, Associate Chief Justice Deborah Smith (as she then was) outlined the twocompeting principles at play when security for costs is sought. [11] On the one hand, it is necessary to “ensure that people of modest means are not prevented from having access to the court as a resultof their financial status.” On the other hand, “the interests of justice are not served if the plaintiff is artificially insulated from the risk ofa costs award.” [12] The current Rule 45 postdates Emmanuel; however, Moir J. of this Court reviewed the new Rule and the principles which remainconstant, in Ellph.com Solutions Inc. v.

Aliant Inc., 2011 NSSC 316, aff’d. 2012 NSCA 89: 21. The need remains for a balance between access to justice and artificial insolation from an award for costs. On the more detailedprinciples: 1. Rule 45.02 provides broad discretion. The limit on discretion commented on by Justice Goodfellow in Flewelling v. Scotia IslandProperty Ltd., 2009 NSSC 94 at para. 19 is not severe. The judge has a free hand to do what is just, so long as the defendant files adefence, shows undue difficulty, and either shows that security would not be unfair, see Rule 45.02(1), or establishes specialgrounds under Rule 45.02(4). 2.

The new rule does not change the principle that the court should be reluctant to order security for costs if the plaintiff establishes thatdoing so will prevent the claim from going forward. 3. The principles that courts should avoid security for costs being used as a means test for access to justice and that the discretion shouldnot be used to exclude persons of modest means from court are reinforced by the ground prescribed by Rule 45.02(1)(c). 4. The new rule does modify the principles about impecuniosity. Now, the burden is on the defendant under Rule 45.02(

c) if theplaintiff is an ordinary individual rather than a nominal plaintiff or a corporation under Rule 45.02(3)(c). For nominal plaintiffs andcorporations, the burden remains as stated by the Associate Chief Justice. 5. The principle about foreclosing the suit, that an order should not be made that prevents the plaintiff from proceeding unless the claimobviously has no merit, remains unchanged. Indeed it is enhanced by Rule 45.02(1)(d). (my emphasis) [70] Ms. McCarthy also referenced the decision of the Honourable Justice Sheilagh M. O’Connell in Hodgins v.

Buddhu, 2013ONCJ 137 wherein the Honourable Justice O’Connell stated in part: [19] In cases involving custody and access, where the best interests of the child are the paramount consideration, it has been held by anumber of courts that security for costs should only be granted in exceptional circumstances[3]. As Justice Peter B. Hambly statesin Schumilas v. Porter-Schumilas, , 76 R.F.L. (6th) 294, [2009] O.J. No. 4209, 2009 Carswell​Ont 6166 (Ont.

S.C.) atparagraph [30] of that decision, while it is true that a party’s position in a custody and access case may be unreasonable and lackingmerit, “it can never be a waste of time or a nuisance for a court to concern itself with the custody of a young child.” Justice A.Thomas MacKay states the following in Bragg v. Bruyere, 2007 ONCJ 515, 45 R.F.L. (6th) 226, [2007] O.J. No. 4341, 2007 Carswell​-Ont 7239 (Ont. C.J.): [5]Courts are justifiably cautious in ordering security for costs in family litigation where the best interests of thechildren are paramount.

The court does not wish to see the merits of the case determined by a party’s inability to postsecurity for costs. However, in appropriate circumstances, the court may make such an order. [71] Although Ms. McCarthy referenced the above noted passages from Hodgins, supra, I would note that at paragraph 21 inHodgins, supra, the Honourable Justice O’Connell went on to say: [21] First, Mr. Buddhu is not pursuing this litigation. The purpose of an order for security for costs is to control and curtail people fromcommencing litigation and pursuing another person in the court system in a frivolous and wasteful manner.

As JusticeKatarynych aptly states in McGraw v. Samra, supra, an order for security for costs is “a control on a blithe pursuit of another personin the courts without attention to the merits of the pursuit and the legal costs likely to be incurred by the respondent to defend thecase.” [paragraph 24] (my emphasis)

6 Analysis [72] Mr. Pruneau is asking for security for costs for Ms. McCarthy to proceed with her Variation Application because she has notpaid any costs arising from the hearing in March 2020. [73] When considering Mr. Pruneau’s request for costs following the trial in March 2010, in addition to finding that Mr. Pruneauwas the successful litigant, I also considered Ms. McCarthy’s behaviours during litigation.

Behaviours including but not necessarilylimited to: her failure to disclose necessary financial information before trial in March 2020; her failure to appear for a case managementconference in October 2019; and her failure to respond to Mr. Pruneau and to the court in or around November 2019, necessitating aninterim motion and an Order for Substituted Method of Providing Notice of a Proceeding, to move the matter forward. [74] Earlier in my decision I outlined the difficulties the court has experienced scheduling various motion hearings in this proceedingbased on what appears to be Ms.

