Supreme Court

M. v M., 2015 NWTSC 70 S-1-DV-2015-104361 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETWEEN: D. B. M. Petitioner

- and - R. M. Respondent

__________________________________________________________ Transcript of the Oral Decision delivered by The Honourable Justice A. M. Mahar, sitting in Yellowknife, in the Northwest Territories, on the 11th day of December, 2015. __________________________________________________________

APPEARANCES: Ms. T. Paradis: Counsel for the Petitioner Mr. R. M.: For himself, the Respondent Official Court Reporters

1 THE COURT: On December 3rd and 4th, 2015, 2 the Court heard a contested application, with 3 viva voce testimony from both the Applicant and 4 the Respondent, as well as information provided 5 by Mr. Ken Kinnear on behalf of the child. 6 While, technically, this application is pursuant 7 to a Petition for Divorce, the divorce itself is 8 not contested and the application is concerned 9 primarily with the custody and day-to-day care of 10 one of the two children of the relationship. 11 12 BACKGROUND 13 The parties separated at the beginning of 14 November 2012. They entered into a formal 15 Separation Agreement on January 22nd, 2013. The 16 agreement dealt in a comprehensive way with the 17 dissolution of the marriage, including the 18 division of property and the custody of the two 19 children of the marriage, B., born 20 December 1, 2002, and C., born October 4, 21 1997. The parties agreed to share equally the 22 custody of the children and, while the actual 23 arrangement was not specified in the agreement, 24 the practice generally was to have the children 25 alternate between the parents' homes on a 26 week-to-week basis. 27 While this application originally included

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1 both children, C. has since begun attending 2 university in Ontario, no longer resides at 3 either residence on a regular basis, wishes to 4 maintain the shared parenting arrangement when 5 she does so reside, and issues concerning her 6 custody are no longer an issue before the Court. 7 On January 15, 2015, the Applicant mother 8 served the Respondent father with a Petition for 9 Divorce. In it, she sought to vary the terms of 10 the agreement, suggesting joint custody but 11 allowing her day-to-day care and child support 12 payable by the Respondent according to the 13 Guidelines. This position was presented at the 14 hearing, but now only applies to the child 15 B.. 16 The Respondent did not agree with the 17 proposal in the Petition for Divorce. He seeks 18 to maintain the equal, shared parenting 19 arrangement that the parties entered into upon 20 separation and which is clearly reflected in 21 their Separation Agreement. 22 On March 20, 2015, a Consent Order was made 23 appointing the Office of the Children's Lawyer to 24 present B. in these proceedings. Mr. Kinnear 25 took over carriage of the file. B.'s 26 position is that she wishes to see the agreement 27 varied, giving primary care to her mother, and

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1 continuing access to her father. This has been 2 her consistent position for some time. 3 4 ANALYSIS 5 B. and her mother have a very close 6 relationship, which is acknowledged by all the 7 parties. The Application describes her daughter 8 as sensitive and inquisitive. She tries to 9 inspire her daughter daily, and finds ways to 10 stimulate her both intellectually and 11 emotionally. She attempts to encourage her on 12 the road to emotional maturity. The Applicant 13 contrasts this with B.'s relationship with 14 the Respondent, where conversation is more 15 limited and where B. has a fair amount of 16 alone time. The Applicant suggests that B. 17 needs the consistent structure and positive and 18 supportive environment that only she can provide. 19 The Children's Law Act, Section 17(2)(b), 20 states that the wishes of the child in these 21 matters are a factor to be considered. The older 22 a child is, the easier these wishes are to 23 ascertain and the greater the weight they may be 24 given. The wishes of the child are never, 25 however, determinative in and of themselves. 26 They are simply a factor. There are good reasons 27 for this distinction. It would be terribly

