J.M. v. E.M.

J.M. v. E.M. Court Supreme Court Date 2005-08-31 Citation 2005 NSSC 259 Docket SFSNF 21159 Judge/Registrar/Adjudicator Forgeron, Theresa M. (Honourable Justice) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) CITATION: J.M. v. E. M., 2005 NSSC 259 Date: August 31, 2005 Docket: SFSNF 21159 Registry: Sydney Between: J. M. APPLICANT v. E. M. RESPONDENT Editorial Notice Identifying information has been removed from this electronic version of the judgment. Judge: JUSTICE THERESA M. FORGERON Heard: AUGUST 22, 2005 Oral Decision: AUGUST 31, 2005 Counsel: FRANCES MALONEY, COUNSEL FOR THE APPLICANT E. M., RESPONDENT By the Court: Background [1] This matter concerns separate applications filed by each party to vary the current order respecting the parenting of the child, S. G. M. who was born on May *, 1999. Mr. M. seeks unsupervised access to his son. Ms. M. seeks a graduated access regime which will commence with supervised visits, followed by a period of supervised access exchanges, and then advancing to unsupervised visits if all progresses satisfactorily and provided Mr. M. successfully completes the various steps proposed by Ms. M.. In the event Mr. M. does not, Ms. M. requests that access be terminated. [2] The matter was originally before the court by virtue of an application filed by Mr. M. on July 7, 2004 and by Ms. M. on July 8, 2004. These applications were concluded by a consent order which issued on April 1, 2005. The matter was then remitted back to the court by the Conciliator as the YMCA supervised access and exchange program was unable to accommodate the specific terms of the order. [3] The trial was held on August 22, 2005. Mr. M. was self-represented and Ms.M. was represented by counsel. In addition to the parties, Mrs. S. A. H., Ms. J. M., Ms. Angela Steele-Hall and Ms. A. M. M. testified. Further the Affidavits of Ms. J. M. and Ms. J. M. were considered. Law [4] The applications are made pursuant to section 37(1) of the Maintenance and Custody Act which states: 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. [5] The Court must only consider the best interests of the child pursuant to section 18(5) of the Act, which 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. R.S., c. 160, s.18; 1990, c.5, s.107 [6] In making this decision, I accept that the previous orders were correct and appropriate at the time such were made. The variation application can only proceed if there has been a material change in the circumstances since the rendering of the last order. Material change means a change which altered the child’s needs or the ability of the parents to meet those needs in a fundamental and significant way. [7] I find that there has been a material change as contemplated in section 37 of the Act for several reasons. First, the order created a notice requirement which is no longer feasible as Mr. M. does not have access to his work schedule two weeks in advance. Therefore the notice provisions of the current order can no longer be met. Second, the access times as specified in the current order are unmanageable to the access supervisors employed by the YMCA. Third, and most importantly, no access has taken place since January 2005 because the terms of the order cannot be fulfilled. Given these factors it is clear that a material change has been proven and the variation applications are properly before the court for consideration. [8] The issue to be determined at this stage is whether the variation order should provide for supervised or unsupervised access. The burden rests upon the party seeking the variation of the current order. In this case, as each party is seeking specific changes to the current order, each party bears the onus of proof in relation to his/her application. [9] A child is entitled to share in the daily life of his/her parents unless such is not in the child’s best interests to do so. Access is the right of the child and not the right of the parent. There is no presumption that contact with both parents is in the best interests of the child, although such contact generally is. In this regard, I reference Young v. Young (1993) 160 N.R. 1 (S.C.C.) and Abdo v. Abdo (1993) 126 N.S.R. (2d) 1 (C.A.). [10] The comments of Daley J. in Neill v. Best (1995) 147 N.S.R. (2d) 54 (F.C.) at paragraph 27 are worthy of note in the access decision to be determined: [27] The welfare of the child rule is paramount. Access is not a reward for parenting or for not having custody. It is an active, productive, positive relationship that requires security, knowledgeable care, communication and understanding. It requires two adults and a child supporting each other with meaningful and healthy growth toward responsible adulthood. It requires the access parent having a clear understanding of what is involved. Access law should not encourage risk taking and experimentation with the emotional and physical growth of an infant child. It should look for benefits to the child, not neutral or potentially negative relationships. [11] Supervised access is not a long term solution to access problems which usually arise in high conflict custody and access cases where distrust and negative parental allegations abound. Supervised access is appropriate in specific situations, some of which include the following: [a] where the child requires protection from physical, sexual or emotional abuse; [b] where the child is being introduced or reintroduced into the life of a parent after a significant absence; [c] where there are substance abuse issues; or [d] where there are clinical issues involving the access parent. [12] Supervised access is not appropriate if its sole purpose is to provide comfort to the custodial parent. Access is for the benefit of the child and each application is to be determined on its own merits. Factual Findings [13] The following findings, which I have made and which are set out below, are relevant to the determination before the court. 