Burke v Gouthro, 2023 NSSC 55

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Burke v Gouthro , 2023 NSSC 55 Date: 20230125 Docket: SFHPSA No. 111409 Registry: Halifax Between: Matthew Scott Burke Applicant v Holly Noelle Gouthro Respondent Judge: The Honourable Justice Theresa M Forgeron Heard: Oral Decision: January 3, 4, 5 and 6, 2023 in Halifax, Nova Scotia January 25, 2023 Written Release: February 14, 2023 Counsel: Matthew Scott Burke, self-represented Godfred Chongatera for the Respondent, Holly Gouthro By the Court: Introduction [ 1 ] Matthew Burke seeks shared parenting of his two sons who currently live in the primary care of their mother, Holly Gouthro.

To succeed, Mr. Burke must prove both a material change in circumstances and that a shared parenting arrangement is in the children’s best interests. [ 2 ] For his part, Mr. Burke said that he proved a material change in circumstances. He provided two examples to illustrate his point. First, Mr. Burke states that Ms. Gouthro unilaterally and repeatedly refused to follow some of the parenting provisions of the current order, thereby depriving the children of their time with him. Second, he states that Ms.

Gouthro did not assign priority to the needs of the children, especially their educational needs. [ 3 ] In addition, Mr. Burke states that a shared parenting plan is in the children’s best interests. He notes that the boys flourished when the parties implemented a shared arrangement at the beginning of the pandemic. In addition, he states that he is better equipped to meet the children’s educational needs. Further, he believes that a shared parenting regime will reduce parental conflict. Finally, Mr.

Burke states that a shared parenting plan will provide the boys with sufficient time to be with their paternal family, including their new baby sister. [ 4 ] In contrast, Ms. Gouthro argues that Mr. Burke failed to prove a material change in circumstances. She denies breaching the court order. Alternatively, if there was a breach, Ms. Gouthro argues that the remedy is an enforcement application and not variation. Moreover, Ms. Gouthro says that one of the children’s diagnoses of ADHD explains his poor academic performance. [ 5 ] In addition, Ms.

Gouthro submits that even if a material change was proven, it is not in the children’s best interests to be placed in a shared parenting regime. She was and is the children’s primary care parent. She is better equipped to meet the children’s needs. She says that the children are happy in her primary care. Finally, she is concerned about what she perceives to be Mr. Burke’s authoritarian parenting style. [ 6 ] Finally, Ms. Burke suggests that Mr. Burke’s variation application is driven by a desire to pay less child support. From her perspective, his application has little to do with the children’s best interests.

Issues [ 7 ] The following questions will be resolved in this decision:

• Did Mr. Burke prove a material change in circumstances? • What parenting plan is in the children’s best interests? • What is the appropriate child support order? Background Information [ 8 ] Before I address each of these issues, I will outline background information to provide context. [ 9 ] In about 2007, the parties began to live together. Joining them was Ms. Gouthro’s young son from a previous relationship. In addition, two children were born to the parties – Carsen in November 2007 and Kendall in June 2010. [ 10 ] Relationship problems led the parties to separate in 2018. The separation was not amicable.

Litigation soon began, with Mr. Burke seeking emergency relief to prevent the children from being relocated to Ontario. The parties were eventually able to resolve the outstanding issues by participating in settlement conferences. [ 11 ] On February 7, 2019, a consent order issued with provisions that included the following: • A joint custody designation. • An acknowledgement that both parents were significantly involved in the parenting of their children, although Ms. Gouthro was noted to be the primary care parent and Mr.

Burke, the primary financial provider. • The placement of the children in the primary care of Mr. Burke until Ms. Gouthro established a home in HRM at which time the children would live in her primary care and Mr. Burke would have liberal parenting time pursuant to a specified schedule, together with additional parenting time including when Ms. Gouthro was unavailable to parent. [ 12 ] After the order issued, several changes occurred. First, Ms. Gouthro returned to HRM and then married Heather Fraser. In the early summer of 2020, after Ms. Fraser was posted to CFB Halifax, Ms. Fraser, Ms. Gouthro, Ms.

