Date: 20020917
Docket: 1206-003294
CANADA
PROVINCE OF NOVA SCOTIA
IN THE SUPREME COURT OF NOVA SCOTIA
[Cite as: M.E.E. v. T.R.E., 2002 NSCC 195]
BETWEEN:
M. E. E.
PETITIONER
- and -
T. R. E.
RESPONDENT
DECISION
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Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
HEARD: Before the Honourable Justice Arthur J. LeBlanc in Sydney, Nova Scotia, on November 9, 15, & 16, and December 14, 2000, January 2, October 17, November 27 & 28, 2001and June 12, 2002
DECISION: June 12th, 2002
WRITTEN
REASONS: September 17th, 2002
COUNSEL: Cheryl I. Morrison, for the Petitioner
Alan J. Stanwick, for the Respondent
1. T. R. E. and M. E. were married on September 14, 1996. They separated on April 27, 1997 and resumed cohabitation in April 1998. They separated for the final time on September 1, 1999. One child was born of this union, J. on January *,1996.
2. A Family Court Order was granted by Provincial Court Judge Vernon MacDonald on January 27, 1998, dealing with the custody and access of J..
3. A further interim order was granted by Justice Simon J. MacDonald on July 31, 2000 providing for a variation of the interim custody and access order granted January 27, 1998 and medical attention notification.
4. I am satisfied that all of the jurisdictional requirements of the Divorce Act have been met. There has been a permanent breakdown in marriage by virtue of the parties having lived separate and apart for a period in excess of one year.
MATRIMONIAL ASSETS AND MATRIMONIAL DEBT
Section 4(1) Matrimonial Property Act
4.(1) In this Act, “matrimonial assets” means the matrimonial home or homes and all other real and personal property acquired by either or both spouses before or during their marriage, with the exception of:
(a) gifts, inheritances, trusts or settlements received by one spouse from a person other than the other spouse except to the extent to which they are used for the benefit of both spouses or their children;
(b) an award or settlement of damages in court in favour of one spouse;
(c) money paid or payable to one spouse under an insurance policy;
(d) reasonable personal effects of one spouse;
(e) business assets;
(f) property exempted under a marriage contract or separation agreement;
(g) real and personal property acquired after separation unless the spouses resume cohabitation.
5. Section 4(1) of the Matrimonial Property Act provides that all assets are matrimonial assets unless a party is able to satisfy the court on a balance of probabilities that the disputed assets fall within one of the exceptions.
6. The parties acquired two real estate properties: one rent to own property located in the E. subdivision in Dominion and the second at * Street, Dominion, Nova Scotia.
7. The parties have agreed that Mrs. E. will convey to Mrs. E. her interest in these two properties, provided he obtains releases of the mortgage and places a new mortgage on each property. In the event that he is unwilling or unable to negotiate new mortgages on both properties within a period of 90 days from June 2002, the properties will be offered for sale and any surplus will be paid over to Mr. E., after the payment of all closing costs, taxes, or other encumbrances.
8. It is also customary to divide the matrimonial debts equally. In this instance, as Mr. E. is obtaining Mrs. E.’s interest in the residential properties, he will be responsible for the two following accounts: M. & H. Hardware in the amount of $190 and Shibinette in the amount of $637. These two amounts represent purchases for the two dwellings and therefore, these are to be paid with Mr. E.’s own funds.
9. The following debts are all matrimonial debts:
Name Amount
Bank of Nova Scotia Loan $4,324.63
Visa $ 914.84
Sears $ 749.73
Nova Scotia Power $ 354.00
Water Account $ 300.00
Associates $ 595.19
MT&T $ 43.04
Seaside Cable $ 36.81
TOTAL $7,318.24
10. Mrs. E. agrees that Nova Scotia Power, Water, MT&T and Seaside Cable are all matrimonial debts. However, she maintains that the Bank of Nova Scotia Loan, Visa and Associates debt are not matrimonial debts, as they were incurred by Mr. E. for household items or for gifts to her and to Mr. E.’s mother.
11. Mr. E. stated that the Bank of Nova Scotia Loan of $4,324.63 represents a consolidation of various debts outstanding when the parties reconciled in 1998. Apparently, there were a number of outstanding obligations at the time and according to Mr. E., it was agreed with Mrs. E. that he would apply to the Bank of Nova Scotia and obtain a consolidated loan and retire all of the outstanding debts. Mrs. E. claims that the consolidated loan included the purchase of a refrigerator and other items used exclusively for the home. I accept Mr. E.’s evidence on this point over that of Mrs. E.. The consolidated loan is a matrimonial debt.
