IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: Clarke v. Gale, 2009 NSSC 170
Date: 20092705
Docket: 31380
Registry: Sydney, Nova Scotia
Between:
KAREN CLARKE
Applicant
v.
FRANK DANIEL GALE
Respondent
__________________________________________________________________
DECISION
__________________________________________________________________
Judge: The Honourable Justice Theresa M. Forgeron
Heard: February 19, 20 and 26, and March 23 and 25, 2009
Oral Decision: May 27, 2009
Written Decision: May 29, 2009
Counsel: Ms. Karen Clarke, Self-Represented
Mr. Frank Daniel Gale, Self-Represented
By the Court:
I INTRODUCTION
[1] Adrianna is the eight year old daughter of Karen Clarke and Danny Gale. Adrianna is much loved by her mother and father. Unfortunately, these loving parents are unable to comprehend the emotional damage they are inflicting upon Adrianna because of their parenting deficits and because of the intensity of their parental conflict. Because Ms. Clarke and Mr. Gale do not understand, they have yet to make the necessary changes in their own lives to become the parents that Adrianna deserves and requires.
[2] The parties were involved in a long term relationship. At various times, the parties would separate and reconcile. They separated permanently in the spring of 2007. They have been unable to reach agreement on matters relating to Adrianna. A five day hearing was held during the months of February and March 2009 to resolve the parenting and maintenance issues. The court rendered its oral decision on May 27, 2009.
II ISSUES
[3] a) What is the burden proof?
b) What affect does reconciliation have on the 2005 order?
c) Has a material change in circumstances occurred?
d) What custodial arrangement is in the best interests of Adrianna?
e) Should Ms. Clarke’s primary care status being varied?
f) Should the access between Mr. Gale and Adrianna be subject to restrictions of time and place?
g) What parenting arrangement is in the best interests of Adrianna?
h) What is the appropriate maintenance order?
III. BACKGROUND
[4] The court process is not foreign to Ms. Clarke and Mr. Gale. In 2004, two court orders issued which dealt with custody and maintenance. On March 8, 2005, a final order provided the parties with joint custody of Adrianna, with primary care to Ms. Clarke. Mr. Gale was directed to pay child support based upon an income of approximately $13,000 per annum. Financial disclosure was also ordered.
[5] Soon after the 2005 order issued, the parties reconciled. The reconciliation lasted until the spring of 2007 when Mr. Gale left Cape Breton for work in Alberta. Within a few weeks of Mr. Gale arriving in Alberta, Ms. Clarke formed a relationship with Mr. Gale’s best friend, Mr. Lovell. This triangle did nothing to calm the volatile personalities of the parties. Ms. Clarke and Mr. Lovell now reside together, with Adrianna, in the home owned jointly by Mr. Gale and Ms. Clarke. Mr. Gale and Mr. Lovell are no longer friends.
[6] Mr. Gale returned to the area in August 2007. An EPO was granted against Mr. Gale in September 2007, and then extended for 30 days. This was soon followed by the issuance of a peace bond, and then various breach and other charges. Mr. Gale was also convicted of a theft charge after the 2005 order. In addition, criminal charges have been laid against Mr. Lovell for offences involving Mr. Gale. Mr. Lovell was also charged with an alcohol related offence.
[7] On October 19, 2007, Ms. Clarke commenced the present application in which she sought a variation of the parenting and maintenance provisions of the 2005 order. In December 2007, Mr. Gale filed a parenting statement and statement of income in response to the application. The trial was held on February 19, 20, 26, and March 23, and 25, 2009. The following witnesses testified during the hearing: George Lovell, Shaukat Ul Haque, Brenda Whalley, Karen Clarke, Margaret Theriault, Melanie MacKenzie, Kimberley Monohan, Rita Astephan, Kathy Gale, Danny Gale, and William Clarke.
IV ANALYSIS
[8] What is the burden proof?
[9] In F. H. v. McDougall, 2008 SCC 53, Rothstein, J. confirmed that there is only one standard of proof in civil cases - proof on a balance of probabilities. He further held that there are no degrees of probability within the civil standard. In every civil case, a judge should take into account the seriousness of the allegations or consequences, or inherent improbabilities; however, these considerations do not alter the standard of proof. In all cases, the court must scrutinize the evidence when deciding whether it is more likely than not that an alleged event occurred. The evidence must always be clear, convincing, and cogent to satisfy the balance of probabilities test. Testimony must not be considered in isolation, but rather examined based upon the totality of the evidence.
[10] Credibility plays a significant role when assessing the burden of proof. The court considers a number of factors when making credibility determinations. These factors were reviewed in Baker-Warren v. Denault 2009 NSSC 59 at paras 18 to 20 and have been considered by me in this decision. In Baker-Warren v. Denault, supra, the court held as follows:
[18] For the benefit of the parties, I will review some of the factors which I have considered when making credibility determinations. It is important to note, however, that credibility assessment is not a science. It is not always possible to “articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events:” R. v. Gagnon 2006 SCC 17, para. 20. I further note that “assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization:” R. v. R. E. M. 2008 SCC 51, para. 49.
[19] With these caveats in mind, the following are some of the factors which were balanced when the court assessed credibility:
a) What were the inconsistencies and weaknesses in the witness’ evidence, which include internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony, and the documentary evidence, and the testimony of other witnesses: Re: Novak Estate, 2008 NSSC 283 (S.C.);
b) Did the witness have an interest in the outcome or was he/she personally connected to either party;
c) Did the witness have a motive to deceive;
d) Did the witness have the ability to observe the factual matters about which he/she testified;
e) Did the witness have a sufficient power of recollection to provide the court with an accurate account;
f) Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions: Faryna v. Chorney [1952] 2 D.L.R 354;
g) Was there an internal consistency and logical flow to the evidence;
h) Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased; and
i) Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving?
