IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: K.M. v. D.P., 2005 NSSC 124
Date: 20050526
Docket: SFH MCA 13993
Registry: Halifax
Between:
K. M.
Applicant
v.
D. P.
Respondent
|
Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
Judge: The Honourable Assoc. Chief Justice Robert F. Ferguson
Heard: May 10, 2005, in Halifax, Nova Scotia
Written Decision: May 26, 2005
Counsel: Kim Johnson, counsel for the Applicant
Peter Katsihtis, counsel for the Respondent
By the Court:
[1] K. M. and D. P. are the parents of J. T. M. P., four years of age. Currently, by court order, K. M. has “primary care and custody” of J. and D. P. has specified access with him.
[2] On April 29, 2005, D. P. applied to vary the existing order to provide he become the custodial parent of J..
[3] On May 10, 2005, K. M. applied to vary the existing order to provide she remain the custodial parent and be permitted to relocate to Victoria, British Columbia.
[4] The current order governing the parents’ relationship with their son is dated October 22, 2004, and states, in part:
Custody and Access
1. K. M. shall have primary care and custody of the child J. T. M.-P., born March [...], 2001 (“J.”). She shall have the right to make final decisions with respect to J., subject only to the review of the court.
2. The last name on J.’s birth certificate shall not be changed without an Order of the Court in accordance with the Change of Name Act.
. . .
5. D. P. shall have access to J. as follows:
. . .
n. Every second weekend from Friday at 5:00 p.m. to Sunday at 5:00 p.m. beginning September 11, 2004.
6. Notwithstanding the above-noted access schedule, the following special-date access shall occur:
a. K. M. shall have a one-week period of time of her choice with J. in August 2004 uninterrupted by D. P.’s access;
b. Beginning with summer 2005, each parent shall have a two-week period of block vacation access with J.. Such block vacation time may be divided into two one-week blocks;
c. D. P. shall have access each year on January 10;
d. K. M. shall have access each year on March 10;
e. Beginning in June 2005, D. P. shall have Father’s Day access from 6:00 p.m. on the night before until 6:00 p.m. on Father’s Day;
f. K. M. shall have Mother’s Day access from 6:00 p.m. on the night before until 6:00 p.m. on Mother’s Day;
g. K. M. shall have J. in her care each year from 4:00 p.m. on Christmas Eve until 4:00 p.m. on Christmas Day;
h. D. P. shall have J. in his care each year from 4:00 p.m. on Christmas Day until 6:00 p.m. on Boxing Day.
7. Access transitions between K. M. and D. P. shall take place in a public setting whenever possible. On day-care days, D. P. shall pick J. up at daycare. All other access transitions between the parents shall take place at the [...] on Highway 7, unless K. M. cannot attend for work reasons. When K. M. is required to work during hours when J.’s usual childcare facility is closed, D. P. shall return J. directly to the home of K. M., to a babysitter arranged by K. M., and K. M. shall provide written notice to D. P. of such arrangements at the beginning of the access visit. Any dog owned by K. M. shall be kenneled (sic) or otherwise contained during access exchange times when access exchange occurs at K. M.’s home;
8. Each parent is authorized to consent to emergency medical treatment for J. while J. is in his or her care, but must advise the other parent of the emergency medical treatment as soon as possible.
9. Either parent may take J. outside the province of Nova Scotia for vacation purposes after having provided the other with a detailed itinerary of the travel plans and complete contact information for J. throughout the travel period.
10. K. M. shall not move from the Halifax Regional Municipality without providing D. P. with a minimum of 30 days written notice.
BACKGROUND
[5] K. M. and D. P. lived in a common-law relationship from approximately March of 2000 to January of 2002. Their child, J., was born March [...], 2001. J. has been primarily in the care of his mother since separation.
[6] Litigation as to their relationship began in January of 2002 and has continued almost unabated to this date.
[7] In May of 2002, an Interim Order provided the parents would be joint custodians of J.. K. M. was to have primary care and control and D. P. was to exercise supervised access. In December of 2002, the parties consented to an order that stated, in part: “An access assessment with a psychological component shall be conducted with respect to both the applicant and respondent.”
[8] This report was made available to the parties and the court on February 12, 2003.
[9] On May 14, 2003, the parties consented to an Interim Order that varied the access terms contained in the order issued on May 9, 2002, and provided D. P. with unsupervised access.
[10] A two-day trial dealing with the issues of custody/access/support and division of property resulted in an oral decision on June 16, 2004, with the resulting “Final Order” of October 22, 2004.
