SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: C.M.S. v. T.W.K, 2013 NSSC 294
Date: 2013-09-24
Docket: SFHMCA-067293
Registry: Halifax
Between:
C.M.S.
Applicant
v.
T.W.K.
Respondent
Judge: The Honourable Justice Elizabeth Jollimore
Heard: September 17, 2013
Written Decision: September 24, 2013
Counsel:
C.M.S. on her own
T.W.K. on his own
Restriction on publication:
Publishers of this case please take note that s. 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication.
Section 94(1) provides:
No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to [the Children and Family Services Act], or a parent or guardian, a foster parent or relative of the child.
By the Court:
Introduction
[1] Ms. S has applied to vary the terms of a parenting order relating to her ten year old daughter and her seven year old son. The children’s father is Mr. K. The mother’s application is pursuant to section 37 of the Maintenance and Custody Act, R.S.N.S. 1989, c. 160.
[2] Ms. S started her application on July 2, 2013. The order she wants to vary was granted by consent on February 21, 2013, approximately four and one-half months earlier.
[3] Ms. S provided two affidavits and also arranged for the testimony of two witnesses, Cavin Chan and Martin Whitzman. Mr. Chan works at Family SOS, a family service agency. He’s been meeting weekly with Ms. S since late February 2013. Mr. Whitzman is a registered marriage and family therapist who worked with the parents from September 2012 to July 2013, pursuant to court order in a child protection matter.
[4] Mr. K filed an affidavit.
Applying to vary a parenting order
[5] I’m governed by section 37 of the Maintenance and Custody Act in making a decision to vary an order dealing with parenting arrangements. That section says I may vary a parenting order where there has been a change in circumstances since the making of the last variation order.
[6] This requirement of a change in circumstances is more fully explained in the Supreme Court of Canada’s decision in Gordon v. Goertz, 1996 CanLII 191 (S.C.C.). At paragraph 10 of the majority reasons in Gordon v. Goertz, 1996 CanLII 191 (S.C.C.), then‑Justice McLachlin wrote that before I can consider the merits of a variation application, I must be satisfied there has been a change in circumstances that has occurred since the last parenting order was made.
[7] At paragraph 13, Justice McLachlin was more specific in identifying the three requirements that must be satisfied before I can consider an application to vary a parenting order. They are:
1. there must be a change in the children’s condition, means, needs or circumstances or the ability of the parents to meet the children’s needs;
2. the change must materially affect the children; and
3. the change was either not foreseen or could not have been reasonably contemplated by the judge who made the order that’s sought to be varied.
[8] All parenting applications, including variation applications, are determined on the basis of the children’s best interests. Initially proving that there has been a material change establishes that the current order is no longer in the children’s best interests. Proving a material change has happened does more than show that the current order is no longer best for the children; it also highlights what the new circumstances are, so that the new order can reflect the children’s best interests in the new circumstances.
[9] The first step in my analysis is to determine if there’s been a change in circumstances of the sort described in paragraph 7. If there has not, then I cannot change the current order. If there has been a change in circumstances, then I may change the current order and the changes I make to it must reflect the children’s best interests in the changed circumstances.
Has there been a change in circumstances since the last order was made?
[10] The most recent parenting order is a consent variation order granted on February 21, 2013. So, Ms. S must prove that there’s been a change of the sort described in paragraph 7 that has happened since February 21, 2013.
[11] In deciding whether there’s been this sort of change, I have reviewed Ms. S’s affidavits and her cross-examination of the witnesses. As I explained during the hearing, the affidavits and witnesses’ answers to questions are the evidence I may use in making my decision. The information contained in questions is only evidence if the witness accepted the information. Neither parent is represented by a lawyer and each had some difficulty in framing questions for the witnesses.
[12] Mr. Chan and Mr. Whitzman are attentive listeners and each was careful in answering questions to be clear about when he agreed or disagreed with what he was asked, when he did not know something or when he had no personal knowledge of it. For example, when Ms. S asked Mr. Chan if she had talked to him about an event, he would agree that she had talked to him about it. Of course, he could not say whether the event had actually happened: he had no personal knowledge of the event, only knowledge that Ms. S had said something to him.
[13] Ms. S identified eight general circumstances which she says support changing the current parenting order.
a. She
says that Mr. K doesn’t obey the court order: he isn’t on time with the
children at the beginning or end of her visits, and he makes excuses not to
bring the children (particularly, their daughter doesn’t attend visits).
b. She
says that one or more of the children tell her Mr. K’s never around, they’re
always left with a babysitter and they’re tired of it, and that they get to “go
to bed when they want” during the summer.
c. She
says Mr. K’s been bitter and angry since their relationship ended. She says he
calls her names, puts her down, “fills the kids’ heads with God knows what” and
avoids her.
d. She
says he leaves the children with a “young teen” babysitter (a “fourteen year
old child”) when they should be with her if Mr. K is unable to care for them at
any time.
e. She
says that Mr. K has faced various charges in the military and that he attempted
suicide eight years ago.
f. She
says the children were not allowed to visit with their maternal grandfather
when he travelled to Nova Scotia this summer.
g. She
says that she was invited and then uninvited to her daughter’s tenth birthday
party this summer.
h. She
says the children are tired when they come for visits.
