J.A. v. J.R.

J.A. v. J.R. Court Supreme Court Date 2010-11-10 Citation 2010 NSSC 420 Docket 1201-063236, SFHD-062365 Judge/Registrar/Adjudicator O'Neil, Lawrence I. (Honourable Associate Chief Justice, Family Division) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: J.A. v. J.R., 2010 NSSC 420 Date: 20101110 Docket: SFHD 062365/1201-063236 Registry: Halifax Between: J. (R.) A. Petitioner and J. R. Respondent Editorial Notice Identifying information has been removed from this electronic version of the judgment. Judge: Justice Lawrence I. O’Neil Heard: April 26, 28 and 29, 2010, June 1, 4, 8 and 9, 2010, July 8, 9, 26 and 30, 2010 and September 1 and 2, 2010 in Halifax, Nova Scotia Oral Decision: September 10, 2010 Counsel: Peter McVey for the Minister Patrick Eagan, for the Respondent, J. R. Anthony Brunt, for the Respondent, J. R. By the Court (Orally): Divorce [1] This is a decision in the matter of the parties’ divorce and a proceeding under the Children and Family Services Act, S.N.S. 1990, c.5. The evidence in this matter applies to two ongoing concurrent proceedings, although the proceedings were not consolidated, counsel have agreed that the same evidence will apply to the divorce proceeding and the Children and Family Services Act proceeding, hereinafter referred to as a CFSA proceeding. [2] On the issue of the divorce, the parties were married January *, 1999 in C. and have been living separate and apart since 2008. Their marriage certificate is on file. There is no collusion or other bars to a divorce. The parties have lived in Nova Scotia since at least 2000. [3] The Petition for Divorce was filed January 15, 2009 and amended March 9, 2009. An answer was filed April 8, 2009. [4] The court grants the Divorce as requested by both parties on the basis of a permanent breakdown in the marriage. As stated, they have been living separate and apart since 2008 and there is no prospect of reconciliation and there are no bars to the divorce being granted. [5] The court reserves jurisdiction to deal with corollary relief matters still in dispute and to hear the parties further should that be necessary. Otherwise, counsel for the Petitioner is asked to forward the Divorce and Corollary Relief Orders to the court before the end of September 2010. Overview [6] I reserve the right to make references to details of the evidence and to provide additional reasons should that be necessary, and to add references to legal principles given the oral nature of this decision. [7] As stated, the parties were married January *, 1999, separated in 2008 and have four children born April *, 2000; October *, 2001; June *, 2005 and December *, 2006. The children are primarily resident with their mother, pursuant to an interim consent order from a court appearance on June 2, 2009. Mr. R.’s parenting time is every other week-end; some week-days, some evening time and at such other times as the parties agree. [8] Mr. R. left the parties’ home on December 23, 2008, as a result of an alleged assault on Ms. A.. He was charged and made subject to release conditions. The charge was ultimately withdrawn and the conditions were varied. He agreed to a peace bond as part of a plea agreement and the charge(s) were dismissed. [9] Officials of the Minister of Community Services became involved following Mr. R.’s arrest and the allegations of domestic violence. The physical separation of the parties brought about in late December 2008 gave rise to conflict between the parents about the parenting of their children. The parties exchanged accusations about each other. [10] Coincidental with the separation or the last period of time the parties were together, Mr. R. was diagnosed with mental illness, a bi polar disorder. He accepted the service of health care personnel to manage his mental health issues. [11] I am satisfied his state of health poses no concern in an assessment of his suitability as a parent. [12] After ten months of involvement with the family, the Minister applied for a supervision order on October 30, 2009. The matter was first in court on November 6, 2009. On that date, a supervision order was granted at the interim hearing stage and the children remained in the care of Ms. A.. Mr. R.’s court ordered access was continued. [13] The CFSA proceeding progressed through its various stages. At this point, we are at the stage of the first disposition. This disposition hearing commenced April 26, 2010, a date before the outside date for completion of the first disposition. The time for completion of this stage was extended because it was in the best interests of the children to complete the hearing. [14] In addition to evidence from the parties and their witnesses, the court heard from a number of other witnesses whose involvement with this family was a direct consequence of the CFSA proceeding. Position of the Parties [15] The Minister asks the court to continue the terms of the protection order dated January 26, 2010 in a disposition order. In general terms, I describe the minister’s position that way. It seeks the same general conditions. The