IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: K.R.C. v. C.A. C., 2007 NSSC 226
Date: 20070720
Docket: SFHD-050297, 1201-061302
Registry: Halifax
Between:
C. (K. R )
Petitioner
v.
C. (C. A.)
Respondent
Revised Decision: The original decision has been corrected according to the erratum released on January 27, 2010. The text of the erratum is appended to this revised decision.
Judge: The Honourable Justice Beryl MacDonald
Heard: June 28, 2007, in Halifax, Nova Scotia
Oral Decision: June 28, 2007
Written Decision: July 20, 2007
Counsel: Gordon Kelly, for the Petitioner
Tanya Jones, for the Respondent
By the Court:
[1] In this decision, to provide privacy to the parties, I will refer to the Petitioner as the father and to the Respondent as the mother.
[2] On June 28, 2007 I heard the father’s application requesting a variation to the consent Interim Order filed in this proceeding. At the conclusion of that hearing I decided the circumstances required the immediate removal of the children from the mother’s care and I provided an oral decision upon which an order has been prepared and issued. I did inform the parties that I would provide a written decision elaborating upon my oral decision.
[3] On December 18, 2006 the father issued a divorce petition in which he sought, in addition to other relief, custody of the two children of his marriage. He filed an interim application on December 19, 2006 seeking their custody and requesting that there be a psychological assessment of both parties in respect to parenting capacity. He also sought interim exclusive possession of the matrimonial home. By the date of the interim hearing on January 23, 2007 the parties had agreed upon the arrangement for the care of the children. The children would remain in the mother’s primary care in the matrimonial home. The father would have the children in his care every second week from Tuesday at 5:30 p.m. until Thursday morning at approximately 8:15 a.m. and every second weekend from Friday at 5:30 p.m. until Sunday at 6 p.m. The mother had not consented to the preparation of the requested assessment and after hearing submissions I ordered that the parents and the children be referred to an assessor for a parental capacity and custody/assess assessment which was to include a psychosocial assessment of the family, and a clinical evaluation of the individuals within the family which could involve psychological testing and assessment should the assessor deem it appropriate. A matter of primary concern were the allegations of domestic violence made by each party against the other.
[4] On June 11, 2007 the father filed another interim application seeking interim custody of the children. He alleged that conditions for his children had deteriorated since the date of the previous interim order. To protect each of the parties from allegations of domestic violence the father had arranged firstly for his brother and secondly for his mother to act as a facilitator in the transfer arrangements relating to the care of the children. The mother cooperated at first but eventually refused to deal with either of these persons. She would not even permit the father’s brother to arrive at her residence for the purpose of picking up the children and taking them to their father’s residence. Because the father was under a "no contact" order the children would now have to walk down the block to get into his vehicle for pick up. In addition, the oldest child became involved in making the arrangements between her parents with her mother at times yelling out instructions in the background.
[5] Of further concern to the father were the mother’s actions subsequent to the consent order. She on one occasion taped an envelope to the outside of her daughter’s overnight bag, left for the father to pick up at his daughters day care, upon which was written "(the father) is not paying! But claims he is". This was a message that could be read not only by the parties’ daughter but by anyone else at her day care facility. On another occasion the children arrived at the father ’s home with messages written on their arms. On the arm of the youngest child, who cannot read, was "I Love U Babe xoxo". On the arm of the oldest child was written "Mommy 220‑4273", the mother’s cell phone number. On an occasion when the youngest child had wandered away from home and was reported by the mother to the police as missing, the father was not informed of the situation until a friend told him that he had seen the mother being interviewed on the evening news after the child had been found. Under these circumstances I considered it appropriate to essentially review the interim arrangement. In doing so the father’s concerns were proven to be accurate and when placed in the context of the mother’s previous behaviors, many of which I find were also accurately portrayed by the father, raised a genuine issue about the mother’s emotional stability. Some examples of those behaviors are:
1. The mother instructed her lawyer to write the husband’s lawyer informing him of her concern about the husband’s intent to take the children by car for their Christmas vacation in Cape Breton because he had been determined to be "legally blind". The father is not legally blind nor is there any evidence to suggest there is anything wrong with his eyesight.
