(FAMILY DIVISION)
Citation: Daw v. Manson, 2009 NSSC 141
Date: 20090429
Docket: SFHMCA-032511
Registry: Halifax
Between:
Matthew Daw
Applicant
v.
Michelle Manson
Respondent
Judge: The Honourable Justice Deborah Gass
Heard: October 1, 2, 3, November 21 and December 17, 2008,
in Halifax, Nova Scotia
Counsel: Philip Whitehead, for the applicant
Susanne Litke, for the respondent
By the Court:
[1] This is an application to vary custody. The application was filed November 16, 2007 and seeks variation of a custody decision made in December, 2006 and its subsequent order dated May, 2007. The subject of the application is the parties’ daughter, Prudence Michelle Noreen Manson (“Prue”), born April 16, 2004. The applicant is Matthew Daw (hereinafter referred to as Mr. Daw, the father, or the applicant). The respondent is Michelle Manson (hereinafter referred to as Ms. Manson, the mother, or the respondent).
[2] Since birth Prue has been in the primary care of her mother, the respondent. The applicant initially made an application for paternity testing which established that he is the biological father of the child. A consent order dated February 22, 2005 and issued September 8, 2005 provided for the mother to have primary care and the father having input into major issues, with final decision making authority resting with the mother in the event of a disagreement. Fixed and specified parenting time was spelled out in the consent order.
[3] In February, 2006, the mother applied to vary the order in that she sought to relocate the child to the province of New Brunswick. She actually moved to New Brunswick in April, 2006 and the father indicated his intention to apply for custody.
[4] In October, 2006 the father filed a counter application to vary, seeking primary care and custody of the child.
[5] In December, 2006, Ferguson, ACJ rendered an oral decision following a contested hearing. He found there was a material change in circumstances since the granting of the original consent order, he was then charged with determining what was in the child’s best interests. In his decision he outlined Mr. Daw’s position as follows:
... that he and his common-law partner have established an appropriate residence to house Prudence; he and his partner have established a warm and positive relationship with Prudence; that his common-law partner’s training as a child care worker further enhances their ability to provide appropriate for Prudence; although it is acknowledged that both he and his partner work full-time, it is pointed out that they have secured a spot for Prudence in the daycare centre where she is employed; further that he has relatives ready, willing, and able to provide intermittent care, if the need for such arises. They have a history of providing appropriate extended overnight and beyond care for Prudence. He further submits he will facilitate a relationship between Prudence and her mother to a greater extent than Ms. Manson has provided to date as to the relationship between he and his daughter. He submits Ms. Manson’s personal lifestyle, and her history, as an individual and a mother is illustrated by deceit, untruthfulness, uncertainty, and even danger; that Ms. Manson left home at an early age and since then has resided in a number of areas and placement, some imposed on her by the State - that she has maintained numerous relationships, some with older men entered into on a whim, relationships that did not enhance or provide security for she, or her children, and in some instances placing she and her children in harms way from the respective of physical and verbal abuse - that this current relationship has come about in the same manner as her others and will, in all probability, proceed and end in a similar fashion as those in her past, bring forth a negative environment for she and her children. In short, placing Prudence with him will provide her with a more secure and stable environment, with a parent.
[6] He then outlined Ms. Manson’s position:
Ms. Manson’s plan, as she submits, is as follows - somewhat. Ms. Manson has entered into a relationship with Marc Gould, who has worked steadily for the same employer for a number of years. He has steady and substantial income and owns a home in a rural community in Albert County in New Brunswick; that the couple plan to move into that home in the very near future; that their current location is also an appropriate family setting. Their family will be comprised of Ms. Manson’s son Brice, Prudence, and a future child that is expected very shortly. That although she has the required skills to be employed, she will be remaining at home for the foreseeable future to provide for the three children. That she has provided the primary care for Prudence since birth, and who is portrayed as a well adjusted and happy child. Her provision of constant care will allow for Prudence to live in a home with a half-brother Brice, and a soon expected other half-sibling, and in the case of Brice, a child to whom Prudence has become attached. Ms. Manson acknowledged the allegations as to her past untruthfulness and impotent choices of companions. She, however, submits there is evidence and made available to the Court medical evidence indicating that a change in her lifestyle, and possibly a reason for her acting in the past in the way she did. She further questions the stability of Mr. Daw’s plan. She questioned his current relationship, his use of marijuana, she points to his spotty work record, she suggests if she does have a history of questionable relationships, Mr. Daw would certainly be counted as one of them. She suggests there is no clear evidence Mr. Daw has obtained a placement for Prudence in the daycare where his common-law partner is employed. Overall, she submits the evidence provided does not establish it would be in Prudence’s best interest for her not to remain with the parent who has provided for her since birth, and allowing her situation to be available to sit with her and two half-siblings.