Minister supports the plan of Ms. A. which is that the children continue to be primarily resident with her. Although it is my impression that the Minister did not strongly advocate her plan over Mr. R.’s plan calling for primary care to be entrusted to him. [16] Both Mr. R. and Ms. A. support the continuing role sought by the Minister. Both Mr. R. and Ms. A., however, are seeking primary care of the children, with generous access by the other parent. [17] I am satisfied that the children remain in need of protective services because there is a substantial risk of emotional harm as that language is used in s.22(2)(g) of the CFSA. That risk arises because of the atmosphere of intense conflict that has existed between the parties and will possibly continue. The parents do not dispute that this is so. Evidence [18] Evidence was heard on twelve (12) days beginning April 26, 2010 and concluding September 1, 2010. Summation occurred September 2, 2010. [19] The evidence generally fell into several categories. I do not propose to go through the various witnesses. I will highlight aspects of their evidence at this time. Ms. A. offered evidence of her role as the primary parent and also evidence to support her conclusion that Mr. R. lacked involvement as a parent due to his disinterest or work commitments. She characterized him as aggressive in their relationship at times and exhibiting signs of his mental illness. Mr. R.’s evidence supported his assertion that he was an involved parent, that work obligations were substantial and that Ms. A.’s commitment to the family lessened with her involvement with R. M. and her increased interest in a social life outside the family. He asserts that Ms. A.’s involvement with R. M. had placed the children in stress and that R. M. himself posed a risk to the well being of the children. [20] The Minister’s evidence detailed efforts to assess the stress the children were under; efforts to lessen that stress and to get to the bottom of the allegations the parties made against each other. In addition, the advice of experts in the area of family life and counselling was offered to the court by the Minister. [21] After carefully considering all of the evidence, I made a number of conclusions about this family. [22] It is clear that Ms. A. was the primary care giver of the children while the couple were together. Mr. R. was the primary “bread winner” and had gained good employment with the *. This couple had achieved a sharing of family responsibilities that in today’s language would be described as traditional. They faced the significant challenge of parenting four young children together. [23] The stress on the family was amplified by the then undiagnosed mental illness of Mr. R.. Coincidental with this reality, Ms. A. became interested in pursuing social opportunities outside the home and employment/training opportunities. In 2008 she became emotionally involved with R. M.. [24] Understandably, Ms. A.’s involvement with R. M. became a source of friction in the home. The parties were living separate and apart in the home over the latter part of 2008. The alleged mutual assaults in the laundry room of the house on or about December 23, 2008, as I stated, resulted in the parties’ physical separation. They remain separated. [25] Under the CFSA and the Divorce Act, 1985, c.3 (2nd Supp.) the court must do an assessment of the best interests of the children. An assessment of what is in the best interest of the children is an imprecise process. The Divorce Act at s.16(8) requires that the best interest of the children be “determined by reference to the condition, means, needs and other circumstances of the child. [26] Justice Goodfellow, in his often quoted decision in Foley v. Foley, [1993] N.S.J. No. 347 stated at paragraph 17: In determining the best interest and welfare of a child, the court must consider all the relevant factors. A diversity that flows from human nature is such that any attempt to compile an exhaustive list of factors that could be relevant is virtually impossible. [27] He then identified sixteen areas of parenting that are a consideration in most cases. [28] The CFSA as I stated, requires an assessment of the best interest of the children. It too provides a list of considerations to assist the court in doing so. The considerations are outlined in s.3(2) of the Act. The CFSA proceeding, in as much as it pertains to custody and access of the children, takes precedence over the issue of custody and access under the Divorce Act. I will therefore give, and do give greater way to the factors I must consider under the CFSA when called upon to assess the best interests of the children. Having said that, there is significant overlap between the two groups of factors. [29] Section 3(2) of the CFSA requires inter alia that I consider the following circumstances that are relevant: (2) Where a person is directed pursuant to this Act, except in respect of a proposed adoption, to make an order or determination in the best interests of a child, the person shall consider those of the following circumstances