IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: Tamlyn v. Wilcox, 2010 NSSC 266
Date: 2010 07 05
Docket: SFHMCA-064146
Registry: Halifax
Between:
Matthew Tamlyn
Applicant
v.
Jennifer Wilcox
Respondent
Revised Decision: The text of the original decision has been corrected according to the erratum dated July 6, 2010. The text of the erratum is appended to this decision.
Judge: The Honourable Justice Leslie J. Dellapinna
Heard: May 10-13, 2010, in Halifax, Nova Scotia
Counsel: Deborah Conrad counsel for the Applicant
Alfred Seaman counsel for the Respondent
By the Court:
[1] This decision results from an application made by Matthew Michael Tamlyn (the Applicant) pursuant to the Maintenance and Custody Act R.S.N.S. 1989, c. 160 seeking custody of the parties’ daughter, Dylan Alexis Casey (D.A.C.) born July 4, 2007 as well as an order for child maintenance.
[2] The application is opposed by the child’s mother, Jennifer Lee Wilcox (the Respondent), who seeks primary care of the child and the permission of the Court to relocate D.A.C. to St. Thomas, Ontario.
BACKGROUND
[3] The Respondent moved to Nova Scotia from Ontario in October of 2005 along with her husband D.W. and their two children M.W., now aged eight, and N.W., now aged seven, with the hope of obtaining better jobs and rent free housing with the help of the Respondent’s father.
[4] Their hopes did not materialize. The Respondent’s father sold the house that they were living in so they had to pay rent and she said the jobs they obtained paid them less than what they had been earning in Ontario.
[5] In February 2006 the Respondent and her husband separated. D.W. returned to Ontario in 2006 and the Respondent remained in Halifax with the children.
[6] In June 2006 the Respondent obtained a job at a local car dealership as a warranty officer. In August or September of that year she met the Applicant who was employed as an auto mechanic at a different dealership in the same area of the city. They began seeing each other romantically almost right away.
[7] Shortly thereafter the Respondent learned that she was pregnant.
[8] The parties began living together in November 2006. D.A.C. was born on July 4, 2007.
[9] In an affidavit sworn by the Applicant on May 1, 2009 he described the parties’ relationship with D.A.C. as follows:
“ I would describe that [the Respondent] and I have each played an equal role in [D.A.C.’s] life from the time she was born until our separation. We would both participate in everything, from doctor’s appointments, to bath time, to meals, to changing her. These responsibilities were shared as equally as possible. Having said that, I acknowledge that I did work outside the home throughout our relationship, and in particular I have held a job with O’Regan’s Automotive Group throughout our relationship and to date. As a result, on the days I worked [the Respondent] was at home caring for [D.A.C.].
...
I would describe my relationship with [D.A.C.] as wonderful. I would do anything for her that I could. I love her deeply, more than words can describe. We have fun together - laughing, sharing, reading, and simply enjoying our time together. Any time I can spend with her is its own reward.
...
[The Respondent] also has a good relationship with our daughter, and [D.A.C.] loves her very much, as she does [D.A.C.].”
[10] In an affidavit sworn by the Respondent on April 15, 2010 she said:
“10. I loved [the Applicant] with my heart, body, mind, and soul, and wanted nothing more than to have a good life with him and make him happy....I managed the home, the children, the meals, the house cleaning and extra curricular activities, all while [the Applicant] was working. I was happy to do this.
...
11. [The Applicant] was my whole world and I was happy to do whatever I could to be there for him in anyway I possibly could. My children appeared to like him, and [N.W.] was happy to have a male figure around who enjoyed to play video games, watch motorcycle racing, shared an interest for remote control cars; it appeared that they got along quite well.
...
12. After [D.A.C.’s] birth things with [the Applicant] started to deteriorate. He became very agitated and frustrated with the day to day responsibilities of having a newborn child. He also started to become very withdrawn from [M.W.] and [N.W.], and really didn’t share in the daily necessities of caring for our daughter. He worked 4 days on, 4 days off, and was gone from 6:30 until approximately 9 p.m. every evening, and therefore only really saw [D.A.C.] on his days off, and when he wasn’t sleeping or glued to the PS3 during that time.
[11] It wasn’t long before the parties’ relationship started to deteriorate. The Respondent described the Applicant as being unwilling to help with the routine of caring for the children and in particular D.A.C.. The Applicant said that there were numerous arguments over what he viewed as the Respondent’s problem with alcohol. He said that she would drink frequently to excess in situations where it was inappropriate and as a result he threatened to move out on a few occasions.
[12] The parties separated after an incident on December 23, 2008. What began as an argument turned into a physical altercation resulting in the Respondent being charged with assault. Constable McNulty of the Halifax Regional Police Department said it was the opinion of the officers that came to the parties’ apartment (as a result of a phone call from the Applicant) that the Respondent was the “dominant aggressor” and it was for that reason that she was charged. Having read the affidavit evidence of the parties relating to this incident and hearing their testimony, I tend to agree with the police officers’ opinion.
[13] Following departmental policy, the police made a referral to the Department of Community Services who in turn asked the Respondent to undergo random urinalysis testing (to assess the frequency of her alcohol consumption).
[14] On several of the dates that the Respondent was to provide a urine sample for testing, she was not available. She claimed that on some of the dates the collection was to be made very early in the morning and she simply slept in. On other occasions she said it was her belief that she did not have to be available. She also said that she thought the duration of the testing had come to an end earlier than it actually did.
[15] As part of the investigation by the Department of Community Services the Respondent was asked to meet with Ms. Jay LeBlanc who is a clinical therapist at the Cobequid Community Health Centre. In a report provided by Ms. LeBlanc dated May 12, 2009 she said that the results of her assessment “did not indicate that [the Respondent] has a substance abuse problem at this time.” She went on to say “Although [the Respondent] acknowledges some stressful periods in the past where she might have drank more than appropriate she states that the involvement with your agency was “an eye opener” and that she has made positive changes in her alcohol use since. She does state, however, that there is a family history of alcohol abuse and this would place her in a higher risk category to have problems in the future.” The “family history of alcohol abuse” is a reference to the Respondent’s mother.
