McCluskey v Tobin

McCluskey v Tobin

Mother removed the child from jurisdiction without adequate notice or consent, failed to comply with multiple court directions to return the child, and (on balance of probabilities) actively facilitated the child’s alienation from the father; she did not meet the burden to show relocation was in the child’s best interests. The court therefore ordered the child returned to Nova Scotia, awarded primary care and decision-making to the father for a defined period, imposed supervised contact for the mother (Veith House) for at least six months with phased review conditions, suspended the routine child support payments pending disclosure and ordered specified financial remedies; contempt...

Citation
2023 NSSC 404
Parties
Applicant (father): Andrew McCluskey; Respondent (mother): Claire Tobin (Polomark)
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
14 December 2023
Procedural Posture
Parenting and Support Act Application (relocation; Denial of Parenting Time; Variation; Contempt) / Final Decision / Orders and Directions; Contempt Proceedings to Follow
Outcome
Father’s application largely granted in part: relocation to British Columbia denied pending review conditions; child ordered to return to father’s primary care; mother’s contact supervised for minimum period; contempt procedures to proceed.
Legal Topics
Relocation Under PSA, Denial of Parenting Time, Custody and Decision Making, Supervised Access, Parental Alienation, Contempt Proceedings, Notice Requirements for Relocation, Burden of Proof, Expert Evidence Reliability
Source Language
English
Family Law Child Custody Relocation Contempt Child Support Parental Alienation Evidence (expert) Relocation Under PSA +7 more

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Parties

Andrew McCluskey

Applicant (father)

Claire Tobin (Polomark)

Respondent (mother)

Procedural Posture

Parenting and Support Act Application (relocation; Denial of Parenting Time; Variation; Contempt) / Final Decision / Orders and Directions; Contempt Proceedings to Follow

Legal Issues

  1. 1 Whether the mother should be permitted to relocate the child to British Columbia
  2. 2 Whether the mother wrongfully denied the father parenting time and whether that constitutes a material change
  3. 3 Whether the mother’s conduct resulted in parental alienation

Ratio Decidendi

Mother removed the child from jurisdiction without adequate notice or consent, failed to comply with multiple court directions to return the child, and (on balance of probabilities) actively facilitated the child’s alienation from the father; she did not meet the burden to show relocation was in the child’s best interests. The court therefore ordered the child returned to Nova Scotia, awarded primary care and decision-making to the father for a defined period, imposed supervised contact for the mother (Veith House) for at least six months with phased review conditions, suspended the routine child support payments pending disclosure and ordered specified financial remedies; contempt...

Court Disposition

Father’s application largely granted in part: relocation to British Columbia denied pending review conditions; child ordered to return to father’s primary care; mother’s contact supervised for minimum period; contempt procedures to proceed.

Orders

  • Child to be returned to Halifax, Nova Scotia and be placed in the father’s primary care and decision-making effective upon receipt of this decision, within 10 days or no later than December 24, 2023.
  • Mother shall within 48 hours advise father whether she will make travel arrangements to return the child; if she does not, father may purchase travel and be reimbursed; parties shall share travel cost and reimburse within 14 days.