McCarthy’s lack of understanding or lack of concern about her obligations to the parties and to thecourt. This includes Ms. McCarthy’s obligation to advise her counsel of upcoming court dates, and her obligation to represent herself inthese matters as scheduled if she is unable to retain legal counsel. It should go without saying that Ms.

McCarthy should not ever send aletter to the court without copying all parties, including her lawyer if she has retained a lawyer to represent her, and also if she isrepresenting herself she should not be sending any letters to the court without copying all parties each time. [75] Mr. Pruneau has also argued that Ms. McCarthy is seeking to relitigate issues pre-dating the hearing held on March 16 and 17,2020, and she should not be permitted to do so. [76] When considering any Variation Application, I must always ensure three requirements are satisfied: Gordon v. Goertz, (S.C.C.) at para 13.

The requirements are: (

a) there must be a change in the child’s condition, means, needs or circumstances or the ability of the parents to meet the children’sneeds; (

b) the change must materially affect the child; and (

c) the change was either not foreseen or could not have been reasonably by the judge who made the initial order. [77] The burden of proving the material change rests on the person asking for the order to be changed. With respect to custody andprimary care, that is Ms. McCarthy. If no material change is proven, I do not have jurisdiction to vary the order. 7 Best Interests of the Child [78] Every decision made, including a decision about whether to grant security for costs, must be made with the child’s bestinterests in mind.

For ease of reference and illustrative purposes, I have re-organized some of my findings from my decision rendered inMarch 2020, according to the best interests factors outlined in section 18(6) of the Parenting and Support Act. [79] Section 18(6)(a), The child’s physical, emotional, social and educational needs, including the child’s need for stability andsafety, taking into account the child’s age and stage of development were considered at trial in March 2020, examples include but are notlimited to: (

a) At paragraphs 101 – 106, I found Ms. McCarthy failed to consider how she might be contributing to any emotional or anydevelopmental issues she stated she was witnessing with the child in her home. For instance, she suggested that any night terrors thechild was experiencing while at her home were more connected to Mr. Pruneau’s care of the child. (

b) At paragraphs 109 – 110, Ms. McCarthy suggested the bruise on the child’s face was due to a lack of supervision in Mr.Pruneau’s home. I found Ms. McCarthy’s allegations suggesting a lack of supervision or neglect or abuse were not supported by theevidence. (

c) At paragraphs 111 – 114, I found Ms. McCarthy’s allegation that Mr. Pruneau and his fiancé failed to respond adequatelywhen the child had a temperature was unfounded. After considering all the evidence, I did not attribute blame to Ms. McCarthy who didnot take the child to be seen at emergency before dropping the child off to Mr. Pruneau, or to Mr. Pruneau and his partner, for not takingthe child to seek medical care when Ms. McCarthy believed they should have. There was no medical evidence offered at that time. (

d) At paragraphs 129 133, I found that the ongoing conflict between the parents and the disagreements between the parentsregarding the child’s gender expressions was creating a risk of emotional harm for the child. The child was approximately three yearsand two months old when I presided over the trial in March 2020. (

e) I observed that when parents present conflicting histories regarding a child, especially parents going through a contestedhearing involving parenting, there is definitely good cause to proceed with caution. I observed that although it is not unusual for childrento have gender variant expressions, that neither party had presented any expert evidence in relation to the issue of gender expression andtheir child’s particular needs.

(

f) I determined I was not prepared to rely on Ms. McCarthy’s observations and assessment of the child’s needs with respect to gender expression. I directed that neither parent make any assumptions as gender variant preferences do not automatically indicate a need for a change of identity and/or for social transitioning. I directed that neither party take unilateral action with respect to the child’s gender. (

g) I found it was not in the child’s best interest for either parent to begin “socially transitioning” the child, including dressing him as a girl and posting images of him, or using female pronouns or names for him. I determined it was in the child’s best interest to have Mr. Pruneau monitor the child’s needs with respect to his gender development and to respond to those needs whatever they may be. I was satisfied that regardless of the child’s gender expressions to Mr. Pruneau, that Mr. Pruneau would respond appropriately to the child. (

h) I found it was in the child’s best interests for the parents to have a gender-neutral approach until it was determined whether professional guidance should be sought. I directed Mr. Pruneau to make the decision regarding the need for the child to see a professional. I directed that both parents ensure the child was involved with playgroups, and or with playmates, and in settings that supported the child’s interests. [ 80 ] 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 was considered at trial in 2020. Some of the findings included: (