Gouthro’s adult son, Carsen and Kendall began to live together. [ 13 ] Second, when the consent order issued, Ms. Gouthro was not employed and had no source of income. Since that time, Ms. Gouthro successfully completed a post secondary educational program and is now employed at a veterinarian clinic as a technician assistant. She currently earns about $30,000 per year. [ 14 ] Third, after the consent order issued, Mr. Burke also re-partnered. Mr. Burke now lives with Courtney Costain who is employed at IKEA and as a part-time bartender. Mr. Burke and Ms.

Costain live together with their young daughter who was born in April 2020, together with Carsen and Kendall. [ 15 ] Mr. Burke continues to be employed by DND as an AVS tech and earns about $83,000 annually, although in 2021, his income was higher because of a retroactive pay increase. [ 16 ] On April 1, 2021, Mr. Burke filed a variation application. He sought shared parenting of Carsen and Kendall and a variation of child support. Before the matter was assigned to me, the parties participated in several court conferences and a settlement conference.

On January 31, 2022, during their first appearance before me, I assigned trial dates. Unfortunately, trial dates were not available until January 2023. [ 17 ] The variation application was heard on January 3, 4, 5, and 6, 2023. At the outset of the hearing, I discussed evidence rules. I confirmed that the submissions found in the parties’ preconference memos were not evidence. I also ruled that hearsay comments, opinions, and submissions found in the various affidavits were not evidence. [ 18 ] After this clarification, the parties presented their witnesses. During the hearing, I heard evidence from Mr.

Burke, Ronald Richards, Ms. Costain, Barbara Gouthro-MacNeil, Ms. Fraser, and Ms. Gouthro. At the conclusion of the hearing, oral submissions were provided to supplement the parties’ written briefs. [ 19 ] On January 25, 2023, I provided my oral decision. Analysis [ 20 ] Did Mr. Burke prove a material change in circumstances? Position of Mr. Burke [ 21 ] Mr. Burke stated that he proved a material change in the circumstances for two reasons. First, Mr. Burke said that in the fall of 2020, after Ms. Fraser returned to Halifax, Ms. Gouthro began to limit his parenting time in contravention of the court order.

Before that time, Mr. Burke said that the children were in his care at least 50% of the time. He said that Ms. Gouthro frequently left the children in his care as she often visited family in Cape Breton and Ontario. He also noted that he and Ms. Gouthro agreed to a shared parenting arrangement, based on an alternating week schedule, from March until September 2020. [ 22 ] Mr. Burke stated that by the fall of 2020, his liberal parenting time came to a grinding halt. Ms. Gouthro no longer provided him with the right of first refusal when she was unavailable to care for Carsen and Kendall.

Instead, in contravention of para 12 of the consent order, the boys remained in the care of Ms. Fraser. Further, he stated that Ms. Gouthro no longer allowed him to see the children for a supper visit in conformity with para 3 (

f) of the consent order.

[23] Secondly, Mr. Burke stated that he proved a material change in circumstances as Ms. Gouthro was no longer meeting the needsof the children. He said that he was not informed of most of the children’s appointments and on the few occasions when he wasinformed, it was at the last minute, which made his attendance almost impossible. [24] Mr. Burke also expressed concern about Ms. Gouthro’s lack of attention to the children’s educational needs. He noted that littlehomework was being done while the children were in Ms. Gouthro’s care. In contrast, his weekends were usually spent completingprojects and homework. Mr.

Burke said because he has a strong academic background, he is better equipped to meet the children’seducational needs. [25] In

summary, Mr. Burke said that he proved a material change in the circumstances because Ms. Gouthro was not following thecourt order and because Ms. Gouthro was no longer meeting the needs of the children, including their educational needs. Position of Ms. Gouthro [26] Not surprisingly, Ms. Gouthro objected to Mr. Burke’s claims. Ms. Gouthro is adamant that Mr. Burke did not prove a materialchange in circumstances as required by the law. Ms.