12. I am satisfied the Associates debt was for the purchase of Mrs. E.’s engagement ring, and the purchase of a second ring after the first one was damaged. The parties agreed that Mr. E. had purchased a gift of jewellery for his mother. However, no breakdown was provided by Mrs. E. and therefore it is difficult to determine the portion applicable to the purchase of the second engagement ring and the gift to Mr. E.’s mother. A gift by Mr. E. to his mother while the parties were married would clearly be a matrimonial debt.
13. As I have previously indicated Mrs. E. has to establish on a balance of probabilities that the Associates debt for the first engagement ring, the second ring and the necklace, pendant and earrings for Mr. E.’s mother is not matrimonial debt. I am satisfied that such evidence was addressed.
14. Mrs. E. claims that the Visa Account represents a balance for household contents for the matrimonial home. I do not have any evidence before me to satisfy me that Mr. E. indeed used his Visa account strictly for the purchase of items for either of the matrimonial homes. There is clear evidence that on one occasion, Mrs. E. requested that Mr. E. advance $1,000 as a loan to Mr. and Mrs. S.. Mr. E. agreed and issued a cheque on his Visa Account. Mrs. E. testified that this was paid back and that she used the money for purchases for the family. This establishes that the Visa account was used for purposes other than the purchase of items for the matrimonial home.
15. The parties did not provide me with a detailed breakdown of the contents of the matrimonial home at the time of their final separation, however these are indeed matrimonial assets and are to be divided equally. If the parties are unable to agree on this matter, I direct that these are to be sold and the proceeds, after the expenses of the sale, will be divided equally.
CUSTODY AND ACCESS
16. The most contentious issue is which party should have the custody of J.. Both parties, in their pleadings, are seeking sole custody of the child. In his post-trial brief, Mr. E., should his request for sole custody be denied, is seeking joint custody.
17. A great deal of evidence was called by the parties to establish that one parent was more suitable to have custody and/or primary care of J. E..
18. Evidence was heard from R.B., L. E., N. C., M. C. S., D. F., D. J., L. M., L. M., J. E., M. M., G. E. and R. P..
19. I also considered the affidavit evidence of Dr. Antonio Kos as he was unable to attend the trial and his affidavit was admitted with the agreement of both parties.
20. Witnesses called by Mrs. E. and her own evidence tended to show a one-sided picture of Mr. E.. The manner in which he disciplines the child, the manner in which he deals with Mrs. E. when returning the child to her from his access visits, the payment of child support, his unwillingness to allow Mrs. E. contact with J. and their interaction while they were living as husband and wife was offered with the hope of showing how poorly suited Mr. E. is respecting his application for custody.
21. On the other hand, Mr. E. paints a highly negative picture of Mrs. E.’s fitness to act as the child’s primary caregiver and custodian. Evidence from the witnesses for Mr. E. dealt with J.’s condition when she was being picked up for access visits. They stated in turn that she was poorly dressed, had a body odour or that Mrs. E. was hardly with J. since the parties separated. One of the witnesses called by Mr. E. said that it was her opinion that J. had been left on her own when playing outside her residence. I will refer to the other evidence in the course of this decision.
22. Complaints were made by Mr. and Mrs. E. to the Children’s Aid Society respecting J.’s care and condition while in the care of the other parent. Mr. Burke, on behalf of the Society, said that nothing came from any of the complaints. I find that there would not have been such reporting to the Society had the parties been living with each other. Unfortunately, both parties filed these complaints for the sole purpose of placing the other party in a poor light and to improve the chances of success at any custody hearing or access hearing.
23. However, one complaint filed with the Children’s Aid Society was acted upon by Mrs. E.. During the course of conducting a parenting assessment, Mr. Michael Bryson was informed of a sexual assault that had allegedly occurred in the S. residence. Mr. Bryson advised the Children’s Aid Society, which in turn, advised Mrs. E. to take appropriate steps to protect J. from possible contact with the alleged offender. I am satisfied that Mrs. E. took appropriate steps.
24. In an attempt to show Mrs. E. as an unfit parent, Ms. P. claimed that Mrs. E. had parties in her apartment on weekends after the bars closed, during the period of the first separation. She claimed the noise was so loud and rowdy that she complained to the landlord, Mr. E.. However, Mr. E. said that although Ms. P. complained about this noise, he didn’t think it was as serious as she claimed and didn’t take any steps to evict Mrs. E.. He was sorry to see Mrs. E. leave as he thought she was a good tenant. Mr. E. added that he had evicted tenants before for serious problems but Mrs. E. was not such a tenant.
