Docket: 1790 Andrew Schick Appellant - v. -, 2012 SKCA 1

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 1 Date: 20120105 Between: Docket: 1790 Andrew Schick Appellant - and - Natasha Woodrow Respondent Coram: Klebuc C .J.S., Richards and Smith JJ.A. Counsel: Raymond Wiebe for the Appellant Deborah Giles for the Respondent

Appeal: From: 2009 SKQB 167 Heard: September 14, 2011 Disposition: Allowed in Part Written Reasons: January 5, 2012 By: The Honourable Madam Justice Smith In Concurrence: The Honourable Chief Justice Klebuc The Honourable Mr. Justice Richards Smith J.A. I INTRODUCTION [ 1 ] The appellant and the respondent are the father and mother, respectively, of a son, Nathan, born June 25, 2007.

This an appeal from a Queen’s Bench judgment, following trial, granting primary residence as well as sole legal custody of the child to the respondent mother, with reasonable access to the appellant father including specified parenting time on alternate weekends from Friday at 7:00 p.m. to Monday at 7: 00 p.m. and one day including an overnight in the alternate week, plus two weeks during the summer. There is also provision for sharing time on holidays and other special occasions. [ 2 ] The judgment issued on May 20, 2009, when Nathan was not yet two years old.

The appeal was heard in this Court more than two years later. Nathan is now four years old. The appellant and respondent are not married and have never cohabited since Nathan’s birth.

Nathan has been in the primary care of the respondent, his mother, since his birth. [ 3 ] In argument before us the appellant did not challenge the conclusion in the judgment that the primary residence of the child should be with the mother, but it was argued that there should have been an order of joint legal custody and provision should have been made to gradually increase the parenting time of the father with the goal of eventually reaching equal parenting time between the appellant and the respondent as Nathan matured.

II BACKGROUND FACTS [ 4 ] Both the appellant and the respondent were quite young and living with their respective parents, in Saskatoon, when the child was born, having both graduated from high school only a year earlier. The respondent moved out to an apartment of her own, with the child, shortly after he was born. She eventually enrolled in a correspondence course with a view to obtaining a diploma in early childhood development. [ 5 ] The appellant continued to reside with his parents and was doing so at the time of the trial.

He maintained employment and was also for a period a member of the Saskatchewan Roughriders cheerleading squad. Because the latter required him to be away from Saskatoon many weekends, he gave this up after the first year of Nathan’s life to spend more time with the child. He did not pursue any post- secondary education. [ 6 ] There was evidence that in the first year of Nathan’s life the respondent was uncooperative in providing the appellant with access to Nathan, necessitating several applications to the court by the appellant to obtain access.

There was also evidence that the respondent encouraged her friends to engage in harassing and possibly threatening behaviour towards the appellant. The trial judge also noted that when Nathan was a young infant, the appellant took little role in caring for him and tended to rely on his own parents to help look after

the baby when he did have access. [ 7 ] Thus, although he found that both parties loved Nathan very much and had an excellent relationship with him, the trial judge remarked on the lack of maturity of both parties. In relation to the respondent mother, he noted that she had accepted all the responsibility of raising a new baby on her own, as well as pursuing her education. However, he added this: 6 … As a result of her immaturity the respondent does or has her friends do many inappropriate and immature things to harass and scare the petitioner, particularly through the use of emails, text-messaging and Facebook.

In addition the respondent attempted on many occasions to thwart visitation rights ordered by the court to the petitioner to the point where the petitioner brought four contempt of court applications against the respondent. 7 On many occasions the actions of the respondent appear to have been designed to antagonize the petitioner and his family. [ 8 ] The appellant, for his part, was severely criticized in the judgment for his lack of interest in maintaining a relationship with the respondent to create a family life for his child, for failing to pursue any post-secondary education, and for relying too heavily on his parents, with whom he was residing, to care for Nathan when he had him for parenting time, and for failing to move out of his parents’ home to establish a home for himself.

