FAMILY COURT OF NOVA SCOTIA
Citation: S.C.A. v. J.A., 2018 NSFC 11
Date: 20180413
Docket: Antigonish No. FATPSA-108321
Registry: Antigonish
Between:
S.C.A.
Applicant
v.
J.A.
Respondent
Editorial Note: Identifying Information has been removed from this electronic version of the judgment.
| Judge: |
The Honourable Judge Timothy G. Daley
|
| Heard |
March 6, 2018 and March 13, 2018 in Antigonish, Nova Scotia
|
| Decision:
|
Oral Decision: April 13, 2018 Written Decision: May 1, 2018
|
| Counsel: |
Colin Strapps, for the Applicant Allison Kouzovnikov, for the Respondent
|
Introduction
[1] This interim decision is about two wonderful children, A.C.A. who is 2 1/2 years old and A.C.A. who’s just over one year old, and what is in their best interests. Specifically, I must decide what interim parenting arrangements addresses their best interests.
[2] Their mother, S.C.A. asks that she be granted sole custody of the children, that they reside primarily with her and that the father, J.A., be granted specified parenting time with the children. J.A. requests that he be granted sole custody and primary care of the children and that S.C.A. have a specified parenting time with the children.
[3] While there may have to be a further hearing in this matter, the evidence before the court at this time largely speaks to risk. J.A. says that S.C.A. has significant health issues and addictions which compromise her ability to safely and adequately parent the children on a primary care basis. He says that there are other issues of concern as well, and that it is simply not safe and appropriate to place the children in her primary care.
[4] S.C.A. says that she does have significant health issues but that she is managing these well, and these issues do not compromise her ability to safely and adequately parent the children. She denies any addiction issues. She maintains that she has done so for a significant period of time prior to the application, and that the children have done well in her care. She says that if J.A. is granted primary care of the children, this would not be in the children's best interests as he would compromise her ability to spend time with them. She maintains that she is the more appropriate a parent to provide for their care.
[5] This matter first came before the court in January 2018 when S.C.A. sought an emergency interim ex parte order. She explained that she had primary care of the children after the parties separated, that she left the children with J.A. when she went to Toronto in December 2017, to attend a funeral for her uncle. When she returned to Nova Scotia, J.A. would not return the children to her and she made the application to this Court.
[6] At the initial appearance on January 9, 2018, I informed her counsel that, in my view, this application did not constitute an emergency and was not appropriate for an ex-parte order. I directed that J.A. be served with the application and set a new date for return of the matter before me.
[7] While I will set out in this decision further detail respecting the evidence, it is important to note that at the time of her application it was S.C.A.’s evidence that when the she attended at J.A.'s home to retrieve the children, the police became involved and she was charged with unlawfully being in a dwelling, J.A.'s residence, and was arrested. As well, the Department of Community Services child protection services (“the Agency”) became involved with the family.
[8] When the matter returned before me on January 16, 2018, J.A. appeared but he was not represented by counsel. He informed the court that he did have counsel retained.
[9] At that time, I was informed that the criminal charge against S.C.A. was still pending and she was prohibited from having contact with J.A. As well, the Agency remain involved. I granted a production order for the child protection records of the Agency.
[10] Given the circumstances of the criminal charge, I granted an interim order placing the children in primary care of J.A., and providing reasonable parenting time on reasonable notice for S.C.A. at the home of her sister.
[11] An interim hearing was scheduled for February 13, 2018 to hear evidence about what would be the best interim basis for parenting arrangements for the children.
[12] On February 8, 2018, a telephone pretrial conference was held with counsel and it was agreed that the interim hearing scheduled for February 13, 2018 may have to be adjourned as the materials from the Agency had not yet been received. After some discussion, it was agreed that if the Agency materials were received in time, the hearing could go ahead on February 13th but if not, counsel would attend that day to speak to the matter, and a further tentative date was set for to the interim hearing on March 6, 2018.
[13] The parties and counsel appeared before me on February 13, 2018 and confirmed that they had reached a further interim consent order. Under that order, the children continued to reside with J.A. and S.C.A. continued to have specified parenting time, with the assistance of her sister, during the weekdays and weekends. This included overnight parenting time for S.C.A.
[14] As well, a further production order for the Agency records was granted to ensure that the most up-to-date information was available to the parties and the court. The matter was then adjourned to March 6, 2018.
[15] The parties and counsel appeared on March 6, 2018 and the interim hearing commenced. It was continued and completed on March 13, 2018. At the completion of the interim hearing I granted a further interim order of parenting time to S.C.A. on Tuesdays at 6:00 p.m. to Wednesday at 4:00 p.m. and on Saturdays at 6:00 p.m. to Sunday at 4:00 p.m.
[16] Counsel were directed to file written submissions and today's date was set for oral decision in the matter.
The Evidence
[17] S.C.A. says that she and J.A. were in a relationship beginning in 2015, were married on June 4, 2016 and separated in July 2017. She confirmed that there are no orders in place at the time that she made her original application. J.A. agrees with this except that he says they separated for a final time on August 20, 2017.
[18] S.C.A. says that she has cared for the children from that date in July 2017 forward. She says that J.A. did not ask for parenting time until the beginning of September 2017, approximately two months after separation.
[19] She says after separation, J.A.'s time with the children was sporadic and that the last contact he had with them was in mid-November 2017, prior to her trip to Toronto in December 2017. She says he took the children for one week.
[20] As noted earlier, she travelled to Toronto for her uncle's funeral and left on December 13, 2017. She said that she asked J.A. to take the children for the days that she will be away but he initially refused. She says he began to harass her with emails, texts and other messages saying he would only take the children if she gave him half of the “baby bonus" which I take to be the Canada Child Benefit. She attaches copy the text between J.A. and her friend on that topic.
[21] After J.A. refused to take the children during her trip to Toronto, S.C.A. says she asked J.A.’s sister to take them in her absence and this was agreed. She says that his sister agreed that she and her mother would take the children and would not hand them over to J.A. while she was away.
[22] S.C.A. says she drove to Toronto on December 14, 2017 and began her return to Nova Scotia on December 19, 2017. She arrived back in the province on December 22, 2017.
[23] It was on her way home that she received a message from her friend to the effect that J.A. would not be returning the children to her. She went to J.A.'s residence in Truro and she says when she arrived, a window was open and their son A.C.A. saw her approaching. He ran to the door and opened it and she says she picked him up and carried him back to the car. It was at that point she said that J.A. informed her he would be calling the police and she waited for them to arrive.
