McCluskey v Tobin, 2023 NSSC 404

SUPREME COURT OF Nova Scotia Citation: McCluskey v Tobin , 2023 NSSC 404 Date: 20231214 Docket: SFH MCA No. 101736 Registry: Halifax Between: Andrew McCluskey Applicant v.

Claire Tobin (Polomark) Respondent Judge: The Honourable Justice Cindy G Cormier Heard: February 21, 2023, March 30, 2023, April 14, 2023, May 3, 2023, and June 6, 2023 Final Written Submissions: Applicant – August 11, 2023 Respondent – November 24, 2023 Counsel: Andrew McCluskey, self-represented Peter Katsihtis, for the Respondent By the Court: [ 1 ] The child, born in September 2011, was 11 years old when the matter was heard between February 2022 and June 2022. She turned 12 in September 2023. In May 2022, Mr.

McCluskey (the father) filed an application to address alleged denial of parenting time beginning in February 2022. [ 2 ] In June 2022, Ms. Polomark – formerly Ms. Tobin – (the mother) had left Nova Scotia with the child. The mother travelled with the child to British Columbia and in early August 2022, the mother requested permission to relocate to British Columbia with the child. The father opposed the relocation request. Agreements [ 3 ] The parties have agreed that if the child is permitted to relocate, the relocation would qualify as a change of circumstances.

They have also agreed that if the child is NOT permitted to relocate, there has also been a change of circumstances. [ 4 ] The issue of arrears was addressed by agreement of the parties on April 21, 2021, and their consent agreement is reflected at paragraph 4 of the Order issued March 15, 2022 and remains in force. This issue will not be revisited in this decision. Issues 1. Should the child be permitted to relocate to British Columbia with the mother? a. What, if any, legislative presumptions apply to the mother’s relocation application? b. What, if any, credibility findings are appropriate? c.

Has the mother’s conduct resulted in the child’s alienation from the father? d. What weight, if any, should be accorded to the testimony of each of the two experts? 2. What is the appropriate parenting arrangement for the non-residential parent? How will travel expenses be apportioned? 3. What is the appropriate custodial arrangement between the parents?

4. What amount of child support should be paid by the non-residential parent? The father’s position [ 5 ] On May 19, 2022, Mr. McCluskey (the father) filed a Notice of Application pursuant to

section 37 of the Parenting and Support Act. Arguing that the denial of parenting time was sufficient to prove a change of circumstances, he sought a variation of parenting and child support: primary care of the child; to deal with contact time or interaction with the mother; and a temporary suspension of the table amount of child support paid by him to the mother for the child. [ 6 ] The father alleged that since February 2022, the mother had denied him his court ordered parenting time with the child, which included Fridays to Mondays two out of three weekends and every Wednesday night.

He claimed his total amount of parenting time was approximately 35% or more of the total parenting time with the child. [ 7 ] On or about June 23, 2022 , the father served the mother with his Notice of Application. It was also around that time that the father suggested to the mother that they retain a private counselor, doing so after the school had offered the child counseling services and he argued the mother had failed to arrange for the child to participate in any counseling. [ 8 ] The mother suggested she contacted the school, but she believed the father would arrange the child’s counseling.

According to the parties’ court order, the mother had the authority and responsibility to make health care arrangements for the child. [ 9 ] There is no dispute that the mother left the jurisdiction with the child on or about June 28, 2022. The father has stated the mother later advised him she had arrived in British Columbia with the child on July 4, 2022 . I find the mother left the jurisdiction without adequate notice to the father and without his consent or a court order.

The mother interfered with the father’s anticipated block summer parenting time with the child which he had anticipated would be scheduled pursuant to the current court order. [ 10 ] On December 13, 2022, the father amended his Application to include requests to address: decision making responsibility and custody; to prevent relocation of the child which the father also confirmed in a letter to the court dated April 11, 2023; and the father requested: “the Court address the matters of contempt regarding denial of parenting time, phone contact time, failure to communicate on changing the child’s school to home schooling; and leaving the province with the child without consent.” [ 11 ] The father has asked the Court to place the child in his primary care and to grant the mother supervised parenting time with the child at Veith House, either in-person or virtual with a review scheduled in six months.

The father also requested the child be ordered to return to her former elementary school. [ 12 ] In his submissions filed August 11, 2022 , the father proposed the following: (

a) I will have primary care of the child and all decision-making responsibility; (

b) The mother is to initially have supervised phone, Face Time or in person parenting time with the child once or twice a week for up to a total of two hours initially until the child has seen a properly qualified counselor and it is determined it is in the child’s best interests to increase parenting time and remove supervision. (

c) The child will receive counseling as previously ordered, paid by the mother. (

d) The mother shall enroll in parenting classes and provide proof to the court of completion before supervision can be removed providing the child’s counselor recommends it. (

e) If the mother remains in British Columbia, after a period of six months and following counseling for the child and a period of supervised visits for the mother, the child will visit her mother every Christmas, March break and for a four week block of parenting time in the summer that is from the start of the last week of July to the end of the third week of August and one additional week of the mother choosing in October each year provided that she ensures the child keeps up with her daily schooling requirements during that week. (

f) Non-supervised parenting time will commence only after the mother has taken court ordered parenting classes and received approval from the child’s counselor. (

g) If the mother chooses to return to Nova Scotia additional time will be provided with the guidance of the child’s counselor. Ideally working toward an alternating weekly schedule. (

h) The child’s dog […] should remain with the child and travel with her between homes. I have made provision to welcome [the child’s dog] […] into our home while the child is here, and we will tend to his veterinary expenses when he is with us. (

i) The child would return to public [elementary] school in Nova Scotia […]. (

j) The order will need to have strict enforcement clauses so that I will be able to ensure the order can be enforced by police if the mother does not return the child. (

k) As I will have primary care and control of the child her mother will have to start paying child support. (

l) Flights for the child or her mother for them to see each other will have to be paid for by the mother as she has chosen to leave Nova Scotia. [ 13 ] In addition, the father has asked for the following:

(

a) The court proceed with contempt proceedings against the mother for failing to return the child to Nova Scotia. If found guilty the outcome (sentencing) to be placed as suspended sentence until the child reaches the age of 18 unless the mother breaches the court order. On said breach all applicable penalties for contempt be enforced immediately. (

b) Upon a decision that the child is returned to Nova Scotia and placed in my care, that the mother have three calendar days to comply. (

c) The mother be fined $1000 per day for every day she fails to comply. (

d) After five days of non-compliance, the mother be formally charged with child abduction under criminal code 282. (

e) After five more days of non-compliance police, child protection services and any appropriate authority be required to enforce our court order and intervene. The mother’s position: [ 14 ] At one point in her materials, the mother claimed she left the jurisdiction with the child on or about June 28, 2022, and she did not tell the father as she feared he would prevent her from leaving. [ 15 ] The father claimed that on or about August 3, 2022 , he received a letter from the mother indicating she wished to relocate with the child to British Columbia before school started.