a) At paragraph 115, I found Ms. McCarthy’s entries in the “parenting log” to be difficult to read. I found it would not be easy to take a quick look at the journal and determine what, if any, information may be “crucial” in terms of providing immediate care for the child. (

b) Mr. Pruneau expressed concerns about the parenting journal, including but not limited to: Ms. McCarthy using the journal to communicate about legal issues and to direct him to do certain things without prior agreement between the parties. (

c) Ms. McCarthy alleged that Mr. Pruneau’s decision to allow Ms. McCarthy’s family to see the child to give the child presents contravened the direction she had provided to Mr. Pruneau in a parenting log entry dated November 13, 2019. Ms. McCarthy accused Mr. Pruneau of “disregarding the terms of their court order re: agreement on the major upbringing decisions around our co-parenting the child.” She explained that she had advised her parents to retain a lawyer if they wish to have contact with the child. I found Ms.

McCarthy to be unreasonable and lack empathy for even her own family members, preferring to address issues through the use of court. [ 81 ] Section 18(6)(c). The history of care for the child, having regard to the child’s physical, emotional, social and educational needs; (

a) In various letters to the court, Ms. McCarthy references the two successive interim orders granting the parties shared parenting over a two-year period. However, the child was initially cared for by Mr. Pruneau primarily, not by Ms. McCarthy. (

b) The child was born in January, 2017. A child protection proceeding was commenced, File No. SFH CFSA 103786. Pursuant to a court order, the child was placed in Mr. Pruneau’s care. There were concerns about Ms. McCarthy’s ability to read the child’s cues and her preparedness. Ms. McCarthy’s parenting time was supervised by the Minister of Community Services, with her parenting time moving to her parents’ home as of August 1, 2017. The supervision requirement was lifted thereafter and the parties moved to a shared parenting arrangement for a period. (

c) In March 2020, after fully considering all the evidence, I found that while the parents had shared the care of the child there was significant conflict and that the shared parenting arrangement was not in the child’s best interests. I found it was in the child’s best interests to have Mr. Pruneau as the child’s primary decision maker and for the child to reside primarily with Mr. Pruneau, again. (

d) Although I recognized that some degree of conflict occurs in most, if not all, families regarding child rearing issues, I found it was more likely than not Ms. McCarthy who was responsible for most of the ongoing conflict. I found Ms. McCarthy had no intention of letting go of any perceived slights by Mr. Pruneau, his fiancé, his mother, her parents, her sister, the counselor, or the child’s initial primary care physician. That Mr. Pruneau had tried to address any disagreement through legal counsel but had been mostly unsuccessful. In any event, I find that the reliance on counsel was not sustainable.. (

e) I found that throughout the proceeding, Mr. Pruneau had remained polite and supportive in his comments about Ms. McCarthy’s parenting. For instance, in his affidavit filed March 3, 2020, Mr. Pruneau described Ms. McCarthy as “an enthusiastic mother” stating “it is evident she cares for the child.” Mr. Pruneau also indicated that “Ms. McCarthy takes the child to many extracurricular activities, which he believed was well-intentioned.” (

f) I found the conflict between the parties was primarily the result of Ms. McCarthy’s need to control the child’s circumstances. Ms. McCarthy was unable to work with other important persons in the child’s life despite services offered to her. As a result, in March 2020, I did not grant Ms. McCarthy’s requests that I order both parties: (

i) attend co-parenting counseling separately; (ii) create a detailed parenting plan to be filed with the Court; (iii) learn new communication strategies; (iv) plan options in the event of a dispute; and

(

v) create and place boundaries around the roles of non-parents and of non-custodial family members in the child’s life. [ 82 ] I declined Ms. McCarthy’s requests as I found Ms. McCarthy was not capable of considering other viewpoints and working with others. I believed Mr. Pruneau was capable of all the above. However, I did not believe it was in the child’s best interests for Mr. Pruneau to engage in any of the above with Ms.

McCarthy, and I gave him decision making authority to avoid the ongoing conflict, to provide some stability, consistency, and predictability for the child. [ 83 ] In coming to my conclusion that the parties could not work together, I considered several different instances suggesting Ms. McCarthy was being unreasonable. For instance, the ongoing conflict over “toilet learning” was addressed, partly at paragraphs 118 – 125. (

a) Ms. McCarthy developed a “Toilet Learning Plan” which was well underway for the child in 2019. Initially, both parties advocated for consistency between the homes and at day care. However, shortly after the plan was in place, Ms. McCarthy expressed opposition to the child being provided treats or rewards as part of the day care approach being used with the child and his peers at daycare. (