2. The mother contacted a person employed in the father’s employer’s Human Resource Department at 2:45 a.m. to "explain how the situation with the (father) was affecting her life and how it could be damaging to the reputation of (the employer)". The mother also contacted this individual subsequent to the interim order when the mother learned that her children would accompany their father during a television presentation for the IWK Telethon. The content of her message was as follows:
"....don’t you dare allow my children to go on that show with (the father) because then they are going to be associated with him and my daughter will be harassed at school saying ‘I seen your dad on the news, I seen your dad on the news, he’s a bad man, he’s a bad man’. Do not allow my children on that show.... do not hurt my children.... if any harm comes to my children because of this, any emotional abuse from other children and such, I will not allow it and I will take care of it..... do not allow him to take my children on that(show) because everybody will associate his face with my children’s faces..... the doctors called child protection agencies and everything this week, just yesterday in such. They don’t even want(the father) having the children.... other than that I don’t know what to tell ya but if my children are on that television I am going to have to take measures and that is not a threat that’s just a mother trying to protect her children. I live for those children; they are everything to me...."
3. Following the IWK Telethon this individual employed in the Human Resource Department received another voicemail message from the mother as follows:
"..... I just seen the... the telethon. You have as a company endangered the welfare of my children now. So just remember it, I warned you, I.... I tried to be kind. You have just endangered the mental health and welfare of my children having been connected to that man on the television. You wanted to do it at your detriment to your company that is fine. You just did it to the detriment of my children. So you had better have(inaudible) or somebody call me. I’m terribly upset and I’m going full throttle with this my dear. Goodbye."
4. On or about June 2007 the mother informed the police that she feared the father was fleeing the jurisdiction with the children. This allegation was completely unfounded and the mother knew exactly what the arrangements were for the children while in their father’s care the June 1st weekend.
[6] The mother attempted to justify these behaviors by suggesting she needed to protect her children but she could not explain why they would be at risk of harm in their father’s care. The essence of her evidence was that she was a severely abused wife during her years of marriage to the father, who drinks heavily, and therefore her children should not associate with him. Her allegations against him are alarming, are denied by the father, and after reviewing all the evidence before me are unproven. I am concerned however that her behaviors may relate to abuse that only a professional may be able to validate and no doubt this will form a significant part of the parental capacity report to be prepared in this proceeding. I am limited by the evidence placed before me and it does not support the allegations made. Even had her allegations been proven, the wife’s actions following separation have satisfied me she is now the person placing her children at risk.
[7] The mother’s case rested solely upon her credibility. She called no witnesses. She provided no collaborative evidence to support any of her allegations. For instance, she reports that she is part of the "High Risk for Lethality" program available through Victim Services but she does not provide any information from her caseworker to support this allegation, nor to explain the criteria upon which such an assessment might be made.
[8] The classic instruction on the subject of the evaluation of credibility was articulated by O’Halloran J. A. speaking on behalf of the British Columbia Court of Appeal in Faryna v. Chorney [ 1952] 2 D. L. R 354. At page 357 he said:
“In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions...... the internal consistency of the evidence, the logic and common sense of the testimony in terms of the circumstances described, the consistency of the evidence against the standard of prior statements and against the contrary evidence and the exhibits filed."
[9] In evaluating the mother’s allegations I have carefully analyzed all of the evidence given in this proceeding. I find her statements about events not to be "in harmony with the probabilities that a practical and informed person would readily recognize as reasonable and there is little consistency in her evidence nor is there logic and common sense." Her own evidence is disjointed and without any supporting material that may have been available. For example, she states in her affidavit filed as Exhibit 4, in this proceeding:
9. "One night before we were married, (the father) picked me up by the neck and was strangling me. After this I left him and went back home. I went to my parents twice but (the father) always apologized so we stayed together and got married."
[10] She presented no details around this event; where she was living, the season of the year, the year itself, where the event happened, what led to the event. She presented no affidavit or testimony from any family members who might have confirmed this event. Further in her affidavit she states:
12. "In December 1997 at the Christmas party (the father) was drinking and threw me on the cement floor. The discs were popped out from my back."
[11] She does not explain where this event happened though one might surmise it was in their home; did she go to the hospital; which hospital? She provides no details of medical treatment other than to say:
13 "Just after this I found out I was pregnant with (their daughter). I had to go to physiotherapy and I told them I fell down stairs."
[12] Why did she have to go to physiotherapy for her pregnancy? Would not so serious an injury have warranted immediate medical treatment?
[13] The mother acknowledges that the alleged assault by the father upon her on October 14, 2006 began when she cut the computer mouse cord. The events prior to and following this action are described differently by the father who testified that any action taken by him against the wife was in self‑defense. The wife says as follows from her affidavit filed as Exhibit 4 :
28. Around October 2006 we had (the father’s daughter) for the weekend here in Dartmouth and I told (the father) that if he intended on drinking to do it tonight to get it out of his system because he had to drive (his daughter) back to Sydney the next day.
