1999 1201-54196
IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
BETWEEN: R.B.N.
Petitioner
- and -
M.J.N.
Respondent
[Cite as: R.B.N. v. M.J.N., 2002NSSF052]
ADDENDUM
HEARD BEFORE: The Honourable Justice Douglas C. Campbell
DECISION: December 18, 2002 (after written submissions)
COUNSEL: Myrna Gillis, counsel for the petitioner, R.B.N.
B. Lynn Reierson, counsel for the respondent, M.J.N.
I gave an oral decision in this matter on October 4, 2002 and this represents an addendum to that decision.
The petitioner had removed the two children of the marriage from the province of Nova Scotia in early September 2002 for the purpose of relocating their residence to Atlanta, Georgia. She orchestrated the removal in a clandestine way, advising the respondent of her move only after she had left Nova Scotia.
The matter came before me initially on the mother’s application to vary the father’s access to the children so as to conform to the limits placed on that arrangement by virtue of the new circumstance surrounding the travel and distance factor associated with that move.
The father’s pleading (that is his so called “interim application”) provided me with some momentary difficulty which I find not to be fatal to his application. It seeks:
1. Interim custody of the children (naming them with birthdates) with reasonable supervised access to the respondent;
2. An order that the respondent (petitioner) R.B.N. return the children (naming them with birthdates) to the jurisdiction of the province of Nova Scotia forthwith;
3. Costs.
The heading on that document reverses the usual order placing Mr. M.J.N. as the first name in the heading and describing him as “respondent” followed by Ms. R.B.N.’s name describing her as petitioner. Especially in divorce cases, the proper practice is to adopt the original heading in the divorce petition and to maintain that heading in every subsequent application including an application to vary even where the respondent in a divorce is the applicant in the subject application. The fact that the notice specifies that the respondent is applying for the particular relief is enough to identify him as the applicant in that application. The above reversed heading or the use of a double heading confuses the matter.
In this case it is difficult to tell who the father seeks to be the custodian. Because item # 2 refers to the mother as the respondent, I assume that the relief sought under item #1 is custody to the father with supervised access to the mother. If that is so, there would be no doubt that I can make an order for the father to have block access and attach conditions to it since he would thereby be awarded less than he sought. If the opposite was intended, my jurisdiction is less clear. The answer however rests in an understanding of the common jargon used by judges and lawyers in custody cases involving mobility.
I prefer to think of the pleading for an order requiring the “return of the children” to Nova Scotia as being a very commonly used vernacular. It may or may not be that there is authority for such an order but it is clear that the Divorce Act, R.S., 1985, c.3 (2d supp.)
does not expressly authorize the making of such an order. It is also clear that the court has no authority to order a party to a divorce to live in a particular place.
However, the court can usually cause such an outcome by making the custodial parent’s custody order subject to a condition that the mother resides with the children at a particular place. Section 17(3) of the Divorce Act, supra by incorporating by reference the provisions of section 16(6), authorizes the court on an application to vary a custody order to impose such “terms, conditions or restrictions in connection therewith as it thinks fit and just”.
Technically, therefore, the father’s application should have been framed as an application to vary the mother’s custody order by imposing conditions which may have included the establishment of their residence in Halifax. However, describing such an order as an order for the “return of the children” has become so common place that it has crept into the pleadings and other court file documents in these so called mobility cases. Whether the hearing occurs before the custodial parent leaves the jurisdiction with the children or afterward, both parties understand that, notwithstanding the above noted technicality, the outcome that the court is being asked to adjudicate is whether the custodial parent will be required to remain (or return as the case may be) with the children in or to their ordinary place of residence or whether the removal of the children to the new area will be authorized and if so under what conditions as to access for the non-custodial parent.