b) In May 2019, after Ms. McCarthy demanded Mr. Pruneau cease providing the child with opportunities to use the “potty.” When cross-examined, Ms. McCarthy stated she had not yet started the toilet learning plan with the child in her home. That she had purchased a “potty” for the child but had not shown it to him. She denied stopping the toilet learning program while it was in progress. I did not accept Ms. McCarthy’s testimony in this regard. Either way I was concerned about her position on this issue. (

c) I found that despite the child’s interest and perceived readiness to start toilet learning at daycare and at Mr. Pruneau’s home, until September 2019, Ms. McCarthy took the position that there had been too many “significant changes” in the child’s life for him to be permitted to use the potty. The changes Ms. McCarthy indicated she was most concerned about were Mr. Pruneau’s partner moving in with him in May 2019, and Ms. McCarthy’s efforts to transition the child to his own bed over the summer of 2019 after she had chosen to co-sleep with the child, which was not consistent with the approach used in Mr.

Pruneau’s home when he had cared primarily for the child. The child did not have trouble transitioning to sleeping in his own bed at Mr. Pruneau’s home. (

d) Ms. McCarthy testified about her involvement in a new intimate partner relationship between June of 2019 and February of 2020, explaining she had a pregnancy loss during that time. Ms. McCarthy stated that she introduced her new partner to the child in August 2019. She stated her new partner would often join her and the child for social activities, approximately once per week. At trial, Ms. McCarthy stated that the relationship was on “hiatus” since February 2020. Her previous partner did not testify at trial. (

e) Ms. McCarthy accused Mr. Pruneau’s mother of “forcing” the child to toilet train. I found that Ms. McCarthy told the child it was not right for Mr. Pruneau and the child’s grandmother to ask him to or to allow him to toilet train as both she and Mr. Pruneau needed to come to an agreement before the child could learn how to use the toilet. Mr. Pruneau stated, and I accepted, that following the parties’ initial toileting agreement in April 2019, the child was permitted to use the potty in his home if the child requested it. I found Mr. Pruneau’s approach to be a reasonable one. (

f) Mr. Pruneau argued, and I agreed, that Ms. McCarthy had at times prevented the child from progressing through the “normal stages of his development.” At paragraph 131, I found that on balance of probabilities, Ms. McCarthy had lied about the “toilet learning” to try to control the child’s circumstances and to meet her own needs. I agreed with Mr. Pruneau that Ms. McCarthy’s behavior around the child’s toilet learning was a striking example of Ms. McCarthy placing her own needs ahead of the child’s needs. (

g) At trial in 2020, Ms. McCarthy acknowledged she still occasionally put the child in pull ups/training pants. Ms. McCarthy indicated that she had determined the child was fearful of public washrooms, and specifically the child was fearful of “auto flush toilets/hand dryers.” Ms. McCarthy stated that the child would become “overwhelmed by fear.” Ms. McCarthy’s choice to put the child in pull ups rather than teach him “auto flush toilets/hand dryers” were nothing to be afraid of was of concern to me. I was concerned about Ms.

McCarthy’s perception of the child’s reactions and her apparent inability to reassure the child about everyday occurrences and expectations when using a public washroom. [ 84 ] Section 18(6)(d). The plans proposed for the child’s care and upbringing, having regard to the child’s physical, emotional, social, and educational needs. In March 2022 I found in part: [98] …Ms. McCarthy had a misconception about real world resources, and her expectations of others, including service providers, her own family, Mr. Pruneau and his family, and other support persons in his or her life, were not realistic. [99] Ms.

McCarthy had a history of attributing blame to others, and then limiting her contact with them. She appeared to be able to accept some very limited responsibility for her role in any ongoing conflict, but there was no evidence Ms. McCarthy had been able to change her behavior and or reconsider her perceptions. Ms. McCarthy argued that “the conflict”, apparently referring to conflict with some or all of the key individuals in the child’s life (Mr. P., W. P., Mr. P.’s fiancé, Ms. McCarthy’s parents, Ms.

