IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Farnell v. Farnell, 2002 NSSC 246
Date: 20021113
Docket: S.Am. 1202-001147
Registry: Amherst
Between:
Jason David Edward Farnell
Petitioner
v.
Maria Mathea Cornella Farnell
Respondent
Judge: The Honourable Justice Walter R. E. Goodfellow
Heard: November 6th and 7th, 2002 in Amherst, Nova Scotia
Written decision: November 13th, 2002
Counsel: Lloyd I. Berliner, for the Petitioner
Beryl A. MacDonald, Q.C., for the Respondent
By the Court:
Background
[1] Jason David Edward Farnell, now 33, and Maria Mathea Cornelia Farnell, whose first name is actually Mariette, now 31, cohabited for approximately two years prior to their marriage June the 7th, 1997 and they separated March the 19th, 2001.
[2] They have been blessed by two children of their marriage, Wyatt Jason Jan Farnell born July the 5th, 1999, now 3, and Priscilla Maria Susan Farnell born post separation on October the 24th, 2001, now approximately thirteen months old. The parties were dating in 1994 and Mr. Farnell moved to Fredericton and remained there for approximately ten months. He was at that time a carpenter by profession and Mrs. Farnell was completing her registered nursing course. Mr. Farnell did not want to live in Fredericton and wished to return home and they moved to his family=s property in Springhill and they were accompanied by Mrs. Farnell=s daughter, Katherine, who was then approximately four and a half years old. The home they built is immediately adjacent to the home of Mr. Farnell=s mother, father and a brother.
[3] The petition for divorce was issued March the 23rd, 2001 followed by an answer and counter-petition November the 26th, 2001 and there is an existing interim order of Justice Nathanson. Initially, there was an application for interim access in March, 2001 and this was addressed in a mediation setting by Justice Scanlan. The parties determined that the access schedule brought into being by this mediation process was complex and did not work to the satisfaction of both parents. The interim order of Justice Nathanson was issued on or about the 10th of May, 2002 and it provided the primary care and control of the children to their mother and specific access to the father for both children. The father was to have the son, Wyatt, every second weekend from Friday at 4:00 p. m. to Monday at 6:00 p. m. and to have his daughter with him for two hours on the day that he picks Wyatt up and again two hours on the day that he returns Wyatt.
[4] The parties resolved the division of matrimonial property and debts leaving outstanding the issues of custody, access and child support.
Divorce
[5] I conducted the inquiry as to the possibility of reconciliation required of the Divorce Act and having concluded there was no possibility of reconciliation, directed that the petition be proceeded with. I find all jurisdictional requirements have been met and that there has been a permanent breakdown of the marriage by reason of the parties having lived separate and apart for a period in excess of one year and the divorce is granted on both the petition and counter-petition.
Issues
1. What custody and access arrangement should be put in place in the best interest and welfare of the children? Should it be, as requested by the father, an equal sharing of time? That is to say, two weeks with the mother and two weeks with the father under a joint custody determination or a joint custody determination with the primary residence, care and control with one of the parents or a sole custody arrangement with access to the non-custodial parent?