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1 unfair to force a child to decide between their 2 parents and would open the door to manipulation 3 and pressure. 4 While the Applicant has framed this issue as 5 one relating to B.'s best interests, and 6 while I have no doubt that she believes that 7 B. living full-time with her would be in 8 B.'s best interests, I have serious concerns 9 about this suggestion. 10 B. has been described by everyone as a 11 socially advanced, emotionally mature, and 12 intellectually gifted child. Apart from some 13 understandable sleep issues that manifested 14 shortly after the separation, she appears to have 15 been thriving under the shared parenting 16 arrangement. She has been doing well in school 17 and appeared happy and well adjusted. It is only 18 in the last year, since this application was 19 filed, that she has been undergoing some 20 difficulties. This application and the resulting 21 pressure from both of her parents has made her 22 anxious and unhappy. 23 Her father has discussed with B. the 24 financial consequences of changing the 25 arrangement - specifically, that he may have to 26 downsize his home due to the additional expense 27 of child support. He has at times been angry and

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1 frustrated and has discussed more of this with 2 his daughter than was appropriate. 3 The pressure from the Applicant mother is 4 more difficult to characterize. I found the 5 mother's description of how this request to vary 6 came about troubling. When the suggestion of an 7 uncontested divorce was raised by the father, the 8 mother went to B. and told her to decide what 9 she really wanted. Did she want to keep going 10 back and forth between the two of them, or did 11 she want to live with her mom and visit her dad? 12 The weight of this entire matter was placed 13 squarely on her 12-year-old shoulders. This was 14 presented under the guise of giving her a choice, 15 and I am sure that the Applicant believes she was 16 empowering her daughter, but there was never any 17 real choice. When her mother told her to decide 18 what she really wanted and not to be concerned 19 about anybody's feelings, the feelings in 20 question were her father's. If the Applicant had 21 had any inkling that B. might have wanted to 22 live primarily with her father, this conversation 23 would never have happened. It is also clear that 24 the Applicant kept the pressure up, with B. 25 finally having to tell her to stop talking about 26 it. This is in the context of a child who can 27 say such innocently revealing things as "I don't

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1 needs a counsellor. I have my mother," and in 2 reference to her mother, "I'm not being 3 manipulated - I don't think..." 4 When the Applicant was cross-examined by 5 Mr. Kinnear, she was asked whether or not she had 6 told B. that if B. did not decide she 7 wanted to change the living arrangements, she 8 would not be able to be her mother anymore. The 9 Applicant denied this, saying B. must have 10 misunderstood her. I am not sure what she could 11 possibly have said to cause her sensitive and 12 intelligent daughter to come to that 13 misunderstanding, but whatever it was, it was not 14 benign. 15 Mr. Kinnear described B. as a peacemaker 16 and suggests that her position in this matter may 17 well be what she perceives as the easiest way to 18 bring this conflict to an end. This is also 19 troubling, because it means she is less afraid of 20 her father's reaction to ending the shared 21 parenting regime than she is of her mother's 22 reaction to maintaining it. This suggests that 23 the pressure from her mother is far more 24 significant to her than the pressure from her 25 father. 26 Higher courts have consistently held that in 27 most cases the best interests of a child will be

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1 reflected in a living arrangement that maximizes 2 the child's contact with both parents. An equal 3 and shared parenting regime, as reflected in the 4 Separation Agreement in this case, is one of the 5 simplest ways of accomplishing this goal. It is 6 commendable that the parties were able to make 7 this work for three years, four if we include the 8 year since the petition was filed, and 9 unfortunate that this could not simply have 10 continued. 11 The Applicant suggests that reducing the 12 Respondent's access to one weekend every two 13 weeks would actually benefit his relationship 14 with his daughter, which is somewhat 15 self-serving. She has testified that she values 16 B.'s relationship with her father. Yet at 17 some point in the recent past she was considering 18 moving to Hay River, which would certainly not 19 suggest any value being place on this 20 relationship. During the course of her 21 testimony, it became obvious that she sees 22 herself as the only really competent parent. 23 During her testimony, the Applicant appeared 24 to have a difficult time acknowledging anything 25 positive about the Respondent or his relationship 26 with B.. She took many opportunities to cast 27 the Respondent in a negative light and was

