SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: Johnson v. Ross-Johnson, 2009 NSSC 210
Date: 20090703
Docket: 1201-059476
Registry: Halifax
Between:
Christopher Johnson
Applicant/Petitioner
v.
Heidi Ross-Johnson
Respondent
Judge: The Honourable Justice Moira C. Legere Sers
Heard: June 10 and 11, 2009 in Halifax, Nova Scotia
Counsel: Brian Bailey, counsel for the Applicant/Petitioner
David Grant, counsel for the Respondent
By the Court:
[1] Christopher Johnson and Heidi Ross-Johnson were married at Enid, Oklahoma, Garfield County, State of Oklahoma, USA on September 15, 1999, separated on July 4, 2002, and divorced by Order of the Supreme Court of Nova Scotia (Family Division) on September 15, 2006. Their child, Joshua Christopher Johnson, was born April 2, 2000.
[2] The mother has two children from a previous relationship. Sadly their father is deceased.
[3] A Corollary Relief Judgement issued out of a contested hearing. Both parties were represented by counsel. Counsel for the petitioner Mr. Johnson was someone other than Mr. Bailey.
[4] The mother was granted primary day to day care of the child, Joshua . She was obliged to consult with the father on all major issues concerning the child.
[5] The mother had the right to make final medical decisions regarding the child.
[6] The father was granted the authority to access any third-party service providers including medical and educational persons who have dealt with this child.
[7] The father's access was as follows:
5. The father shall be entitled to block access in the Province of Nova Scotia, including at least ½ of Christmas holidays, ½ of Easter holidays , ½ of March break and an additional 22 days per year.
6. The father shall have unrestricted telephone access to the child while the child is in the mother’s care.
. . .
9. The father, after having established regular contact with his child in accordance with this order, shall be entitled to 2 weeks in the summer of 2007 and 4 weeks in the summer of 2008. Access may be with him in the United States provided he accompanies the child both ways.
10. The father shall provide in advance the details as to flight details, arrival times, return times and a telephone number where the child can be reached.
11. The father’s access outside the Province of Nova Scotia shall not be restricted as based on a requirement that he access the other two children.
[8] In the oral decision I made certain findings of fact relevant to this matter:
- that the mother had resisted access outside Canada unless the father took the two other children.
- that the mother at that time had no outstanding issue with respect to the father's parenting and there were no apparent risks.
- that there was no evidence before the court that the father's right of access or ability to care for this child should be prohibited or restricted.
- that the father's access with his own child should not be tied into access with the mother's other two children.
- that the father gave no intention that he intends to flee with the child.
- I directed that the child not fly unaccompanied at his age and stage of development. The parents were to keep each other apprised immediately of any change in address or telephone numbers.
[9] The only reason that access in the United States was deferred was due to the interruption of contact between the father and the child and a need to re-establish that before the father would take the child to the United States.
[10] The Supreme Court of Nova Scotia retained jurisdiction over the child.
[11] The father was granted the right to access medical authorities for emergencies in the United States and required to inform the mother immediately.
[12] Child support was ordered.
[13] On April 9, 2008, the father made an application to vary the Corollary Relief Judgment pursuant to Section 17 of the Divorce Act asking that custody and day to day care of the child be placed with him. He asked for other relief related to access and child support to be adjusted accordingly.
[14] The mother filed a reply asking that the court restrict access to Nova Scotia. It appears that she made an application on August 5, 2008, to vary the Corollary Relief Judgment to obtain an emergency interim order restricting access to the child to Nova Scotia, seeking that the changes take place immediately. Her variation application and intake form incorrectly checked off Section 37 of the Maintenance and Custody Act rather than Section 17 of the Divorce Act. I am satisfied that no prejudice has occurred due to this error.
[15] Both parties are represented by counsel. They have proceeded to this hearing understanding the issues before the court are the application to vary custody and the application to restrict access to Nova Scotia.
[16] To eliminate any concern about the father's living arrangements, the father contracted for a home study with United Family Services, c/o Christian Light Cathedral. There is a brief report on his home circumstances contained in the materials. The father resides at 2900 Capps Road in Rogers, Kansas. Essentially there is no issue with the father’s physical surroundings.
[17] Ms. Ross-Johnson has consented to the admission of this report and has not requested the assessor to be present for the purposes of cross-examination.
[18] In August 2008 the parties agreed to cooperate with a custody and access assessment. Both counsel were given the opportunity to select an assessor and both were content to have the person next available on the roster complete the assessment. There have been four organizational pre-trial conferences held in court and numerous pre-trial telephone conferences held to prepare for this hearing.
[19] The assessment specifics are contained in the order of August 21, 2008. The assessment was ordered to determine the root cause of the difficulties in effecting access between the child and his father and to explore whether the current custody arrangements are appropriate for the child and, if not, to recommend whatever changes would be in the best interests of the child.
[20] The assessor was asked to make recommendations regarding an appropriate strategy to assist the parents to consult with each other concerning the child and to make recommendations regarding an appropriate short and long-term parenting arrangement to reinstate a peaceful child-focused parenting arrangement.