[7] He then considered and applied the factors set out in Foley v. Foley (1993), 124 N.S.R. (2d) 198 (S.C.).
[8] He found the respondent mother’s relationship and lifestyle lacking in stability, while at the same time concluding that the applicant himself did not contribute positively to any stability in her past.
[9] He found the father’s situation to be less than stellar at the time. Although his current relationship appeared stable, his employment was new and uncertain. Although the court had reservations about Ms. Manson’s capacity to maintain a stable situation, he found that at that moment in time it would not be in Prue’s best interests to remove her from:
... the care of her parent with whom she has lived since birth to enjoy the constant presence of a known half brother, in an appropriate home with a parent/partner in a possession of a steady and well paying job, and a parent/mother in a position to be available on a full-time basis ...
[10] The varied order provides for, among other things, Prue to be with her father on alternating weekends, and on alternating weeks through the summer months.
[11] Mr. Daw applied to vary the order of ACJ Ferguson in November, 2007. It is important to emphasize that an application to vary is not a substitute for an appeal, or an attempt to re-hear the matter already adjudicated upon.
[12] The conflict between the parents over the parenting of Prue continued after December, 2006, and in November, 2007, the father retained care of his daughter, refusing to return her to her mother until he was ordered to do so before December 5, 2007 by Justice Dellapinna.
[13] Almost immediately after the decision of Ferguson, A.C.J., there arose an issue about Prue not being permitted to participate in her paternal aunt’s wedding. This discussion began before January, 2007, and it was understood Prue could participate in the wedding set for the Labour Day weekend. Shortly thereafter, the mother indicated she would not be able to attend because it conflicted with Ms. Manson’s plans with Marc Gould.
[14] Finally, in late August, 2007, Ms. Manson agreed to let Prue go to the wedding on certain conditions.
[15] In the fall of 2007 she spoke to Mr. Daw about problems in her relationship with Marc and advised she was planning to leave him and return to an area closer to the father in or near HRM. She then in October, 2007 accused the applicant of inappropriately touching Prue resulting in an investigation which concluded the accusations were unfounded.
[16] In November, 2007 the applicant received a number of addresses from the respondent as to where she was living and it eventually became clear that she was living in a shelter. As a result of his concerns about domestic violence, he kept Prue with him following his access for a period in excess of two weeks, until he was ordered to return her.
[17] In September , 2008 the applicant was informed by the respondent that she was going to have to move again and that she might be renting Marc Gould’s house (her live in partner from whom she was now separated).
[18] In addition to the parties themselves, the court heard evidence from several other witnesses. Rachel Poole, the applicant’s common-law partner, works in child care. She has been in a longstanding, committed relationship with the applicant since early 2004. They live together in a townhouse in Halifax. She describes her relationship with Prudence as loving, positive and supportive. She acknowledges that the applicant has had anxiety attacks when under stress. It appeared from the evidence that the fall of 2007 was a particularly stressful time.