POSITIONS
D. P.
[11] Since September of 2003, D. P. has been residing in a common-law relationship with A. M. and her three daughters ages eleven, eight and five. He has an eight-year old son, D., with whom he exercises access similar to that he enjoys with J.. He is a member of the Armed Forces and, in the past, this vocation has required him to be away from Nova Scotia for months at a time. He has decided to retire from the military in July of this year and receive his pension and severance package. He will be seeking work with Canada Post.
[12] Mr. P. believes, since the order of October of 2004, he has enhanced his relationship with J. by exercising the unsupervised over-night access currently available to him. He believes he is currently in a position to provide care for J. that reflects J.’s current and ongoing needs by having him live with him in his current relationship.
[13] Mr. P. acknowledges that on May 3, 2005, just prior to this hearing, an incident took place between he and A. M.’s eleven year old daughter. This incident resulted in him being charged with assault. He is, by court order, prevented from being in the presence of A. M.’s children. He currently resides with his brother and is seeing Ms. M. when the children are at school or, for other reasons, away from their premises. He testified he has arranged to speak with the Crown Prosecutor in the very near future and expects this matter to be resolved in a fashion restoring him to his current family relationship.
[14] By agreement of counsel I have been provided with the following information: As of May 19, 2005, Mr. P.’s Undertaking has been varied in that the condition that prevents him from communicating with the M. children has been removed. I presume this allows him to resume his residence with Ms. M. and the children. The assault charge will be withdrawn.
[15] D. P. submits K. M.’s personal life is rife with uncertainty creating a situation where she is unable to provide, in as capable a manner as he, for J.’s needs. He alleges that, since becoming J.’s primary care giver, K. M. has had numerous relationships with men and spoken of moving from the Halifax area with J. in pursuit of these relationships; that her current desire to return to live with her former husband in British Columbia is ill-advised and uncertain. He notes that this gentleman’s employment in the Armed Forces will probably require his relocation in the near future.
K. M.
[16] Since becoming the primary care giver for J., K. M. has been employed in a number of jobs requiring some physical labour. Her income was in the range of $16,500.00 per year. She has been in car accidents in November of 2004 and in A. of 2005 and is currently without employment with an income that has been reduced by approximately fifty percent.
[17] Ms. M. had been previously married to S.F. – a relationship that lasted for approximately six years. Mr. F. is currently living in Victoria, British Columbia and is a member of the Armed Forces. His position requires him to come to Nova Scotia on a regular basis. The relationship has been renewed. K. M. made plans to sell her home in Nova Scotia as she could no longer maintain it on her income. It was decided they would live as a couple in Mr. F.’s home in Victoria. K. M. placed her home for sale and it sold far sooner than she expected. She has plans to move to British Columbia prior to June of this year.
THE LAW
[18] Subsection 37(1) of the Maintenance and Custody Act, reads:
The court, on application, may make an order varying, rescinding or suspending, prospectively or retroactively, a maintenance order or an order respecting custody and access where there has been a change in circumstances since the making of the order or the last variation order.
Sub-section 18(5) of the Act states:
In any proceeding under this Act concerning care and custody or access and visiting privileges in relation to a child, the court shall apply the principle that the welfare of the child is the paramount consideration.
[19] The leading case on parental mobility rights remains the Supreme Court of Canada decision in Gordon v. Goertz, [1996] S.C.J. No. 522. The Supreme Court in paragraph 49 summarized the law as follows:
1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.
3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
6. The focus is on the best interests of the child, not the interests and rights of the parents.
7. More particularly the judge should consider, inter alia:
( a ) the existing custody arrangement and relationship between the child and the custodial parent;
( b ) the existing access arrangement and the relationship between the child and the access parent;
( c ) the desirability of maximizing contact between the child and both parents;
( d ) the views of the child;
( e ) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
( f ) disruption to the child of a change in custody;
( g ) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
50. In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?
[20] The parties concur that K. M.’s plan to move to Victoria constitutes a material change of circumstance. I agree. This move will create a change in the circumstances of J. who, at this time, can interact with both parents on a weekly basis. This is a change that will materially affect him. Further, it was not a change that was foreseen or could have reasonably been contemplated by the judge who made the existing order. It is appropriate to hear the applications to vary the existing order.
[21] Having been satisfied that a material change in circumstance has occurred, the court must “embark on a fresh inquiry into what is in the best interests of the [children], having regard to all the relevant circumstances relating to the [children’s] needs and the ability of the respective parents to satisfy them.”