[21] The custody and access report was completed by Michael S. Donaldson. He was qualified as a expert in the completion of parental assessments including custody and access reports. He has been involved in Family Life counseling, consulting and mediation for 15 years having graduated with his Masters of Arts in counseling.
[22] Mr. Donaldson concluded that the only obstacle to the effective reinstatement of appropriate contact between the father and the son is the mother. Notably he concluded:
Finally, in my opinion, whatever the family court orders would be relatively ineffective as to adherence were the status quo to remain. The 2007 court order seems to have been well thought out and were to have been adhered to, would likely have served Joshua's need satisfactorily. It is my opinion, that despite the obvious unknowns that a change of primary residence would entail, the current arrangement does little to ensure the father-son component of Joshua's psychological health is being protected.
[23] He concluded he saw no evidence that the child was ever exposed to inappropriate language, behaviour or situations while in the father's care.
[24] Notably the assessor indicated that "Heidi's anger towards Chris and her jealousy regarding Chris' relationship with his new partner is palpable". He found she had a need to punish the father for his refusal to reconcile with her. He found that Joshua's best interests rarely took precedent in regard to his relationship with his father. He found that from the mother's perspective the father's involvement with the child was intrusive and disruptive.
[25] The assessor experienced the mother's rage. He noted as follows:
Her rant which lasted approximately 10 minutes, including her berating the assessor as well as Chris for "going against my wishes", as well as name calling. This was all done in front of a crushed Joshua whose excitement at seeing his father was overwhelmed by his mother's anger. It was not until she left that they recovered from the onslaught and focused on one another. Chris indicated that had the assessor not been present, the language would have been abhorrent, (she acknowledged that she cursed and swore when they interacted and Chris did not), access denied and Joshua having been exposed to all of it. A more sensitive parent would have sent the child into the house while the adults discussed the matter. These concerns permeate the interaction between Heidi, Chris and Joshua via telephone and in personal interaction. There has also been what can only be described as "taunting" him by inviting him to Halifax and after his plans were made and tickets purchased, calling and saying "if you show up here there will be hell to pay". It my opinion Heidi has limited capacity to grasp perspective other than her own. (Emphasis mine)
[26] The assessor found that Heidi was opposed to the father having access to both academic and medical information.
[27] In another incident taking place with the father's initial visit with Joshua, the mother did not approve of the father staying at her sister's home . The assessor noted:
Heidi verbally berated both Chris as well as the assessor and resorted to calling her sister names. Joshua was present throughout the exchange waiting to leave with his father. He was obviously disheartened and he, like his father, cowered before her. After the matter was resolved to her liking (not going to her sister's home) and Joshua and his father were away from her, their demeanor returned to normal. It was obvious she was unaware of the effect this incident had on Joshua. (Emphasis mine)
[28] In his conclusions Mr. Donaldson noted the following:
Heidi acknowledged through this assessment that she was not adhering to the terms of the court order, ie. demanding written notice and when this was not forthcoming, refusing access: not allowing access to educational or medical information because she felt "that's not important"; stating that she would not allow Joshua to enter the United States; withholding telephone access because what Chris and Joshua talked about was "not important" in her opinion; denying email access because "he [Chris] was saying nasty things (she was unable to provide any examples to support this accusation) and anyway email was not a good idea because Joshua was "not a very good speller"; and finally demanding that Chris only take Joshua places in Nova Scotia that she approved to, despite there being no requirements that he do so.
[29] In conclusion, the assessor recommended that Joshua be placed in the joint custody of his parents and that he spend from September 1st to June 30th in the primary care of his mother and from June 30th to September 1st in the primary care of his father.
[30] He suggested the ten-day Christmas holiday would alternate between the parental homes as well as March break would alternate from Christmas.
[31] He recommended that travel expenses be shared with the responsibility to retrieve Joshua from the other home be that parent's responsibility.
[32] He restated that all academic and medical records be available to the non-resident parent, that telephone access be instituted immediately as well be computer conferencing be made available to Joshua without the involvement or interference of the other parent.
[33] The report is dated January 20, 2009, and the assessor recommended that the father's visit in February would be an unrestricted overnight access time in the duration of his stay, with allowances for time out of school to maximize their access time.
[34] Notably, he concluded that should the mother be non-compliant with the court's next decision as it relates to a parenting plan, that Joshua be placed in the day to day care of his father.
[35] The mother has admitted that she has not abided by court order. She also admits that Joshua loves his father and is excited to see him and enjoys spending time with him. She admitted that she feels compelled to withhold Joshua from the father because the father has failed to meet many of her requirements for granting him access. She does not believe that telephone or email access was appropriate.
History
[36] The mother met the father during an exercise in Marcot in 1998 and became associated with him in mid-1999. She moved with her children to Mississippi, USA and then to New Jersey (Fort Dicks army base) up to September 11, 2001. She moved back to Halifax for the birth of their child Joshua in April 2000 and back to Fort Dicks in the summer of 2000. They separated in July 2002 and the mother returned with all three children to Nova Scotia.