McCarthy’s sister, the child’s pediatrician), did not or would not have any direct impact on the child. [100] Despite all the services Ms. McCarthy had taken advantage of over more than a three-year period, and despite her concerns about Mr. Pruneau, his fiancé, Mr. Pruneau’s mother, Ms. McCarthy’s parents, Ms. McCarthy’s sister, and the child’s pediatrician, not being supported by any credible evidence before this court, Ms. McCarthy was still asking me to place restrictions the child’s family

members. There was no evidence Ms. McCarthy had considered she may be wrong and that her position may affect the child’s best interests. [ 85 ] Section 18(6)(e). The child’s cultural, linguistic, religious, and spiritual upbringing and heritage. (

a) In March 2020 Mr. Pruneau was prepared to grant Ms. McCarthy decision-making authority with respect to the child’s religious upbringing. I granted Mr. Pruneau decision-making authority in all aspects, as I was concerned Ms. McCarthy would not be able to use any authority granted to her without causing conflict. (

b) Although Mr. Pruneau has decision making authority in relation to the child’s schooling, Ms. McCarthy insisted the child should learn French due to Mr. Pruneau’s heritage. Ultimately, Mr. Pruneau acquiesced to some degree. However, Mr. Pruneau was not required to agree to Ms. McCarthy’s requests with regard to the child’s education. (

c) Ms. McCarthy’s position on whether the child should attend daycare/school or be at home has fluctuated at times. She does not appear to have a consistent position. Expressing concerns when the child was mostly cared for at home by Mr. Pruneau and his family citing limited exposure to other children, then more recently suggesting the child should be cared for at home by her. [ 86 ] Section 18(6)(f). The child’s views and preferences, if the court considers it necessary and appropriate to ascertain them given the child’s age and stage of development and if the views and preferences can reasonably be ascertained.

The child is too young to express a view or preference. [ 87 ] Section 18(6)(g). The nature, strength, and stability of the relationship between the child and each parent or guardian. The question in this matter has always been whether Ms. McCarthy was able to respond appropriately to the child’s needs. It is Ms. McCarthy who has always observed problems with the child’s presentation and emotions while with her. More recently Mr. Pruneau has acknowledged some acting out by the child, but I understand the child has been or did see a therapist and his functioning improved. [ 88 ] Section 18(6)(h).

The nature, strength, and stability of the relationship between the child and each sibling, grandparent and other significant person in the child’s life; (

a) In March 2020, I accepted Mr. Pruneau’s position that Ms. McCarthy was interfering unduly in his relationships with others. I found that Ms. McCarthy was involved in attempting to discredit his fiancé at her place of work. Mr. Pruneau’s fiancé had been involved with the child since shortly after his birth and would have acted in a parent like role to him. Ms. McCarthy’s ongoing dislike of Mr. Pruneau’s partner is most likely contributing to any ongoing issue the child may be experiencing. (

b) In March 2020, I found Ms. McCarthy had difficulty accepting other people’s views of the world if different from hers, and other people’s limitations or weaknesses. I found that as a result, Ms. McCarthy had been unable to find a way to include or accept certain people in the child’s life. Overall, I had concerns about Ms. McCarthy’s credibility, and / or her ability to work cooperatively with anyone who challenged her view of the world or her beliefs. (

c) In March 2020 Ms. McCarthy’s dismissiveness and accusations did not end with Mr. Pruneau’s partner but extended to Ms. McCarthy’s own family of origin. At trial, when Ms. McCarthy was asked about any harm that may have come to the child when spending time with Ms. McCarthy’s mother, Ms. McCarthy stated that the child was “not physically harmed” but she maintained she had concerns about her parents for several years. (

d) Mr. Pruneau stated that Ms. McCarthy had previously described her own parents as abusive. At trial, Ms. McCarthy indicated she was concerned about her mother’s use of medication (since 2018 or before) and her mother’s level of cognition. At trial in March 2020, Ms. McCarthy confirmed she had not arranged for the child to see her parents since November 2019. (

e) Ms. McCarthy objected to Mr. Pruneau meeting with her parents (at Ms. McCarthy’s sister’s request), to arrange to give the child Christmas presents in December 2019, as Ms. McCarthy was estranged from her family at that time. Ms. McCarthy also took exception to Mr. Pruneau allowing the child to have contact with Ms. McCarthy’s sister at the same time Mr. Pruneau allowed the child to see his maternal grandparents. Ms. McCarthy suggested that her sister had behaved in an aggressive way toward her and that her sister placed the child at risk. Ms.

McCarthy’s parents and sister did not testify at the trial in March 2020. [ 89 ] Section 18(6)(i). The ability of each parent, guardian, or other person in respect of whom the order would apply to communicate and cooperate on issues affecting the child; (

a) At paragraph 115 of my decision rendered in March 2020, I express that I have concerns about Ms. McCarthy’s position regarding the parenting log (journal) she was insisting the parties maintain. I agreed that Ms. McCarthy included considerable “non- crucial” information in the parenting log. I found Ms. McCarthy’s entries to be difficult to read, and I found it would not be easy to take a quick look at the journal and thereby determine what if any information may be “crucial”, in terms of providing immediate care for the child. (

b) In March 2020, I found Ms. McCarthy’s use of the journal “inappropriate and I advised her that it must stop.” Due to my concerns about the content of the parenting journal, I directed that the parenting journal never be shown to the child. As an alternative to the parenting journal, I directed the parties use a program such as the My Family Wizard program and that they exchange only crucial information necessary to meet the child’s day to day needs.