2. Quantum of child support depending upon the determination of the first issue.
Evidence - Findings
[6] Both parents gave evidence and Mr. Farnell=s mother gave evidence as did Mrs. Farnell=s sister. It is clear that each of them and in particular the father seeks to cast fault and blame on the other and the other party=s family members for the breakdown of their marriage. It is neither necessary nor helpful for the future to relate each and every difference of opinion and different recollection of a particular circumstance although I will comment on some aspects in attempting to analyse the background situation, the personalities and parenting approaches, benefits and detriments of the various options being advanced by the respective parents, etc. It is clear that both parents deeply love their children and tended to overemphasize a number of the instances that they related, driven by a desire for the custody of their children and a concern that they individually might be precluded from playing a meaningful part in the lives of their children. It is clear from the evidence that Mr. Farnell is a somewhat opinionated individual lacking in flexibility. He will not consider employment in the Fredericton area where the children now reside, solely because he does not like that area. His suggestion that it relates to Mrs. Farnell=s brother and extended family is of no consequence in his clear determination that he does not like the Fredericton area. Mr. Farnell has a very strong attachment to his family and in particular his mother and a major source of friction between him and his wife was the constant attendances and communications by members of his family and particularly his mother. His mother is a very well meaning person who wanted desperately to have a strong relationship with her grandson, Wyatt, but unfortunately, like her son, it produced a somewhat smothering environment for Mariette. Mr. Farnell had the opportunity to take non-union jobs and even though the family needed resources, he has a strong view on principle to decline non-union employment. He conveys that his view should prevail in relation to parenting, the extent to which his mother is to be involved in the lives of these children, etc. His attitude towards the daycare centre selected by the mother which was a most reasonable unilateral determination by her because after all she had to make inquiries to satisfy herself as to the quality of the daycare, the fact that some of the children were known to their son, Wyatt, and the daycare had to obviously be in an approximate location to permit her to carry on her employment necessary to support the children. Mr. Farnell=s demand of the childcare centre for six references was fortunately not followed through. Mr. Farnell=s complaint to the authorities with respect to the old septic field, which Mrs. Farnell addressed in her evidence, suggests strongly to me that Mr. Farnell was likely aware that it was not a health problem to the children at the time that he made a semi-formal complaint to the authorities. I must in fairness to Mr. Farnell indicate that underlying everything he does is a genuine love of these children. Mr. Farnell=s discontinuance of assisting in the transportation of Katherine to see her father and his adamant refusal to discuss this issue, despite an adverse impact on Katherine=s relationship to him, is but another example of his tendency to a rigid unilateral determination.
[7] Mrs. Farnell, upon her return to Fredericton with the children, re-established a relationship with her extended family and after a few months actually moved into her late father=s family home where she and the two children now reside and have for some considerable period of time. Mrs. Farnell is employed as a registered nurse and the financial assistance provided by Mr. Farnell to the children since the separation leaves much to be desired. Mrs. Farnell=s daughter from a previous relationship, Katherine, who is now twelve years old, resides with and is a member of the family unit which includes her mother, Wyatt and Priscilla. Katherine does have a continuing relationship with her father, David Barclay and it appears that she goes with her father basically every second weekend and that is a timing factor that needs to be taken into account. There is a considerable age difference between Katherine and the two younger children, nevertheless, it is desirable that whatever determination is made the relationship between Wyatt, Priscilla and Katherine should be fostered.
[8] Mr. Farnell, as I have indicated, is certainly entitled to pursue a new career particularly where funding is available, however, it adds a real element of uncertainty as to where he will be residing in approximately seven months when he completes his paralegal course. He has no firm or real prospective employment lined up and the only evidence in that regard is that he spoke to a local barrister sometime ago and who indicated that he was interested in possibly engaging down the road a paralegal and in a subsequent brief conversation indicated he had too many files and was too busy to address the situation. Mr. Farnell wants to limit his employment to an area roughly encompassing Truro, Springhill, Amherst, Moncton and this of course is due substantially to his overwhelming desire to remain close to his family. It may well be, however, that unless he reverts to his previous employment as a carpenter, the pursuit of his career will take him elsewhere. At this moment it certainly is an uncertain employment future for Mr. Farnell and Mrs. Farnell=s situation is far more stable and predictable.
Issue Number One
1. What custody and access arrangement should be put in place in the best interest and welfare of the children? Should it be, as requested by the father, an equal sharing of time? That is to say, two weeks with the mother and two weeks with the father under a joint custody determination or a joint custody determination with the primary residence, care and control with one of the parents or a sole custody arrangement with access to the non-custodial parent?