The appellant was also criticized for bringing repeat court applications to enforce his access to Nathan. These passages reflect that criticism: 3 In September of 2006 the respondent became pregnant. The relationship between the petitioner and the respondent deteriorated as the petitioner became more interested in dating other individuals and partying with friends than staying home with the mother of his future child.

Matters culminated on New Years Eve of 2006 when the petitioner, against the wishes of the respondent and the advice of his parents, chose to go to a New Years Eve party at the Prairieland Exhibition with his friends. The respondent was left home alone while the other members of the family went out for the evening. At this point the respondent telephoned her mother who came and picked her up.

She went back to reside with her mother and her mother's fiancé until the birth of the child, Nathan, in June of 2007. 4 The evidence would suggest that the respondent struggled to establish and maintain a relationship with the petitioner, before and after the birth of their child in an attempt to create the family life which she as a child never had.

The petitioner on the other hand being fresh out of high school and impressed with the fact that he was part of the Saskatchewan Roughrider cheerleading squad really had no interest in starting family life. . . . 8 The petitioner on the other hand did not, when faced with the prospect of being a father, decide it was time to pursue a career, higher education or vocational training or establish a residence of his own.

He continued to live in the lower level of his parents' house as he had all through high school and focused instead on annually qualifying for the Saskatchewan Roughrider cheerleading team and maintaining an active social life. 9 It is quite amazing that someone with such a small amount of income as the petitioner would be in a position to spend so much time, energy and money on so many court applications against the respondent before the child is even two years old. 10 Although there was evidence presented to the Court that the petitioner fed, bathed and disciplined the child whenever he had access, there was also evidence that whenever the child needed medical attention when in the care of the petitioner it was always the petitioner's parents or sister who took the child to the doctor and never the petitioner. 11 The Court was assured that if the child Nathan woke up in the night, the petitioner was the one to awaken and attend to him.

It is extremely strange that the child's bedroom is set up immediately across the hall from the paternal grandparents' bedroom and not in the extra bedroom on the lower level where the petitioner sleeps. 12 It is also noted that although the paternal grandparents, particularly the paternal grandmother, are very loving and interested in assisting in caring for the child, there was never evidence to suggest that the petitioner actually spent two or three or four days alone in the house actually caring for the child totally on his own. 13 Although grandparents' support and assistance is admirable it should not be considered a replacement for parental involvement. 14 The petitioner testified that although he was accepted to the cheerleading squad of the Saskatchewan Roughriders for the 2009 season he had declined to accept the position because he wanted to spend more time with the child.

He did not decline the position because he wanted to advance his education, earn more money to be able to have a residence of his own, or to make more money to be better able to support his child. 15 Conversely the respondent has struggled on her own for the last two years attempting to care for her child as best she can without significant financial support or assistance, without parental guidance or encouragement, or companionship. However she has still managed to enroll in a correspondence course through SIAST for a diploma in early childhood development which she anticipates completing within the next year.

The course will not only provide her with an occupation but has already provided her with an extensive amount of self-help in how to raise a young child. III The Issues

[ 9 ] The appellant argues that the trial judge made a number of errors, including: an erroneous finding of fact in relation to the appellant’s previous care of the child; failure to consider or give sufficient weight to relevant evidence of inadequate care of the child provided by the respondent; previous denial of the appellant’s access to the child by the respondent, and evidence that the respondent and her friends engaged in threatening and harassing conduct toward the appellant; and undue weight given to marginal evidence of little weight in assessing the suitability of the appellant as a parent to the child.

He also argues that the trial judge erred in law by failing to award joint custody in the absence of a compelling reason to do so. IV Analysis [ 10 ] Key to this case, in my view, is the necessity to distinguish the issue of the appropriate primary residence and on-going parenting arrangements for Nathan from the issue of legal custody.