Gouthro relied on Gordon v Goertz, (SCC), [1996] 2 SCR 27;LMP v LS, 2011 SCC 64, Qu v Calvesbert, 2020 NSSC 83; Salah v Salah, 2013 NSSC 308 as affirmed at 2014 NSCA 36; Dedes vDedes, 2015 BCCA 194; and SAF v MHM, 2016 BCCA 503 to support her position. [27] Ms. Gouthro disputes that Mr. Burke proved a material change for the two reasons he cited. First, Ms. Gouthro said that she didnot disobey the court order. From her perspective, she and Ms. Fraser are as one. Therefore, Ms. Gouthro reasoned, when she is workingor is otherwise not available, the children are properly placed in Ms. Fraser’s care.

Further, she said that she did not deny Mr. Burkeadditional parenting time unless she had other plans already made for the time Mr. Burke requested. She stated that she complied withthe court order. [28] In the alternative, Ms. Gouthro stated that if she breached the court order, then the remedy is an enforcement applicationbrought under s. 40 of the Parenting and Support Act, 2015, c 44, and not a variation of the parenting provisions of the current order. [29] Second, Ms. Gouthro said that she is meeting the medical and educational needs of the children. Ms.

Gouthro asked me toconsider the following when assessing the educational issue: • Carsen is diagnosed with ADHD which negatively impacts his ability to focus and stay organized. • The boys attended many basketball practices and games last year. They were too tired to do homework afterwards. Their basketballschedule is not as intense this year. • On several occasions, Carsen’s school-issued chrome book was broken, and the school took a long time to replace it. The loss ofthe chrome book negatively interfered with Carsen’s ability to complete homework. • Ms.

Fraser recently connected with the military for help and is also arranging for a high school student to tutor Carsen. • In December 2021, she suggested to the school that Carsen be assigned an IPP or other help so that his needs could beaccommodated. • In contrast, Kendall is doing well in school. He does not have special needs. [30] Further, Ms. Gouthro stated that she does provide Mr. Burke with medical information. She also noted that he can connect withall doctors and other professionals independent of her. [31] In

summary, Ms. Gouthro denied a material change in circumstances. She stated that Mr. Burke’s application to vary should notbe entertained. She stated that Mr. Burke’s application is actually fueled by a desire to reduce child support. She said that the applicationwas not made in good faith. Law [32]

Section 37 of the PSA provides me with the authority to vary a court order based on a change in circumstances. InBarendregt v Grebliunas, 2022 SCC 22, the Supreme Court of Canada reviewed basic variation principles: [76] In a variation proceeding, “[t]he court cannot retry the case, substituting its discretion for that of the original judge; it must assumethe correctness of the decision”: Gordon, at para. 11.

The applicant bears the burden of proving that a child’s best interests differ fromthose determined in the original decision because the circumstances on which that decision was based have materially changed sincetrial. …. [33] In Gordon v Goertz, supra, the Supreme Court of Canada defined a material change in circumstances: 12 What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must havealtered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), (BC SC), 35 R.F.L. (3d) 169 (B.C.S.C.).

The question is whether the previous order might have been different had thecircumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the changeshould represent a distinct departure from what the court could reasonably have anticipated in making the previous order. "Whatthe court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J.

G.McLeod, Child Custody Law and Practice (1992), at p. 11-5. 13 It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change inthe condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which

materially affects the child ; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order . Decision [ 34 ] I find that Mr. Burke proved a material change in circumstances since the granting of the 2019 consent order. My conclusion rests on two factors – the reduction in Mr. Burke’s parenting time and Carsen’s educational needs. Each of these factors independently prove a material change in circumstances. I will now examine each factor in detail. A. Reduction in Mr. Burke’s Parenting Time [ 35 ] After the consent order issued, Mr.

Burke had physical care of the children on an almost equal basis until September 2020. This occurred for two reasons. First, Ms. Gouthro frequently travelled to Ontario or Cape Breton to be with family and friends. When she travelled, the children lived with Mr. Burke, in addition to living with Mr. Burke during his own scheduled parenting time. Second, after the pandemic began, the parties began to alternate care of the children on a weekly basis. [ 36 ] In September 2020, Ms. Gouthro withdrew from the shared parenting arrangement.