[16] After the parties’ separation D.A.C. as well as the Respondent’s two older children continued to live primarily with the Respondent. The Applicant saw D.A.C. on alternate weekends as well as visits during the week.
[17] In February 2009 the Respondent took her two older children back to Ontario to live with their father who lives in Mississauga. This was done at a time when the Respondent was still being investigated by the Department of Community Services and undergoing random urinalysis testing.
[18] On April 30, 2009 the Respondent informed the Applicant during a phone call that she and D.A.C. had moved to Ontario and that it was her intention to stay with her mother in Nobel, Ontario. The Respondent claimed that she had moved back to Ontario because the Applicant “had taken all of our belongings and therefore left us in a position where we had nothing.” She also said that she moved to Ontario so that she could provide D.A.C. with a better standard of living because in Ontario “there were substantially more options available” to her in the form of “jobs, schooling and an environment suitable for a 1 and a half year old”. She claimed too that the Applicant was not providing her with sufficient financial support.
[19] Her statement that the Applicant had taken all of their belongings was an exaggeration. He took some household effects but it is not accurate to say that he left her with nothing. Also, he was providing her with support. On a voluntary basis he paid her $375.00 a month toward the rent. She felt he had no choice to do that because his name was on the lease. That payment came to an end at the end of April when the lease expired. He also paid her $378.00 a month toward the daycare costs - being one half of the total amount due each month.
[20] It is worth noting that the Respondent made no effort at that time to apply to the Court for child or spousal maintenance.
[21] After he learned of the Respondent’s move to Ontario the Applicant made an ex parte application to this Court asking for an order requiring D.A.C. to be returned to Halifax immediately and be placed in his interim custody. The Honourable Justice O’Neil of this Court granted his application and by way of an order dated May 5, 2009 ordered the immediate return of the child to Halifax, that the Applicant have interim custody of D.A.C. and that the Respondent have reasonable access at times to be agreed upon by the parties - which access was to occur in Nova Scotia. A return date was set for May 27, 2009.
[22] The May hearing date was postponed a number of times because the Respondent was not served with the Applicant’s application or the Court’s order until August 8, 2009.
[23] The Respondent then made arrangements to drive back to Nova Scotia with D.A.C. on September 8, 2009.
[24] Between April 30 and September 8, 2009 the Applicant was not offered any access to D.A.C. and the only contact he had with his daughter was over the phone.
[25] After the Respondent’s return to this province the parties negotiated an Interim Consent Order which was issued on October 15, 2009. That order provides that the parties would have interim joint custody of D.A.C., that the parties would share parenting time with D.A.C. such that D.A.C. would be in the care of the Applicant from Friday at noon until the following Monday at noon and in the care of the Respondent for the remainder of the week.
[26] There is a provision in the order that says that neither party is to remove D.A.C. from Nova Scotia without a court order and each is to keep the other informed of any major medical matters relating to D.A.C..
[27] Finally, the order provides that the Applicant is to pay child maintenance to the Respondent in the sum of $241.00 per month (based on his 2008 annual income of $27,000.00) and that the terms of the order are to continue until further order of this Court.
[28] Since returning to Nova Scotia the Respondent has been living in the Annapolis Valley area of the province. At first she moved in with a friend where she and D.A.C. lived for several months. She said that she stayed with her friend in the Valley because she did not realize how long she would have to remain in Nova Scotia. After learning that the application would not be heard by the Court for several more months she moved to her own apartment in Wolfville which, depending on traffic and road conditions, is approximately a 45 minute to one hour drive from Halifax.
[29] Because of the geographical distance between the parties, their mistrust of each other and the Applicant’s unwillingness to allow the Respondent to know where he lives or his phone number, problems ensued at various times when it came to picking up and dropping off D.A.C..
[30] The Applicant has re-partnered. He now lives with A.S.. While neither the Applicant nor A.S. provided any details of their relationship in their various affidavits, during cross-examination A.S. disclosed that she and the Applicant went to elementary and high school together but it was not until June 2009 that they became involved romantically. By August 8, 2009 they were engaged and they have been living together since September 2009.
[31] A.S. has been an active participant in the ongoing dispute between the parties. Although there is no evidence that she had any relationship with or knowledge of the Respondent until she became involved with the Applicant in June of 2009, in an e-mail that she sent to K.K. (a former boyfriend of the Respondent with whom the Respondent resided for a short period of time after her return to Nova Scotia in September 2009) in which she asked for information regarding the Respondent that would help the Applicant in these custody proceedings, she opined; “[D.A.C.’s] life will be ruined should she reside permanently or for the majority of time with [the Respondent].” She also said; “we’re good people, we work, we can provide a lifestyle for [D.A.C.] that is stable and secure - - - very much unlike [the Respondent], as I’m sure you’re aware.”
[32] The Respondent is not presently in a relationship.
ISSUES
[33] This application raises the following issues:
1. What parenting arrangement should be put into place for D.A.C.?
2. What amount of child maintenance, if any, should either party pay to the other?
THE LAW
[34] The most relevant provisions of the Maintenance and Custody Act are as follows:
Maintenance order
9. Upon application, a court may make an order, including an interim order, requiring a parent or guardian to pay maintenance for a dependent child.
Powers of court
10. (1) When determining the amount of maintenance to be paid for a dependent child, or a child of unmarried parents pursuant to Section 11, the court shall do so in accordance with the Guidelines.
(2) The court may make an order pursuant to subsection (1), including an interim order, for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as the court thinks fit and just.
...