[22] There is no presumption in favour of either party although the Supreme Court has directed that the custodial parent’s views are entitled “to great respect”. As stated in paragraph 48:
While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent’s parenting ability.
[23] The court is being asked to choose between two options. The first is to leave the child in the care of the primary parent and allow the child to relocate. The second, based on the assumption that the primary parent is relocating, in any event, is to vary custody by placing the child in the primary care of what, up to this point, has been the access parent.
[24] Gordon v. Goertz, supra, lists seven considerations to be taken into account when assessing what is in the best interests of the child.
(a) The existing custody arrangement and the relationship between the child and the custodial parent;
(b) The existing access arrangement and the relationship between the child and the access parent;
[25] The parents separated in January of 2002 when J. was approximately nine months old and he has remained living with his mother. It is not clear how much access D. P. had with his son prior to September of 2003. Justice Williams, in his decision dated June 16, 2004, concluded D. P. had no access with J. from September of 2003 to the date of his decision. Access was ordered beginning June 20, 2004.
[26] Justice Williams stated in his decision:
[3] There have been extended periods when Mr. P. has not had contact with J., some through the requirements of his employment, some through other reasons, some through his own choice.
. . .
[8] These parents have had a difficult relationship. It has been acrimonious and distrustful. There have been extended periods when Mr. P. has not pursued contact with his son. He has had no access since September, 2003.
[9] The lack of contact (with J.) that Mr. P. has had since the October 26 trial date is largely the product of decisions he made. I have concluded that this should not be condemned or looked at solely in a critical sense. I have come to that conclusion because I believe it is in J.’s best interest to do so. What Mr. P. does from this point in time in terms of contact with J. is going to dictate his relationship with J. in the future.
[27] When discussing access, both parents indicated the other parent should be entitled to block periods of unsupervised access. This is as close as either parent came to conceding that the other parent could provide appropriate child care for at least that period of time.
( c ) The desirability of maximizing contact between the child and both parents;
[28] Both parents testified as to the efforts they would make to see that the other had maximum contact with their child given that they would be living at different ends of the country. The history of their lack of cooperation causes me concern in this regard. The parents would appear not to be at a stage where they can put their personal animosity aside in the interests of their son.
[29] K. M., since the current order which provided D. P. with unsupervised access, made an application to vary the order by having the access supervised. This application never came forward for hearing. K. M. testified she was not seeking to have access supervised but rather than exchange that accompanied the access. The documents filed with the court do not support her statement in this regard.
(d) The views of the child;
[30] The child is only four years of age and no evidence was presented as to his views.
(e) The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
[31] K. M., a single parent with one child was living on a salary of approximately $16,500.00 per year plus child support. Automobile accidents and loss of employment cut this income almost in half. She was in the process of selling her home she and J. had lived in since the separation as she could no longer afford to remain there. She renewed her relationship with her former husband who lives alone in a home in Victoria and earns approximately $67,000.00 per year. She had decided to relocate and live in British Columbia. She believes this move will allow her to provide more satisfactorily for she and her son and, further, give her an opportunity to get on her with her life.
(f) Disruption to the child of a change in custody;
[32] K. M. has been J.’s primary caregiver for all of his life. Despite the suggestions of Mr. P., there is no evidence from which I could conclude that J. has not been properly cared for while in the care of his mother. To have him removed from this relationship would be a disruption in his life.
(g) Disruption to the child consequent on removal from family, schools, and the community he or she has come to know;
[33] Given J.’s age, I find the only real disruption to him on a removal from his current community would be the loss of his regular access with his father. D. P. has been exercising the allotted access which includes overnight on weekends on a regular basis since ordered by the court. He testified his son is happy to see him and enjoys the time they spend together.
OTHER CONSIDERATIONS
Uncertainty as to the proposed plans of care of the parents
[34] Both parents stressed the uncertainty of the other’s plan of care. Both parents have valid reason for such concerns. S.F. is a former husband and not a stranger to Ms. M.. However, the decision to move with him to British Columbia does cause concern. The relationship did not work out on the previous occasion and the parties have not reunited on a full-time basis at this time. As a member of the Armed Forces, Mr. F. is subject to transfer.
[35] D. P., on the day of trial, was, by court order, not permitted to live in the home that is the basis of his plan of care. Since the hearing, his Undertaking has been altered to allow him to reunite with Ms. M. and the children in their home. He acknowledges that his common-law partner is in an acrimonious situation with her children’s father. His income is going to be reduced considerably in the next few months. The addition of a four-year old male child could quite possibly cramp the current living conditions in their current residence.