In addition, she restricted the children’s time with their father in contravention of the 2019 consent order because she was angry with Mr. Burke and because she had formed a new family unit which she wanted the children to prefer. [ 37 ] Ms. Gouthro contravened paras 12 and 13 of the consent order which state: 12. In the event one parent is unable to parent the children during their parenting time, they will consult the other parent to determine whether the other parent is available to parent the children in their stead. 13.

If the other parent in [sic] unavailable to parent, the parent whose parenting time is scheduled will be responsible to obtain childcare. [ 38 ] This paragraph is not ambiguous. Indeed, the parties consistently followed this provision from February 2019 until September 2020. When Ms. Gouthro was unavailable, the children lived with Mr. Burke. Ms. Gouthro is disingenuous to now suggest that this provision is only triggered if both she and Ms. Fraser are unavailable. [ 39 ] In addition, Ms. Gouthro also stopped following para 3(

f) of the consent order because she consistently refused to let Mr. Burke have the children for a supper visit when he had not seen the children for more than three consecutive nights. Paragraph 3(

f) states: In the event the children are with one parent for more than three consecutive overnights, the other parent will have the option of taking the children from school for a supper visit on one of the intervening nights after which they must return the children to the parent in accordance with the agreed upon schedule. [ 40 ] Ms. Gouthro’s unilateral decision to repeatedly breach the court order caused a significant reduction in the children’s parenting time with their father. This reduction altered the children's needs and Mr. Burke’s ability to meet their needs in a fundamental way.

These changes materially and negatively impacted the children. The children were happy and used to spending almost half of their time with their father, and later this time included their new baby sister and Ms. Costain. Parenting time reduction dramatically affected the lives of Carsen and Kendall. [ 41 ] Furthermore, this reduction was not contemplated at the time the consent order issued. Indeed, the consent order stipulated in its

preamble, “… that both parents have been significantly involved in parenting their children…” Moreover, the consent order contemplated that the children would have liberal parenting time with their father. Likewise, it was not reasonably anticipated or foreseen that Ms. Gouthro would consistently disobey a court order. Had these factors been reasonably contemplated, a different court order would have issued. [ 42 ] In reaching my decision, I clearly dismiss Ms. Gouthro’s suggestion that a breach of a court order must be addressed by an enforcement application and not a variation application.

The PSA does not suggest such a limitation. To my knowledge, neither does caselaw. B. Carsen’s Educational Needs [ 43 ] In addition, a second material change in circumstances arises from Carsen’s unmet educational needs. Although Carsen has ADHD, there is no evidence to suggest that he is intellectually impaired. The evidence does, however, confirm that Carsen requires significant help and supervision so that he can focus and complete his homework, projects, and tests. I find that Ms. Gouthro did not provide Carsen with the help and supervision he required.

I provide three examples to support my finding. [ 44 ] First, Ms. Gouthro prioritized basketball over Carsen’s school education. Although important, basketball is secondary to Carsen’s schooling. If basketball was interfering in Carsen’s ability to complete homework, then the amount of basketball that Carsen was playing should have been adjusted or other arrangements made to ensure that Carsen was not too exhausted to complete homework and school projects. Furthermore, given Carsen’s academic challenges, Ms. Gouthro should not have suggested missing school to watch a professional basketball game in Ontario.

In the end, Ms. Gouthro did not remove Carsen from school but only because she had to attend this variation hearing. [ 45 ] Second, Ms. Gouthro made multiple excuses as to why she was unable to ensure Carsen completed his schoolwork. Most of these excuses were unconvincing. For example, homework could be accessed by means other than the chrome book had Ms. Gouthro been motivated. Ms. Gouthro could have supervised Carsen in a more diligent and effective manner. Given Carsen’s challenges, much more was required than simply asking Carsen if his homework was done. In addition, Ms.

Gouthro could have used consequences to ensure compliance, such as the removal of social media or technology until after homework was completed. Given Carsen’s challenges, Ms. Gouthro should have taken a more hands-on approach.