[9] I address first whether or not there ought to be a designation of joint custody. Section 16 of the Divorce Act emphasizes the importance of children maintaining maximum contact with both parents after the dissolution of a marriage and s. 16(10) sets out the specific principle that the child should have as much contact with each parent as is consistent with the best interest of the child and for that purpose the court shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.. I agree with Levy, a family court judge, in C.S.M. v. D.J.M., [1992] N.S.J. No. 635 with the fact parties are antagonistic or do not communicate effectively is not in itself a bar to a determination of joint custody as to elevate it to such would run the risk of providing a license for at least one parent to be disagreeable and lacking in cooperation to defeat a joint custody determination. I am satisfied that in this case there is no conduct on the part of either parent to deliberately attempt to defeat a joint custody determination. That is not to say that there are not serious problems with communication and a real concern by the court as to a joint custody determination possibly becoming a tool of abrasiveness and attempt at control by Mr. Farnell should he pursue his relentless determination to be a father to these children twenty-four hours of each and every day. Both parents need to set aside their differences in the best interest and welfare of the children by promoting respect for the other parent and not conduct themselves consciously or subconsciously to gain favour with their children. This is not a competition to see who can influence the children the most for that parent=s own custodial position. Such an approach is disastrous for the children and I am satisfied that subconsciously at least Mr. Farnell has conveyed to Wyatt his burning desire to have Wyatt in Springhill. There is no other answer for the manner in which this little boy, really still a baby, responding to his mother as he did after spending a month last summer with his father.
[10] Despite the court=s reservations, I think the tremendous love each parent has for these children, plus hopefully the possible easing of the emotional stress that should take place by having the outstanding issues of custody and access determined, will permit a joint custody designation to function in the best interest of the children. I am, however, totally convinced that a shared joint custody arrangement, as suggested by the father, would be not only unworkable but at this juncture probably harmful to the children because it would likely encourage fostering of conflict in the children as to where their home existed. 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 the other 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 whatever extracurricular activities, church or other activities that they would normally engage in. Such a situation is next to impossible to attain and continue when children live at long distances and where it is sought to have them live equally in two separate provinces. Mrs. Farnell has established a stable environment and it would be gambling with the best interest and welfare of these children to alter it. Having said that, I am prepared to define a joint custody arrangement and present the parents the opportunity to make it work in the best interest of the children.
[11] A joint custody designation should, in most circumstances, be clearly defined and I do so here in the same manner as was done in Loughran v. Loughran (2000), 182 N.S.R. (2d) 143; namely,
[12] The parties shall share joint custody of their children, Wyatt Jason Jan Farnell born July the 5th, 1999 and Priscilla Maria Susan Farnell born October the 24th, 2001, with the day to day parenting and residence of the children to be with their mother. Their mother will make every reasonable effort to consider the suggestions and views of the father on parenting. It is recognized that the mother shall have their final determination on all aspects of parenting, including consideration of residence, school, discipline, health, extracurricular activities, etc.
[13] Turning now to the access the children should have to their father, I start by indicating my agreement with Mr. Berliner that the access to date of the daughter, Priscilla, to her father has been inadequate. In Glavin v. Glavin (1994), 130 N.S.R. (2d), 161 this court addressed access at p. 168:
Access
[29] Access is to be determined on the factual situation which includes many variables including the attitude and approach of the parents, the degree of agreement or disagreement between them, the age of the child, geographical considerations, the involvement of the child in school activities and extracurricular activities be they athletic, cultural or spiritual, etc., etc.
[30] There is, however, a considerable amount of guidance from experience, and generally it is accepted that the starting point is standard access expressed in the following terms:
[14] I see no need to set out the actual terms recited but move on to note that there followed a preliminary outline in para. 33 at p. 169 with the comment:
[33] The foregoing is a basic preliminary outline which varies for all the reasons I have mentioned and many, many other reasons as no exhaustive list could possibly be prepared.
