(FAMILY DIVISION)
Citation: Brooks v. Soto, 2011 NSSC 498
Date: 20111215
Docket: SFHMCA-067661
Registry: Halifax
Between:
Gloria Brooks
Applicant
v.
Michael Soto
Respondent
Judge: The Honourable Justice R. James Williams
Heard: December 13 and 15, 2011, in Halifax, Nova Scotia
Oral Decision: December 15, 2011
Edited for Release: January 23, 2012
Counsel: Joyce Ruck De Peza, for the Applicant
Kerri-Ann Robson, for the Respondent
By the Court:
[1] This matter concerns the care and custody of Dillon Gordon Brooks, born September 30, 1999. Dillon is 11 years old. His mother, Gloria Brooks (born April 21, 1964), and his father, Michael Soto (born October 20, 1960), seek his care and custody. Ms. Brooks lives in Halifax, Nova Scotia. Mr. Soto lives in Plymouth, New Hampshire.
[2] Dillon’s parents were in a relationship from approximately 1987 to 2003. They separated in part due to domestic conflict between them. They resided in the U. S. at the time. In December 2003 Ms. Brooks and Dillon moved to Canada. She cared for Dillon. Mr. Soto had access with Dillon for summers from early 2004 through 2009.
[3] Ms. Brooks is a member of the Indian Brook First Nation. She came to Nova Scotia from the U. S. when the parties separated, in part because her father resided in this area.
[4] During Mr. Soto’s access in the summer of 2007, he was arrested and detained briefly. Dillon was with Mr. Soto’s then girlfriend at the time. The girlfriend left Dillon alone and Child Welfare became briefly involved.
[5] In late August of 2009 Dillon was in the U. S. with his father and his father’s current partner, Michelle Bates. At the end of August or early September of 2009, Ms. Brooks was to pick up Dillon. This did not happen. Each of the adults blames the other. Mr. Soto initiated a court process in the U. S., a Hague Convention application followed from Ms. Brooks. Dillon remained with Mr. Soto until November 26, 2010 when Dillon was ordered returned to his mother, who brought him back to Halifax.
[6] On March 24, 2011 an Interim Hearing was held before Justice Legere-Sers of this Court. Dillon was returned to his father’s care. Dillon returned to the U. S. with his father. Ms. Brooks had telephone access as part of that order, but has not called or contacted Dillon since April of 2011, some eight months ago. Dillon has lived with his father and Ms. Bates in Plymouth, New Hampshire since shortly after the March 24th, 2011 Interim Hearing.
[7] At the end of the March 24, 2011 Interim Hearing this matter was scheduled for trial. Trial dates of December 13, 14 and 15, 2011 were set. On September 13th, 2011 a pre-trial occurred in this proceeding. Filing dates were set. Ms. Brooks did not meet those filing dates. She filed her affidavit just the week before this trial. At the outset of this trial on December 13th, Ms. Brooks asked her counsel to request that the matter be adjourned so she could “get witnesses”. Mr. Soto had travelled from the U. S. for the trial. The matter had obviously been set down for a lengthy period of time (since March of 2011). The time for Ms. Brooks to get witnesses had long passed. I declined her request for the adjournment.
[8] Both parents here seek custody of Dillon. The relevant legislation is the Maintenance and Custody Act of the Province of Nova Scotia. Section 18(2) of that Act provides:
(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.
[9] Section 18(5) of that Act provides:
(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.
[10] I have attempted to apply and consider this legislation, as well as the provisions and factors outlined in the case of Foley v. Foley, 1993 CanII 3400 N.S.S.C. In that decision, Justice Goodfellow of the N.S.S.C. outlined factors to be considered in coming to a custody determination, using a best interests standard. Those considerations include the following:
1. the statutory provisions that are relevant;
2. the physical environment;
3. discipline;
4. role model;
5. wishes of the child;
6. religious and spiritual guidance;
7. assistance of experts;
8. time availability of each parent;
9. the cultural development of the child;
10. the physical and character development of the child;
11. the emotional support to assist the child;
12. the financial contribution to the welfare of the child;
13. the support of extended family;
14. the willingness of a parent to facilitate contact with the other parent;
15. the interim and long range plan for the welfare of the child;
16. the financial consequences of custody;
17. other relevant factors.