The father stated that the mother provided him with a mailing address he believed was her parent’s address. I accept the father’s evidence. [ 16 ] The mother has requested the following: (

a) Primary care of the child. (

b) Permission to relocate to British Columbia, the Vancouver area with the child; (

c) Possession of the child’s passport; (

d) An Order specifying the child permanently resides in British Columbia, along with a specified period of access with her father in Nova Scotia; (

e) Continued supervised virtual parenting for the father and child through Veith House; [ 17 ] The following requests were made by the mother – however when the mother was cross-examined after she heard expert testimony, the mother agreed there was no need for ongoing supervision of the father’s parenting time or a “fail safe” alternate residence for the child to go to if she felt unsafe: (

a) The father’s in-person parenting time with the child would be in British Columbia, supervised by Dr. MD. The mother offered to provide accommodations for the father while he was visiting in British Columbia; (

b) In person supervised visits and counseling take place with an agreed upon counselor present; (

c) Upon the child returning to Nova Scotia to allow in person parenting time for the father, KM be the child’s designated / alternate caregiver while the child is in Nova Scotia [after hearing Dr. MD’s testimony the mother agreed this provision was no longer necessary]; (

d) The child be immediately transitioned to the care of her half brother M or to KM in Nova Scotia or an individual identified by the mother in Nova Scotia, if at any point the child no longer chooses to reside with the father while “visiting” Nova Scotia- [after hearing Dr. MD’s testimony the mother agreed this provision was no longer necessary]; and (

e) The child be assured access to the services of a staff person at Veith House if she experiences any fear or concerns (presumably in relation to her virtual contact with her father). (

f) An assessment be completed prior to finalizing any on-going parenting arrangements for the child and father, and in particular the child “must feel safe and reasonably accepting of fulfilling the visitation schedule”; (

g) The child must be permitted to contact her mother with the child’s cellular telephone at any time. [ 18 ] Also prior to hearing expert evidence, the mother suggested the following ongoing parenting arrangements after reunification between the father and child: (

a) Weekly telephone calls, approximately once per week with the child’s father as determined by the child; (

b) March break or alternating Christmas: Christmas vacation starting 2023; or March break visitation 2024. (

c) Four weeks in the summer: scheduled to start approximately in the first week of July for four weeks. With the mother responsible for “flight booking logistics” and an “equitable arrangement for sharing costs for the child to commute” back and forth between Vancouver and Halifax. [ 19 ] On November 24, 2023, the mother’s legal counsel filed a brief on the mother’s behalf confirming the mother was seeking to retain primary care of the child and to be permitted to relocate to British Columbia, with “access” for the father “including by telephone and social media.” The mother’s final submissions state:

The mother has put forward a reconnection plan between the child and her father to be facilitated by Dr. MD and would commence with the court’s decision, although the mother was prepared to start this sooner. Later in my decision, I include excerpts from the mother’s and the expert’s testimony. Early court intervention [ 20 ] On August 11, 2022, the mother did not participate in the scheduled court conference, but she had legal counsel appear on her behalf.

The mother’s legal counsel advised the Court that the mother was in British Columbia with the child and the mother wished to relocate to British Columbia with the child.

The mother took the position that both she and the child were afraid of the father and the child had been refusing to attend for the father’s parenting time. [ 21 ] On August 11, 2022, I directed the mother’s legal counsel to advise the mother that I had directed her to return the child to Nova Scotia forthwith and that on a without prejudice basis, the father agreed to the mother’s request that he attend counseling with the child. [ 22 ] I confirmed that the Variation Order granted September 20, 2018 and issued September 24, 2018, as confirmed by Order granted April 21, 2021 and issued March 22, 2022, continued to be in force and that the order should be followed until an interim hearing could be held or until further Order of the Court.

The order allowed for the father to care for the child if the mother was unavailable. [ 23 ] In her affidavit sworn on September 12, 2022, the mother stated in part: Returning to reside to (sic) British Columbia became more favourable during my visit given that I had previously been let go from me job in Nova Scotia as a Campus Administrator with Nova Scotia SPCA and have not been able to obtain employment since my last day of work on September 15, 2021.

I have recently secured a position with Edge Decking and Railing commencing in September 2022I and have the support of extended family in British Columbia to assist in the transition. … I also briefly discussed with MD the current situation as part of an explanation as to if this process could be done by video or Skype, so he is aware of the current circumstances… September 21, 2022 On September 21, 2022, the parties confirmed the child had not returned to the jurisdiction per my previous direction given on August 11, 2022 to the mother through the mother’s legal counsel.

I granted an order requiring the child to return to the jurisdiction by October 1, 2022 . [ 24 ] In addition, on a without prejudice basis, I ordered the parties to attend counseling with Michael Donaldson (herein referred to as MD) the counselor they had suggested, as they stated he had indicated he was available to meet with their family.

I directed the mother to appear in person at an interim hearing scheduled for October 19, 2022. [ 25 ] After being directed to return the child to the jurisdiction on August 11, 2022, and then ordered to do so on September 21, 2022, the mother failed to return the child to the jurisdiction.

The mother has claimed she did not understand that the court order I granted on September 21, 2022 was effective as of that date, suggesting she believed the order would only be in force once it was issued. [ 26 ] I do not accept that the mother misunderstood the court’s directions given on August 11, 2022 or that she misunderstood that the order granted on September 21, 2022 was effective as of the date it was granted. She was aware the order granted on September 21, 2022 specified the child must be returned to Halifax Nova Scotia by October 1, 2022 .

The father represented himself and the mother’s lawyer did not file the order with the court to be issued until November 3, 2022. [ 27 ] The mother failed to return the child to the jurisdiction. Meanwhile the mother retained Dr. Madeleine De Little (herein referred to as Dr. MD) to meet with the child on October 6, 2022. Dr. MD completed what she has described as a “View of the Child Report” dated October 10, 2022.

The mother filed the report with the Court several days in advance of the interim hearing. [ 28 ] Two days in advance of the Interim Hearing scheduled October 19, 2022, the mother’s legal counsel filed a motion to be removed as solicitor of record for the mother. Interim Hearing October 19, 2022 [ 29 ] On October 19, 2022, I denied the mother’s legal counsel’s motion to withdraw as solicitor of record for the mother. The mother failed to appear in-person at the interim hearing as she had been directed to do, but she did participate virtually.

The mother confirmed she had NOT returned the child to the jurisdiction. [ 30 ] According to Plumley v. Plumley , 1999 Can 11 13990 (OntSC), at an interim hearing, the burden is on the relocating parent to prove it is in the child’s best interests to relocate. At the interim stage, when relocation is requested, courts have often considered factors such as whether: there is a genuine issue for trial; are there compelling interests to allow the relocation; would there be a disruption caused by the relocation; are material facts in dispute; and whether the proposed move is long distance.

After considering the evidence available at that time, I granted another order requiring the child to return to Halifax Nova Scotia. [ 31 ] On a without prejudice basis and with the consent of the father, I included the following orders in the second interim order requiring the child’s return to the jurisdiction:

1. Upon the child’s return to the jurisdiction the father would not have any contact with the child except as arranged throughVeith House, or an alternate supervised access program acceptable to the parties, or for counseling services; and 2. The father would not attend and / or he would not be in the vicinity of the child’s school or the mother’s home.

At no point did I make any findings of fact to suggest I accepted that the mother or the child had presented any reliable evidence that theyhad a valid reason to be afraid of the father. [32] Based on representations from both parties, the parties’ consent, and my belief that MD had agreed to do so, I also ordered: 1. That the father and the child attend counselling sessions with MD.

I do not accept there was any room for the mother to misunderstand that the sessions with MD, the child, and the father were alwaysintended to be in person, upon the return of the child to the jurisdiction of Halifax, Nova Scotia. [33] The order I granted specifying the child must return to the jurisdiction did allow the child to continue to live with her mother ifher mother returned to live in the jurisdiction with her.

In addition, the order allowed the mother to make alternate interim arrangementsfor the child to live with someone of her choosing upon the child’s return to Nova Scotia to attend counseling and in-person contact withher father. [34] Although the child’s status quo parenting arrangement was court ordered and in place for years, prior to the child beginning torefuse to attend for her parenting time with the father in or around February 2022, on a without prejudice basis, and I would say out ofdesperation the father consented to have restrictions placed on his parenting time in the hopes the mother would arrange for the child’sreturn.

The mother did not. [35] As stated by Pazaratz J. in F.K. v. A. K., 2020 ONSC 3726, 43 R.F.L. (8th) 411, at para. 52, and accepted by the parties: ...courts must exercise caution before changing an existing arrangement that children have become used to, particularly where the changeis sought on an interim motion. There is ample authority for this requirement. To refer to but one example, in Grant v. Turgeon (2000), (ON SC), 5 R.F.L. (5th) 326 (Ont.

