(FAMILY DIVISION)
Citation: Brudy v. MacQuin, 2009 NSSC 303
Date: 20091023
Docket: SFHMCA065571
Registry: Halifax
Between:
Peter Jeffrey Brudy
Petitioner
v.
Melody Anne MacQuin
Respondent
Judge: The Honourable Justice Moira C. Legere Sers
Heard: September 29, 2009, in Halifax, Nova Scotia
Counsel: Philip Whitehead and Marsha Curry, for Peter Jeffrey Brudy
Damian J. Penny, for Melody Anne MacQuin
By the Court:
[1] This matter solely concerns resolving the question: “ what was the status quo regarding the children’s care prior to separation, what has transpired since separation, and what interim schedule concerning the children can be set into motion from this day forward until the resolution of the difficulties or final determination of the court."
[2] The parents began living together in May of 2007 and separated in early 2009. That is less than five years of cohabitation.
[3] The mother has two children from a previous relationship, D. E. H. (born March 23, 1995) and J. A. H. (born March 14, 1994).
[4] Both parties confirm that the applicant, Mr. Brudy, has stood in loco parentis to these children since the beginning of their relationship. The children consider him their father. Both parents confirm their wish to continue the relationship and wish contact between Mr. Brudy and Ms. MacQuin's two children from her previous relationship to remain strong.
[5] One child was born of this union, C. E. MacQuin, born June 5, 2005.
[6] Both parties claim to have been primary parents for all children since their birth.
[7] The mother is a critical care nurse with dual responsibilities to her employer such that her hours of work for 50% of her time are on an urgent, as needed basis. When not called out unpredictably, she works day shifts from 7:00 a.m. to 7:00 p.m. and night shifts from 7:00 p.m. to 7:00 a.m..
[8] The father is a general contractor. It was his business that suffered the significant financial loss spilling over into the personal lives of both parties. The father works a regular schedule of 8:30 a.m. to 4:30 p.m.. He acknowledges he has some flexibility with respect to his work.
[9] When the parties began to live together in the spring or summer of 2004, they lived in Toronto, subsequently moved to Cape Breton and returned to live in the Halifax Regional Municipality ("HRM"). For the last year of school, the children have attended school in the HRM area close to both parents.
[10] Both parties agree that a schedule of care for the children, which predates the separation, essentially revolved around the mother’s shift work schedule. When the mother was working, the father would drive the children to school and to daycare and when the mother was not working, she would drive the children to their various activities.
[11] Other than the significant financial difficulties bringing about first the bankruptcy of the father in April of 2009 and subsequently the mother’s filing for bankruptcy in August of 2009, I have no evidence concerning the reasons for the breakup. The financial difficulties were significant and it is clear that this has resulted in great marital stress and contributed to the separation.
[12] After separation the mother and the three children moved in with her sister until May of 2009, when the mother moved into a condominium in Bedford, closer to the children's school. In September of 2009, the mother moved into a three-bedroom home within 10 minutes' walk from her son’s school, 20 minutes for her daughter.
[13] The parties acknowledge that pre-separation, they ordered their lives around the mother's shift work. They continued to do that during the period of separation to the current date although with much less success.
[14] The parties live in close proximity to each other now and the children have been use to a scheme of parenting that involves being with either parent when the other is working or unavailable.
[15] The youngest child was placed in daycare for five days a week and then due to limited finances removed to three days a week. These days are mandatory if the parents are to keep her spot in daycare.
[16] A further change has occurred in the scheduling due to the concerns that each parent has raised in the course of the separation about the other and as a result, the period of time from separation to today's date cannot be considered to reflect the status quo in relation to the children.
[17] Previous to and during the separation, the mother had a full-time job. As well, for a period of three months she attempted part-time work in order to supplement the family income. Given their financial difficulties, this is understandable. Since both have declared bankruptcy, the mother has been advised that it does not profit her at this time to earn additional income through a part-time job in addition to her full-time job while the bankruptcy is proceeding. She has cut her normal two overtime shifts per month down, making her more available for the children.
[18] The parties agree that both are important parental influences and wish to have each other continue to be significantly involved. However, each one wants to be designated as the primary parent.
