[1]     This decision deals with various claims under the Parenting and Support Act and Matrimonial Property Act.

[2]     Under the Parenting and Support Act, R.S.N.S. 1989, c. 160, I’m to determine decision-making responsibility, parenting time, relocation, exchanges, child support, and spousal support.

[3]     Under the Matrimonial Property Act, R.S.N.S. 1989, c. 275, I’m to decide the allocation of debt.

[4]     The central claim (on which much turns) is Ms. DeLeon’s request to relocate the couple’s child, 4 ½ year old Martayjah, to Alberta. 

[5]     This hearing was conducted over 3 days.  It was scheduled on February 23 when Ms. DeLeon was self-represented.  For a period of a 3 months from early May until early August 2022, Ms. DeLeon had counsel.  She began representing herself again on August 4, 2022.  She retained new counsel in mid-November when her new counsel sought an adjournment.  I denied the request:

[6]     I acknowledge that Ms. DeLeon’s counsel did not have the time she would like to prepare for the hearing.  That time was available to Ms. DeLeon. 

[7]     When a move can reasonably be expected to have a significant impact on the child’s relationship with the remaining party, it is considered a relocation.  Under the Parenting and Support Act, a person planning to relocate is required to provide written notice of their plan to the remaining person 6 months in advance of the relocation with specific detailed information.  The Act identifies specific considerations I’m to have in deciding a request to relocate under subsection 18H(4).

[8]     Here, Ms. DeLeon proposes (and has already given effect to her plan) to move to Alberta.  There’s no question whether the move “can reasonably be expected to have a significant impact” on Martayjah’s relationship with Mr. DeLeon.  The move has been shown to have a significant impact on Martayjah’s relationship with him: they no longer have any in person contact.

[9]     Th burden of proving the move is in Martayjah’s best interests is agreed to rest on both parents, under clause 18H(4)(e) of the Parenting and Support Act because while Martayjah spent substantial time in Ms. DeLeon’s care, Ms. DeLeon is not in substantial compliance with the prevailing order.

[10]   A child’s best interests and those relevant to relocation are identified in subsections 18(6) and 18H(4), respectively, of Parenting and Support Act.  Not all of these factors may be relevant to every child, but they provide a good overview of relevant factors and the parties have not specifically identified any other factors.  So, I’ll structure my analysis around these factors. 

[11]   Martayjah is 4 ½.  Neither parent has identified any particular physical, emotional, social, or educational needs that she has.

[12]   Until Martayjah was 1, she lived with both her parents.  Since then (when her parents separated), she’s been in her mother’s primary care. 

[13]   Shortly after the separation, Ms. DeLeon filed her Parenting and Support Act application.  Through e-Court, the parties arranged child support and parenting time.  They then participated in a series of settlement conferences that resulted in an interim without prejudice consent order in March 2021.  Martayjah was to spend both specified and ad hoc time with Mr. DeLeon:

[14]   Between Martayjah’s parents, Ms. DeLeon has demonstrated less willingness to support the development and maintenance of Martayjah’s relationship with her father.   I reach this conclusion because of her

[15]   The concerns raised about Martayjah’s physical care have – for the most part – been typical: rashes, fever, pink eye, whether appropriate clothing has accompanied her at parenting times, how tightly or loosely her hair is braided, for example.  None of these concerns is significant enough to warrant limitation on Martayjah’s parenting time. 

[16]   Ms. DeLeon’s plan for Martayjah is for her to attend a multi-ethnic Montessori pre-school in Edmonton until she begins public school next September.  Since the pre-school hours don’t synchronize with Ms. DeLeon’s work hours, Martayjah is picked up by neighbours, who are biologically related to Martayjah’s 15-year-old half-brother.  Ms. DeLeon is willing for Mr. DeLeon to have as much virtual contact as he wants.  She didn’t suggest any “in person” contact. 

[17]   Ms. DeLeon has no family in Alberta.  Her son does, and Mr. DeLeon has (which I’ll discuss in the context of Martayjah’s culture). 

[18]   Mr. DeLeon’s plan is for Martayjah to return to Nova Scotia where she can live with him in Bedford and begin school at Basinview Elementary.  If Ms. DeLeon opts to remain in Alberta, then Martayjah would be in his primary care and Ms. DeLeon and her son would have daily video contact or phone calls with Martayjah.  Ms. DeLeon, given her greater income, would be responsible for the cost of in person contact with Martayjah, which would include block parenting time in the summer, which could be in Nova Scotia or Alberta subject to the requirement that Martayjah return to Nova Scotia at the end of all visits to Alberta.