S.C.), at para. 15, MacKinnon J. stated that “generally, the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of thenecessity of a change to meet the children’s best interests. That is so whether the existing arrangement is de facto or de jure.” As wasstated by Benotto J., as she then was, in Davis v. Nusca, (ON SCDC), [2003] O.J. No. 3692 (Div. Ct.), at para. 8, “thebasic principle of maintaining the status quo until trial … is extraordinarily important in family law cases.” [27] Pazaratz J. went on to say at para. 52 of F.K. v.

A.K. that the need to exercise caution is heightened where the existing parentalarrangement has been determined by a court order, and that the level of required caution is further heightened if the court is beingasked to change a final parenting order on a temporary basis. While the court has the authority to grant a temporary variation of a finalorder in the appropriate circumstances, the evidentiary basis to grant such a temporary variation must be compelling.

The onus ison the party seeking a temporary variation to establish that in the current circumstances the existing order results in anuntenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being, and that the proposed newarrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.

In this case, the mother did not establish any compelling reasons for the Court to change the status quo at the interim hearing. [36] The child had always lived with her mother primarily and the father had always been substantially involved (as found by J.MacDonald in or around 2017). The father had care of the child approximately 35% of the time until February 2022 when things beganchanging between the father and the child.

The father attributed the change to the mother’s interference and to her ultimate plan to moveto British Columbia. [37] I determined the matter would require a full hearing on the merits and that the child should be returned to the jurisdictionpending the outcome. For many different reasons, I decline to accept an argument suggesting that after leaving the province withoutpermission and by refusing to return the child as ordered, the mother has established a new “status quo” in British Columbia and thechild should be permitted to remain in British Columbia.

Contempt of court, file OTH-127771 [38] On October 19, 2022, pursuant to Civil Procedure Rule 89.03, I cited the mother for contempt of court. I read the mother herrelated rights and warnings on the court record. Because a contempt hearing is a quasi-criminal proceeding, the issue must be treatedwith the seriousness that comes with such a proceeding “where the sanctions are a potential period of incarceration and a loss of access tochildren,” Soper v. Gaudet, 2011 NSCA 11. [39] I scheduled a separate pre-trial conference on November 1, 2022, and a contempt hearing in early November 2022.

I directedthe mother to appear in person at both appearances. November 1, 2022 [40] On November 1, 2022, the mother failed to appear in person as directed by me. The mother’s legal counsel, whose motion tobe removed as solicitor of record had been denied on October 19, 2022, appeared on the mother’s behalf. [41] I was advised that the child had not been returned to the jurisdiction as ordered following the interim hearing held on October19, 2022. The issue of the father registering the Orders granted on September 21, 2022, and on October 19, 2022, in British Columbia,was discussed.

[ 42 ] The practicalities of the father arranging for the child’s return to Nova Scotia was a live issue for the father in this case as it was in Godin v. Godin , 2013 NSSC 316 . Subject to the condition that the mother’s legal counsel draft the orders arising from previous court appearances on September 21, 2022, and October 19, 2022, I granted the mother’s legal counsel’s motion to withdraw as solicitor of record for the mother. [ 43 ] The mother once again failed to appear in person for the contempt hearing.

The mother requested an adjournment to retain new counsel to properly review the allegations against her. The contempt issue was adjourned to February 21, 2023. Christmas 2022 [ 44 ] In April 2023, Dr. MD, testified. Dr. MD stated that she understood the child would be going to Nova Scotia to visit her father for the Christmas holidays in 2022. [ 45 ] However, on January 6, 2023, Dr. MD wrote a letter suggesting there should be a formal agreement guaranteeing the child would be returned to the mother in British Columbia before the child visited Nova Scotia. It appears Dr.

MD was suggesting the Court grant the mother her request for interim relocation with the child to British Columbia, and that absent the “formal agreement guaranteeing” the child would return to mom in British Columbia, the child would not be visiting her father in Nova Scotia. [ 46 ] At paragraph 48 of R . v.

Bingley 2017 SCC 12 , the Court commented about expert evidence in part as follows: [48] Concerns about the reliability of the underlying science are particularly heightened when, as here, the scientific foundation is not self-evident and the proposed expert evidence goes to key elements of the crime before the court. Although there is no longer an absolute bar on opinions on the ultimate issue before the trier of fact, the closer the expert evidence approaches the ultimate issue, the greater the need for special scrutiny: Mohan, at p. 25; J.-L.J., at para 37. Later in my decision I review what Dr.

MD stated was available to her when she wrote her report dated October 10, 2022, and her letter dated January 6, 2023 February 21, 2023, adjournment [ 47 ] On February 21, 2023, the mother failed to appear in person at the commencement of the final hearing on the merits. The mother appeared virtually with her proposed new legal counsel and requested an adjournment.

After some lengthy discussions with her legal counsel, the mother advised the Court she would return the child to the province of Nova Scotia as of March 13, 2023 . [ 48 ] Relying on the mother’s promise to return the child to the jurisdiction, the Court granted an adjournment of the hearing to March 30, 2023. However, the mother failed to return the child to the jurisdiction as promised on the court record.

I noted that in the mother’s affidavit sworn March 15, 2023, she stated in part that the child was “scheduled to go snowboarding the weekend of 11 March 2023.” [ 49 ] The trial continued on March 30, 2023; April 14, 2023; May 3, 2023; and concluded on June 6, 2023 . The father’s written submissions were filed in June and August 2023. D ue to the mother’s new lawyers’ valid health concerns, the mother’s final written submissions were not filed until November 2023 .

Parties’ circumstances [ 50 ] In the spring of 2023, the mother reported “they” (I understood to be the mother and the child), were living in Pitt Meadows, “in the lower mainland, in the Vancouver area.” They were residing about forty minutes from Vancouver. [ 51 ] The mother stated the child was in grade six. In her affidavit sworn in March 2023, the mother indicated she was anticipating enrolling the child in arts school and the “next intake” was in grade eight. Evidence suggests the child was initially homeschooled and it is not entirely clear when or if the child began attending school on a full-time basis.

No school records were filed with the Court. [ 52 ] The counselor, Dr. MD, met with the child and she understood from the child and / or mother that initially the child was at home and going to school a couple of days per week and then the child had transitioned to being in school full time. Dr.

MD stated that she understood the child was “slowly developing friends… friendships.” The child’s circumstances in British Columbia [ 53 ] Evidence from the mother’s witnesses suggests that during the summer of 2022, the mother, the child, and the child’s half brother M spent some time on Savary Island in British Columbia with the mother’s long-term friend.

The mother did not provide any sort of timeline indicating where the child had resided and when. [ 54 ] In her affidavit sworn in March 2023, the mother suggested the child was “looking forward to my son M (the child’s half brother) also joining us in British Columbia in the near future,” suggesting that the child’s half-brother, who had been in British Columbia in the summer of 2022, was not residing in British Columbia with the mother and the child. [ 55 ] At one point in her evidence, the mother stated she left Nova Scotia without notifying the father because she was afraid the father would stop her from leaving the province with the child.

At another point in her evidence, the mother claimed she travelled to British Columbia to visit family and friends, then while she was in British Columbia she recognized the various benefits, claiming that: the child’s emotional health improved; she appreciated the family support available; she had found employment; she was in a new relationship; and then she decided to stay in British Columbia with the child. [ 56 ] At another point in her evidence, the mother suggested she needed to be in British Columbia to care for her elderly mother and father.

Her parents did not testify and there is no supporting evidence regarding her claim.

[ 57 ] Further, the mother suggested she needed to remain as a support for her brother, MP, whose wife had passed away. MP swore an affidavit, and he did not suggest he needed the mother as a support; however, he acknowledged he enjoyed the extended time he had been able to spend with the mother and child. [ 58 ] The father believed the mother moved to British Columbia in part to alienate him from the child.