Powers of court
18. (1) In this Section and Section 19, "parent" includes the father of a child of unmarried parents unless the child has been adopted.
(2) The court may, on the application of a parent or guardian or other person with leave of the court, make an order
(a) that a child shall be in or under the care and custody of the parent or guardian or authorized person; or
(b) respecting access and visiting privileges of a parent or guardian or authorized person.
...
(4) Subject to this Act, the father and mother of a child are joint guardians and are equally entitled to the care and custody of the child unless otherwise
(a) provided by the Guardianship Act; or
(b) ordered by a court of competent jurisdiction.
(5) In any proceeding under this Act concerning care and custody or access and visiting privileges in relation to a child, the court shall apply the principle that the welfare of the child is the paramount consideration.
[35] The leading case on mobility is the Supreme Court of Canada’s decision in Gordon v. Goertz, [1996] 2 S.C.R. 27. McLachlin, J. stated as follows beginning at paragraph 49:
49. The law can be summarized as follows:
1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.
5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
6. The focus is on the best interests of the child, not the interests and rights of the parents.
7. More particularly the judge should consider, inter alia:
(a) the existing custody arrangement and relationship between the child and the custodial parent;
(b) the existing access arrangement and the relationship between the child and the access parent;
(_) the desirability of maximizing contact between the child and both parents;
(d) the views of the child;
(e) the custodial parents reason for moving, only in the exceptional case where it is relevant to that parents ability to meet the needs of the child;
(f) disruption to the child of a change in custody;
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
50. In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?
[36] Gordon v. Goertz, supra, involved an application to vary custody pursuant to the Divorce Act. Nevertheless the authority still applies to proceedings under the Maintenance and Custody Act (see Handspiker v. Rafuse 2001 N.S.C.A. 1).
[37] In Young v. Young, [1993] 4 S.C.R. 3, the Supreme Court elaborated on the “best interests” test. At paragraph 17 the Court stated:
“...the test is broad. Parliament has recognized that the variety of circumstances which may arise in disputes over custody and access is so diverse that predetermined rules, designed to resolve certain types of disputes in advance, may not be useful....Like all legal tests, [the “best interests” test] is to be applied according to the evidence in the case, viewed objectively. There is no room for the judge’s personal predilections and prejudices. The judge’s duty is to apply the law. He or she must not do what he or she wants to do but what he or she ought to do.”
[38] In Foley v. Foley 1993 CarswellNS 328 Goodfellow, J. (in a divorce proceeding under the Divorce Act) attempted to put together a list of factors to be considered when determining the best interests of a child in a custody proceeding. Beginning at paragraph 15 he wrote:
“...In determining the best interests and welfare of a child the court must consider all the relevant factors. The diversity that flows from human nature is such that any attempt to compile an exhaustive list of factors that could be relevant is virtually impossible.
16. Nevertheless, there has emerged a number of areas of parenting that bear consideration in most cases including in no particular order the following:
1. Statutory direction Divorce Act 16(8) and 16(9), 17(5) and 17(6);
2. Physical environment;
3. Discipline;
4. Role model;
5. Wishes of the children - if, at the time of the hearing such are ascertainable and, to the extent they are ascertainable, such wishes are but one factor which may carry a great deal of weight in some cases and little, if any, in others. The weight to be attached is to be determined in the context of answering the question with whom would the best interests and welfare of the child be most likely achieved. That question requires the weighing of all the relevant factors and an analysis of the circumstances in which there may have been some indication or, expression by the child of a preference;
6. Religious and spiritual guidance;
7. Assistance of experts, such as social workers, psychologists, psychiatrists, etcetera;
8. Time availability of a parent for a child;
9. The cultural development of a child;
10. The physical and character development of the child by such things as participation in sports;
11. The emotional support to assist in a child developing self esteem and confidence;
12. The financial contribution to the welfare of a child.
13. The support of an extended family, uncle's, aunt's, grandparent's, etcetera;
14. The willingness of a parent to facilitate contact with the other parent. This is a recognition of the child's entitlement to access to parents and each parent's obligation to promote and encourage access to the other parent. The Divorce Act s. 16(10) and s. 17(9);
15. The interim and long range plan for the welfare of the children.
16. The financial consequences of custody. Frequently the financial reality is the child must remain in the home or, perhaps alternate accommodations provided by a member of the extended family. Any other alternative requiring two residence expenses will often adversely and severely impact on the ability to adequately meet the child's reasonable needs; and
17. Any other relevant factors.
17. The duty of the court in any custody application is to consider all of the relevant factors so as to answer the question.
18. With whom would the best interest and welfare of the child be most likely achieved?
[39] MacDonald, J. in D.(C.H.F.) v. H. (C.R.) 2006 N.S.S.C. 230 summarized the “best interests” test well beginning at paragraph 6:
6. The sole and guiding principle to follow when adjudicating custody and access disputes is a determination of what is in the best interest of the child or children. Several cases provide guidance to the court in applying this principle: See for instance Foley v. Foley [supra]; Abdo v. Abdo (1993), 126 N.S.R. (2d) 1 (N.S.C.A.). Particularly useful is the discussion about this principle found 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.
THE APPLICANT’S PLAN
[40] The Applicant seeks sole custody of D.A.C. and it is his position that D.A.C.’s interests are best served by her being in his primary care.
[41] He and A.S. plan to be married in August of this year and continue living in their apartment in Halifax until such time as they are financially in a position to purchase a home.
[42] He does not believe that it is in D.A.C.’s best interests to be left in the primary care of her mother or to be relocated to Ontario. In his affidavit sworn March 31, 2010 he said that he is extremely concerned about the care D.A.C. would receive while with her mother because in his opinion the Respondent is transient, abuses alcohol, has been violent and is unstable. He said she has no permanent address and her address changes frequently. He expressed concern about the food that the Respondent feeds D.A.C. and believes that the Respondent says things to D.A.C. that could have a harmful effect on her relationship with him.