[11] Ms. Brooks is a person who is attempting to look after herself. Between November of 2010 when Dillon came back to her care, and March of 2011, she had financial problems. She was evicted from her home; she had difficulties with neighbours and social assistance. She threatened to burn down her home. She threatened to take care of neighbours with a baseball bat. Dillon was present for some of this. Police were involved and interviewed him. I conclude that he was traumatized by these events.
[12] Ms. Brooks placed Dillon with her adult son, Dillon’s brother, for a time prior to the March 24, 2011 Interim Hearing. She did not have a residence of her own. These were in large part the circumstances at the time of the interim order returning Dillon to his father’s care.
[13] Ms. Brooks had telephone access with Dillon after the interim order. She last called him in April of this year (2011). I conclude that in the last such call she indicated to Dillon that she would not call again and that he should “have a nice life” or something to that effect. I conclude that such comments are and were harmful to Dillon.
[14] Ms. Brooks’ evidence indicates that she has difficulty communicating at times. At the time of the interim order the Court recommended that she have a psychological assessment and treatment. Ms. Brooks is steadfast in saying “I do not believe I have a mental health issue”. She has not followed up on the recommendation of Justice Legere-Sers.
[15] Ms. Brooks has difficulties with relationships. She has, it appears, little or minimal contact with her own family. She does not appreciate the impact had on someone of Dillon’s age of statements she makes (like “you are going to a orphanage”, “I will burn this house down”, “I will not call you again”, “have a good life”). She expressed some concern that Mr. Soto was alienating Dillon from her. There is little evidence of that. Nothing could alienate Dillon from Ms. Brooks more than her own behaviour and statements.
[16] I conclude that she has made these and similar statements. She is impulsive with what she says. I do not believe that she intends to harm or hurt anybody with her statements. She is, in a word, impulsive.
[17] Ms. Power is a psychologist. She prepared a custody and access assessment. She observed that Ms. Brooks’ thought patterns were at times jumbled, that Ms. Brooks would at times go off on tangents. The evidence is consistent with that conclusion.
[18] Mr. Soto and his partner, Ms. Bates, reside in Plymouth, New Hampshire. He is far from perfect. His past includes a series of criminal offences and allegations of domestic violence. These concerns have not been present in the last three or four years. He and Ms. Bates have been together since December of 2008. He works regularly. It appears that they have some financial issues and are economically “tight”, but by and large appear to get by. Ms. Bates does not work outside the home. She is available to help care for Dillon when he is not in school and Mr. Soto is working. Dillon takes the bus to school.
[19] Mr. Soto indicates Dillon and he have some contact with Ms. Brooks’ extended family. It appears they have as much or more such contact with them than Ms. Brooks does. Ms. Brooks has few if any support persons who have been identified to the Court.
[20] Dillon has resided with his father and Ms. Bates since the March 24, 2011 Interim Order. Dillon is doing exceptionally well in school, especially when one considers the number of and nature of the moves he has been subjected to over the last two to three years. He sees a counsellor weekly. He appears to be thriving. His report card has marks between 73 and 100; most of the marks are in the 80's and 90's. Comments on his report card are that he is self-motivated, works hard, is an excellent student. Both Mr. Soto and Ms. Brooks should be proud of him.
[21] Dillon sees a therapist in New Hampshire, a social worker. That relationship appears to be established and beneficial to him. Mr. Soto is better able to provide for Dillon’s care in terms of physical environment, financial support and stability. He supports Dillon’s involvement in school activities. Emotionally he has provided Dillon with counselling and what appears to be a stable environment. Mr. Soto is committed to the long-term care of Dillon. He has more personal stability than Ms. Brooks. As a role model he is not without his warts as a father, but he has relative stability compared to Ms. Brooks and appears to be doing a good job parenting.
[22] While Ms. Brooks has more time available to spend with Dillon than Mr. Soto does (he works outside the home), she compromises that with her own behaviour.
[23] Ms. Brooks is First Nation. She appears, however, disconnected from her family.