He believed that initially the child’s older half brother, M, travelled with them and that they changed addresses several times. [ 59 ] The mother acknowledged she did not want the father to have her address when she travelled to British Columbia with the child. She stated she was concerned that the father would contact police and ask them to complete wellness checks on the child. [ 60 ] I find the mother provided the father very little information about the child. When cross-examined, the mother suggested she did not know the child’s cellular telephone number or the child’s email address.

Upon review of the Veith House reports, I noted that on one occasion the child told the father she did not know the name of her school, only how to get to her school. [ 61 ] It was only when the mother’s legal counsel was cross-examining the father that the mother introduced information to the father about the various programs the mother claimed the child was enrolled in in British Columbia, including tumble gymnastics; extreme cheer and dance; musical lessons; and a program at Jem’s Athletics. [ 62 ] The father reported that he continued to live with his spouse, KL, who did not testify at trial.

KL has four children from a previous relationship V (22), L (21), C (16), and K (14) and the two youngest of KL’s children, C and K, spend time at their home every other week. He stated that V and L’s time at their home was becoming “more random” given their ages and work schedules. Witnesses [ 63 ] Various objections to affidavit evidence were reviewed prior to each lay witness who was present for cross-examination.

These were mostly references by the father and / or the mother, but also references by other lay witnesses and comments allegedly made by the child to them were mostly excluded from the evidence due to concerns related to the reliability of those statements in the context of the ongoing conflict between the parties. The mother’s lay witnesses’ [ 64 ] The father waived cross examination on a number of the mother’s witnesses including: LSB (lifelong friend) and her daughter, DS; JS (intimate partner); MP (mother’s brother), and JP (mother’s brother).

Their affidavit evidence was considered, but I offer the following comments with respect to weight. [ 65 ] LSB’s and DS’s factual evidence about their contact and ongoing friendship with the mother and the child was considered; however, I have attributed no weight to LSB’s observations regarding the mother’s and the child’s “demeanors” when they arrived in British Columbia or her impressions about the father’s presentation when she reached out to him about his contact with the child.

I have also attributed no weight to DS’s observations regarding the child not speaking with DS about her father. [ 66 ] I have considered JS’s affidavit, sworn in March 2023, wherein he indicated he had been in a relationship with the mother since October 2022 and he had been spending time with the child most weekends and two to three days during the week.

At the conclusion of the trial in June 2023, it was unclear to me what the nature of the relationship between JS and the mother was. [ 67 ] I have considered MP’s affidavit suggesting he has been grateful for the opportunity to see more of his sister and the child and that he sees the child every week or two. I accept that because the mother has failed to return the child to Nova Scotia as directed and as ordered by the Court, he has enjoyed spending more time with the child.

I also accept that he would like to include his sister and the child in many future family events, including a family trip to Hawaii. [ 68 ] I have considered JP’s affidavit. I accept that because the mother has taken the child to British Columbia and the mother has failed to return the child to Nova Scotia as ordered by the Court, that he and his family members have had the opportunity to see the child every week. I note he would also like to include the child on a family trip to Hawaii.

It is unclear to me whether either of the mother’s brothers are aware the mother was ordered to return the child to Nova Scotia. Expert witnesses Michael S. Donaldson MD, M.A. RCT, CCC – expert witness [ 69 ] Michael Donaldson (herein referred to as MD) is a registered counseling therapist with a Master of Arts degree in counseling. He has been working in the field as a therapist since 1995 and as a supervisor of counseling services in various locations since 2015. He has been in the field for twenty-five years. MD offers individual, couple, and family therapy.

MD indicated he had completed Voice of the Child Reports; Parental Capacity Assessments; and general Custody and Access Assessments. [ 70 ] With the consent of the parties, MD was qualified as an expert witness. He was qualified to give evidence in the following areas: domestic violence, childhood sexual abuse, family dynamics, family reunifications, and family mediation. [ 71 ] With respect to this matter, MD advised he had completed a Preliminary Report dated December 20, 2022. He clarified he did not have the opportunity to follow through with in person counseling with the child and the father.

He advised that because he had not been able to meet with or speak with the child in person, his concerns were presented to the Court “without prejudice.” [ 72 ] MD advised that in advance of finalizing his report, he had met with or spoken by telephone with the following persons: the mother for one hour; the father for three in person interviews; KT, the father of the child’s two older half siblings, G and M; and the father’s mother, JC, by telephone. MD confirmed he was still prepared to provide counseling for the child and the father to reunite, “were the child to return to Nova Scotia.”

[ 73 ] MD confirmed he is not prepared to provide virtual services to the child. He stated he had never advised either party he was prepared to provide virtual counseling services to the child. I accept his testimony. [ 74 ] MD was asked about the comment he had made about the child’s stating to her therapist, “ I wish he would just drop everything.” He confirmed he had opined that the statement did not seem to be a statement “typical of a ten-year-old child (the Court recognizes the child turned 11 just weeks before she made the comment to Dr.

MD) who had previously enjoyed a reportedly close relationship with her father.” [ 75 ] MD also confirmed his opinion that the characterization of the father as a dangerous person and a risk to the child without supervision, “did not resonate with the information gathered.” MD went on to indicate that he did not see the father’s efforts to maintain contact with the child after her refusal to attend his parenting time, as problematic.

He opined that if there was a disruption in the relationship between the father and the child, it was unlikely it was a consequence of the relationship between the father and the child. [ 76 ] With respect to reunification, he stated in part: That there is very little available information regarding the impact of a forced removal of a child from their primary residence has on children. KT related that in his situation the children were very confused at first however they quickly adjusted to being back in Halifax and the familiarity of extended family, friends and school.

There are a number of factors that would need to be taken into consideration with the two primary factors being the child’s attachment / relationship with her father prior to his being denied parenting time with the child and the mother’s willingness to positively facilitate the child’s return . (my emphasis) MD did not have the opportunity to meet with the child as the mother did not return the child to Halifax Nova Scotia as ordered. As a result, in person counseling with MD, the child, and the father did not take place.

In addition, in person contact through Veith House did not take place. [ 77 ] I found MD’s testimony straightforward, credible, and consistent with the evidence as a whole. Dr. Madeleine De Little PhD (teaching)., RTC., MTC., RCS., CCC [ 78 ] When asked about her training and experience Dr. Madeleine De Little (herein referred to as Dr. MD) indicated she had over 30 years experience. She qualified that: …I’ve been working with children since 1972, I think, as a school teacher both in England and here. Particularly with special needs children and emotionally different children.

And then, for 34 years, I’ve been a counselor here in Vancouver and in (inaudible), in Columbia. And I’ve kind of, my formal education is a little convoluted, but I’ve got bachelors and then I did a masters, but its not in counseling, it’s in social policy . Then I went to school and got a diploma in counseling and then I got, I went and wrote a book called When Words Can’t Reach which is all about a way of working with children that is primarily to explore trauma and to transform trauma.

And so, with that, with the book and then I went back to school to Simon Fraser University to get a PhD in teaching in arts education and adult education, teaching this way of working around the world.

So, and I teach therapists and psychiatrists in about six countries, including China and Thailand, and I teach here and in England as well, And I supervise therapists all over the world. … I’m semi-retired now, but up until this year, I’ve been working primarily with children and families doing child counseling, family counseling, and all gamut, all, all aspects of children’s issues, from autism to, to anxiety, depression, obsessive compulsive disorders, all sorts, the whole gamut, the whole gamut of symptoms that you would find in mental disorders and family dynamics. (my emphasis throughout). [ 79 ] In her report dated October 10, 2022, Dr.

MD stated she had been working as a therapist since 1989. She had worked in schools and in private practice. Dr. MD described herself as “a child and adult therapist focusing on complex trauma and early attachment losses.” Dr. MD indicated the focus of her work was to “transform the early defences / behaviours that we build up to keep safe but that have become problematic e.g., road rage, alcohol use, defiant behaviour, select mutism etc.” [ 80 ] Dr. MD stated she had previously completed approximately six “View of the Child” reports (Dr.