that are relevant: (a) the importance for the child's development of a positive relationship with a parent or guardian and a secure place as a member of a family; [30] The objective of preserving the family context for a child is certainly a theme that is consistent with the direction in the Divorce Act, which identifies as a goal maximizing the relationship of a child with parents and to the same effect, the child’s relationship with relatives. [31] The evidence establishes that Ms. A. does have more family in this area and Mr. R. has a sister. I do not take this factor as negatively impacted by the plan of either parent. I am confident that these parents will facilitate and support the relationship between the children and extended family on both sides. [32] The importance of continuity in a child’s care and the possible effect on the child of the disruption of that continuity, I will reference later, but the plan of both parents is to have the children continuing in their current school environment. The school is obviously a very significant point of stability for the children and both parents are advocating that it continue. [33] Currently the children spend substantial time with each parent. On the issue of the bond that exists between the child and the child’s parent or guardian, I am satisfied that the children have a positive relationship with each parent and this should continue. [34] The state of the child’s physical, mental and emotional needs have been the subject of a lot of evidence. The stress in the home; stress since the parties’ separated and resulting from the need to manage the access and parenting of the children has placed the children at risk. It is important, in my view, that my decision address that issue. The Children’s Physical, Mental and Emotional Level of Development [35] They are each at an important stage of development in these; their formative years. It is important that they have the freedom and opportunity to develop positive relationships with their parents and that they not be scarred by the parental conflict. The Child’s Cultural, Racial, Linguistic Heritage [36] Mr. R. speaks French. I’m not sure if French is his first language but in any case, I do not see that as a significant factor. The parents agree that the children will continue in the French school. Issue of Religious Faith [37] Although it appears Ms. A. is not attending the church that the couple attended together; Mr. R. is. I did not hear her, or I do not recall her saying she no longer wishes to belong to that church, but she is at a stage in her life where the relationship with the church is strained. I do not see that as a significant issue, but it can be and I will address it later. [38] I have considered the Agency’s plan and involvement. When the Agency became involved with this family, its approach was influenced by concern that Mr. R. was guilty of domestic assault and that his behaviour was being impacted by mental health issues. As I have said, he has not been convicted. I am not satisfied certainly, that the allegation would have resulted in his conviction in any case, had the matter proceeded to trial based on what I have heard. His health has stabilized and is not a negative factor. [39] With respect to the views of the children, that have been communicated to me, I put minimal weight on what I have been told, very little if any, simply because these children are young, they are under stress and children tend to tell their parents what they want to hear, and perhaps others. [40] As for the effect on the child of delay in the disposition of the case. We have sat over the summer. As for the risk that the child may suffer harm from being removed from, kept away from, returned to, allowed to remain in the care of a parent or guardian; both of these parents, in my view, can adequately care for the children and should have the opportunity to continue to do so in a significant role. [41] The degree of risk, as I have indicated, is in the conflict between the parties. [42] Justice Goodfellow makes reference to the physical environment of the children. It has been suggested that if one party or the other is awarded primary care, the children will remain in their home and a parent leave if necessary. I have not been told what would happen if it was something different than that. [43] In any case, I am satisfied that the physical needs of the children will be met. The issue of discipline is not really a factor. Both of these parents, in my view, can be very positive role models. Mr. R. is currently a hard working person. Ms. A. has carried out responsibilities with respect to the children. She has taken the initiative to improve her educational qualifications, obviously with a view to taking a place in the workforce and to increasing her opportunity for independence. I view her as a very positive role model for the children. [44] Justice Goodfellow references the wishes of the children. He identifies their religious and spiritual guidance, I have commented on that. He identifies the assistance of experts. I have heard from