This distinction is widely recognized in practice in this Province, where it is quite common for orders to designate one parent as the primary parent, or one parent’s home as the primary residence, of a child, yet order joint custody, giving both parents a say on important decisions involving the child. [ 11 ] The trial judge failed to distinguish these questions and confined his consideration of the evidence and analysis to the question of Nathan’s primary residence.

In doing so, in my view, he failed to offer any adequate reason why the appellant, as the child’s father, clearly committed to his role as father to the child and desiring to build an on-going relationship with him, should have been denied any real involvement in the future decisions that will affect Nathan’s life. Neglect of this issue may well have been the result of the appellant’s own focus, at trial, on the question of primary residence. Some role, also, however, may have been played by the trial judge’s view of the application of s. 3(2) of the The Children’s Law Act, 1997 , S.S. 1997, c.

C-8.2 on the facts of this case. [ 12 ] In his analysis, the trial judge cited and relied upon the following sections of the Act: 3

(1) Unless otherwise ordered by the court and subject to subsection (2) and an agreement pursuant to subsection (3), the parents of a child are joint legal custodians of the child with equal rights, powers and duties.

(2) Where the parents of a child have never cohabited after the birth of the child, the parent with whom the child resides is sole legal custodian of the child.

(3) The parents of a child may enter into an agreement that may: (

a) vary their status as joint legal custodians of the child; (

b) specify the rights, powers and duties of each parent with respect to the child; (

c) provide for access to the child by either parent or any other person; (

d) authorize one of the parents to appoint, by written instrument, one or more other persons as legal custodian of the child and guardian of the property of the child for: (

i) any time specified in the instrument during the child’s minority; or (ii) the duration of the child’s minority; and (

e) provide for the custody of the child and guardianship of the property of the child after the death of either parent. . . . 6

(1) Notwithstanding sections 3 to 5, on the application of a parent or other person having, in the opinion of the court, a sufficient interest, the court may, by order: (

a) grant custody of or access to a child to one or more persons; (

b) determine any aspect of the incidents of the right to custody or access; and (

c) make any additional order that the court considers necessary and proper in the circumstances.

(2) Where the court grants custody of a child to a parent pursuant to subsection (1), the court, where in its opinion it would be in the best interests of the child to do so, may by order, authorize the parent to appoint a person: (

a) to have custody of the child on the parent’s death; (

b) to be the guardian of the property of the child on the parent’s death; or (

c) to have both of the duties mentioned in clauses (

a) and (b).

(3) On an application and prior to making an order pursuant to subsection (1), the court may make or vary an interim order on any terms and conditions it considers appropriate.

(4) On application, the court may vary or discharge any order made pursuant to this

section where there has been a material change in circumstances since the date of the order.

(5) When making an order pursuant to subsection (1), the court shall: (

a) give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person seeking custody to facilitate that contact; and (

b) include in the order a condition requiring any person who has custody of a child and who intends to change the place of residence of that child to notify, as set out in subsection (6), any person who is granted access to that child or any other person who has custody of that child of: (

i) the change; (ii) the time at which the change will be made; and (iii) the new place of residence of the child.

(6) Any notification required pursuant to clause (5)(

b) is to be given: (

a) at least 30 days before the change; or (

b) within any other period before the change that the court may specify.

(7) When making an order pursuant to this section, the court, in the manner and on the conditions that the court considers appropriate, may provide for: (

a) the division and sharing of parental responsibilities; and (

b) the granting of access.

(8) Where an order is made for supervised access pursuant to this section, the court may specify in the order the amount of any cost for the supervision that each party is required to pay. . . . 8 In making, varying or rescinding an order for custody of a child, the court shall: (

a) have regard only for the best interests of the child and for that purpose shall take into account: (

i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have a close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (

v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; (

b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child; and (

c) make no presumption and draw no inference as between parents that one parent should be preferred over the other on the basis of the person’s status as a father or mother. [ 13 ] The trial judge commented that s. 3(2) was “applicable” in this case because the parties had never cohabited after the birth of Nathan and Nathan had resided with the respondent. He said, “This subsection constitutes the respondent as the sole custodian of the child Nathan.” However, he went on to note that the application before him was “also” governed by ss. 6 and 8 of the Act: 19 As set out in D.A.G. v.