[46] Third, despite Carsen’s many and long-standing challenges, Ms. Fraser only recently reached out to the military for assistanceand to locate a tutor. As of the variation hearing, the tutor had not yet actually started to work with Carsen and services had not yet beenimplemented. [47] Ms. Gouthro’s failure to meet Carsen’s educational needs was not reasonably foreseen or contemplated at the time of the lastcourt order. This failure fundamentally impacts on Carsen’s development and the parties’ ability to meet Carsen’s needs. Had this failurebeen anticipated, a different parenting plan would have issued given that Mr. Burke is motivated and prioritizes Carsen’s education.

Summary of Material Change [48] Mr. Burke proved a material change in circumstances by Ms. Gouthro’s failure to follow the consent order which led to areduction in the children’s parenting time with their father. Mr. Burke also proved a material change in the circumstances by Ms.Gouthro’s failure to meet Carsen’s educational needs. Each of these factors was not reasonably foreseen, and if known at the time, wouldhave resulted in a different order. Each of these factors altered the children's needs and the ability of the parents to meet those needs in afundamental way. In so finding, I dismiss Ms.

Gouthro’s suggestion that Mr. Burke’s variation application is based on improper motives. [49] What parenting plan is in the children’s best interests? Position of the Parties [50] Ms. Gouthro wants to maintain the current schedule. She wants to continue as the primary care parent. In contrast, Mr. Burkeseeks a shared parenting order. Each party states that their parenting plan is in the children’s best interests.

Law [51] In Barendregt v Grebliunas, supra, the Supreme Court of Canada stated that once a material change has been found, then thecourt must enter into a fresh inquiry about the children’s best interests: [76] … Once an applicant discharges this burden, the assessment is prospective: a variation judge must enter into a fresh inquiry todetermine where the best interests of the child lie, considering the findings of fact of the judge who made the previous order,together with the evidence of new circumstances (Gordon, at para. 17).

Finality in this context respects the trial judge’s originaldetermination of the child’s best interests: Gordon, at para. 17; Willick v. Willick, (SCC), [1994] 3 S.C.R. 670, at p. 688,per Sopinka J. [52] When conducting this fresh inquiry, I am also cognizant that there is no presumption in favour of shared parenting.

Indeed, inBarendregt, the Supreme Court of Canada said no such presumption existed and confirmed that the determination of a child’s bestinterests was highly contextual: [134] Although Gordon placed emphasis on the “maximum contact principle”, it was clear that the best interests of the child are thesole consideration in relocation cases, and “if other factors show that it would not be in the child’s best interests, the court can andshould restrict contact”: Gordon, at para. 24; see also para. 49.

But in the years since Gordon, some courts have interpreted what isknown as the “maximum contact principle” as effectively creating a presumption in favour of shared parenting arrangements,equal parenting time, or regular access: Folahan v. Folahan, 2013 ONSC 2966, at para. 14 ; Slade v. Slade, 2002 YKSC 40,at para. 10 ; see also F. Kelly, “Enforcing a Parent/Child Relationship At All Cost? Supervised Access Orders in the CanadianCourts” (2011), 49 Osgoode Hall L.J. 277, at pp. 278 and 296-98.

Indeed, the term “maximum contact principle” seems to imply that asmuch contact with both parents as possible will necessarily be in the best interests of the child. [135] These

interpretations overreach. It is worth repeating that what is known as the maximum contact principleis only significant to the extent that it is in the child’s best interests; it must not be used to detract from this inquiry. It is notablethat the amended Divorce Act recasts the “maximum contact principle” as “[p]arenting time consistent with best interests ofchild”: s. 16(6). This shift in language is more neutral and affirms the child-centric nature of the inquiry.

Indeed, going forward, the“maximum contact principle” is better referred to as the “parenting time factor”. [53] My analysis will reference the extensive best interest factors outlined in s.18 of the PSA including those which touch on thechildren’s needs; the willingness of each party to support the children’s relationship with the other; the history of caregiving; theproposed parenting plans; the parents’ ability to meet the children’s cultural, linguistic, and spiritual needs; the children’s views andpreferences; the quality of the parent child relationship; the quality of the children’s relationship with extended family; and the impact ofother court proceedings on the children’s health and safety, including issues of violence. [54] I will now review the best interests factors using a child-centric and comparative approach, based on the evidence which theparties provided: DAM v CJB, 2017 NSCA 91.