[20] I have placed little weight on the demeanor of the witnesses because demeanor is often not a good indicator of credibility: R v. Norman (1993) 16 O.R. (3d) 295 (C.A.) at para. 55. In addition, I have also adopted the following rule, succinctly paraphrased by Warner J. in Re: Novak Estate, supra, at para 37:
There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness's evidence. (See R. v. D.R., [1966] 2 S.C.R. 291 at 93 and R. v. J.H. supra).
[11] In considering the arguments advanced by the parties, I have applied the civil burden of proof. I have reviewed the totality of the evidence with reference to the internal consistencies and inconsistencies, and in reference to the position of each of the parties. In determining whether either party has met the civil burden of proof, I have looked for clear, convincing, and cogent evidence. I have made specific credibility findings based upon the evidence and in light of the civil burden of proof. Each party bears the burden in respect of the arguments which he/she advanced.
[12] What affect does reconciliation have on the final 2005 order?
[13] The parties reconciled for a substantial time after the 2005 order issued. Unlike an agreement, a court order does not become a nullity because of reconciliation. In Fitzell v. Weisbrod 2005 CarswellOnt 805 (S.C.J.), Mazza, J. held that the parties’ reconciliation did not terminate a prior support order, but as a general rule, courts will suspend the obligation to pay during the period of cohabitation. A court order can only be varied by a further court order. Parties cannot vary an order by agreement or by virtue of a common understanding. I accept this reasoning. Therefore the 2005 order is a valid order unless the requirements of s. 37 of the Maintenance and Custody Act have been met.
[14] Has a material change in circumstances occurred?
[15] Section 37(1) of the Maintenance and Custody Act states as follows:
37 (1) The court, on application, may make an order varying, rescinding or suspending, prospectively or retroactively, a maintenance order or an order respecting custody and access where there has been a change in circumstances since the making of the order or the last variation order.
[16] An application to vary is not an appeal of an original order, nor is it an opportunity to retry a prior proceeding. The existing order must be treated as correct as of the time the order was made. The existing order can only be varied if a party proves that a material change in the circumstances exist, and as a result of that change, the current order no longer meets Adrianna’s best interests: Gordon v. Goertz 1996 2 S.C.R. 27.
[17] A material change has been described as one where, had the facts existed at the time the order was made, the judge likely would have made a different order. A material change includes circumstances where something unexpected happens or where something that was expected to happen does not. A material change must be more than a minor or temporary change. The change must be a substantial, continuing change which impacts upon the foundation upon which the existing order was made and which affects the child or the ability of the parents to meet the needs of the child.
[18] The evidence demonstrates material changes in circumstances in relation to custody and maintenance. In respect of custody, the evidence shows that it is impossible for the parties to communicate from an emotional standpoint, as well as from a legal standpoint. The level of animosity, conflict, and mistrust is so extreme that any rational, reasonable, and mature communication has become an impossibility. Further, provincial court undertakings and orders prevent Mr. Gale from communicating with Ms. Clarke. Therefore, the joint custody provisions of the 2005 order are no longer feasible. In addition, Ms. Clarke almost eliminated all contact between Adrianna and Mr. Gale until this court intervened with an interim, variation order which specified access times and dates. These facts support a finding of a material change in the circumstances as they relate to the parenting issues.
[19] From a maintenance perspective, a material change has also occurred. The maintenance provisions of the 2005 order were based upon Mr. Gale earning an income of $12,940.00 per year. Mr. Gale earned substantially more since the parties’ separation in 2007.
[20] What custodial arrangement is in the best interests of Adrianna?
[21] Where parental relationships are rift with mistrust, disrespect, and poor communication, and where there is little hope that such a situation will change, joint custody is ordinarily not appropriate: Roy v. Roy [2006] W.D.F.L 2830 (Ont. C.A.). This lack of effective communication, however, must be balanced against the realistic expectation, based upon the evidence, that communication between the parties will improve once the litigation has concluded. If there is a reasonable expectation that communication will improve despite the differences, then joint custody may be ordered: Godfrey-Smith v. Godfrey-Smith (1997) 165 N.S.R. (2d) 245 (S.C.).
[22] The relationship between Mr. Gale and Ms. Clarke is marked by high levels of distrust and disrespect. Communication is exceptionally poor. There is no reasonable expectation that communication will improve after the litigation is concluded. Further, because Mr. Gale continuously disobeyed provincial court orders, a parallel parenting regime is, likewise, not in the best interests of Adrianna. A sole custody order is necessary in the circumstances of this case.
[23] Should Ms. Clarke’s primary care status being varied?
[24] Position of Mr. Gale
[25] Ms. Clarke was designated the primary care parent in the 2005 order. Mr. Gale states that Ms. Clarke’s primary care status should change for two reasons. First, Ms. Clarke has placed Adrianna in a home where there is domestic violence. Second, Ms. Clarke has interfered with his relationship with Adrianna by failing to allow access. Adrianna has suffered as a result.
