Mann v. Mann

Mann v. Mann Court Supreme Court Date 2010-08-05 Citation 2010 NSSC 316 Docket 1209-001203 Judge/Registrar/Adjudicator Haliburton, Charles E. (Honourable Justice) (SC) Document Type Decision Relations Library Sheet - Mann v. Mann - 2010 NSSC 316 - 2010-08-05 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Mann v. Mann, 2010 NSSC 316 Date: 20100805 Docket: 1209-001203 Registry: Annapolis Between: Julie Mann Petitioner/Applicant v. James Mann Respondent Judge: The Honourable Justice Charles E. Haliburton. Heard: July 21, 2010, in Digby, Nova Scotia Written Decision: August 5, 2010 Counsel: Blaine Schumacher, Solicitor for the Petitioner/Applicant Ronald D. Richter, Solicitor for the Respondent By the Court: [1] This Interlocutory Application was made by the Petitioner seeking interim sole custody and residential care and control of the child of the marriage Michael James Mann, born September 16, 1999. The matter was heard at Digby on July 21, 2010. [2] The Petitioner and Respondent each filed affidavits in preparation for the hearing and each was cross examined. Counsel for each of the parties provided vigorous argument respectively supporting the Petitioner’s request for limited access and the Respondent’s opposition. I have the benefit of thorough briefs from both parties and an opportunity to review the financial information which was provided. [3] There are on file both a Petition and Counter-Petition for Divorce which put in issue all matters, that is to say; divorce, custody, child access, child support, spousal support and the division of matrimonial property. [4] The relationship of this husband and wife had clearly deteriorated very seriously before the 22nd of January, 2009, the date pleaded as the date of separation. Mr. Mann continued to share space in the matrimonial home for some three or four months before finding separate accommodation. The file indicates the Petition for Divorce was filed June 10, 2009. An Answer was not filed until February 2010. [5] The parties married 13 August, 1983 and, during recent years at least, owned and occupied a home in South Williamston, a rural community some five minutes by motor vehicle from the elementary school in Lawrencetown where Michael is in school. Julie Mann is a Vice Principal at the Bridgetown High School where she earns $75,000.00 a year and James Mann is employed as a night shift worker in Middleton, at Price Shoppers, a food market in the Sobeys chain. His income is approximately $25,000.00 a year. He smokes the equivalent of a package of cigarettes a day saving some money by rolling his own; and he drinks alcohol when the opportunity arises, though he claims to purchase very little. He did have an alcohol problem but says that he has dealt with that. He says he now consumes only an occasional beer. His Statement of Financial Information suggests that he has very little choice in terms of purchasing alcohol. [6] There were two older children of this marriage Sarah and Emily, respectively, 24 and 21 years of age, both of whom are now independent of their parents, or at least are no longer children of the marriage as contemplated by the Divorce Act. INCOME/SUPPORT [7] The mother expresses grave concern about Michael’s emotional state. His teacher delivered a drawing suggestive of some suicidal ideation. It was apparently drawn by Michael and she has been told of reports that Michael has told fellow school mates he has ideas such as “shooting out the school doors with a BB gun to set the students free”. She believes that Michael is “experiencing considerable emotional distress and anxiety” and that these problems flow from his contact with father. [8] I accept unreservedly that Michael is suffering emotional strain. I heard however no evidence to support the proposition that his emotional strain flows from his relationship with or visits to his father’s residence. The fact is that there is considerable and evident friction displayed by the parents when they deal with each other. They admittedly are unable to communicate effectively. With the paucity of credible and admissible evidence before the court on this interim application it is not possible to reach a definitive conclusion. However, it is my initial impression, as already expressed to the parties, that any problems affecting Michael’s emotional state flow from their own behaviour towards each other especially while the child is present. The mother conceded that she has a temper and has used unfortunate and obscene language in the presence of the child. It would be unusual that such behavior would arise in a vacuum, hence I think it is reasonable to speculate about the father’s behaviour prompting such temper. WHAT TO DO [9] On the surface the parents had what should have been a very satisfactory arrangement during the school year. Mrs. Mann works long hours at her job as Vice Principal at a school which is