[43] The Applicant is twenty-five years of age. He is employed on a full-time basis as an automobile mechanic. According to his Statement of Income he earns in the vicinity of $41,875.00 per year. His hours of work are Monday to Friday from 7:30 a.m. to 4:30 p.m.. He said he is usually home by 5:00 p.m.. He has a health plan that covers himself, his fiancé and D.A.C.. D.A.C. is his only child.
[44] He is close to his mother but since his parents separated he has had no relationship with his father.
[45] A.S. is twenty-four years of age. She graduated from high school in 2004 and from Nova Scotia Community College in 2007. She has been employed as a property paralegal in a local law firm for a little under two years. She testified that if the Applicant was granted custody he and she would then look into daycare facilities near their home. Because of the Applicant’s hours of work it would likely be A.S. who would drop D.A.C. off at the daycare.
[46] Both A.S. and the Applicant expressed objection to the profanity used by the Respondent particularly in the presence of D.A.C. and described the Respondent’s behaviour as abusive (referring to her phone calls before A.S. and the Applicant changed their numbers) and disrespectful.
[47] Under cross-examination A.S. admitted that she made contact with the Respondent through a social networking website while pretending to be a man. She acknowledged that it was part of a scheme designed to solicit information from the Respondent that could be used against her in these proceedings. The Court was shown copies of e-mails sent by A.S. to the Respondent after the Respondent saw through the pretence. The e-mails were laced with profanities, insults, verbal abuse and, to say the least, disrespectful comments.
[48] A.S. described her charade as an error of judgment on her part. Both she and the Applicant claimed that the Applicant was unaware of A.S.’s actions.
THE RESPONDENT’S PLAN
[49] The Respondent also seeks primary care of D.A.C..
[50] She believes that it is in D.A.C.’s best interest to be in her care because in her view she has been D.A.C.’s primary care giver for most of her life.
[51] She intends to return to Ontario and rent a home in St. Thomas. She said her estranged husband has already purchased a property in St. Thomas (although he continues to live in Mississauga) and she would like to live near him so that she and he could co-parent M.W. and N.W.. She wants D.A.C. placed in her care so that she may be reunited with her half-siblings. The Respondent said (in paragraph 73 of her affidavit) that she has no intention of moving M.W. and N.W. back to Nova Scotia because she feels that to move them again would be “extremely disruptive” and she “could not put them through that”.
[52] Another of the Respondent’s reasons for wanting to move to Ontario is because in her opinion there are better employment opportunities for her in that province. It is her intention to obtain employment once she returns to Ontario, but until she does she will take care of D.A.C., M.W. and N.W. full-time and “settle down”.
[53] She said her mother will assist her financially with all of her needs for as long as it takes her to become self-sufficient. Her mother testified to the same effect.
[54] Her mother (J.M.) and step-father live in Nobel, Ontario which is near Parry Sound. According to her step-father it takes approximately five hours to drive from Nobel to London, Ontario which is approximately 30 kilometres from St. Thomas.
[55] J.M. said that although she is currently unemployed she and her husband “are in a position to help [the Respondent] and the children out in any way, including financially as long as is needed.” She testified that she has “substantial means available” to provide the Respondent and the children with housing, food and any other needs that they may have. Those resources “are available immediately and for as long as needed.”
[56] She testified that she has liquid resources of approximately $400,000.00 and that their house in Nobel has been appraised for $1.5 million. She said that she and her husband plan to sell their house in the Spring of 2011 and move to the London area.
[57] The Respondent is thirty-three years of age. She received her G.E.D. in 2005 and while living with the Applicant took a Medical Reception course through the Nova Scotia Business College but did not complete it. She has work experience as a customer service representative in a couple of fitness clubs and as a warranty officer for a short period of time in a car dealership. She worked in a window factory in Ontario and said that she had her own snow and skateboard business for approximately eight years in London, Ontario. In 2009, while living in Nobel, she had a sales position in a camping store.
[58] In addition to her mother and step-father the Respondent has other family members living in Ontario. Her husband and her two older children presently live in Mississauga. She has a brother in Burlington and another brother who lives with his family in London. She also has aunts, uncles, cousins and nephews in that province.
[59] The Respondent’s father and his wife live in Nova Scotia. She said she has a “fabulous” relationship with him.
[60] The Respondent made it very clear that it is her intention to return to Ontario regardless of the outcome of these proceedings.
ANALYSIS
[61] Gordon v. Goertz (supra) provides for a two-stage hearing. The first stage, which requires the parent applying for a change in custody to demonstrate a material change in circumstances affecting the children, does not apply to an original application such as this. (See for example Nunweiler v. Nunweiler 2000 B.C.C.A.300). There is no previous court order or written agreement between the parties other than the Interim Consent Order which is not intended to create a precedent.
[62] The second stage requires a “fresh inquiry into what is in the best interests of [D.A.C.], having regard to all the relevant circumstances relating to [D.A.C.’s] needs and the ability of the [parties] to satisfy them”.
[63] Gordon (supra) provides that although there is no legal presumption in favour of either party, the custodial parent’s views are entitled to great respect. Given that there was no previous order (other than the Interim Consent Order) it cannot be said that either party is any more the “custodial parent” than the other. Subsection 18 (4) of the Maintenance and Custody Act provides that the mother and father of the child are “joint guardians” and both are “equally entitled to the care and custody of the child” unless otherwise ordered. I therefore have given “great respect” to the views of both parties but one no more than the other. This case boils down to what is in the best interest of D.A.C..