[26] Position of Ms. Clarke
[27] Ms. Clarke denies that she has interfered with the father-daughter relationship. She states that Mr. Gale seldom requested access. Ms. Clarke also denies that Adrianna is exposed to domestic violence. Although, she acknowledges two incidents of inappropriate conduct, Ms. Clarke states that she and Mr. Lovell have learned from their mistakes. They have started couples’ counselling. Ms. Clarke blames Mr. Gale for her past problems with Mr. Lovell. She says that she will no longer allow Mr. Gale to cause a disturbance in her relationship with Mr. Lovell. Ms. Clarke further states that Adrianna is removed from the home when she and Mr. Lovell are having arguments.
[28] Ms. Clarke characterized her relationship with Mr. Lovell as healthy and loving. She stated that Adrianna, likewise, has a nurturing relationship with Mr. Lovell. Her mother also testified as to the positive influence of Mr. Lovell.
[29] In addition, Ms. Clarke expressed concerns about Mr. Gale’s capacity to parent for three reasons. First, she notes that Mr. Gale is not consistent with taking his anti-psychotic medication and medication for ADHD. Second, she states that Mr. Gale is consumed with hatred and anger towards her. This interferes with his ability to parent safely. Third, Mr. Gale is psychologically and physically abusive. She states that Mr. Gale shows little remorse and blatantly disregards all authority and court orders when it suits his purpose. Ms. Clarke states that she is concerned for Adrianna’s safety.
[30] Decision
[31] I must apply the best interests test in any decision which I make involving the variation of Adrianna’s parenting pursuant to s. 18 (5) of the Maintenance and Custody Act. The best interests of the child test has been described as one which has an inherent indeterminacy and elasticity: MacGyver v. Richards (1995) 11 R.F.L. (4th) 432 (Ont. C. A.) at paras 27 to 29. In King v. Low [1985], SCJ No. 7, the Supreme Court of Canada held that the trial judge must look to the plan of rival claimants and choose the course which will best provide for the healthy development of the child when applying the best interests test. The factors which compose the best interests of the child are varied and are dependent upon the unique circumstances of each case.
[32] Parental misconduct is relevant in custody cases insofar as the conduct impacts upon a parent’s ability to recognize and meet a child’s needs. Both Ms. Clarke and Mr. Gale have engaged in parental misconduct which impacts upon his/her ability to recognize and meet Adrianna’s best interests.
[33] Ms. Clarke has engaged in the following destructive misconduct:
a) She has restricted and attempted to eliminate parental contact between Adrianna and Mr. Gale. I accept the evidence of Mr. Gale, his mother, Ms. Kathy Gale, and Ms. Monohan when they testified as to the unsuccessful attempts of Ms. Kathy Gale to schedule access between Mr. Gale and Adrianna. I reject the evidence of Ms. Clarke and Mr. Lovell when they minimized the efforts to secure regular access. Access was virtually eliminated or restricted for substantial periods of time because Ms. Clarke was blinded by her own anger, bitterness, and hostility. Such conduct is not in Adrianna’s best interests.
b) Ms. Clarke engaged in confrontational behaviour in Adrianna’s presence. I accept the evidence of Ms. Monohan that Ms. Clarke yelled obscenities at her while children were in the vehicle on Halloween. I accept the evidence of Ms. Monohan and Mr. Gale that Mr. Lovell caused a disturbance at the fishing grounds in Adrianna’s presence. I accept that Mr. Gale and his party were there before Mr. Lovell and Ms. Clarke arrived. It was Mr. Lovell who initiated the disturbance. It was Mr. Gale who attempted to take the mature and responsible counter action by leaving the fishing grounds. Neither Ms. Clarke nor Mr. Lovell saw anything wrong with their behaviour, nor did they recognize the risk to Adrianna.
c) Ms. Clarke and Mr. Lovell are engaged in a conflictual relationship. I accept the evidence of the neighbour, Ms. Astephen, the evidence of Ms. MacKenzie from CAS, and the evidence elicited during the cross examination of Ms. Clarke. When Ms. Clarke and Mr. Lovell disagree, the conflict can readily escalate into violent, verbal attacks. This can lead to physical violence, especially when Mr. Lovell is under the influence of alcohol. Mr. Lovell was violent with Ms. Clarke when he was intoxicated on one occasion. His own son, who was babysitting Adrianna at the time, called the police because of the nature of the conflict. On another occasion, the conflict between Ms. Clarke and Mr. Gale had become so intense that Adrianna left the residence in the early hours of the morning, ran up the street, and sought help from a stranger. The volatility of the relationship between Ms. Clarke and Mr. Lovell is of significant concern to the court. Ms. Clarke minimizes the danger. This minimization means that Ms. Clarke does not recognize the problem. If Ms. Clarke does not recognize the problem, she will be resistant to correction.
To her credit Ms. Clarke has engaged in counselling with a therapist. Mr. Lovell is also attending. Counselling is crucial. However, it must focus on the domestic violence issue, and anger management therapy. Ms. Clarke must recognize that although couples do have disagreements, most couples do not problem solve with the heated, angry exchanges that have been the hallmark of the Clarke - Lovell relationship. Nor is it an appropriate solution to remove Adrianna by having her go to the store when there is an argument. What happens if the fight occurs at 1 a.m. in the morning? The solution does not lie with the removal of Adrianna. The solution is for Mr. Lovell and Ms. Clarke to learn and implement healthy, conflict resolution skills and to learn and implement techniques to channel their anger. The court order will address the therapies which will be required in order for Ms. Clarke to continue as the primary care parent of Adrianna.
