IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: Parker v. Price, 2005 NSSC 273
Date: 20051017
Docket: SFHF-012335
Registry: Halifax
Between:
Sarah Parker
Applicant
v.
Adrian Price
Respondent
Judge: The Honourable Assoc. Chief Justice Robert F. Ferguson
Heard: August 29 & September 30, 2005, in Halifax, Nova Scotia
Written Decision: October 17, 2005
Counsel: Russ Quinlan, for the Applicant
Judith Schoen, for the Respondent
By the Court:
[1] Sarah Parker and Adrian Price are the parents of Morgan Elizabeth Parker-Price, born on June 12, 2000. The couple lived together briefly from July 1999 to November 2000. Since birth, Morgan has shared her time equally with her parents.
[2] Ms. Parker has applied to vary the existing court order to provide Morgan would reside primarily with her and have access with Mr. Price basically every second weekend. Ms. Parker further wishes the right to make decisions affecting Morgan’s life should she and Mr. Price, after consultation, disagree.
HISTORY
[3] The initial order pertaining to the parties’ relationship with their daughter emanated from a hearing in December 2000 with issuance in June 2001. Given the current issues, it is appropriate to note the specific wording of this order, which was apparently consented to by the parties, both of whom had counsel. The order states, in part:
IT IS FURTHER ORDERED that the Applicant and Respondent shall have joint shared custody of the infant child, Morgan Elizabeth Parker-Price, born June 12th, 2000 and shall share the day to day care and control of the child;
IT IS FURTHER ORDERED that the Applicant and the Respondent shall have reasonable access to the child, Morgan Elizabeth Parker-Price, at all reasonable times for reasonable periods of time, upon giving the other reasonable notice of any intended access;
IT IS FURTHER ORDERED that each party shall be responsible for their own transportation costs to effect access on the understanding that both parties are currently residing in Bridgewater, Lunenburg County, Nova Scotia;
IT IS FURTHER ORDERED that the parties shall consult one another on substantial questions relating to the religious upbringing, educational programs, significant changes in social environment and non-emergency health care for the child; in the event the parties cannot reach agreement on any significant issue relating to the child other than child maintenance, the parties agree to submit the issue to mediation before applying to a Court of competent jurisdiction for an adjudication; in the event the parties cannot reach agreement on any significant issues relating to the child other than child custody, access and maintenance, if both parties agree, the parties shall submit the issue to medication before applying to a Court of competent jurisdiction for an adjudication;
IT IS FURTHER ORDERED that each party shall allow the other to obtain any and all relevant information from any and all sources pertaining to the education, religion and medical needs of the child and both parties shall provide all authorizations required to effect this purpose on the request of the other;
IT IS FURTHER ORDERED that the Applicant and Respondent shall provide each other with their current addresses and telephone numbers so that immediate communication between either party with respect to the child is available;
. . .
IT IS FURTHER ORDERED that the Applicant and Respondent shall both continue to have a full and active role in providing a sound moral, social, economic and educational environment for the child and to continue that support which the child has received to date;
IT IS FURTHER ORDERED that as the parties are sharing care of the child each shall be responsible in proportion to their respective incomes for all expenses and costs relating to the child and neither party shall pay direct child support to the other at this time;
[4] Ms. Parker briefly left the Province with Morgan in 2001 which curtailed Morgan’s relationship with her father.
[5] In September 2001, an order was issued which stated, in part:
IT IS HEREBY ORDERED THAT:
1. The Order issued June 28, 2001, is hereby rescinded.
2. The Applicant Adrian Price shall have sole custody of he parties’ daughter, being Morgan Elizabeth Parker-Price born June 12, 2000.
3. The Respondent, Sarah Parker shall immediately deliver the child to the Applicant/Father in the Province of Nova Scotia within two (2) days of the issuance of this Order.
4. In the event the Respondent fails to comply with Paragraph 3 of this Order, the Applicant shall be entitled to remove the child from the Province of Ontario either personally or by designated agent. The Applicant/Father shall be entitled to seek enforcement as contemplated by Paragraph 8 of this Order.
5. The Respondent, Sarah Parker shall have access to the child as determined by a court of competent jurisdiction or as otherwise agreed between the parties in writing.
. . .
7. This matter shall return to Court on the 18th day of September, 2001 to permit the Respondent, Sarah Parker to return to the jurisdiction and address the present issues with this Honourable Court.
8. All sheriffs, deputy sheriffs, constables and peace officers shall do all such acts as may be necessary to enforce this order and for such purposes they, and each of them, are hereby given full power and authority to enter upon any lands and premises whatsoever to enforce the terms of this order.