the various social workers and they have communicated what they know. [45] As for the time availability of a parent. In this case, I am being told that Ms. A. will be returning to school and she will have less time than she has had for parenting. Mr. R. is working but he has indicated that the nature of his arrangement with his employer is that he can have some flexibility and he can be there for the children. As for the cultural development of a child, I do not see that as a factor. As for the need to consider the physical and character development of a child, I do not see that as a factor. The emotional support to assist a child to develop self esteem and confidence is always relevant; both parents have an important role to play. As for the financial contribution to the welfare of the child, I do not see as a factor. The support of an extended family, uncles, aunts, grandparents, etc. I have already stated that I believe both of these parents will maintain a relationship between these children and extended family on both sides. [46] As for my assessment of the willingness of each parent to facilitate contact with the other parent, I am satisfied that once this proceeding is concluded, that these parents will see significant benefit for themselves and for the children of substantial and meaningful involvement by the other parent. [47] As for the interim and long range plan for the welfare of the children, there is some uncertainty in the long range but certainly for the next year, Ms. A. is committed to a program of study. In the event that she develops a plan to relocate to *, which has been referenced, it can be dealt with at that time. [48] As for financial consequences of custody, again, I do not see that as a significant issue. [49] The maintenance of the status quo is an important consideration. In the text annual review of Family Law 2009, at page 88, the reason this factor is significant is discussed. The authours write: Courts are not in the business of taking risks with children’s lives and are therefore more apt to maintain the status quo, as proven to have provided stability and continuity during the turbulent times of the family’s separation. Generally courts are reluctant to change existing child care arrangements that are working to the child’s benefit. [50] In my view, the status quo has not worked as it should have. The children have not assumed the prominence and their interests have not assumed the appropriate prominence in the life of Ms. A., as she pursued social opportunities. I would say that as between these two parents at this point in time, Mr. R. is more child focussed. In any case, Ms. A. is not offering to continue with the status quo. She will be returning to a post secondary educational institution. This endeavour will significantly impact on her ability to meet her parenting responsibilities. She will require more support in meeting the needs of the children. Mr. R. is available and anxious to meet that need. In fact, he is seeking primary care of the children. [51] The change however, sought by Mr. R., is far too dramatic for these children and not in their best interests. Both of these parents have much to offer the children. Currently, they are both contributing in significant ways to their children. Neither plan offered by these parents, in my view, is better than the other. They have different parenting styles and availability. The children do need more time with Mr. R.. [52] I also believe that Ms. A. will need more support in the parenting role as we move forward, given the educational responsibilities that she will be assuming. [53] Mr. R.’s parenting time will increase to a shared parenting arrangement on a week on, week off basis. In ordering this arrangement, I have considered the history of conflict between the parties and whether that history is an obstacle to the parties’ shared parenting. [54] I am satisfied that it is not. In fact, I find that the parties’ conflict has in large measure, been fuelled by the ongoing uncertainty and resulting insecurity each has felt about their future role in the lives of their children. It is an insecurity that has cut to the heart of what is important to each of them. It has made each hyper-vigilant of the other and given rise to a destructive, possessiveness of the children. This couple has been in competition for the hearts and minds of the children. [55] I am also satisfied that each parent accepts and supports in their hearts, a significant role for the other parent in the children’s lives. I am satisfied that a shared parenting arrangement will lessen the stress arising from this insecurity by reassuring each that their role and place in the lives of their children is secure. An opportunity to parent the children on a shared basis will permit each to meet the onerous obligation that parenting four young children carries with it. [56] As I have stated, it is fortunate that the children will be able to continue their school under a shared parenting arrangement. In my view, the status quo is no longer an option, nor is it a desirable one, given