[34] Mr. Gale has engaged in the following parental misconduct which has negatively impacted upon the best interests of Adrianna:
a) Mr. Gale has consistently defied court orders. Mr. Gale has been charged and convicted of various criminal offenses. Conditions have been placed upon Mr. Gale which prohibit his contact with Ms. Clarke. When Ms. Clarke restricted or limited access, Mr. Gale breached these provincial court orders by initiating contact with Ms. Clarke. Some of the messages which Mr. Gale left on Ms. Clarke’s answering machine showed significant frustration, anger and hostility. Court orders must be respected. Unilateral action is not acceptable. Ms. Clarke’s failure to permit access does not provide Mr. Gale with a license to act unilaterally in the face of court orders and undertakings. Mr. Gale’s consistent lack of compliance and unilateral disregard of court orders causes this court significant concern. Mr. Gale’s conduct is not acceptable.
b) Mr. Gale also has anger management issues. He has poor conflict resolution skills in matters involving Ms. Clarke. His anger, like that of Ms. Clarke, can become intense and at times irrational. The former relationship between Mr. Gale and Ms. Clarke was highly conflictual and resulted in CAS intervention in the past. Mr. Gale has not taken any courses, nor did he offer any significant evidence to show that he has learned appropriate skills to properly channel anger, stress, and anxiety. Mr. Gale will be required to take therapeutic intervention to learn healthy conflict resolution skills and to properly channel any anger and aggression. I accept that Mr. Gale’s relationship with Ms. Monohan is based upon respect. There is no violence in that relationship.
[35] In summary, the parental misconduct of Ms. Clarke and Mr. Gale is a significant factor which the court must address in determining the parenting plan which is in Adrianna’s best interests. Both Ms. Clarke and Mr. Gale are consumed and fuelled by the anger and hostility which each harbours against the other. Until they learn to let go of the past, and until they learn healthy conflict resolution skills, each will continue to regress and place Adrianna’s best interests and safety at risk. For this reason, this decision and order were forwarded to the child protection services. Both parties must engage in therapies to correct these deficits and to become better parents.
[36] The parental misconduct is not sufficient to oust Ms. Clarke’s primary care status for the following reasons:
a) Mr. Gale also engaged in parental misconduct which negatively impacts upon his ability to meet Adrianna’s needs. Adrianna will be at risk no matter who has primary care, unless and until the parties successfully participate in the interventions noted.
b) Ms. Clarke has been the parent who traditionally fulfilled the role of primary care parent. Adrianna identifies most with her mother because she has provided the most stability and daily care to Adrianna.
c) Ms. Clarke is able to provide for the physical needs of Adrianna without difficulty. She will continue to ensure that Adrianna’s basic physical needs are met. Ms. Clarke has not experienced any trouble discharging these primary care duties in the past.
d) Ms. Clarke continues to occupy the family home. Mr. Gale lives in two residences; he lives a portion of the week with Ms. Monahan and a portion of the week with his mother. Ms. Clarke has more stability than Mr. Gale.
e) Ms. Clarke will continue to meet the financial needs of Adrianna as she has in the past. She has not experienced any difficulty in the discharge of this primary care responsibility.
f) Ms. Clarke has assumed an active and positive role in meeting Adrianna’s educational and physical health needs. Ms. Clarke regularly meets with doctors and has assumed a proactive role in ascertaining new skills and techniques designed to assist with Adrianna’s diagnosis of ADD. She ensures that homework is completed and that health and educational needs receive a priority while in her care. Unfortunately, Ms. Clarke lacked the wisdom to involve Mr. Gale in Adrianna’s health and educational concerns. The failure to involve Mr. Gale impacts negatively upon Adrianna. Mr. Gale is Adrianna’s father and he must know of the health concerns involving Adrianna so that he, too, can acquire the skills and techniques necessary to meet Adrianna’s educational, and health requirements. Further, Mr. Gale’s family history is also an important factor in the diagnosis of Adrianna’s condition.
[37] I find that it continues to be in Adrianna’s best interests to be placed in the primary care of Ms. Clarke. The material changes in the circumstances are not such that Ms. Clarke is unable to continue to meet the physical, educational, social, recreational, and emotional needs of Adrianna provided that Ms. Clarke successfully engages in the interventions ordered and as will be described later in this decision.
[38] Should the access between Mr. Gale and Adrianna be subject to restrictions of time and place?
[39] Position of Ms. Clarke
[40] Ms. Clarke argues that access should be restricted because of Mr. Gale’s conduct. Ms. Clarke seeks access of limited duration and with no provision for overnight visitation. In addition to the conduct previously described, Ms. Clarke also expressed concerns with the lack of a safe, stable residence for overnight access, concerns about Mr. Gale leaving Adrianna unattended, and concerns about Mr. Gale engaging in theft.
[41] Position of Mr. Gale
[42] Mr. Gale states that he has appropriate accommodations for Adrianna at his mother’s home and at Ms. Monahan’s home. He notes that the two residences are adjacent to each other and that Adrianna will have her own bedroom in each.
[43] Mr. Gale denies that he left Adrianna unattended and unsupervised. Further, although Mr. Gale acknowledges the theft conviction, he blamed another for it. He states that the convictions do not hamper his relationship with Adrianna.
[44] Decision
[45] Our courts have consistently held that there is no absolute right to access, although the best interests of the child is generally promoted when a child has meaningful contact with both parents. Restricted access is not the usual remedy. A child is ordinarily entitled to share in the daily life of his/her parents unless such is not in the child’s best interests to do so. Access is the right of the child and not the right of a parent. There is no presumption that contact with both parents is in the best interest of the child: Young v. Young (1993), 160 NR 1 (S.C.C.) and Abdo v. Abdo (1993), 126 NSR (2d) 1 (C.A.)