[24] She speaks of programs that she will or intends to attend, but history indicates that she may have trouble following through with those.
[25] Heather Power is the psychologist who prepared the Custody and Access Assessment. In her report she indicates, at pages 54 and 55:
He [Dillon] provided useful information pertaining to himself and his family members. It did not appear that his comments were ‘coached’ and, when asked if there was anything that his father wanted him to tell the undersigned, he indicated that his father told him to tell the truth.
[26] Ms. Power goes on:
Based on these interviews with Dillon, the undersigned believes that Dillon is quite fearful of his mother and that she has been both physically and verbally abusive to him in the past. He described having been physically abused on several occasions by his mother hitting him. Dillon acknowledged that he never disclosed this abuse to anyone when he resided with his mother and it appears that this was because he was fearful she would incur negative repercussions and, because she is his mother, he did not want that to happen to her. Thus, Dillon does have some affectionate feelings towards his mother. However, he described her in a fashion that suggests she can use affection manipulatively to get what she wants, but that much of the time she presents as angry. He suggested that his mother has used alcohol around him but this did not appear to be to a significant extent. Dillon did describe having some positive feelings towards his mother, but it seems that his feelings toward her were rather ambivalent in that he loves her because she is his mother, but that he also has negative feelings toward her because of the alleged physical and emotional abuse. In fact, it also appears that there may be some neglect in that Dillon described having cared for himself primarily from the age of six or seven years, including having been left alone while his mother was at a local bar. Overall, it is the undersigned opinion that Dillon cares about his mother and would like some contact with her but that he also is afraid to be with her and has had negative experiences when communicating with her in the past. Based on my interviews with Dillon, it is this assessor’s opinion that Mr. Soto has not interfered with Dillon’s conversations with his mother, such as by telling him what he can and cannot say. Rather, it appears that Ms. Brooks’ questioning of Dillon during telephone calls makes Dillon uncomfortable and that his father does intervene when this occurs.
Dillon described his father and Michelle in positive terms and had complaints similar to that of an average child/adolescent (for example, being “nagged”). He reported that he and his father engage in a number of common activities whereas it appears that his mother was not as actively involved with him.
[27] At page 55, Ms. Power indicates:
Dillon indicated that his father does not speak negatively about his mother around him although does convey that she is not the person he would like her to be. However, he later indicated that his father told him his mother lied in court and that his mother does not abide by court orders, suggesting that his father likely is making Dillon aware of some facts/opinions that might be best not conveyed to a child.
Based on Dillon’s interviews, the undersigned does believe that he does not want to live with his mother, nor have any in-person contact with her until he is older and/or unless he feels safe. In fact, while it does seem that he would like to have contact with his mother as an adult, it appears that he wants to wait until his adulthood because he feels he would be better able to protect himself at that point (such as being able to leave whenever he wants). It is this assessor’s opinion that Dillon would like to continue to reside with his father with no physical access with his mother at this point in time.
[28] It is not necessary for this Court to conclude whether actual physical abuse of Dillon took place at the hands of Ms. Brooks. It is clear, however, that Dillon fears being with his mother. It is clear that she, and she has acknowledged this on occasion, has said things that are, in a word, “hurtful” to Dillon.
[29] Ms. Power’s recommendations are contained at page 80 of her report. Those recommendations (and I will summarize them) are:
1 - It is recommended that Mr. Soto be granted sole custody and care of Dillon.
2 - It is recommended that Ms. Brooks be granted supervised access with Dillon with a long term goal of having unsupervised access/visitations with him. Such communication should be encouraged by Mr. Soto. Access should begin by way of letters, cards and e-mail communications. The context should be supervised by a mutual third party, suitable to both Mr. Soto and Ms. Brooks. They may wish to consider Dillon’s therapist, if she would be willing to do so.
3 - It is recommended that Ms. Brooks participate in a psychiatric assessment to further evaluate her mental health difficulties.
4 - It is recommended that Ms. Brooks participate in psychological treatment.
5 - It is recommended that Mr. Soto seek counselling to improve his ability to manage anger.