[14] For me to vary the current order, one or some of these must be a change to the children’s condition, means, needs or circumstances or in a parent’s ability to meet the children’s needs that is material and which has occurred since February 21, 2013. It must also be a change that wasn’t or couldn’t have been foreseen. I’ll review each circumstance that Ms. S has identified to see if any meet the requirements of a change in circumstances so that I may vary the February 2013 order.
Mr. K disobeys the order
[15] Ms. S says that Mr. K doesn’t obey the court order: he isn’t on time with the children at the beginning or end of her visits and he makes excuses not to bring the children. In particular, she said her daughter doesn’t attend visits.
[16] According to the order, Mr. K is solely responsible for transporting the children to and from their visits with their mother. Mr. K admits that he is not always on time. Mr. K also takes the children to their activities (soccer and jujitsu) and this can affect their schedule. As well, he lives in Halifax and Ms. S lives in Dartmouth. He says that the order is relatively new and things are still settling in.
[17] Ms. S hears various reasons for their daughter’s reluctance to visit: Ms. S’s landlord is loud, her father is loud, there’s a smell of cigarettes.
[18] Mr. K says that their son makes all his visits, but that their daughter has issues about visiting with her mother. The daughter’s doctor, Dr. Carrey, has recommended that she attend group therapy sessions for those with anxiety disorders. Her parents take turns in taking her to her group therapy sessions. No definitive diagnosis of an anxiety disorder has been made, but her doctor is “leaning in that direction”, according to Martin Whitzman.
[19] According to Mr. Whitzman, if the girl truly has an anxiety disorder then Mr. K should not make her attend a visit with her mother that she doesn’t want to attend. If the daughter does have an anxiety disorder, Mr. Whitzman said that to force her to stay with her mother “isn’t therapeutic” and would “intensify her anxiety”. Mr. Whitzman said that while children should be required to attend access visits, children with anxiety disorders are the exception to that rule.
[20] These events have happened since the order was granted. Aside from Mr. K’s lateness, which not so significant as to be material, it appears that the daughter’s failure to visit her mother is a change in circumstances that was not recognized when the order was granted.
[21] With regard to Mr. K’s lateness, I am aware that during the conference which preceded this hearing, Justice Beaton outlined the differences between a contempt motion and a variation application for Ms. S. Punishing a person for disobeying a court order after finding them in contempt is not a remedy that’s particularly suited to family law, but it may be something Ms. S wishes to consider. If she pursues this, she should appreciate that the punishment levied in a contempt motion is intended to coerce compliance with court orders. Custody of children is not decided on this basis.
The children’s comments
[22] Both parents gave me information that came from the children. Both parents have said that the children report different things to each of them. The children’s comments to Ms. S are, like their comments to their father, unreliable. Both parents agree that the children are not consistent in what they say. As a result, unless the children’s comments are corroborated by an independent witness or admitted by the other parent, I don’t give them any weight. This means I am disregarding the comments attributed to them about their father never being around or that they don’t like being left with their babysitter.
[23] In response to the children’s comments that they “go to bed when they want” in the summer, Mr. K says that the children do stay up later in the summer. He says that they are in bed by 10 p.m. during the summer. At the cottage, they stay up until eleven o’clock for marshmallows. Their son is seven and their daughter is ten. Eleven o’clock is a late hour, but not unusual for children during summer holidays.
[24] I have no evidence that Mr. K’s allowing the children to stay up late in the summer is a new circumstance this summer. Even if it was, I am not prepared to accept that this is a change that is material. A change in the children’s bedtime, and particularly a change during the summer, is not significant. It is also to be expected.
Mr. K’s reaction to the separation
[25] Ms. S says that since the separation Mr. K is bitter and angry, filling the children’s heads with “God knows what”, and that he tries to avoid her.
[26] The parties separated in early 2009.
[27] Mr. K’s reaction cannot be a change in circumstances. The parties separated four years before Justice Williams granted the most recent order. If Mr. K has felt and acted this way since the parties separated, it is a circumstance that existed when they agreed on the terms of the February 2013 order and is not a basis to change it.
The babysitter
[28] Ms. S says that the children are left for extended periods with a young care-giver.
[29] Mr. K says that his fifteen year old niece babysits the children. His niece has completed a babysitting course. Mr. K says that he starts work forty-five minutes late and takes a “half lunch”. This minimizes his time at work which, in turn, reduces the need for babysitting.
[30] There is no evidence that Mr. K’s reliance on a babysitter is a new circumstance arising since the February order was granted. The children have been in their father’s primary care since 2010. Similarly, there’s no evidence that he now relies on a babysitter more than he did before February 2013 or that the babysitter is deficient in the care she provides for the children.