[46] In Abdo v. Abdo, supra, the Nova Scotia Court of Appeal reviewed three legal principles relevant to the determination which I must make:
a) The right of a child to know and be exposed to the influences of each parent is subordinate in principle to the best interests of the child.
b) The burden of proof lies with the parent who alleges that access should be denied, although proof of harm need not be shown in keeping with the decision of Young v. Young, supra.
c) The court must be slow to extinguish access unless the evidence dictates that it is in the best interest of the child to do so.
[47] I find that Adrianna has a warm and loving relationship with each of her parents. I find that Adrianna suffers emotionally when she is placed in the middle of parental conflict or when she is placed in the middle of domestic violence which arises from time to time between Ms. Clarke and Mr. Lovell. Adrianna wants and deserves a relationship with each of her parents, which will be free from rages, name calling, and physical displays of anger. Adrianna is a loving, kind, little girl who needs to have appropriate role models. Ms. Clarke must recognize the necessity of Adrianna’s involvement with her father in order to achieve emotional security.
[48] I do not accept the evidence that suggests that Mr. Gale left, or will leave, Adrianna unattended for long periods of time or that he is incapable of making proper decisions in Adrianna’s best interests. I accept the evidence of Ms. Astephen, Mr. Gale, Ms. Monohan, and Ms. Kathy Gale, who confirmed that Adrianna has a warm and loving relationship with Mr. Gale and his family, and that she enjoys her time spent with her father. This positive nurturing environment must be fostered and maintained.
[49] I find that Adrianna is comfortable in the home of Ms. Monahan and in the home of Mr. Gale’s parents. Both homes are stable, comfortable and safe.
[50] I find that the theft conviction does not interfere in a substantial way with the access relationship, although it is a factor to be considered in the determination of the primary care parent. A parent is a role model. Stealing does not provide a positive example. However, it is also noted that Mr. Lovell also engaged in similar conduct when he failed to report all income earned to CCRA and thus did not pay appropriate income tax.
[51] I find that access restrictions are not in the best interests of Adrianna.
[52] What parenting plan is in the best interests of Adrianna?
[53] The parenting arrangement which is in Adrianna’s best interests will ensure that Adrianna will have healthy relationships with both parents. Adrianna will spend block time with each party and weekly transitions between households will be reduced. Because of the various restrictions in communication from the provincial court, the parties will be given few opportunities to make independent scheduling choices and communication between the parties must be eliminated. Each party must attend counselling so each learns to stay focused on ensuring that Adrianna receives a well rounded, loving, nuturance while in his/her care. Adrianna deserves no less.
[54] The parenting plan will provide as follows:
a) Sole Custody: Karen Clarke will have sole custody of Adrianna Diane Gale, born February 12, 2001, according to the terms and conditions of this order.
b) Access: Danny Gale will exercise access to Adrianna according to the terms and conditions of this order.
c) Parenting Schedule: Each party will have time with Adrianna according to the following parenting schedule:
i) Regular Schedule: The parenting schedule will follow this two week rotating pattern except during special occasions and holidays, which will follow a separate schedule. During week one, Danny Gale will have Adrianna in his care from Saturday at 12 noon until Tuesday at 9:00 a.m., commencing Saturday, June 6, 2009, and continuing every second Saturday thereafter. During week two, Danny Gale will have Adrianna in his care from Sunday at 12 noon until Tuesday at 9:00 a.m., commencing Sunday, May 31, 2009, and continuing every second week thereafter. At all other times, Adrianna will be in the care of Karen Clarke.
ii) Special Occasions and Holidays: The regular schedule will be suspended for special occasions and holidays, and the following parenting schedule will be followed in its stead:
a) Adrianna’s birthday February 12th: If one party is not scheduled to have Adrianna in his/her care for a portion of February 12, that party will have Adrianna in his/her care from 3:00 p.m. until 6:00 p.m. on February 12.
b) Spring Break: Spring break is deemed to cover a nine day period from 9:00 a.m. on Friday on the last day of school until Sunday at noon before school recommences. Danny Gale will have Adrianna in his care for the spring break of every even numbered year. Karen Clarke will have Adrianna in her care for the spring break of every odd numbered year. The parties will revert back to the regular parenting schedule at the conclusion of the spring break holiday.
c) Easter: Easter is deemed to cover the period from Good Friday at 9 a.m. until Easter Monday at 12:00 noon. Danny Gale will have Adrianna in his care on the Easter weekend of every odd numbered year. Karen Clarke will have Adrianna in her care on the Easter weekend of every even numbered year. The parties will revert back to the regular parenting schedule at the conclusion of the Easter Holiday.
d) Long May Weekend: The long May weekend is deemed to cover the period from 9:00 a.m. the Friday before the long May weekend until Monday at 12:00 noon. Danny Gale will have Adrianna in his care for the long May weekend of every even numbered year. Karen Clarke will have Adrianna in her care for the long May weekend of every odd numbered year. The parties will revert back to the regular schedule at the conclusion of the long May weekend.
e) Summer Vacation: Danny Gale will have Adrianna in his exclusive care every July 19th to July 29th of every year for summer vacation. Karen Clarke will have Adrianna in her exclusive care every August 5th to 15th of every year for summer vacation. The parties will revert back to the regular schedule at the conclusion of his/her 10 day summer vacation.
f) Labour Day: The Labour Day weekend is deemed to cover the period from Friday at 9:00 a.m. before the Labour Day weekend until Monday at 12:00 noon. Danny Gale will have Adrianna in his care on the Labour Day weekend of every odd numbered year. Karen Clarke will have Adrianna in her care on the Labour Day weekend of every even numbered year. The parties will revert back to the regular schedule at the conclusion of the Labour Day weekend.