25. Mrs. M. C. S., Mrs. E.’s mother, testified that the parties lived with her and her husband after they married and following their 1998 reconciliation. Mrs. S. said that she would often babysit the child, as Mr. E. and Mrs. E. both worked. Mrs. E. would work at night and although Mr. E.’s work was primarily daytime work, he was often away from home at night, working on improving the family home. She claims Mr. E. has a very severe temper and was quick to display his anger. Initially, when they were living with the S.s, the parties were very cooperative and respectful towards each other. Mrs. S. claims that Mrs. E. disciplines J. appropriately while Mr. E. is a very strict disciplinarian expecting J., at four years of age, to act as if she was a teenager. She says Mr. E. is very moody, opinionated and firm in any position he takes. He does not readily accept anyone else’s point of view.
26. She denies that J. is ever dirty or has body odour when going to visit with Mr. E.. She claims that she has beautiful clothing and her hair is properly styled except when she is playing outside.
27. She says J.’s routine is to go to bed by 8:00-8:30 and claims that having access visits until 7:30 plays havoc with her schedule, leaving the child grumpy the following day when she has to get up for school.
28. D. J. operates a dance school where J. is a student. She described J. as being very normal and sociable, and did not notice anything remarkable. J.’s hygiene is appropriate and her hair always impeccable. She describes J. as a very happy child, who frequently talks about Mrs. E..
29. Mrs. E. described her marriage to Mr. E. as a good relationship. However, she said Mr. E. soon accused her of being unfaithful, as she was working night shift at *. They separated for approximately one year and when they reconciled in 1998, Mrs. E. stated that they were getting along. They were living at her parents home, along with a number of her brothers and sisters.
30. Mrs. E. was working nights and when Mr. E. was not doing work on the new mobile home, he would take care of J.. During the day, Mrs. E. would take care of the child with help from other members of the family.
31. During the first separation, exercising access to J. and maintaining contact was difficult. Mrs. E. claims that when Mr. E. had J. for access visits he refused her telephone access, giving one reason or another, such as the lateness of the hour or that she was sleeping. On other occasions, she says he simply refused to allow J. to speak to her. She has denied access visits when J. was ill or running a fever. She says there are frequent confrontations between the parties in front of J., when Mr. E. is delivering payments of child support. J. attends school, library, dances and police club on Saturday.
32. Mrs. E. states that an order of joint custody would not be in the child’s best interests as Mr. E. has taken J. since the separation to the Emergency Department or to the dentist without notifying her. He also enrolled her in pre-school without informing her. She wishes to have the weekday access curtailed to 6:30 from 7:30, as the current access visits interferes with J.’s school work. As for weekend access, she would like to have the return date moved to 6:30 as well. She testified that she has provided Mr. E. with school records for J..
33. She currently works 30 hours each week and is paid $8.00 hourly. Her gross pay is $240 weekly. In some weeks, if she works more than the regular hours, her payment is greater. Mrs. E. stated her hourly wages will increase by twenty cents every three months.
34. While a court order limiting B. S. contact with J. was in effect, M. E., Mr. E.’s sister, testified that she saw J. with B. S. alone at a park. He was holding her by the hand. Sometime later, Mrs. E. arrived at the park. She was aware that J. was not to be with B. S.. However, she failed to tell Mr. E. until the divorce petition was filed, telling him approximately a year or so after the event.
35. L. M. lives near the S. residence. She observed J.’s behaviour in 1999 and thought her to be very demanding, jumping on her furniture and not being sensitive to other people’s property. She claims J. had poor manners, which appear to have improved since the parties separated. She claimed that J. was not receiving any discipline from her mother. Her hygiene was very grubby, although it has improved since the separation. Since the separation she has seen an improvement in J.’s behaviour.
36. J. E., brother of the respondent, is a member of the Sydney Regional Police Department. He claims that when J. arrives for her access visits, she is usually dirty. He finds her dress to be improper for the weather; for example, she may arrive wearing a rain coat in cold weather. Mr. E. did not observe any body odour, although he is concerned with J.’s hygiene and clothing.
37. M. M. is Mr. E.’s girlfriend. She has two children of her own from a previous relationship, and she says J. arrives for access visits smelling of body odour and in old and dirty clothes and with dirty hair. Mr. E. bathes her and provides her with fresh clothing. She claims her children have a good relationship with J..
38. She alleges that J. told her and Mr. E. that Mrs. E. had intentionally burned her with a lit cigarette. I find this statement may be necessary but not reliable. There is no circumstantial guarantee of trustworthiness that allows admission of such a statement. Mrs. M. claims that in responding to a question from Mr. E., J. stated that “Mommy burnt me and dropped the cigarette and it fell to the floor”.
39. Mrs. M. claims that she is a personal care worker and is able to differentiate between an accidental burn and an intentional burn mark. There was no expertise or qualification for Mrs. M.’s evidence.