[19] Chantel Cormier, a social worker with the Department of Family and Children’s Services in Moncton became involved with Ms. Manson, the respondent, and her common-law partner Marc Gould in the fall of 2007 due to domestic violence issues. She spoke with all the fathers of Ms. Manson’s children regarding a particular incident in October wherein the respondent and her partner had an argument and the car window was smashed when the children were present in the vehicle. There was variation in versions as to whether Mr. Gould did this deliberately or whether the car door got caught in the steps and the window broke. In spite of this “car incident” and Mr. Daw’s actions to retain custody of Prue following this, there were no immediate safety concerns for Prue in her mother’s care in December, 2007.
[20] In December, 2007, Margaret Kenny, a social worker, was assigned to work with Ms. Manson and her three children: Brice, age 7, Prudence, age 4, and Aleah, age 1 at the time.
[21] Ms. Manson had by then left the home of Marc Gould due to domestic issues. She had gone to stay in a shelter immediately following the incident and there was a “no contact” order from the agency. By January, 2008, Ms. Manson advised that she had moved to a place of her own down the street from Mr. Gould’s home.
[22] At that time her son Brice was living with her former partner John Porter and spending alternating weekends with his mother and siblings. He had been diagnosed with ADHD. Ms. Manson had sent her son to live with Mr. Porter in or around April, 2007.
[23] In January, 2008, Ms. Manson was eager to work with social services and for Mr. Gould to obtain help before they could reconcile. She had her own mental health issues to address as well.
[24] During this time, there were concerns raised about whether Mr. Gould and Ms. Manson were still together; that Marc was left in charge of the children and transporting Prue for access with her father.
[25] Ms. Manson and Mr. Gould did go through counselling and things improved. The mother was not diagnosed as bi-polar, but has a mild form of mood disorder. Ms. Kenny noted that Michelle is now more confident, does well managing the children, and seeks advice and support when necessary.
[26] Matthew Daw’s sister, Jennifer Calder, described Ms. Manson’s attitude towards her wedding plans and Prue’s participation. Michelle had assured her in January, 2007 that Prue would be her flower girl, even if the wedding did not occur on an access weekend. They went ahead and planned the wedding for September 2nd, Labour Day weekend. Shortly after a disagreement over a car seat, Michelle advised Ms. Calder that Prue would not be attending the wedding, citing other arrangements for that weekend. This was a great disappointment to the applicant, his family, and to Prue who had been very excited about the event. The week before the wedding Prue was permitted to attend.
[27] Mr. Daw himself indicated that in September, 2007 Michelle confided in him that things were not going well with Marc and that she was thinking of leaving him. She had expressed concern about Prue’s well being, indicating that with Brice not being there, Marc was turning his attention to Prue in a negative way. He reported his concerns to child protection in spite of his fears that it could be perceived he was harassing her.
[28] In late September, 2007, she accused him of sexually abusing Prue and in early October Prue was being interviewed about these allegations.
[29] In October, 2007 she advised him that she was leaving New Brunswick and moving to Hubbards, Nova Scotia.
[30] On November 2, 2007 he learned about the incident wherein Marc had smashed a window in Michelle’s car, and he was informed shortly thereafter that Michelle had left Marc.
[31] On November 12th, he was advised that Michelle’s daughter Aleah had been rushed to hospital and that Prue had spent the previous night at John Porter’s (Brice’s father) home in Hubbards. He picked her up from the IWK and kept her until ordered by the court to return her in early December.
[32] He testified that when the matter was last before the court his work history was somewhat variable and he had been at his current employment for just a year. He has now been with the same employer since November, 2005, and he has advanced in his performance with the company.
[33] Since the most recent order, the applicant cites a number of problems with access, including telephone access, asserting that many of the problems are associated with his reporting of concerns to the child protection authorities.
[34] There was an issue with Prue not being able to go for access because of her ballet recital in June, 2008. At his insistence she did go for access. He was of the view that his access was more important than a ballet recital. There were some occasions when access was missed due to appointments, about which he says he was accommodating. He did indicate that she has recently been more reasonable about it, and that she turned to him to care for Prue when Aleah was in the IWK and when she was recovering from a hysterectomy. That is a provision of the current order in any event.