A. Children’s Needs [55] This factor mandates that I examine factors associated with the children’s physical, social, educational, and emotional needs,including their need for safety and security from a developmental perspective. [56] Both parties can and have adequately provided for the children’s physical and social well-being. They each feed, shelter, andclothe their children in an appropriate way. They each support the children’s social activities by ensuring their participation in sportingactivities and social functions. [57] Because Ms. Gouthro is subject to a criminal undertaking, Mr.

Burke correctly chose not to attend the children’s activities whenthey are in Ms. Gouthro’s care so that she too can spend time with Carsen and Kendall. Mr. Burke’s decision does not detract from hiscommitment to the children.

[ 58 ] On the other hand, Ms. Gouthro was and is the parent who generally assumed carriage of the children’s health related issues. [ 59 ] In contrast, and as noted previously, Mr. Burke prioritizes education while Ms. Gouthro is not as motivated to do so. Mr. Burke is better equipped to ensure Carsen’s educational needs are met. Kendall does not require the extra help and supervision that Carsen needs. [ 60 ] Unfortunately, the children’s emotional needs are not always prioritized by the parties.

Both parties need to improve their parenting skills to ensure that the children are not harmed by the polarizing parental conflict. Carsen and Kendall are negatively impacted when they are exposed to the conflict.

To ensure that the children are protected, each party must attend individual counselling to successfully complete the following therapeutic goals: • To better understand the short and long-term impact that the parenting conflict has and will have on Carsen and Kendall. • To identify the role that each has played in the creation and continuation of the parenting conflict. • To gain skills to diffuse the parenting conflict and to communicate with the other parent in a child focused and respectful way. [ 61 ] If each party successfully completes the therapeutic goals, the children’s stability and sense of security will be promoted. [ 62 ] A review of the parenting factor associated with the children’s needs confirms that each party was significantly involved in meeting most of their children’s needs in an appropriate fashion.

Ms. Gouthro assumed primary carriage of the children’s health while Mr. Burke is better equipped to meet Carsen’s educational needs. Both parties need to acquire parenting skills to ensure that the children are not involved in the toxic parenting conflict. B. Support of Other’s Party Relationship with the Children [ 63 ] This factor favours Mr. Burke because of Ms. Gouthro’s unilateral decision to disobey some of the parenting provisions of the 2019 consent order and to replace those terms with terms that preferred her new household. Ms. Gouthro was required to place the children in Mr.

Burke’s care when she was unavailable. Beginning in September 2020, Ms. Gouthro did not provide Mr. Burke with first option to care for the children when she was working or otherwise not available. The noted exception was New Years Eve. Further, Ms. Gouthro usually refused to allow Mr. Burke to take the children for supper after she had the children for three consecutive nights. C. History of Caregiving [ 64 ] Caregiving involves two aspects. In Burns v Burns , 2000 NSCA 1 , the Court of Appeal held that a custodial (primary care) parent is one who assumes two distinct parenting functions.

A primary care parent generally assumes responsibility for making important decisions about the child’s health, safety, education, and overall welfare. Second, a primary care parent generally assumes responsibility for the countless less significant, but obligatory, daily arrangements required by the child, such as clothing, hygiene, activities, and other mundane affairs. [ 65 ] Although the consent order noted that both parties were involved parents, Ms. Gouthro was designated as the children’s primary caregiver.

After the 2019 order issued, however, the primary care status changed because the children were physically in Mr. Burke’s care for almost half of the time. The shared parenting arrangement abruptly ended in September 2020. Beginning in September 2020, Ms. Gouthro resumed the primary care parenting role and reduced the children’s time with their father to less than that stated in the court order. [ 66 ] In addition, the evidence proves that Ms. Gouthro was more actively engaged with the children’s health while Mr.