[6] Note this order rescinded the previous order which acknowledged and provided for a joint and shared custody relationship and placed the responsibility for providing for Morgan totally with Mr. Price.
[7] A month later (November 2002) the parties, again with counsel, entered into an order that restored the joint/shared custody relationship. The order provided Morgan would live with both parents rotating weekly on Sundays at 4:00 p.m. There was no mention of child support with the exception of paragraph 11 which stated:
11. The Applicant/Father shall be the parent eligible to claim Morgan as a spousal equivalent for income tax deduction purposes as well as the Child Tax Benefit on Morgan’s behalf commencing in the taxation year 2001. The Applicant/Father shall provide the Respondent/Mother with one-half (½) of the monthly Child Tax Benefit commencing October, 2002. This payment shall be considered child support and enforceable as such pursuant to the Maintenance Enforcement Act. If the financial circumstances of the parties change whereby one parent is earning significantly less than the other the issues of the spousal equivalent deduction, Child Tax Benefit and child support shall be reviewed.
[8] Ms. Parker has married Tim Chaisson . They have a home in Waverley and are both steadily employed. Mr. Price, at the time of Ms. Parker’s application, lived in Spryfield. He has since moved to an apartment in the Waverley area minutes by car from Ms. Parker’s residence. He is employed as a labourer. Historically, his employment has been seasonal. He currently has a position that, although seasonal, could turn into steady employment.
[9] Morgan began attending school in the Waverley area in September 2005.
LAW
[10] This application is governed by the Maintenance and Custody Act. Of particular relevance are the following sections:
18(4) Subject to this Act, the father and mother of a child are joint guardians and are equally entitled to the care and custody of the child unless otherwise
(a) provided by the Guardianship Act; or
(b) ordered by a court of competent jurisdiction.
(5) 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.
. . .
37(1) 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 of the last variation order
[11] I have received and considered case law presented by counsel on the issue of establishing a change of circumstances since the date of the existing order. Most of the authorities deal with a requested variation of an order made pursuant to the Divorce Act but are applicable in this instance.
[12] In Talbot v. Henry, 25 R.F.L. (3d) 415, the Saskatchewan Court of Appeal dealt with this issue in considerable detail. Vancise, J.A. stated at paragraph 39:
. . . Thus the reviewing judge is bound to conduct the inquiry having regard to the following principles:
(1) The order is presumed to have been correctly made and it is presumed that all relevant inquiries were taken at the time. That is so whether the order was contested or made by consent.
(2) The original order is presumed to be in the best interests of the children, and the trial judge hearing an application to vary may not go behind the initial order or review its propriety.
(3) There must have been a change in the condition, means, needs or other circumstances since the custody order; and the change must be a material change, such that had it existed at the time of making of the initial order, the trial judge might have ordered otherwise.
(4) Of necessity there must be a determination of what the needs of the child were at the time of the order but that does not include an inquiry into the circumstances surrounding the granting of the order.
(5) The change in circumstances does not reopen the entire issue or require the Court to reconsider the issue of custody. The change in circumstances must affect the best interests of the children to such an extent that it would no longer be in their best interests for the order to stand.
(6) The burden of proof rests with the person seeking to vary the custody order. The standard is proof by a preponderance of probability which must be applied rigorously. In so doing that tribunal must be satisfied on the totality of the circumstances not only that a change has occurred but that the change is of a material nature requiring that it is in the best interests of the children that the order be varied.
(7) The power to order the change must be exercised with care and the existing order will not be disturbed unless it is clearly demonstrated that such a change will be in the best interests of the child as determined by that change.
(8) A judge hearing an application to vary is not sitting as an appellate court; that is, to consider whether the original order should have been made--it is presumed to be correct--he must determine whether there has been a material change. See Carter v. Yablonski (1989), 75 Sask. R. 269.
(9) Reference to conduct of the parties is governed by ss. 17(6) and 16(9), which sections have regard to past conduct of a party only if it is relevant to the ability of a person to act as a parent and provided the conduct arose after the original order.
Thus there is a two-stage inquiry: (1) The reviewing judge must determine whether there been a change in the condition, means, needs or other circumstances of the children. In determining whether there has been a change, substantially different considerations apply. The parties are not in pari passu, and the person seeking to vary the order bears the onus as described above of demonstrating a material change which will adversely affect the needs of the children. If there has been no material change, the inquiry ends there and the order remains. (2) If the applicant has demonstrated a material change in the conditions, means, needs or other circumstances of the child, the Court must decide whether the material change is such that the best interests of the child require a variation of the order. In other words, if there has been a material change, then the only consideration with reference to that change is the best interests of the child.