[37] The father served in the US Navy as an electronic warfare technician and was honorably discharged /retired as Petty Officer First Class. He now works full time with Walmart and is married to Sheryl Johnson. She also works at Walmart.
[38] Thus the parties met, married and lived in the United States. For much of the marriage the father was posted away on training exercises. He married in 1999 and decided to re-enlist in 2000 to gain 4 more years of employable earnings before retirement. The mother wanted him to leave the Navy and return to Nova Scotia. The father now lives in Rogers, Arkansas, USA. The mother resides in Dartmouth, Nova Scotia.
[39] The relationship was difficult. The father agreed on one occasion to reconcile with her if she completed an anger management course. Six months of an attempt at reconciliation failed.
[40] He described three occasions that culminated in his decision to leave this relationship:
1. Christmas 1999 his ship was on deployment. The mother was pregnant with their son. He made arrangements to ship out after deployment and fly back to the family for 10 days. This was in his words a very unusual situation requiring special permission. She refused to let him return, got into his car and would not leave. She began throwing things out of the car. Unable to get her out so he could return to his station, he contacted the police. He was afraid to move her himself. They assisted him to leave in order to catch his flight.
2. While in Fort Dicks he was assigned to course in Virginia for 2 weeks. He learned that the mother and her two children were sick so he arranged to return home for the weekend on condition it was understood he would have to return to the second week of his course. He came home, looked after her and the children and to prevent him from returning to his course, she poured sugar in his gas tank, took his car keys and spit in his face.
3. The precipitation event triggering their separation occurred when the family packed the van for a visit to Nova Scotia. In a fit of rage she jumped on top of him and began hitting him in the face. She threw his cell phone and kicked him in the groin.
[41] After assisting her in packing the van, he agreed to drive to Nova Scotia with her. His bags were packed and he was in the process of getting a shower before leaving when she left without him.
[42] There was no serious attempt by the mother to counter his recollection of these events except to say she did not understand why he decided to shower before they got on the road. She became impatient as they were ready to go and left without him.
History of difficulty in resolving issues
[43] The father alleges that the mother has effectively blocked his contact to his son.
[44] The Divorce hearing ended on September 13, 2006. The parties could not agree on the terms of the order until December 28, 2007. Due to the failure to consent to the terms of the order, the court determined the terms and the order was issued.
[45] The mother refuses to follow the terms of this order as she did not consent to the terms. It does not appear to make a difference that the terms were imposed by the court after a contested hearing. The mother insists on following a draft prepared by her lawyer that contains provisions not in the certified judgement. When addressed in court, she held rigidly to the draft terms as correct. If the father does not comply, she refuses access. She has imputed a requirement that the notice be in writing.
[46] The mother admits she has deleted/blocked the father from the child's MSN because his conversations were boring.
[47] Initially as long as the father stayed in Nova Scotia with the mother he had access to the child. When he began to stay at the mother’s sister's and when he confirmed to her there was no possibility of reconciliation , the mother began to block access.
[48] At Christmas 2003, the father arrived in Nova Scotia around the December 22nd to visit his son. On the 23rd, the parents were traveling to Walmart for last minute items. While driving over the bridge the mother sought to question the father about the possibility of reconciliation. When he refused to reconcile, she slammed on the brakes and made him exit the car on the bridge and she drove away. When he returned to her household to obtain his personal belongings, she returned everything but his shaving kit. He went to a hotel and called her asking for the return of the kit. He drove over to obtain it.
[49] In the meantime, the mother phoned the police and advised them the father was coming over to kidnap her child. They arrived on scene. She threw his kit into the yard and was leaving when he saw the police arrive. He stopped the police and explained the circumstances. They advised him to refrain from returning to the house. He left Canada without seeing his son and saying goodbye for Christmas.
[50] Her version differs in that she advises she kicked him out of the car because he was bothering her, demeaning her, blaming her such that she was crying while driving so she stopped the car and asked him to leave.
[51] Subsequent to this altercation his access was severely limited. The mother requires him to take the other children, changes dates after he has booked his flight and time off work.
[52] In August 2005 the father drove from Arkansas to Dartmouth to take his son camping. He was required to take the two other children camping in order to gain access to his son. He returned and spent the next week at the air show and in Prince Edward Island with all three children. He was allowed no time alone with his son.
[53] In September he flew into Nova Scotia. He is permitted to stay at one sister's place without complaint. Should he stay at another sister's home, the mother refuses to allow their son to visit. While she has offered her reasons for refusing they were not supported in fact.
[54] On this occasion he stayed at her sister Debbie’s home, the sister who is in good standing with the mother. The child was not allowed overnight visitation with his father nor was the father allowed to drop him off at school or pick him up. He was required to take all children and he was finally allowed after court to have his son overnight from 5 pm to the next morning.
[55] In March 2007, he flew into Nova Scotia and was not permitted by the mother to stay with any of her sisters. She allowed him to stay in her home, she left leaving him responsible for all the children.
[56] While there he gained her permission to have a web cam installed on her computer so he could communicate with his son. While she agreed, she had it removed shortly after he left Nova Scotia. Her excuse for this is that she is protecting her son against the evils of web cam and the danger inherent in this method of communication. However she admits that early in their relationship while the father was posted away they regularly used a web cam to communicate.