Burke assumed a greater role in the children’s education, albeit after September 2020, he had a limited time in which to do so. [ 67 ] On balance, the history of childcare slightly favours Ms. Gouthro because she was the primary care parent throughout most of the children’s lives, although Mr. Burke was always an active, interested, and involved parent, especially with the children’s education. D. Plan of Care [ 68 ] Both parents are capable of following through with an adequate plan of care for their children, provided they each make the changes that are noted in this decision. E.

Cultural, Linguistic, Spiritual Upbringing [ 69 ] The parties do not appear to be at odds with this parenting factor. F. Children’s Views and Preferences [ 70 ] The parties did not commission a Voice of the Child Report. Instead, each party provided hearsay evidence about the children’s wishes which I do not consider evidence. I have no independent and reliable evidence about the children’s views and preferences. Furthermore, the children are caught in the midst of a parenting conflict which makes the determination of their independent views more challenging. [ 71 ] In

summary, although I have no independent understanding of the children’s views and preferences, I am nonetheless satisfied that Carsen and Kendall are deeply loved by the parties, their partners, and their other siblings. G. Quality of Parent Child Relationship [ 72 ] As previously noted, the children have a strong and loving relationship with each of their parents. Both parents were always actively involved in all aspects of their children’s lives. The children have strong and stable bonds with each of their parents. The only

negative arises from the parenting conflict which is intensifying, and which removes the parties’ focus from their children. Hopefully, through counselling, the parties will gain skills to improve this negative dynamic. H. Quality of Children’s Relationship with Other Family [ 73 ] As previously noted, the children have strong relationships with their parents’ new partners, and with their other siblings. There is also extended family involvement and appropriate concerns around the paternal grandfather’s contact.

Although the extended family contact is generally healthy, there are times when the parties’ partners were drawn into the negative parenting dynamic, especially Ms. Fraser. I urge, but cannot order, the parties’ partners to attend counselling to successfully meet the therapeutic goals earlier outlined. I. Communication [ 74 ] The parties’ ability to communicate in a child focused and respectful manner is hampered by the parenting conflict and the animosity that fuels the conflict.

Communication will improve as the parties successfully complete the therapeutic goals that I have ordered them to undertake. [ 75 ] In the meantime, the parties will acquire a Parenting App which, except in the case of an emergency, will be the avenue through which the parties communicate. Communication is also subject to the terms of any criminal undertaking. All communication must be respectful and child focused. Neither party will use profanities or vulgarities when communicating with the other. Communication will exclusively be about the children’s health, education, and general welfare.

Further, the parties must keep the other informed, in a timely and meaningful way, of all important matters affecting the children, including outstanding homework, activity schedules, and appointments. J. Other Proceedings Relevant to Children’s Safety and Security [ 76 ] The parenting conflict has been ongoing for many months. The children are negatively affected. Ms. Gouthro is facing criminal charges.

To ensure the promotion of the children’s health and safety, the following provisions will apply to all parenting exchanges in an effort to reduce the opportunities for conflict: • Parenting exchanges are to occur at school except when school is not open, for example because of holidays, vacation, in-services, or inclement weather. In which case, parenting exchanges shall occur at the parent’s home where the children are situated. The parent who is to exercise parenting time will, personally or through another person on their behalf, attend the other parent’s home and remain in their vehicle.

The other parent will remain in their home. The parents, or other adults on their behalf, will not leave their home or vehicle. The children are old enough to walk from their home into the other parent’s vehicle. There will be no communication between the parents or other adults during the parenting exchanges. • The parent who is exercising their parenting time will transport the children to their sporting activities and all appointments.

The other parent will not attend such activities or appointment until both parties have successfully completed the therapeutic objectives and the criminal undertaking does not prohibit joint contact.

Summary of Factors [ 77 ] Although both parties have parenting strengths, I have nevertheless identified three areas of significant concerns. First, I am troubled by the escalating parenting conflict and the parties’ inability to meet all of the children’s emotional and safety needs. The children need the security that will come from a reduction in the parenting conflict. The parenting conflict will be reduced by the parties attending therapeutic counselling, communicating through a Parenting App, and minimizing personal contact during parenting exchanges.

