This Month in NS Family Law – July 2021
S.S. v. J.G., 2021 NSSC 228
Honourable Justice Pamela A. Marche
Issues: Shared custody v Primary Care | Best interest test | Retroactive child support | Voice of child report | s.7 Health Insurance Premiums | Child support
At a variation application, the mother sought primary care and final decision making, and the father sought shared parenting of the parties’ 13 year old son. The Court also considered whether the child should have some discretion about spending overnights with JG, and what child support is payable prospectively and retroactively.
The Court granted the mother final decision-making authority and primary care of LG, with the parents alternating holidays. The child is involved in counselling and has ADHD, his performance and attendance at school has recently been suffering. He is heavily involved in online gaming and making videos on TikTok, sometimes late at night and in the early morning. The father suggested that the son’s challenges were partly connected with the mother’s parenting, citing her inability to enforce bedtimes and a lack of discipline. In her evidence, the mother accepted that she was having some issues with bedtime. The Court found that although the mother had room for improvement, she was not derelict. The Court considered evidence given by the family’s doctor, the principal at LG’s school and LG’s counselor, and gave significant weight to third party evidence that the mother was engaged in the child’s school. The Court identified that the father had significant tension with many of the child’s support team and doctors, and that the parties themselves are unable to cooperate and communicate.
Further, the Court found that many of the claims made by the father about the mother’s inadequacy as a parent were overexaggerated and unsubstantiated. The Court did not accept the claim that the mother alienated LG from his father. Instead, the Court suggested that the long posts made by the father on Facebook about the legal case were harmful to LG’s mental health and relationship to his parents.
The Court determined that the child should exercise discretion about spending overnights with the father but required the mother to encourage overnight visits. The Court made this decision in part due to a Voice of the Child Report because LG is mature enough to express his own opinion and the Court did not find evidence of him being unfairly influenced to have these opinions. The Court followed the guidance of John v John, 2012 NSSC 324 in placing weight on the wishes of LG as expressed in the Voice of the Child Report.
C.P. v L.D., 2021 NSSC 230
Honourable Justice Pamela A. Marche
Issue: Relocation | Mobility
The father filed a variation application seeking permission to relocate to Alberta with the parties’ 10 year old child. The father had primary care of the child as of 2016. Given this, the Court identified that the onus was on the mother to show that the relocation is not in the child’s best interest.
The legislation that the court considered in deciding whether to vary the Court order was the Parenting and Support Act. The father was permitted to move because this allowed for greater financial and emotional support for ADP. He has been offered permanent employment in Alberta which will allow for greater, more consistent earning potential as well as more routine time at home, as compared to his previous seasonal shift work. The mother has not sought parenting time since September 2020. There was no evidence provided by the mother that the move is not in the best interest of ADP. The mother was granted three weeks of supervised parenting each summer and the father has provided evidence that he is happy to continue to facilitate the relationship between LD and her mother via electronic communication.