SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: C. J. R. v. C. S. J. ), 2010 NSSC 85 Date: 20100305 Docket: 1201-062869, SFHD-060128 Registry: Halifax Respondent LIBRARY HEADING Judge: The Honourable Justice Beryl MacDonald Heard: January 25, 26, 27, 2010, and February 1, 2010, in Halifax, Nova Scotia Written Decision: March 5, 2010 Subject: Family Law, Divorce Act, Custody/Access, Domestic Violence, Summary: The parties had been in relationship for approximately years. They were 20 and 18 years of age when they commenced their relationship. They had two children and years of age. The wife requested an equal time shared parenting arrangement. The husband requested sole custody with the children in the wife’s care every second weekend. The wife alleged the husband was abusive of her. The parties had little face to face communication. The wife frequently did not respond to the husband’s reasonable requests involving the children. Issue: What custodial/access arrangement was in the best interest of the children? Result: The children were placed in the husband’s sole care and custody. The wife’s allegations of abuse were unfounded. The nature and cause of conflict between the parties made it unlikely conflict would be diminished under joint custodial arrangement. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: C. J. R. v. C. S. J. ), 2010 NSSC 85 Date: 20100305 Docket: 1201-062869, SFHD-060128 Registry: Halifax Respondent Judge: The Honourable Justice Beryl MacDonald Heard: January 25, 26, 27, 2010, and February 1, 2010, in Halifax, Nova Scotia Written Decision: March 5, 2010 Counsel: Mary Jane McGinty, for the Applicant Kenzie MacKinnon, for the Respondent By the Court: [1] This is divorce proceeding. The Husband and the Wife married on June 15, 2006. They had co-habited prior to their marriage since September 1999. At that time the Husband was 20 years of age and the Wife was 18. The Husband and the wife met in Halifax, Nova Scotia at Navy Reserves training course. The Husband had completed high school. The Wife had not. They have two children; the youngest is now years of age and the oldest is 6. The parties separated December 22, 2007. Both are employed in the Navy and may be subject to deployments that will take them out of Nova Scotia for significant periods of time although the husband, due to recent injury, may be leaving the Navy and pursuing other employment he is confidant will be available to him. [2] All assets have been divided between the parties. The children have been in the husband’s primary care since the separation. This did not occur with the consent of the wife. Unfortunately it has taken this long to bring this matter forward to final hearing. As result is the children have been in the husband’s primary care for approximately years. They have become familiar with the structure and routine he has put in place for them. They have become familiar with the pattern of time when they are in the wife’s care. The Interim Order issued in this proceeding dated May 19, 2009 placed the children in the primary care of the husband. The wife was to have the children in her care on alternate weekends from Friday evening until Sunday evening. In the week when the children were not to be with the wife on the weekend they would be in her care on Monday evening and Wednesday evening. The wife is now seeking an equal time shared parenting arrangement. The husband wants the present parenting arrangements to continue although he is open to providing additional parenting time to the wife. [3] am satisfied that all jurisdictional requirements of the Divorce Act have been met and that there is no possibility of reconciliation. am further satisfied there has been permanent breakdown of this marriage. The parties have lived and they continue to live separate and apart from one another for period in excess of one year from the commencement date of this proceeding. divorce judgment will be issued. CREDIBILITY [4] The testimony, both orally and in affidavits, given by the husband and his witnesses differs materially from that given by the wife. [5] When witnesses have different recollection of events the court must assess the credibility of their statements. adopt the outline for assessing credibility set out in Novak Estate, Re, 2008 NSSC 283 (CanLII), at paragraphs 36 and 37: [36] There are many tools for assessing credibility: a) The ability to consider inconsistencies and weaknesses in the witness's evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness' testimony and the testimony of other witnesses. b) The ability to review independent evidence that confirms or contradicts the witness' testimony. c) The ability to assess whether the witness' testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133, it is "in harmony with the preponderance of probabilities which practical [and] informed person would readily recognize as reasonable in that place and in those conditions", but in doing so am required not to rely on false or frail assumptions about human behavior. d) It is possible to rely upon the demeanor of the witness, including their sincerity and use of language, but it should be done with caution R. v. Mah, 2002 NSCA 99 (CanLII) at paragraphs 70‑75). e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H. 2005 CanLII 253 (ON CA), [2005] O.J. No.39 (OCA) at paragraphs 51‑56). [37] There is no principle of law that requires trier of fact to believe or disbelieve witness's testimony in its entirety. On the contrary, trier may believe none, part or all of witness's evidence, and may attach different weight to different parts of witness's evidence. (See R. v. D.R. [1966] S.C.R. 291 at paragraph 93 and R. v. J.H. supra). BEST INTEREST OF THE CHILD Custodial Arrangements [6] What parenting arrangement is in the best interest of these children? Many courts have