(

c) At paragraphs 116 and 117, I discussed the problems in 2020 raised with respect to the transitions. Ms. McCarthy suggested the transitions would be “fine if everyone acted like an adult” – she believed there was no need for discussion at all, and that any discussions should take place in the parenting journal. As noted above, I found Ms. McCarthy’s use of the journal was inappropriate. (

d) In 2020, Ms. McCarthy objected to having Mr. Pruneau or his mother drop the child off to her, expecting others to drop the child off at his daycare as early as 7:30 am to accommodate her preferences, and stated problems with Mr. Pruneau and his mother. Ms. McCarthy raised the issue of drop off location in her new variation application. I provided direction on the issue and the matter is settled. (

e) At trial in March 2020, Ms. McCarthy requested an order prohibiting Mr. Pruneau from attending any of the child’s medical and dental appointments or other health related appointments with her, and she expressed that she would not attend any health related appointments for the child with Mr. Pruneau . (

f) In her new Application, Ms. McCarthy suggested the child should stop seeing the therapist arranged by Mr. Pruneau and see another arranged by her. Ms. McCarthy has claimed she wants the child to see her own expert, who will speak with both parents. At trial in 2020, I did not believe Ms. McCarthy was able to work with Mr. Pruneau cooperatively or effectively. [ 90 ] Section 18(6)(j).

The impact of any family violence, abuse or intimidation, regardless of whether the child has been directly exposed, including any impact on 1. the ability of the person causing the family violence, abuse or intimidation to care for and meet the needs of the child, and 2. the appropriateness of an arrangement that would require co-operation on issues affecting the child, including whether requiring such cooperation would threaten the safety or security of the child or of any other person. (

a) As noted earlier, Ms. McCarthy was granted an Emergency Protection Order, HFX No. 454413 on August 12, 2016 . Mr. Pruneau left his home while Ms. McCarthy remained in Mr. Pruneau’s home. The Order gave Ms. McCarthy possession of Mr. Pruneau’s residence until September 12, 2016 ; (

b) Mr. Pruneau subsequently filed an application to have Ms. McCarthy ordered to vacate his home, HFX No. 457397; a Consent Order issued on December 16, 2016 confirming Ms. McCarthy had no interests in his property and that she was required to vacate his home by January 16, 2017; (

c) Mr. Pruneau was charged with an assault under the Criminal Code against Ms. McCarthy. He was acquitted following Trial in Provincial Court. The decision was rendered January 11, 2018; and (

d) I expressed serious concerns regarding Ms. McCarthy’s credibility. Ultimately, in March 2020, I found that on a balance of probabilities Ms. McCarthy had misperceived, exaggerated, or made false statements about Mr. Pruneau’s, and about Wendy Pruneau’s allegedly intimidating behaviors. I found Ms. McCarthy had allowed her emotions and her desire to control everything in the child’s life, to provide support for a conspiracy theory about Mr. Pruneau’s fiancé’s involvement with Mr. Pruneau, and with the child. [ 91 ] Sub-section 18(7) provides: When determining the impact of any family violence, abuse or intimidation, the court shall consider (

a) the nature of the family violence, abuse or intimidation; (

b) how recently the family violence, abuse or intimidation occurred; (

c) the frequency of the family violence, abuse or intimidation; (

d) the harm caused to the child by the family violence, abuse or intimidation; (

e) any steps the person causing the family violence, abuse or intimidation has taken to prevent further family violence, abuse or intimidation from occurring; and (

f) all other matters the court considers relevant. [ 92 ] In addition to the relief specified in her Notice of Variation filed in July 2021 and her Amended Notice of Variation Application filed in August 2021, on December 8, 2022, Ms. McCarthy specified that she wanted me to address the following: (

a) Denial of parenting time. (

i) The issue of summer parenting time was addressed by me in July 2022, an Order issued shortly thereafter. (ii) Ms. McCarthy’s claim of denial of parenting time as it relates to Mr. Pruneau’s decision about the child starting school or school attendance generally and the effect the child’s school attendance would have on Ms. McCarthy’s parenting time, the issue has already been decided. I granted Mr. Pruneau authority to make decisions in relation to the child’s education. (iii) If there is a need for further clarification of any clauses in the Order related to Ms. McCarthy’s extra parenting time, I can address those questions and clarify matters without the necessity of a hearing.