[57] Telephone access is extremely difficult. Calls are not always answered. When answered it is clear the mother monitors the calls and when she wishes to speak to the father she interrupts the call. She places limits on the calls and terminates the call for various reasons.
[58] Gifts including a bike purchased by the father are given to the child without acknowledging the father sent them. The mother alleges that the father is in arrears of child support and that she has been charged for the gifts. There is no evidence before me to substantiate this. The father has opened an account and he deposits $425 American each month. The order requires $447 Canadian. He maintains that he is up to date and has missed no payments. There is a conversion factor which required adjusting. He offered his books for review at the hearing and there was no request to review them or provide contrary evidence.
[59] Any efforts to have his son visit his family or himself in the United States have been deliberately thwarted. The excuses range from the child does not want to go, he is too young to travel to the States, there are too many strangers, the father will abscond, etc. None of these excuses have been substantiated.
[60] In fact the evidence of both the mother and the father confirm the child misses the father, anxiously awaits his visits, wants to have time alone with his father and enjoys their time together. Clearly, if the mother thought there was any suggestion of concern about his parenting, she would not insist on him taking her own children as well.
[61] There are numerous incidents where the father has notified the mother of his intent to exercise access in accordance with the order, made his plans, been encouraged to come see his son, only to find she has arranged another activity and changed the times. Since he has planned his vacation around the visit, extending the visit to accommodate the mother's manipulations becomes difficult because of time off work, airline tickets already purchased, etc. The father is not without funds yet does not have sufficient excess to tolerate these added and unnecessary expenditures.
[62] In February 2008, the son invited his father to his swim up in Cubs. He was informed by the mother she was going to the Dominican Republic. The father told his son he would come for this. The mother called the father and told him the swim up was changed to suit her schedule and therefore he need not come. Having already made the arrangements, he insisted on coming and found that no changes had been made to the time of the swim up. During his drive to Nova Scotia, he continued to receive calls form the mother stating ...
You better not be on your way ... I have notified the proper authorities of what you are trying to do ... If you come here there will be hell to pay.
[63] Upon arrival he found his son at the mother's sister's. The sister had been given instructions not to allow unsupervised access and no overnights. This was in spite of the directions by the court that the father was to have unrestricted contact.
[64] On June 16, 2008, subsequent to the application and while awaiting the assessment, the parties appeared before the court to address the difficulties with access. The father had received a voice mail from the mother indicating that he should forget access that summer as she intended to be away the entire summer.
[65] Both counsel confirmed to the court that the month of August was free for the father to have block unrestricted access to the son. The mother’s counsel confirmed this (p. 21 transcript; line 14) The court directed that counsel work out the details. The court directed an enquiry to Mr. Grant to advise what his clients intentions were for the summer in order to select the four (4) weeks' access for the father. The record indicates that August is free for the father to have contact block access with his son, overnight and unrestricted. The court confirmed that August began on the 1st and ended on the 31st.
[66] The access did not go forward as planned.
[67] The mother was cautioned in court that her conduct regarding facilitating contact and access would be subject to the court scrutiny in determining custody and access.
[68] In June, the father sent the mother an e-mail advising the mother of his intent to come to Nova Scotia to visit his son. The mother insists on two-week written notice even though that is not required by the order and in spite of the fact the month had been agreed upon in court.
[69] The father confirmed then and in phone calls that he was arriving on August 3rd to pick the child up. He was advised the children would not be home. Due to the fact that this was specifically dealt with at the pretrial, he decided to come to Nova Scotia. He drove from Arkansas to Nova Scotia with his wife and arrived at the mother’s home at 11:45 am. The mother had left the area and took all the children camping. She refused to tell her sister where she was.
[70] The father went to the RCMP. They were unable to help him locate his son without an address. Neither of the mother's sisters knew or told the father where the mother and children were. The sister Wendy contacted the mother by cell phone and advised that the father was present to pick up his son. The mother continued to refuse to give out her whereabouts. She advised him that she required two-week's written notice and she would consider his notice period would begin when she returned from camping the following week.
[71] When he drove back to his home without seeing his son, she subsequently used this to belittle him indicating "you drove all the way up here and didn’t even stay to see you son" and more seriously, telling her son.
[72] In 2009 when coming to Halifax to meet with the court-appointed assessor, the father was refused the opportunity to see his son at Wendy’s home. The effect of this is to require the father to book into a hotel room adding to the cost of the visits.
[73] The assessor described the mother’s outrage when he tried to meet with the assessor at Wendy’s.
[74] For three weeks prior to attending the settlement conference, the father tried to make arrangements to see his son upon arrival. He planned to fly in on Friday before to see his son for the weekend. He was informed by the mother that she would be busy every day until court. The schedule was in accordance with his time off. She refused. Unknown to him, the mother agreed to have a visit take place at the end of the week during the time he was scheduled to return to his home. He was effectively denied contact. This is particularly troubling because the mother unilaterally choose the time and the father was not advised of this agreement and knew that he would be returning. She informed her child that the father was going to visit him even when he had advised he could not. The child waited for his father, becoming anxious, upset and finally distraught.