V.G.D. , 2004 SKQB 330 , [2006] 2 W.W.R. 724, wherein the statutory designation of the mother as the sole legal custodian upon birth of the child where the father and mother have not cohabited since the birth of the child is not final, the statutory custodial status may be changed by agreement or court order. If the court is to order a custody arrangement different from that prescribed in the statute the court shall take into account the considerations set out in s. 8 of The Children's Law Act, 1997 set forth above.

[ 14 ] The trial judge cited academic authorities and case law which set out the factors to be considered in the application before him: the all-important factor of the best interests of the child; the relevance of preserving the status quo; and the identification of the primary caregiver and psychological parent in determining the best interests of the child.

He found that the respondent had been the primary caregiver of Nathan since his birth and was the primary psychological parent, while the petitioner, “with significant assistance from his parents”, had provided Nathan with a warm and loving atmosphere during access periods, and had formed a strong bond with him. He found that Nathan was well adjusted to the current situation. He concluded that it would be “devastating” to Nathan to change his primary residence.

In the final result, the trial judge awarded sole custody to the respondent, and provided that the appellant should have access to Nathan as indicated above. The appellant was also ordered to provide child support in accordance with the Federal Child Support Guidelines . [ 15 ] The issues raised by the appellant relating to some of the findings of fact by the trial judge can be dealt with briefly.

First, it is conceded by the respondent that the trial judge simply misapprehended the evidence in finding, as he did, that it was always the appellant’s parents or sister who took Nathan to the doctor and never the appellant, when the appellant was exercising access to Nathan. There was evidence that the appellant had personally taken Nathan for medical care.

This error, standing alone, is of very little significance, although it is part of a larger complaint, on the part of the appellant, that the trial judge placed far too much negative weight on the role played in Nathan’s life by the appellant’s parents, and on the assistance he received from them in caring for Nathan. [ 16 ] While I am somewhat sympathetic to the notion that the involvement of the grandparents in Nathan’s care might better have been viewed as a positive rather than a negative factor in the context of these two very immature parents, there is adequate support in the evidence, in my view, for the trial judge’s conclusion that the respondent had shown more independent ability to care for Nathan and willingness to accept the responsibilities of parenthood.

This finding, however, relates primarily to the conclusion that Nathan’s primary residence should remain with the respondent, and is simply part of the recognition that to the date of the trial she had been the primary parent. [ 17 ] Similarly, on the same issue, while more might have been made of the respondent’s early refusal to cooperate in granting access to the appellant, and her encouragement of harassment of the appellant, I do not think it can fairly be said that the trial judge failed to take this conduct into account.

Rather, he put it down, to some extent, to the respondent’s immaturity, and took pains to caution her against such conduct in the future. In the same vein, I see no reviewable error in the trial judge’s failure to place much weight on the evidence of the appellant and his witnesses that the respondent did not provide adequate care for Nathan. This evidence was limited to comments of occasional inadequate dress in cold weather and a slight recurring medical condition.

None of this speaks to neglect of any significance. [ 18 ] On the whole of the evidence, I am satisfied that there is no basis for interfering with the trial judge’s determination that Nathan’s primary residence should continue to be with the respondent, a decision owed considerable deference by this Court. [ 19 ] On the other hand, it is difficult to find any reason in the judgment for the denial of joint legal custody in the circumstances of this case. The primary consideration governing the issue of legal custody must be the best interest of the child.

In my view there is unwarranted emphasis in the judgment on the appellant’s decision not to continue his relationship with the respondent, and on the fact that he continued to reside with his parents for the few years following graduation from high school. The first of these is irrelevant to the issues before the Court. While the second was reasonably relevant to the question of where the primary residence of Nathan should be, it is not obviously pertinent to the question of whether the appellant should be denied any role as legal custodian of his son.