[64] Among the various factors that the Court can consider in determining what is in D.A.C.’s best interest, Gordon (supra) lists a number of factors that the Court should consider:
THE EXISTING CUSTODY ARRANGEMENT AND THE RELATIONSHIP BETWEEN THE CHILD AND THE CUSTODIAL PARENT and
THE EXISTING ACCESS ARRANGEMENT AND THE RELATIONSHIP BETWEEN THE CHILD AND THE ACCESS PARENT
[65] Prior to the parties’ separation in December 2008 it was the Respondent more than the Applicant who provided for the day-to-day care of D.A.C.. That was primarily because of the Applicant’s work schedule at that time (four days at work and four days off) and the fact that the Respondent was not working. However, the Applicant was much more involved in the life of D.A.C. during his four days off than the Respondent was prepared to acknowledge. There was also a period of time when D.A.C. was in daycare full-time when the Respondent was attending her Medical Reception course.
[66] After the parties separated D.A.C. was in the primary care of her mother although there was no formal agreement signed and no court order. The Applicant still remained actively involved with D.A.C. by seeing her on the weekends and whenever he could during the week.
[67] Between April 30, 2009 and September 8, 2009 D.A.C. was obviously in the care of her mother and not in the care of her father but that was as a result of the unilateral actions of the Respondent.
[68] After the Respondent returned D.A.C. to Nova Scotia and since the parties entered into the Interim Consent Order they have shared the care of D.A.C. although D.A.C. has been in the care of the Respondent slightly more than half the time.
[69] Initially D.A.C. demonstrated considerable upset when required to go with her father. The Applicant acknowledges that. That is not unusual considering D.A.C. was only two years of age at the time and had spent five months away from her father. Since February of this year I accept that D.A.C. has overcome her anxiety and it would appear that she is not only comfortable with both of her parents but has become attached to both of them as well.
THE DESIRABILITY OF MAXIMIZING CONTACT BETWEEN THE CHILD AND BOTH PARENTS
[70] Because of D.A.C.’s apparent attachment to both parents it would be desirable to maximize her contact with them both. If the Respondent follows through with her plan to relocate to Ontario then, by necessity, D.A.C. will be with one parent much more than the other. Her contact with the non-custodial parent will be largely limited to time during the summer, holidays over the Christmas season and other holidays and special occasions during the year - subject always to limitations because of finances.
THE VIEWS OF THE CHILD
[71] D.A.C. is too young to express an opinion. As stated earlier, although she originally displayed resistance to accompanying her father, that is no longer the case and I accept that she is comfortable with both of her parents.
THE CUSTODIAL PARENT’S REASON FOR MOVING, ONLY IN THE EXCEPTIONAL CASE WHERE IT IS RELEVANT TO THAT PARENT’S ABILITY TO MEET THE NEEDS OF THE CHILD
[72] I do not consider the Respondent’s reasons for moving to Ontario to be relevant to her ability to meet D.A.C.’s needs. She said that she wants to return to Ontario because she has better employment prospects in that province than in Nova Scotia, her mother will provide her with financial assistance if she returns to Ontario, her “entire support network” is in Ontario and she wants to reunite D.A.C. with M.W. and N.W..
[73] The evidence does not support the Respondent’s argument that her employment prospects in Ontario are any better than they are in Nova Scotia. One of her main reasons for coming to Nova Scotia in the first place was to obtain more lucrative employment than she had in Ontario. That suggests that she was unhappy with her employment in Ontario. The last job she held in Ontario was as a store clerk. Since returning to Nova Scotia in September of last year, she’s made no effort to find employment.
[74] As for her mother’s financial assistance, her mother’s promise of financial assistance is conditional upon her returning to Ontario. There is reason to question the reliability of her mother’s promise of financial assistance. Thus far it appears that she has not provided her daughter or grand-daughter with any monetary help in spite of the fact that the Respondent has been living off of social assistance since last Fall.
[75] It is true that the Respondent has many family members in the province of Ontario however none of them live in St. Thomas and only one of her brothers lives in London. Her mother says that it is her intention to move to the London area next year. The remaining family members would be of limited assistance to the Respondent in caring for D.A.C..
[76] It appears that the Respondent’s main reason for wanting to move to St. Thomas (as opposed to some other location in Ontario) is so that she can be near her estranged husband. There is no evidence that D.W. will be of any assistance to her in meeting the needs of D.A.C..
[77] The Respondent wants to reunite all of the children.
[78] The Applicant conceded that if D.A.C.’s relationship with her half-siblings was the only consideration, then D.A.C. should be with M.W. and N.W.. However he pointed out that it was the Respondent who decided to send M.W. and N.W. back to Ontario in February 2009 to live with their father rather than keep all of the children together. The Applicant does not believe that the Respondent truly puts very much weight on the importance on the relationship between D.A.C. and the other children.
[79] The Respondent is assuming that when she returns to Ontario M.W. and N.W. will be returned to her care. That may happen but there are no guarantees. Although she claims to have a good co-parenting arrangement with her husband she also acknowledges that among the reasons she and her husband separated was that he was emotionally abusive to her. Because of that abuse she underwent therapy. The Respondent’s mother said that in conversation with D.W. he said that he and the Respondent were like “oil and water”.
[80] The Court was not advised of any court order or separation agreement that would require D.W. to return M.W. and N.W. to her and he did not testify.
[81] Taking all these factors into consideration it cannot be said that the Respondent’s return to Ontario will necessarily enhance her ability to meet the needs of D.A.C. and therefore her reasons for moving are not a relevant consideration.
DISRUPTION TO THE CHILD OF A CHANGE IN CUSTODY
[82] Having heard and weighed all of the evidence I believe that it will cause D.A.C. some disruption regardless of which parent she is separated from but, because of her young age and the adaptability that she has demonstrated, it is a disruption that she is likely to overcome with the passage of time. It is impossible to say which scenario would upset her more - staying with her father while her mother moves away or leaving her father behind and accompanying her mother to Ontario.