[15] The factual situation here in its totality leads to the conclusion that the appropriate arrangement with respect to access by the children to their father should be as follows:
1. The existing interim arrangement with respect to access shall continue to the end of November, 2002.
2. Both children shall be with their father every second weekend for the time period presently in effect, namely, Friday at 4:00 p.m. to Monday at 6:00 p.m. This will occur for the month of December, 2002 for one of the first two weekends in the month as both children shall be with their father from 3:30 p.m. Wednesday, December the 18th to be returned to their home in Fredericton by 6:00 p.m. Monday, the 23rd of December. The father shall designate in writing on or before the 21st of November which weekend of the first two weekends in December, 2002 he wishes to have both children with him. The children will remain with their mother for the balance of December and the every second weekend access of the children to their father shall recommence on Friday, the 3rd of January to be returned Monday, the 6th of January by 6:00 p.m.with such extended weekend access to continue every second week. I would recommend that the parties sit down with a calendar and project dates based on the access ordered for the entire year 2003, as there may be a need for some adjustment where access, particularly on weekends, runs into access of a block period. If the parties are unable to resolve this by the end of January, 2003, I shall make myself available for that purpose. Similar block access for the Christmas period shall continue in the following years to be determined when employment, holidays, etc. are more predictable. The block access shall be either before or after Christmas Day as the children should remain with the parent having their primary care on Christmas Day.
3. Both children shall be with their father for two periods of block access during the summer school vacation period July - August annually. One period a two week period and a further period of one week, the periods to be broken by a one week period where the children shall reside exclusively with their mother and without access to their father. In addition, the mother shall be entitled to a further two week period during the summer school vacation period of the children remaining with her without access to the father, the intent being that each parent shall have an exclusive total period of three weeks where the children will remain with the respective parent without being required to be transported, etc.
4. The parties shall alternate Easter and March break periods with the mother to have the children for March break in the even years and Easter holiday period in odd years with the father to have the children for March break in odd years starting 2003 and the Easter holiday period in even years which means the father shall have the children over Easter in the year 2004.
5. The children shall have reasonable telephone communication with the father and with their mother during all access and non-access periods.
6. When one of the children commences schooling there will of necessity be a review of the extended weekend access probably limiting it to from Friday to Sunday evenings but providing as reasonably as possible that the children be with their father when there is a statutory holiday or school holiday on either the Friday or Monday.
[16] During the course of the evidence, it became clear that Mrs. Farnell made an accommodation to Mr. Barclay by providing part of the transportation when Katherine was very young and Mr. Farnell seeks that he be provided some assistance in the transportation relating to access. After careful consideration, I conclude that he should be solely responsible for transportation and this removes an area of friction plus it is difficult for Mrs. Farnell working at times very lengthy shifts as a nurse and she has the added responsibility for Katherine. Accordingly, Mr. Farnell shall be responsible for transportation for the exercise of access.
[17] While I do not see any major problem that exists with respect to Mrs. Farnell keeping Mr. Farnell informed with respect to the school activities, I think it may be of comfort to have the order contain a provision confirming her responsibility and obligation to keeping him advised with respect to all school reports, name of the family doctor, family dentist in due course, medical conditions with respect to the children, report on any extracurricular activities, etc. and that she should comply in a timely fashion.