[13] Justice Goodfellow in Glavin v. Glavin (1994), 130 N.S.R. (2d) 161 (SC), stated at paragraph 7:
The starting point in any application to vary is an acknowledgment that the existing order is valid and any variation must be based upon the applicant establishing, on a balance of probabilities that there has been a change in the condition, means, needs or other circumstances of either former spouse or of the child occurring since the last order. It is inevitable that there will be changes in the condition, means, needs and other circumstances of the parties and of a child, with the passage of time, and not all changes will warrant any variation in the existing order. Usually there a pluses and minuses that tend to balance out. In a custody variation application there will only be a change if the best interest of the child, as determined by a reference to that change, requires variation of the custody access arrangement.
[14] Ms. Parker acknowledged she bears the burden of proof in this instance and, in her brief, states:
Argument
I respectfully submit that the evidence will show that the changes in circumstances, to both the child and the parents, in the present case are as follows:
1. There has been an increasing lack of communication with Mr. Price since the last order.
2. Morgan is of school age now, which in itself implies a different daily routine and developmental needs.
3. Morgan, since the last order, is now living in a house with her Mother, rather than an apartment.
4. Mr. Price has changed residences (which can be considered a positive change).
5. It has developed that there are differences in parenting skills between the two parties.
6. Morgan is now living in a two-parent household at her Mother’s house.
7. Because of the school schedule, Mr. Price will no longer be able to rely on the daily babysitting services of his mother or grandmother, which he had in the past.
8. Mr. Price has not (sic) following terms of order regarding providing phone numbers, Father’s Day access, and providing income information.
[15] Mr. Price submits the evidence does not support a conclusion the circumstances between Morgan and her parents has changed sufficiently to conclude it would be in Morgan’s best interest to vary the current parenting arrangement. He submits Morgan is flourishing under the current shared custody regime and her attending school in and of itself should not constitute a reason to revisit the family relationship.
DECISION
[16] Morgan, having recently turned five, has every reason to believe that her relationship with her parents is on an equal footing. She lives equally with them and they share the same authority and responsibility as to her day-to-day and future interests.
[17] Ms. Parker’s application to vary is twofold. Although she submits the term “joint custody” would remain, she requests authority to make the ultimate decision affecting Morgan’s life in the event she and Mr. Price are unable to agree. The previous court orders noted here in some detail did not provide such authority to either parent. The more obvious request of Ms. Parker is that Morgan’s time spent living with her father be reduced.
ULTIMATE DECISION MAKING AUTHORITY
[18] Apart from a period of time in 2001 when Mr. Price, by court order, was given complete authority and control of Morgan (which he relinquished), the parties have parented their child without either party having the ultimate authority to make decisions as to Morgan’s welfare. Ms. Parker submits the communication between she and Mr. Price has lessened over time; that there is evidence of a difference in parenting skills and Mr. Price has shown a lack of interest in participating in decisions that affect Morgan’s life.
[19] It is not uncommon to find court orders, consented to or otherwise, that stipulate one parent, in the event of disagreement after consultation, has the ability to make a final decision pertaining to their child’s interests. However, it must be noted that these parents have been functioning for the child’s entire lifetime with court orders indicating no such final authority exists.
[20] I do not find the evidence supportive of Ms. Parker on this issue. The parents have operated as equals for about five years and Morgan has not suffered under this arrangement. The evidence is to the contrary – she is currently functioning well. There may be some difference in the parenting skills of the parties which I suggest would be normal in the case of any two parents. Any such difference has not, as of yet, had a negative affect on Morgan or is there any evidence to support a view such affect is imminent or forthcoming. I further find that there is no evidence to conclude that Mr. Price is responsible for an increasing lack of communication, if such be the case. Communication usually requires cooperation. Mr. Price would appear to be more prone to cooperation than Ms. Parker. It was Ms. Parker and not Mr. Price who violated the court order and deprived a parent of access to a child. It was Mr. Price who voluntarily restored Ms. Parker to a position of parental equality after it had been stripped from her by court order. Ms. Parker chose her current location to suit her adult relationship by moving into the home owned by her current partner. Mr. Price moved to the area of Ms. Parker’s new residence to be closer to his child and make the family relationship more viable. Mr. Price apparently agreed and did not oppose Ms. Parker’s views as to Morgan’s doctor and place of schooling. What could be considered cooperation on Mr. Price’s place is characterized by Ms. Parker as a lack of interest in their daughter’s welfare.