attempted to describe what is meant by the term “best interest” Judge Daley in Roberts v. Roberts, 2000 CarswellNS 372 said: .......These interests include basic physical needs such as food, clothing and shelter, emotional, psychological and educational development, stable and positive role modeling, all of which are expected to lead to mature, responsible adult living in the community.... [7] In Dixon v. Hinsley (2001) 2001 CanLII 38986 (ON CJ), 22 R.F.L. (5th) 55 ONT. C.J), at para. 46 the following appears: The “best interests” of the child is regarded as an all embracing concept. It encompasses the physical, emotional, intellectual, and moral well being of the child. The court must look not only at the child’s day to day needs but also to his or her longer term growth and development ... [8] Several cases have attempted to provide guidance to the court in applying the best interest principle: See for instance Foley v. Foley (1993) 1993 CanLII 3400 (NS SC), 124 N.S.R. (2d) 198 (N.S.S.C); Abdo v. Abdo (1993) 1993 CanLII 3124 (NS CA), 126 N.S.R. (2d)1 (N.S.C.A). [9] The Divorce Act has itself provided the court with further direction in section 17 (10) requiring the court to: ...give effect to the principle that child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [10] This wording does not suggest there is to be presumption it is in the best interest of children to be parented by both parents in an equal time sharing arrangement, although many strive to suggest this is so. Therefore the question is how much contact with each parent is in the best interest of these children given their ages, stage of development, personalities, educational and other needs in the context of the ability of each parent to carry out his or her parental responsibilities and obligations. [11] review of many of the decisions in which judges have attempted to determine what is in child’s best interest reveal preference to continue children in the care of the person who is determined to be their “primary care parent”. This has led to discussion about how court can determine the identity of this person. In Burns v. Burns 2000 NSCA (CanLII), the Court of Appeal did provide some guidance and Justice Roscoe stated: 29..........the actual period of time spent with the children is not the only determinant. More importantly, in my opinion, is which parent has taken primary responsibility for all the important decisions concerning the health, safety, education, and overall welfare of the children, since the parties separated....... 30 In addition to the major matters, the primary caregiver is the parent who deals with the countless loess significant, but nonetheless obligatory, daily arrangements for the children’s clothing, haircuts, hygiene, extracurricular activities and everyday mundane affairs. Who would buy present for them to take to school friend’s birthday party? Who makes the appointments and takes then to the dentist? Which parent is keeping the record of their vaccinations, and fills their prescriptions? Who goes to the parent-teacher interviews? Who chose the pre-school?.......... [12] The decisions and activities described by Justice Roscoe are critical to child’s well being and may be overlooked by parent who has never been required to make these decisions or carry out these activities. However, because the primary care parent in relationship was frequently the female partner, this analysis has come under attack particularly from fathers. The division of labour within family often evolves to place the female partner in the role of primary care parent. It is easier to have one person attending to many of the above described parenting functions. But these are functions the other parent can learn to perform. It may be more important to examine the nature and quality of the child’s relationship with each of his or her parents than it is to merely add up the number of parenting tasks performed by each and assume the parent who preforms more of these tasks is the “primary care parent” who should therefore have day to day care of the child. More illuminating might be answers to questions like these: What does the parent know about child development and is there evidence indicating what is suggested to be “known” has been or will be put into practice? Is there good temperamental match between the child and the parent? freewheeling, risk taking child may not thrive well in the primary care of fearful, restrictive parent. Can the parent set boundaries for the child and does the child accept those restrictions without the need for the parent to resort to harsh discipline.? Does the child respond to the parent’s attempts to comfort or guide the child when the child is unhappy, hurt, lonely, anxious, or afraid? How does that parent give comfort and guidance to the child? Is the parent emphatic toward the child? Does the parent enjoy and understand the child as an individual or is the parent primarily seeking gratification of his or her own personal needs through the child? Can the parent examine the proposed parenting plan through the child’s eyes and reflect what aspects of that plan may cause problems for, or be resisted by, the child? Has the parent made changes in his or her life or behaviour to meet the child’s needs, or is he or she prepared to do so for the welfare of the child? [13] In this case have very little information upon which to assess the quality of the relationships between these children and their parents. The husband has acknowledged the children love their mother and do want to spend time with her. He has concerns about her parenting but he has not suggested her contact should be less than what is provided in the Interim Order. [14] The husband considers himself to be the “primary care parent” of the children. Certainly he has performed the majority of the “parenting tasks” since