Issue Number Three
3. Quantum of child support depending upon the determination of the first issue.
[18] The parties separated March the 19th, 2001. Their son, Wyatt, has been with his mother since then and their daughter, Priscilla, with their mother since her birth, August the 24th, 2001. The payments made by Mr. Farnell for child support prior to the interim order are as follows:
April 13, 2001 - $ 70.00
May 18, 2001 - $ 50.00
June 2, 2001 - $ 80.00
August 24, 2001 - $ 50.00
September 21, 2001 - $ 50.00
November 30, 2001 - $100.00
December 22, 2001 - $100.00
January 25, 2002 - $ 60.00
February 8, 2002 - $ 60.00
February 25, 2002 - $ 75.00
March 22, 2002 - $100.00
$795.00
[19] Mr. Farnell also indicates that he bought a coat, boots, a pair of sneakers and some diapers but I am left with the impression these were not a significant contribution in kind or in costs. Mr. Farnell=s income for years 1998 to 2001, as shown by his income tax returns, is as follows:
1998 - $11,962.00
1999 - $20,774.14
2000 - $31,819.99
2001 - $22,004.96
[20] Mr. Farnell=s revised updated statement of financial information lists his employment insurance benefits at $282.00 per week, a monthly amount of $1,212.60. This is in effect a living allowance permitting him to attend community college where he is pursuing a paralegal designation. He expects to graduate in May of 2003. The revised statement is inaccurate in that it declares his net per week and it should always indicate the gross amount. His gross is $318.00 per week, a present annualized rate of $16,536.00. He entered his school program in the fall of 2001 which in part counts for the reduced income of $20, 774.14 in 2001 from previous year of employment and E.I. There is no criticism of Mr. Farnell deciding to take a paralegal course even though he is a highly qualified carpenter. He has had some difficulty with the physical component of being a carpenter and is certainly entitled, as he is receiving a living allowance, to pursue education which will present him hopefully with a new career as a paralegal and he indicates that as a paralegal his income would be in the range of $12.00 per hour.
[21] The parties had a chambers application which resulted in the interim order referred to which was based upon Mr. Farnell=s income for child support guidelines being at the annualized rate of $17,200.00. The order required him to pay $251.00 per month for the support of the two children with a reduction of $51.00 per month towards the considerable cost associated with transportation to exercise access with his children. The $200.00 per month payments began the 15th of May, 2002. It is clear that prior to the interim order and at least from the date of Priscilla=s birth, he ought to have been paying from his $22,000.00 2001 year income $313.00 per month for the two children and as indicated, he fell dramatically below that which other non-custodial parents have been called upon to contribute to their children.
[22] The obligation to support one=s child arises from being a parent and not from a demand or court order enforcing the pre-existing obligation. The existence of the child support guidelines has become very well known and I am satisfied that Mr. Farnell probably knew from the outset of his first engagement of legal counsel shortly after separation that his existing financial obligation to then Wyatt would likely be the child support guideline. There is absolutely no excuse or tolerance for a parent to not pay her or his reasonable share for the support of their child. The equity principle of coming to court with clean hands probably has more relevance when it comes to a parent=s responsibility to a child than in any other litigation.
[23] Based on his present annualized income of $16,432.00, the child support guideline payment is $244.00 per month. Mr. Farnell asked for consideration to the heavy costs of exercising access and also pleads that he has inadequate resources to attend to his own needs and files a statement of financial information revised showing a budgetary deficit of $843.60 per month. This requires some comment. To begin with, he has calculated his deficit on his net income and not his gross. He has the home on property owned by a member of his family and therefore pays no mortgage or rent and only municipal taxes. He lists his food expenditure at $350.00 per month and adds a further $50.00 for meals while he is travelling and this food estimate of $400.00 per month is exclusive of household supplies at a further $50.00 per month and also entertainment at $50.00 per month. His budget contains an expenditure for legal fees of $187.00 per month and that should not be in his budget for a maintenance determination. See Webb v. Webb (1995), 135 N.S.R. (2d) 161. Mr. Farnell lists the travel expenditures for access at $330.00 per month. He also includes clothing for a child in his personal clothing allowance and says that he is paying $100.00 per month for school supplies and tuition books on a $3,300.00 student loan. Obviously he is not incurring a deficit as he projects and other than some limited assistance with respect to the exercise of access, he simply needs to recognize the priority of providing for his children to an appropriate level which he did not do for a considerable period post the separation. It seems to me that on balance the appropriate and reasonable determination is to continue the existing order of $200.00 per month which means a reduction of $44.00 per month from the child support guidelines as a contribution by Mrs. Farnell to the cost of access incurred by the father. It should be recognized that by far the majority cost of maintaining these two children falls upon their mother. Hopefully, Mr. Farnell will secure employment on completion of his school year that permits him to provide an increased level of assistance and meet a higher portion of the financial responsibilities for these two children.
J.