[24] After being questioned by the police, S.C.A. was charged with unlawfully entering the dwelling and the police directed her to give her eldest daughter, who is not a subject of these proceedings, to her sister and return A.C.A. to J.A.'s care. She understood the police directed this to avoid the children seeing her being placed under arrest.
[25] She says that on December 27, 2017 she met with the social worker from the Agency and was informed that J.A. had contacted them saying that she was not a nurturing parent and that she abandoned the children for 17 days while in Toronto. She was told he further informed the Agency that she had removed A.C.A. from his home against his will which she denies.
[26] She says that J.A. told the Agency that she was unable to care for the children due to depression and anxiety. She says that she is being treated for these conditions and takes medication. She says that her mental health has never prevented her from being at an appropriate and a good mother in caring for the children. She denied all the allegations to the social worker and she was referred to the Naomi Society for support based on the allegations of an abusive relationship with J.A.
[27] In her evidence, she describes a normal routine at home with the children prior to this incident. She says that A.C.A. began attending daycare in October 2017 for about a month but this was interrupted for some weeks. At the time of her application it was her intention of returning A.C.A. to daycare if she could obtain a subsidy for that service.
[28] Rather than review all the evidence as sequentially provided, I think it more helpful to review the evidence relating to each concern and issues raised by the parties.
S.C.A.'s Health and Opioid Use
[29] The most significant issue raised by J.A. concerning S.C.A.'s ability to parent the children centers around her medical conditions and the use or abuse of opioids for pain. S.C.A. confirms that she suffers from Crohn’s disease and colitis. Crohn’s disease is an inflammatory bowel disease which can cause significant pain, inflammation, fever, weight loss and can be quite debilitating depending on the severity.
[30] Colitis is a condition of inflammation of the inner lining of the colon and can cause significant abdominal pain and cramping, fever, fatigue and several other potentially debilitating symptoms.
[31] J.A. says that S.C.A. has also suffered from depression, anxiety, asthma, rheumatoid arthritis and a thyroid disorder. While she does not provide evidence on each of these alleged conditions, S.C.A. does confirm she suffers from Crohn’s disease, colitis, asthma and has suffered from anxiety and depression. She maintains that each of these has been and continues to be treated appropriately and that they do not interfere with her ability to parent the children.
[32] It was S.C.A.'s evidence that she received medical treatments for colitis and Crohn’s disease every four weeks and that after each treatment she is impaired for several hours. J.A. says that he's been informed by S.C.A. that after each of these treatments she is impaired for several days, is unable to drive, sign documents or undertake similar activities or tasks.
[33] J.A. also alleges the S.C.A. does not follow an appropriate treatment regime for Crohn’s disease and colitis. He provided a Facebook message from S.C.A. sent to him on December 5, 2017 in which she indicated that she was 12 weeks late for a recent round of treatment.
[34] Equally significant is his concern that S.C.A. is abusing prescription pain medication, specifically opioids. He maintains that S.C.A. was drug-seeking in her behaviour, taking morphine as often as she can get it from her physician and at least every 4 to 7 hours since July 2017. He also describes a series of other medications that she takes for her various conditions. He maintained she also uses marihuana daily.
[35] When interviewed by the Agency in 2015 after the birth of A.C.A., S.C.A. confirmed using of morphine for pain control during the pregnancy, J.A. expressed no concerns regarding drug use by her at that time. In his evidence at the hearing, he said at the time he had no idea of the pain medication use and was just learning about it then. Throughout those records it is clear that the morphine taken by S.C.A. was prescribed due to her medical conditions.
[36] When asked why he believed S.C.A. is addicted to pain medication, J.A. said that was based on a refusal by a physician to provide morphine due to S.C.A.'s record of morphine use and drug-seeking behaviour. That said, J.A. admitted that there was no record in the Agency materials that this physician had been part of the investigation, or interviewed by workers. J.A. said that he told the workers of that physician's involvement, though this is not reflected in the Agency records. There is also no mention of any special precautions or concerns in those Agency records regarding S.C.A.'s use of morphine.
[37] When asked about his allegation that he believes that S.C.A. takes morphine as often as she can get it and every 4 to 7 hours since July 2017, he said he based this on the record from the IWK Health Center attached to his affidavit. This record was from March 24, 2017 when S.C.A., was in hospital for the birth of A.C.A. That record notes that S.C.A. has taken morphine every 4 to 7 hours since July 7, 2016 and lists a series of other medication she takes. J.A. admitted that he is simply extrapolated from that record that she was continuing to use that level of morphine since then and said this is what he saw when they were together. There is no record to support the belief that he expressed in his affidavit regarding her current use of morphine.
[38] Agency records indicate that J.A. reported on December 21, 2017 that he observed S.C.A. abuse pain medications while they were living together and he did not report this until four months after separation. When asked why he would allow S.C.A. to care for the children for four months when he says that he observed her abusing medication, he said that he didn't have a place to take the children as an alternative to remaining in the home.
[39] On redirect, J.A. confirmed an Agency note of August 13, 2015 in which it was reported that another physician reported to the worker that S.C.A. had been making complaints about not getting morphine at the birth of their oldest child. The record reflects the doctor's concern that this was not related to flare-ups of Crohn’s disease and that he was concerned with the request for medication and a lack of motivation on the part of the mother.
[40] S.C.A. confirms that she has used opioids in the past and did not deny that she was prescribed opioids for pain including during her pregnancies and delivery of both children. For example, her evidence is that she was on morphine during her pregnancy with the older child and approximately 1 1/2 months after he was born. She also confirmed that she was on morphine during the younger child’s birth and for approximately two months thereafter. She says that she only took such medication as prescribed and took none outside of the prescription. Most importantly, she says she last time she was prescribed opioids was in July 2017, and does not take any now.
[41] Respecting alcohol, she denies that she abuses this substance. She says she does drink alcohol but not very much, sometimes once or so on the weekend. Using alcohol create issues with her Crohn’s disease, will make her sick, cause diarrhea and may cause her vomit and have nausea.
[42] She confirmed that she required treatment for her Crohn’s disease and colitis every 4 to 6 weeks. She said that she had one such treatment remaining and would then be changing her treatment regime including her medication so that she can better care for her children.