the separation but that merely is reality created by the separation itself and says nothing about the wife’s ability to perform those same functions. In fact she was required to perform all of the parenting tasks when the husband was deployed. The husband has suggested the wife was very stressed when parenting alone but that is understandable given the ages of the children and the lack of family and social supports existing for this family at that time. The evidence provided by the husband does not satisfy me that the wife is unable to preform the basic parenting tasks. The husband does complain about the wife’s ability to manage her finances. While he was deployed the parties debt situation worsened which is puzzling given their combined incomes at the time. However, have no evidence of any misuse of joint funds and therefore can draw no conclusions relative to parenting as result. The evidence before me does not suggest one or the other of these parents was the “primary care parent” during the marriage. They both performed the parenting tasks required of them as the need arose and both are able to perform those tasks. [15] significant portion of the wife’s evidence was devoted to portraying the husband as domineering, controlling and therefore abusive person. Nevertheless she has concluded that it would be best for the children at this time for (the husband) and to have shared parenting relationship in which, when either of us is not sailing offshore, the children are in our care for equal amounts of time” This suggests that whatever occurred between the parties has not caused the wife concern about the husband’s ability to appropriately parent these children. Therefore his allegedly abusive behaviour toward her should have no relevance to the appropriate parenting plan for these children. If party expects court to believe that abuse matters then the position taken should be indicative of the abuse suffered. parent truly concerned about the best interest of his or her children would not permit them to be parented by person who is abusive of intimate partners. If domestic violence is occurring this issue must be taken seriously and must not used as tactic to engage judicial sympathy. [16] The words “domestic violence” do and have defined number of behaviours including isolated or rare incidents in relationship push, shove, rudeness, disrespect, and name calling all of which are unpleasant to those on the receiving end of these behaviours but which should not necessarily be accepted as an indication that the relationship requires judicial intervention. If these behaviours have no pattern of repetition and leave little if any lasting impact upon the recipient they need not be monitored with the same vigilance as will be the case when coercive control is involved. Counselling programs for persons who are “unpleasant” toward others may be quite different from those designed for persons who resort to abuse as mechanism of coercive control. Differentiation must be made between these two dynamics when both may be and frequently are referred to as “domestic violence”. In this decision use the term only to refer to violence against an intimate partner which has as its purpose coercive control over that partner. [17] Children are harmed emotionally and psychologically when living in home where there is domestic violence whether they directly witness the violence or not. Exposure to domestic violence is not in the best interests of children and those who are the perpetrators of domestic violence, who remain untreated and who remain in denial, are not good role models for their children. The fact that there is no evidence the perpetrator has actually harmed the child is an insufficient reason to conclude the perpetrator presents no risk to his or her child. One risk is that the perpetrator will continue to use violence in intimate relationships to which the child will be exposed in the future. Another is that the child may model aggressive and controlling behaviour in his or her relationships with others. There are many other risks some of which are summarized on the Department of Justice website providing information about spousal abuse. [18] In this case the totality of the evidence suggests what violence there has been between the parties was often initiated by the wife. However, the husband is not blameless and both should pursue counseling to learn how to disengage from arguments and how to manage their frustration and anger. would not categorized what has happened between them as use of violence as mechanism of coercive control. Further the wife’s testimony that the husband did not support her return to high school, would not permit her to explore her native heritage, and isolated her from her friends and family is not supported by other testimony in this proceeding including her answers to questions put to her under cross-examination. I did not find the wife to be a credible witness and a further example of this was her allegation that the husband when deployed at sea “would not allot funds from his pay directly to me while he was gone....”