Supreme Court of Nova Scotia
(FAMILY DIVISION)
Citation: JP, JLP v DM, 2023 NSSC 363
Date: 20231110
Docket: 83713
Registry: Sydney
Between:
JP, JLP
Applicants
v.
DM
Respondent
Library Heading
THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.
Judge: |
The Honourable Justice Pamela Marche |
Heard: |
October 23, 24, 2023 in Sydney, Nova Scotia |
Final Written Submissions: |
November 6, 2023
|
Written Decision: |
November 10, 2023 |
Subject: |
Shared Parenting, Primary Care, Specified Parenting Time, Child’s Views and Preferences |
Summary: |
Following the termination of a child protection proceeding, a “Bridging Order” placed a 12-year-old child in the primary care of her father and paternal grandmother, in a home they shared together. The mother sought a shared parenting arrangement with a week about rotation. |
Issue: |
(1) What parenting arrangement is in the best interests of the child? |
Result: |
The views and preferences of the child were taken into consideration. Primary care of the child remained with the father and grandmother. There was no evidence of current parenting concerns related to the mother. The father agreed it was in the child’s best interest that the mother should have a specified parenting schedule that included overnight access and increased parenting time. The mother and father will consult on major issues related to the child and the father will have final decision-making authority. |
SUPREME COURT OF Nova Scotia
FAMILY DIVISION
Citation: JP, JLP v DM, 2023 NSSC 363
Date: 20231110
Docket: 83713
Registry: Sydney
Between:
JP, JLP
Applicants
v.
DM
Respondent
Judge: |
The Honourable Justice Pamela Marche |
Heard: |
October 23, 24, 2023, in Sydney, Nova Scotia |
Written Release: |
November 10, 2023 |
Counsel: |
John Stephenson for the Applicants JP, JLP Alan Stanwick for the Respondent DM |
By the Court:
Overview
[1] In this case I must determine what parenting arrangements are in the best interest of twelve-year-old IL.
[2] IL had been living primarily with her mother, DM, and her two half-sisters, EM and NR, until September 2020, when a child protection proceeding started due to concerns related primarily to DM’s mental health. IL and her two sisters were placed in the care of their respective fathers. In IL’s case, she was placed with her father, JLP but also her paternal grandmother, JP. This is because JLP and JP live together and JLP works on a rotational basis out of the province.
[3] The child protection proceeding was terminated in August 2022 based on a “Bridging Order” that continued IL’s placement with JLP and JP, on an interim without prejudice basis, until the matter could be properly litigated.
[4] Pursuant to the Bridging Order, JLP and JP were granted joint primary care and decision-making authority for IL. DM was not to have contact with IL except for parenting time upon terms and conditions agreed to by IL’s father, JLP. The terms and conditions were:
• DM will refrain from the use of drugs and alcohol, except as prescribed by a physician.
• DM will not allow any person under the influence of non-medically prescribed drugs or alcohol, or any person associated with the drug subculture, into her home when caring for IL.
• DM will follow all recommendations from her treatment team following her inpatient stay in Mental Health.
• DM will follow through with support services, including Addiction Services, Family Place Resource Centre, and Family Support, if they remain available to her and follow any recommendations.
• JLP will refrain from the use of non-medically prescribed drugs and alcohol while in a child caring role.
• JLP will not allow any person under the influence of non-medically prescribed drugs or alcohol, or any person associated with the drug subculture, into his home when caring for IL.
• DM and JLP will consider voluntarily engaging in ongoing services offered by the Minister of Community Services as determined by the Minister.
• JLP will decide whether DM should have parenting time with IL and under what conditions, if any, but he shall not unreasonably deny parenting time.
Background and Procedural History
[5] In September 2013, an Interim Consent Order was issued that directed the parties to submit to paternity testing. The Interim Consent Order set out a parenting time schedule for JLP prior to testing and another schedule pending the results of the testing. The Interim Consent order was silent on the issue of primary care although it was obvious, from the wording of the order, that primary care of IL was, de facto, with DM. The parenting arrangements outlined in that Interim Consent Order were never finalized.