[19]   When I asked Ms. DeLeon how she would describe Martayjah’s cultural, linguistic, religious, or spiritual upbringing and heritage, she said that they don’t go to church and, as far as culture was concerned, “I have always made decisions that would surround [Martayjah] with people of the same culture.”  She described Martayjah as a bi-racial child and said this is a heritage she, Ms. DeLeon, doesn’t share.  Ms. DeLeon said that at age 4, Martayjah isn’t old enough to understand history.  She said that there was cultural education at Martayjah’s daycare in East Preston and she pointed to Martayjah’s multi-ethnic pre-school where they had celebrated Diwali (the festival of light celebrated in the Hindu, Sikh, Jain, and Buddhist religious traditions).

[20]   Mr. DeLeon identified different aspects of Martayjah’s cultural upbringing – from mundane things (haircare and products) to more profound features, such as linguistics, “how we carry ourselves”, and knowing our history (particularly, the family’s importance in the founding of Beechville and the Second Black Battalion).  He says that at her age, Martayjah can attend events - such as family suppers, Beechville Days, the community celebration of Father’s Day - and derive benefit from them.

[21]   Mr. DeLeon said he was still learning more about his connections to Cuba (through his great great grandfather) and Indigenous people, through his mother’s family.  He has not fully investigated this heritage.  Ms. DeLeon says I should attach no importance to aspects of Mr. DeLeon’s identity that he hasn’t fully explored.  This argument is particularly troubling, especially as it relates to indigenous identity.  We know that Canada has a shameful history of attempting to eradicate Indigenous people.  Residential schools and colonial policies mean that there are many people who know very little about their indigenous identity.  It would compound the wrongs of this history to insist that parents must be fully cognizant of their indigenous identity before I can consider them sharing that identity with their children. 

[22]   Ms. DeLeon argued that since Martayjah “speaks English” I need not be concerned about her language.  That Martayjah speaks English ignores Mr. DeLeon’s point about what he called “having a different slang or dialect.” 

[23]   Ms. DeLeon argued that Mr. DeLeon’s spiritual traditions can be passed to Martayjah through her half-brother’s uncle (with whom those spiritual traditions originated) and said that Martayjah would be sufficiently exposed to her Black heritage through her half-brother’s family, though they do not share the same history as Mr. DeLeon’s family. 

[24]   Given Martayjah’s age, there was no evidence about her views or preferences. 

[25]   Neither party offered any evidence that Martayjah’s relationship with the other parent’s family or with their own family is negative.  Particularly, I heard that Martayjah has a very positive relationship with her half-brother who is 11 years older than her.  Their relationship is through Ms. DeLeon.  Mr. DeLeon has no other children. 

[26]   Ms. DeLeon characterizes the parents’ relationship as “conflictual”.  To prove this, she provided copies of some of the parents’ written exchanges through Our Family Wizard.  She said she chose those exchanges which were most indicative of the parents’ conflictual communication.

[27]   I read the Our Family Wizard messages carefully.   In my work I see a great number of text messages, emails and Our Family Wizard messages between parents.  I see parents use every profanity, obscenity, and name imaginable.  I read every threat and the history of every argument.  I say that to put the messages between the DeLeons in context: they are some of the politest I’ve read.  Yes, on a handful of occasions one parent takes a sarcastic tone with the other, but the exchanges are remarkably civil, given what is typically before me. 

[28]   I am to consider the impact of family violence, specifically the nature of the violence, abuse or intimidation, its recency, frequency, the harm it has caused Martayjah, the steps taken to prevent it and any other relevant factors. 

[29]   Ms. DeLeon made various references to “family violence” and “domestic violence” within her relationship with Mr. DeLeon.  I was given only one example, which came from Ms. DeLeon’s witness, Katherine Wheeler, who said that before Martayjah was born, she saw Mr. DeLeon yelling at Ms. DeLeon’s son (then aged 10) to such a degree that Ms. DeLeon had to get out of a car and step between Mr. DeLeon and the boy.  This happened over 4 years ago, in mid-2018, before Martayjah was born.  There were no examples of family violence since Martayjah’s birth.

[30]   The Parenting and Support At makes clear that I am to assess the circumstances of family violence so I can determine what impact it has on parenting arrangements. 

[31]   Despite her repeated reference to family violence, Ms. DeLeon provided no details.  This means 2 things.

[32]   There is no allegation that Mr. DeLeon ever abused Martayjah.

[33]   There was discussion of events that occurred in Mr. DeLeon’s home in June 2022.  Ms. DeLeon says that this incident exposed Martayjah to domestic violence.  Mr. DeLeon’s former partner was living in his apartment as a roommate.  There was an altercation.  The police were called, and, it seems, they called the Department of Community Services.  The police interviewed Mr. DeLeon.  Mr. DeLeon’s former partner was charged with assaulting him. 