40. She claims that J.’s relationship with Mr. E. is unique. He is very caring and loving, to an extent to which she had not seen before. They enjoy each other’s company every minute, although he never spoils her. She claims that when J. is returned to her mother after access visits, J. is very distraught and does not want to go back. She says Mr. E. is very attentive to J.’s needs yet makes certain that she is learning appropriate life skills. While she is with him she is well behaved, but when she is not with Mr. E. she is a completely different child. Again, Mrs. M. claims that she is very poorly kept child when she is with her mother. On the other hand, while she is with Mr. E. she is completely different in terms of behaviour, cleanliness and dress.
41. G. E. is T. E.'s mother. She too, claims that she finds J. has poor hygiene and is not properly dressed, particularly when it is cold. She said that Mr. E. has a very good loving relationship with J.. She is concerned that Mrs. E.'s parents have more access to the child than she does. She claims as well that Mr. E. buys his daughter winter clothing and other clothing.
42. Mr. E. lives with his mother. He completed Grade 12 and a Heavy Equipment Course. Until 2000, he was employed by L. M.. He was paid $10.00 per hour including vacation pay. When J. was born, he took six months parental leave to be with her. Mrs. E. returned to work in March of 1996 and he acted as the full-time parent, attending to J.’s needs, feeding her, and changing her as required. After he returned to work, he would come home for lunch and take charge of feeding her if necessary. After work, he would return home and assist with her feeding, changing her and putting her to bed. He had a difficulty in obtaining access to see J. during the first separation. Mr. E. only got to see her once the Family court Order was granted.
43. After the parties separated in September 1999, Mr. E. claims that exercising access was difficult and Mrs. E. offered many reasons why he was not entitled to see J.. He claims that over the period of time since September 1999, there were at least eleven occasions when Mrs. E. denied him access visits.
44. Mr. E. described J.'s appearance when he picks her up for access visits. Her clothes are dirty and inappropriate. He occasionally smells body odor. He bathes her and dresses her in fresh clean clothing which he buys for her. He feeds her and then he will play with her and take care of her until returning her to her mother.
45. Mr. E.’s evidence is that J. is left alone a great deal of the time at the S. residence. He denies that he has a temper or that he is a controlling individual. He denies many of the allegations made by Mrs. E.. He denies she was prevented from talking to J. when he is exercising access unless it is very late at night. Mr. E. says his work at M. is near the S. residence and that J. is cared for by the S. on a daily basis with Mrs. E. having little or no involvement in her care. At times when he has taken J. to the hospital, he attempted to call the S. but they were usually not answering the phone. He claims that he can meet J.'s health, mental and physical needs, and he has a very good relationship with J. and provides her with her own bedroom when she visits him, including a VCR and toys. He takes her to picnics, swimming, the beach and the park. He arranges for J. to have friends visit and play with her when he is exercising access. Although he is a member of the local fire department, Mr. E. does not participate or respond to calls when he has J. in his care.
46. Mr. E. was convicted of uttering a death threat against Mrs. E.. He was frustrated because he had gone three months without seeing his daughter. His frustration grew from Mrs. E.’s unwillingness to let him see his daughter.
47. In cross-examination, Mr. E. agreed that he had not taken the trouble of informing Mrs. E. that he had taken J. to the hospital or that she required further testing. He only advised her of this after he returned her from an access visit.
48. Mr. E. claims on one hand that Mrs. E. has a very good relationship with her daughter and that a change in custody would have an impact on J. and yet on another occasion he maintains such a change would not have any impact on her. He agrees that Mrs. E. should have telephone access to the child when she is visiting him.
49. L. M. testified that Mr. E. was an employee for 12 years and without warning, Mr. E. told him he was quitting. He asked Mr. E. to return to work on two different occasions but he declined.
50. The Court requested the completion of a Parental Capacity and Psychological Assessment. Michael Bryson, a Psychologist, prepared a report and testified at the hearing. I have considered seriously Mr. Bryson’s recommendations. I have taken the recommendations and his evidence into consideration in addition to all of the relevant and credible evidence advanced at the trial.
Conclusion
51. I have decided to award joint custody of J. to Mr. and Mrs. E. with primary care of the child being with Mrs, E. with specific access to Mr. E..
Analysis
52. Section 16 of the Divorce Act provides the statutory framework for the awarding of custody and access to children of the marriage:
53. In this Act,
Order for custody
16.(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
Interim order for custody
(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).
Application by other person
(3) A person, other than a spouse, may not make an application under subsection (1) or (2) without leave of the court.
Joint Custody or access
(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.
Access
(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.
Terms and conditions
(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
Order respecting change of residence
(7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.
Factors
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
Past conduct
(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
Maximum contract
(10) 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.
54. Custody determinations are, by their very nature, difficult to make. It puts the Court in a position where it must scrutinize every decision and action that a parent takes with regard to their child. It would be preferable if parents could always work these arrangements out themselves; however, these situations tend to be the exception rather than the rule. Having said that, this Court must look at the totality of the evidence to determine where the best interests of the child lie in terms of awarding custody.