[6] In December 2016, a Consent Order was issued in relation to child support only. This Order included recalculation authorization clauses. Accordingly, a Recalculated Child Support Order was issued every year thereafter. The 2016 Consent Order did not address parenting arrangements although child support was payable from JLP to DM.
[7] After child protection became involved, JLP filed two separate applications to vary:
• In February 2021, JLP applied to vary the December 2020 Recalculated Child Support Order that emanated from the 2016 Consent Order on child support. An Order suspending the collection of child support and arrears was issued in March 2021.
• In August 2021, JLP applied to vary the December 2016 child support Order. The variation notice indicated he was requesting a change in parenting and was seeking primary care of IL. I question this pleading because the 2016 Consent Order related only to child support and the 2013 Interim Order related to parenting had never been finalized.
[8] In addition, in January 2022, JP filed a Notice of Application seeking leave to apply for parenting time. Given she is IL’s grandmother, JP’s pleading should have been framed as leave to apply for contact time.
[9] Nevertheless, as part of the 2022 Bridging Order, JP’s application was consolidated with the application of her son, JLP and in May 2022, an Amended Notice of Application was filed naming JP and JLP as the applicants and DM as the respondent. JP was granted leave to apply for primary care of IL as part of the Bridging Order.
[10] As there is no Court Order in place that puts IL in the primary care of either party, I do not believe it is necessary to demonstrate a change in circumstances, notwithstanding the fact that variation applications have been filed.
[11] Two days of hearings were held on October 23 and 24, 2023. JP and JLP were cross examined on their affidavit evidence. DM and her two friends, IM and JT, were similarly cross-examined. Entered by consent were the following business records: child protection case notes from September 2020 to March 2022, DM’s medical records for DM from 2019 to January 2020, and police records related to DM from 2018 to October 2022. A Voice of the Child Report was tendered and the author of the Report, Carol MacLellan, testified.
[12] JP and JLP were self represented for much of the proceeding but retained joint counsel two months prior to the hearing. Counsel represented DM throughout. Written final submissions were received on November 6, 2023.
Positions of the Parties
Position of JP and JLP
[13] JP and JLP believe it is in IL’s best interest to remain in their primary care and they should have final decision-making for IL.
[14] At the outset of the proceeding, JP and JLP presented a joint position. They raise concerns about DM’s mental health and her ability to fully care for IL given she is about to have a new baby and is seeking the return of IL’s, younger sister, NR, to her primary care. They suggested that DM continues to keep company with inappropriate associates. JLP’s position on these issues changed however, throughout the course of the proceeding. He testified that he did not actually have such concerns about DM.
[15] JP and JLP rely on the Voice of the Child Report as evidence that IL would prefer to continue to reside primarily with them. They claim IL is well set up in their home, with her own bedroom, toys, and pets. They say they ensure all of IL’s needs are met. They are aware of her learning disability, and they ensure she gets appropriate assistance with school. They make sure her medical issues are addressed. They keep IL connected to her sisters by arranging for sibling access.
[16] They disagree that they have unreasonably denied DM parenting time with IL in the past. JP argues that additional parenting time was offered to DM, and DM chose not to take the time with IL. Their position in relation to DM’s parenting time going forward has wavered:
• The primary position put forth by their counsel is DM should have parenting time at their discretion, including whether parenting time will occur and under what conditions.
• The alternate position but forth by their counsel is DM will have specified parenting to a maximum of ten hour per week, subject to the views and preferences of IL.
[17] During cross examination, however, JP acknowledged that “obviously she (DM) is going to get more time.” She further agreed that DM could have overnight parenting time with IL, if there were no men present. JP also agreed that DM, JP and JLP could have joint custody of IL, if primary care of IL remained with her and JLP.