[34]   Ms. DeLeon repeatedly described this situation as one where Mr. DeLeon was arrested and later released.  This description isn’t consistent with the evidence.  Mischaracterizing what happened attempts to portray Mr. DeLeon as violent.  I do not accept that. 

[35]   Mr. DeLeon was not the aggressor.  He took steps to shield Martayjah from witnessing the incident and he has ensured that there’s been no contact with his former partner since, as is appropriate.

[36]   I turn now to the best interest considerations that are particularly relevant in relocation cases, identified in subsection 18H(4).

[37]   Ms. DeLeon gave 2 main reasons for her relocation: protecting Martayjah from conflict; and improving Ms. DeLeon’s financial circumstances (and thereby Martayjah’s circumstances). 

[38]   Given my review of the evidence relating to the allegations of family violence and the Our Family Wizard messages, the concern of family violence has not been made out as sufficient to support Martayjah’s relocation.

[39]   In terms of Ms. DeLeon’s financial reasons, Mr. DeLeon did not make child support payments.  The Maintenance Enforcement Program was required to garnish his wages and take enforcement steps, such as removing his driver’s license. 

[40]   Ms. DeLeon says that she couldn’t afford to live in Nova Scotia.  Her rent was $1,500 and had a car payment of $535.  She received a monthly Canada Child Benefit of $1,100.  She was entitled to child support of $366 from Mr. DeLeon. 

[41]   Ms. DeLeon didn’t seek child support from the father of her older child.  This child’s father “was mainly on disability” according to Ms. DeLeon.  I have no idea whether his disability income is too low to sustain a child support payment.  Ms. DeLeon said that one reason she didn’t get child support was because when she and the boy moved to Alberta in 2014, she and the boy’s father agreed he could use his income to finance the child’s visits to him in Nova Scotia.  This doesn’t explain why, from 2019 – 2022 when Ms. DeLeon and the boy lived in NS and there were no access costs - especially when Ms. DeLeon said she was in financial trouble – she didn’t pursue child support.  His contribution might have meant that he could keep his son in Nova Scotia.

[42]   In the winter of 2021 – 2022, Ms. DeLeon was working a contract position for ManuLife.  She worked from home.  When her contract ended in February 2022, she was offered a full-time job.  She declined it because it required her to be available for a month at a time – for 2 weeks until 7 p.m. and for 2 weeks until 9 p.m.  There was no indication of how often this month of late shifts was required or whether there was an adjustment to her work hours on the other end – for example, would she start work later in the day?

[43]   Ms. DeLeon’s hourly wage for the full-time ManuLife job was $18-$19/hour.  Working 40 hours weekly for 48 weeks each year, her annual earnings would be in the range of $32,640 to $34,560. 

[44]   Overall, between her earnings, Canada Child Benefit, and child support, she would have had an annual tax-free income of $45,185.

[45]   Ms. DeLeon turned this down and started to receive Employment Insurance benefits.  She says she looked for “a lot” of other jobs.  She didn’t identify them.  She required a job where she could work from home and only during the hours when Martayjah was at daycare; Martayjah could be dropped off between 7-7:30 and had to be picked up by 5.  It’s Ms. DeLeon’s evidence that it wasn’t possible to find a job that met these requirements.

[46]   I am aware of the low levels of unemployment in Nova Scotia and across Canada. 

[47]   Ms. DeLeon moved to Alberta without a job or a home, staying in other families’ homes with them.  She worked as a cleaner and applied for income assistance.  She did not consider leaving Martayjah in Nova Scotia until she could become established in Alberta.  In October Ms. DeLeon found work for Blue Cross and she continues to work as a cleaner. 

[48]   For Blue Cross, Ms. DeLeon works from 9:30 until 6.  She earns approximately $42,000 annually.  Her work hours mean that she’s unable to pick up Martayjah from pre-school.  Her cleaning is outside of her hours at Blue Cross, so it’s on evenings or weekends.  I don’t know what childcare is in place for Martayjah when her mother’s cleaning, or the hours this work entails, though it does require Ms. DeLeon to be away from home.  I don’t know what she earns doing this.  Ms. DeLeon’s work conditions in Alberta are ones that she would not accept in Nova Scotia.

[49]   In Alberta, Ms. DeLeon must pay for pre-school because Martayjah’s too young for school.  This costs approximately $290 each month after tax.  Ms. DeLeon’s Canada Child Benefit is $1,085.  In Alberta, Ms. DeLeon’s after-tax income is approximately $49,574 (after I deduct the pre-school costs).