MD suggested was comparable to “Voice of the Child” reports in Nova Scotia). When asked if she had previously been qualified to give expert evidence, she stated she believed she had been qualified as an expert to give evidence approximately three times on custody and access related issues and the last time was in 2006. [ 81 ] Dr. MD stated that her approach to completing a View of the Child report is to: Listen to their opinions.

I want to listen to, to listen to their yearnings for whatever it is that they want and to listen with respect and gentleness and kindness and not judge, not judge other parents , but just purely to ascertain exactly what they’re feeling, what they want, how they want to, where they want to be in terms of parenting, which parent they want to be with …(my emphasis) Dr.

MD also stated that when she completed the View of the Child Report with the child who is the subject of this proceeding, she employed “the latest neuroscientific research in my practice by working in metaphors using figurines in a sand tray.” [ 82 ] Dr. MD was qualified as an expert in relation to custody and access; on View of the Child reports; and in providing counseling services.

[ 83 ] Dr. MD initially indicated she became involved with the child in late October 2023, but later clarified she met with the child on October 6, 2022 for a two-hour session and used the “sand tray” method with the child. Then on October 7, 2022, she completed the report which is dated October 10, 2022. [ 84 ] Dr. MD stated she had met with the child without first discussing any of the issues with either parent. In comparison, in Nova Scotia each parent is given an opportunity to identify issues in writing and to put their plan in writing for the assessor to review.

In addition, ideally each parent has an opportunity to transport the child to one of the two appointments scheduled with the assessor who has been chosen to complete the Voice of the Child Report. [ 85 ] Dr. MD stated that she understood from the child that the “rupture in the relationship” between the child and the father occurred in December 2021 – when the father did not allow the child to travel with her mother to British Columbia to see the child’s maternal grandparents. [ 86 ] When Dr.

MD was asked about the child’s perception of her father refusing the child’s request for her to travel to British Columbia with her mother in December 2021 into January 2022, Dr. MD agreed it would be a bad idea for one parent (the mother) to plan vacation time (in British Columbia) when the child had an expectation she might accompany the mother, while at the same time knowing the other parent (the father) planned to have parenting time with the child in Nova Scotia. Dr.

MD suggested that ideally the parents would work together. [ 87 ] The mother on the other hand claimed she had never planned to take the child to British Columbia with her. Given the mother’s previous history of travel with the child to British Columbia, I find the mother could have and should have anticipated the child would want to travel to British Columbia with the mother.

I find the mother did suggest to the child that she could accompany her to British Columbia if her father agreed, and that the mother did anticipate that the father would not be keen on missing his holiday parenting time with the child, that he would say no, and that the child would be disappointed. [ 88 ] Even if the mother had no intention of taking the child, I find it is most likely that the child believed that if her father agreed then she would be able to go with her mother to British Columbia.

It is not a far stretch to expect the mother could anticipate the child would be disappointed she could not go with the mother to British Columbia if the father said no, which he did, and that the child would consider it to have been her father’s decision and not her mother’s. [ 89 ] According to Dr. MD, the child advised Dr. MD at the first session on October 6, 2022 that her mother going to British Columbia to visit her maternal grandparents without her “was the turning point for me.” The child stated: “ how could anyone do that to their daughter? ” Once again, the quote included in Dr.

MD’s report filed as evidence at the hearing on October 19, 2022, is not a statement I would expect of an 11-year-old child. (my emphasis) [ 90 ] Dr. MD stated that with respect to her father’s refusal to allow her to go with her mother to British Columbia in December 2021 / January 2022, the child told her: ...she refused to go and visit with her dad. She dreaded her access time with him and would avoid being around when he came to pick her up .

She describes how he would follow the school bus home or come into the school to get her and how she has run away from him and / or hidden in the school washrooms until he left. On another occasion the principal had to get involved when the dad’s partner came to pick her up and the child refused to get off the bus and go with her. The principal became involved for 30 minutes but did not make the child get off the bus and go with the dad’s partner. As the child recalled this incident, she started to cry with relief because of the support she had from the principal. I am uncertain why Dr.

MD concluded that when the child cried about the school incident that she was crying with relief? With respect to the child’s statement about what happened at the school, I prefer the evidence of the vice principal and the Principal which is discussed below. The sand method [ 91 ] In her report dated October 10, 2022, Dr. MD reviewed the use of the “sand method” during her first two-hour session with the child on October 6, 2022. She reported that the first animal the child identified was her dog.

The child then identified the mother as the adult horse because she is gentle, kind, and powerful; herself as the foal; her half brother M as a polar bear and then later identified another aspect of M as a turtle. [ 92 ] The child reportedly cried as she described her other half brother G as a “stubborn donkey” stating that she missed him (in or around 2015 G chose to live with KT instead of the mother), and in the opposite corner to the horse (her mother) she placed her father “the grizzly bear”. Stating “I feel like he gives me that look that I don’t like, it’s pretty scary.” [ 93 ] Dr.

MD stated that “of significance was the closeness of the foal to the adult horse and the distance between the foal and the grizzly bear.” Dr. MD indicated that when she asked the child to create a picture of how she wanted the family to be, the child “placed all the animals in one corner, leaving the grizzly bear (her father) in another.” It is unclear to me whether Dr. MD explored with the child about why she wanted her father placed at a distance from the others. [ 94 ] Could it be because he told her she could not travel with her mother to British Columbia during his parenting time over the holidays?

Could it be because she was uncomfortable with the notion of spending time with her father after refusing to attend for his parenting time? [ 95 ] Dr. MD opined that the “pictures speak to the physical and emotional distance that (the child) is currently feeling towards her father and her siblings.” The physical distance aspect is self explanatory as the father and half siblings were on the other side of the country; however, I wonder if Dr. MD explored whether the child’s emotional distance might be related to feelings of regret. [ 96 ] Dr.

MD noted that the child cried “over missing one of her brothers, and her friends but she did not cry for her father.” It is

unclear how big a factor Dr. MD believes the child’s age plays when considering her apparent attachment and / or concern about missing her siblings and her friends rather than a parent. Could this be a natural progression given the child’s age and her increasing ability to be away from her parents for longer periods? [ 97 ] In a further report dated January 6, 2023, Dr. MD indicated that her goal in November and December 2022, after writing the View of the Child Report dated October 10, 2022, was to “slowly reconnect the child with her father in a way that is safe and ultimately successful.” Dr.

MD explained that she began by speaking with the father on three occasions and then arranging a video call between the father and the child. [ 98 ] Dr. MD stated she had met with the child on November 9 th , 2022 for counseling, and on November 23, 2022 and December 16, 2022, she met with the child to facilitate virtual contact between the child and her dad; and on March 8, 2023, she met with the child for a counseling session. When Dr. MD spoke about her work with the child and with the father in November and December 2022, Dr. MD stated in part: Yes.

But I wanted to begin with when I saw (the child) in November (2022) was to reunite (the child) with her dad and... over Christmas (2022). So, to start the process, phone calls and then to go to Halifax with her dad for Christmas , but that didn’t pan out and then things started to, to take her on a different track in terms of the court, so… and I, I wasn’t, I was not involved after that because there was another person involved with the phone calls.

So, I, I’m still, still wanting, if I was still involved directly with (the child) and her dad would to be reunify the two of them carefully, proceeding carefully, cautiously, so that we make it successful. So that she has a lovely relationship with her dad for the rest of her life. There was no other counselor involved with the Veith House virtual sessions. In addition, the mother did advise when the father raised concerns that there were problems related to connectivity and / or ensuring an optimal environment for the contact to occur. [ 99 ] Then in her letter of January 6, 2023, Dr.