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1 evasive and non-responsive to questions which ran 2 counter to her own interests. I contrast this 3 with the Respondent's comments about the 4 Applicant, and I quote: "she benefits from 5 living with her mother, just as she benefits from 6 living with me," and, speaking about both of the 7 children, "Mom has a huge positive influence in 8 their life". 9 The Applicant is clearly an intelligent and 10 well educated person. With no insult intended to 11 the Respondent, she is more articulate and subtle 12 in her use of language than he is. In spite of 13 this, the Applicant displayed a consistently 14 negative attitude towards the Respondent during 15 her testimony. If this is the case in court, 16 when she would be expected to present herself in 17 the most positive light, I have some concern 18 about how she is dealing with her obvious 19 feelings about her ex when she is alone with the 20 children. 21 Mr. Kinnear, who the Court commends for 22 doing an excellent job of balancing the highly 23 nuanced responsibilities of acting for a child in 24 circumstances like this, told the Court that he 25 saw no evidence of alienation, as it is commonly 26 understood, in his dealings with B. I 27 agree. "Alienation" as a legal term is used to

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1 describe rather severe behaviour and 2 consequences, which are not present in this case. 3 I have not been asked to make such a finding, nor 4 is the Respondent seeking anything other than the 5 continuation of the shared custody arrangement. 6 It was suggested by counsel for the 7 Applicant, however, that the shared parenting 8 arrangement is not working. I do not believe 9 this to be the case. Both parents were able to 10 provide a good environment for their children for 11 three years - four, actually - and I see no 12 reason why they could not do so again. I do not 13 know why their relationship has deteriorated to 14 the extent that it has over the last year, but I 15 believe that two capable people who are committed 16 to the welfare of their children can fix it. 17 It is fair to say this, however: if a court 18 is faced with a breakdown in a shared parenting 19 arrangement where one parent is supportive of the 20 child's relationship with both parents and the 21 other is not, the Court could easily decide to 22 award primary custody to the parent who it 23 believes is doing the least damage to all the 24 important relationships in the child's life. 25 I see nothing broken about B.'s 26 relationship with her father and nothing about 27 her life with him that causes me concern. She is

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1 blessed in having a good relationship with both 2 of her parents. She may not be constantly 3 engaged in her father's home the way she is at 4 her mother's, but that is not necessarily a bad 5 thing, given that independence is something that 6 parents often try to encourage. She may not have 7 the sort of deep emotional connection with her 8 father that she does with her mother, but she 9 obviously loves him and he her. Her friends are 10 welcome in her father's home, she and her father 11 go on outings to Tim Horton's together, he annoys 12 her by trying to interest her in golf and 13 placates her by letting her drive the cart; all 14 of these things are features of an ordinary and 15 healthy life. 16 Cutting through all the complicated 17 competing arguments, at the bottom of this 18 application is the Applicant's strong desire to 19 have her daughter more or less to herself and the 20 daughter's stated preference for spending time 21 with her mother rather than her father. It would 22 be tragic if the courts undertook to decide 23 custody based on which parent is a child's 24 favorite, or based on which parent that child is 25 most anxious to please. The application to vary 26 the custodial arrangements for B. is denied. 27 Given the absence of counsel for the

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1 Respondent, Ms. Paradis, I was planning on 2 finalizing the divorce order. Is that something 3 that you are seeking at this point in time as 4 well? 5 MS. PARADIS: No, sir. 6 THE COURT: So simply an order with 7 respect to the Separation Agreement? 8 MS. PARADIS: That's correct. 9 THE COURT: Because the way the 10 applications were framed, it was framed as a 11 petition for a divorce in response to that 12 petition. But you are not seeking the Divorce 13 Order at this point? 14 MS. PARADIS: That's right. Your Honour, in 15 order to commence an application with respect to 16 these children, we had to start it by Petition 17 for Divorce, otherwise we'd have two separate 18 actions. 19 THE COURT: Very well. Then the Order 20 will stand as I just stated. 21 Given the absence of counsel, if anybody 22 wishes to make an application with respect to 23 costs, they can do that further down the road. I 24 know costs were asked for in both applications, 25 but in the absence of counsel, I do not see any 26 point in getting into that at this point in time. 27 As an aside, she sounds like a wonderful

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1 little girl, and I hope that everybody can do 2 what they need to do to make this situation work 3 for her. I hope that getting this done before 4 the holidays gives you both a chance to have some 5 time to work on that. Close court. 6 ................................. 7 8 9 Certified Pursuant to Rule 723 of the Rules of Court 10

11 12 Jane Romanowich, CSR(A) 13 Court Reporter

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