. In fact all of the husband’s pay went directly into joint account with the wife. She had full access to those funds. This willingness of the wife to be untruthful or to misconstrue events in the telling of them, her contrived belief that she has been victimized by the husband, and her lack of insight about her contribution to the deterioration of their relationship suggests potential for continuing conflict between them. [19] In this proceeding the wife requests shared parenting with the husband. In Nova Scotia there are few written decisions providing guidance about the factors it may be important to consider when applying the best interest principle to request for shared parenting. Farnell v. Farnell [2002] N.S.J. No. 491, is one of those decisions and in it Justice Goodfellow commented: [10] “.........Shared custody rarely in my experience works and only seems to where there is present an environment where the children thrive when the children are able to fluidly move from one home to another by reason of parents who are mature in circumstances and reside in such close proximity that the children can go back and forth themselves, continue in the same school, continue with extracurricular activities, church or other activities that they would normally engage in. Such situation is next to impossible to attain and continue when children live at long distances .” [20] Parents in shared parenting arrangement must exhibit an ability to cooperate and jointly plan for their children. They must be able to do so on continuous basis, far more frequently than is expected from parents who have other parenting arrangements. Conflict and the potential for conflict must be at minimum. Each parent must respect the other and their value systems and methods of discipline should not be substantially dissimilar. They must be able to communicate face to face. They must respond quickly to inquiries from the other parent about issues involving the child, focusing on the child’s need not on the parent’s issues. Routines in each household should be similar to ensure the child is not confused by or encouraged to become oppositional because of different standards and expectations in each home. [21] shared parenting arrangement is not in the best interest of these children. The evidence presented during the hearing raises several concerns leading to this conclusion. The wife has been given opportunities to be involved in decisions relating to the oldest child’s educational program. It is clear she does not like the recommendations made by the child’s teacher, which have been accepted by the husband, to deal with the behavioral and learning challenges the child is facing. However the wife has taken no personal initiative to speak with this teacher. In addition this teacher has recommended the child be tested for ADHD. The wife objects to the child being “labeled” and has not been supportive of the teacher’s request or the testing although she now, belatedly, suggests she agrees the testing should be completed. Her responses to the concerns raised about this child’s educational progress suggests co-operative decision making between these parents will be difficult and potentially conflictual. [22] After the parties separated there was period of time when they appeared to parent co-operatively. Although the children were primarily in the husband’s care, when the parties arranged for the children to be parented by the wife, she did so in the matrimonial and the husband moved out for that period of time. However, when the husband decided he could not financially afford to keep the matrimonial home and have separate residence, the relationship between the parties began to deteriorate. The wife did not agree with this decision but was unable to finance her ownership of the home. It had to be sold. Her bitterness about this decision is evident and it appears to influence her present relationship with the husband. She is disrespectful of the husband personally and of the requests he makes in respect to the children. She often does not reply to his inquiries. She has suggested she has not received many of these inquiries. do not accept that testimony. am concerned she may reject the husband’s requests merely because he has made them. [23] These parents do not live reasonably close to one another. The husband lives in Cole Harbour, Nova Scotia and the wife lives in PMQ in Halifax. These are entirely different communities. These parents communicate through e-mail. Face to face meetings have resulted in unpleasant confrontations. [24] Discussions about what is an appropriate decision to make for child’s benefit should not be overwhelmed in “power struggle” between the parents. do find the wife has viewed her relationship with the husband as power struggle. For example, rather than take the opportunity to be with her children, when asked by the husband to care for them on night he wished to go out, she refused telling him am not your babysitter”. She did not have the Christmas vacation time with the children she initially requested because she would not co-operate to confirm the arrangement in consent order essentially because the husband would not agree to her requests relating to the matrimonial home. [25] am satisfied these parents are unable, at this stage in their relationship, to meet the basic requirements for successful shared parenting. [26] While shared parenting is inappropriate for these children what about joint custody? Conflict between parents does not necessarily mean joint custody is also inappropriate. Gillis v. Gillis (1995), 1995 CanLII 4416 (NS SC), 145 N.S.R. (2d) 241 (N.S.S.C.); Rivers v. Rivers (1994), 1994 CanLII 4318 (NS SC), 130 N.S.R. (2d) 219 (N.S.S.C. [27] Joint custody is difficult concept for many to understand. It does not refer to physical closeness to the child nor to shared day-to-day parenting. Joint custody does not mean parent has the right to micro-manage the daily care of the child by the other parent. Each has the right to make independent decisions in that sphere when the child is in his or her physical care. At one time it was clear that joint custody required joint decision making while “sole custody” did not. Recently however, it is not uncommon for joint custodial arrangements to give one parent “final decision making authority” and for sole custodial arrangements to require information to be provided and consultation undertaken with the other parent. What any of these categorizations now mean has become blurred and indistinct. Third parties dealing with parents must be given an entire copy of an order