MD indicated that she had advised the father that “forcing his child to live full time with him is not a solution to this rupture in their relationship.” In her report dated January 6, 2023, Dr. MD explained in part: That the “delicate balance of meeting all parties’ needs must be done carefully. We cannot rush it or force it. What I am proposing is that given the Christmas holidays have been and gone, that we continue to slowly build the relationship over Facetime etc., so that (the child) is completely comfortable chatting with her father.

It is early days and I believe that if we do this slowly and carefully (the child) will have a lasting loving relationship with her father which will include spending some holiday time with him, her step-siblings , her stepmother, and her friends. In the future when (the child) visits her father I would ask that it is documented officially that she be returned to her mother in British Columbia . (my emphasis) In the above-noted quote from her report, Dr. MD left out any mention of the child’s half brothers, M and G (at least one of whom she had cried about).

I understand the child’s half brothers were both residing in Nova Scotia when the mother testified. Dr. MD’s access to information [ 100 ] Dr. MD stated she was NOT aware the mother had been ordered to return the child to Nova Scotia; however, Dr. MD advised the Court she had understood all contact between the child and the father was to go through Veith House, which is a supervised parenting program. However, Dr.

MD acknowledged she was not aware the term for Veith House was added on a without prejudice basis and was NOT included in the Order following a finding by the Court that there was a risk to the child or to the mother from the father. [ 101 ] As noted previously, on an interim without prejudice basis I included certain terms which are usually used to safeguard persons who have been found to be at risk.

I was clear to the parties that I was doing so after the mother had refused to return the child to the jurisdiction. [ 102 ] I included the terms with the father’s consent and for various reasons including but not limited to the following: to encourage the child’s return to the jurisdiction; to reassure the child who had been refusing to see her father after she had been treating her father and his family in a very hurtful manner; to gather relevant information (written reports) from a supervised access program regarding the child’s interactions with her father and perhaps elicit suggestions on how their relationship could improve; and to allow the Court to determine if the mother would follow the order and return the child to Nova Scotia if every possible safeguard was in place. [ 103 ] It appears the mother has put forth two contradictory arguments regarding what information she may or may not have provided to Dr.

MD before and after Dr. MD wrote her Report on October 10, 2022, or her letter on January 6, 2023: 1. As noted previously, the mother claimed she did not know that a court’s decisions are effective as of the date the decision is rendered, not as of the date and order is issued. I did not find the mother’s claim to be credible. 2. The mother’s other position is that she did tell Dr. MD presumably about my direction on August 11, 2022, and / or about the order I granted on September 21, 2022, prior to Dr. MD meeting with the child on October 6, 2022? [ 104 ] However, Dr.

MD has stated she did not speak with either parent before completing the View of the Child report in relation to the parties’ child. In addition, Dr. MD has stated she did not know about the court order to return the child to Nova Scotia. [ 105 ] I find that when Dr. MD wrote the View of the Child report in October 2022, she was NOT aware the mother had been ordered to return the child to Halifax Nova Scotia. I also find it is more likely than not that Dr.

MD was NOT aware the father had agreed to attend counseling with the child and with MD, and the child was expected to do so in Halifax Nova Scotia. [ 106 ] In the same vein, when Dr. MD prepared her letter dated January 6, 2023, I find Dr. MD was not aware of the reasons the Court had given the parties for including limitations on the father’s contact with the child, and she was NOT aware that the Court had directed

the mother to return the child to Nova Scotia. Parental alienation [ 107 ] When asked about parental alienation, Dr. MD described parental alienation as “an effort on the part of one parent to turn the child against the other parent.” Dr. MD stated in part: I did not gain any sense from (the child) that her mother was denigrating her father, and neither was there a complete rejection of him by (the child). In her perception she experienced his alienating behaviour for herself specifically since he refused to let her go see her Grandparents at Christmas and his reportedly aggressive behaviour towards her .

She has left the door open to him. (The child) would like to have a relationship with her father in the future. She wishes that he would just be kind to her and not demand her time based on the access agreement. She said, “if you really, if you really loved me so much that you want to see me again and spend time with me. Then just drop everything . Send me Christmas card or a birthday. Say happy birthday. Hey, Merry Christmas. I hope it’s a great one . Yeah. You have a great birthday. Just start like that.” Future recommendations: For (the child) to attend a few counseling sessions to resolve some past issues.

When (the child) is ready then restorative counseling could be an option between her and her father. For (the child’

s) father to show his love unconditionally. (my emphasis throughout) [ 108 ] With respect to Dr. MD’s meeting with the child on March 8, 2023, Dr. MD explained that the child presented as “stressed out.” Dr. MD believed the child knew court was ongoing as a View of Child Report had been prepared for court purposes. [ 109 ] When asked why she thought the child was “stressed out”, Dr. MD stated she understood the child was “stressed out” because she may have to go to Nova Scotia to live with her father. When it was suggested to Dr.

MD that perhaps the child was stressed out for other reasons, such as not seeing her father for a long period and / or as expected at Christmas in 2022, Dr. MD acknowledged that could be. [ 110 ] When she testified in April 2023, Dr. MD acknowledged she was NOT aware that on February 21, 2023 the mother had advised the court that on or about March 13, 2023, she would send the child to Nova Scotia to see her father, or that subsequently, the Court had agreed to adjourn the commencement of a hearing on the merits, with the mother then failing to follow through. View of the Child Reports [ 111 ] Dr.

MD was asked questions which required her to compare her methodology for her View of the Child report to the methodology the Court understood was expected or recommended when assessors completed Voice of the Child Reports in Nova Scotia. For instance, Dr. MD was asked if she made any attempt to determine whether the child was being influenced by either parent: …whether part of your assessment was determining whether the child was influenced, yes or no? No. …whether when you met with (the child), the notion was that she got a voice, but she should know that she doesn’t get a choice. Was that communicated to her?

Absolutely. [ 112 ] After the Court summarized for the record what Dr. MD had stated, including her response indicating she did not assess if the child had been influenced, Dr. MD suggested she had not answered the question correctly: …we’ve noted one particular area that you did not focus on was whether the child was influenced or not, and of course, in our jurisdiction we do and that is a primary issue in this matter, so you may be asked questions about that, … … Yes. I don’t know if I answered your question correctly, then, because I did consider whether she had been influenced. … [ 113 ] When Dr.

MD was asked to comment about the other assessor, MD’s observation that the child’s statement “ I wish he would just drop everything” did not seem to be a statement “typical of a ten-year-old child” (recognizing that the child had turned 11 just weeks before she had made the comment), Dr. MD stated in part: So, the statement you want me to comment on is MD’s.

I would concur on the surface this does not seem to be a statement typical of a ten-year-old child (once again the Court recognizes the child had turned 11 around that time). … So, you have to sit, so lets pull back a bit in terms of the context and I can’t say that that is (the child’

s) words or whether she’s been

influenced. What I do, what I can say is that (the child) wants to be with her father. (the child) wants to spend to (sic) time with her father. That is not, when you think about a child that’s been alienated, children who have been really alienated and influenced and may have to say there’s a whole continuance , but children, generally, when they’ve been, when there’s parental alienation, they don’t have anything to do with their dads, nothing, or the other parent, but (the child) does. ( The child) wants to be with her dad.

She wants to spend time with him on the holidays and she, you know, she’s not alienated from him, she loves him, it’s simply that she doesn’t want to live with him . So, has she been influenced? I don’t know. I honestly don’t know , but it's there’s a, there’s a sense for me that she, it’s not about being influenced, it’s about not trusting him enough , wanting to build back that relationship and have a long-lasting healthy relationship with her dad. However, it is clear from the evidence that despite the child’s statements, the child has not had in-person parenting time with her father since February 2022.

It has in fact been the mothers promises that the Court has been unable to rely on, not the father’s promises. [ 114 ] When Dr. MD was asked for her thoughts on the other expert, MD’s statement that “there is very little available information regarding the impact of forced removal of a child from their primary residence has on children,” Dr.