g) Thanksgiving: Thanksgiving is deemed to cover the period from Friday at 9:00 a.m. before the Thanksgiving weekend until Monday at 12:00 noon. Danny Gale will have Adrianna in his care on the Thanksgiving weekend of every even numbered year. Karen Clarke will have Adrianna in her care on the Thanksgiving weekend of every odd numbered year. The parties will revert back to the regular schedule at the conclusion of the Thanksgiving holiday.
h) Halloween: Halloween is deemed to be from 2:00 p.m. until 8:00 p.m. on every October 31. Danny Gale will have Adrianna in his care for Halloween of every odd numbered year. Karen Clarke will have Adrianna in her care for Halloween of every even numbered year. The parties will revert back to the regular schedule at the conclusion of Halloween.
i) Christmas: Christmas is deemed to cover the period from 9:00 a.m. on December 23rd until 12:00 noon on January 3rd. Karen Clarke will have Adrianna in her care from 9:00 a.m. on December 23rd until 3:00 p.m. on December 25th; and from 3:00 p.m. on December 28th until 9:00 a.m. on December 31st. Danny Gale will have Adrianna in his care from December 25th at 3:00 p.m. until December 28 at 3:00 p.m; and from December 31st at 9:00 a.m. until January 3 at 12:00 noon at which time the parties will revert back to the regular schedule.
j) Father’s Day/Mother’s Day: In addition to the regular schedule, Karen Clarke will have Adrianna in her care from 10:00 a.m. until 5:00 p.m. of every Mother’s Day. In addition to the regular schedule, Danny Gale will have Adrianna in his care from 10:00 a.m. until 5:00 p.m. of every Father’s Day.
k) Ad Hoc Special Family Events: The parties will use their best efforts to accommodate any special family reunion, wedding, or event, which is scheduled at a time when Adrianna is in the care of the other party. Written notice will be provided to Kathy Gale, well in advance of the scheduled event, to determine if the regular schedule can be altered to permit Adrianna’s attendance at the special function. The parties will be as flexible as possible in such circumstances, however, no change in the schedule will occur without the express, written authorization of the party in whose care Adrianna is scheduled to be at the time of the special family function. Kathy Gale will be the contact person to receive or give the written reasons for the refusal or agreement. Make-up time will be provided to the party who agrees to rearrange the schedule as he/she requests and as provided to Kathy Gale.
d) Make Up Parenting Time: In the event access times are lost because of illness or any other reason, make-up access will be supplied to Danny Gale at times to be decided by Danny Gale and within ten days of the missed access. Kathy Gale will be the contact person to communicate on this issue and such communication will be in writing.
e) Travel: Travel plans which require Adrianna to spend an overnight 150 kilometres, or more, from the residence of that parent will be supplied to Kathy Gale. Notice will include dates of travel, location, address, and telephone numbers where Adrianna can be reached and any applicable flight details. Neither party will be permitted to travel with Adrianna outside of Canada without the prior written consent of the other party or order from a court of competent jurisdiction. All passport documentation will require the signatures of both parties.
f) Telephone Contact with Adrianna: If a party does not have physical contact with Adrianna on a given day, telephone access will be arranged such that Adrianna will contact the other party at 7:00 p.m., unless travel plans make such contact impossible. The telephone call will not last longer than 15 minutes.
g) Emergency Decisions: In the event of a medical emergency, the party having physical care of Adrianna will be entitled to make decisions which are necessary to alleviate the emergency, and will notify Kathy Gale as soon as possible, and practical, as to the nature of the emergency and as to the nature of the emergency treatment.
h) Contact with Professionals involved with Adrianna: Each party has the right to communicate with all professionals involved with Adrianna, and each has the right to obtain information and documentation respecting Adrianna from all medical professionals, educators, and all social welfare professionals without the prior written consent of the other party.
i) Attendance at meetings, concerts and programs: Both parties are entitled to attend parent teacher meetings and major school events such as concerts and programs. In the event that tickets are limited to such performances, each parent will have priority for tickets. The use of any additional tickets will be determined by the parent who has residential care of Adrianna on the day the special event occurs.
j) Schedule will Determine Parental Contact with School: Each parent will refrain from making contact with, or attending at the school during the time that Adrianna is in the care of the other of them, except and excluding times when major school events such as parent teacher meetings, concerts, and programs are scheduled. The parent who is providing the residential care for Adrianna will be responsible for attending to Adrianna should she become ill at school. The school will be provided with the schedule and contact information for each party for such purposes.
k) Educational Assistance: Each party is responsible for assisting with homework and any special needs training related to Adrianna while Adrianna is in his/her residential care. Each parent will cooperate with all professionals to learn strategies to assist Adrianna with any special learning requirements.
l) Medical and Dental Treatment: Karen Clarke will provide Kathy Gale with the health card number for Adrianna. In the event any medical or dental appointments are scheduled for a period of time when Adrianna is in the care of Danny Gale, Danny Gale will be responsible for transporting Adrianna and attending the medical or dental appointment with Adrianna. Timely notice of medical and dental appointments will be supplied to Kathy Gale. Karen Clarke will supply Kathy Gale with all medication and related instruction for Adrianna’s use for the period of time when Adrianna is with Danny Gale.
m) Extracurricular Activities: Each party is free to enroll Adrianna in activities which occur during his/her residential time and each will be solely responsible for any associated costs. Each party will be responsible for transporting Adrianna to any birthday parties, or school activities which occur during the time that Adrianna is scheduled to be with him/her.