55. Section 16(1) of the Divorce Act, R.S., 1985, c.3 (2nd Supp.) gives this Court the power to make any order it sees fit in terms of both custody and access. Courts must approach such decisions with great care and caution and must be mindful of the fact that there is no such thing as the “perfect parent”, and should not be quick to judge persons for common parenting mistakes. It goes without saying, of course, that at the end of the day the only consideration in deciding custody and access issues is the “best interests of the child” (s. 16(8) of the Divorce Act). In so doing, the Court must consider a whole range of indicia to decide with which parent the child’s “best interests” lie.
56. Of the many decisions dealing with the best interests of the child, an important case in this province is Foley v. Foley [1993] N.S.J. No. 347. In that case, Justice Goodfellow was dealing with an interim custody application made by the father of three children. While the matter at hand is a final custody order, the same considerations apply in the case at bar as in Foley. While conceding that it would be impossible to make an exhaustive list of factors that one should consider when awarding custody, Justice Goodfellow said the following at paragraph 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 case 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, uncles, aunts, grandparents, 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.
57. Of course, these factors merely function as indicia of the best interests of the child. Depending on the circumstances of the case, some of these factors may be of assistance, and others may not. By their very nature, custody applications are obviously very fact-specific, so this list may expand, contract, or vary depending upon the circumstances.
58. Before I enter upon a discussion of the aforementioned factors applicable to the present custody application, I would like to make a few important comments. I should make it clear that I believe the petitioner and the respondent care very deeply for their daughter. I have no doubts that her best interests are first and foremost in their minds. It is unfortunate that the lines of communication between the parties have been harmed by the contest of the application for custody, and my only hope is that this harm is not irreparable. It is in J.'s interests that the parties do their best to act civilly towards one another, and get to a point where they can discuss what is best for their daughter in the years to come. Regardless of their feelings towards one another, the petitioner and the respondent should put their daughter's well-being ahead of their own squabbles so that she can enjoy a meaningful contribution to her life from both parents. Having made these parenthetical comments, I move on to the crux of this case.
59. Turning to the factors considered in Foley, I will attempt to discuss the evidence as it relates to each individual consideration. As with most custody cases, great emphasis was placed on the importance of certain considerations while others were only mentioned in passing, and some were a “wash” as between the parties. Therefore, I intend to spend more time on the evidence that I consider particularly germane to this decision.
60. Mr. Bryson believed that Mrs. E. was the parent most prepared to tackle the day-to-day duties of parenthood. According to the many psychological tests performed on the parties, Mrs. E. appears to be the person most capable of competent, effective parenting at this time (in this regard, see the results of the Akerman-Schoendorf Scales for Parent Evaluation of Custody at p.23 of Mr. Bryson’s report). The report does indicate that Mr. E. can make a meaningful contribution to J.'s development, but Mr. Bryson is of the opinion that Mrs. E. should remain the primary caregiver at this point in the child's life. He expressed concern about Mr. E.'s ability to control his emotions, such as frustration, although he did not believe this had any impact on his ability to have access to J.. Despite this assessment , the better parent to have the primary care of the child would be Mrs. E..
61. While I have little doubt that both parents can provide a satisfactory physical environment for J., I believe that Mrs. E. should have the primary care of the child. In this regard, it is important to keep in mind the “status quo” only insofar as it is in the “best interests” of the child to remain in the home environment to which she is accustomed. J. has been under the primary care of Mrs. E. for more than two years, and I think that it would be against her best interests to be moved at this time. Therefore, I think that Mrs. E. can provide a more nurturing and stable environment for J. at the present time.
62. I think it is also important to note that Mrs. E. appears to have taken a more active role in getting J. involved in extra-curricular activities. J. is actively involved in “library days”, a “can-skate” program, as well as dance lessons. From the evidence it appears that Mrs. E. is far more involved in these activities than Mr. E., and she has taken an active interest in J.’s progress and development as it relates to these sorts of programs. It is important that children take part in such activities because it helps the child to develop self-esteem and character. Further, it also gives children the chance to interact with their peers and helps to teach them how to socialize with other persons. This factor also plays in Mrs. E.’s favour.