Nor was the degree of care and attention provided to Nathan by the appellant’s parents. Both of these points related to the youth and immaturity of the appellant. However, as I have indicated, there was evidence of immaturity on the part of both parties and, in fact, both were very young when Nathan was born.

As the question of legal custody was not the subject of any independent analysis by the trial judge, it appears that, having determined that the factors set out in s. 8 did not warrant a change of Nathan’s primary residence, the trial judge considered that s. 3(2) of the Act therefore “applied” in this case, and in itself determined that the respondent should be the sole legal custodian of Nathan. [ 20 ] A contributing factor to this reasoning may well be that the legislation relied upon in this case makes no clear distinction between “custody” in the sense of decision making authority, on the one hand, and “custody” in the sense of primary residence or primary day to day parenting responsibility for the child, on the other.

Section 3 of the Act , to which the trial judge referred, uses the expression “legal custodian”. “Custody” is defined in s. 2(1) of the Act as follows: “custody” means personal guardianship of a child and includes care, upbringing and any other incident of custody having regard to the child’s age and maturity; [ 21 ] However, the trial judge appears to have read s. 3(2) of the Act as raising a presumption in favour of the respondent in the circumstances of this case. This

interpretation, not entirely implausible on the face of the legislation, was considered and rejected by Wright J. in Giles v. Biesel , 2004 SKQB 330 , [2006] 2 W.W.R. 724. In that case, a biological father, assuming this presumption in favour

of what would in the vast majority of cases be the birth mother, argued that s. 3(2) was inconsistent with s. 7 of the Charter . Wright J. explained the provision as follows: 23 The circumstances of this case are not similar to those referred to by the petitioner. Here, the state, through the enactment of s. 3(2) of the CLA, is not directly intervening in the parent-child relationship.

The legislation merely provides a "default" position which ensures that where the parents of a child have never cohabited after the birth of the child, there is a legal custodian authorized to exercise the rights and responsibilities associated with parenthood. It is important that s. 3(2) not be considered in isolation, but in conjunction with other important provisions of the CLA which include: [extended excerpt from the CLA omitted] 24 The starting point of the CLA is found in s. 3(1). There is a presumption that parents are the joint legal custodians of their child.

Only where the parents do not cohabit after the birth of a child is the person with whom the child resides deemed to be the sole legal custodian. That, in my view, is for the benefit of the child - there must be a guardian who can make decisions on behalf of that child. 25 Furthermore, the statutory designation as sole legal custodian is not final. Unlike the situation in Trociuk , [ Trociuk v. British Columbia (Attorney General) , 2003 SCC 34 , [2003] 1 S.C.R. 835] there is a remedy available for those parents who seek to avail themselves of it.

The statutory custodial status may be changed, either by agreement or by court order. If it is changed by court order, it will be done having regard only to the best interests of the child taking into account the considerations set out in s. 8 of the CLA. No presumption will be made and no inference will be drawn as between parents that one should be preferred over the other merely because of their status as a mother or as a father. 26 Accordingly, I have concluded that s. 3(2) of the CLA is consistent with s. 7 of the Charter. [ 22 ] These seem to me to be valid points.

The purpose of subsection 3(2) is to insure that where the parents have never cohabited the parent with whom the child resides has full legal authority to make the important decisions regarding the child, including permitting medical care, enrolling the child in school and travelling with the child, etc. This presumption could be crucial where the non-resident biological parent is completely absent, unknown, or takes no interest in the child, and his or her permission or authority might therefore be difficult or impractical to obtain.

The effect of s. 3(2) is to make such permission unnecessary, as a default position. It does not follow, however, that this provision raises a statutory presumption of sole custody in favour of the parent of residence where the other parent is known and available and seeks an active role in the child’s life. In my opinion, it does not.

