IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: Patterson v. Coburn, 2004 NSSF 72
Date: 20040106
Docket: 1201-54217 (SFHD-001365)
Registry: Halifax
Between:
Andrew David Patterson
Applicant (herein)/Respondent
v.
Martha Elizabeth Lister Coburn
Respondent (herein)/Petitioner
Judge: The Honourable Justice R. J. Williams
Heard: January 6, 2004, in Halifax, Nova Scotia
Written Decision: September 14, 2004
Counsel: Andrew Patterson, self-represented
Martha Elizabeth Lister Coburn, self-represented
By the Court:
[1] This is an application brought by Andrew David Patterson to vary the terms of a Corollary Relief Judgment relating to issues of custody, care and access referred to in the Corollary Relief Judgment issued by Justice Douglas Campbell of this Court dated August 20, 2002, and varied by Order of this Court on May 21, 2003. My intention is to give my decision through the reciting of a Variation Order that would replace the Corollary Relief Order and the May 21, 2003, Order as it relates to matters of custody and care of the children so that the parties, insofar as they are dealing with a Court Order(s) related to the custody and care of the children, are dealing with one document and not flipping between two or three or more documents as the matter goes forward.
[2] I have considered the evidence that has been put before me with respect to the issues the parties are in dispute on. I have considered the jurisdiction of the Court. I have considered the Corollary Relief Judgment and the subsequent Order as then required by the Divorce Act. I have considered the provisions of the Divorce Act and the submissions of the parties as they relate to their own views or positions with respect to the best interests of the children, and particularly, Aubrey and their interpretations of those interests.
[3] A document will issue entitled “Variation of Corollary Relief Judgment and Subsequent Orders Concerning the Custody and Care of the Children.” The new Order will recite that the parties were divorced by Divorce Judgment dated September 18, 2001, and that the Corollary Relief Judgment dated August 20, 2002, as amended or varied by the Order of May 21, 2003, shall be varied and replaced by the following. The preamble will also recite that upon hearing Martha Elizabeth Lister Coburn, the Petitioner, and Andrew David Patterson, the Respondent, the following variation to the Corollary Relief Judgment dated August 20, 2002, and the varied Corollary Relief Judgment dated May 21, 2003, is hereby made.
[4] Clause (1) will be clause (1) from the Corollary Relief Judgment. The Petitioner and the Respondent shall have joint custody of the children of the marriage who are Elizabeth Caroline Patterson, born […], 1985, and Aubrey Bryce Patterson, born […], 1992.
[5] Clause (2) will be the same clause (2) as in the Corollary Relief Judgment. The primary residence of the children of the marriage shall be with the Petitioner and the secondary residence of the children of the marriage shall be with the Respondent (Mr. Patterson).
[6] Clause (3) of this Order will be clause (3) from the Corollary Relief Judgment including sub-clauses (a) to (d) and the paragraph ending that.
[7] Clause (4) will read as follows (which is adapted from the May 21, 2003, Order). “Should Andrew David Patterson be required to travel for employment purposes, he shall have alternate time with his son and/or the care arrangement will be adjusted to consider the specific employment circumstances.”
[8] I should note that the clause (3) in this Order (which is clause (3) from the Corollary Relief Judgment) shall read as follows: “The Respondent shall have care of Aubrey Bryce Patterson during the school year on the following terms and that in the paragraph that ends clause (3) it shall be “subject to any variations in these terms which are arranged by mutual agreement of the Petitioner and the Respondent, which variations in the past have included the Respondent having care of Aubrey Bryce Patterson on the Thanksgiving Day weekend of the years he does not have care of Aubrey on Christmas Day.” That is essentially removing the word “access” from that clause as was done in the May Order.
[9] I have dealt with clause (4) of the new Order.
[10] Clause (5) of the new Order shall read “At such time as the Respondent (Mr. Patterson) establishes a residence in Halifax County and advises the Petitioner in writing of the address, nature of the accommodation and phone number, clause 3(a) herein will be adjusted to provide that on each second one of the Respondent’s weekends (there being a four-week cycle of Aubrey Bryce Patterson being with the Respondent, the Petitioner, the Respondent and the Petitioner), the Respondent’s care of Aubrey Bryce Patterson will be from 7:00 p.m. Friday evening to the commencement of the school day on Monday morning.” Essentially, this clause is being amended to anticipate Mr. Patterson securing accommodation. I recognize that Ms. Lister Coburn is concerned about disruption to existing patterns. I believe she is also concerned about the absence of some clarity with respect to where Mr. Patterson would be with the child. That issue is certainly less significant once Mr. Patterson secures a residence and, in my view, there is no reason not to - at least on the temporary basis at that point - try the extension of the weekend. It may well be that both weekends would eventually be extended following a five to six-month cycle in accordance with this Order.
[11] Clause (6) in the new Order shall be clause (4) from the existing Corollary Relief Judgment: “The Respondent (Mr. Patterson) shall have the care of Aubrey Bryce Patterson for approximately six weeks during July and August of each year, which weeks will be identified by mutual agreement of the Petitioner and the Respondent”;
[12] Clause (7) will read: “Aubrey Bryce Patterson shall be in the care of the Respondent (Mr. Patterson) at such other times as he (Aubrey) wishes, and subject to the agreement of the parties.”