[36] Justice Dellapinna, in Paquet v. Clarke, 2004 NSSF 94, speaking to this issue, stated at paragraphs 57 and 58:
[57] We live in a mobile society. Moving from city to city, province to province and even from one country to another is often desirable and in some cases necessary in order for one to obtain the education that one wants to have, to further one’s career, to be with family or to pursue new relationships.
[58] Living in an age of free trade, downsizing and the like, the need for individuals and families to relocate happens with increasing frequency. When a so-called traditional family of two parents with children are faced with a decision of whether to move from one locale to the other, they weigh all of the benefits against any disadvantages and make a decision based on what they think is best for the family, including their children. When parents are separated and one of those parents is faced with that decision, they go through a similar decision making process, but that process is further complicated by the reality that one parent is likely staying behind and the children will be living predominately with one parent and spending relatively little time with the other. It is understandable in such cases for the non-custodial parent to want to block the move rather than lose contact with their children. This often necessitates the court’s intervention.
[37] The evidence presented at this hearing was the testimony of both parents. Both provided a basic outline of their future plans of care for J. while mainly focussing on their perceived view of the inadequacy of the other as a parent. They both spent considerable time and effort testifying as to the other’s lack of cooperation and how it was detrimental to their son’s interest. The court was provided with little information as to how the parents, as mother and father, related to their child when he was in their care.
[38] Also available to the court was the previously mentioned assessment and the decision of Justice Williams that created the current order.
[39] Both parents are concerned for and love their son. Both plans could appropriately provide for his interests. Both plans are deficient, especially from the perspective of uncertainty which I have previously referred to in this decision.
[40] I find, in this instance, it would be contrary to J.’s best interests to remove him from the care of the parent that has been his primary caregiver since birth.
[41] It is ordered that K. M. shall continue to have primary care and custody of J..
[42] Paragraph 1 and 2 of the current order shall remain in effect. The varied order shall also contain the following provisions:
[43] Prior to making any major developmental decision which would affect J.’s educational, spiritual upbringing, health, medical care, or relationship with the other parent, K. M. shall inform and consult with D. P.. In the case of disagreement, K. M. shall make the final decision.
[44] K. M. shall share with D. P. any information she receives concerning J.’s health, education and recreational activities and will make reasonable efforts to keep him informed of general matters relating to their child. In addition, she will pass on, as soon as reasonably possible, report cards and such other information she would receive relating to their son.
[45] D. P. shall be entitled to seek and receive information relating to J. such as school report cards, medical reports and information relating to his recreational activities. K. M. shall, in a timely fashion, provide Mr. P. with the names of such adults, for example, school teachers and doctors, who would have such information available.
[46] This brings us to the questions of J.’s access with his father and D. P.’s obligation to pay child support.
ACCESS
[47] I find J. enjoys his relationship with his father and will, naturally, miss his current contact. Every effort should be made to ensure that J. has as much contact with his father as possible given the distance that separates them. As stated previously, I remain concerned as to K. M.’s willingness to facilitate such access. While seeking permission to relocate in British Columbia with her son, Ms. M., through her testimony, offered to substantially support their son’s access with his father. She spoke of bringing him to Halifax with her if an when she re-visited the area. She spoke of Mr. F. bringing J. to Halifax with him to be available with his father on occasions he visited the area in the course of his employment. She indicated she would make J. available to Mr. P. if and when he was in Victoria. She acknowledged that J. should spend a significant portion of his summer vacation with his father in Halifax.
[48] This spirit of cooperation sometimes vanishes when the relocation is finalized.
[49] J. should have unfettered access by phone and computer with his father.
[50] I am not satisfied the parties have had enough time to focus on an appropriate access regime for their son given that they would be living at opposite ends of the country. I will retain jurisdiction with regard to finalizing the specifics of access in the event the parties are unable to agree and will allow them to make further submissions to the court.
CHILD SUPPORT
[51] K. M. acknowledged the cost of providing J. with access to his father will have an impact on D. P.’s ability to pay child support. It is open to the parties to agree to a reduction of child support that will acknowledge the cost to Mr. P. of providing access for J.. Another possibility would be making Ms. M. responsible for a portion of the travel costs associated with exercising such access. As in the case of the access provisions, I will retain jurisdiction on this issue to allow the parties to discuss the matter further. In the event the parties are unable to agree, I will allow them to make further submissions on this point.
[52] I would ask that counsel for Ms. M. prepare the order.
J.