IN THE SUPREME COURT OF NOVA SCOTIA
Citation: M.D.M. v. D.T. M., 2010 NSSC 474
Date: 20101206
Docket: 1207-003205(059646)
Registry: Truro
Between:
M. D. M.
Petitioner
v.
D. T. M.
Respondent
DECISION
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Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
Judge: The Honourable Justice Allan Boudreau
Heard: November 8, 9, 10, 12 & December 2 & 6, 2010 at Truro, Nova Scotia
Written Decision: January 6, 2011 (Written release of oral decision of December 6, 2010)
Counsel: Alain Begin, Solicitor for the Petitioner
D.T. M., Respondent, self-represented
By the Court:
[1] Mr. M. and Ms. S. were married in September of 1999 but had lived
common law since the fall of the previous year. Therefore the period of cohabitation would be from September of 1998 to April of 2008. A period of approximately nine year and seven months.
[2] The parties separated on April 12, 2008 after an altercation in the family
home. This also involved the children. This altercation resulted in a charge of common assault against Mr. M. and Family and Children’s Services became involved at that time.
[3] There are two children of the marriage, R., age ten, and H., age four.
Access parenting by Mr. M. has not been regular or normal since the separation on April 12, 2008. At first there was no access and then there was supervised access. The matter has not progressed significantly beyond that point. This has been due in large part to Mr. M. not accepting the break-up of the marriage, or the restrictions and arrangements which were put in place regarding access. There were difficulties with transfer of the children for access visits and there were difficulties with the visits themselves, due in large part to the tension in Mr. M.’s residence and with his interactions with the boys. This involved particularly Mr. M. questioning them for information or making disparaging remarks about Ms. S. or her new female friend. These tensions made it difficult for Doctor Jolaine States, a clinical psychologist who deals primarily with children and parenting assessments. She filed a report and testified in this matter. She had been guiding the access by Mr. M., but found it difficult to recommend expanded access. Dr. States was of the view that Mr. M.’s behaviour and his attitude was causing stress for the boys, particularly for R., and that more conventional access was not in the boys’ best interest until a period of access stability was established. Mr. M. had to work on occasion and, therefore, had to cancel some scheduled access. However, in my view, this should not be held against Mr. M. provided he give 72 hours notice and tries to make up missed access so the boys will continue to feel that he is there for them.
[4] There was an alleged incident as late as October 30, 2010, and this again
caused access to be suspended. The allegation was a striking of R. by Mr. M.. I am not entirely clear where this latest allegation stands but there has been renewed supervised access this past weekend and I am told it went very well.
[5] Mr. M. is asking the Court for joint custody with conventional
weekend and other unsupervised parenting time with the boys. In view of the present precarious situation between the parents I find that would not be appropriate at this time. The parties are just beginning to communicate directly with one another by e-mail and direct phone or face to face communication is not feasible at this time. Everyone wants to work towards a normal parental access relationship between the parties; but there is some way to go before that can occur. Although, if Mr. M. continues to have the attitude which he has displayed of late, I see no reason why that would not eventually occur. Most of the responsibility for that to happen rests with Mr. M..
Custody and Access
[6] Ms. S. shall have sole custody of the children, R. and H.. Mr.
M. shall have supervised parenting time as follows:
December 11, 2010 - 12:00 noon to 7:00 p.m.;
December 16, 2010 - 3:00 p.m. to 7:00 p.m.;
December 19, 2010 - 10:30 a.m. to 5:30 p.m.
Supervisor costs shall be shared 65% by Ms. S. and 35% by Mr. M.. Mr. M. shall have unsupervised access on Boxing Day, December 26, 2010 from 10:30 a.m. to 5:30 p.m. and at the same time one day each weekend thereafter until and including the weekend of January 15, 2011. Mr. M. shall have unsupervised access after the weekend of January 15, 2011 as follows:
(a) Every second weekend from Saturday at 11:00 a.m. to Sunday at 3:00 p.m. commencing January 22, 2011 to and including February 12, 2011;
(b) Every second weekend from Friday at 5:00 p.m. to Sunday at 4:00 p.m. commencing February 26, 2011;
( c ) Two, two week blocks of time but not consecutive, with two weeks in between, during the months of July and August. The parties agree that at least 30 days advance notice of the intended scheduled two week blocks will be given and these blocks agreed to between the parties;
(d) For the day of the three major annual aboriginal holidays which I understand to be Aboriginal Day, Treaty Day and St. Anne’s Day;
(e) The parties shall alternate parenting time during March break from 5:00 p.m. on Friday to Sunday at 4:00 p.m. of the following weekend. Ms. S. to have the 2011 March break with the children and alternating every year thereafter;
(f) The parties will share holidays, for example Father’s Day, Mother’s Day, Easter, Christmas, etc., as fairly as possible.