It would have been preferable for the father’s application to be framed in language more consistent with the words used in the Divorce Act, supra. I will not hold the father to that technicality for several reasons. First, this matter was treated as an emergency and the paperwork needed to be put together at a rapid pace. Secondly, the mother had very much taken the law into her own hands in a very deceitful and planned way and, having done so, should not be permitted to use a technicality to deny the father of an appropriate remedy, thereby denying his natural right to be with his children. Thirdly, everyone including the mother and her counsel, would or should be aware that an application to order “the return of the children” is in fact an application to vary the mother’s custody by imposing conditions. Although the condition expressly being sought is the return of the children, the Divorce Act, supra gives the court a broad authority to impose such other terms as it thinks fit and just and that would include conditions as to access including limits such as supervision and other matters including costs of transportation and attendance for the same.
After conducting the hearing on an emergency basis, at which the mother was cross-examined by way of video conferencing, I declined to order the petitioner to return the children to Nova Scotia and indicated that I would be ordering unsupervised block access. I accepted counsel’s suggestion that the parties address the court in writing as to the details of that access. This two stage approach gives rise to the need for this addendum.
The written submission on behalf of the father, was dated October 11, 2002, supplemented on October 15, 2002 and the submission for the mother dated October 18, 2002 was filed on October 21, 2002. Counsel for the father replied by letter dated October 23, 2002. There was a further counter-reply on October 24, 2002 and November 5, 2002. A Notice of Appeal of my decision was filed on November 4, 2002.
In the course of providing written submissions to the court, counsel for the mother alluded to a number of alleged facts which are not properly before me as part of the evidence. Of significance is the suggestion by the mother that one of the children should not travel by air because of complications that would arise in light of his special needs. She provided a letter from a physician to support this contention. This information, and more importantly the fact that it was withheld from the court at the time of the hearing, is of grave concern. In custody cases involving mobility, the task of balancing the various factors that would affect the children’s best interest in reaching a decision whether to permit the relocation is almost an impossible one. The one tool available to the court to assist in finding that balance is the ability to award substantial block access. A relocation, no matter how valid the reasons, should not result in a termination of the relationship between the children and the non-custodial parent. Regular and frequent access is not possible in most cases of a separation by significant distances. Block access is often the only answer.
The mother in this case either knew, or ought to have known, either on her own or through her counsel, that block access is the court’s usual response to a permitted relocation of the children. She could not have failed to know that her position against permitting her son to travel by air would significantly impede the practical implementation of block access in Nova Scotia. She would have known that disclosure to the court of her position regarding flying would operate significantly against the court permitting the relocation. The withholding of this information would therefore appear to be self-motivated.
The father appears to take the view that his son can in fact travel by air. Because none of this is properly before me in evidence, I am not in a position to decide the point.
The mother’s position with respect to supervision of access raises a similar concern. Her clandestine removal of the children from the province was done in the face of the knowledge that she would adamantly oppose any form of access unless it was not only supervised, but supervised by a professional person. Given the impecuniosity of the father, the prospect of paying for 24 hour professional supervision, not to mention the task of locating a professional person or persons who would perform that function, would make block access in Nova Scotia virtually impossible. It follows that the mother relocated these children in circumstances where her own position regarding supervision, if accepted by the court, would render block access in Nova Scotia virtually impossible. Her suggestion that except for the summer access the access take place indefinitely in Atlanta, Georgia is equally impractical given the special needs of the children and the husband’s lack of connection with that area.
At the time of my earlier decision, I was aware of the wife’s position regarding professionally supervised access. However, that gave me little concern because I can, and in fact did, order that the access be unsupervised thereby paving the way for approving the wife’s relocation of the children despite the moral impropriety by which she is orchestrating it.
Although the wife had placed the question of the husband’s access before me by virtue of her application, the main objective of the husband’s application on its face was to effect a return of the children to Nova Scotia. If the custodial parent in such a case takes the position that block access cannot be ordered in an application to return the children, she would be leaving the court with little alternative other than to order the children’s return. In denying the father’s request for a return of the children, the court must have and does have (by virtue of Sections 16(6) and 17(3) of the Divorce Act, supra) the authority to reject that application on condition that certain specified block access will be put in place. If not, I would probably have granted his application.
By withholding information with respect to air travel by the child and by continuing to take the position, by way of an appeal, that professional supervision should be attached to the father’s access, the mother is undermining a major cornerstone in my decision not to order her continued custody to be conditional on their return to Nova Scotia.