[13] Clause (8): clause (5) of the Corollary Relief Judgment will be deleted and replaced by the following clause: “Elizabeth Caroline Patterson will be in the care of the Respondent (Mr. Patterson) from time to time as she (Elizabeth) wishes.”
[14] Clause (9) of the new Order will read as follows: “Clause (6) of the Corollary Relief Judgment which reads ‘The Respondent shall receive counselling and therapy from a professional who is able to provide him with guidance as a means of improving his parenting relationship’ shall be deleted.” The Respondent has asserted that, if counselling is appropriate, both parents should go. The Petitioner has asserted that the Respondent should engage in counselling as previously ordered.
[15] Clause (10) of the new Order shall read as follows: “Clause (7) of the Corollary Relief Judgment which reads ‘The Respondent and the older child of the marriage shall work with a third party who is able to teach them how to communicate with each other, subject to the willingness of the older child of the marriage’ shall be deleted.”
[16] Mr. Patterson has requested that a series of principles be incorporated into the Corollary Relief Judgment. They include:
“(a) Each parent along with the children has the right to call themselves a family;
(b) Each parent has the responsibility and rights to contribute to the raising of the children;
8) Each parent has the right to his or her own private life and territory and tor raise the children without unreasonable interference from the other parent;
(d) Each parent has an obligation to treat the other parent with respect and to maintain integrity in all dealings with the other;
(e) Each parent will recognize and make every effort to reconcile their natural differences in style, particularly as the children move back and forth from one home to the other;
(f) The parents will be open and honest with the children with respect to the separation and its implications, including meeting with the children jointly to explain what is happening to their family, the new structure and agreements that are in place.”
[17] Ms. Lister Coburn has opposed that. Mr. Patterson points out that there was a time or even times when those principles were agreed to. Ms. Lister Coburn feels that the principles are unenforceable and, given the parties difficulties in communication and ongoing conflict, that they would prove simply to be a source of additional applications and dispute. A review of the principles indicates that they are not terms that are enforceable by the Court. Unenforceability is a principle reason I have chosen to delete the clause in the Corollary Relief Judgment relating to counselling. In the absence of agreement between the parties, I am not prepared to make an Order incorporating the principles referred to. The principles would, in my view, be a potential source of disagreement between the parties. To give an example, while the principles perhaps while standing individually on their own in an idealized world are laudable, references to concepts of privacy in the circumstances of what appears to be the communication patterns with this couple would, in my view, not contribute to the clarity of the Court Order. I am not satisfied that it is appropriate or in the children’s interest to incorporate the principles in the Variation Order that will be made. I will state that it is my view that each parent has a responsibility not only to the children but to each other. A basic part of that responsibility is to communicate information which that parent individually has to the other parent. Ms. Lister Coburn has indicated that she does not know at times where Mr. Patterson exercises his care of Aubrey giving an example of this past weekend as one. Just as my expectation would be that as a parent with primary residence Ms. Lister Coburn would inform Mr. Patterson of developments in the children’s lives, provided with copies of any documents that came home from school with the children (such as report cards and what not, etc.) and just I would have little patience or understanding for failures in such areas, it would be my expectation that Mr. Patterson communicate to Ms. Lister Coburn information about the place and manner of his care of Aubrey. Similarly, if she was to go away for a weekend or be out-of-town or out of her place of residence for a period of time, I would expect her to communicate that information to Mr. Patterson.
[18] One of the clauses that Mr. Patterson has requested - and I have considered them all - is the clause (f) from his application, a request that the parents will be open and honest with the children with respect to the separation and its implications, including meeting with the children jointly to explain what is happening to their family, the new structure and agreements that are in place. This is a good example of why these principles will not be incorporated in the Corollary Relief Judgment. Mr. Patterson has indicated in the material he has filed and again here in the courtroom that it is his intention to review the entire file and documents with the children. While I would not approve of that. Similarly, I would regard any suggestion that there be some Order that prevent him from doing this to be in practical terms unenforceable and I’m not going to, in this situation, make Orders that are unenforceable just as I am not going to continue the counselling clause. I am not going to incorporate the principles. I am not going to make an Order that he not discuss the matters before the Court with the children in the fashion he indicates. My view is, however, that it is a mistake to do so; that it is not consistent with the children’s best interests; that it drags the children into the dispute; that it is inappropriate. I am also of the view that Mr. Patterson is a strong-willed individual who at his core is well intentioned but who is unlikely to be swayed by the views of the Court in this regard. The suggestion he made to Ms. Lister Coburn that her refusal to incorporate these terms in a variation of the Corollary Relief Judgment amounted to some sort of betrayal of the children is, in my view, placing his own context on the situation - a context I do not agree with.
[19] This is a situation where, in my view, both parents should give more focus to what they do as individuals in taking responsibilities for their own actions and less attention to commenting on the actions of the other parent. Both parents, in my view, should take and make significant efforts to not involve the children in this conflict, to not overtly review what has happened. Mr. Patterson’s threat or promise, depending on the context one wishes to put on it, to review the details of this process and documents and proceeding in a very overt way with the children from his point of view at this time appears to be based on the thought or idea that this is somehow being open with the children. Another view of that sort of action might be that it is an effort on his part to justify his own actions and behaviours to show somehow that he is right and Ms. Coburn is wrong and to, in doing that, draw the children directly into the conflict between the parents, a development that appears to have occurred to some extent already. If it continued, it would inevitably, in my view, be harmful to the children.
[20] The Order will issue by the Court. The application is completed.
J.