[43] She described that she had experienced difficulties with her IV catheter in the last year and it had been removed due to her having poor veins. She therefore cannot take medication by intravenous anymore and will now switch to an injection once per week. She's been informed that this would cause less impairment of her daily activities.
[44] She says she takes a low dose of THC as prescribed.
[45] When asked about pain, she described on a scale of 1 to 10 that she experiences pain at a level of five every day. She copes with the pain with the assistance of the Pain Clinic and at times with pain medication, though she no longer takes any such medication. She describes running, walking and being outside with her older daughter and participating in activities as a means of coping.
[46] She admitted to a history of a seizure disorder but said she had no seizures in the last two years. She says she takes medication for this. She did experience seizures during A.C.A.'s birth and remained at the Queen Elizabeth II Health Sciences Centre until the seizures stopped. She was on medication for this condition for approximately three weeks.
[47] She described taking medication for her Crohn’s disease which also addressed depression and anxiety, medication for her stomach and acid reflux, and a puffer for her asthma. She admitted to suffering from anxiety and depression.
[48] When asked about an Agency referral on August 11, 2015 in which a physician referred to her having a history of personality disorders, that she had been recently seen by psychiatrist and the medication was recommended, she denied ever being diagnosed with such personality disorder.
[49] She confirmed she has suffered from PTSD but had received treatment including psychotherapy through the Women’s Centre in or around 2010. This treatment was over a period of about five months and that her condition related to a history of domestic violence with a boyfriend years prior.
[50] When asked, she denied any suicide attempts.
Family Violence
[51] S.C.A. made significant allegations of a history of family violence by J.A. towards her. S.C.A. says that J.A. was an attentive and caring partner prior to marriage but after the marriage his behaviour changed. She said that he was verbally abusive to her, calling her lazy, degrading her with demeaning language and saying she was not good enough and would never amount to anything. She said that he made her feel small and inadequate.
[52] It was her evidence that J.A. would often lose his temper with the children, yelled at them and treated them roughly when they demonstrated normal behaviour for their ages. She says, for example, on one occasion A.C.A. climbed out of his crib, J.A. was frustrated with him and slammed him back in the crib. She says that J.A. was not very engaged with the children when they were together, and she did the bulk of the parenting and emotional support for the children.
[53] After separation, she says that after the children visited with their father, A.C.A. often returned acting in a violent manner which was unusual for him.
[54] She said that at times J.A. minimized her Crohn’s disease and colitis but at other times complained they were obstacles to her parenting. She said that she did most of the parenting and that J.A. told her "you're the mother, you should take care of them".
[55] She explained that she attended for treatments every four weeks and that after each treatment, she would be impaired for several hours during which time J.A. would attack her verbally.
[56] She described a final argument between them the day before she asked J.A. to move out. She said he woke her at 5:00 a.m. and told her to get up. He began an argument with her about whether they should separate. She said at one point he pulled her by the shirt, ripping it, cut the phone and internet cords and at that point she left to go to her father's home. When he called her to come back, she said she would not return and that she would call the police if he didn't leave the home. He left that day.
[57] J.A. denies each of these allegations. He denies verbally attacking S.C.A. or demeaning her. He does admit that he referred to her as being lazy, in relation to her refusal to contribute to maintaining a clean and tidy household or to cook, but denies any of the other allegations of abuse.
[58] For example, he denies yelling at S.C.A. to get up before he left for work but does say he made an effort to ensure she was up before leaving, so that she could prepare A.C.A. for school on time.
[59] J.A. flatly denies ripping S.C.A.'s shirt, cutting the phone and internet cords and denies losing his temper with the children including denying slamming A.C.A. down in his crib.
[60] He does admit to telling S.C.A. that she was unfit, on drugs and had serious mental health issues.
[61] J.A. confirmed that in 2010 he was convicted of threatening a former girlfriend, saying that he would burn the house down where she resided with her children. He explained he was 19 years old, intoxicated on cocaine and alcohol at the time.
[62] He confirmed that he was sentenced to probation including a requirement to attend for anger management at addiction services and he was prohibited from consuming alcohol. He said that he rarely consumes alcohol now and never around his children.
[63] He agreed that at the time he bottled up his anger, became drunk and acted out. He says that he learned since then how to better cope because of counselling he received.
[64] He also confirmed that in 2012 he was convicted of possession of a prohibited weapon, specifically a Colt 45 Beretta handgun, as well as unsafe storage of a firearm charge, specifically a 22-caliber rifle.
[65] He explained how he came into possession of the handgun. He said that his partner had gone to a strip club to meet a man to fulfil a fantasy of hers. He said that when she returned, the handgun was on the floor of the vehicle wrapped in a shirt. He said he didn't know the man had a gun when he made the agreement for his partner to meet him at the club. He said he retrieved the gun, wiped it and hid it in the bedroom closet. He said his partner knew nothing of the handgun but did know of the rifle in the home.
[66] He said he later learned that the handgun was used to shoot someone. In July 2011, a search warrant was executed at his premises where he resided with his same partner. Their child and her child were living there at the time.
[67] When he was asked by the police if there was any ammunition, he replied “probably in Bruce's head". When asked about this, he said that he only knew of the prior use of a firearm when the police arrived to execute the search warrant. He said the man who left the gun in his car had a terrible reputation and that he learned about all of this after the search warrant was executed. He said he was told that a man named Bruce was shot with the weapon and that he made the comment about the ammunition in that context.
[68] For these offenses, he confirmed he was sentenced to three months of house arrest and one year probation, requiring his attendance at Bridges and counselling.
[69] He further confirmed that between 2010 and 2012 he was abusing alcohol and cocaine. He says that he has not taking drugs for three years and, as described earlier, only occasionally consumes alcohol.
[70] Regarding violence by S.C.A., J.A. says that on June 26, 2017, they got into an argument before he left for work and S.C.A. broke a window in his car with her bare hand. He says at that time she told him “you're going down”. He says that he called the RCMP to attend and de-escalate the situation.
[71] Once the RCMP arrived, he spoke to them and told them that S.C.A. had written a suicide note to her eldest daughter who was nine at the time. He says he provided a copy of the note to the RCMP who took it and then brought S.C.A. to the hospital for a mental health assessment. No charges were laid.
