Citation: J.L. v. T.H., 2023 NSSC 250
Date: 20230802
Docket: 126479
Registry: Sydney
Between:
J.L.
Applicant
v.
T.H.
Respondent
Judge: |
The Honourable Justice Lee Anne MacLeod-Archer |
Heard:
Oral Decision: |
July 14, 2023, in Sydney, Nova Scotia
July 24, 2023 |
Written Release: |
August 2, 2023 |
Judge: |
The Honourable Justice Lee Anne MacLeod-Archer |
By the Court:
[1] This is a decision on an interim motion filed by Mr. H. He and Ms. L have three young children. He seeks an interim shared parenting arrangement. Ms. L is opposed. She asks for interim primary care of the children, with supervised parenting for Mr. H.
[2] I heard evidence on July 14, 2023, and reserved my decision. I delivered an abbreviated decision from the bench on July 24, 2023. This is the written version of that decision, which includes references to the applicable legislation & caselaw.
BACKGROUND
[3] The parties have a history of conflict and anti-social behaviour, including drug use. Child protection services (CPS) has been involved, and criminal charges were laid against Mr. H, who served time in prison after his conviction for drug offences.
[4] Both parents re-partnered after separation, and Ms. L and Mr. F are now the parents of a young child (Ms. L’s fourth) who they co-parent.
[5] Unfortunately, both new partners have been involved in the conflict. Mr. H raised allegations of child abuse against Mr. F. He was charged criminally but the charges were later withdrawn. In turn, Ms. L raised allegations ofchild abuse against Mr. H’s partner, but CPS was unable to substantiate them. To say this file involves high conflict would be an under-statement.
ISSUES
1. What is the most appropriate interim parenting arrangement that serves the best interests of the children?
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2. What is Mr. H’s income ?
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3. What child support should be payable ? |
ISSUE 1
LEGAL TEST
[6] The test to be met in an interim hearing has been stated in numerous cases, including Hi v. Hi, 2014, NSSC 253, Gibney v Conohan, 2011 NSSC 268, and most recently in JH v RH, 2023 NSSC 237. The Court must focus on what arrangement, on an interim basis, would be the least disruptive, and the most protective and supportive for the children.
LEGISLATION
[7] The Parenting and Support Act RSNS 1989, c.160 (as amended)(PSA) is the governing legislation.
[8] Section 18(5) of the PSA directs me to give paramount consideration to the best interests of the child when making a parenting decision.
[9] In deciding what is in the children’s best interests, I must weigh the factors laid out in s.18(6). Through the lens of those factors as they impact the best interests of the children, I must decide what parenting plan serves the children’s best interests in the interim.
[10] One factor in s.18(6) of the PSA that is particularly relevant in the circumstances of this case, is the issue of family violence. Ms. L alleges that Mr. H has physically and verbally assaulted her and her partner. She alleges that he’s taught the children racially abusive language, and encouraged them to assault Mr. F. She alleges that he’s verbally attacked family members and been aggressive with community members.
[11] As Justice Forgeron said in DS v RTS, 2017, NSSC 218:
Family violence negatively affects children. Violence erodes confidence and self-esteem. Violence perverts a healthy family life. A child who is exposed to violence learns that violence is an acceptable way to resolve disputes. It is not. A child who is exposed to violence learns that violence is an acceptable way to express love. It is not.
[12] There are signs in this case that the children are acting out aggressively towards Ms. L’s partner, not only as a reflection of the bigoted comments made by Ms. H towards Mr. F, but also because of his encouragement for them to assault Mr. F. That is extremely concerning and must be addressed.
[13] The goal of maximum contact between the children and Mr. H as outlined in s.18(8) of the PSA is subordinate to the need to safeguard the children from violence, abuse, and the risk of emotional harm.
CREDIBILITY
[14] Credibility plays a major part in making these decisions. I can accept all, some, or none of a witness’ testimony. In this case, Mr. H’s evidence lacked credibility, because at times he displayed a selective memory, and while he acknowledged some acts of aggression, but he was cagey about the other allegations.
BURDEN OF PROOF
[15] In any civil proceeding, the onus of proof is proof on a balance of probabilities. Ms. L asks to limit Mr. H’s parenting time by having it supervised. She therefore bears the onus of proving that such a restriction is appropriate.
FINDINGS
• I find that Ms. L was the children’s primary caregiver while the parents were together.
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• I find that she was the primary caregiver after separation, aside from a period of time when Mr. H had the children in his care during a CPS investigation into allegations of abuse against Ms. L’s partner.
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• I find that Mr. H assaulted Mr. F.
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• I find that Mr. H displayed aggressive and threatening behaviour towards other community and family members.
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• I find that he struck one of the children as a form of discipline.
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• I find that he has issues controlling his anger.
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• I find that he uses bigoted language when referring to Mr. F.
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• I find that he encouraged the children to abuse Mr. F.
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• I find that the children have been exposed to many of Mr. H’s antisocial behaviours.