[75] Far more troubling is the contents of a taped telephone call during which the mother took the phone from her son and in his presence ranted at the father in an uncontrollable rage demeaning him in the son’s presence, encouraging the son to relive his feelings of abandonment and anger at his father, and enforcing how this exemplified the father’s lack of concern for him. This sense of abandonment was created by the mother’s version of events and do not reflect the father’s serious efforts to maintain contact with his son.
[76] The mother vilified the father, reducing the child to tears. It was one of many truly manipulative and abusive conversations between the mother and father. As the assessor noted, the mother does not isolate her child from her anger. In fact, the evidence supports the fact that she actively engages the child in her anger.
[77] The mother has opposed the release of any medical or educational material to the father despite court order. The father has a right of access to this material. The mother forcefully advised the father not to try to obtain updates and informed him that the school refused to release any. He confirmed with the school and was advised he was entitled to this information.
[78] She has confirmed in her evidence she has no intention of allowing her son to communicate with the father by web cam and will not accommodate this method of communication between the child and his father.
[79] She acknowledges the terms of the order but retains the right to amend or add to the order with preconditions regarding access.
[80] She showed no insight into her behavior either with the assessor or when confronted in court with her rages during the telephone contact. She expressed that she felt her anger was justified and was not inappropriate or adverse to the child’s interests.
[81] The assessor's report was in January 20, 2009. Both parents had access to the report and knew of his recommendations. In particular, it was clear that the assessor recommended that if the mother continue to fail to comply with court-ordered access, the court may consider changing custody.
[82] In spite of that and even in the face of the court directing unsupervised contact for the father and child while in Nova Scotia for the hearing, the mother refused to allow overnight access and refused to allow the child to go to her sister's.
[83] In the context of Section 16 (10) of the Divorce Act there is ample evidence to prove beyond any doubt that the mother will not abide by a court-ordered access regime unless it is one crafted by her that restricts the father’s access considerably. She will not facilitate communication and will continue to sabotage the contact until this child is old enough to make his own decisions. She will continue to demean the father in the child’s eyes, make disparaging remarks, inform the child the father does not care about him, is not interested enough in contacting him to make any effort and will continue to fuel his grief at his father's absence in his life.
[84] Having concluded that the mother is unlikely to change her behavior and in recognition that Section16(10), while important is not in itself the sole justification for a change in custody, I move to a consideration of the best interests.
[85] I know little of the child’s circumstance with the mother. I know he is doing well in school. I have little reliable evidence from collateral sources other than the assessor. The file materials does not disclose the ages of the other children.
[86] This child is attached to both parents. There is no contra-indication regarding the father’s ability to parent. Indeed the mother wants him to care for her two children for overnights and extended periods.
[87] The mother admits that her son anticipates the father’s visits.
[88] The mother also admits she had informed the father that she told their son his father was a criminal. This relates to her unproven allegations of income tax fraud. In court she recanted somewhat to suggest she only told the father that and did not actually tell the son. Given what the evidence shows of her telephone conversations, there can be no doubt that she shares her intense animosity of the father with their son.
[89] The court is left weighing the evidence as to both parents' plans. The mother’s plan is to continue as is, restrict the father’s access to Nova Scotia. As she sees nothing wrong with her behavior, there is no likelihood of change.
[90] The father is prepared to house and care for this child in a two-parent stable environment. His wife testified. She is supportive of having his son live with them. They have investigated their area and have ensured appropriate arrangements are in place for his visit and living there should the court decide.
[91] The father's wife is prepared to communicate as necessary in a civil and appropriate fashion with the mother. This however has been rejected by the mother who refuses to speak with Ms. Johnson and indicates she has no intention of engaging in any relationship with the father’s wife.
[92] The father began two years ago to tape conversations between himself and the mother. He did so because when he makes arrangements to visit he then finds himself in constant conflict. What he says and what the mother believes he said are usually at odds. He advised when they have an argument about what he has said either by way of e-mail or telephone, he has referred her to the tapes and the e-mail to confirm the accuracy of his discussions.
[93] There was no objection to the admission of these voice mails. There was no suggestion by the mother that these conversations did not take place or that the voice was not her own. She does advise that there were many more voice mails that would present her in a far more calm manner and that these do not reflect the vast majority of the discussions.
[94] It is difficult to believe the intensity and the content of the discussions were it simply his testimony against hers. One has to listen to the subject matter to believe and observe how an innocent conversation with his son can escalate into a blind barrage of verbal abuse involving both the father and the son. One has to experience the nature and extent of the mother’s emotional abuse to believe it happens as the father indicates.
[95] The mother has left messages on the father’s telephone alleging in 2007 (some 6 years after her separation) that his wife stole her husband. She speaks of the father being involved in tax fraud and suggests she is sending papers to the IRS to have him arrested. She taunts his girlfriend (now his wife) about having conjugal visits in jail as a result of income tax fraud.
[96] She phones him in 2008 when he contacted the school directly to advise him about breaking the rules. She tells him not to contact the school directly.