[19] As of the hearing, the mother has agreed to an equal sharing of time. The father wishes to have equal sharing with respect to the older two children but seeks to have the youngest child in his primary care.
[20] The parties also agree that in the ordinary course of their schedule, if the mother was on day shift, the children would remain with the dad overnight the night before and if the mother was on night shift, the children will be with the mother the night before. As well, if the mother was off, the children were with the mother the night before.
[21] Unfortunately, the parties have set out to attempt to equally divide the hours or days the children are respectively with them and that has proved to be problematic.
[22] Each party has compounded the difficulties since separation. These difficulties have been further compounded because their parent information sessions have been scheduled late this month and only the mother has had the opportunity to attend. The father is expected to attend the parent information session. After attending the session, the mother proposed that the parties proceed into settlement-styled negotiations to work out an appropriate schedule to keep each other significantly involved.
[23] The father has raised concerns about the mother's behaviour. One would ordinarily expect some disruption in the children’s behavior during separation. As well, what has been described could also fit into typical disturbances associated with this developmental stage of their lives. Coupled with the separation and the stress, as well as the financial difficulties the parties have experienced, it is understandable that the children are in some turmoil.
[24] The mother’s son would have been 10 years old when he began to live with Mr. Brudy; her daughter would have been nine. These two children are now 15 and 14 years' old. They have lived with their mother since their birth and with Mr. Brudy just shy of five years.
[25] The father has done a number of things that have likely exacerbated the conflict between the parties:
a) he has written to the mother's family to outline his justification for his behaviour and raised concerns about the stress level experienced by the mother and his view of her need for counselling. He has discussed various incidents that have occurred between the mother and the children to exemplify his concerns.
b) he has contacted child protection to advise them of his concerns about the mother's mental state. They have declined formal involvement and his evidence would cause me to conclude they have suggested that he approach the matter with some delicacy to attempt to encourage her to seek professional help.
c) he has engaged in communications with the mother's former husband, who is not involved with the children's lives, sought to receive a copy of the court order and raised the issue that becomes evident when one reads the court order, that is, the prohibition against mobility in the order which raises the issue how the mother came to be in Nova Scotia and remain here without any application being made to the court. The financial involvement of the biological father of the two oldest children appears sporadic. On the limited evidence before me it would appear he has not played a significant role in their lives at this point. The applicant herein wishes me to conclude that based on this history, the mother is likely to move away from him and reduce his participation in the children's lives.
d) Finally, and perhaps more seriously, the father has consulted the children to attempt to derive from them a percentage of time they wish to spend with him and in comparison, the percentage of time they wish to spend with the mother. These are two teenaged children in the throes of separation and divorce. Given their ages and stage of development, this becomes more than problematic. This approach is misguided and ought to be discouraged. If the children's opinions are to be sought, seeking them immediately prior to an application to the court or through other nonprofessional means only exacerbates the difficulties between the parties.
[26] If there is a real issue about whether the children's voices need to be heard and cannot be heard through both of the parents, that issue ought to be addressed jointly before the court failing agreement of the parties.
[27] Partially as a result of some of these misguided strategies, the mother has responded in such a way as to exacerbate the father's fears. She has failed to consult appropriately with the father with respect to scheduling parenting time and attendance with any therapeutic involvement.
[28] The mother has not been forthcoming with her schedule which was the foundation of these parents' previous scheduling around the children. The mother has restructured the visiting time to reduce it in order to maintain her control over the situation and has not been forthright with the father in advising him that she has taken the children to counselling in an effort to reduce their stress level as they move through the separation process.
[29] I am satisfied after hearing the mother speak about the nature of the counselling that it is child-centered and focussed on the issues relating to child development and the stress of separation and is not focussed at this point on any suggestion that the father is not a significant parent. Indeed, the mother confirms that her older children are very attached to the applicant and she wishes to return to their previous habit of joint decision making.
[30] Thus, for the purposes of this interim application, the prior relationship of the mother with the father of the first two children is indeed very dated and is not helpful to the resolution of this problem.
[31] Clearly there are difficulties in the relationship. There were matters about which the father was not aware including the previous marriage of the mother to a third party.
