SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: A.L.B. v. H.P.H., 2009 NSSC 245
Date: 20090820
Docket: SFH MCA 59423
Registry: Halifax
Between:
A.L.B.
Applicant
v.
H.P.H.
Respondent
Judge: The Honourable Justice Elizabeth Jollimore
Heard: August 14, 2009 in Halifax, Nova Scotia
Counsel: Colin M. Campbell for Applicant
Krista Forbes for Respondent
By the Court:
[1] J has just turned five years old. He lives with his mother. J knows he has a father, but doesn’t remember his father as much as he used to. J’s mother has told J that his father is on vacation. J’s father is serving a fifty month sentence following a conviction for aggravated assault on J’s mother. When J was three years old and laying asleep on the couch beside his mother, J’s father stabbed her and told her that he would let her to bleed to death if she told anyone he did it.
The applications
[2] J’s mother has applied for custody of J. This is not contested and her application for custody is granted.
[3] J’s father has asked for telephone access to J. He is concerned that if there is a gap in his relationship with J, then J will forget him. J’s mother asks that any decision about allowing access be delayed until J’s father is released from prison when it will be possible to know if J’s father has rehabilitated himself.
[4] The earliest possible date when J’s father may be released is December, 2009 when he will be eligible for parole, if he completes a course about family violence. It’s hard to get into this course, according to J’s father, though he’s currently scheduled to take the course next month. If he is paroled this December, J’s father will enter a halfway house. If he is not paroled this December, his next eligible release date is in May, 2011 when he will have served two-thirds of his sentence. At that point, he would not be required to go to a halfway house.
[5] In prison, J’s father attends school and works in the metal shop. He has also completed a program about substance abuse. J’s father describes himself as an alcoholic. He says he has no problem with alcohol right now, but admits he isn’t sure whether this is because he has no access to alcohol. He “can’t say” he won’t drink in the future.
Applicable law
[6] J’s father argues that, pursuit to the Court of Appeal’s decision in Abdo, 1993 CanLII 3124 (NS C.A.), the burden is on J’s mother to prove that it is in J’s best interest that J’s access to his father be terminated. This is an accurate statement of the law in applications to terminate access. This law does not apply to this application, though. J’s mother has not asked that J’s access to his father be terminated, only that the decision on allowing access between J and his father be delayed.
[7] Since there is no request to terminate access between J and his father, my decision is based on an assessment of J’s best interests, as directed by the Supreme Court of Canada’s decision in Young, 1993 CanLII 34 (S.C.C.).
[8] J’s father claims he does not remember initially threatening J’s mother or his later assault against her. He says he had been drinking quite a bit when he assaulted her. The statement J’s mother gave to the police said that J’s father had about eight beer when he stabbed her and he usually drank a 24 pack of beer as well as rum or vodka every day. While J’s father says he was drinking “quite a bit” when he stabbed her, he denied that he was blaming alcohol for his actions.
[9] J’s father says that J’s mother has some responsibility for his assault on her because “she tried to take my son from me”. She did this by telling J’s father she didn’t want him to be with her. J’s parents had been separated for two weeks when the assault occurred. J’s father was at the family home because J’s mother had agreed to talk with him about J. There was no indication she had done anything to take J from his father, beyond initiating the separation.
[10] Following his arrest, J’s father was subject to an undertaking which prohibited him from contact with J’s mother. During this time, he attempted to contact J, by calling the home and writing to J and, in one letter, mentioning J’s mother. His undertaking was varied to prohibit calls to the home. His efforts to contact J upset and frightened J’s mother. J’s father understood that J’s mother would be upset by his efforts to contact J, but says he did not know she would be
frightened by them. J’s father needs to gain insight into his actions and their impact on J and J’s mother.
[11] J has not had contact with his father since he went into prison. He knows his dad “somewhat”. He does not remember his dad as much as he used to. According to his mother, “[J]’s too young to understand what happened and the ramifications of that. He already has nightmares and stuff and I don’t need him to have any other problem.” J’s acceptance of the explanation that his father is on vacation was not challenged. J’s mother argues that there is no way contact by phone could be monitored to ensure it is appropriate and that phone contact would require her to give up her phone number.
[12] J’s mother admits J’s father may be rehabilitated when he is released from prison, though she doubts that J’s father will ever be a person who offers much benefit to J.
[13] J’s father does not understand the significance of what happened or the reasons for it. This is demonstrated by his efforts to contact J and his belief that J’s mother bears some responsibility for his assault on her. At this point, access by J’s father may raise questions for J that his father cannot answer appropriately. As well, the access may cause further upset and fear to J’s mother who is his sole care-giver. J’s mother will need to recover emotionally from the attack if she is to be expected to support J in a relationship with his father in the future.
[14] If J’s father gains insight into what he did, J may benefit from a relationship with him. Whether J’s father learns from the programs he takes in prison will be known when the courses are complete. His actions on his release will show whether he has been rehabilitated, whether he has stopped drinking and whether he understands the impact on J and his mother of the threats and the assault. When these things are known it will be possible to determine whether it is in J’s best interests that there be access.
[15] It is in J’s best interest that access between J and his father be delayed until an application following his father’s release from prison. I dismiss the current application by J’s father.
_______________________________
J.S.C. (F.D.)
Halifax, Nova Scotia