[72] S.C.A. says the parties were fighting for two days and the kids went to her mother's home while they tried to resolve their disagreement. She says that J.A. was yelling and screaming at her saying she would never see the children again and calling her a “fat cow". She admits to hitting the car window and breaking it and feels bad for doing so.
[73] She says that J.A. commented on her weight during the argument. She said that she was a small and of modest weight her whole life and gained weight with her pregnancies. It was when he called her a “fat pig" that she struck the window with her hand.
[74] She denies having written a suicide or goodbye note to her daughter. Instead, she described writing “I love you" notes to the boys. She told the Agency worker that J.A. told her he would make sure she never saw the children again and because she didn't know what was going to happen she wrote letters to the children. She said these were not goodbye letters, rather letters just to let them know that she loves them in case she didn’t see them for a while.
[75] She said those letters were never seen or read by J.A. She confirmed that at the time neither child was old enough to read the note.
[76] In cross-examination, J.A. admitted that despite saying that he gave the note to the RCMP, this was not correct. He told the RCMP the contents of the note and the RCMP officer retrieved the notes from the home. This was confirmed in the Agency records which reflects that J.A. told the worker he did not see the letters and that the mother told him the contents. He said he saw her writing the notes. He claims this was simply an error in his affidavit when it was drafted.
[77] S.C.A. agrees that she was taken to the hospital by the police because J.A. told them that she was suicidal. She was assessed and was found to be of no risk to herself but couples counselling was recommended.
[78] Respecting counselling, she confirmed that they each met with the therapist and were told that they cannot both see that same therapist. J.A. was told to seek help elsewhere but she says he told the therapist that he knew everything he needed to know. She said she saw a therapist at the Women's Resource Centre for some time but currently does not see that therapist.
[79] S.C.A. was asked about text exchange with J.A. of December 14, 2017, in which she admits to saying, among other things, “I'll hurt you", “I'll ruin you", “your fucked" and “you're going down …". This was part of a communication between them in which J.A. accused her of wanting the children in her care for the extra money she would receive. To say the least, it was a disturbing exchange, though no doubt the threats were made when S.C.A. was in a heighten emotional state.
[80] When asked about her attendance at J.A.’s residence after her return from Toronto, she said that she wanted to get the children and their ran to her and they hugged. She says J.A. said, “please don't do this" and she replied that she was taking the kids. He then told her he was calling the police and she waited for them to arrive. The police spoke to both of them at which time J.A.'s partner arrived and a charge was laid. As described earlier, she was arrested and the children were left with their father.
[81] S.C.A. confirmed that J.A. called the Agency and an investigation was completed. Voluntary services were made available to her. Records of the Agency confirmed that when the worker spoke to S.C.A. about the incident, she recommended support through Naomi Society and counselling and S.C.A. agreed to participate in the services. She said that she did go to her own therapist and was scheduled for the first appointment with a psychologist at Mental Health in April 2018.
[82] There was evidence called respecting the criminal records of other person involved in the lives of the children. An objection was raised by counsel for J.A. respecting the admission of such evidence on the basis that the records were improperly obtained by counsel for S.C.A. contrary to Legal Aid policy. It was also noted that these individuals did not testify or file affidavits and were not called to address these records. I find that such records and evidence are inadmissible at this stage though such evidence may be admissible at a further hearing. I find that the probative value is outweighed by the prejudicial effect of such evidence at this stage.
M.K.
[83] J.A. raised a concern regarding M.K. Specifically, Agency records of December 13, 2017, confirmed that J.A. expressed concern for his children in part on the basis that M.K. was residing in the home with S.C.A. and that he had found out the day before that M.K. was not allowed to see his own children.
[84] In a record of the Agency J.A.'s concern regarding M.K. was discussed. They confirmed that domestic violence was substantiated on two occasions respecting M.K. but they had no information to say that he needed to be supervised with his own child. There was also no evidence to support that he was using illicit drugs and therefore no evidence that J.A.'s children were at risk in his presence.
[85] When presented this in cross-examination, J.A. still maintained that M.K. is not allowed to be around his children. He said he went on what he was told of the time and he confirmed this in both his viva voce and affidavit evidence.
[86] It is helpful at this time to note that it is the evidence of S.C.A. that she came to know M.K. because he was an old roommate and best friend of J.A.'s. She said she did not know him prior to being introduced to him by J.A. She said J.A. brought M.K. into their home to live without her consent but they did form a friendship.
[87] After separation, there is an exchange of texts between S.C.A. and J.A. in which J.A. says of M.K. “please try and keep M.K. of all our problems because I really like him as a friend and I don't want what happen between us getting between him and I". He goes on to say, “he's a great guy". S.C.A. says that J.A. raised no concerns regarding M.K. at any time with her.
[88] Despite this, J.A. reported to the Agency on December 21, 2017, several things including that M.K. was not allowed to see his child due to domestic violence, and that when he was in the home with S.C.A. and J.A., J.A. witnessed him using marijuana and methamphetamine. When asked why he didn't report his concerns regarding M.K., particularly the use of marijuana and methamphetamine, when he was in the home with S.C.A. and waited for months to report to the agency, J.A. then said he observed M.K. using methamphetamine in December, not when he resided there with S.C.A. He said that he saw M.K. take methamphetamine at work. He says the Agency worker got the information wrong.
[89] When asked in cross examination about why he didn't take the children when first asked by S.C.A., when she had to travel to Toronto for funeral, he testified that he couldn't afford to take the children, had nowhere to care for them and he was living in a camp at the time. He said his parents were working every day, his sister was pregnant and he had no notice or time to make any plans as he was notified at about 5:00 a.m. He was then able to work it out with his sister so that he can care for the children.
[90] When asked about the Agency record of December 22, 2017 which indicates that he told the worker that S.C.A. was gone for 17 days to Toronto, when in fact she was away only eight days, he says the worker again got the information wrong. He says that he told him she was gone 17 days that month in total, not 17 days in a row to Toronto.
Parenting Time
[91] S.C.A. says that J.A. was sporadic in his parenting of the children after separation. J.A. said that he saw the children regularly after separation. He attached to his affidavit a message with his mother in which he confirms some of the times he spent with the children in August and October 2017. He also attaches communication between he and S.C.A. about parenting time in November in which she appears to confirm his involvement with the children.
[92] On the other hand, J.A. says that since December 14, 2017 when he took the children into his care until the interim orders for granted, S.C.A. only spent time with the children on two occasions.