perhaps 20 kilometres distant from her home. Mr. Mann is making his home just around the corner from the school the child attends. They implemented a shared parenting arrangement which had Michael spending two overnights during the school week with his father and alternating weekends. In addition to that, following his school day and after school activities, he would resort to his father’s place to be picked up by his mother who took him home for supper. With sensible communicating parents that should have worked very well. The father’s work schedule is generally 11:00 p.m. to 8:00 a.m. so the after school arrangement should be excellent. He is also in a position to participate in Michael’s hockey or other sports activities in the early evening. Mrs. Mann’s hours of work are such that she can ensure the safety and regularity of Michael during his sleeping hours. [10] The foregoing comments relate to the school year, however, it is presently summer time and it would seem that a different schedule might be preferable. The mother is presumably not at work during the school vacation period or at least not working regular hours. The father’s work week does continue on its’ regular course, however, it may be anticipated that he has some vacation period. Michael’s maternal grandparents live in the Moncton area and there has apparently been some resistance from the father to having Michael visit with them for an extended period. There is no reason provided on the evidence that should prevent Michael visiting his grandparents in company with his mother for one two week period before the beginning of school. Similarly I see no reason why visiting times with his father should be any less generous during the vacation time which his father may have, not exceeding two weeks. [11] All three persons concerned need the assistance of counselling. [12] I am not persuaded that an order designating a custodial or non custodial parent is appropriate on this interim basis. The parties initiated a shared parenting arrangement and that should continue. [13] While it has been argued that James Mann should be providing child support in accordance with the guidelines based on an imputed income greater than that which he is presently earning, I am not persuaded that would be either fair or appropriate. He did accept a job from his employer carrying less responsibility and paying a lower wage than his previous position. He did so approximately one year before separation. It is my conclusion that he did so to avoid being terminated altogether from his employment and he did so by his own explanation, to be able to spend more time with his son. In my view it is a positive thing for this family that he continues to be self supporting. [14] While the evidence gives rise to other concerns for this child and his positive development, of vital importance is that these parents must cease their mutual condemnation and disputation most especially in the presence of their child. [15] It will be ordered the Petitioner and Respondent will have shared parenting of their child Michael. Mrs. Mann will obtain the opinions of James Mann on issues relating to health, education and general welfare. If the parties are unable to agree Mrs. Mann will have final decision making authority. James Mann will be free to enroll Michael in sports activities such as hockey and promote his physical activity. He will solicit Mrs. Mann’s opinion. The cost of registration and equipment for such activities will be divided between the parties on a 50/50 basis. Each party will have the right to attend and/or access parent teacher meetings, medical or dental appointments, participate with any phychological counselling and to obtain relevant reports or information without authorization of the other party. Michael will be in the care of his mother overnight, every night, except one overnight a week when James Mann is not working the night shift, and alternating weekends. In view of Mr. Mann’s work schedule the weekend visits will be from Saturday noon until Sunday evening at 8:00 p.m. On two days of the week (perhaps Tuesday and Thursday) Michael will be with his father from 1:00 p.m. to 8:00 p.m. [16] It will be the responsibility of Mr. Mann to arrange to transport Michael for his access time. Mrs. Mann will be responsible to retrieve him at the conclusion of the visit. The parents will forthwith register with and attend the Parenting Information Program or some other family/phychological counsellor agreed upon by them. [17] Within three weeks the parents will arrange appropriate counselling for Michael. [18] Julie Mann will be authorized to accompany Michael for a visit to Moncton not exceeding two weeks. If and when James Mann receives a vacation period he will be responsible for the care and control of Michael for one week of that period. [19] The costs of this application will be costs in the cause. Haliburton, J.