[97] His evidence on the arrangements made for the “swim up” are corroborated in the third voice mail.
[98] The audio 8/2008 she advises him he can forget about the summer access. He also is advised that the 2007 summer access will not happen. While she said they planned to be away for the summer, she later advises they did not go anywhere.
[99] The mother testified that these discussions do not go on around their child. The discussions could not possibly take place in a household no matter which room the children were in without everyone in the household hearing her rage escalating.
[100] The assessor noted in his report that he had seen two such rages and he described the father and son as cowering. He described the effect of this experience on the father and son and noted a marked difference in their behavior when the mother was not around.
[101] These rages seriously impact the child and his ability to connect in a meaningful way to his father. The father admits he speaks and acts in such a way that he can avoid any confrontation with the mother and to try to avoid any negative consequences on his son.
[102] When questioned about these rages, the mother showed no insight into their effect on her son. If this is what happens when the mother knows she is being taped, what happens when there is no one around to hear her?
[103] The assessor was asked about the effect of separating the siblings. He acknowledged that he did not assess the two older children. He did advise that were it not for the sibling connection, his recommendation would have been different. Clearly by his report he was calling the mother to some responsibility and recommending she be given a chance to mend her behavior to facilitate meaningful contact with both parents and preserving for their child contact with her.
[104] Since his assessment, the mother continued to sabotage the father’s contact, refusing him access contrary to the court order, and interfering directly and indirectly with telephone e-mail and face to face contact between the father and son.
[105] The mother has had from January 2009 to June 2009 to facilitate contact. Even after the hearing when the father was returning to the United States, she refused to take the direction of the court and facilitate unsupervised overnight contact.
CONCLUSION:
Application for support
[106] The mother asks the court to order the applicant father to pay child support to her two children of a prior relationship. I have reviewed the Divorce Petition which noted only one child of the marriage. The mother was advised by Justice Dellapinna in a pre-trial memorandum to seek legal advice and absent money, to speak to the duty counsel at the Family Division or seek legal aid. The Petition was dated in March of 2005. The pretrial memorandum was dated April 2006. At that time, the mother had not filed an answer nor filed her financial statements.
[107] I have reviewed my oral decision and note that the mother never complied with the courts filing directions, did not file an answer and failed to file complete disclosure.
[108] Subsequently in her variation application, she sought only restricted access. It was only in response to the applicant’s application to vary the terms of custody and access that the mother formerly pleads the issue at the pretrial on February 16, 2009.
[109] At that time she sought to have child support awarded for her two children for the years that they remained on the applicant’s income forms filed to comply with the IRS in the United States.
[110] The father adequately explained that while living in the United States, he was required to have the children on his tax forms. He had to acquire numbers for the children residing in the United States. They could not be removed until the Divorce Judgement was filed with the IRS. The filing of that document was significantly delayed due to the refusal of the Respondent to consent as to form on the Corollary Relief Judgement. Part of the delay was due to the failure of the father’s former counsel to address the preparation of the order in a timely manner.
[111] I have little information about the mother’s finances or employment history. While she worked outside the home for Molly Maid at one point, she advises she is now a stay-at-home mom. There was no evidence of the mother’s attempts to regain employment she left. There is evidence she receives pension from the children’s father. There is little evidence other than the limited visitation when the applicant is required to take all children that there is a duty on the father to support the mother's two children. Indeed, I have very little evidence about these two children including their stage of development, grade level, etc.
[112] Given this was not pleaded in the divorce despite opportunities provided to the mother, and was not pleaded in an answer, I conclude this is simply a complication introduced by the mother to place further financial obstacles before the father of the child before me.
[113] The mother has not met the burden of proof required to establish the applicant herein stood in loco parentis to her children. Because he has treated them kindly and included them in his access visits is not sufficient reason to found a financial obligation under the Guidelines.
Custody and Access
[114] I find as a fact that the mother is engaged in a conscious effort to alienate the child from his father. I find this is accomplished by changing plans, denying access, placing unrealistic demands on the father, and deliberately acting contrary to court order. She is unable to move beyond her extreme anger at the dissolution of the relationship. In his absence, she attacks the father’s character and deliberately sabotages the child’s view of his father.
[115] I find as a fact that she was physically abusive to the father. I find that she is engaged in significant emotional abuse against the father and the son, involving them in a degree of verbal abuse that is crippling.
[116] The assessor observed the child in the course of this assessment and he observed him to be a well-behaved, well-mannered eight-year-old. I have listened to the conversation in which the child is obviously under a great deal of emotional stress to comply with his mother’s wishes. He is wrapped up in her hatred and is the subject of her father battering, tearing apart his affection and love for his father.
[117] I have observed the father testify. I am aware since he was taping the conversations he most certainly would have been on his best behavior. I have also noted that the assessor concluded that the effect on the father and son of this emotional abuse was evidence and the mother's anger palpable.
[118] I conclude that the father is not returning emotional abuse in kind. He simply responds in such a way as to wait through the storm of abuse quietly just so he can still connect to his son. There is no evidence to support a finding that the father is likewise impulsive. He has persisted despite many sabotaged visits to carve out as much contact as he can with his son.