1. Ms. J. M. was assaulted by Mr. M. in 2002. As a sentence, Mr. M. was placed on a period of probation which ended in June 2004. The assault has understandably caused Ms. M. to be anxious and apprehensive. The assault created an environment of distrust. 2. Once Mr. M. successfully completed the terms of the probation order, he attempted to contact Ms. J. M. by telephone with the desire of reestablishing access to S.. Mr. M. hoped that the parties would be able to put the past behind them so as to communicate on matters related to S.. As Ms. J. M. did not answer the phone when Mr. M. called, Mr. M. left several telephone messages on Ms. M.’s answering machine. The parties did not actually speak to each other during this period. 3. Ms. J. M. interpreted the phone messages of Mr. M. as harassing and threatening. As a result she made an application for a peace bond. 4. Mr. M. originally contested the peace bond application. There were approximately three adjournments. Mr. M. did not appear for the actual peace bond hearing as he could not miss further time from work. The peace bond was granted in Mr. M.’s absence. The no contact provision of the peace bond has provided Ms. M. with a measure of security that was absent when contact between the parties was permissible. 5. Ms. J. M. kept the taped telephone messages and played them during the hearing. There were seven telephone messages left by Mr. M. - one on each of the following dates in 2004: June 18th, June 22nd, June 25th, June 27th, June 28th, July 5th, and July 6th. 6. I find that the taped messages were neither harassing, nor threatening. During the last message, Mr. M. did indicate that if he was not provided with visits to S., he would continue with his court application to obtain access given the lack of response from Ms. M. to his access requests. This comment was not a threat, but rather a statement of the obvious. 7. Mr. M.’s phone messages were polite and appropriate except for the last message of July 6th as this message contained one word which is an expletive. In frustration, Mr. M. used this expletive on one occasion when requesting access. It is inappropriate for Mr. M. to use such language in any communication involving Ms. M., no matter what level of frustration had been reached. 8. Ms. Angela Steele-Hall, a social worker employed by the YMCA and responsible for the Supervised Access and Exchange Program, testified. She became involved with the parties as a result of a referral stemming from the interim consent order dated September 28, 2004 and which issued on November 19, 2004. This order stipulated that access would commence by twelve supervised visits through the YMCA program. Further the parties were to attempt to negotiate an access plan which would take effect following the conclusion of the supervised visits. Other conditions included a no-contact provision, a consolidation of the competing applications filed by both parties in July 2004, and the requirement to place the child’s best interests as a priority. 9. Ms. Angela Steele-Hall initially met with the parties, however the actual supervisor of the visits was a young man, Jeff Aitkens who had some training as to his role. I accept the evidence of Ms. Angela Steele-Hall that the visits went well and that no concerns were expressed by the access supervisor as to the visits. 10. Mr. M. did not attend the last three scheduled visits at the YMCA program. He missed the visit on January 15, 2005 as he had to take his mother to the hospital for an unforeseen emergency as there was no one else available to do so. The consecutive visits on January 22nd and 23rd were missed as Mr. M. was stricken with the flu. I accept the evidence of Mr. M. in this regard. Current Order [14] The applications filed by the parties in July 2004 concluded with a consent variation order which was reached on December 15, 2004 and which issued on April 1, 2005. Each of the parties were represented by counsel. The relevant terms of the consent varied order are set out below: 1. The Respondent, E. M., shall have access to the dependent child, S. G. M. born May *, 1999, on Christmas Day from 1:00 p.m. until 4:00 p.m. at his residence. The child will be transported on that day by the Applicant’s sister, J. M.. 2. It is further ordered that the Respondent, E. M., shall provide to the Applicant’s sister, J. M., by telephone, his employment schedule two (2) weeks in advance of his access visits. On his days off, should they be school days, he will exercise access to the child from 3:30 p.m. until 7:00 p.m. Pick up and drop off for the child shall be at the YMCA through their access exchange program. 3. It is further ordered that should the Respondent, E. M., have a weekend off, he shall exercise with his aforementioned dependent child on either Saturday or Sunday from 12:00 noon to 4:40 p.m. Again during this access, the child will be picked up and dropped off at the YMCA through the access exchange program. 4. It is further ordered that during the course of this Order, the Respondent, E. M., shall not make any phone calls to J. M. for any reason at all time. 5. It is further ordered that during the course of this Order, the Respondent, E. M., shall only make telephone calls to J. M. for the purposes of providing her with two (2) weeks advance notice of his employment schedule and indicating his days off for the purposes of access, or in the event of an emergency. 