A.M.M. v. S.D.M.

A.M.M. v. S.D.M. Court Supreme Court Date 2023-11-29 Citation 2023 NSSC 438 Docket Ken No .1204-007322 Judge/Registrar/Adjudicator Dewolfe, Jean M. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: A.M.M. v. S.D.M., 2023 NSSC 438 Date: 20231129 Docket: Ken No .1204-007322 Registry: Kentville Between: A.M.M. Applicant v. S.D.M. Respondent Judge: The Honourable Justice Jean M. Dewolfe Heard: September 25, 2023, in Kentville, Nova Scotia Written Release: November 29, 2023 Counsel: Marc Charrier, for the Applicant, A.M.M. Kate Seaman and Haileigh Fletcher, for the Respondent, S.D.M. By the Court: BACKGROUND [1] The parties have one child, born March 20, 2013 (“C.”). [2] The parties were divorced by Divorce Order dated November 15, 2022. Pursuant to a Corollary Relief Order issued the same day (“CRO”), Mr. M. has decision making responsibility and primary care and residence of their daughter C., who is currently 10 years of age. [3] The CRO provides that Ms. M. exercise parenting by phone and as recommended by Dr. Michelle Tougas, C.’s counsellor. At the time of the CRO, Ms. M. was incarcerated due to her conviction on a number of tax fraud charges. [4] Ms. M. was released from prison in late December 2022, first on house arrest and then on parole. [5] On March 13, 2023, Ms. M. filed a Notice of Variation Application pursuant to the Divorce Act seeking a variation of the CRO with respect to her parenting time and spousal support. [6] On April 28, 2023, Mr. M. filed a Response to Variation Application stating that there had been no change in circumstances that would necessitate a variation; i.e. seeking continuation of primary care with him. [7] On June 5, 2023, Mr. M. filed a Notice of Motion seeking that he be permitted to relocate with C. from Kentville, Nova Scotia to Stratford, Ontario. [8] Ms. M. gave notice that she is opposed to the proposed move. [9] This matter was heard on September 25, 2023 on the issues of parenting and Mr. M.’s relocation motion. Ms. M.’s spousal support application was adjourned to be heard at a later date. ISSUES: [10] The issues before the Court are: 1. Is there a material change in circumstances of the child so as to justify a change in the parenting arrangements with respect to C.? 2. Should Mr. M. be permitted to relocate C. to Stratford, Ontario? 3. What parenting arrangements going forward are in C.’s best interests? Issue 1: Change in Circumstances [11] Section 17 of the Divorce Act provides for variation of parenting arrangements: 17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively, … (b) a parenting order or any provision of one, on application by (i) either or both former spouses, … … Factors for parenting order or contact order (5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9). [12] A variation application regarding parenting must consider only the best interests of a child: 16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order. (2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. [13] A parenting variation application therefore involves a two-stage inquiry: (i) has there has been a material change in circumstance?; and (ii) is the proposed change in the child’s best interests? i. Material Change [14] Ms. M. was released from prison in December 2022. She initially resided in Cape Breton under house arrest. However, in June 2023 she obtained rental accommodations in Kentville. She seeks either primary care or shared care of C. [15] The Court is satisfied that given Ms. M.’s new circumstances since November 2022, the Court may proceed with the variation application. ii. Best Interests [16] Section 16 (3) of the Divorce Act sets out factors that the Court shall consider in determining the best interests of the child. [17] The Court finds that C.’s best interests are served by remaining in the primary care of Mr. M. In coming to this determination, the Court has considered all the factors set out in s. 16(3), the most relevant of which are as follows: s. 16(3)(d) the history of care of the child [18] The Court accepts Ms. M.’s evidence that she was C.’s primary caregiver until May 2022. Ms. M. was a stay-at-home mother while Mr. M. worked as a Canadian Armed Forces “Snowbird” pilot and as an Air Canada pilot, necessitating that he regularly be away from home. [19] The Court accepts Mr. M.’s evidence that he was involved in the care of C. when he was not working. [20] Mr. M. has had primary care of C. since May 2022. He had, in effect, sole care of her from May 2022 to December 2022, while Ms. M. was incarcerated. s. 