6 - It is recommended that Mr. Soto and Ms. Brooks not communicate their own negative opinions of the other parent to Dillon, and that they not discuss details of their legal dispute with Dillon.
7 - It is recommended that Dillon continue to participate in therapy.
[30] Ms. Brooks has requested that the Court order a child’s wishes assessment. I am satisfied that I have Dillon’s wishes adequately before me through the parenting assessment evidence of Ms. Power and evidence of the parties. I would decline or refuse the request for a further child’s wishes assessment.
[31] Ms. Brooks has requested joint custody. Her impulsiveness, threats, and communication issues do not support a joint custody arrangement. She has not been a reliable or constructive communicator. Nor does the distance between the parents support a joint custody arrangement. These are people who have not communicated effectively. There is no prospect apparent from the evidence before me that this will change.
[32] I am satisfied, considering the evidence, the legislation and the factors outlined in the Foley case that it is in the best interests of Dillon Gordon Brooks to be in the sole care and custody of his father, Michael Soto. I agree with the recommendations of Ms. Power, the psychologist. It is not in Dillon’s best interests to have in-person contact with his mother at this time. Such contact, when Ms. Brooks makes statements like those she has made, has been emotionally harmful to Dillon.
[33] Ms. Brooks may write or e-mail Dillon. Mr. Soto’s counsel will provide Ms. Brooks’ counsel with a mailing address and e-mail address for Dillon within two weeks. Should Dillon’s current counsellor be willing to vet or review the letter or e-mail communications before they are seen by Dillon, she will do so. If the counsellor is not prepared to do so, Mr. Soto will be responsible for vetting those communications. If either the counsellor or Mr. Soto does not give Dillon a note or e-mail which has been sent by Ms. Brooks, they will communicate to Ms. Brooks, at an address to be provided by Ms. Brooks, to Mr. Soto’s counsel through Ms. Brooks’ counsel the fact that the letter or communication has not been passed on to Dillon.
[34] Mr. Soto will provide Ms. Brooks with a letter by March 20, 2012, June 20, 2012, September 20, 2012 and December 20, 2012, and so on after December of 2012. Each letter will provide (on effectively a quarterly basis) a summary of information concerning Dillon’s progress in school (including copies of report cards or marks), a summary of his extra-curricular activities, an indication of any health concerns or visits, including dental treatment, if possible a picture and a brief summary of Dillon’s interests and activities.
[35] Mr. Soto will be the sole decision-maker, the sole person with the right to contact professionals dealing with Dillon, be it school, doctor, dentist or counsellor. Mr. Soto will have the sole right to apply for, renew, hold and maintain and deal with Dillon’s passport.
[36] Neither parent will communicate negative opinion about the other to Dillon. I would recommend, but not order as I do not believe I have the authority to order, that Ms. Brooks pursue psychological and/or psychiatric treatment and assessment. Justice Legere-Sers has made a similar recommendation, as has Heather Power, the psychologist who did the parenting assessment.
[37] I would also recommend that Mr. Soto seek counselling concerning anger management issues as recommended by Ms. Power.
[38] I would strongly recommend that Dillon continue the counselling program he is in. It may be that through counselling the fears he has of his mother will subside, which would allow this order to alter.
[39] Finally, these matters are seldom final. I will observe that it may be, and I want to emphasize that it may be, that this Court in Nova Scotia would decline jurisdiction in the future concerning access or variation in this custody order. Dillon lives in the U. S. His counsellor is there. His school is there. If access is ordered and enforcement is an issue, an order from the Nova Scotia Court might not be enforceable in New Hampshire. An order in New Hampshire would be necessary. I am not pre-determining jurisdiction with this but merely observing that jurisdiction would, if there were an application to vary this order, be determined at the time of any application, and would depend on the circumstances at that time. I am not aware of the New Hampshire legislation and whether it allows for registration of an order such as this in that state. If it does, and if that registration occurred, then presumably that legislation would also provide for variation.
[40] Finally, it would seem evident that if there was no way or no possibility of varying this order in New Hampshire, then the only place that could be done would be Nova Scotia.
Halifax, NS J. S. C. (F. D.)