29. (The father) went down to the computer and was drinking.
30. I went downstairs and asked him to come to bed and stop drinking and that he had to drive (his daughter) and he had a terrible record already with DUIs that he got off on.
31. He would not get off the computer and told me to fuck off and so at around 1:00 a.m. or so I was in bed and I went downstairs with some scissors to cut the computer mouse.....
[14] Why would she tell the husband to drink when she alleges he abuses alcohol? She presents no evidence that the husband has ever been charged for driving while under the influence. If she was safely in bed and was generally fearful of the father why provoke him by getting up, finding her scissors, going downstairs and in his presence cut the mouse cord?
[15] These are but some examples of the frailties in the evidence presented by the mother. There are others that could be similarly analyzed including her evidence about the events on the day the youngest child went missing, about her contact with the father’s brother on the evening she ran out of oil, or thought she did, about her allegation the father does not provide her with financial support, (he has provided significant financial support ), and about the breach of probation charge she instigated against the husband which was later dismissed because the Crown did not present any evidence at the hearing.
[16] I find very little of the mother’s evidence to be reliable. There has been domestic violence between she and the father. However, it appears from the evidence before me that she has exaggerated its content and has minimized her role in this conflict. In an attempt to improve the situation between them the father arranged for marriage counseling but the mother would only attend two sessions. She acknowledges she was charged with assaulting the father in October 2005 and that these charges were dropped
"because (the father) wrote multiple letters to the Crown explaining it was a terrible fight and we were both at fault and I was a loving caring person who had never been violent before this" (Exhibit 4 paragraph 84).
[17] She did not deny her assault upon him.
[18] The father has not been a benign victim in this home. He has struck out but I do not consider that he presents any risk to his children or to other female persons or others in his company. In fact the mother of his eldest daughter, from whom he separated shortly before his daughter’s birth, states in her affidavit, Exhibit 8 in this proceeding,:
5. Since (the father) and (the mother) separated, (the mother) has called me on a number of occasions, suggesting that we "team‑up" to take (the father) to court. (She) suggested that I should have (his) access with (their daughter) stopped and that I should seek additional child support from him. I have told (her) that I have no interest in taking (him) to court, as he is a loving father and I believe it is important for him to be involved in (our daughter’s ) life. Additionally, during all of the years I have known (him), I have never known him to be violent toward anyone or to treat the children in anyway that would cause me concern...."
[19] The mother displays an extreme level of emotional distress and has behaved irrationally. She has placed her children at risk of emotional harm as a result. She has interfered on many occasions to thwart or prevent the father’s access with the children even after previously agreeing to that access.
[20] The sole and guiding principle to follow when adjudicating custody and access disputes is to determine what is in the best interest of the child or children involved.
[21] Particularly useful is the comment in Dixon v. Hinsley (2001), 22 R.F.L. (5th) 55 (Ont. C.J.), at p. 72:
“The best interests” of the child is regarded as an all embracing concept. It encompasses the physical, emotional, intellectual and moral well-being of the child. The court must look not only at the child’s day to day needs but also to his or her longer term growth and development."
What is in the child's best interests must be examined from the perspective of the child's need with an examination of the ability and willingness of each parent to meet those needs. Each parent's plan for the child must be examined carefully in light of the child's needs. Custody is not always awarded to the parent who has "cooked the most meals, driven the most miles, attended the most concerts or cheered the loudest at their achievement..." (Gillis v. Gillis (1995), 145 N.S.R. (2d) 241 (N.S. S.C.) at p. 259.
[22] Section 16 (10) of the Divorce Act requires a child to 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.
[23] Judges are ever hopeful that parents, upon separation, will shield their children from the hurt, anger and anguish one or both may experience due to the breakdown of their relationship. Children are entitled to maintain meaningful relationships with both parents. Many parents, because of their hurt and their anger, cannot imagine why the children should have a relationship with the person who they believe has caused them such emotional turmoil. This attitude can lead to untrue or exaggerated allegations that exposure of the children to the other parent will harm the children. These parents may manipulate circumstances and engage police services the result of which will be to prevent or limit parental contact. On the evidence before me I find this mother to be such a parent. She has convinced herself that the father has been the perpetrator of extreme violence against her. She has convinced herself that their children should not been seen with him. She has agreed to a schedule when the children are to be in the father’s care but she has attempted frequently to interfere with the implementation of that schedule. She has stated that her children are "her life". This statement and others of similar intent indicate that she may have an inappropriate reliance upon her children for her emotional well‑being.