[93] S.C.A. testified that she really tried to see the boys since December 22, 2017 but each time J.A. put up barriers to that parenting time. He denies this and says that he agreed to every parenting time request made by her through a family member with one exception. He provides in an affidavit his summary of the various communications about parenting time requests and responses from December 23, 2017 through to and including February 27, 2018. These appear to reflect efforts by S.C.A. and responses by J.A. respecting parenting time during that period.
The Law
[94] The governing legislation in this circumstance is the Parenting and Support Act 1989 RSNS c.160 as amended (the Act). The beginning point in any analysis under that Act is s.18(5) which directs that:
In any proceeding under this Act concerning custody, parenting arrangements, parenting time, contact time or interaction in relation to a child, the court shall give paramount consideration to the best interests of the child.
[95] Section 18(8) further directs that:
In making an order concerning custody, parenting arrangements or parenting time in relation to the child, the court shall give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child, the determination of which, for greater certainty, includes a consideration of the impact of any family violence, abuse or intimidation as set out in clause (6)(j).
[96] In determining what I should consider in assessing what is in the children’s best interest, s.18(6) sets out some of the relevant considerations to be considered, though this list is not exhaustive. Some of those relevant considerations under this subsection are as follows:
(a) the child's physical, emotional, social and educational needs, including the child's need for stability and safety, taking into account the child's age and stage of development;
(b) each parent's… willingness to support the development and maintenance of the child's relationship with the other parent…;
(c) the history of care for the child having regard to the child’s physical, emotional, social and educational needs;
(d) the plans proposed for the child's care and upbringing having regard to the child’s physical, emotional, social and educational needs;
(g) the nature, strength and stability of the relationship between the child and each parent…;
(h) the nature, strength and stability of the relationship between the child and each… sibling, grandparent and other significant person in the child's life;
(i) the ability of each parent… or other person in respect of whom the order would apply to communicate and cooperate on issues affecting the child….
[97] I note that subsections (e) and (f) were not considered. The former considers the cultural, linguistic, religious and spiritual upbringing and no evidence of this was before the court. The latter considers the views of the child. Given their ages those views are not available to me.
[98] In this matter, there are allegations of family violence and as a result, I must consider section 18(6)(j) and (7) as follows:
The impact of any family violence, abuse or intimidation, regardless of whether the child has been directly exposed, including any impact on:
(i) the ability of the person causing the family violence, abuse or intimidation to care for and meet the needs of the child, and
(ii) the appropriateness of an arrangement that would require co-operation on issues affecting the child, including whether requiring such co-operation would threaten the safety or security of the child or of any other person.
[99] When determining the impact of any family violence, abuse or intimidation, the court shall consider:
(a) the nature of the family violence, abuse or intimidation;
(b) how recently the family violence, abuse or intimidation
occurred;
(c) the frequency of the family violence, abuse or intimidation;
(d) the harm caused to the child by the family violence,
abuse or intimidation;
(e) any steps the person causing the family violence, abuse
or intimidation has taken to prevent further family violence, abuse or
intimidation from occurring; and
(f) all other matters the court considers relevant.
[100] Family violence is defined in Section 2(da) as follows:
“Family violence, abuse or intimidation” means deliberate and purposeful violence, abuse or intimidation perpetrated by a person against another member of that person’s family in a single act or a series of acts forming a pattern of abuse, and includes
(i) causing or attempting to cause physical or sexual abuse, including forced confinement or deprivation of the necessities of life, or
(ii) causing or attempting to cause psychological or emotional abuse that constitutes a pattern of coercive or controlling behaviour including, but not limited to,
(a) engaging in intimidation, harassment or threats, including threats to harm a family member, other persons, pets or property,
(b) placing unreasonable restrictions on, or preventing the exercise of, a family member’s financial or personal autonomy,
(c) stalking, or
(d) intentionally damaging property,
but does not include acts of self-protection or protection of another person;
[101] The analysis of the children’s best interests does not end with the factors set out under the Act. I must also look to what other courts have said in relation to the determination of a child's best interest. The leading decision in Nova Scotia respecting that analysis is Foley v. Foley 1993 CANLII 3400 (NSSC), a decision of Goodfellow J. I note that this decision predates the Act and the factors contained in s. 18(6) and I find that the so-called “Foley factors” have been largely subsumed by those amendments. That said, Foley supra remains a helpful analysis of the test of best interests. In this oral decision, I will not list those factors in the interests of time but confirm I have considered them in this decision and reserve to myself the right to reference them in any written decision in this matter.
[102] It is also important and relevant to consider the law respecting interim custody applications. The considerations in the circumstances are different in many ways from those in final hearings. The law was helpfully summarized by Justice Forgeron in the decision of A.M. v. N.B. 2005 NSSC 352 beginning at paragraph 30:
In Pye v. Pye (1992) 112 N.S.R. (2d) 109 (T.D.), Kelly, J. reviewed the law applicable to interim applications and noted that the status quo of the child must be maintained as closely as possible pending the final hearing. The children should be placed in the environment with which they are most familiar. Kelly, J. states at para. 5:
I concur with Grant, J. in Stubson v. Stubson (1991), 105 N.S.R. (2d) 155; 284 A.P.R. 155 (N.S.S.C.,T.D.) that the test in such an application was properly set out in Webber v. Webber (1989), 90 N.S.R. (2d) 55; 230 A.P.R. 55 (F.C.), by Daley, F.C.J. at p. 57:
Given the focus on the welfare of the child at this point, the test to be applied on an application for an interim custody order is: what temporary living arrangements are the least disruptive, most supportive and most protective for the child. In short, the status quo of the child, the living arrangements with which the child is most familiar, should be maintained as closely as possible.
The status quo which is to be maintained is the status quo which existed without the unilateral conduct of one parent unless the best interests of the child, dictates otherwise. In Kimpton v. Kimpton [2002] O.J. No. 5367, Wright, J. defined status quo in para. 1, which reads as follows:
There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof. On this consideration hangs all other considerations. On motions for interim custody the most important factor in considering the best interests of the child has traditionally been the maintenance of the legal status quo. This golden rule was enunciated by Senior Master Roger in Dyment v. Dyment, [1969] 2 O.R. 631, (aff'd by Laskin J.A. at [1969] 2 O.R. 748), by Laskin J.A. again in Papp v. Papp, [1970] 1 O.R. 331 at pp. 344-5 and by the Nova Scotia Court of Appeal in Lancaster v. Lancaster (1992), 38 R.F.L. (3d) 373. By status quo is meant the primary or legal status quo, not a short-lived status quo created to gain tactical advantage. See on this issue Irwin v. Irwin (1986), 3 R.F.L. (3d) 403 and the annotation of J.G. McLeod to Moggey v. Moggey (1990), 28 R.F.L. (3d) 416.