I am not in a position to determine whether the boy can travel by air. I do not wish to make an order which would have a negative medical impact for this child and I will not therefore order that the transport be done in any particular fashion. I will make an order with respect to unsupervised block access below. I will offer the comment that the reality is that if the mother does not find a safe and affordable way for both children to be made available for block access with their father in Nova Scotia, either because it can be proven that the boy cannot travel by air or because professional supervision arises out of the Court of Appeal’s decision, such development may constitute a material change in circumstance from which the court could entertain an application by the father to amend the mother’s custody such that it be conditional upon her return to Nova Scotia, or alternatively to change custody.
A decision to allow a custodial parent to relocate the children to a long distance city is often a very perplexing one. As is the case here, there are often valid practical reasons for that relocation. Inevitably, the loss of frequent parental contact between the children and the non-custodial parent is a sad and unwanted event both from the point of view of the non-custodial parent and the children. As was stated above, practically available block access is usually the quid pro quo which is the best that can be offered to the children. This often involves expense and inconvenience to both parties which can sometimes be extreme. The custodial parent must be willing to accept a considerable amount of inconvenience and expense to make block access happen if she is to expect the court to approve of her desired relocation. Because of the special needs of the children, the mother is in a better position to implement the transportation. The mother left Nova Scotia expecting to have an income of $60,000.00 US with the possibility of an increase to as much as $100,000.00 US. The husband has an income of about $23,000.00. Both parties have considerable debts. The husband is paying table amount child support and there has been no proposal by the mother known to me to reduce that payment to reflect a potential undue hardship claim based on access costs. Without such an adjustment, I have concluded that an order which would cause the father to contribute substantially to his transportation costs for access would render the access unachievable.
Given the distance between Halifax and Atlanta, Georgia it would have been preferable to have the transportation occur by air. I will leave that decision to the mother, until his ability to so travel is proven, given that she will be responsible to effect this transportation and to pay for it. I am aware that travel by car will be somewhat slower because of the special needs of the children. The mother has suggested that the trip will take four days. That is most unfortunate but it may simply represent one more inconvenience that needs to be endured in order for this relocation to occur.
The father seeks four block visits a year being Thanksgiving, Christmas, Spring Break and Summer. The mother proposes that visits except for summer take place in Atlanta, Georgia and I find that that is not practical.
In my previous decision I directed that the present Corollary Relief Judgement shall be varied to provide that the father’s access to the children shall be unsupervised and that for a period of six months from the commencement of the first access occasion, the access shall be conditional upon the father continuing in his relationship with D.R. and her general presence in the home. Those provisions shall be included in the order.
I shall direct three periods of block access per year. I have declined to deal with a Thanksgiving visit either in respect of the Canadian or American holiday. I have simply concluded that the transportation is going to be sufficiently difficult that the request for a fourth time must, regrettably, be declined.
Because of the potential for a four day road trip in each direction, there may be a need to require the children to miss a few days of school during some of the access times. While the mother objects to this, it is not uncommon in block access, long distance custody situations.
Because this decision is being made so close to the Christmas season and with very little notice to the mother of its details before Christmas, I have concluded that Christmas of 2002 will have to be given a special design. Thereafter, the father shall be entitled to have both children in his care from 4:00 p.m. on the 21st of December to 10:00 a.m. on the 30th day of December. In choosing those dates and times I am cognizant of the fact that if transportation takes place by car, the mother may have to leave Atlanta as early as the 17th and that the children may miss school. She will also have to travel back to Atlanta over the New Year’s holiday and, depending on the commencement date, may miss the reopening of school. I have taken into consideration the fact that, as Buddhists, the parties do not celebrate Christmas. Air travel may eliminate lost school attendance.
A two week period in the Spring of each year shall be identified in the following way. In the event that the children, or either of them, have a Spring Break from school, the two week period shall be the period involving that break. If that break is less than two weeks, the two week period shall contain the Spring Break and the week previous to it. In the event that neither of the children have a Spring Break, the last two full calendar weeks ending in March shall constitute the above referenced period.