[21] Morgan’s starting school is not in and of itself a reason to vary a five-year regime of equal parental responsibility as joint custodians of their daughter.
[22] I conclude it would not be in Morgan’s interest, at this stage of her life, to be sent a message that one parent is more concerned or has more interest or control over her life than the other.
CHANGE IN THE TIME SPENT WITH EACH PARENT
[23] Ms. Parker’s current occupation allows her to personally send Morgan off to school and be available when her school day ends. Mr. Price’s occupation will require Morgan to spend time in daycare while he is employed. As previously noted, he hopes his current employment becomes full time. Even in the event his employment turns out to be seasonal, Morgan would still be required to attend after-school daycare for seven or eight months of the ten-month school period.
[24] Attending school is a change of circumstances for Morgan and not one that was specifically addressed in the previous orders. Attending after-school daycare is also something that has not been previously required of Morgan. Such an after-school arrangement is an ordinary occurrence in the lives of many young children. In this instance, however, such care must be measured against the backdrop of a child living in two separate homes on an equal basis. She would further be only attending a daycare facility for one half the time and, therefore, not be participating in the same manner as the other children in the program.
[25] I conclude, for the purpose of examining the current shared custody arrangement, a change of circumstances has been established and it would be in Morgan’s best interest to acknowledge the change with a variation of her current living arrangements. However, I further conclude a change of the magnitude as proposed by Ms. Parker is extremely contrary to Morgan’s best interest. Morgan has spent her entire life wherein she has two parents equally involved in her life. She has always had two homes. She has fostered well in this arrangement. To reduce Morgan’s time with her father to the extent suggested by Ms. Parker would be a drastic change for her and, quite possibly, if not probably, disruptive to what, up until now, has been a positive living experience for her. Mr. Price’s parenting time with Morgan shall be as follows:
School Year or the Months of September Through to and Including June
[26] On a four-week rotation for three weekends from Friday at 5:00 p.m. to Sunday at 5:00 p.m. On the other weekend, from Wednesday at 5:00 p.m. to Thursday when Morgan shall delivered to her school bus stop.
[27] Ms. Parker’s parenting time with Morgan shall be for that period of time not designated as the parenting time of Mr. Price.
July and August
[28] The parents shall share these months and, unless otherwise agreed, they will do so in two-week allotments in each month.
[29] The aforementioned will require a deletion of paragraphs 3, 4 and 5 of the current order to be replaced with paragraphs that correspond with this decision. Paragraphs 6, 7, 8, 9 and 10 will remain in effect.
[30] Ms. Parker has created, in her view, an ideal setting in which to provide for Morgan’s upbringing: A house instead of an apartment; a two parent family instead of a single-parent family; an employment situation which enables her to avoid the necessity of daycare providers. Her evidence leads me to conclude she believes it is in Morgan’s interest for Mr. Parker to withdraw substantially from his involvement with her and allow for Ms. Parker and her partner to provide for their child. I conclude Morgan has been encouraged to refer to Ms. Parker’s partner in a manner that uses the words “Dad” or “father.” I conclude Morgan has been provided with information that led her to conclude her contact with her father would be lessened when she started school. These occurrences have not been in Morgan’s best interest.
[31] Mr. Price has not indicated his desire to lessen his responsibilities toward or involvement with his daughter – an involvement that has, up to this time, been positive for Morgan. He consented to Ms. Parker, in 2001, returning as an equal parenting partner. He has not exhibited any animosity towards Ms. Parker’s new-found successful relationship. It would serve Morgan well if Ms. Parker recognized Mr. Price’s interest in their daughter as positive for Morgan and encourage, not discourage, such continued participation.
CHILD SUPPORT
[32] A variation in the parenting time places Mr. Price in the position where he is required to pay child support to Ms. Parker in accordance with the Child Support Guidelines. Mr. Price’s income tax return for 2004 indicates his total income (line 150) as $22,213.00. In his financial statement filed by him in August 2005, he indicates his income, if employed for a period of twelve months, would be $24,092.00. He has testified that, historically, as a labourer, he is unemployed and in receipt of employment insurance on an average of two or three months per year.
[33] I conclude for the purpose of establishing Mr. Price’s responsibility to pay child support that his income is $22,213.00 which would require a payment by him of $180.00 per month. I order that payment begin on November 1, 2005, and to be paid through the Maintenance Enforcement Program.
[34] I would ask that counsel for the Applicant prepare the order.
[35] As the success of this application has been somewhat mixed, it would be my inclination not to award costs to either party. If any party does wish to be heard as to costs, I would request they make an application for such an appearance within one month the date of this decision.
J.