[32] Essentially the children have become involved in the conflict. The Court's responsibility is to try to preserve for the children the best of each of these parents while the parents work out their difficulties. The Court must address the best interests of the children and look in the interim to maintaining the status quo if it is responsive to the best interests of the children.
[33] The parties have provided a great deal of information about a schedule that has evolved since the date of separation to today's date. For the reasons cited above, this would not qualify as the status quo. Indeed, if the period of time between separation and the hearing were to establish the status quo, it would promote great dissension and a tug of war between the parents as they strove to establish a status quo favorable to themselves.
[34] In those circumstances where the separation is relatively close to the interim hearing, the Court must look at the historical status quo to determine what these parents have decided themselves was in the best interests of their children and how the Court can best preserve a schedule that reflects their best interests.
[35] The primary concern of the father appears to be that he does not want to be cut out, he wants joint decision-making, he wants to be consulted, he wants to be significantly involved in the children's lives and he does not want his contact with the children dictated solely by the mother's schedule. While they were living together this was not a problem; now that they are separated, it obviously is no longer appropriate simply to look at the mother's schedule and to craft his parenting time around that.
[36] I have reviewed the documentation provided by Mr. Brudy and at this point in an interim hearing I have no information that would cause me to consider that he ought to be the primary parent over Ms. MacQuin.
[37] Ms. MacQuin has suggested that all three children stay together during parenting times. Given the divergence in their ages and stages of development, that is not likely to be a workable proposition as the older children begin to participate in the creation of a schedule that incorporates time with their peers, at school, extracurricular activities, etc.
[38] The younger child's schedule must be approached with a clear view of her individual needs based on her young age. Having said that, to equalize contact between the two older children and Mr. Brudy and then to take a different approach with the youngest child simply does not make sense on the evidence before me.
[39] Therefore, the status quo would reflect the fact that initially we have to work with the mother's schedule. The mother has indicated that commencing January 2010, she intends to look at more block time for her and Mr. Brudy for the sole purpose of reducing the number of transitions the children must undergo when moving from mother to father. While the transitions will be easier given their close proximity and their proximity to the school, one of the children at least has indicated that now that the parents are separated, they are beginning to feel the need for less transition and impliedly more block time with each parent.
[40] Nonetheless, in part, the mother's schedule as it now stands will always be one of the focal points for deciding the parenting time with a view to how this contact and change affect the children.
[41] The mother self-schedules although her schedule must be approved by her employers. When she puts in her next schedule, she shall attempt to comply with her proposal to encourage more block time so that there can be more uninterrupted time with the father and her and fewer transitions. At the same time it is clear that she has to sustain her employment and that she is subject to having her self-scheduling approved.
[42] Thus, from now forward until a final determination, and in particular until the parties can work out a better arrangement, the parties shall continue to ensure that when the mother is working the father picks the children up from school and drives them to various activities. The mother will drive the children to school and to various activities when she is available and not working.
[43] Thus, the status quo throughout the five years that these individuals lived together was to share parenting responsibility and to start with the mother's schedule because her schedule is the most subject to change given it is shift work. The mother has an obligation to self-schedule and forward that self-schedule to her employers for approval and after which she receives it back. There are very specific requirements regarding the number of shifts and the number of hours she must give to both aspects of her employment, the flight nurse aspect and the onsite aspect.
[44] Traditionally when the parties lived together, it was far easier to simply arrange to have the available parent do the pickups, deliveries and regular day to day care. Now with the parties separated, it is going to be much more difficult.
[45] Between October and December, there are not many options to change the mother's schedule given it has already been approved and she is obliged. The October, November and December months are set. I will start with that as a basis.
[46] I have reviewed the October to December schedule, mapping out a schedule in accordance with the father's recommendation of block periods of time, three days - four days alternating, equalizing the time with the two older children and placing him in the position of primary parent for the youngest child. That schedule does not account at all for the mother's schedule and would require that during the mother's time which was arbitrarily allotted according to a four day - three day schedule, there would be many days that would conflict with her obligation to work. This would not maintain the status quo and would in fact place the mother in a position where she may not be with the children as much as she was previously.
[47] The October schedule in accordance with the father's proposal allowed the father 17 days and the mother 14 days. The mother's proposal allowed the father 14 days and the mother 17 days. Because the October to December schedule is not flexible, the most efficient way of completing October is to require the mother to give the father in October one more day, the day to be agreed upon between the parties.