n) Communication between the parties: Until such time as the provincial court permits, there will be no communication between the parties. Information surrounding important matters affecting Adrianna’s health, education, and general welfare, and as stated in this order, will be supplied to Kathy Gale and, if possible, by e-mail communication. Each party will be responsible for contacting the school to be advised of all reports, homework, and other assignments due.
o) Communication with Adrianna: Each party will speak respectfully of the other and of his/her extended family in Adrianna’s presence. Each party will immediately remove Adrianna from the presence of any third party who is speaking disrespectfully of the other, or of his/her extended family. Adrianna will not be used as a messenger between the parties.
p) Therapeutic Interventions: The parties will cooperate and participate in therapeutic interventions according to the following terms and conditions:
i) Karen Clarke is to attend counselling and therapy with a professional for the following purposes:
a) To provide Karen Clarke with skills so she can learn to critically assess her behaviours and to prevent future attempts to restrict the relationship between Danny Gale and Adrianna.
b) To understand the effects that such behaviours have on Adrianna now and potential future effects and to learn skills to ensure that Adrianna is not placed in the middle of the parental conflict.
c) To understand the importance of a father/daughter relationship to Adrianna’s well being.
d) To obtain a balanced and realistic perspective of parenting weaknesses with an aim to strengthen her ability as a parent.
e) To learn anger management skills to effectively deal with anger, anxiety, and stress in a healthy fashion.
f) To learn about domestic violence and the effects that domestic violence have, and will have on Adrianna.
g) To obtain counselling for personal issues relating to anger and her past relationship with Danny Gale.
ii) Danny Gale is to attend counselling and therapy with a professional for the following purposes:
a) To learn skills to effectively deal with anger, anxiety, and stress in a healthy fashion.
b) To learn techniques to ensure that Adrianna is not placed in the middle of parental conflict.
c) To obtain a more balanced and realistic perspective of parenting weaknesses, with an aim to strengthen his ability as a parent.
d) To learn the importance of taking any medications which are properly prescribed.
e) To take counselling to learn to deal effectively with anger and personal issues arising from his past relationships with Karen Clarke and George Lovell.
iii) Fees: Each party is responsible for the payment of fees associated with his/her own therapeutic sessions.
iv) Decision and Order: The professionals conducting the therapeutic interventions will be provided with a copy of the order so that they are aware of the parameters of the therapies.
q) Restrictions on Contact with George Lovell: Karen Clarke will only permit contact between George Lovell and Adrianna if George Lovell has not consumed alcohol or non-prescription drugs during or 24 hours prior to his contact with Adrianna; and provided George Lovell attends counselling to learn to effectively manage his anger and hostility and to learn appropriate conflict resolution skills.
r) Transportation and Transitions: Danny Gale, or a third party on his behalf, is responsible for transporting Adrianna to and from school when Adrianna is in his care. Danny Gale will be responsible for having a third party attend at the residence of Karen Clarke to pick up and drop off Adrianna for access when there is no school. All pick ups and deliveries of Adrianna will be conflict free and Adrianna will not be exposed to conflict while in the care of either party. Karen Clarke and George Lovell will remain in their residence while Adrianna is picked up or dropped off. The third party will not leave until he/she sees that Adrianna has entered her residence.
s) Court Review: A review date is scheduled for September 21, 2009 at 10:00 a.m. to ensure that the parties have successfully completed the therapies noted. Written confirmation from the professionals who have been engaged will be filed with the court confirming compliance by September 14, 2009.
t) Smoking: Neither party will smoke in Adrianna's presence, nor allow Adrianna to be present when a third party smokes.
u) Safety Seats: Transportation guidelines for children outlined by the Department of Transportation must be followed when Adrianna is transported in a vehicle.
[55] What is the appropriate maintenance order?
[56] Position of the Parties
[57] Ms. Clarke seeks a maintenance order which will provide for the following:
a) a retroactive variation and upward adjustment of the maintenance quantum effective March 2007;
b) the imputation of income; and
c) a division of the medical expenses of Adrianna.
[58] Mr. Gale is objecting to the payment of retroactive support because he has limited income and few resources. Furthermore, he connects the access difficulties with the payment of maintenance. He objects to income being imputed, but does not deny his obligation to assist with Adrianna’s medical expenses.
[59] Decision: Income of Mr. Gale
[60] In 2007, Mr. Gale reported income of $44,793.00. Workers’ Compensation benefits composed a portion of the 2007 income, the exact amount is not shown on the tax assessment produced. I find that approximately $9,000 is based upon WCB income given the 2006 and 2008 figures.
[61] In 2008, Mr. Gale reported income of $8,883.00 from EI and $8,481.80 in WCB income. In 2009, Mr. Gale’s income is composed exclusively of WCB income of $2,011 per month. Mr. Gale shattered his foot in 2004. He is awaiting corrective surgery and is unable to work pending the completion of the surgery and assuming no further complications.
[62] I find that Ms. Clarke has had limited success in her application to have income imputed to Mr. Gale. She has dislodged this burden as it relates to a gross up of the WCB income due to its tax free status and also as her claim relates to some carpentry work completed on a cash basis in 2007 and 2008. I find, however, that Mr. Gale has proven that his reasonable health needs prevent him from earning a greater income than through WCB at this present time: MacGillivary v. Ross 2008 NSSC 339 (SC).
[63] I therefore calculate Mr. Gale’s income as follows based upon the reported income sources, the carpentry income, and the gross up for the tax-free income: in 2007, an imputed income of $50,000.00; in 2008, an imputed income of $26,000.00; and in 2009, an imputed income of $28,000.