6. It is further ordered that neither party shall attempt at any time to use the child as a means of getting at the other party but instead, are to put the child’s best interests as priority. [15] The current order does not provide for supervised access, rather the parties were mandated to utilize the services of the YMCA program for supervised access exchanges only with all drop offs and pick ups to be at the YMCA, with the exception of the Christmas Day visit. Position of the Parties [16] Ms. M. is requesting a further period of supervised visits because Mr. M. has not had access since January 2005. She feels that a period of supervised visits will assist with the re-introduction of S. to his father and further such supervised visits will be a means of determining Mr. M.’s level of interest and love for S.. Ms. M. is concerned that Mr. M. does not have the level of commitment that is required for a successful parent child relationship. Ms. M. is concerned that S. will be hurt. [17] Mr. M. seeks unsupervised access to S. so as to resume the positive parent child relationship which existed in the past. Conclusion [18] In reaching my conclusion I have reviewed all of the evidence. I have considered the demeanor of the witnesses and their presentation, inclusive of their responses during cross examination. After considering the evidence, the legislation, and the law, I find that unsupervised access is in the best interests of S. for several reasons. [19] First, I find that Mr. M. is very much interested in re-establishing a loving and nurturing relationship with S.. I accept his assertions as genuine. Mr. M. wants to have a relationship with S. and has attempted to do so through this ongoing court process. His focus was on S.’s best interests. A period of supervised visits is not necessary, nor appropriate, to judge the sincerity of Mr. M.’s motives. [20] Second, S. knows his father. The parties and S. lived together for a number of years prior to separation. Following separation, S. visited with his father, although there were periods when the access visits were interrupted for significant periods of time. The supervised visits of December/January proceeded without incident and absolutely no concerns were expressed by the access supervisor. I accept this evidence and the evidence of Mr. M. as it related to the lack of relationship difficulties between he and S.. Had there been transitional difficulties, such would have been noted by the access facilitator. [21] Third, there is absolutely no evidence that S. is at risk and requires the protection of a supervised access program. To the contrary, I accept the evidence of Mrs. H. who has known Mr. M. for approximately two and one-half years. Mrs. H. is a good friend of Mr. M.’s girlfriend, Ms. L., and has had the opportunity of observing Mr. M. on a frequent basis as a result. [22] Mrs. H. has not observed Mr. M. misbehave at any time, nor has she observed Mr. M. to be anything other than a social drinker in situations which were appropriate. Mrs. H. also described the excellent relationship which Mr. M. has with Ms. L.’s child. I accept Mrs. H.’s observations as indicative of the man who Mr. M. is at this time in his life. There are no substance abuse issues and there are no clinical mental health issues at play. [23] Fourth, it is in S.’s best interests to spend time with his father without the limitations and restrictions which are inherent in any supervised access setting, no matter how comfortable such a setting may be. Limitations and restrictions relate to time, activities, and third party contact. I accept the evidence of Mr. M. that S. had expressed boredom during one of the supervised visits. S. has the right to visit with his father in his home, to interact with his paternal grandmother and to get to know all third parties who are important in Mr. M.’s life. In this way a father-son bond can be forged which will be in S.’s best interests. There is no reason why a further period of supervised visits is necessary. [24]. Although, I have found that supervised visits are unnecessary, I will nonetheless permit Ms. J. M., Ms. M.’s sister to be present for the first visit. I do so as Mr. M. stated that he had no difficulty with J. M. attending and such may make the transition to unsupervised visits more palatable to Ms. J. M.. If Ms. J. M. will be attending the first visit, she will notify the access facilitator. [25] Despite the fact that unsupervised access has been ordered, I find that it is in the best interests of S. that the parties have no direct communication, except to the extent that I will outline in this decision. All access arrangements will be made through an access facilitator. [26] Given the evidence of Ms. J. M. and the evidence of Mrs. H., I designate Mrs. H. as the access facilitator. In the event Mrs. H. is not available, then Mr. M.’s mother will be the access facilitator, however the primary contact person will be Mrs. H.. I accept Mr. M.’s evidence that his mother had some serious medical difficulties, but is currently in excellent health and is able to manage in the role of an access facilitator. [27] I was impressed by Mrs. H. and find that her personality and temperament are well suited to the task of an access supervisor. I find that Ms. J. M. is occupied in her own life with her new baby, that she has moved frequently, and that she has found her involvement as an access facilitator to be difficult. I also find that J. M. has a tendency to interpret Mr. M.’s requests in a negative light and does not respond in a timely fashion to access requests. [28] I have chosen not to use the YMCA supervised access and exchange program as this program was not sufficiently flexible to meet the unique demands of these parties and specifically given Mr. M.’s employment