[35] He acknowledged taping their phone conversations. He justified it because he felt that so often she would tell him one thing and then deny it or change what was understood. He felt throughout that he could not trust her. His daughter was examined for alleged sexual abuse without his knowledge. He was accused of being the perpetrator. He did say that she would call him for advice, but not accept it. He was always concerned for Prue’s well being and the concerns he had before the last application persisted after the December, 2006 decision. He was frustrated with the system because he felt his concerns weren’t being heard, and he became a thorn in the side of the agency. His concerns escalated; he spoke with his pastor about his struggles, and he contacted the Ombudsman. Then he found out about the car incident and took matters into his own hands.
[36] The applicant cites continuing concerns about Prue having so many father figures in her life as a result of the respondent’s relationships.
[37] John Porter, a former partner of Ms. Manson and psychological father to Brice, described his relationship with Michelle and their son Brice. He said their relationship had become stressful and was not working out, but he would not describe it as unhealthy or dysfunctional. He is aware that she accused him of being abusive and acknowledges that they had mutual verbal and vocally violent episodes. He describes the respondent as being much calmer now. He took Brice into his care for a period of approximately a year. He had been diagnosed with ADHD and Mr. Porter was concerned about his medications and tried getting him off them. He describes his parenting relationship with Michelle as good. He acknowledged that he and Michelle took the children to P.E.I. together for a holiday which was a problem for Marc, her partner, but on another occasion during March Break they stayed in a hotel room together with the children with his knowledge and it was not an issue.
[38] Michelle’s Minister, Robert Hunt, spoke positively of Michelle’s involvement in the church and her responsibilities as a parent. He confirmed at the time of the hearing that she had not resumed living with Marc.
[39] Ms. Joanne Jones, Michelle’s counsellor, addressed the issue of the ballet recital and how excited Prue was about it. She also spoke of the stresses in her client’s life. The applicant, Matthew, is a stressor and Brice’s behavioural issues create stress. She spoke of the car incident with Marc and described it as being a stress issue and not a violence issue. She worked with Michelle through her difficult background and self esteem, emphasizing her strengths. She noted improvements in Michelle and her parenting from March to July, 2008. She described her as a good mother who deals with ongoing challenges of parenting Brice, whose behaviour impacts on the other children. She described her as being in a relationship that is still a work in progress. She could benefit from ongoing coaching, although she had made good personal progress.
[40] Marc Gould met the respondent, Michelle, online in late 2005. They moved in together in April, 2006 and he became step-dad to Brice and Prue. In May, 2007 they took time apart and she moved in with her mother in Debert for the spring and summer of 2007. She moved back with him in September, 2007 and the car incident occurred at the end of October, 2007. He described this in great detail. It appears to have been a very volatile situation, but he maintains it was an accident. He acknowledges he may have accused her of trying to run over him. The children were in the car when it occurred. When Michelle ran inside to use the phone, he removed it from the wall. The next morning there was a further incident where he became angry with the children who were making too much noise early in the morning. He denied yelling at them. They separated in November, 2007 and began dating again in March, 2008. They have been involved in counselling and he describes their relationship as stable now.
[41] I conclude on the evidence that Mr. Gould tended to minimize the severity of these interactions and that he was impatient with Michelle’s children. In spite of the stress on Michelle, she was managing her two children and her infant daughter. There was a further incident between them in January, 2008. Brice came back to her full-time care at the end of March, 2008. The child protection authorities were satisfied that they were motivated to make the relationship work and that a safety plan was in place.
[42] As of the hearing, Marc and Michelle were together a lot, working on their relationship, and preparing for reconciliation. Because of the number of moves the children have experienced, Michelle was moving slowly in that direction.
[43] The respondent, Michelle Manson, described a long standing difficult relationship with Mr. Daw, the applicant. She has found it very stressful dealing with Prue’s father. She described in detail her efforts to stay calm and hear the applicant’s concerns, in an effort to keep things going smoothly. She said that he is aggressive and insists on doing things his way.