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• I find that Mr. F did not assault one of the children as Mr. H alleged.
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• I do not find that Mr. H’s partner abused the children. |
CHILDREN’S STATEMENTS
[16] I have not given weight to most of the hearsay statement attributed to the children. However, I find that the evidence of what the boys said while hitting Mr. F (calling him hateful names) does not constitute hearsay. Even if it did, I would find that it meets the state of mind exception to the hearsay exclusion.
[17] I have therefore considered the boys’ action and words when deciding what parenting arrangements are in the best interests of the children.
SUPERVISED PARENTING TIME
[18] I've considered the issue of Mr. H’s parenting time in the context of the decision in Lewis and Lewis, 2005 NSSC 256 where Justice Forgeron discussed when supervised access is appropriate. The circumstances can include:
• where a child requires protection from physical, sexual or emotional abuse;
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• where the child is being reintroduced into the life of a parent after a significant absence;
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• where there are substance abuse issues; or
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• where there are clinical issues involving the access parent. |
[19] I agree with Justice Forgeron that supervised access is not appropriate if its sole purpose is to provide comfort to a custodial parent. That is not the case here.
[20] In the Hi decision, the court found that supervised access was in the best interests of the children because, although the father had participated in anger management courses and counseling, he continued to lack insight into his anger issues, and he had not assumed responsibility for his conduct. The children had been exposed to their father's physical and emotional violence, which was typically directed at the mother. Mr. Hi would call the mother crude and humiliating names in the presence of the children.
[21] That case is similar to this case. It is not in a child's best interests to be exposed to violence, to hear their mother’s partner (and their stepsister’s father) denigrated and devalued by their father, and for their own father to encourage them to abuse another person.
[22] Mr. H took anger management while in prison. It clearly hasn’t benefited his interactions with Ms. L, Mr. F, or the people towards whom he has shown aggressive or threatening behaviour since then. In fact, he conceded that some of his racist language may have been spouted in a fit of rage.
[23] Almost as troubling is the fact that Mr. H shows no remorse for his behaviour. Indeed, at times in his testimony he appeared proud of it. That may be bravado, but it’s also a very unhealthy attitude and one that’s already impacted his children negatively.
DECISION
[24] I’m satisfied that the most appropriate interim order in the children’s best interests is for Ms. L to exercise primary care and decision-making responsibility for the children.
[25] I’m also satisfied that Ms. L has met the onus of establishing that supervised parenting time is appropriate. I therefore direct that Mr. H’s parenting time be supervised for 12 weeks through the Department of Justice supervised access and exchange (SAE) program. This arrangement will permit a professional third party to observe his interactions with the children and ensure that visits are a positive experience for the children.
[26] Mr. H points out that CPS has not recommended restrictions on either parent’s time with the children. I recognize that, and while I acknowledge that CPS can provide valuable insights which may not be otherwise available to the court, their recommendation is only one of many factors I have to consider. Ultimately, it is for the court to decide what interim parenting arrangements are in the children’s best interests and whether that should include restrictions on one or both parents’ interactions with the children.
ANCILLARY ORDERS
[27] While the SAE parenting time is underway, I direct that if Mr. H wishes to pursue unsupervised parenting time in future, he must complete individual anger management and respectful relationships counseling, with a minimum of six sessions (not including intake). This cannot be a group program. It must include respectful relationships with intimate partners, co-parents, and racialized individuals.
[28] I further direct that the boys be enrolled in play therapy to address the impacts of the conflict they’ve been exposed to, as well as to address the racial hatred they’ve been taught to demonstrate towards Mr. F.
[29] I further direct that Ms. L seek out support services to enhance her coping strategies for managing the care of four small children under the age of five. The evidence is clear that she faces challenges with their behaviour, and that with a fourth child in the family, she requires support and education in this respect.
ISSUE 2
[30] Mr. H testified that he earns $36.00 per hour, and he works around 30 – 35 hours per week from March until September. He did not say (but it’s reasonable to infer from his earlier pattern of income) that he then collects Employment Insurance benefits for the month’s he’s not employed. I therefore calculate his annual income at @$50,000.00 per year.
ISSUE 3
[31] I direct that Mr. H pay child support for three children under the Nova Scotia table based on an income of $50,000.00 effective July 15, 2023, and continuing on the 15th of each month until further order of the court.
[32] Mr. H hasn’t paid child support since separation, although he says that he offered to buy diapers. That doesn’t meet his legal obligation to support for his children. Any claim for child support pre-dating this interim order can be addressed in a final hearing.
COSTS
[33] Mr. McNally requests the opportunity to be heard on costs. I direct that he file written submissions by August 7, 2023, and Ms. Somerton will have until August 14, 2023 to respond. I will issue a separate costs decision.
ORDER
[34] Mr. McNally will draft the order and send it to Ms. Somerton for review as to form. I will have it issued upon receipt.
Order Accordingly,
MacLeod-Archer, J.