This principle is more firmly reviewed in the annotation of James McLeod in the decision of Moggey, supra, when McLeod, J. states in part:
"Status quo" is not just the short-term living arrangement. It is the way of life that existed before the current issue of custody or access arose. On a variation application, the court should continue the legal custody order in the absence of clear evidence that the welfare of the child requires another disposition.
The same analysis would suggest that one person cannot unilaterally remove a child from the family home without a custody order and claim that the "status quo" should be maintained pending the hearing. As Vogelsange Prov. J. held in Lisanti v. Lisanti (1990), 24 R.F.L. (3d) 174 (Ont. Prov. Ct.,) the removal violates the custody rights of the other parent. The bottom line is that self-help should be discouraged.
[103] As to the factors for consideration, some are set out in the helpful decision of Justice Jesudesen in R.R. v. S.R. 2015 NSSC 206 beginning at paragraph 7:
Similarly, in Webber v. Webber, 90 N.S.R. (2d) 55 (F.C.), Judge Daley stated:
10 Interim custody is directed toward the temporary, short term care of a child. It is a preliminary step taken to ensure the child who is the object of a custody dispute, is looked after as best as possible until a final decision on where the child will live, is made. There must be a recognition that the final custody order may not be the same as the interim order; one parent may obtain the child by interim order, but after all the evidence is in and considering the long term needs of the child, the other parent may obtain the child in the end.
11 Given the focus on the welfare of the child at this point, the test to be applied on an application for an interim custody order is: what temporary living arrangements are the least disruptive, most supportive and most protective for the child. In short, the status quo of the child, the living arrangements with which the child is most familiar, should be maintained as closely as possible. With this in mind, the following questions require consideration.
1. Where and with whom is the child residing at this time?
2. Where and with whom has the child been residing in the immediate past? If the residence of the child is different than in # 1, why and what were the considerations for the change in residence?
3. The short term needs of the child including:
(a) age, educational and/or pre-school needs;
(b) basic needs and any special needs;
(c) the relationship of the child with the competing parties;
(d) the daily routine of the child.
4. Is the current residence of the child a suitable temporary residence for the child taking into consideration the short terms need of the child and:
(a) the person(s) with whom the child would be residing;
(b) the physical surrounding including the type of living and sleeping arrangements, closeness to the immediate community and health;
(c) proximity to the pre-school or school facility at which the child usually attends;
(d) availability of access to the child by the non-custodial parent and/or family members.
5. Is the child in danger of physical, emotional or psychological harm if the child were left temporarily in the care of the present custodian and in the present home. [emphasis added]
Analysis and decision
[104] This an interim decision and given that, I find that the status quo existing at time the application was made is the appropriate place to begin. The evidence on this is clear. The children have been in the primary care of S.C.A. from separation until her departure for Toronto for her uncle's funeral in December 2017, a period of approximately 4 months. Regardless of the conflict between them at that time respecting whether J.A. could or should have taken the children in her absence, the fact is that the children came into J.A.'s care as a result of that agreement. They were in J.A.'s care while S.C.A. was in Toronto for approximately eight days. I do not find this is sufficient to establish a new status quo for the children. I find that the status quo at the time of this application was that the children were in the care of their mother for a significant period of time.
[105] As noted by Justice Forgeron, in A.M. v N.B. “The status quo which is to be maintained as the status quo which existed without the unilateral conduct of one parent, unless the best interests of the child dictate otherwise”. Judge Daley in Webber v Webber expressed this rule as, “…the status quo of the child, the living arrangements with which the child is most familiar, should be maintained as closely as possible.”
[106] Finally, as noted by Justice Wright in Kimpton v Kimpton:
“There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof. On this consideration hangs all other considerations.”
[107] In this case, I find that the de facto custody of the children was in the care of their mother.
[108] I also note that status quo is not established in this or any other matter by the effect of interim orders for custody or parenting time for children. The law has long recognized that such interim orders cannot be allowed to establish a status quo. To do so would be to provide an advantage to a party who, on limited evidence, has receive benefit of an interim order where there was no intent by the court to provide such an advantage to that party. In this case, therefore, the fact that interim orders have been granted by this court providing J.A. with primary care of the children after S.C.A. commenced her application has no weight in the assessment of the status quo analysis.
[109] That said, there are certainly other factors at play in the evidence before this Court. This evidence bears on the question of whether the status quo should be maintained in this case or whether “there is some compelling reason why, in the interests of the children, the parent having de facto custody should be deprived thereof". To determine this, I consider several factors, which are set out in no particular order of priority, arising from the evidence.
[110] The first of these is the health of S.C.A. Though I do not have expert evidence with respect to the details of her conditions, her own evidence and that of J.A. confirms that her Crohn’s disease and colitis, asthma and other physical challenges have, from time to time, impacted her activities of daily living. For example, her own evidence is that after the IV treatment she has received for her Crohn’s disease and colitis, she is limited in her functioning for at least several hours. J.A.’s evidence is that she was often limited for several days.
[111] There is also evidence before the court that she has experienced challenges with these conditions, particularly Crohn’s disease and colitis, separate and apart from the treatments that she has received for those conditions. I accept her evidence that these are conditions are managed through medication and treatments but there is considerable evidence that, over the years, she has experienced significant pain for which she had to take opioids. I am satisfied that from time to time over the years these various medical conditions have impacted her ability to carry out her day-to-day functions and her parenting responsibilities.
[112] That said, it was her evidence that she has not required morphine or any other opioids for some time. She has begun a new treatment regime which she understands should lessen the debilitating effects of the treatment for her. I find her evidence on this issue to be credible.
[113] Significant in this analysis is the fact that J.A. did not seek primary care of the children after separation until the trip taken by S.C.A. to Toronto in December 2017, a period of approximately four months, despite his professed concern respecting the impact of her health and various medical conditions on her ability to care for the children. Put simply, despite his stated concerns, he did not feel they were significant enough to make application to the court or otherwise seek care of the children until S.C.A. departed for Toronto for the funeral in December 2017. I find that to be relevant.