[7] Needless to say Mr. M.’s parenting time is conditional upon he being
available to spend the time with the children and not be at work. If he requires to cancel or change any access he must give 72 hours notice to Ms. S..
[8] For the time being the parties shall communicate by e-mail only.
[9] The children shall be allowed to call Mr. M. from Ms. S.’s
residence at reasonable times.
[10] Neither party shall permanently remove the children from the Province of
Nova Scotia without the written consent of the other party or a further order of the Court.
[11] Neither party shall make disparaging remarks about the other in front of the
children or within hearing of the children and neither party shall question the children about the activities of the other party.
Child Support
[12] I am going to set Mr. M.’s income at $35,000.00 per year for the
present. That is $32,500.00 from income and $2,500.00 from the * annual payment, for a total of $35,000.00. I am not satisfied that I should impute income at this time to Mr. M. for a * business. However, that will be monitored as the parties will have to exchange income tax returns and notice of assessments by June 1st of each year.
[13] Ms. M.’s income is $65,000.00 for the purposes of the Corollary
Relief Judgment.
[14] Mr. M.’s income requires a payment of $517.00 per month from him
commencing on December 1, 2010. That will continue during periods of unemployment because I have calculated his income on a year-round basis.
[15] All payments will be registered through Maintenance Enforcement.
[16] If there are any extraordinary expenses, Ms. S. shall provide particulars to
Mr. M., who shall obtain whatever reimbursements or contributions are available through the * and any remainder shall be shared 35% for Mr. M. and 65% for Ms. S..
Spousal Support
[17] Mr. M. makes a claim for spousal support. I see no justification in
the circumstances to order spousal support. I am not satisfied there is a need nor an ability to pay at the present time. In effect Mr. M. would be requesting to pay child support with one hand and then take it back with the other by way of spousal support. In the circumstances of this case and the financial statements that I have seen, the claim for spousal support is denied.
DNA
[18] I am not prepared to make any order regarding DNA tests that were
allegedly performed. This decision and the record will show that neither Mr. M. nor Ms. S. questioned the fact that both children are the natural children of these two parents and no one else. That was clearly stated on the record by both parties.
Division of Assets
[19] I have no valuations for either parties’ pension. Therefore it is not possible
to have any lump sum to offset one against the other. In the circumstances I have no alternative but to order the pensions earned by either party during the period September, 1998 to April, 2008, which is nine years seven months, to be divided equally at source, pursuant to the applicable pensions division legislation.
Other Assets
[20] The 2003 Cavalier is to be sold and the proceeds after payment of the repair
costs shall be shared equally by the parties. Mr. M. can have his mother’s dishes, his father’s leather luggage, his parents jewellery, his hockey gear, his ball gear, the headrest for his truck, his mother’s rocking chair, and his remaining Ducks Unlimited prints. Mr. M. can also have all the guns, including the two guns bequeathed to R. by Mr. M.’s father upon Mr. M. producing to Ms. S., through her counsel, a copy or proof that he holds a valid Firearms Acquisition Certificate and can register the guns in his name. I believe it is more appropriate that Mr. M. have the guns that were bequeathed to R. by Mr. M.’s father.
[21] The West Jet tickets have no value and there is nothing to divide.
[22] The following is the Balance Sheet for the Division of Assets and Liabilities between the parties;
BALANCE SHEET
ASSETS MR. M. MS. S.
Matrimonial Home - value $160,500.00
(less nominal disposition costs - $9,600 +
$800) $ 150,100.00
House Contents (including generator) 4,000.00
Family Business - *
(Excepting vehicles) $ 5,000.00
4 wheeler 3,000.00
Truck less loan = $0 _______________________________________
TOTAL ASSETS $ 8,000.00 $ 154,100.00
DEBTS
Mortgage on matrimonial home $ 103,953.03
Visa - Scotia Bank 377.96
Oil Bill 504.98
Life Insurance 80.00
Phone Bill $ 206.88
Power Bill 44.00
Truck loan - less truck value = $0 0
TOTAL DEBTS $ 250.88 $ 104,915.97
Net Assets $ 7,749.12 $ 49,184.03
Equalization + 20,717.46 - 20,717.46
TOTALS $ 28,466.58 $ 28,466.59
Equalization less amounts owed by Mr. M. $ 20,717.46
less - child care - $18,950 x 40% $ 7,580.00
less - child counselling - $3,900 x 40% 1,560.00
less - child support - May to Sept. 2008 2,880.00
= 12,020.00 - 12,020.00
Net owed by Ms. S. to Mr. M. $ 8,697.46
[23] The net amount owing by Ms. S. to Mr. M. of $8,697.46 will be
released to Mr. M. upon Mr. M. signing a Quit Claim Deed to Ms. S. and Ms. S. effecting a release of Mr. M.’s obligation for the mortgage on the matrimonial home.
[24] Each party shall bear their own costs.
[25] Mr. Begin will prepare the Orders.
Boudreau J.