[83] While both parties are critical of the other’s parenting abilities, both acknowledge that the other loves D.A.C. and D.A.C. loves them and that it would be preferable that she not lose contact with either of her parents.
DISRUPTION TO THE CHILD CONSEQUENT ON REMOVAL FROM FAMILY, SCHOOLS, AND THE COMMUNITY SHE HAS COME TO KNOW
[84] D.A.C.’s primary attachments are to her parents. There is no evidence to suggest that she is attached to her mother’s community in Wolfville or her father’s community in Halifax. She does not yet go to school and she is not in playschool.
[85] There is some evidence of her having an attachment to other family members such as the Applicant’s mother and her half-siblings.
[86] Any disruption D.A.C. may experience as a result of having to leave her community or other family members is less of a concern than the disruption she will experience as a result of being separated from one of her parents.
[87] Regardless of the outcome of this case, D.A.C. will be leaving Wolfville.
[88] Applying the factors listed in Foley (supra) I have concluded as follows:
PHYSICAL ENVIRONMENT
If granted custody the Respondent plans to move D.A.C. to St. Thomas, Ontario. She has not yet secured accommodation in St. Thomas so its suitability cannot be judged.
The Applicant lives in Halifax. The evidence of his apartment suggests that it is appropriate for D.A.C.. She has her own room. He indicated that he plans to move from his apartment and purchase a home when he can afford to do so.
I am satisfied that if the Applicant is granted primary care of D.A.C. he will remain living in the Halifax area. He has employment here. His fiancé lives and works here.
DISCIPLINE
With respect to discipline, the Application may be more strict than need be. He seems to be quite rigid regarding the food that D.A.C. is allowed to eat and is troubled by the fact that she can identify a MacDonald’s Restaurant and knows the difference between a Smartie and an M & M. Nevertheless, there is insufficient evidence for the Court to determine that one party is any better a disciplinarian than the other.
ROLE MODEL
The Applicant testified that the Court should be concerned about the kind of role model the Respondent presents. He described her as transient, violent, unstable and prone to alcohol abuse.
I find that the Respondent has been no more transient that the Applicant since the parties’ separation. Regarding her alcohol consumption, there is no concrete evidence that alcohol is an ongoing issue for the Respondent although there is reason to believe that she did, as the Applicant alleged, drink too much alcohol, too often, in the past.
There is no evidence that the Respondent is psychologically unstable but the incident on December 23, 2008 does suggest that she can be volatile and even violent. Although that was an isolated incident the violence that the directed towards the Applicant at that time was persistent, disproportionate to the circumstances, and occurred while all three children were present in the apartment.
These proceedings seem to have brought out the worst of both parties. They find a great deal of fault in each other. They have both acted immaturely at times.
In the past the Applicant used marijuana and also, at times, drank heavily with his friends. He claims to no longer use marijuana and there is no evidence to indicate otherwise. I do not believe that drug or alcohol abuse is an issue with him.
Parenthetically, the Respondent’s mother and step-father both criticized the Applicant for drinking and smoking marijuana during visits by the parties to their home in the summers of 2007 and 2008. What they failed to mention in their affidavits was that the Respondent’s mother facilitated the purchase of the marijuana used by the Applicant and many other individuals who were at her home. Further, the Respondent’s mother did not appear to see anything wrong with the fact that she facilitated the purchase of the marijuana.
CHILD’S WISHES
As I indicated earlier, D.A.C. is too young to express a preference that should be given any weight by the Court.
RELIGIOUS AND SPIRITUAL GUIDANCE
Religion does not appear to be a major factor in the lives of either party and is therefore a non-issue as far as the disposition of this case is concerned.
ASSISTANCE OF EXPERTS
There were no expert reports or opinions before the Court.
TIME AVAILABILITY OF A PARENT FOR A CHILD
At the present time the Applicant works full-time Monday to Friday but would be available to care for D.A.C. during the evenings and weekends. He would have to make other arrangements for her care while he is at work. The Respondent’s immediate plans are to stay home with all three children but she said in her affidavit that it is her intention to obtain full-time work and finding employment is one of her main reasons for returning to Ontario.
CULTURAL DEVELOPMENT OF THE CHILD
There is no evidence that cultural development is a concern to either of the parties.
PHYSICAL AND CHARACTER DEVELOPMENT OF THE CHILD BY SUCH THINGS AS PARTICIPATION IN SPORTS
At the present time D.A.C. is not involved in any organized sports. There does not appear to be any reason to believe that either parent would limit her involvement in such activities in the future.
EMOTIONAL SUPPORT TO ASSIST IN THE CHILD DEVELOPING SELF-ESTEEM AND CONFIDENCE
Based on the evidence presented it is impossible to gauge either parties’ ability to provide emotional support to D.A.C. in developing self-esteem or confidence. Both parties testified that they spend time playing with D.A.C. and educating her in age appropriate ways.
FINANCIAL CONTRIBUTION TO THE WELFARE OF THE CHILD
As for the parties’ respective abilities to provide financially for the child, the Applicant is employed on a full-time basis. His income is such that he is able to provide for D.A.C.. While there is no evidence that he depends of the financial assistance provided by his fiancé, it stands to reason that her income only enhances the financial security of their family.
It is uncertain what the Respondent’s financial circumstances will be. She and her mother both said that her mother will provide for her financially if the Respondent returns to Ontario. It is a concern to this Court that her mother’s offer of financial assistance is conditional and it also raises the question: will her mother place other conditions on her financial assistance?
THE SUPPORT OF EXTENDED FAMILY
Both parties claim to have family support. In addition to his fiancé the Applicant has the support of his mother. She has been active in helping with the care of D.A.C. since the parties separated and in particular since D.A.C.’s return to Nova Scotia last September. There is no reason to believe that her assistance will stop.
If the Respondent moves to St. Thomas she may have the assistance of her brother and his family who live in London and possibly also the assistance of her mother and step-father should they relocate to London next year.