[24] I am not satisfied the mother will cease her relentless attack upon the father’s character . I am not satisfied that she has the ability to shield her children from her conflict with the father. Writing messages on the arms of her children was an abusive act, as was placing a message on her daughter’s overnight bag. The mother’s negative behaviors have escalated and place her children at risk of emotional harm while in her care. These circumstances require the children to be removed from her primary care. The father is capable of providing care to his children. He is able to distance himself from the conflict with the mother. He has not taken this action to punish the mother. He is genuinely concerned about his children’s welfare. He will need to engage other caregivers but this is the unfortunate consequence of the mother’s actions. The mother must seek professional help and I understand the father’s medical plan may be accessed to provide the financial support for counseling services.
25] This decision will leave the mother without a residence because I am also ordering that the father, who has been living with his brother, have exclusive possession of the matrimonial home. His payment of child support to the mother will cease. Under these circumstances I can make no order in respect to the mother’s access with the children other than to state that she is to have access with them at times and upon terms as are determined appropriate by the father, including supervision should he consider this to be necessary, until such time as this matter is returned to court.
[26] The mother is presently without income, although I understand she may be in receipt of some social assistance. Costs cannot be awarded against her in these circumstances. The father must therefore bear the entire financial burden this proceeding has placed upon him. Because of a previous bankruptcy the availability of credit to the father is limited. A very expensive parental capacity assessment is underway. Ordinarily the father would be required to pay the full cost of this assessment. This assessment is critical. There are clinical issues of importance the analysis of which will require the assistance of an independent assessor. The father will suffer serious financial hardship if he is required to pay the total or even one‑half the cost of this report. The regulations passed pursuant to the Costs and Fees Act, R.S.N.S. c. 104 state that "all parties shall pay fees in accordance with their income as follows..." for the preparation of court ordered assessments. It then imposes a sliding scale of fees. The court may order "one party to pay part or all of the cost of an assessment report attributable to another party where, in the determination of the Court to order otherwise would cause serious financial hardship to that other party or for any other appropriate reason". If I can relieve one party from paying due to financial hardship why can I not relieve both parties for the same reason? I do not consider the wording of the regulation to prevent such an order. Therefore I waive the requirement that the father pay for this assessment and the previous order shall be amended accordingly.
_________________________________
Beryl MacDonald, J.
IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: K.R.C. v. C.A. C. , 2007 NSSC 226
Date: 20070720
Docket: SFHD-050297, 1201-061302
Registry: Halifax
Between:
C. (K. R.)
Petitioner
v.
C. (C. A.)
Respondent
Revised Decision: The text of the original decision has been corrected according to the attached erratum dated January 27, 2010.
Judge: The Honourable Justice Beryl MacDonald
Heard: June 28, 2007, in Halifax, Nova Scotia
Oral Decision: June 28, 2007
Written Decision: July 20, 2007
Counsel: Gordon Kelly, for the Petitioner
Tanya Jones, for the Respondent
Erratum
[1] Delete paragraph 21:
Particularly useful is the discussion about this principle found in Dixon v. Hinsley (2001) 22 R.F.L. (5th) 55 ( ONT. C.J), p. 72:
the "best interests" of the child is regarded as an all embracing concept. It encompasses the physical, emotional, intellectual, and moral well being of the child. The court must look not only at the child’ s day to day needs but also to his or her longer term growth and development ... What is in the child’s best interests must be examined from the perspective of the child’s need with an examination of the ability and willingness of each parent to meet those needs. Each parent’s plan for the child must be examined carefully in light of the child’s needs. Custody is not always awarded to the parent who has "cooked the most meals, driven the most miles, attended the most concerts or cheered the loudest of their achievement.
[2] Replace that paragraph with:
Particularly useful is the comment in Dixon v. Hinsley (2001), 22 R.F.L. (5th) 55 (Ont. C.J.), at p. 72:
“The best interests” of the child is regarded as an all embracing concept. It encompasses the physical, emotional, intellectual and moral well-being of the child. The court must look not only at the child’s day to day needs but also to his or her longer term growth and development."
What is in the child's best interests must be examined from the perspective of the child's need with an examination of the ability and willingness of each parent to meet those needs. Each parent's plan for the child must be examined carefully in light of the child's needs. Custody is not always awarded to the parent who has "cooked the most meals, driven the most miles, attended the most concerts or cheered the loudest at their achievement..." ( Gillis v. Gillis (1995), 145 N.S.R. (2d) 241 (N.S. S.C.) at p. 259.