63. I find that Mrs. E. is also the parent more willing to facilitate contact with the “other” parent. I think that Mr. E. has allowed his personal feelings for Mrs. E. to affect how he deals with his interaction with J.. I believe that Mr. E. has refused to let Mrs. E. speak to J. on occasions when such contact should have been allowed, and there have been times where he has not consulted her about visits to the doctor and the dentist. As the primary caregiver, Mrs. E. had a right to such information. I think that some animosity may stem from the fact that Mr. E. is not satisfied with the way that Mrs. E. has parented J. (as indicated by some of the psychological tests), and so I conclude that Mrs. E. is more likely to facilitate any access arrangement with Mr. E.. Pursuant to s. 16(10) of the Divorce Act, this court is bound to consider the willingness of each party to facilitate contact with the other parent, as the child has the right to as much contact with each parent as is consistent with his/her best interests. While Mr. E. has alleged that Mrs. E. has failed to allow J. to visit his home on occasions when she would normally have been permitted to do so, I believe that she did so out of concern for J., and only when the child was ill.
64. Based on the findings of Mr. Bryson, it is also apparent that J. would rather live with her mother than with her father. Of course, this Court is mindful of the fact that J. is only 6 years old so, this factor does not carry great weight, but insofar as it is a consideration at all, it seems to indicate that J. would be more comfortable living with her mother. It does not appear that her wishes are based on any “undue influence” from either party. Mr. Bryson seems to validate this fact by many of the answers given by J. on various tests performed during the course of making his report. Thus, while J. may only be 6 years old, her feelings have been accorded some weight in making this decision.
65. At this point, I would like to discuss some of the factors that I consider to be neutral in this case. Firstly, I find that both parents are more than willing and more than capable of giving J. the emotional support that she will require through the years. My decision to give primary care of J. to Mrs. E. should not be read as denying that Mr. E. loves his daughter or that he wants anything less than what is best for her. I think that both parents love J. very much and this will be a great asset to her as she continues to grow. While I am mindful of the fact that Mr. E. has a criminal record, I believe that both parents can and will act as, positive role models in J.’s life. Mr. E. has many positive attributes, especially in regards to his participation in sports, that J. can look to for guidance. Therefore, I believe that this factor weighs equally for both parents. Each party has different skills, abilities, and traits that J. can look to as she grows emotionally and psychologically; and both parents will act as important role models in her life.
66. Only Mr. E. addressed the issue of meeting J.’s religious needs, but in a general or superficial manner. Little evidence has been presented regarding the religious and spiritual guidance, as well as cultural development that each parent intends to give to J.. Therefore, these factors carry little weight in the case at hand. I also find that in terms of both time availability and financial contribution, each party makes an equal contribution, with not much of a difference between either parent. However, I am recognizing that Mr. E. is unlikely to have J. respect his religious beliefs during the access visits.
67. There are two final considerations that I would like to discuss before rendering my decision in this matter.
68. Firstly, there have been allegations of “neglect” and even “abuse” by both parties. Mr. E. and the witnesses called by the respondent had indicated that J. is often dirty when she arrives at his home and that her clothes are not always appropriate for the weather. Mrs. E. has alleged that Mr. E. often uses inappropriate punishment or discipline when dealing with J.. Essentially, I think, that both parties made these claims because they felt obligated to say something negative about the other parent. I believe that there are times when J. is dirty when she arrives at Mr. E.’s home, but she is only six years old. At six years of age, cleanliness appears to be the exception rather than the rule for most children. I believe that Mrs. E. does her best to ensure that J.’s hygiene is more than acceptable. I am reinforced in this conclusion by the evidence of J.’s dance instructor, Mrs. D. J., who indicated that J. is often cleaner than most other children in her dance class. Further, I do not believe that Mrs. E. dresses J. inappropriately for the weather on purpose; if she did on occasion, it was a mere over-sight and not based on neglect. As I have emphasized a number of times already in this decision, both parents love J. very much and I do not believe that either would do anything to harm her. As far as allegations of “age-inappropriate discipline” against Mr. E., I find these allegations unsubstantiated. As parents, sometimes we over-react, but I think that Mr. E. provides suitable discipline for J. and that his discipline consists of sending J. to her room, which I believe to an appropriate punishment for a child of this age.
69. Secondly, the final issue that I will deal with in terms of custody and access relates to the extended families of both parties. J. has had the benefit of having many relatives involved in her upbringing over the years, and I believe this to be a positive influence in her life. Many children do not enjoy the interaction with so many caring relatives that J. enjoys on a daily basis. J. has loving grandparents, aunts and uncles on both sides of the family, and the contribution to her development from all of these parties is encouraging. However, I share the concern expressed by Mr. E. and Mr. Bryson that J. should not have any contact with B. S.. Mr. B. S. has a history of criminal offences including “sexual interference with children” and accordingly, he is to have no access to J., whether it be supervised or not. I concur with Mr. Bryson’s recommendation in ordering that Mr. P. S. should have no contact with J. if it is found that the sexual abuse allegations made by B. S. are true. If these allegations are substantiated, Mrs. E. must immediately find alternative housing, or else J. will be placed in Mr. E.’s temporary care until such housing can be found. I would make the same order with respect to B. S. in the event that he should return to the S. home while J. is living there.