[44] Although John Porter is not Brice’s biological father, she sent Brice to live with John during a time when her family was having issues in around April, 2007. Brice excelled in the school he attended during this period. In the summer of 2007 Brice came back to live with his mother at his grandmother’s house in Debert, and returned to John’s in September, 2007 until March, 2008.
[45] The respondent could be described as a good mother who has made some poor choices. While things appeared to be going well, there are still unresolved issues. The incident that triggered the smashed car window was one where Marc was exercising significant control over Michelle. As the mother of three children, two of whom were not Marc’s, she was very much at his mercy living with him, on his terms. He did not like having all of her children together at one time. Brice had gone to his father’s but was home for that particular weekend.
[46] She acknowledges that her mood disorder affected her parenting, but that has now been resolved through medical treatment.
[47] She acknowledged that Marc had issues with Brice, which precipitated her son moving to John Porter’s. In describing the incident, she acknowledged as well that Marc wanted her to say that the car door hit the railing, thereby making it appear to be accidental.
[48] Michelle has had, and continues to have, many challenges: parenting in a blended family; parenting Brice who is a child with special needs; co-parenting with a father (Matthew Daw) who appears at times to be rigid and unbending, and who reports her to child welfare with some frequency; and co-parenting with a current partner in what has at times been a tumultuous relationship.
Changes in Circumstances
[49] The burden is on the applicant to demonstrate a change in circumstances since the order of December, 2006, to warrant a review and a fresh look at the issue of custody and parenting of Prue.
[50] Since the order was made, Ms. Manson gave birth to her third child, and although the birth was anticipated at the time of the last hearing, a third child has entered the family constellation and that is a change in circumstances, particularly as it relates to Prue who was four and a half at the time of the hearing.
[51] Since the order was made, the respondent has moved several times. Her relationship with her partner came an end, at least for a time, and although they since resumed their relationship, the family was not reunited at the time of the hearing.
[52] There was general upheaval in the family throughout 2007, increasing in intensity through the fall, and culminating in separation at the end of the year. In 2008, there has been slow and careful movement towards reunification.
[53] Therefore the threshold change in circumstances has been met.
[54] This prompts then a review of the circumstances to determine whether a change in parenting is in the best interests of the child.
[55] In an application to vary, where the change has occurred, the court then applies the same principles as in an original application.
[56] The principles in Foley v. Foley (1993), 124 N.S.R. (2d) 198 (S.C.) are an aid to the court in determining what is in the best interests of a child. At paragraph 16, Goodfellow, J. cites a number of factors:
[16] ...
1. Statutory direction Divorce Act, ss. 16(8) and 16(9), 17(5) and 17(6);
2. Physical environment;
3. Discipline;
4. Role model;
5. Wishes of the children - if, at the time of the hearing such are ascertainable and, to the extent they are ascertainable, such wishes are but one factor which may carry a great deal of weight in some cases and little, if any, in others. The weight to be attached is to be determined in the context of answering the question with whom would the best interests and welfare of the child be most likely achieved. That question requires the weighing of all the relevant factors and an analysis of the circumstances in which there may have been some indication or, expression by the child of a preference;
6. Religious and spiritual guidance;
7. Assistance of experts, such as social workers, psychologists, psychiatrists, etcetera;
8. Time availability of a parent for a child;
9. The cultural development of a child;
10. The physical and character development of the child by such things as participation in sports;
11. The emotional support to assist in a child developing self esteem and conficence;
12. The financial contribution to the welfare of the child.
13. The support of an extended family, uncles, aunts, grandparents, etcetera;
14. The willingness of a parent to facilitate contact with the other parent. This is a recognition of the child’s entitlement to access to parents and each parent’s obligation to promote and encourage access to the other parent. The Divorce Act, s. 16(10) and s. 17(9);
15. The interim and long range plan for the welfare of the children;
16. The financial consequences of custody. Frequently the financial reality is the child must remain in the home or, perhaps alternate accommodations provided by a member of the extended family. Any other alternative requiring two residence expenses will often adversely and severely impact on the ability to adequately meet the child’s reasonable needs; and
17. Any other relevant factors.
[17] The duty of the court in any custody application is to consider all of the relevant factors so as to answer the question.