THE WILLINGNESS OF A PARENT TO FACILITATE CONTACT WITH THE OTHER PARENT
A factor that is to be given considerable weight is the willingness of each parent to facilitate contact between the child and the other parent. While both parties expressed a willingness to ensure that the other parent has ongoing access, both have given me a reason to doubt their stated intentions.
When the Respondent left Nova Scotia on April 30, 2009 she did so without prior notice to the Applicant and without his consent. While in Ontario she made no effort to facilitate access between D.A.C. and the Applicant other than by phone and even that was problematic. There is no indication that she was going to return D.A.C. to Nova Scotia until she was ordered to do so by the Court. She made her own application for custody in Ontario in July 2009. There is no evidence of what became of those proceedings.
The Applicant claimed that he understood the importance of the Respondent in D.A.C.’s life. Still, on Mother’s Day in 2010 while D.A.C. was in his care, he made no effort to allow the Respondent to spend time with D.A.C. or even to arrange a phone conversation between the Respondent and their daughter.
The evidence of A.S.’s e-mails to the Respondent also causes concern. The hostility evident from her e-mails causes me to wonder how A.S. and the Applicant speak of the Respondent in their home and in particular around the child and how willing they are to foster a positive relationship between D.A.C. and her mother.
There is reason to believe that notwithstanding the positions expressed by and on behalf of both of the parties, neither truly appreciates the importance that the other plays in the life of their daughter.
THE INTERIM AND LONG RANGE PLAN FOR THE WELFARE OF THE CHILD
I have already indicated their respective plans. Of the two, the Respondent’s plan seems less certain but in fairness to her it may be difficult for her to put her plan into action until she is aware of the Court’s decision. Neither party said much about their long range plans or aspirations for their daughter.
THE FINANCIAL CONSEQUENCES OF CUSTODY
Both parties have said that they will be financially in a position to assume custody of D.A.C.. There is no question that the Applicant can provide financially for her. The Respondent’s ability to do so will depend in large part on the generosity of her mother at least initially.
Further, like in so many other cases, although the parties may have sufficient financial resources to provide for D.A.C., their resources are limited and that, unfortunately, will likely restrict the frequency that the non-custodial parent will see and spend time with D.A.C..
CONCLUSIONS
[89] Having considered all of the evidence I have concluded that a joint custody arrangement is not workable. The parties do not communicate well and they do not cooperate sufficiently. They do not show respect for each other’s parenting abilities.
[90] Shared parenting also will not be workable since the Respondent will be returning to Ontario. Even if she was to stay in Nova Scotia the parties have shown by their actions that shared parenting is disruptive to D.A.C.. It leads to frequent arguments including profanities and name calling.
[91] Both parties are capable of meeting the needs of their daughter. However they both will have to learn to put aside their differences and, regardless of their personal feelings about each other, avoid making any disparaging remarks about the other in the presence of D.A.C..
[92] Although D.A.C. is attached to both her mother and her father a choice must be made as to where she is going to live. Based on the evidence I have concluded that it is in the best interest of D.A.C. that she placed in the custody of her father for the following reasons:
1. The Applicant’s plan of care is not conditional and for the most part is already in place. He has an apartment in Halifax and based on the evidence I have concluded that it is suitable and appropriately furnished for D.A.C.. His employment is stable, his finances are known and he has sufficient means to provide for the support of D.A.C.. He need only arrange for daycare. The Applicant’s plan offers certainty and stability for D.A.C..
The Respondent’s plan is nebulous and of questionable stability.
The Respondent came to Nova Scotia in 2005 as a result of promises of financial assistance from her father. He had indicated to her that he would provide her and her husband with “a rent-free home, jobs and tuition-free education at the Maritime Business School, which he ran.” But as she acknowledged in her affidavit, her father’s promises “fell very short”.
The Respondent’s recent history illustrates that there is reason to be sceptical of her current plan which bears considerable similarity to the plan she had when she came to Nova Scotia.
2. Although it is desirable to reunite D.A.C. with M.W. and N.W., her stability and security comes first. She will have that with her father. It is less certain that she will have that with her mother.
3. Both the Applicant and the Respondent would benefit greatly from the assistance of extended family members particularly the party who assumes primary care of D.A.C.. Since the parties separated, the Applicant has received considerable assistance from his mother. Even though she lives in Middleton she has been very active, in a supporting role, in caring for D.A.C.. I expect that help will continue.
He will have the day-to-day assistance of his fiancé, A.S..
The Respondent has no family or friends in St. Thomas. She said that her estranged husband has purchased a property there and plans to move there. He has not done that yet. Her mother said that she intends to move to London next year. Obviously, she has not done that yet. The Respondent’s expectations may crystalize but it remains to be seen whether they do.
4. The Applicant’s plan involves less disruption to D.A.C. than the Respondent’s. She will at least be in familiar surroundings when with her father although she will still have to adjust to life without her mother’s constant involvement.
5. Both parties could be criticized for their immature behaviour at times starting with their altercation on the date that they separated. Of the two, the Respondent appears less willing or able to put D.A.C.’s interests before her own.
While it was understandable for her initially to reside in the home of a friend in the Annapolis Valley when she returned to Nova Scotia, once it became known to her how long she would have to stay in the province prior to the hearing, she moved to an apartment that was also in the Valley and she did not seriously look for a place closer to the residence of the Applicant which may have reduced the amount of time D.A.C. would spend in a car driving back and forth between the homes of her parents.
Further, while the Respondent says she believes that it is in D.A.C.’s best interest to be reunited with her siblings, her position is not supported by her actions. She sent her two older children to Ontario to live with their father rather than keep all of the children together. While that arrangement may have been easier on her it was done at the expense of the children’s relationships with each other.
