Vaculik v. Vaculik, (2015) 363 N.S.R.(2d) 162 (SC)

• Judge: Lynch, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 23, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 363 N.S.R.(2d) 162 (SC);2015 NSSC 202

Vaculik v. Vaculik (2015), 363 N.S.R.(2d) 162 (SC);

    1143 A.P.R. 162

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JL.031

Holly Michelle Vaculik (applicant) v. Michael James Vaculik (respondent)

(Hfx. No. 1201-066730; 2015 NSSC 202)

Indexed As: Vaculik v. Vaculik

Nova Scotia Supreme Court

Family Division

Lynch, J.

July 14, 2015.

Summary:

The parties married in 2005, had a child in 2009, and divorced in 2014. The August 2014 corollary relief order provided the mother with sole custody of the child and the father with specified parenting time in the United States. In September 2014, the mother applied to vary the order by having the father's parenting time restricted to visits in Nova Scotia. She also sought an order that all communications go through her counsel.

The Nova Scotia Supreme Court, Family Division, allowed the application and awarded the mother costs of $10,000.

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare or best interests of child paramount - [See Family Law - Topic 2004 ].

Family Law - Topic 1900

Custody and access - Considerations in awarding custody - Maximum contact with each parent - [See Family Law - Topic 2004 ].

Family Law - Topic 1947

Custody and access - Variation of custody and access rights - Changed circumstances - General - An August 2014 corollary relief order provided a mother with sole custody of the parties' child and the father with specified parenting time in the U.S. - There was to be no direct communication between the parties except in writing through the "Our Family Wizard" website - During the father's first scheduled parenting time in the U.S., he threatened to not return the child - The mother obtained an ex parte order allowing her to take the child into her care and had it registered in the U.S. - The father ended up returning the child at the scheduled time - The father continued to communicate directly with the mother - His communications were sometimes threatening, abusive and misogynistic - The mother applied to vary the order in September 2014 - The Nova Scotia Supreme Court, Family Division, allowed the application - The father's threat to not return the child in August 2014 was a material change in circumstances - His disregard of the communication restrictions, and the fact that he said negative things about the mother directly to the child, was also a material change that affected the needs of the child which was not foreseen at the time of the order - See paragraphs 18 to 20.

Family Law - Topic 1991

Custody and access - Access - Considerations in awarding access - Welfare of child - [See Family Law - Topic 2004 ].

Family Law - Topic 1994

Custody and access - Access - Considerations in awarding access - Conduct of parents - [See Family Law - Topic 2004 ].

Family Law - Topic 2004

Custody and access - Access - Grounds for refusal, restriction or variation of access - A corollary relief order provided a mother with sole custody of the parties' child and the father with specified parenting time in the U.S. - There was to be no direct communication between the parties except in writing through the "Our Family Wizard" website - During the father's first scheduled parenting time in the U.S., he threatened to not return the child - The mother obtained an ex parte order allowing her to take the child into her care and had it registered in the U.S. - The father ended up returning the child at the scheduled time - The father continued to communicate directly with the mother - His communications were sometimes threatening, abusive and misogynistic - The mother applied to vary the order by having the father's parenting time restricted to visits in N.S. - She also sought an order that all communications go through her counsel - The Nova Scotia Supreme Court, Family Division, allowed the application - Restrictions on the father's access and communications were in the best interests of the child, which took precedence over the maximum contact principle - The father's actions were emotionally damaging to the child - The father was granted two non-consecutive weeks of access per year to be exercised in N.S. - Communication between the child and the father would be at the mother's discretion - See paragraphs 21 to 36.

Family Law - Topic 2010

Custody and access - Access - Access awards - Time and place limitations - [See Family Law - Topic 2004 ].

Family Law - Topic 2189

Custody and access - Practice - Costs - Following a multi-day trial, a corollary relief order was issued in August 2014 which provided a mother with sole custody of the parties' child and the father with specified parenting time in the U.S. - During the father's first scheduled parenting time in the U.S., he threatened to not return the child - The mother obtained an ex parte order allowing her to take the child into her care and had it registered in the U.S. - Contrary to the corollary relief order, the father also communicated directly with the mother - His communications were sometimes threatening, abusive and misogynistic - The mother successfully applied to vary the order by having the father's parenting time restricted to visits in N.S., and requiring that all communications from the father go through her counsel - The mother's legal fees totalled $11,137.74 for the variation application and $7,000 for the ex parte motion - The Nova Scotia Supreme Court, Family Division, awarded the mother lump sum costs of $10,000 - The proceedings were necessary due to the father's actions - The father was granted an adjournment of the hearing which was scheduled for April 2014, then did not inform the court or the mother until several days before the June 2015 hearing that he would not be attending - His affidavit was filed late - He had not paid child support, spousal support, or a previous costs award - See paragraphs 37 to 41.

Family Law - Topic 4064

Divorce - Corollary relief - Custody of children - Variation of custody order - [See Family Law - Topic 1947 ].

Family Law - Topic 4065

Divorce - Corollary relief - Custody of children - Conduct necessary to support variation - [See Family Law - Topic 1947 ].

Family Law - Topic 4182

Divorce - Practice - Costs - Lump sum - [See Family Law - Topic 2189 ].

Cases Noticed:

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 19].

L.M.P. v. L.S. (2011), 424 N.R. 341; 2011 SCC 64, refd to. [para. 19].

M.T. v. M.G., [2010] N.S.R.(2d) Uned. 44; 2010 NSSC 89, refd to. [para. 23].

Doncaster v. Field (2014), 344 N.S.R.(2d) 63; 1089 A.P.R. 63; 2014 NSCA 39, refd to. [para. 23].

V.S.J. v. L.J.G., [2004] O.T.C. 460; 2004 CarswellOnt 2159 (Sup. Ct.), refd to. [para. 32].

Armoyan v. Armoyan (2013), 337 N.S.R.(2d) 365; 1067 A.P.R. 365; 2013 NSCA 136, refd to. [para. 37].

Counsel:

Christine Doucet, for the applicant;

Judith Schoen, for the respondent.

This application was heard in Halifax, N.S., on June 23, 2015, before Lynch, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following judgment on July 14, 2015.