schedule. [29] Mr. M. is unable to provide two weeks notice of his employment schedule. Unfortunately for all concerned, Mr. M. is employed in an occupation where his employment services are not known except on a week to week basis. This variable cannot be changed at this time and access must be structured accordingly. The Court must not ask Mr. M. to choose between his employment and access . [30] Mr. M. will ordinary have two days off each week, which days will vary depending upon the needs of his employer. Mr. M. stated that his last week of vacation is scheduled from September 2nd to September 8th. Access will be reintroduced during this vacation period. Mr. M. shall have access to S. on September 2nd from 11:00 a.m. until 1:00 p.m.; on September 4th from 10:00 a.m. until 2:00 p.m.; and on September 6th from 10:00 a.m. until 6:00 p.m. [31] Commencing the week of September 11, 2005, Mr. M. shall have access to S. on two days each week, which days shall be the days when Mr. M. is not scheduled to be working. This access shall be from noon until 6:00 p.m.. if S. is not in school and from 4:00 p.m. until 6:30 p.m. if S. is in school. In order to schedule the access visits, the parties shall utilize the services of the access facilitator. Ms. M. shall provide the access facilitator with her telephone number where she can be contacted to facilitate this order. [32] When Mr. M. receives his weekly work schedule, he shall at the first reasonable opportunity, contact the access facilitator and advise her of the schedule. The access facilitator shall then advise Ms. M. of Mr. M.’s days off. Mr. M. shall have access to S. on his days off at the times noted in this decision. Ms. J. M. shall have the right to deny access to a maximum of two occasions per month if S. has pre-scheduled appointments or is otherwise unavailable for access. When denying access, Ms. J. M. shall state her reasons to the access facilitator. [33] Mr. M. shall be responsible for taking S. to any organized activity that is scheduled during the access. Ms. M. shall provide the access facilitator with a written schedule of S.’s organized activities in September when the activity list is finalized. On the list, Ms. M. shall state the place and time of the activities, and the name of the coach or third party supervising such activities. This information will be transferred in a notebook designated for access communication and transferred between the access facilitator and the party transporting S. for access each week. Mr. M. shall purchase the notebook. [34] Ms. M. shall also outline in the notebook the dates of any professional appointments involving S. and with respect to his health, education, or general welfare, together with the outcome of all such professional appointments, inclusive of the name of the professional involved. Instructions with respect to homework, medication and other particulars shall be conveyed via the access notebook. Ms. M. further shall provide the name and address of the school where S. is attending to include the names of all teachers involved in S.’s care as well as timely notification of parent/teacher meetings and school concerts in which S. is involved. Mr. M. shall have the right to communicate with all professionals involved in S.’s care without the further authorization of Ms. M. and to obtain information respecting S., other than S.’s current address, from such professionals. Mr. M. shall have the right to attend parent/teacher meetings, concerts and school activities without the further authorization of Ms. M. although such parent/teacher meetings shall be scheduled at different times for the parties. [35] Notwithstanding any other term in this decision, and for Christmas 2005, Mr. M. shall exercise access to S. from 1:00 p.m. until 5:00 p.m. on December 25th. Notwithstanding any other term in this decision, Ms. M. shall have S. in her care on December 24th at 5:00 p.m. until December 25th at 1:00 p.m. and from December 25th at 5:00 p.m. until December 26th at 5:00 p.m. [36] In an effort to reduce conflict, neither party shall have any direct communication with the other for any reason, other than as stated in this decision. [37] The parties shall place S.’s best interests as a priority in all decisions made in respect of this access arrangement. [38] The access provisions shall be reviewed at a hearing to be scheduled in February 2006. At that time evidence will be provided and a decision made as to the appropriate access schedule including overnight access, vacation access, and holiday access, together with a status review as to how access has progressed. This order provides for a temporary access schedule which is intended to increase if such is in S.’s best interests at the review hearing. [39] As Ms. M. quite appropriately does not wish to disclose her address, she [either personally or via a third party] therefore shall be responsible for transporting S. to the residence of Mrs. S. H. for all access pick ups and drop offs, and if Mrs. H. is not available, S. shall be dropped off and picked up at the residence of Mr. M.’s mother. Mr. M. shall not physically be in the area where S. will be transferred for access until ten minutes after the appointed time for access drop offs, and ten minutes before the conclusion of access. [40] If Ms. M. feels comfortable in releasing her address, I order that a third party chosen by Mr. M. shall be responsible for picking up and returning S. to Ms. M.’s residence at the appointed times. Ms. M. shall have the child ready and available for access in such a case. [41] Ms. M. will continue to have sole custody of S. and the current maintenance provisions will likewise be maintained. __________________________ Forgeron, J.