JOINT CUSTODY
70. In making an award of joint custody, I have considered that such a conclusion is in the best interest of the child.
71. T.W. Hainsworth, in the Divorce Act Manual (Canada Law Book, looseleaf) writes at p. 16-29:
Traditionally, the term ‘custody’ has consisted of two separate elements. The first element is the ultimate responsibility for making the important decisions of the child’s life, such as education, residence, health care, religion and social development. The second element is the everyday physical care and control of the child...
72. At page 36 of Dr. Arthur Leonoff and Robert J. Montague’s Guide to Custody and Access Assessments (Carswell, 1996), the authors state:
In low conflict post-divorce families, especially where communication and collaboration in respect to children are well preserved, joint custody can succeed in enriching the lives of those involved. It may even succeed where such collaboration does not extend beyond minimal civility between the parents but even in these cases, there will be an implicit respect for the joint arrangement and the role of the other parent.
The advantages of joint custody in this type of family situation are well known:
• it best mirrors the functioning of the intact family which is still considered the preferred social organization for the raising of offspring;
• it acknowledges that children have more than one primary or psychological parent and it highlights the unity of a parenting couple;
• it affirms the historical and psychological value of each parent and defends against emotional injury to the pride and identity of either adult;
• it creates parity for children in relation to the two parents and minimizes an experience of guilt based on the children feeling that one parent is being unequally treated or deprived;
• it promotes bi-parental involvement in the lives of the children including activities, interactions and monetary contributions;
• it provides a further viable option apart from the custody for a select group of superior families, facilitating greater scope for cooperation among divorced parents who are equal to the task.
73. Although this last mentioned factor may not be present, I am satisfied that the first five attributes are indeed worthwhile.
74. It is important to underline that the real key to joint custody is that it is in my opinion, in the best interest of the child.
75. As to the factor suggesting that joint custody should be for superior parents, I am of the view that once a decision is made as to the nature of the custody, J.’s parents will put aside their rivalry as to who is the best parent and strive to direct their energies to promote the well being of the child.
76. It must be remembered that according to Mr. Bryson, J. feels conflicted because of the tension of the post-marital relationship between the parties. It is important to resolve this conflict. I believe that an important step to the reduction of conflict is to have both parents involved as much as possible.
77. I am not to consider the best interest of the child by looking at the past conduct of the parties unless such conduct is relevant to the ability of that person to act as a parent of the child.
78. I have considered that Mr. Bryson found that J. had a stronger emotional-psychological attachment to Mrs. E..
79. I am awarding joint custody of J. to the parties. This decision will be reviewable at the instance of either party after a period of six months. However, neither party should take this as a reason to work against the success of the joint custody arrangement. The review of the joint custody arrangement should only be undertaken if the order is operating against the best interest of the child.
ELEMENTS OF ACCESS
Purpose of Access
80. In the Divorce Act Manual, supra the author states at p. 16-23.
Access is not a parental right. More properly, it should be viewed as a right of the child: Young v. Young, supra. Such a view is more consistent with the focus on the child’s best interests. The rationale for access recognizes that it is normally in the interests of the child to continue and foster the relationship developed with both parents prior to the separation. Thus, the aim of an access order is to preserve and promote that which is healthy and helpful in the parent-child relationship so that it may survive and achieve its purpose: Young v. Young, supra.
81. The children have a right to see both their parents after a separation has occurred as it is in their best interests to have the influence of both parents during their formative years: Brownell v. Brownell (1987), 9 R.F.L. (3d) 31 at p. 39, 82 N.B.R. (2d) 91at 104 (Q.B.F.D.) Through access the child and the parent are given the opportunity to continue or develop a new relationship: Mitchell v. Mitchell (1988), 16 R.F.L. (3d) 462 (Sask. U.F.Ct.) at 463.
82. Hainsworth states, at 16-23 of the Divorce Act Manual, supra:
In making an order for access, the court is required to give effect to the principle that a child should have as much contact with each spouse as is consistent with the best interests of the child: Lewis v. Lewis (1989), 23 R.F.L. (3d) 252 at p. 258 (Nfld S.C.); Ingbrigtson v. Ingbrigtson (1990), 27 R.F.L. (3d) 188 at p. 197.
83. Access is presumptively in the child’s best interests and the onus is on the parent who seeks to deny or restrict access: L.(C.M.) v. T(R.) (2000), 8 R.F.L. (5th) 288 (Sask. Q.B.) at 298-299. It is in the best interests of the children (and it is their right) to have a meaningful post-divorce relationship with both parents. That relationship is meant to be a positive force in a child’s life and in the child’s development as an adult: Sherry v. Sherry (1993), 1 R.F.L. (4th) 146 (P.E.I.S.C.) at 155.