[114] I am, however, not blind to the evidence of J.A. that he is concerned that S.C.A. may be addicted to opioids and has exhibited drug-seeking behaviour. There is evidence from a physician in 2015 of drug-seeking behaviour and a question raised at that time respecting whether she was using excessive amounts of opioids that had little to do with her medical conditions.
[115] Despite this, there is no evidence to suggest that S.C.A. is currently exhibiting any such drug-seeking behaviour, is addicted opioids or in fact is even using them today. Her uncontradicted evidence is that she is no longer prescribed opioids and hasn't been for some time. She says she manages her pain through various other techniques and does use low dose THC to assist. There are no records, medical or otherwise, to suggest that she has any current addiction to opioids.
[116] This does not mean that she does not experience pain. In fact, it is her own evidence that on a scale of 1 to 10, she lives with pain and about a level 5 in her daily life. It is her evidence that she manages this as noted and can not only participate in daily activities but parent the children safely. I find there is little evidence to suggest otherwise.
[117] J.A.’s assertion that S.C.A. is taking morphine every 4 to 7 hours was based on his extrapolation of a hospital record from when she was delivering a child, not based on current information or observation. I do not find that evidence persuasive.
[118] I do have some concern that when she is receiving treatment, she may not be able to care adequately for the children while she recovers, particularly given their young ages. That said, respite with the father can be ordered if she requires this during that time.
[119] Respecting domestic or family violence and various criminal behaviors by the parents, that evidence is relevant. J.A. has a significant criminal history for uttering threats, possession of a prohibited weapon and unsafe storage of a firearm. He has also been convicted for a drug offense and admits that he consumed cocaine from 2010 to 2012. He describes a history during that time of drug and alcohol abuse.
[120] His explanation respecting his possession of the firearm, specifically the handgun, is concerning to me. Even if his version of the facts concerning how he came into possession of the handgun is accurate, I find that evidence to be challenging. The fact that he retained that firearm, wiped it down, hid it in a closet and did not turn it over to the police until a search warrant was executed demonstrates to me, at best, extremely poor judgment on his part.
[121] Despite all of this, there has been a significant passage of time since those offenses and behaviour. There's no evidence before me that he has recently engaged in similar criminal activities nor evidence that he is currently abusing alcohol or drugs. The fact that these activities took place at least five years ago provides some comfort to this Court that this history is behind him and does not pose a risk to the children.
[122] As for S.C.A., her history is more recent. It begins with her a breaking of the window of the vehicle in anger as described in the evidence. I accept her evidence that it was in response to comments being made by J.A. towards her which were demeaning and upsetting to her. That said, her reaction of violence is of concern.
[123] Of concern as well is the tone and content of certain text communication with J.A. The language she used was quite threatening and inappropriate. She was upset with J.A. and though this provides context, it does not fully relieve her of responsibility for the language used and what it suggests respecting her own temperament and attitude towards the father of her children.
[124] As well, she has been charged with unlawful entry into a dwelling because of her attempts to retrieve the children from the care of J.A. on her return to Nova Scotia. While this matter has not proceeded to trial in Provincial Court at the time of the hearing of this matter, and while any criminal charge in the context of the family circumstance is concerning to the court, on any reading of the evidence S.C.A.'s behaviour is regrettable but not so severe that it should, in and of itself, disqualify her from parenting her children. She did not break and enter the home. She is alleged to have entered without lawful authority to retrieve the children. If true, that is regrettable and should not have been her choice at the time. But it does not amount, in my view to, to a violent act.
[125] Respecting the alleged suicide note, I find that the evidence does not support the conclusion that S.C.A. wrote a suicide note or even a goodbye note. The evidence is that J.A. did not read the letters and that they were retrieved by the RCMP from the home. The only evidence before me of from anyone who knows the content of those letters is from S.C.A. says they were written to the children when she was unsure if she was going to have care of them and she wrote letters to the children to assure them that she would not give up on them. There is no evidence before me on which I can make a finding that these were anything other than as described by S.C.A.
[126] That said, there is some evidence before me that S.C.A. has experienced mental health challenges, specifically depression and anxiety, in the past. She denies any suicide attempts but certainly she has been the subject of assessment for mental health concerns. Yet there is little evidence that she is currently experiencing any mental health crises other than the medication she takes by her own admission for depression and anxiety.
[127] Each of the parents maintains that the other has been sporadic or less than fully involved in parenting the children. Specifically, S.C.A. says that J.A. was sporadic in his parenting after separation. I find that the evidence indicates that he made reasonable efforts at to spend time with the children after separation.
[128] Likewise, J.A. maintains the S.C.A. did not seek a parenting time after her return from Toronto. While there is some evidence of that, she did make application to the court in this matter to seek return of the children and I find that she made efforts to see the children. I do not find this evidence to be particularly compelling in determining the appropriate interim arrangements for the children at this time.
[129] As with most family cases, credibility is at issue in this matter. At the interim stage of these proceedings, I am cautious to avoid making findings of credibility as a full hearing is yet take place and I do not have benefit of all the evidence available in making such findings. At this time I will limit my comments to saying that I have credibility concerns with both of the parties before the court.
[130] J.A. poses certain credibility challenges for the court. While this may need to be explored further at a final hearing, I will note that his evidence regarding M.K. raises concerns. On one hand, his text with S.C.A. describes M.K. as a good guy he wishes to keep out of the middle of the conflict and maintain a good relationship with. On the other hand, he tells the Agency that he has witnessed M.K. consuming methamphetamine in the home when J.A. resided there with him and S.C.A. He then goes on to say that this was recorded in error and he witnessed the drug use months later at work. This is problematic but do not find it necessary to determine the issue now except to say that the records of the Agency, if accurate, beg the question of why he waited for months to report the use of methamphetamine in the home.
[131] Similarly, J.A.'s referral to the Agency on December 21, 2017 that he had witnessed the mother abusing pain medication while he was in a relationship with her raises the question why he waited so long, approximately four months, to make that information known to the Agency. His explanation that he could not report earlier because he could not have care the children until December rings hollow considering his expressed concern for the safety of the children. It appears that the either he was being truthful and allowed his children to remain in the care of S.C.A. despite the significant risk he identified, or he was not being truthful with the Agency respecting what he claims to have observed. In either case, this is problematic.