[18] JLP went even further during cross examination. He agreed he had been at DM’s home on several occasions, and he had no concerns about the appropriateness of DM’s living situation or her acquaintances. JLP testified he had no concerns about DM’s mental health or substance use. JLP also testified that he had no concerns about DM’s parenting.
[19] JLP agreed that it was not fair that DM’s parenting time should be limited to ten hours per week. He concurred it would be appropriate to have a specified parenting schedule in place. He felt DM should have parenting time with IL overnight, so long as no one else was present. JLP believed it would be fair if DM had overnight access once a week and evening access twice a week from 2 pm (after school) to 8 pm.
[20] JLP acknowledged that JP and DM had difficulties communicating with each other. He testified that he could play a more active role in discussing parenting issues with DM.
[21] Both JP and JLP are opposed to a shared parenting because IL had been living primarily with them and they are concerned about the impact of such a substantial change upon IL.
Position of DM
[22] DM argues a shared parenting arrangement should be put in place, with IL being in the care of the parties on a week about rotation. She says her health is stable. She says she has a suitable home and her own vehicle. DM believes she can provide a stable and secure home for IL.
[23] DM says she demonstrated capacity to appropriately care for IL prior to child protection involvement. She cites the fact that she took IL to the dentist and optician and that she advocated, even when the children were in care, to have IL assessed for a learning disability which led to IL being diagnosed with dyslexia.
[24] DM claims JP has unreasonably restricted her parenting time with IL. She does not believe that JP has done enough to support the development and maintenance of IL’s relationship with her and that this is contrary to IL’s best interests.
[25] DM questions the reliability of the Voice of the Child Report. She does not accept that IL’s responses were free and voluntary because JP discussed the report with IL prior to IL being interviewed. In the alternate, DM argues that IL’s views and preferences are but one factor to be considered in determining what parenting arrangements are in IL’s best interests.
[26] DM says she can cooperate and communicate with JLP. She is hopeful that her communication with JP could improve with specified parenting clauses that address communication.
Issues
1. What parenting arrangement is in the best interests of the child? How do relocation considerations apply in this case?
Legislation and Case Law
[27] The paramount consideration in any decision about parenting is an analysis of which parenting plan is in best interest of the child (s. 18(5) of the Act). Section 18(6) of the Act outlines factors to be considered when assessing what parenting arrangement is in the child’s best interests.
[28] The list of best interest factors is non-exhaustive. The weight to be attached to any factor varies from case to case, depending on the circumstances. In determining what is in the child’s best interests, I must compare and balance the advantages and disadvantages of each proposed parenting scenario: D.A.M. v. C.J.B., 2017 NSCA 91; Titus v. Kynock, 2022 NSCA 35.
[29] I must give effect to the principle that a child should have as much contact with each parent, but only to the extent such contact is consistent with the child’s best interests (s. 18(8) of the Act). There is no presumption in favour of shared parenting: Barendregt v. Grebliunas, 2022 SCC 22.
[30] In Barnhart v. Murphy, 2023 NSSC 31, Justice Jesudasen, citing Hammond v. Nelson, 2012 NSSC 27, and Gibney v. Conohan, 2011 NSSC 268, summarized the factors often considered when assessing whether a shared parenting arrangement is in a child’s best interests:
…they broadly include things such as proximity of the parents’ homes, availability of each parent, whether a reduction in transitions between households can be achieved through a shared parenting arrangement, disruption to the children, the level of conflict between the parties, each parent’s motivation and capability to realize their parenting opportunity for the best interests of the children, and other factors (para. 81).
[31] In A.N. v. J.S., 2018 NSSC 146, Justice Beaton said on shared parenting: “Central to the question of whether shared parenting will be ordered is a consideration of the parties’ ability to communicate in a timely, meaningful and respectful way … ” and “Court are not looking for shared arrangements of perfection …however parent do need to satisfy the Court that it is realistic to expect they can put the children’s needs first and foremost in their communication and decision-making (para. 9).”