(

b) Medical care: Ms. McCarthy has raised further medical concerns. The issue of who should make decisions related to the child’s medical needs was already litigated in March 2020. At trial in 2020, I found Ms. McCarthy’s allegations of medical neglect were unfounded and that Ms. McCarthy’s evidence was unreliable. (

i) Unless there is concrete evidence from a third-party professional regarding medical neglect arising after March 2020, I am not prepared to hear the issue. (ii) The child becoming increasingly aggressive. At trial in 2020, Ms. McCarthy expressed concerns about the child’s emotional needs and his behaviour, attributing wrongdoing to Mr. Pruneau. The matter was litigated. I did not find Ms. McCarthy’s evidence sufficient. I found Ms.

McCarthy was unwilling to work with anyone who did not accept her point of view and that she had difficulty considering how she may be contributing to any challenges the child was facing at that time. 1) A child’s behaviour can often be attributed to many different factors and is often difficult to isolate observable reason(s). (iii) Following trial in 2020, Mr. Pruneau was given authorization to ensure the child’s needs were met, including the child’s need for emotional support. I understand that since trial in March 2020, the child has seen a professional counselor arranged by Mr. Pruneau.

Without expert evidence to prove the current service is insufficient, I am not prepared to relitigate the issue of Mr. Pruneau’s authority to make those arrangements. (

c) Ineffective co-parenting. The issue of ineffective co-parenting was a central issue and dealt with extensively at trial in March 2020. As noted previously, I found it was Ms. McCarthy who was unable or unwilling to work with others and that she was unable to place the child’s needs ahead of her own. Although I anticipated trouble would arise with the

interpretation and/or adherence to the terms of the order, I did leave some flexibility for some extra time for Ms. McCarthy. I did so while also discouraging the parties from trying to change the terms. The inconsistency has resulted in ongoing conflict, as expected. I am prepared to hear both parties on that specific issue of whether the additional day should be specified or eliminated. I am prepared to adjust the terms to ensure they are clear and unambiguous. 8 Conclusion 8.1 Security for costs [ 93 ] As noted by Mr. Justice Pazaratz in Izyuk v.

Bilousov , 2015 ONSC 3684 , at paragraph 40 : [40] The court must apply the following analysis: a. The initial onus is on the party seeking security for costs to show that the other party falls within one of the enumerated grounds. [ 94 ] Ms. McCarthy has failed to pay the costs award arising from the contested hearing in March 2020, and I find Mr. Pruneau would have “undue difficulty realizing on a judgement for costs” not only due to Ms. McCarthy’s “lack of means” as I find she has not made sufficient effort to obtain full-time employment and she remains underemployed by choice. Ms.

McCarthy’s past allegations (criminal court) or concerns (family) have not been proven previously and it is unfair for Mr. Pruneau to have to continue to pay legal fees to respond to Ms. McCarthy’s request to revisit the issue of custody and primary care without security for costs. Security for costs is authorized pursuant to section 40(8) of the Parenting and Support Act . [ 95 ] Justice Pazaratz continues at paragraph 40 of Izyuk supra: ... b. If the onus is met, the court has discretion to grant or refuse an order for security. c.

If the court orders security, it has wide discretion as to the quantum and means of payment of the order. Clark v Clark 2014 ONCA 175 d. The order must be “just” and be based on one or more of the factors listed in subrule 24(13). Hodgins v Buddhu [2013] O.J. No. 1261 (OCJ) . [ 41 ] A common theme in the case law suggests security for costs in custody and access cases should only be ordered in exceptional circumstances. Kaiser v. Wein 2014 ONSC 752 ; Daviau v. Husid 2014 ONSC 3188 ; Parham v. Jiang 2014 ONSC 3293 . The traditional rationale: a. The best interests of children are always paramount.

b. Courts should not allow the outcome in children’s lives to be determined by a party’s financial resources, or inability to post securityfor costs. c. Despite any deficiency or non-compliance by a parent, courts are better able to address sensitive children’s issues if both partiesparticipate in the process and provide valuable information. Kovachis v Kovachis 2013 ONCA 663; Purcaru v Purcaru 2010 ONCA 92. d.

These concerns may be particularly applicable where custody or access are being determined in the first instance (as opposedto a motion to change, where the issues may be narrower, and where the moving party has the threshold onus to establish amaterial change in circumstances). My emphasis. [42] But high conflict parenting disputes are often the most time consuming, financially draining, and emotionally damaging cases wedeal with in family court.

Quite often the best gift we can give children is a break from the family siege mentality and perpetual stokingof conflict which accompanies endless litigation. [43]The suggestion that sometimes security for costs might actually be more appropriate in custody/access cases was discussed by QuinnJ. in Stefureak v.