...
[18] The weight to be attached to any particular factor would vary from case to case as each factor must be considered in relation to all the other factors that are relevant in a particular case.
[19] Nevertheless, some of the factors generally do not carry too much, if any weight. ...
[57] The court has considered a number of factors in this matter.
[58] Sibling relationships: The respondent testified that Prue and Brice have a close bond. Brice did, for almost a year, live with his father and there were long stretches of time when they did not see each other. Maintaining sibling relationships is an important consideration.
[59] Environment: Michelle Manson is separated from her common law partner and working towards full reunification of the family. They have had a volatile relationship, but with counselling and community support they are optimistic that their family will be able to be reunited. Mr. Daw has been involved in a long term relationship with Rachel Poole since 2004. This appears to be a solid, stable and committed relationship. They live in a townhouse with plenty of room and a backyard.
[60] Stability: The respondent moved to New Brunswick in April, 2006, while a proceeding was ongoing in Nova Scotia. In July, 2006 she and Marc moved into a house owned by Marc’s parents and in January, 2007, after the decision of the court, they moved into Marc’s own house in Portage Vale, New Brunswick. She lived there with Marc until May, 2007 when she went to her mother’s home in Debert until September, 2007. She returned to Marc’s for just over a month. Then she moved to a women’s shelter, and subsequently to her own premises, with the plan to eventually move back to Marc’s. There have been five moves since the last hearing, in the space of two years, with a sixth move being imminent.
[61] By contrast, the applicant has been living with his partner since 2004 and together in the same residence for the past three years.
[62] Needs of children and parents’ ability to meet those needs: While it appears Prue is a healthy, well-adjusted child with no special needs, her brother Brice has required intensive parenting. His father John took a year off work to provide the help he needed as Brice required one on one parenting.
[63] The mother has a very young child also. Brice was out of the home, except for weekends, from spring, 2007 to March, 2008. Brice’s needs continue.
[64] Mr. Daw and his partner have no other children. Ms. Poole is an early childhood educator. They are able to devote themselves to Prue’s care without other distractions.
[65] Role model: The applicant and his partner appear to have a harmonious relationship and are able to work together for Prue’s benefit.
[66] The respondent and her partner have not enjoyed the same harmony and mutual focus, although it appears their relationship and Marc’s involvement with the children have Markedly improved.
[67] Time available to spend with child: In both homes, Prue would spend time in day care. As has been stated, the applicant would have more opportunity to focus on Prue and her needs.
[68] Cultural development and physical and character development: Each parent has different ideas about this, but their circumstances and abilities would appear to be similar.
[69] Family involvement: It appears that Matthew’s extended family is close and he enjoys their contact and support. Michelle’s family would be closer to Prue should she return to Nova Scotia, enabling her to have more contact with that side of her family.
[70] Physical environment: In the home of her mother she shares a room with her siblings while at her father’s she has her own room. Neither physical environment is necessarily superior or inferior. Some issues of cigarette smoking and occasional marijuana use were raised by the mother, although there was no evidence that the child was exposed to this.
[71] Financial consequences: Many discrepancies between the two homes can be addressed through child support.
[72] Ability to communicate: The applicant is of the view that he often does not know what is going on in his daughter’s life. On the other hand, the respondent finds it very difficult to talk to the respondent because of his aggressive and intimidating behaviour. For example, he did not learn until November 5th about the incident of October 27th which resulted in her eventually going to a transition home with the children. She has on occasion consulted him, but does not heed his advice. She moved to New Brunswick when proceedings were under way in Nova Scotia. When Aleah became ill and had to go to hospital she left Prue with John Porter rather than her father, although she explained that this was a dire emergency and she was focussed on Aleah at the time. She did eventually contact the child’s father and he picked her up.
[73] Community supports: In Portage Vale Mom has friends and members of her church. Dad has extended family and some church support also. Mom has sought some assistance from experts as a result of issues in her life. Dad has not pursued any program to assist him in parenting in this situation.