Findings and Decision
[32] Although I have not specifically addressed each factor set out in s. 18(6) of the Act, I have considered all elements relevant to this case. When assessing credibility, I have considered the factors set out in Baker-Warren v. Denault, 2009 NSSC 59, and confirmed in Hurst v. Gill, 2011 NSCA 100.
[33] I find there is distrust and hostility between JP and DM which negatively affected their credibility. At times, JP demonstrated an unwillingness to concede relatively obvious points during cross examination. On the contrary, JLP testified in a fair and unbiased manner. Where there is a conflict in testimony of DM, JP and JLP, I rely on the evidence of JLP.
Ability to Meet the Educational, Medical, Emotional Needs of the Child, Including the Need for Safety and Security
[34] I accept the evidence of JP and DM that they are each able to assist with IL’s schooling and have made reasonable efforts to ensure IL gets help with her school assignments. Apart from DM’s mental health crisis that generated child protection involvement, DM, JP and JLP have all appropriately attended to IL’s medical, emotional, and educational needs and there is no evidence that causes any concern in this regard.
[35] Likewise, I have no recent evidence that causes me concern about DM’s ability to securely and safely parent:
• No current evidence suggests DM is not effectively managing her mental health. DM underwent a medical health crisis in 2020 and her children were negatively affected by this. However, no current medical records related to DM were tendered. DM was candid in her testimony about her past mental health concerns. When asked about her current mental health condition, DM was open about the challenges to her well-being, and she communicated a strategy to maintain her health. I accept the testimony of JLP who said he has no concerns about DM’s mental health or substance use.
• No current evidence suggests DM is associating with inappropriate individuals. DM was a victim of a vicious attack in her home in 2021. There was no evidence the assault was anything but random. Child protection was involved at the time, and they made no suggestion that the attack was in any way related to DM associating with unsavoury or dangerous people. Current police records do not indicate any criminality in DM’s life. I accept the testimony of JLP who said he has no concerns about the company DM keeps.
• No current evidence suggests DM is unable to maintain a proper home environment for IL. JLP has been to DM’s home on several occasions recently. I accept the testimony of JLP who said he has no concerns about DM’s living arrangements.
[36] Counsel for JP and JLP argues the purported inability of child protection workers to contact DM for a time in 2020 is indicative of DM’s unwillingness to follow court orders. I am not convinced. Reading the entirety of the child protection case notes assures me DM did make reasonable efforts to connect with child protection authorities. This line of evidence did not demonstrate current parenting concerns related to DM.
[37] I do agree, given the history of instability that IL has experienced, that it is in her best interest that introduction to new romantic partners be limited until there is secure connection established through the passage of time. I find it is in IL’s best interest that her parenting time with DM be reestablished without the presence of new romantic partners.
Willingness to Facilitate Parenting Time
[38] DM feels she was unreasonably denied parenting time. She says JP, at times, cut her parenting time short and did not allow make up parenting time. She believes JP has cancelled her parenting time on short notice and has permitted IL to engage in other activities after saying IL was too ill to visit with her.
[39] JP feels DM did not ardently pursue additional parenting time. JP believes DM could have adjusted her work schedule to increase her availability for parenting time. She argues DM did not ask for more parenting time. JP testified that restrictions on DM’s parenting time with IL are warranted after everything IL has been through.
[40] I find that communication between DM and JP has been poor, and their relationship is strained. Under these circumstances, given the void between their perspectives, it is possible that both DM and JP each have a reasonable belief in their respective positions. I am unable to make a finding that faults either DM or JP in this regard. I am, however, able to make the following findings based on the evidence related to this issue:
• I accept that JP has adopted a restrictive approach to DM’s parenting time with IL. JP displayed an authoritative attitude in the administration of DM’s ten hours of parenting time, despite the fact there was no such limitation contained in the Bridging Order.
• A specified parenting schedule is necessary to remove disputes about whether there has been a failure to exercise parenting time or a denial of parenting time. A parenting schedule that lies completely within the discretion of JP and JLP is not in IL’s best interests.