Chambers 2005 CarswellOnt 1076: 18 It has been said that "only in the most exceptional circumstances [will] an order for security for costs be granted in respect of acustody application because the primary point in issue is the best interests of the child, and accordingly a parent should not be preventedfrom putting forth his views by means of an order for security for costs": see Logan v. Logan, 45 A.C.W.S. (3d) 275, 5 W.D.C.P. (2d)62, [1994] W.D.F.L. 393, [1993] O.J. No. 3275, 1993 CarswellOnt 3912 (Ont. Gen.

Div.) at paragraph [22], following Marcocchio v.Marcocchio, (ON SC), 32 O.R. (2d) 536, 1981 CarswellOnt 1222 (Ont. H.C.) at page 540 [O.R.]. Again, I find myselfin disagreement. Where it is shown that the position being espoused by a party "is a waste of time or a nuisance and that the party doesnot have enough assets in Ontario to pay costs," it matters not that custody is the issue. And, if this means that the proceeding,effectively, is ended or stayed, so be it.

I can think of no better case to stop in its tracks than an unmeritorious claim for custody. [44]In Perron v Perron 2011 ONCA 776 a father attempting to appeal a sole custody order in favour of the mother was ordered to post$15,000.00 security for costs: a. The trial judge had criticized the father’s conduct at trial, unnecessarily increasing its length and cost. b. Shortly after $56,000.00 costs were ordered against the father he went bankrupt, eliminating a property equalization award and also aportion of the costs order. c.

While the father’s appeal was not “frivolous or vexatious”, the low prospect of success was a relevant factor. d. The father would not be incurring legal fees in relation to the appeal as a result of pro bono services of counsel. e. It would be unfair to expose the custodial mother to the risk that the father would not satisfy the costs of an unsuccessful appeal. [45]Similarly in Stetler v Stetler 2013 ONCA 508 a father attempting to appeal a final custody order was required to post $8,500.00security for costs because: a. There was good reason to believe the appeal had no merit. b.

The father’s “litigation posture has been and continues to be recalcitrant.” c. There were significant arrears of child support. d. There was good reason to believe the father had insufficient assets to pay a costs order which would inevitably arise when his claimwas dismissed. [46] Baker v Rego 2013 ONSC 3309 is another recent case in which a mother attempted to appeal a final custody order. TheDivisional Court ordered that she post $10,000.00 security for costs within 30 days, failing which her appeal would be dismissed. Thecourt’s analysis was relevant to the facts herein:

a. The mother was impecunious and on welfare. b. While the court found that the appeal had little prospect of success, that was not sufficient in itself to allow a finding that the appeal was “frivolous and vexatious”. c. There must be something more than a low prospect of success in order to justify security for costs. d. There must be good reason based on the overall facts surrounding the litigation, or from the conduct of the appellant, which would lead to a conclusion that the claim is without merit and brought for some other purpose. e.

At paragraph 30: “It is unfair that (the mother) can continue to litigate this matter without any fear of negative financial consequences in the event of a dismissal…” [ 47 ] Similarly, a mother’s previous conduct in custody proceedings (increasing the father’s legal expenses), combined with her failure to pay child support or previous costs orders resulted in an order for security for costs in Bragg v Bruyere (supra). [ 48 ] In Schumilas v Porter-Shumilas 2009 CarswellOnt 6166 (SCJ) a father was ordered to post $10,000.00 security for costs in relation to a claim for joint custody which clearly had no merit – but if he abandoned that claim and only pursued his more realistic claim for expanded access, no security would be required. [ 96 ] For me to reconsider my decision to grant Mr.

Pruneau decision-making authority and my decision to place the child primarily with Mr. Pruneau, I would need credible and trustworthy evidence from a third party who has no interest in this matter. For instance, clear and convincing evidence from the child’s school or another independent third party about how the child’s behaviour or his emotional health or physical health are being negatively impacted due to the current custody and parenting arrangement. In other words, evidence of a material change of circumstances related to those issues. [ 97 ] Given my previous findings, Ms.

McCarthy will need to file evidence as noted in paragraph 96 and post security for costs of $3,000.00 before an interim motion hearing on the issue of material change will be heard. Until the evidence is filed and security for costs paid, I am dismissing her claim on a without prejudice basis. [ 98 ] If Ms. McCarthy does not file a further motion before November 15, 2023, thereafter Ms. McCarthy may initiate a request that the requirement for security for costs be reviewed. The onus shall be on Ms. McCarthy to satisfy the court that the order for security for costs should be changed.

In support of such a request, Ms. McCarthy shall file evidence as noted at paragraph 96 of this decision and provide a daily

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