Both parties need to make substantial improvements in the current parenting dynamic to ensure that their children’s needs are met. [ 78 ] Second, I am deeply concerned by Ms. Gouthro’s unilateral decision to disregard some of the terms of the 2019 consent order. It is clear that Ms. Gouthro does not willingly promote the children’s relationship with their father and that she will not always follow court orders. [ 79 ] Third, I am concerned about Carsen’s educational needs. Carsen, although loving and kind, requires significant help with school. It is in Carsen’s best interests to meet his academic potential. Ms.

Gouthro must improve her motivation and skills to meet Carsen’s educational needs. Parenting Plan [ 80 ] After reviewing the best interests factors and the children’s unique needs, I have determined that the current parenting plan is no longer in their best interests. Instead, I find that a shared parenting plan is in the children’s best interests. [ 81 ] The consent order already creates a shared parenting plan for summer vacation and holidays which plan will continue.

However, paras 2, 3, 12, 13, and 14 of the 2019 consent order are vacated and replaced with the following shared parenting schedule: The parties will share parenting of the children on an alternating weekly basis with the parenting time exchanges occurring at 9:00 AM on each Friday. The parent who is exercising physical care of the children will be responsible for supervising the completion of the children’s homework and school projects and for ensuring that the children attend their scheduled activities and other appointments.

If the parent who is exercising physical care of the children is unavailable, that parent will make their own childcare arrangements without consulting the other parent. The parent who is not exercising physical care of the children, will have daily telephone contact with the children.

[ 82 ] The above

schedule is in the children’s best interests given my findings, including the needs of the children and the need to reduce opportunities for conflict. [ 83 ] What is the appropriate child support order? [ 84 ] In Woodford v MacDonald , 2014 NSCA 31 , the Nova Scotia Court of Appeal remitted the question of child support back to the trial judge so that a proper evidentiary record would be available to complete the child support analysis stated in Contino v Leonelli- Contino , 2005 SCC 63 when a shared parenting regime is adopted. [ 85 ] Unfortunately, the evidentiary record before me is not complete.

For example, neither party provided the much-needed children’s budget so I can assess need and the increased costs associated with maintaining two households. I also require evidence of the parties’ spending patterns so I can assess who pays for what direct and indirect expenses of the children. [ 86 ] Further, the parties did not distinguish between expenses that they incur for their other children. For example, Ms. Gouthro pays for some of her adult son’s expenses who is employed on a full-time basis. Similarly, Mr. Burke’s budget did not differentiate expenses that he pays for his young daughter.

These and other Contino issues will require further evidence and explanation. [ 87 ] The parties will be provided with a copy of the Contino decision so that they can properly present the necessary evidence. [ 88 ] In the meantime, given the shared parenting plan, I will nevertheless vary the maintenance provisions of the current court order, on an interim basis, pending the filing of additional evidence. For interim purposes, I will use the set-off approach. As Mr. Burke’s annual income is about $83,000, his monthly child support obligation is $1,165. Because Ms.

Gouthro’s annual income is about $30,000, her monthly child support obligation is $458. Therefore, the net interim amount which Mr. Burke owes Ms. Gouthro is $707 per month, which amount can be adjusted based on further evidence. [ 89 ] A case conference will be scheduled to determine the status of the disclosure and to arrange for a settlement conference on the child support issue if the parties so desire. Conclusion [ 90 ] Because Mr.

Burke proved a material change in the circumstances, I conducted a fresh best interests inquiry based on the findings outlined in the previous court order and the evidence of new circumstances that was presented during the hearing.

In so doing, I found that the parenting plan set out in the 2019 consent order was no longer in the children’s best interests, but rather the children’s best interests would be facilitated by the adoption of a shared parenting plan, parental attendance at therapeutic counselling, and the use of a Parenting App to improve communication. [ 91 ] Unfortunately, because of the evidentiary void, I was only able to make an interim child support order using the set-off approach.

The child support issue will be resolved on a final basis once the parties file evidence sufficient to conduct a Cantino analysis. [ 92 ] The court will prepare the variation order. [ 93 ] If either party wishes to be heard on the issue of costs, written submissions are to be provided by February 21, 2023, and response submissions by February 28, 2023. Forgeron, J