84. Mr. E. is to have access visits with J. three weekends each month from Friday at 6:00 p.m. to Sunday at 6:30 p.m. The parties are to mutually agree on which of these weekends access will be exercised.
85. Mr. E. is granted access visits two nights of either: Monday, Tuesday, Wednesday or Thursday, the dates to be mutually agreed upon by the parties, from 5:15 p.m. to 7:00 p.m. In the event the parties are unable to agree on which dates, the matter can be returned to this Court for a further ruling.
86. Mr. E. will also be granted access for three weeks during the summer vacation in one week segments. In 2002, and in even numbered years following, Mr. E. will have the first opportunity to designate the three week segments. In 2003, and in odd numbered years following, Mrs. E. shall have the right to have three weeks, in one week segments, during the summer vacation which will be designated by the parties prior to May 1 in each year. The week shall commence on Sunday at 6:00 p.m. and end on Saturday at 6:00 p.m. During the weeks, when Mrs. E. is exercising her three weeks of summer vacation with J. pursuant to this paragraph the access available to Mr. E. under paragraph 85 and 86 will be suspended.
87. During the Christmas holidays J. shall spend one-half of the Christmas school break with each of her parents. In even numbered years commencing December 2002, Mr. E. shall have J. until Christmas Day at 1:00 p.m. J. will spend the remaining half of her Christmas holidays with Mrs. E.. In odd numbered years commencing December 2003, J. shall be with Mrs. E. until Christmas Day 1:00 p.m. and then she will spend the remaining half with Mr. E.. Any weekends spent with either party during the Christmas holidays should be counted as part of the access visits.
88. Easter holidays to be split equally with Mrs. E. having priority in 2003 while Mr. E. shall have priority in 2004 and the parties alternating thereafter.
89. I encourage the parties to remember the best interests of the child. Consequently, during school breaks in March of each year should either party express an interest in taking J. on a trip, then the weekly access shall be suspended. Each parent, however, shall have the same opportunity, with Mrs. E. having the first opportunity to exercise this option in odd numbered years commencing 2003, and Mr. E. having the first opportunity to exercise this option in even numbered years commencing 2004.
90. Further, Mr. E. will allow Mrs. E. to speak to J. on the telephone during access visits when such requests are reasonable and Mrs. E. should do the same when she has J. in her care. It is also recommended that the parties keep each other informed of important events and decisions in J.’s life.
91. Mrs. E. will have the primary care of J.. She will have the right to select J.’s school, programs, social activities and recreational activities. She will have day to day care and control of J.. She will consult with and inform Mr. E. of the choices, but the final decision will be for Mrs. E.. Mrs. E., should she decide not to have J. attend church in the Roman Catholic faith, shall permit J., when she is with Mr. E. on access visits to attend church or other church related activities.
92. I wish to re-iterate that it would be best if the parties attempted to establish and maintain the lines of communication between them. When two parties of a marriage relationship end such a relationship, there are bound to be bitter feelings on both sides, but when children are involved, parents must put aside their own differences and look to the best interests of the children. Both of these persons care for J. very much, and they would be well-advised to show how much they care by working together in her best interests.
CHILD SUPPORT
93. As I already indicated Mr. E. voluntarily left an employment position which was paying him in excess of $23,000. In documents filed with the court for the period 2001 Mr. E.'s income is $20,729.45. Mr. E. is currently on Employment Income having been laid off by *. He expects to be called back to work at some time in the future. Given that Mr. E. is also entitled to the payment of tax credits of $324 annually I have determined his income for the current year to be $21,000. Consequently, according to the Federal Child Support Guidelines Mr. E. shall pay the amount of $170 per month as child support to the Maintenance Enforcement Program as of June 30, 2002.
SPOUSAL SUPPORT
94. This was a short-term marriage. The parties were married in December 1996, separated in April 1997 and resumed cohabitation in April 1998 and finally separated in September 1999. In total, the parties lived together for less than two years. Mrs. E. is working on a full time basis. Her earnings are approximately $14,000 per year. Mrs. E. has informed the Court she is not seeking spousal support.
95. In addition to paying child support, Mr. E. will have access to J. for nearly 40% of the time. As a result, he will be spending significant amounts of money while exercising access.
96. But for the child support, it is possible that I would have taken a different approach to the payment of spousal support. However, it is my view that the awarding of spousal support is not warranted.
COSTS
97. I have decided, in the circumstances of this case, against making an award of costs. Essentially, neither party is gaining any advantage from the division of the matrimonial assets. There was no cash available to either party at the date of final separation.
98. In the final analysis, it is appropriate not to award costs as it is clear that neither party was more successful than the other.
J.