Mr. K’s past
[31] Ms. S says that Mr. K has faced various charges in the military and that he attempted suicide eight years ago.
[32] These circumstances existed when the parties consented to the order in February 2013. They are not new circumstances which have arisen since then.
The children’s maternal grandfather
[33] Ms. S said that Mr. K kept their children from spending time with their maternal grandfather when he travelled to Nova Scotia to visit this summer.
[34] Mr. K denies this and says that he “sat in the heat” so that their daughter could visit with Ms. S’s father. He says that their daughter doesn’t want to see her grandfather because he is “loud”. The last time that Mr. K saw the children’s grandfather he was yelling at the children.
[35] The evidence is contradictory: Ms. S says the children did not visit with her father, while Mr. K says that at least one of the children did. Again, I have information about the daughter’s difficulty with visiting.
[36] It is for Ms. S to prove that there has been a material change and, in this situation, I find that she has not proven such a change.
Their daughter’s birthday
[37] Ms. S says that she and her father were invited and then uninvited to a bowling party for her daughter’s birthday. Mr. K was not asked about this.
[38] In the preamble to a question she asked Mr. Chan, Ms. S said that Mr. K cancelled the invitation “because of the court papers”. Mr. Chan was not asked particularly about this: he was asked whether cancelling the invitation to the birthday party was “correct” behaviour. The affidavit of service shows that Mr. K was served with the application around the time of the girl’s birthday. I don’t know when the bowling party was held.
[39] I heard from Mr. Chan and Mr. Whitzman about the conflict between the parents, the work Ms. S has done on her own and the work she and Mr. K have done together to reduce conflict between themselves. While there has been progress, they continue to have difficulty in their relations with each other. It is not a surprise that Mr. K may have “uninvited” Ms. S and her father to the bowling party to avoid conflict arising from the commencement of this application. “Not nice” behaviour, as Ms. S says, but preferable to parental conflict at the girl’s birthday party.
The children are tired
[40] Ms. S says that the children are tired when they are dropped off.
[41] Mr. Chan was asked about the boy’s fatigue. Mr. Chan has met the boy and spoken with him on three occasions. These meetings have occurred in the morning, when Mr. Chan usually meets with Ms. S. Mr. Chan said that the boy didn’t appear any more fatigued than a seven year old would be.
[42] I have no independent corroboration that their daughter is tired. Ms. S says she observes the children are tired when they are dropped off, however, she says that her daughter does not attend visits so she would not be able to make this observation.
The change in circumstances
[43] The circumstance which seems not to have been considered at the time of the last order is the daughter’s mental health. While not conclusively diagnosed as having an anxiety disorder, the girl is being treated as if she has such a disorder on the basis of her doctor’s recommendation. Mr. Whitzman has made clear that forcing a child with an anxiety disorder to attend visits will intensify the child’s anxiety.
Appropriate variation order
[44] Of the circumstances outlined by Ms. S, the one which meets the requirements set out in Gordon v. Goertz, 1996 CanLII 191 (S.C.C.) is the daughter’s anxiety. Here, she is being monitored by her doctor; she has been referred for and is receiving treatment.
[45] I do want to distinguish between this case and others I see where a parent tells me “the child won’t go”. As Ms. S and Mr. Whitzman have said, the proper course with an unwilling child is to ensure the visits occur. This case is different. This girl’s health circumstances – which are being monitored by her doctor and are the subject of ongoing treatment – recommend against compelling visits. I was told that compelling visits would intensify her anxiety.
[46] In light of the girl’s health, which I find is a change in circumstances, I will vary the current order so that the girl is not required to attend visits while her doctor continues to prescribe her attendance at group therapy and while she continues to attend these sessions.
[47] Both parents take turns taking their daughter to her group therapy sessions. The prevailing order allows that each parent may directly request and obtain information about her health. This provision will ensure that both Ms. S and Mr. K are aware of their daughter’s health and her ability to resume visits.
Conclusion
[48] I have authority to vary a parenting order only where a change in circumstances has occurred. Such a change renders the existing order no longer in the children’s best interests and informs the terms of a new order.
[49] Because the order Ms. S seeks to vary is so recent, the information she’s provided often relates to a single event – a missed visit or a cancelled invitation. It is difficult to conclude that this is a change in children’s circumstances, their means, needs or condition. Their daughter has not been conclusively diagnosed as having an anxiety disorder, but she is experiencing adverse reactions to the current parenting schedule. Her reaction is significant: her doctor has referred her to group therapy for children with anxiety disorders. To address this new circumstance, I vary the current order so the girl is not required to attend access visits with Ms. S while her doctor continues to prescribe her attendance at group therapy and while she continues to attend these sessions.
__________________________________
Elizabeth
Jollimore, J.S.C. (F.D.)
Halifax, Nova Scotia