[50]   Based on the evidence I have, Ms. DeLeon is less than $4,400 to the good as a result of her move. 

[51]   The improvement to Ms. DeLeon’s financial circumstances is only modest.

[52]   The impact of the relocation is to completely deny Martayjah all in person contact with her father.  

[53]   Relocation has also removed Martayjah from the entirety of her mother’s and father’s extended family.  Martayjah’s immediate family in Alberta is comprised of her mother and her half-brother.  There is also her half-brother’s extended family.  Mr. DeLeon has a cousin in Alberta, but Ms. DeLeon hasn’t been in contact with that cousin since 2019.  Of course, Martayjah last lived in Alberta before her first birthday. 

[54]   Relocation has removed Martayjah from the heritage of her father’s family.  Ms. DeLeon delegates responsibility for providing that exposure to her son’s family.

[55]   Ms. DeLeon didn’t comply with the notice requirements of the Parenting and Support Act and violated the court’s order in keeping Martayjah in Alberta.

[56]   Mr. DeLeon hasn’t complied with the court’s order for child support.  The Director of the Maintenance Enforcement Program has had to take enforcement steps.

[57]   While the Maintenance Enforcement Program can address Mr. DeLeon’s financial default, there’s no administrative agency that can provide redress for removing Martayjah.

[58]   Transportation options for access are driving or flying and Martayjah must be accompanied.  Mr. DeLeon doesn’t have the wherewithal to go to Alberta, even if return flights are regularly available at $300, and I do not accept that this is the case.  There will be seasonal increases to any discount fares.

[59]   In contrast, Ms. DeLeon does have the income to travel to NS, if she chooses to remain in Alberta.  She flew to Nova Scotia for the hearing.

[60]   I conclude that it is not in Martayjah’s best interests to be relocated to Alberta.  She must be returned to Nova Scotia.  Mr. DeLeon should contact Alberta’s equivalent of Nova Scotia’s Department of Community Services to see what assistance they may offer in effecting Martayjah’s return to him, because he will need to travel to Alberta to escort Martayjah back to Nova Scotia.  This will happen as soon as Mr. DeLeon can arrange it.

[61]   Ms. DeLeon may not remove Martayjah from Alberta unless it is to return her to Nova Scotia.   I am ordering that Ms. DeLeon deposit her passport with the Supreme Court of Nova Scotia (Family Division) until Martayjah is returned to Nova Scotia.  Ms. DeLeon must disclose the child’s address to Mr. DeLeon so he can affect her return. 

[62]   Returning to my conclusion that this is a civil relationship, I order that the parents have joint decision-making responsibility and the terms relating to this (which are found in paragraphs 1, 2, 4, 5, 6, 7, and 8 of the interim without prejudice consent order) continue.

[63]   The parties should continue to rely predominantly on Our Family Wizard for communication, particularly of organizational matters, so there’s an easily accessible “electronic bulletin board”.  For emergency matters, communicating by telephone is appropriate.   

[64]   In terms of exchanges, I do not require that the exchanges be supervised.  If either parent wants someone to accompany them to an exchange, that parent is responsible for arranging an accompanying person and parenting time may not be cancelled if an accompanying person is not available.  Exchanges will occur in public locations.

[65]   In terms of parenting time, if Ms. DeLeon opts to remain in Alberta with her older child, she will have parenting time with Martayjah for:

[66]   Ms. DeLeon will be responsible for the costs of her parenting time.

[67]   Ms. DeLeon will have daily phone or video contact with Martayjah when Martayjah is not with her.  Mr. DeLeon will have daily phone or video contact with Martayjah when she is not with him.

[68]   If Ms. DeLeon opts to return to Nova Scotia, though clearly, she is not ordered to do so, the parties will have a shared parenting arrangement.  I will return to this momentarily. 

[69]   I don’t know how Ms. DeLeon will respond to my decision – whether she will remain in Alberta or return to Nova Scotia - so I can’t decide about future child support.  I could determine the table amount, but I don’t know if she might bring an undue hardship application. 

[70]   I direct that counsel return for a half-hour telephone conference in January 2023 when we can schedule next steps in addressing prospective child support and parenting time if Ms. DeLeon opts to return to Nova Scotia.  Before the conference, Ms. DeLeon must file her Statement of Expenses, her Statement of Income, and all attachments and, if she plans to return to Nova Scotia, her Parenting Statement.  

[71]   According to the interim without prejudice consent order, Mr. DeLeon owed arrears of child support as of March 31, 2021, of $5,755.  His 2021 child support payments were based on an annual income of $40,560 and the resulting monthly payments haven’t changed since the spring of 2021.  The Maintenance Enforcement Program calculates arrears as of November 17, 2022, at $12,380.37.