Sibling Access
[41] It is important that IL remain connected to her siblings. IL’s older sister, EM, will be remaining in the primary care of DM’s mother. DM has a strained relationship with her mother with whom she has little contact.
[42] Parenting arrangements for IL’s younger sister, NR, are also subject to the Bridging Order. They are currently contested. DM is expecting a new baby soon. She is unsure what the parenting arrangements for this child will ultimately be. DM acknowledged there will be some stress associated with managing these parenting arrangements.
[43] I find JP has made admirable efforts to ensure IL remains connected to her siblings. I have every expectation this would continue.
Child’s Views and Preferences
[44] I accept the findings in the Voice of the Child Report prepared by Ms. Carol MacLellan. Ms. MacLellan is an experienced social worker. She spent many years working in child protection and has a great deal of experience composing Voice of the Child reports. Ms. MacLellan’s testimony was unbiased and professional. I feel confident in relying upon her assessment that IL was able to relay her views and preferences freely and without undue pressure from JP or anyone else.
[45] IL reported that she loves her mother, DM, and wants to spend time with her. IL also communicated that she does not want to hurt her mother’s feelings. IL was unequivocal, however, that she wishes to continue to live with her nan, JP, and her father, JLP. She said that was her home.
[46] While I am prepared to give IL’s expressed views and preferences in terms of where she will primarily reside significant weight in these circumstances, I do not feel it is appropriate to allow IL discretion as to whether she will choose to visit with her mother DM. I make this finding because of IL’s age and because of the conflict between JP and DM.
Ability to Communicate and Cooperate
[47] JP and DM are not able to communicate and cooperate easily in relation to parenting issues related to IL. However, JLP testified that he and DM can communicate and cooperate about IL and that he is willing to increase his efforts in this regard. DM gave similar evidence. JLP further testified that he agrees that DM should be included in decision making and have direct access to third party information about IL. I accept JLP’s evidence in this regard.
What I Did Not Consider
• I did not place much weight on the evidence of IM or JT, friends who testified on DM’s behalf. Their testimony consisted largely of opinion and that opinion evidence was not considered.
• I did not draw any inference associated with the dancing pole that had been installed in DM’s home during child protection involvement.
Decision on Parenting
[48] I have carefully considered the legislation, case law and evidence. Although there are issues in the relationship between DM and JP, I find that JLP and DM can, and should, co-parent. Having considered IL’s views and preferences, and the totality of all the evidence, I am convinced that a week about parenting arrangement is not in IL’s best interests. I have determined it is IL’s best interest to order the following:
• JP, JLP and DM will have joint custody of IL.
• JP and JLP will have primary care of IL.
• JLP and DM will consult on major decisions affecting IL. If JLP and DM are unable to agree after meaningful consultation, JLP will have final decision-making authority over IL. JLP may consult with JP at any time during the decision-making process.
• DM will have direct access to third party information related to IL.
• DM will have specified parenting time with IL. DM will have parenting time with IL every Friday from after school (or 2 pm if there is no school) until noon on Saturday. DM will have parenting time with IL every Monday and Wednesday from afterschool (or 2 pm if there is no school) until 8 pm.
• DM will be entitled to make-up parenting time, if IL is unable to attend for some reason.
• DM will be entitled to such other reasonable parenting time, including additional parenting time during holidays and special occasions, as may arranged between JLP and DM.
• Neither party will introduce IL to romantic partners or have romantic partners stay the night while IL is in their care, unless DM and JLP jointly agree otherwise.
• Neither party will consume alcohol or non-prescription drugs while in a child-caring role.
• Communication in relation to parenting issues about IL will be primarily between JLP and DM. All communications between the parties will be child focused and respectful.
Conclusion
[49] Counsel for DM will draft the Order. Given the mixed success in this matter, I decline to order costs.
Pamela A. Marche, J.