[64] Decision: Medical Expenses
[65] Pursuant to s. 7(1) (c) of the provincial Child Support Guidelines, Adrianna’s prescription expenses are to be shared, by the parties, on a prorata basis, after deducting any insurance reimbursement and any tax benefit. Ms. Clarke’s income is approximately $32,000. Mr. Gale’s imputed income is approximately $28,000. Mr. Gale’s prorata responsibility is set at 47 % and Ms. Clarke is responsible for 53%. Based upon the evidence before me, Mr. Gale will pay an additional $48 for prescription medication for Adrianna commencing June 1, 2009. Ms. Clarke will supply proof of the continuing cost of the prescriptions, on a quarterly basis, to Kathy Gale. Should the prescription costs change, or should health coverage be obtained, this obligation will be immediately recalculated.
[66] Decision: Retroactive Maintenance
[67] In S. (D.B.) v. G. (S.R.) 2006 SCC 37, the Supreme Court of Canada reviewed the four factors to be balanced when a retroactive award is sought. The first factor concerns the reasonableness of the custodial parent’s excuse for failing to make a timely application in the face of the non-payment or insufficient payment of child support. The second factor relates to the conduct of the non-custodial parent. If the non-custodial parent engaged in blameworthy conduct, then the issuance of a retroactive award is usually appropriate. The third factor focuses on the circumstances, past and present of the child, and not of the parent and includes an examination of the child’s standard of living. The fourth factor requires the court to examine the hardship which may accrue to the non-custodial parent as a result of the non-custodial parent’s current financial circumstances and obligations, although hardship factors are less significant if the non-custodial parent engaged in blameworthy conduct.
[68] As to the first factor, I find that Ms. Clarke wasted little time in alerting Mr. Gale to the fact that she wanted the correct amount of child support based upon the Guidelines in April 2007. Effective notice was given at that time. Further the court application was filed in October 2007 which is the date of actual notice.
[69] As to the second factor, I find that Mr. Gale did engage in blameworthy conduct of the kind referenced by the Supreme Court of Canada. He did not provide income information to Ms. Clarke because he felt betrayed by both Ms. Clarke and Mr. Lovell. He was angry. Further, Mr. Gale erroneously connected the lack of access to the maintenance obligation. The severance of one does not justify the unilateral termination of the other. Maintenance and access are not related in the eyes of the court.
[70] Despite this blameworthy conduct, I find that Mr. Gale has, nonetheless, assisted Adrianna financially. He paid some maintenance based upon the 2005 order. In addition, Mr. Gale is a joint owner of the residence where Ms. Clarke, Adrianna, and Mr. Lovell reside. Mr. Gale has not been provided with the equity which is due to him from the property. As a result, Ms. Clarke has not had to refinance to payout Mr. Gale’s interest. The court was not told the exact amount of the equity outstanding to Mr. Gale. This factor is nonetheless an appropriate consideration in the determination of a retroactive maintenance award because the postponement of Mr. Gale’s interest is a financial benefit to Adrianna.
[71] I find that in reference to the third factor, Adrianna has not done without. Mr. Lovell, who is now residing in the residence with Ms. Clarke, has assisted with Adrianna’s care. Mr. Lovell has not been paying rent to Mr. Gale. He is, thus, in a financial position to assist with the household expenses and expenses for Adrianna. I have no evidence that Adrianna’s lifestyle was in anyway compromised through the insufficient payment of support.
[72] In reference to the fourth factor, I find that Mr. Gale has no savings, no investments, and limited access to loans to finance the payment of a retroactive award. He has limited income. The payment of a retroactive order would cause considerable difficulty to Mr. Gale.
[73] In balancing all of these factors, I find that a retroactive award is appropriate. However, as stated in S. (D.B) v. G. (S.R.), supra, I find that it is inappropriate to strictly adhere to the table amount, plus add-ons for the medication expenses, in the calculation of a retroactive award in the circumstances of this case. Such calculation would result in a payment of approximately $4,518, which includes the prior medical expenses and less the maintenance payments received between May 2007 to February 19, 2009. I, therefore, award $2,500 in retroactive child support up to and including the month of May 2009, minus any payments which have been received through Maintenance Enforcement after February 19, 2009. No maintenance arrears are outstanding for the period prior to April 2007.
[74] The retroactive, lump sum amount will be due and payable once Mr. Gale’s interest in the home, which he owns in joint tenancy with Ms. Clarke, has been resolved either through the written consent of the parties or through an order from a court of competent jurisdiction. Until Mr. Gale receives his equity, the payment of the retroactive child support is suspended.
[75] In the future, child support will be based upon $249 per month and will be paid through the Maintenance Enforcement Program. The usual disclosure provisions will likewise apply.
V. CONCLUSION
[76] The court order is varied to provide Ms. Clarke with sole custody of Adrianna, and specified access to Mr. Gale, but subject to the terms and conditions outlined in the order, inclusive of the requirement of the parties to engage in therapeutic interventions. Further, a retroactive child support award of $2,500 is granted, less payments since February 19, 2009. The retroactive lump sum is not payable until such time as Mr. Gale’s interest in the joint property is determined. In addition, child support in the amount of $249.00 per month, and $48 per month for prescription medication for Adrianna, will be payable commencing June 2009.
[77] If either party wishes to be heard on the issue of costs, written submissions will be provided to the court within seven days, and any responses to be filed seven days after the first submission is received.
[78] The court will draft and circulate the order.
Forgeron, J.