[74] Willingness to facilitate access: Mom says she has done well in this regard. Dad disagrees. From Dad’s behaviour the court is concerned about Dad’s attitude towards Mom’s parenting time should he have primary care. It is an unknown. His attitude towards his access is such that one would question whether he would have the same attitude if he had primary care. Will he give the same priority to the mother’s access as he expected from her?
[75] Emotional support: While the mother has very capably met her daughter’s emotional needs and questions the father’s ability to do so, the mother has many emotional challenges and neither is in any better position than the other.
[76] Interim and long range plans for the welfare of the child: The father presents a clearer, more focussed and stable plan. There is still much uncertainty in the mother’s short term plan, although her long term goal is to reunite the family.
CONCLUSION
[77] This decision is not being made without reservation. The conduct of the applicant has been less than stellar, and his disposition towards anxiety and frustration are of concern. He thinks he has all the answers - and he does not. He has displayed an unreasonableness at times, particularly on insisting he have access with his daughter at the expense of her ballet recital. However, he has maintained a stable home with his partner of five years. He has established himself in work and in his personal life.
[78] This year Prue will be starting school and stability of residence and home life is critical. She has experienced many moves in her short life, several which predated the last order, but five different places since then. The concerns expressed by the court at the last hearing continue to exist.
[79] While the court considers those changes which occurred since the last order, the concerns about the mother’s stability in relationship and residence appear to continue. Although things appear to have improved in the past year, the first year following the last order was full of turmoil and the reunification of the family has yet to be tested.
[80] There continue to be serious concerns about the father also. His intimidating behaviour has impacted on his daughter’s mother and exacerbated her stress. On the other hand, he is described as a good father who cares deeply for his daughter, as does her mother. He is fortunate to have a positive role model partner in Ms. Poole, and his plan presents as the more stable of the two at this point in Prue’s life.
[81] Thus the court determines it to be in Prue’s best interests for her primary residence during the school year to be with her father in Nova Scotia. Consistent and continued parenting time with the mother will be crucial and the father’s compliance will be critical. The parties will continue with their present arrangement until June 1, 2009 when they will begin to share week on, week off until the end of August, 2009.
[82] The parties will continue to have joint custody of their daughter.
[83] Commencing September 1, 2009, Prue’s primary residence will be with her father during the school year, subject to the mother’s parenting time every second weekend from Friday at 5:00 until Sunday at 5:00.
[84] Should any of the mother’s weekends include an in service or holiday, the weekend shall be extended to include the extra day(s). In addition, the mother will have such other parenting time as may be agreed upon.
[85] The parties will divide and alternate Christmas vacation with each party having Prue commencing at 1:00 p.m. Boxing Day. For the first year of school, Mr. Daw’s parenting time will commence at 1:00 p.m. Boxing Day and the child will be with her mother commencing at 5:00 p.m. on the day school closes for the holiday.
[86] They will alternate Easter according to the order of December, 2006.
[87] March Break and summer holidays will be in accordance with the order of December, 2006.
[88] The conditions in this order shall be the same as those set out in paragraphs 5 and 6 of the order of December, 2006 and Ms. Manson shall provide 24 hours notice if she is unable to exercise her parenting time unless the cancellation is due to an emergency.
[89] They shall share joint decision making on matters of major importance (in particular health, education and religious upbringing). They shall both have equal right to make inquiries directly to, and receive information directly from, all professionals and other adults involved in the child’s life. Each parent shall keep the other fully advised of their current addresses and phone numbers as well as contact information for any adults involved with the child while in their care. Day to day care and decision making shall be the responsibility of the parent who has care of the child for the duration of that care, except for major decisions as noted above.
[90] Each shall immediately as soon as practicable inform the other of a medical emergency and shall name the other as next of kin and first to be contacted should the other parent be unavailable.
[91] There will be no order for maintenance unless the applicant files submissions within seven days and the respondent files within 14 days.
[92] The parties will bear their own costs.
J.