16 (3)(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse [21] Following separation, Mr. M. encountered significant resistance from Ms. M. with respect to C. spending overnights at his residence, and spending time with his new partner (now his wife), DM. Ms. M. did not follow Court orders regarding Mr. M.’s parenting. She did not send C. to school on days when Mr. M. was supposed to pick her up. At that time, Ms. M. argued that C. was “not comfortable” with overnights. Mr. M. had no overnight parenting for almost two years , including months when a Court order to the contrary was in place. [22] In December 2021, Ms. M. reported to Child Protection Services (“CPS”) and the RCMP that C. had seen nude photos of DM on Mr. M.’s phone. She did not discuss these allegations with Mr. M. prior to making her reports. Mr. M. and DM denied the allegation, explaining that C. had seen photos of DM on a beach wearing a bikini. The matter was dismissed as “unsubstantiated” by CPS, and no charges ensued. Unfortunately, as a result of the allegations, C. was interviewed by CPS twice at her school. Since 2021, this allegation has twice been “anonymously” reported to CPS and dismissed. Ms. M. denies being that anonymous source. However, this denial is not credible given: (a) the allegation started with her; and (b) CPS did not find it necessary to interview her as part of their investigation in 2022. [23] Ms. M.’s plan for C.’s care during her incarceration was for C. to move to Cape Breton to live with Ms. M.’s Father, despite the disruption to her school, activities, and friends. The Court rejected this plan and placed C. in Mr. M.’s care in Kentville. [24] In light of this background, the Court has significant concerns as to Ms. M.’s ability and willingness to promote C.’s relationship with Mr. M. [25] Mr. M. has restricted Ms. M.’s parenting since she was released from jail. He testified that at times C. has been very distressed before and/or after parenting times with Ms. M., and that he followed C.’s counsellor, Dr. Tougas’ general advice to “go with his gut” and “make a plan and stick to it”. This was supported by Dr. Tougas’ testimony. [26] The Court finds that Mr. M. has monitored C.’s reactions to contact with Ms. M., and has followed Dr. Tougas’ recommendations. Despite Ms. M.’s complaints, Mr. M. did facilitate parenting time with C., and parenting has progressed over time. [27] Mr. M. has followed all orders and Dr. Tougas’s advice. The Court is satisfied that as C.’s primary caregiver he will promote a healthy relationship between C. and Ms. M. s. 16(3)(g) any plans for the child’s care [28] Mr. M. has presented a detailed plan for C.’s care. Ms. M. has not, beyond saying she will keep everything the same for C. [29] Ms. M. testified that she and C. are very close and that she was C.’s primary caregiver prior to June 2022. She noted that both Mr. M.’s and Ms. M.’s family live in “this area”. On cross-examination, Ms. M. admitted both extended families reside in Cape Breton and that no family resides in the Kentville area. [30] Ms. M.’s plan is very thin on details. She is currently unemployed and rents a two bedroom apartment in Kentville, but hopes to buy a home. Despite her original plan to move C. to Cape Breton, she testified that she now plans to keep C. in Kentville so as to maintain her school, friends and activities. [31] C. has done exceptionally well in Mr. M.’s care. In particular, he and DM appear to have worked well with Dr. Tougas to instill C. with more confidence and less anxiety. Dr. Tougas described strategies she has employed to help C. experience less anxiety around transitions, including parenting time with Ms. M. and sleepovers with friends. Mr. M. has followed her recommendations, and supported C. in these efforts. s. 16(3)(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child. [32] Both parties have well cared for C.’s physical well being while in their respective care. [33] Mr. M. has provided excellent care to C. She is excelling at school and in her activities. [34] DM is Mr. M.’s wife. She cares for C. when Mr. M. is away from home. She testified that she and C. have a good relationship. [35] In 2022, Ms. M., at Mr. M.’s, insistence, sought assistance from Dr. Michelle Tougas, psychologist, with respect to C.’s alleged reluctance to attend parenting time with her Dad. Since May 2022, Mr. M. has maintained C.’s regular attendance with Dr. Tougas. [36] Dr. Tougas was qualified by consent as an expert in the area of psychology. She testified that Mr. M. and