MD stated: Well, I don’t know about research and when I read this, I did actually look it up, and he’s right in a way, there isn’t much research, but we can deduce that when you have a child who is very connected, very connected to her mother if she were to be forced to be placed with her dad permanently or at least for some time with little contact with her mum, I, I cant’ say this completely 100 percent, but there is a huge risk, huge risk that this relationship with her father would completely break down. So, (the child) is, she would, she would suffer. She would suffer if she were forced.

I believe she would suffer. I think she would suffer both === … Dr. MD opined that the child “would suffer if she was forced to live with her dad” and the child’s relationship with her father would suffer, both in terms of “her physical, mental, and her emotional state.” [ 115 ] Dr. MD acknowledged she did not know all the history between the parents, but stated it was the child’s perception of the rift that was important to her. Presumably, Dr. MD is referring to the rift caused by the father’s refusal to allow the child to travel to British Columbia with her mother in or around December 2021 and January 2022.

In other words, the rift created because dad said no to the child, after mom implied either directly or indirectly that it was all up to dad. [ 116 ] Dr. MD stated: “I’ve only seen her for counseling once or twice. I’ve seen her to do the View of the Child Report twice (later acknowledges once), and then I saw her twice again when she was on the phone with her dad, so I haven’t really seen her since.

Just once, really, or twice since I’ve wrote the report.” She stated: My sense is that the, the attachment relationship between the child and mom is stronger than the attachment relationship between the child and her dad. It’s not like it’s, it’s not black and white, but she doesn’t miss her dad as much as I am predicting that she would miss her mum. She would miss her mum profoundly, and right now she’s not, she’s not crying about her dad. She loves her dad, but she’s not missing him. She’s missing her friends , I would say that, but she’s not missing her father like I think she would miss her mum. Dr.

MD opined that the child had not turned her back on her father, that she wanted him in her life, that she wanted to be with him as much as she could over the holidays . [ 117 ] However, the child has not seen her father in person since February 2022. In particular, the child did not see her father in Christmas 2022 as anticipated; or in March 2023 as promised by the mother. As noted previously, Dr. MD confirmed she believed the plan was for the child to visit her father at Christmas 2022, but she then learned it didn’t work out, and she stated she was not entirely sure why not.

She also noted that telephone calls were going to start, but she remarked that they “didn’t “pan out.” [ 118 ] Dr. MD agreed the mother would have to be willing to encourage the contact between the child and her father. She stated that the father and the child would need uninterrupted time conducive to having a relationship . (my emphasis) Future planning [ 119 ] Dr. MD stated that if she was still involved with the family, she would reunify the child and her father “cautiously to make it successful.” Dr.

MD described the child as very mature for her age, but she acknowledged that “in some ways she’s probably not.” [ 120 ] When asked about “next steps,” Dr. MD suggested the child should spend a significant amount of time with her father in June and July 2023 . When asked what she would suggest should happen if the mother kept promising to send the child to Nova Scotia but failed to do so. Dr. MD stated she would want to discuss with the mother the effect that would have on the child. [ 121 ] When Dr. MD was asked specifically what she would say to the mother, Dr.

MD stated: “she would tell the mother that the child deserves to have a relationship with her father... that not seeing her father would have long lasting effects on the child.” [ 122 ] Dr. MD opined that initially the issue between the child and the father appeared to be one of the child’s lack of “trust”, and now “the child had started to trust her father.” The child was not frightened of her father physically; it was a question of trust. Dr. MD stated that she saw huge potential for repairing the relationship between the father and child. [ 123 ] Dr.

MD stated that since the child had talked to her father, the child was ready to visit her father . She opined that if the child had been sent to visit the father before having the opportunity to reconnect, “it would have been a disaster.” Dr. MD suggested the child needed to have a relationship with her father that does not involve her mother . Dr. MD advised she was available to provide more therapeutic supervision during the telephone calls between the child and her father. (my emphasis) [ 124 ] Dr.

MD confirmed she had not had any access to the Veith House parenting records, and she agreed she would have benefited from reviewing those. Dr. MD recommended the parties participate in a parenting program , such as Parenting after Separation (or

Divorce), online, offered by the Government of British Columbia. [ 125 ] Dr. MD stated she was not sure the father’s telephone contact with the child required supervision; however, if the father wished to continue to have Veith House facilitate his contact with the child to ensure the quality of the contact, she saw no harm in the service continuing— if the father felt it would guarantee him time with the child, then it would be fine to keep it going. But her “gut feeling” was the father did not need to be supervised. Dr.

MD stated that further online repair work with the father on video chat and the child in her office may be of some benefit and the child could enjoy time with the father in Nova Scotia. [ 126 ] At the conclusion of Dr. MD’s testimony, I advised the parties in part as follows: …you should be also booking tickets and making the arrangements and getting her prepared that she’s coming. Regardless of what the decision is, the child’s life still goes on and she still needs to know if she’s going to see her dad . Whatever decision I make, she’s still going to see her dad, right?

If I decide that she’s staying in BC, (the mother) has to have some sort of plan for her to see her dad. So far she’s failed to put that plan before me or execute it. If she fails to execute it again, or even if make sure it’s moving to that, what do you think I’m going to be able to do about that? Right? So, there has to be some serious thought, and, you know, Dr. MD has said very clearly to you, (the father), that she’ll work with you.

You have, there’s nothing barring you from calling her and asking her to make arrangements for (the child) to see you and to make those arrangements. … And in fact, I have an expert telling me that it needs to happen and that this is a really smart little girl, wants to see her dad, she’s doing much better than she was in October (2022), and they should be fine . … At the very least, she should be able to scope out that I’ll be granting access to him at least a month in the summer, right? You should be able to at least figure that out and be starting to work toward that. Thank you.

The mother’s allegation that the child “does not feel safe” with her father [ 127 ] Dr. MD had indicated in her evidence that the child raised the following concerns about her father dating back to Christmas in December 2021 and early in the year in 2022: (The child) does describe some of the conflicts between her and her dad. She says that he would say “ I don’t want to say anything bad about your Mum but…” or they would argue about what she wanted to do and what he wanted her to do .

This past Christmas, “the child” asked her father if she could go to British Columbia to spend time with her (maternal) grandparents who she really loves. Her mother was held up for a week because of the snow, so when it came time to finally leave, her father, according to (the child) said no she could not go as that would have meant him missing out on his time with her. So, her mother went to visit the grandparents in BC and (the child) stayed with her father. (The child) says that was the turning point for her. “How could anyone do that to their daughter?” she said to me .

After that she refused to go visit with her dad. She dreaded her access time with him and would avoid being around when he came to pick her up . She describes how he would follow the school bus home or come to the school to get her and how she has to run away from him and / or hidden in the school washrooms until he left. On another occasion the principal had to get involved when the dad’s partner came to pick her up and (the child) refused to get off the bus and go with her. The principal because involved for 30 minutes but did not make (the child) get off the bus and go with the dad’s partner.

As (the child) recalled this incident, she started to cry with relief because of the support she had from the principal . [ 128 ] The mother has suggested that the child’s relationship with her father was negatively impacted by the co-parenting decisions the father made after the Christmas holiday break in 2021, and decisions he made in January 2022 and February 2022. I understand that prior to January 2022, the child was attending the father’s specified parenting time without incident. [ 129 ] In cross-examination, the mother’s lawyer explored the timeline with the father and he responded in part as follows: Q.

To the father, I want to go back to your Christmas parenting time with (the child) in December of 2021 into 2022, okay? So, you were supposed to have (the child) from Christmas day, correct, the 25 th ? Correct? (THE FATHER): That's correct, yes. Q. Right. Into January 10 th or so? A. Something like that. Q. Okay, but if that, (the mother) was away at that time, correct? A. Yes. … Q. Okay. But there was, but (the mother) contacted you and said that she was being delayed because of a staff shortage at the airline she was flying back? A.