involving children to understand what information may be released to parent, what consultations may include that parent and what parent is to provide direction to the service provider. [28] Perhaps joint custody is more appropriately considered as philosophical concept. It requires parents to remain as committed to their children as they were when living together. When child is ill and treatment must be chosen, when choice must be made about schooling, when there is decision to be made about religious training, when child is in trouble with the law or has behavioural problems, joint custody means the parents will discuss these issues and come to joint decision as parents do in intact families. This process is fluid one and only requires elaboration when it is clear there are impediments to joint decision making. [29] Given that distinctions between joint custody and sole custody are now often difficult to discern, what difference remains upon which to determine whether custodial arrangement is to be labeled as one or the other? Aside from any tax or income benefit arguments, the most significant effect of the labels may be the parents’ response to and interpretation of the words used. An order for joint custody that authorizes one parent to make final decision if agreement cannot be reached may be an attempt to recognize and preserve the responsibilities of parenthood but to avoid continuing litigation when there is an impasse. Unfortunately this type of order may still provide one parent with reason not to seriously consider the other parent’s opinion or to meaningfully consult with the other parent. If this occurs the result may be further resentment by the insufficiently consulted parent and this can further impede the potential for joint decision making. am attracted to the comments made by Justice Bertha Wilson then of the Ontario Court of Appeal, in her dissenting opinion in Kruger v. Kruger (1979), 1979 CanLII 1663 (ON CA), 11 R.F.L. (2d) 52 (Ont. C. A.) at p. 73 commenting upon the concern about further litigation between parents: “And what if occasional resort has to be made to the courts when the parents cannot agree on major matter affecting the child? Is this to be determinative consideration? It seems to me to be modest price to pay in order to preserve child’s confidence in the love of his parents and with it his own sense of security and self-esteem.” [30] Children do benefit from joint decision making because they will have the benefit of the expedience, knowledge and analysis provided by each of their parents. However an appropriate consideration of each parental viewpoint may not occur if there is power imbalance. Why would it be in the best interest of child to create potential power imbalance? Is it because the court believes the parents will, if ordered, suddenly put aside their differences and fully participate in decision making? If this is the case the court should award joint custody without giving one parent “final decision making authority”. If it isn’t why wouldn’t an order giving one parent sole custody with requirement to inform and consult with the other parent be more in the child’s best interest? Perhaps joint custody is preferred to avoid the negative consequences word choice can have on parental perception. Parents who have joint custody may be less likely to consider their parenting role to have been diminished and therefore be less likely to withdraw from meaningful contact with their children. Continuing to respect the role and responsibility both parents have in fulfilling parental obligations may encourage parents to overcome existing conflict between them. These are suggestions found in reported decisions. However, joint custody must not be granted as form of wishful thinking. The nature and extent of the conflict between the parties must be analysed to determine if joint custody is in child’s best interest. [31] The court in Godfrey-Smith v. Godfrey-Smith (1997), 165 N.S.R. (2d), 245 (N.S.S.C.) at paragraph noted that the parents had in the early months of their separation displayed, “.... healthy amount of cooperation as far as the children were concerned.” The Court then stated: [17] It is painfully obvious to me that these parties in recent months have demonstrated depressing lack of cooperation. This has resulted in the vitiation of virtually all direct communication between them. They do not meet face-to-face. They do not talk on the phone. Their e-mails are curt at best. They use their children as messengers and then wonder why things get lost in the translation. [20] It seems to me that when facing contested application for joint custody court should make distinction between the parties’ inability to communicate as opposed to the parties’ unwillingness to communicate. To do so it will be necessary to explore their relationship with both pre-and post-separation with view to determining how they have historically handled parenting issues. [22] Thus, the parties relationship at the time of the divorce may be of less significance than the relationship during the marriage; it being expected that conflict precipitated by litigation will likely abate in time. ............ [32] There has been conflict between these parents. They no longer have face to face contact. Their conflict may have been fuelled by the existence of these proceedings. Excerpts appearing on pages 56 an 59 from Norris Weisman’s article entitled, On Access After Parental Separation, 36 R.F.L. (3d) 35 explain this phenomena: ...the adversarial nature of litigious proceedings can shift the focus of the hearing away from the children and their needs towards an emphasis on the martial sins of the parents; revive and escalate the conflict between the parents; harden their positions; and tempt them to exert pressure upon the child to choose one parent over the other........ ...the litigation itself is often motivated by need for public vindication, to ward off depression, or salvage shattered self –esteem. These parents enter into litigation to prove that the other spouse has behaved badly or is wrong, and, by contrast, that they themselves are good and right. [33] These parents were young and immature at the beginning of their relationship. They have faced personal challenges including raising their children while attempting to advance in their chosen careers. Each has parented these children alone for periods of time. Initially after separation they were able to work out child care schedule, admittedly with some difficulties, and make adjustments when necessary. However, the intervening conflict has caused the wife to perceive herself as a victim of the husband’s abuse; it has exposed her own lack of insight into the dynamics of their relationship and the impact upon their children; her reflex action is not to cooperate with the husband; she now has little respect for him. She has been unresponsive to his reasonable requests; her focus has not been upon the needs of her children. am not satisfied conflict driven by these factors will disappear merely because an order for joint custody, by its very nature, requires the parties to cooperate. am not persuaded the appropriate response to this dilemma is to provide an order for joint custody giving the husband final decision making authority. A track record of respectful parenting may alter this conclusion in the future but for the present I find it to be in the best interest of these children to be in the sole custody and care of the husband. [34] The husband shall provide the wife with information about all services provided to the children by others, including those provided by schools, physicians, dentists, counsellors, recreation providers, and religious institutions. He is to provide the name and address of service providers and he is to explain why the service is necessary if the reason for the services is not apparent. Copies of all reports received are to be given to the wife. The wife is to have the authority to consult with all third party service providers so she may be informed about their recommendations and understand the reasons for their recommendations. If these recommendations require parent to follow course of action when parenting child the wife shall comply with the recommendations when that child is in her care. Parenting Plan [35] Unfortunately neither party presented the court with detailed parenting plan outlining when the children will be in the wife’s care, what will happen during holidays, during the summer, on birthdays etc. do know the husband requests the children continue to be in the wife’s care as is set out in the Interim Order. The husband has stated he is prepared to agree the children be in the wife’s care for other periods. He had suggested they stay with her overnight on Sunday and then be taken by the wife to the school and caregiver. do not know if that is practical. do accept the evidence that the children appear to have experienced no negative consequences arising from the present schedule. The present schedule will remain in effect but it must contain further detail. The Interim Order does not state the pick up and return times. It does not state where transitions are to happen. Presently they take place away from the parties residences. This is unsatisfactory for the children but may lessen the potential for conflict. The order reflecting this decision is to include the detail about drop off and pick up times and the place for transitions. It is to include arrangements for holidays, Christmas, March Break and summer vacation. It is to include clause providing the wife such other reasonable parenting time as the parties can agree upon”. If the parties cannot agree upon the details and holiday parenting time retain jurisdiction to resolve these issues. CHILD SUPPORT [36] The parties have not made submissions requesting change in child support other than the change that may have been appropriate if shared parenting arrangement had been ordered. Therefore the wife shall continue to pay child support to the husband as is required by the terms of the Interim Order dated August 26, 2009. [37] If the parties are unable to resolve the issue of costs, the Husband shall first provide written submissions to this court and to the Wife after which she shall have 14 days to file with this court and copy her reply to the Husband. If the Wife raises anything in her submissions not addressed by the Husband in his he shall file with this court and copy to the Wife his response in writing within days. Beryl MacDonald, J.S.C.
The parties were separated and had difficulty communicating. They were together for eight years, and had two children (ages six and three). The husband had interim care and sought sole custody/primary care, while the wife wanted shared custody (50/50). She alleged the husband was abusive. The evidence showed she unreasonably refused to cooperate with him in relation to matters concerning the children. Sole custody/primary care to the father, with access to the mother as per the interim arrangement (every second weekend and other times). The mother was not credible and her allegations of abuse unfounded. If a party expects the court to believe there was domestic abuse, their position on parenting should reflect that. Shared custody arrangements require cooperation and the ability to jointly plan. Similarly, joint custody requires a level of cooperation. A requirement to make decisions jointly is not in the children's best interests if it leads to conflict and creates a potential power imbalance. Looking at the nature and extent of the parents' conflict, sole custody is appropriate until there has been an established track record of respectful parenting.