[119] I am satisfied that there is a change of circumstances. The original order contemplated a cooperative approach to parenting with each parent facilitating appropriate contact with the other to address the child’s best interests. The facts as they now stand could not be further from that original contemplation.
[120] The son has lived with the mother for 8 years. I rest with the knowledge that if the court allows the child to remain with the mother, the father will with certainty be cut out of his life until he is of age to find him on his own. The damage to the child should this happen is not one I can calculate.
[121] If I impose the recommendations of the assessor giving the mother a final opportunity to change her behavior, it is with some certainty that I can predict she will not, without therapeutic intervention, change her behavior. The child will go to the father for the summer and have to return to a mother angered by the two month contact with the father.
[122] If I change custody, likely visitation will be problematic for the child unless there is therapeutic intervention.
[123] Essentially the mother’s conduct is such that to create an opportunity for this child to be with his father in peaceful surroundings, he will lose meaningful contact with the other parent. This is due to the significantly high conflict produced whenever the father attempts to enforce his contact. It is specifically caused by the mother’s conduct.
[124] Losing either parent is undesirable. The father is prepared to facilitate contact with the mother. I find this assertion credible simply because of the abuse he has taken to obtain contact himself. He has done so without retaliation. He has tried to protect his son from these discussions.
[125] There is no evidence before me to suggest that contact between an eight-year-old boy and his father should be regarded as less important than contact with his mother.
[126] In this case, there is every possibility of a healthy relationship with the father, a valuable relationship, one that has all appearances of stability. At the same time, the father presents as a peaceable parent, a patient parent, hard working and diligent in his efforts to keep in contact with his son.
[127] The mother clearly engages in emotionally abuse and will not facilitate such contact so as to preserve this child’s connection to both parents. Delaying this further will certainly escalate the costs with little hope for change. Further litigation will be necessary to resolve the issue.
[128] It is important for this child to understand that he is not the reason for his mother’s rages. It is also important to salvage this important father-son relationship as the father appears more capable of providing a stable, peaceful, secure environment for this child.
[129] I am concerned about separating this child from his siblings (his mother’s two children). However, leaving him in an abusive environment where his access to his father is obstructed because the other two remain with the mother does not meet his best interests.
[130] It is also important for him to have connections to both parents so he does not have to choose between the two. If the mother is able to put aside her intense and destructive anger and maintain appropriate contact, this would be in his best interests.
[131] I have considered the mother’s wishes and the possibility of recognizing that the child should remain with the mother and cease contact with the father due to this conflict and I have rejected that as not reflective of the best interests of this child.
[132] I grant sole custody of the child to the father. Counsel shall arrange a transfer of this child to his father’s custody immediately. If transferred by airline, he shall be accompanied by his father.
[133] The father shall be responsible for the decision-making respecting this child. He has the rights and responsibilities relating to custody. He shall facilitate healthy contact with the mother by providing block access in the summer, at Christmas and March break and such other times as can be agreed upon . He has expressed an intent to keep the child connected with his mother by way of computer, phone, and visits.
[134] I am not concerned about the father’s ability to parent or his physical surroundings.
[135] I do not think it mandatory to have the father involved in the psychological testing.
[136] It is important that the father obtain professional help/counseling for his son to assist him in this transition.
[137] In an effort to avoid a total separation between the mother and her son, she shall have the right to block access during Christmas, March Break and summer, providing this contact is healthy and appropriate to the child’s needs.
[138] The mother’s behavior calls for an assessment using psychological tools to determine whether there are personality characteristics that impede her ability to gain insight into her behavior and make the necessary changes to address her unresolved anger and emotionally abusive behavior.
[139] In the event the block access becomes emotionally difficult for the child, I am prepared to order a psychological assessment of the mother and child to seek the recommendation of skilled professionals regarding preserving contact between this mother and child.
[140] I am concerned about the child’s return to the mother’s care for block access. My concern centers around whether this child will become the direct victim of her emotional abuse on his return.
[141] Should the contact create further conflict, the block access shall be terminated and the mother shall be obliged to obtain the services of a professional therapist to address her ability to engage in block access with her son. The matter should then return to the court for resolution, barring agreement of the parties.
[142] The mother may have block access with the child one week in August in the United States this year. She shall advise the father by July 20, 2009, of the arrangements she has made to see the child and she shall return the child to his home unless the father and she agree to a different location in writing in advance.
[143] If the child is not returned, the order shall authorize the police to intervene to return the child to his father. Failure to abide by the court order may result in a reduction of the block access in future years.
[144] This order shall be sufficient authority for the father to take the child to the United States to his home across the border without any need for the mother’s consent. The father may apply for a passport without the mother’s consent.
[145] The father shall keep the mother informed of his residence , the school in which the child is enrolled and his progress. He shall advise the school and third-party providers that the mother is entitled to have information concerning her son directly
[146] I allow for supervised access to his mother by way of telephone and computer link up for the first four (4) months to maintain his connection and supervise the content of the discussion. If these connections become abusive, they shall be terminated. The father is free to lift the supervision before that date in the event the transition and communication no longer requires this supervision
[147] The father shall make the child available for computer access and telephone access at reasonable times upon reasonable notice.