[72]   Mr. DeLeon’s actual 2021 income was $42,946, so his monthly support payment in 2021 should have been $365 rather than $346.  This increases his arrears as of March 31, 2021, to $5,812 and, to the end of 2021, to $9,097.

[73]   In 2022, the evidence shows that Mr. DeLeon’s income is $24,265.32.  This equates to monthly child support of $182 or $2,184 for the entire year.

[74]   Accordingly, I calculate Mr. DeLeon’s historic child support – from date of separation to end of December 2022 at $11,281.

[75]   I will return to this in the context of the property division.

[76]   The first issue is whether Ms. DeLeon is entitled to spousal support. 

[77]   There is no evidence of any contractual claim under a marriage contract or separation agreement.

[78]   Compensatory spousal support is described in Bracklow 1999 CanLII 715 at para 15 as “reimbursement of the spouse for opportunities foregone or hardships accrued as a result of the marriage.”   It’s awarded where it’s just to compensate a spouse whose career development or earning potential has been impeded by the marriage or the roles adopted during it, or who’s contributed to the other spouse’s education or career development.

[79]   The evidence doesn’t support an award of compensatory spousal support.  There is no evidence of Ms. DeLeon qualifications or employment when the parties’ relationship began.  During the 3-year marriage, Ms. DeLeon advanced her employment qualifications through her training at Metro Community Living.  Her income (as evidenced by the interim without prejudice consent order from their settlement conference) increased during the marriage. 

[80]   The decision to return to Nova Scotia in 2019 was a joint decision.  Ms. DeLeon was able to find work at the end of her maternity leave.

[81]   There’s no assertion of any basis for non-compensatory support.  At para 41 in Bracklow, 1999 CanLII 715, the court said that even where compensatory loss cannot be established, a breakup may cause economic hardship in a larger, non-compensatory sense. While I have ordered Martayjah be returned to Nova Scotia, I have not ordered that Ms. DeLeon return.  She has an older child who she says is established now in Alberta where he has extended family and is doing well and she may choose to remain there, where he’s in school, and where she has work.  Her income significantly exceeds Mr. DeLeon’s, eliminating any non-compensatory entitlement.

[82]   Under the Matrimonial Property Act, there’s a presumption that matrimonial property will be divided equally.  Neither party disputes this.

[83]   Since separating, Ms. DeLeon sold household contents.  Mr. DeLeon doesn’t seek an accounting for the proceeds from the sale. 

[84]   Only Mr. DeLeon filed a Property Statement on which the only assets shown are 2 cars: a 2016 Jeep Renegade and a 2017 Toyota Sonata.  There may be an error in his Property Statement because while it refers to a Sonata, both he and Ms. DeLeon and the creditor, the Bank of Nova Scotia, say the car is a Corolla. 

[85]   Each spouse kept a car.  It appears each car carried a debt that was greater than the car’s worth.  The Renegade was worth $21,000 and had a loan of $24,000, giving it a negative value of $3,000.

[86]   The Toyota’s value (at the date of separation) was $28,156.08 and the balance on its loan was $28,463.96.  It had a negative value of $307.88.

[87]   Ms. DeLeon’s Toyota was surrendered with a balance owing on its loan. 

[88]   The debt on each car is in the name of both spouses. 

[89]   Since both spouses signed the loans, the Bank of Nova Scotia is legally able to seek recovery of the entire loan from either of them, or to recover some from one and the rest from the other.  If either spouse is called upon to pay the loan, they may or may not be able to seek reimbursement from the other spouse depending on the terms of the loan they signed.  That loan is not before me.  I cannot re-write the terms of that loan contract to absolve either spouse from responsibility. 

[90]   Because both parties owe on the car loan contracts, there is no legal basis to apply Mr. DeLeon’s payments of $2,306.47 on the Corolla loan to his historic child support debt or to assume that he will be responsible for or can be made responsible for the entirety of this loan.  Given his financial circumstances, the creditor may prefer to collect from Ms. DeLeon who has a job.

[91]   Based on the values I have, to equalize the debt position of each party, Ms. DeLeon owes Mr. DeLeon $1,346.06.  I offset this amount from his historic child support debt, reducing that debt from $11,281 to $9,934.94. 

[92]   Ms. Handel, as counsel for Ms. DeLeon, will prepare the Order.  Ms. McCarthy may want to prepare a specific abbreviated order regarding Martayjah’s return.

[93]   Ms. McCarthy will file her costs submissions by February 21, 2023.  Ms. Handel will file her response no later than March 28, 2023.