I think it was something about snow and that she’d be coming back a week later. Q. A week later, okay. So, she asked you if you wouldn’t mind (the child) staying with you an extra week.

A. I’m not sure exactly how that went. The school break was extended due to covid, so I had (the child) for a little bit longer, and I messaged (the mother) as I didn’t know when she was expecting to arrive. She did not, she did not come back, I’m trying to remember now, it’s so long ago, but I did inquire, because (the child) would have been on her mother’s parenting time and I informed her of that and that my

schedule was set. That I could not make last minute change in the

schedule to switch things around is what she was asking. Q. Okay, but she, (the mother) was delayed coming back, right? A. Yes, she said for snow and she was coming back a week later. Q. Coming back a week later. So, it was discussed that you would keep (the child) another week? A. Well, I’m not sure about all the details. I do know that I followed the court order at that time. Q. I, I, don’t understand your explanation, sir. A. I had (the child) for, I had (the child) longer. Q. Okay. A.

And I informed (the mother) that if she was not back during her parenting time that I’d be happy to accommodate, as per our court order, when one parent is not able to look out for our daughter, the other one can. Q. Okay. And, okay... but... Alright, so. (the mother) then didn’t arrive back until January 17 th , you said she was a week late, right? A. I don’t know exactly when she returned. Q. But you A. But she was late. Q. Right, yes. She was supposed to get (the child) back January 10 th . You said January 10 th , so a week late, around January 17 th , correct? A. Likely, yes. Q. Okay. Alright.

And you started, I, explaining something about work. So, (the mother) asked you if she could have (the mother) on what was, I’m sorry, (the child) on what was supposed to be your parenting time, since she had lost a week given what happened with her not being able to come back. Correct? A. That’s correct. I followed the Court order when school resumed, the

schedule would start again, and (the mother) did not arrive for her parenting time. THE COURT: Could you answer the question, sir? (THE FATHER): I thought I did. I’m sorry. I’m... THE COURT: … she asked if she could have (the child ) on your parenting time. Did she ask that? Did you do it? (THE FATHER): Yeah, she wanted, she wanted to have (the child) on my parenting time. There was some communication between our lawyers. ( the mother) was attempting to use certain clauses of our court order which did not apply and her counsel was notified of that.

This is similar to covid that created, there was a similar situation where (the mother) did not reciprocate an accommodation as well. She was stuck with the court order. MR. KATSIHTIS: So, you were, essentially this was pay back? (THE FATHER): No. I just followed the court order. There’s no payback involved . Proper communications through legal counsel had been submitted and I followed the court order. Q. Okay, so, (the mother) gets Summer, well, your parenting time was back on the 19 th of January, correct? That’s the Wednesday? A. That sounds about right, yeah. Q.

And so, if (the mother) came on the 17 th , she basically had (the child) for her parenting time would have been the 18 th of January . A. I don’t know for certain. Q. It would have been a day or two, maybe. A. Somewhere in there. Q. Okay. And, so, and you were supposed to have her on that Wednesday, and (the child) didn’t go with you on the Wednesday and we have the police involvement, correct?

A. That sounds right, yes. Q. Okay. So then the … MR. KATSIHTIS: So, the 19 th of January would have been, was Friday, correct? (THE FATHER): That’s correct. Q. And you were supposed to get (the child). She was going to stay with you how long? A. Friday, Saturday, Sunday until Monday morning. Q. Until Monday morning. Okay. Alright... So, basically, (the child) had spent a month with you, did one overnight with (the mother) or maybe two, maybe one, and then she’s back with you for a few days. A. That’s not correct. Her mother would have had her before the Christmas break started. Q.

Right, but that was before your one month of having, you had THE COURT: It probably was three weeks. MR. KATSIHTIS: Three weeks. Okay, sorry. 25 th to the 17 th . (THE FATHER): I don’t have the paperwork in front of me, but I’ll say three weeks. Q. Okay. Okay. Now, I’ve seen the word “familia” used in your affidavits and such, were you, so you had no concerns that (the child) might have wanted to see, to spend more time with her mother after not seeing her for those three weeks? You had no concerns? A. Not at all. I put her on the phone with her mother as our custody agreement dictates Q. Kay. A.

And (the child) was happy as a clam. Q. Okay. So, then on the 19 th , what you’re hearing, I know you don’t believe it THE COURT: January 19 th , 2022. MR. KATSIHTIS: Of January 2022 is that (the child) doesn’t want to go with you. (THE FATHER): I heard this from her mother. MR. KATSIHTIS: Okay... And over that Christmas, in terms of … ... Ms. Lehey have all the children there as well? (THE FATHER): Yeah, we did. MR. KATSIHTIS: Okay. And I’m sorry, there’s a 21-year-old (THE FATHER): There was some birthday’s recent. I think V is 23 now and L might be 22. Q. Okay. A. Oh no, sorry. So she’s 21. Q. Okay. A.

Then C would be 15 and K’s 17. Q. Sorry, the last? … Q. And, oops, sorry. And around or on January 28 th , (the mother) discussed with you reunification therapy? … MR. KATSIHTIS: (the mother) brought up reunification therapy with you, correct? (THE FATHER): That’s correct.

MR. KATSIHTIS: And you thought it was expensive. How much was it gonna cost? (THE FATHER): I thought it was completely unnecessary and refused it. THE COURT: That’s not the question (THE FATHER): I don’t recall saying that it was expensive, but I do know that it is. Yeah, expensive and not necessary. MR. KATSIHTIS: And I'm sorry, you’re saying it’s expensive but you don’t know how much it costs? … MR. KATSIHTIS: Right, just so, but at the time, and actually I’m going to show you, this is your affidavit (THE FATHER): Yeah, at the time, and I did know it was expensive. It’s expensive. F-word expensive. Q. Okay.

And, and as you said A. Unnecessary. Q. ... unnecessary. Okay. However, you were agreeable to the school counsellor becoming involved? A. That was later, towards the end of I think the middle or end of March. Yeah. Q. And (the mother) had raised with you some names of, of people to do therapy though, right? A. She had offered that at the time, they offer reunification therapy is my understanding. One of the, I did go through the trouble to look into them. One clinic did not have any room and the other did not do those kinds of things.

That was part of my inquiry. … One could certainly describe the father as somewhat rigid; however, as will be outlined below in my decision, the father’s negative reactions have most often been in reaction to the mother’s behaviour of limiting or interfering with his parenting time with the child. The mother’s plan [ 130 ] When cross-examined about her plan the mother stated in part: (THE MOTHER): I provided a plan in my affidavit there as recommendations for moving forward. Q.

Yes, but one of those recommendations, you would like your son, M, and K, I don’t recall K’s last name to be, I guess, failsafe for (the child) to go to, can you. A. Well, we currently have the protection order that’s against you where you don’t have contact with (the child), so when I proposed that part of the solution, that seemed like an appropriate scaffolding option. Q. How is placing (the child) in her brother’s care going to support my parenting of (the child)? A.

Well, as I say, because of the order that’s in place right now where you don’t have any access unless it’s supervised, that was in order to support supervised access with you. Q. We’ve established that supervised access is not gonna be that much of a problem THE COURT: Well, sir. Somebody has recommended, that doesn’t mean you’ve established. (THE FATHER): Okay. Well, Madeline DeLittle has not indicated that supervision is necessary. She made that clear. I think we can agree on that. THE COURT: Sure, but you can’t agree that that’s a final decision. (THE FATHER): Yep.

If that was the case, how would you want to proceed? (THE MOTHER ): If supervision isn’t necessary, that’s fine. But those options were in, provided just under the current orders that were in place . Q. Would you consider doing a bilateral parenting capacity assessment ? A . No. Q. Why? THE COURT: First of all, sir (THE MOTHER): I don’t feel it’s necessary.

THE COURT: ... I don’t know who’s going to do that for you,

[…]