[148] The costs of transportation shall be shared equally. The mother shall be responsible for the trip to her home and the father for the return trip. Each shall confirm the arrangements in writing.
[149] Should the mother fail to cooperate with a timely return of the child in accordance with advance plans she shall forfeit her right to access in Nova Scotia. Ever effort shall be made to keep this child out of the conflict and ensure the transition is peaceable and according to the schedule arranged.
[150] The mother has argued that the first assessor did not address the separation of siblings issue. That was not his role. For any future assessment I am prepared to include the two other children should the mother consent to speak to the attachment issue.
[151] The Nova Scotia court retains jurisdiction over this child at least up to a review date which shall be set up by the court scheduler. The father shall provide a report from a counselor as to the child’s progress and an update of his activities.
[152] The corollary relief judgement shall be varied as follows:
Custody and Access:
153. THAT custody of the child, Joshua Johnson, born April 2, 2000, shall be removed from the respondent mother and placed with the applicant father on or before July 15, 2009;
154. THAT the child shall reside with the father in his home in the United States of America. The father shall keep the mother updated regarding any changes to the child's address or phone number.
155. THAT the father shall consult with the mother on all major issues concerning the child. Where a dispute exists, the father shall have the final decision.
156. THAT this order dispenses with the need for the consent of the mother to remove the child from the jurisdiction of Canada to return to the father's home in Arkansas, USA.
157. THAT this order also authorizes the father to apply without the need of the mother's consent for a passport for the child to facilitate his travel to and from the United States.
158. THAT the father shall facilitate ongoing contact between the child and his mother by way of web cam, phone calls and such other opportunities as are reasonably possible.
159. THAT the mother shall be entitled to block access with her son at Christmas, March Break and commencing in the summer of 2010, block summer access.
160. THAT the mother shall also be entitled in the year 2009, being a transition year, to block access in the United States or an agreed upon location with the father. The time of access shall not exceed one (1) week. Unless otherwise agreed in writing in advance, the child shall be picked upon and returned by the mother to the child's residence. The mother shall advise the father of her chosen week by July 20, 2009.
161. THAT for the first four (4) months of transition, the telephone and web cam contact between the child and his mother shall be supervised to ensure the conversations are healthy and appropriate and are not emotionally charged.
162. THAT the father may terminate the supervision earlier than the four (4) months should he determine continued supervision unnecessary.
163. THAT should the communication between the mother and the child become emotionally abusive, the particular call shall be terminated.
164. THAT the father shall have the right to have the child with him on Christmas on odd numbered years, starting Christmas 2009. On December 26th the mother than have the right to have the child to be in her home up to the day before school starts in January 2010.
165. THAT for Christmas 2010, the mother shall be entitled to have the child with her the last day of school to December 27th.
166. THAT the mother and father shall advise each other in writing in advance of the scheduled time as to the arrangements, the date and time of pick up and return.
167. THAT the mother shall also have a right to have block access during the child's March break.
168. THAT for the summer of 2010 vacation and even numbered years thereafter, the mother shall have first choice of summer. For the summer of 2010 she shall be entitled to three (3) weeks. By May 1st of her year of choice , she shall advised the father in writing of her choice of summer access. Her failure to advise will result in the choice of summer schedule moving to the father. The father shall advise the mother by May 15th of his choice and the mother shall then have the option of selecting three (3) weeks out of the remaining summer.
169. THAT the father shall have the choice of summer vacation on odd numbered years.
170. THAT the mother shall be responsible and pay the cost of transportation of the child to her home for access. The father shall bear the costs of the child’s return to his home.
171. THAT the parties are free to agree in advance in writing to changes to this schedule.
172. THAT in the event the mother fails to abide by the terms of the order and does not return the child to the father's residence in accordance with this order, she shall forfeit the right to have access in Canada.
173. THAT the father shall keep the mother informed of the child's school progress, the name of the school, all updates and functions, grades, etc.
174. THAT the father shall provide the mother with the names of the medical providers and any other service providers and she shall have access to information directly from these service providers.
175. THAT the Supreme Court of Nova Scotia retains jurisdiction over the child.
Child Support
176. THAT any order for child support shall be terminated effective immediately.
177. THAT this matter shall be set down for a review to be held on Monday, November 16, 2009, from 9:30 to 9:45 am at the Supreme Court of Nova Scotia, Family Division, 1815 Upper Water Street, Halifax, Nova Scotia. The father shall provide an affidavit detailing the transition and a report from the child's counselor three (3) weeks in advance of the hearing. The mother shall provide an affidavit in reply one (1) week in advance of the hearing.
Enforcement
178. All sheriffs, deputy sheriffs, constables and peace officers shall do all such acts as may be necessary to enforce this Order and for such purposes they, and each of them, are hereby given full power and authority to enter upon any lands and premises whatsoever to enforce the terms of this order.
Legere Sers, J.
July 3, 2009
Halifax, Nova Scotia