[132] As S.C.A.'s credibility, it is challenging as well. Her evidence, for example, that J.A. had not seen the children for three months after separation is inconsistent with text messages between the parties introduced at the hearing.
[133] Similarly, S.C.A.'s claim that she tried hard to see the children between December 14, 2017 and February 20, 2018 is not borne out by much of the evidence. It appears that she made minimal effort to do so except for one visit and this raises issues of her credibility on that matter.
[134] As to ability to meet the needs of the children, I find that either can provide for these needs. There is no evidence that J.A. has not been looking after the children well and looking after their daily routine when they are in his care. Their basic needs have been met and he has facilitated parenting time with their mother.
[135] Likewise, I find that S.C.A. can provide for those needs. Prior to her trip to Toronto in December 2017 she had care of the children could meet their needs despite the concerns of J.A. I do have concerns that she did not seek much parenting time after the children came into his care, but I find that she can meet their needs and would facilitate the relationship with father under an appropriate court order.
[136] As to the current residence of the children with her father and whether it is suitable considering the short-term needs, I do find that J.A., who resides at his parents’ home and on occasion with his partner in Truro, is able to provide an appropriate residence that will meet the children’s short-term needs. There are no concerns raised respecting these physical surroundings and I am satisfied he has made parenting time available to the mother with the children.
[137] I am not concerned respecting J.A.'s distant history of cocaine and alcohol abuse and criminal behaviour. There is no recent evidence of similar behaviour and I do not have concern in this respect.
[138] Respecting any risk to the children of physical, emotional or psychological harm in the care of either parent, more recent troubling behaviour is that of S.C.A. Despite this behaviour, including the breaking of the car window, the involvement of the police when she attended to pick up the children and her threatening language in text with the father, I am satisfied that she does not pose any risk to the children and has been able to parent them for approximately four months’ post-separation. I have already commented on her medical and psychological circumstances and I am satisfied that she is managing these appropriately and does not pose a risk to the children now.
[139] For these reasons, and considering the interim nature of this hearing, the law including the Act, the caselaw and all other factors that I must consider, I find it is in the best interests of the children that they return to the primary care of their mother forthwith and that their father shall have significant parenting time with them.
[140] After rendering my oral decision in the matter and because I was not fully aware of the father’s employment and other circumstances and therefore his availability for parenting time, I heard from counsel with respect to proposals for an interim parenting arrangement. After submissions, I provided an order as set out herein.
[141] There will be an order of joint custody between the parents. They will meaningfully consult on all major issues concerning the health and general well-being of the children. They will each be entitled to obtain any information from any third-party service provider respecting the children, and will keep each other informed of any such issues that may arise from time to time. Each may attend any appointments or other significant events for the children, and they will notify each other of any such appointments or significant events as they arise.
[142] The mother shall have primary care and residence of the children beginning on Monday, April 16 at 4:00 p.m.
[143] The father shall have parenting time each week from Friday at 5:00 p.m. until Sunday at 6:00 p.m. Pick-up and drop-off of the children shall be done by the parties at the Tim Horton’s/Wendy’s restaurant off Exit 23 of the Trans-Canada Highway at New Glasgow, NS. The father shall provide the mother with car seats for both children and she shall return these car seats with the children.
[144] During exchanges, there shall be no conversation between the parents other than those that refer to the immediate needs of the children.
[145] Both parents shall be entitled to one block week of parenting time with the children in July and one block week of parenting time in August, such block week beginning on a Friday at 5:00 p.m. and ending 9 days later on Sunday at 5:00 p.m. The parent exercising their block week must notify the other at least fourteen (14) days in advance. In the event of conflict between the parties as to scheduling block weeks, the father’s schedule shall take priority over the mother’s during the summer of 2018, and subsequent even-numbered years, with the mother having priority in odd-numbered years. The father’s block week in July 2018 will be from Friday, July 20th until Sunday, July 29th. The Father’s block week in August 2018 will be from Friday, August 10th until Sunday, August 19th.
[146] Either parent may travel anywhere in the Maritime provinces during their respective block weeks, and, in the event of such travel, will provide the other party with contact information as well as a travel itinerary.
[147] Either parent may travel anywhere outside the Maritime provinces during their respective block weeks and, in the event of such travel, will provide contact information to the other parent as well as a travel itinerary. Each parent shall cooperate in obtaining and signing all documents required for travel including, but not limited to, passports and consent forms.
[148] Neither parent will permanently relocate the children outside the province of Nova Scotia without written consent of the other party or a Court Order.
[149] Each parent is absolutely prohibited from making any negative or derogatory comments about the other parent or the other parent's family at any time that they have care of the children, whether the children are present or not. Each parent is also required to ensure that no other person makes any negative or derogatory comments about the of the parent or the other parent's family at any time that the parent has care of the children. If such comments are being made by anyone else, the parent in care of the children will ensure that such comments stop immediately, or the children are removed from the vicinity, or the person making the comment is removed from the vicinity of the children.
[150] All communication between the parents shall be in a polite, respectful, businesslike and child focused manner. The primary means of communication between the parent shall be by text and they will be entitled to communicate by telephone or in person in an emergency. Neither parent shall block texts from the other. All communication will be subject to any restrictions placed on the parties, either individually or together by an order, undertaking or direction of the Provincial Court and if any prohibition exists respecting communication between the parties by the Provincial Court, all such communication shall be effected through a third-party mutually acceptable to the parents.
[151] Each party is prohibited from consuming or being under the influence of alcohol or any nonprescription medication at any time that they have care of children. Each party may only consume prescription medication in accordance with the appropriate medical prescription issued in their name.
[152] If at any time the mother is unable to adequately provide for the needs of the children, including such times that she may be receiving medical treatment or is recovering from such medical treatment, she is to contact the father as far in advance as possible to make arrangements for him to take the children for a reasonable period of time, until she is able to care for the children again.
[153] The mother shall make all reasonable efforts to maintain her physical and mental health, she shall take all medications as prescribed, she shall accept all appropriate treatments as recommended by her health professionals and shall follow the advice of all health professionals involved in her care.
[154] The parties shall return to Court on Tuesday, July 17 at 10:00 a.m. for a status review.
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Daley, J.