that it was not working. [57] The stability achieved in 2010 has been in large measure a consequence of the agency’s supervision and the threat of legal consequences should the parties behave irresponsibly. [58] I am satisfied that the best interests of these children will be served by maximizing their time with each parent. This will most effectively be accomplished, as I stated, by a parenting plan that provides each parent with equal time with the children or as close to that as is reasonably possible. Both these parents love and care for their children. Both parents are capable of managing the daily demands of the children when they have responsibility for them. Mr. R. has flexibility in his hours of work and can be available for the children. Ms. A. will require relief from the current obligations of caring for the children most of the time, given that she is embarking upon a program of study at the community college. [59] The children are bonded with their father and require more time with him. I hasten to add that Ms. A.’s pursuit of educational goals and social opportunities for herself is not being discouraged or frowned upon. It is important however, to recognize that an increase in activities outside the home will place a strain on the child rearing role. [60] The reallocation of the parenting time, increasing the time for Mr. R. to assume the responsibility, will provide Ms. A. with some relief. A week on week off parenting plan will lessen the need for more frequent exchanges of the children; will lessen the power imbalance in the parties’ relationship, given that in the context of this relationship, control of parenting time has been viewed by both parties as power. [61] Mr. R.’s increased role will facilitate pending changes in Ms. A.’s life. As I have stated, s.16(10) of the Divorce Act mandates that the court consider outcomes that maximize the time each parent has with his or her children, subject of course to the best interests of the children. [62] I am satisfied that Mr. R. and Ms. A. will both benefit from the significant parenting role of the other. Should they choose to truly accept the role of the other parent, I believe that they will do so. As I have stated, and perhaps I am getting repetitious, the competition for the role of primary parent of the children; the elimination of that competition will improve the prospects for that to happen. [63] I do not view Ms. A. as a poor parent. I want to say that Ms. A. in light of some comments I made at the end of the trial. I believe that the evidence of your efforts to spend time with R. M. is evidence of the extent to which you are prepared to pursue a social life. Mr. R.’s greater role as a parent will support your efforts to do so. Mr. R., as I have said, wants to become the primary parent. Ms. A. has a strong bond with the children. She has managed many details of their daily lives quite successfully. She can continue to make that substantial contribution and share the responsibility with Mr. R.. The children need not lose what each of these parents has to offer. [64] The parents will therefore continue to have joint custody in a shared parenting arrangement with the parenting time allocated on a week on, week off basis. Mr. R.’s revised parenting schedule shall begin Sunday, September 19, 2010 at noon and end the following Sunday at that time. Until then, the current parenting arrangement will govern the allocation of parenting time. Mr. R. will have the option of taking the children to church each Sunday, I understand it to be Sunday morning. Should Ms. A. decide that she does not want to make arrangements for them to attend church, Mr. R. may do so. [65] The parties are directed to recommend the parenting schedule to govern holiday and other special time access. Obviously there are a number of other issues I have not dealt with, such as child support. I reserve jurisdiction to deal with some of those related issues and in terms of the conditions that the minister wants, if I understand correctly, there seems to be a consensus among the lawyers. I did not deal directly with those details, but I reserve jurisdiction to do so, if necessary. [66] Finally, I want to say to both parents that circumstances that brought you together and caused you to build a family and to share the responsibility and confront many of the obstacles of parenting, that you had to confront as you built your relationship and your family, I am sure there were many, many positive experiences and I do not view either of you as poor parents. The litigation that you have been involved in, it tears people apart typically and as people fight about their children, they are driven to extreme emotional states and their conduct can be most out of character. So try to remember that, as you go forward and try to forgive each other for what you obviously perceived to be the unfairness that each of you has delivered to the other over the past couple of years. [67] My impression of you is that you are more than capable of doing that and of putting the interests of the four children first. J.