DM are meeting C.’s needs, supporting her, and are doing well as a family. [37] Dr. Tougas has seen C. with Mr. M. and DM and by herself. She testified that she has been assisting C. to identify her feelings, and has been working with C. on dealing with her anxiety during life transitions and enhancing her comfort level at sleepovers with friends. Dr. Tougas described C. as intelligent and strong, and noted that with supportive parents she will be well placed for success in her life. [38] Mr. M. has provided appropriate support for C. to address her emotional and psychological well-being. C. has forged a good relationship with Dr. Tougas. Mr. M. has acted in C.’s best interests in limiting contact and parenting time while Ms. M. was incarcerated and since her release, and has followed the advice of Dr. Tougas. [39] Ms. M. has had virtually no contact with Dr. Tougas. Ms. M. acknowledged that while C. was on a sleepover, she contacted the parent of the other child attempting to speak to C. to see if she was “OK”. Ms. M. admitted that she does not feel comfortable with C. having sleepovers with friends outside family. She had no insight into how this may cause C. anxiety and she was unaware of Dr. Tougas’ efforts to assist C. in that regard. [40] Ms. M. has not met C.’s emotional and psychological needs. Ms. M. has displayed very little insight into the impact on C. of her actions and words. She did not prepare C. for the possibility of her incarceration. She proposed removing her from school, activities, and friends upon her incarceration. She has upset C. during contact, and has perpetuated C.’s anxiety. Ms. M. appears to have little insight into the trauma she has caused C. through her actions. s. 16(3)(j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child [41] Ms. M. alleges that Mr. M. and DM regularly argue in front of C., that C. is scared to tell anyone else, and is scared her Father will get angry at her if she speaks to him about this. Mr. M. denies this allegation. [42] The Court accepts Mr. M.’s testimony in this regard. C. has resided with Mr. M. for over a year. She regularly has private time with Dr. Tougas. She is thriving in school and in her activities. There is no evidence, other than Ms. M.’s testimony, that C. is afraid of her Father or distressed by conflict in her home. Summary: Issue 1 [43] Having considered the factors set out in s. 16 of the Divorce Act, the Court finds that it is in C.’s best interest to remain in Mr. M.’s primary care. Issue 2: Should Mr. M. be permitted to relocate C. to Ontario? [44] Mr. M. seeks to relocate with C. to Stratford, Ontario. He has presented a detailed plan as to how C.’s needs will be addressed if he is permitted to move. [45] S. 16.93 of the Divorce Act sets out burdens of proof on applications to relocate where there is a pre-existing order. In this case, Mr. M. has had C. in his care for the vast majority of time since May 2022. Therefore, the burden is on Ms. M. to prove that the move is not in C.’s best interests. [s. 16.93(2)] [46] In addition to the general “best interest” factors, which have been considered above, on a relocation application the Court must consider the factors set out in s. 16.92(1)(a) to (g): 16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16, (a) the reasons for the relocation; (b) the impact of the relocation on the child; (c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons; (d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement; (e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside; (f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and (g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance. [47] The Court must balance the disruptions of the proposed move against the benefits to C. As stated in J.E.W. v. W.E.D., 2019 NSSC 141, when considering the question of mobility: [36] ….. the court must analyse the unique facts of each case, from the lens of the child’s welfare, while balancing the stated legislative factors. (emphasis added) “Double Bind” [48] Mr. M. volunteered that he will not relocate without C. However, s. 16.93 (2) provides as follows: (2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate. [49] Therefore, I am not considering Mr. M.’s evidence in this regard. s. 16.92(1)(a) the reasons for the relocation [50] Mr. M. testified that he wishes to spend more time with C. He currently flies from Toronto at the beginning and end of each flight rotation. This means he is away from C. an extra four to six days per month. [51] In addition, Mr. M. has been