[48] Further, I have reviewed the November schedule in the same manner and note that the father's proposal gave him 15 days and her 15 days and the mother's proposal gave her 18 days and the father 12 days. For the month of November therefore, the mother will give to the father three additional days, some of which shall be in the week of the 8th, due to the fact that the mother has scheduled herself in every day from the 8th to the 15th. Three days can come out of that week.
[49] December will remain the same except for Christmas, when the parents will arrange a schedule specifically around Christmas Eve and Christmas Day that will allow the children to spend for the year 2009 Christmas Eve and Christmas Day to 3:00 p.m. with the mother and Christmas Dinner on Christmas Day, December 25th to December 26th with the father. Thereafter, the entire vacation will be split between the parents in accordance with an appropriate schedule for the parents and the children.
[50] On every subsequent odd-numbered year, the mother shall have the overnight Christmas Eve and on every even numbered year commencing 2010, the father shall have overnight Christmas Eve to Christmas Day at 3:00 p.m..
[51] Should the parties agree to a different schedule, they may vary their schedule providing it is done by consent in advance in writing. That confirmation can be by way of email or otherwise.
[52] In advance of submitting her January schedule forward, the mother shall first and always consult with the father to determine whether there are any special scheduling issues that must be addressed before she prepares her draft schedule.
[53] In preparation of the January schedule forward, the mother shall attempt to address the children's concerns in order to try to reduce the number of transitions and to allow for a larger two to three day block of time between the parents, if possible. That is to address the children's concern that the transitions are too frequent.
[54] As soon as the mother's schedule is submitted (not necessarily approved), she shall provide the father a copy to allow the father to make tentative plans.
[55] Changes may be made to accommodate illness and employment urgencies as long as the parties agree.
[56] No one parent shall arbitrarily or unilaterally change the schedule without the other's consent.
[57] Each parent shall be given first option to care for the children during time when the other parent is scheduled should they be required to work or should some urgency arise.
[58] In the event the parent does not respond as soon as reasonably possible, the parent with whom the children are scheduled to be may schedule a babysitter other than the parent.
[59] Neither parent will discuss any issues that are currently before the court with the children nor invite the children to discuss the issues before the court.
[60] Neither parent will denigrate the other parent to the children.
[61] The parties agree to continue with the children's counselling during this transition.
[62] Should the parties wish, this matter may be set down for a judicial settlement conference.
[63] The children shall have reasonable telephone contact with both parents. The parents shall attempt to agree on what is reasonable telephone access. Failing agreement, should telephone access become disruptive in their individual households, the parents may seek direction of the court.
[64] I would note that there is evidence that the two adolescent children are being left unattended or to supervise themselves. At a time when these children are entering into their adolescent years, at a time when their parents are going through separation and divorce and in any event, in ordinary times it is certainly not recommended to leave two adolescent children on their own with only minimal supervision during the day. Clearly other arrangements must be made to adequately care for the three children while they are in the care of the father and/or mother during vacations or other work times.
[65] The father has no authority to negotiate with the father of the older children regarding contact between the father of the older children and the children.
[66] If either parent schedules a visit outside the jurisdiction during a period of time when they have parenting time, they are to make sure that the other parent knows a telephone number where the children can be reached, their departure time and arrival time.
[67] All changes shall be agreed upon in advance.
[68] There will be no removal of the children's residence from the jurisdiction unless agreed upon between the parties or by court crder.
[69] Both parties are reminded of Section 16(10) of the Divorce Act, R.S.C. 1985, c.3 (2nd supp) which reads as follows:
In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[70] While these parties are not married persons, the principle of ensuring that both persons maximize healthy contact with the other parent is a principle which relates to the resolution of most custody and access situations. Their ability to be reasonable with one another will be a factor in future proceedings.
[71] The court's focus will be on maintaining appropriate, healthy contact between both parents to the extent that is possible and to ensure that these children are removed from the conflict that currently exists between the parents.
[72] The father’s counsel shall draft the order.
Legere Sers, J.
October 23, 2009
Halifax, Nova Scotia