It was also disclosed during the Respondent’s cross-examination that she plans to go on a trip to Australia sometime in the next year to visit a gentleman who she has come to know via the internet. She said that he has offered to pay her expenses and she plans to stay with him for a week. She gave no indication that her planned trip to Australia would be cancelled or altered in any way depending on the outcome of this case. At the very least her planned trip appears selfish if not irresponsible. If granted custody of D.A.C. her focus should be on establishing a home for D.A.C. with as few further disruptions to D.A.C. as possible.
[93] The Court is not blind to the faults and shortcomings of the Applicant and his fiancé. The Court was given reason to question the credibility of both of them at times and the Applicant contributed to the ongoing arguments between the parties about as much as the Respondent. A.S.’s behaviour toward the Respondent added to the hostilities. Her e-mails to the Respondent showed her to be conniving and also deceitful to both the Respondent and the Applicant. Still, the granting or the denial of custody should not be used as a form of punishment. Even though their conduct was far from ideal it is my believe that it would be in D.A.C.’s best interest for her to remain in Halifax and be placed in the primary care of her father.
[94] Therefore, the following is ordered:
1. The Applicant will have custody and primary care of D.A.C..
2. (a) Until such time as the Respondent returns to Ontario she will have access to D.A.C. every second weekend from Friday at 5:30 p.m. to the following Sunday at 5:30 p.m.. Unless the parties mutually agree otherwise, the Respondent will pick D.A.C. up from the Applicant’s home on Friday at the commencement of her access and the Applicant will pick D.A.C. up from the Respondent’s home on Sunday at the conclusion of the Respondent’s access.
(b) Beginning in the summer of 2011 the Respondent will have block summer access each summer of three consecutive weeks with D.A.C. which access may take place in the province of Ontario. The summer block access will commence in 2011 rather than 2010 in order to allow the Applicant time to stabilize D.A.C. in his home and also to allow the Respondent time to establish her new home in Ontario. The parties will cooperate with each other as much as possible to try to ensure that the three weeks chosen by the Respondent will not conflict with the Applicant’s vacation plans with D.A.C. during the summer, if that is possible. The Respondent will advise the Applicant no later than May 1 of each year which three weeks during the summer months of July and/or August she wants to spend with D.A.C..
(c) In addition to the foregoing the Respondent will be entitled to block access of one week during the months of February or March beginning in the year 2011. Until such time as D.A.C. begins attending school such “spring break” access may (but need not) coincide with the spring break of the Respondent’s two older children, but once D.A.C. attends school, such “spring break” access will coincide with D.A.C.’s scheduled spring break from school.
(d) In addition to the foregoing the Respondent may have block access of one week each Christmas which, once D.A.C. attends school, will be scheduled during D.A.C.’s Christmas vacation from school. The Respondent’s Christmas access will include Christmas Eve and Christmas Day every second year commencing in the year 2010.
(e) The Respondent will have such other reasonable access to D.A.C. in the province of Nova Scotia as the parties are able to agree should she return to this province at anytime, provided reasonable advance notice is given to the Applicant and the Applicant is advised of where she and the child may be contacted.
(f) Both parties will have reasonable telephone contact, e-mail contact (if available), web cam contact (if available) and/or instant messaging contact (if available) with D.A.C. while D.A.C. is in the care of the other party. The Applicant will also permit D.A.C. to communicate with her siblings, M.W. and N.W., in similar fashion at reasonable times and for reasonable periods of time.
3. Both parties will provide to the other all of their contact information such as their home address, their home phone number, work address and work phone number, cell phone numbers, e-mail addresses and any other means of contact. Both parties will promptly inform the other of any changes in his or her contact information. Neither party will contact the other at their place of employment except in the event of an emergency involving D.A.C.. The parties will communicate with each other only insofar as it is necessary to exchange information regarding their daughter or to discuss access arrangements.
4. Both parties will be entitled to receive information directly from service providers relating to D.A.C. such as school report cards, medical reports, information regarding her recreational activities and the like.
5. Both parties will share with each other any information that they receive concerning D.A.C.’s health, education, recreational activities and the like and will make reasonable efforts to keep the other informed of such matters relating to D.A.C.. Each will pass on to the other as soon as reasonably possible any information they receive concerning D.A.C. including, but not limited to, school report cards.
6. Both parties will be entitled to attend any function or meeting relating to D.A.C. that parents are normally entitled to attend such as school related events, medical and dental appointments, recreational activities, school concerns and the like.
[95] Regarding child maintenance, the Applicant’s obligation to pay interim child maintenance to the Respondent will cease immediately. Whereas the Respondent’s income is currently comprised of social assistance and is below the minimum amount required by the Child Maintenance Guidelines before any table amount is ordered, there will be no child maintenance payable by the Respondent to the Applicant at this time. The Court’s order will however include the usual provision requiring the Respondent to provide to the Applicant a copy of her income tax return and Notice of Assessment or Reassessment as the case may be each year, together with copies of all T4's and other information slips, which will be given to the Applicant no later than June 1 of each year commencing with the Respondent’s 2010 income tax information which will be given by June 1, 2011.
[96] Under the circumstances I am not inclined to order that the Applicant share any portion of the Respondent’s access costs at this time.
[97] I direct that counsel for the Applicant prepare the Order.
J.
SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: Tamlyn v. Wilcox, 2010 NSSC 266
Date: 2010 07 05
Docket: SFHMCA-064146
Registry: Halifax
Between:
Matthew Tamlyn
Applicant
v.
Jennifer Wilcox
Respondent
Judge: The Honourable Justice Leslie J. Dellapinna
Heard: May 10-13, 2010, in Halifax, Nova Scotia
Written Decision: July 5, 2010
Counsel: Deborah Conrad counsel for the Applicant
Alfred Seaman counsel for the Respondent
E R R A T U M - Dated July 6, 2010
Wrong docket number was typed on cover sheet.