In the event that the children are travelling by a motor vehicle, the husband shall have access from noon hour on the Monday which commences that two week period until 10:00 a.m. on the Friday at the end of that two week period. This would have the effect of minimizing the amount of missed school by reason of transportation but recognizes that they would miss school for whatever period of time is not scheduled as a Spring Break. In the event that the children are travelling by air, the access shall be from the Saturday at the commencement of the two weeks to and including the Saturday at the end of the two weeks. I would not specify a particular hour of the day since there is a need for flexibility to accommodate flight schedules.
The husband shall have the children for a period of four weeks every summer. In her summation, counsel for the mother urges me to consider that her son has been advised to continue his schooling throughout at least six weeks of the summer. Again, these facts are not in evidence. The father seeks a total of eight weeks in the summer. Because of the children’s special needs and programs generally available to them in Atlanta, I have concluded that a period of four weeks would be in order. I would have reached that conclusion whether or not this unproven information with respect to summer schooling was before me. I would direct that the mother shall attempt to arrange the child’s summer schooling, if any, so as to be consecutively adjacent to either the end of the regular school term or its beginning so as to maximize the remaining block time available to the father.
The mother shall identify by May 15th (or as soon thereafter as is possible if that date is not practical) each year the period of weeks in which either or both of the children would be in school during their summer break and forthwith communicate those dates to the father. The parties shall then identify a thirty day period commencing on a Saturday and ending on a Sunday which is adjacent to the child’s summer school weeks. The travel time to the father’s residence shall commence on the above noted Saturday and the return travel to the mother’s residence shall be scheduled (assuming 4 days of travel if by car) to end on the above noted Sunday. The father shall have access to the children for that period of time between the two travel events whether or not the travel is by air or by motor vehicle. Travel shall be by the most direct route and without delay or interruption except for those delays which are necessary for the medical and general welfare of the children. In the event that the above noted thirty day period overlaps with the child’s intended summer school schedule, the child shall be required to miss that number of days of school in order for the father’s access to take place.
The father shall have unrestricted telephone access at all reasonable times to the children.
In the event that the father shall travel to the children’s place of residence, he shall have liberal access at all reasonable times upon reasonable notice with full liberty to take the children to such places as he may decide; provided however that such access shall not be exercised during the American Thanksgiving, Easter or the portion of the summer when the children would be with their mother.
The costs of all transportation for block access in Nova Scotia shall be paid for by the mother. The fact that the father has a much smaller income and potential income at this time and that he has not been offered any relief from the table amount in exchange for a contribution toward access costs are reasons why the mother should pay all, rather than part, of the costs.
I appreciate that travel, in both directions, by car will be very awkward for the mother. It begs the question whether it makes sense for her to drive back home to Georgia only to return by car to transport the children again. It would make much more sense if she drove the children in one direction and that the father would drive in the other direction. I have declined to order this because of the parties’ present financial circumstances. I would recommend to the parties that they consider whether this is an appropriate case for an undue hardship claim (assuming the father were driving the children in one direction at his expense) which would justify a reduction in the table amount. It may not mean much less net cost to the mother but it would eliminate the inconvenience of driving back to Georgia for the duration of the visit only to return to Halifax again to pick up the children. She may have to resort to flying back home while leaving her vehicle in Halifax and then returning by air for the drive back home. Alternatively, she may choose to use a one way drop off rental car and fly back and forth. A third alternative would be to spend the duration of some of the visits in Halifax herself.
I appreciate that counsel for the father has brought to my attention the Saskatchewan Court of Appeal decision in Holtskog v. Holtskog, [1999] S.J.NO. 304. In that case, the Court of Appeal overruled the trial judge’s direction that the custodial parent share airfare costs for the children. The Court of Appeal concluded that the result of the rejection of the undue hardship claim is that the trial judge erred in ordering the sharing of access costs. Counsel for the father therefore urged me to find undue hardship in order to direct a sharing of access costs. Such a claim is not pleaded. I have concluded that the above decision does not stand for the proposition that the court cannot order a sharing of access costs unless there is an undue hardship finding. That case turned merely on the fact that the father failed to prove that the access costs were unusually high which would have justified the order. In any event, a decision of the Court of Appeal in another province is not technically binding on me although persuasive.