offered a new flight training position which is Monday to Friday daytime work. This would mean Mr. M. would rarely be away from C. overnight. [52] Mr. M. and DM own a home in Stratford. DM’s family lives in Statford and it is an advantageous location for DM’s career. Therefore Mr. M. proposes that he commute to Pearson airport from Stratford, approximately 1.5 hours each was per day. [53] There is no indication Mr. M. wishes to move in order to reduce Ms. M.’s time with C. Indeed, he has presented a comprehensive plan for significant parenting time. s. 16.92(1)(b) the impact of the relocation on the child [54] C. is well established in Kentville. Mr. M. believes C. will adjust to living in Stratford given the network of family and friends, and the availability of a comparable school, activities and services. [55] C. is familiar with Stratford and has spent time there on several occasions. [56] Dr. Tougas confirmed that C. is an intelligent, capable child. She spoke highly of Mr. M. and DM’s capacity for, and history of, supporting C. [57] Mr. M. correctly pointed out that if Ms. M. returns to Cape Breton (as she testified she will probably do if C. moves) he can arrange direct flights to Sydney, so that C. can see her extended family (on both sides) in a roughly similar time frame as driving from Kentville. [58] Mr. M. is willing to fly with C. and pay for her travel four to five times a year. s. 16.92 (1)(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons [59] Ms. M. was C.’s primary caregiver until May 2022. Mr. M. became C.’s primary caregiver in May 2022. She spent no time with Ms. M. from June 2022 to December 2022 and no overnights from January 2023 to May 2023. She is currently spending one or two weekends per month with Ms. M. s. 16.92(1)(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement [60] Mr. M. has complied with the statutory notice provisions. s. 16.92(1)(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside [61] Not applicable s. 16.92(1)(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses [62] Mr. M. has offered to fly with C. to Nova Scotia at his expense at least four to five times per year. s. 16.92(1)(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance [63] When Ms. M. was C.’s primary caregiver she repeatedly failed to comply with the parenting provisions of Court orders. [64] Conversely, Mr. M. has followed all court orders. Issue 2: Summary [65] The Court finds that Ms. M. has not met the burden of proving on a balance of probabilities that the move will not be in C.’s best interests. [66] While C. is established in Kentville, this must be balanced against the benefit to C. of relocating to Stratford. The move to Stratford will provide C. with more time with her Father and more stability and predictability for her home life with Mr. M. and DM. She is young and adaptable, intelligent and capable. Mr. M. has supported C.’s physical and emotional health and she is excelling in her education, activities and services in his care. Mr. M.’s plan addresses all of C.’s needs, including time with her Mother. [67] The move to Stratford will mean less flexibility of parenting time with Ms. M. However, the Court is reassured that Mr. M. will follow the direction of the Court to ensure significant parenting time for C. with Ms. M. and extended family. [68] The Court finds that it is in C.’s best interests to relocate with Mr. M., therefore permits the relocation. Issue 3: Parenting times after relocation [69] Ms. M. will have parenting time with as follows: A. In even numbered years: i. All of March Break (including both weekends); ii. The first two (2) weeks of July (16 days); iii. The last two (2) weeks of August (16 days); iv. Thanksgiving weekend (3 days); v. The first week of Christmas break from school (7 days); B. In odd number years: i. All of Easter weekend (4 days); ii. The first two (2) weeks of July (16 days); iii. The last two (2) weeks of August (16 days); iv. The second week of Christmas break from school (7 days); C. Any time Mr. M. and C. visit Nova Scotia, Ms. M. will be offered parenting time. D. Should Ms. M. visit Stratford, she would be offered parenting time. E. Any other parenting time as is agreed upon by the parties. F. Reasonable Facetime/video/ telephone contact [70] Mr. M. will be responsible for the cost of transporting C. to Nova Scotia at the times set out above in subparagraphs A and B. [71] Ms. Seaman, please draft the Order. [72] The Court will hear the parties on Costs following the resolution of support issues. Dewolfe, J.