In my opinion there is no logical reason to deny a claim by the non-custodial spouse for a contribution or full payment of access costs by the custodial parent merely because the undue hardship claim failed.
The authority to order a contribution to access costs comes from the Divorce Act, supra itself both under Section 15.1(4) which permits the court to impose terms, conditions or restrictions in connection with a support order and under 16(6) which provides a similar authority in conjunction with a custody order. The reduction in table amount support arising from the undue hardship that is based on access costs is under the Guidelines themselves and is a completely separate matter. It can be ordered either in addition to or instead of a direct access cost contribution.
To conclude otherwise would be to effectively deny a realistic opportunity to exercise access for many non-custodial parents. In order to succeed in an undue hardship claim, the non-custodial parent must pass the household standard of living comparisons test, failing which the court has no discretion to entertain the claim. That in turn is based on the number of people in the household and their incomes. There would be a countless number of non-custodial parents whose income would be sufficient to cause them to fail that test and therefore lose on the undue hardship claim. At the same time, that person may have insufficient income to exercise heavy costs of access, depending upon amounts involved. The unfortunate lack of discretion in trial judges to order undue hardship does not and should not impair the court’s ability to promote or indeed save the non-custodial parent’s contact with the children by ordering access cost sharing. If that authority did not exist, the major tool of compromise in mobility cases (i.e. an agreed sharing of access costs) would be lost and cases otherwise capable of settling without trial would come before the court heavily contested necessarily. Such an outcome would be most unfortunate.
The mother’s counsel suggested a penalty clause in the event that the children are not available for block access. I decline that suggestion. I simply comment that it is the custodial parent’s responsibility to make the children available for access and that there can be serious consequences if the custodial parent denies or interferes with access.
The order shall contain a provision that the father during his access time is authorized to ensure that the children receive required medical care and that in such an event he shall notify the mother as soon as is reasonably practical of the nature and extent of the medical care or treatment provided or to be provided for the child or children.
Counsel for the father has urged me to include a provision in the order which would preserve the jurisdiction of the Nova Scotia court. While that provision is routinely approved by the court when there is consent, it seems to me that I cannot make such an order in the absence of consent because it would be an attempt to prejudge the appropriate forum for future hearings and to attempt to usurp the jurisdiction of another court. I will include such a provision if there is a consent of both parties; otherwise that request is denied.
For reasons given above, a special arrangement for Christmas of 2002 is required. I have concluded that there is insufficient time to organize and implement the usual Christmas access this year. Instead, I will direct that in the event that the father chooses to exercise access during the Christmas season of 2002, he may do so by notifying the mother of a time frame during their school Christmas break, not to exceed seven days, during which he would travel to Atlanta, Georgia and exercise access to both children there during that time frame. In the event that the father so elects, the mother shall provide him with a return economy air ticket from Halifax to Atlanta and shall contribute to the husband’s ground transportation, accommodations and meals for himself and the children to a maximum of $75.00 per day. The mother had suggested that the father might be able to stay with members of the Buddhist community at no cost. I do not assume that this would occur. If the husband requires hotel accommodations, his costs will clearly exceed the contribution above directed. That excess will be his responsibility. This provides the husband with a clear incentive to minimize his costs.
I am advised that the husband had made an offer to settle which should assist me in assessing his request for costs. While that offer was not identical to my award in as much as it sought larger amounts of time, it is clear to me that it is the mother’s insistence on access taking place largely in Atlanta that significantly separated the parties’ positions and caused their negotiations to fail. While the father was not successful in his request for the return of the children to Nova Scotia, it is clear from his offer to settle that his negotiating position was to solve the matter by way of block access which is consistent with the outcome after the hearing.
There shall be an order for costs payable by the mother to the father in the amount of $750.00 Canadian.
Campbell, J.
DCC/wak