Rather, where the issue is raised, and the court is called upon to decide issues of legal custodial authority, primary residence, access, or parenting responsibilities in general of non-married parents, these matters are governed by s. 8 of the Act , and, in particular, consideration of the best interests of the child. [ 23 ] This is not to say that the circumstances described in subsection 3(2) (i.e., the parents of the child have never cohabited after the birth of the child and the child resides with one of the parents) are irrelevant to the determination of the best interests of the child.

They are clearly relevant to the establishment of the status quo, and the nature and extent of psychological and primary parenting support that has been in place prior to the court application, and thus to finding a parenting arrangement that insures stability and security for the child. This, it seems to me, is how the trial judge considered these circumstances in the case before us in determining that the primary residence of Nathan should remain with his mother, the respondent.

I would not interfere with this decision. [ 24 ] These considerations, on the other hand, cannot in themselves be determinative where the non-resident parent seeks standing as a joint legal custodian, with joint decision making power and authority, and regular access to the child, as distinct from de facto custody, or primary residence of the child. This, I think, is the issue addressed by McIntyre J. in B.O.A. v.

R.G. , 2003 SKQB 112 , 38 R.F.L. (5th) 367, where he held that it was not in the best interests of the child that one parent should be “a passive bystander,” where that parent has bonded with the child, and demonstrated love and care for the child. [ 25 ] I agree with this point. In my view, even where one parent has been designated the parent of primary residence, it is presumptively in the best interests of a child to have as much contact with each parent as is reasonably possible having regard to the given circumstances and for each parent to play as active a role in the life of the child as is practical.

There is significant risk that a parent who is prevented from playing such a role and becomes a passive bystander in the child’s life will eventually drift away from on-going involvement in the child’s life. These considerations favour an order for joint custody in the absence of some reason relevant to the best interest of the child to the contrary.

Examples of reasons to the contrary might include an insurmountable inability of the parents to communicate sufficiently well to be able to make important and necessary decisions regarding the child, or evidence of indifference or of inappropriate or abusive behaviour on the part of the parent who does not have primary care of the child.

No such reasons were cited or are evidence in this case. [ 26 ] It is my view that the trial judge erred in overemphasizing factors relating to the appellant’s youth and immaturity and failed to address the question of joint legal custody in the context of the present and future best interests of the child.

In the presence of evidence that the appellant is a loving father who has bonded with Nathan and wishes to play an active role in his life, and the absence of any evidence that it would not be in the best interest of Nathan for the appellant to play that role, I would allow the appeal to the extent of substituting an order that the appellant and respondent should have joint custody of Nathan for the order of sole custody to the respondent.

[ 27 ] The question of whether there ought to have been provision in the order to increase the appellant’s parenting time as Nathan matures is more difficult. The trial judge must, of necessity, consider the facts as they appear in the evidence before him. He was dealing with the circumstances of a two year old child who needed the stability and security provided by the order he made.

While these circumstances necessarily change as the child matures, it is difficult for a judge to anticipate exactly what those changes might entail and whether or in what way they may be material to the future needs and interests of the child, so far as parenting arrangements are concerned. While this Court has held, in Grey v. Wiegers , 2007 SKQB 13 , 291 Sask.

R. 48, that passage of time does not in and of itself constitute a change of circumstance that would ground an application for variation of a parenting order, the decision in that case also recognized that it might well be possible for an applicant to show, on such an application, that such a change had occurred. [ 28 ] It is my view that the standard of appellate review does not justify any interference by this Court in the parenting arrangements determined by the trial judge.

This does not mean that no change will ever be appropriate, and there is an expectation that the parents will themselves attempt, as the child matures, to adapt arrangements to meet his changing needs, and to avoid unnecessary applications for variation in the future. [ 29 ] I would allow the appeal only to the extent of ordering that the appellant and the respondent have joint custody of Nathan. [ 30 ] Success being divided, there shall be no order as to the costs of this appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 5 th day of January, A.D. 2012. “Smith J.A.” Smith J.A.

I concur. “Smith J.A.” for Klebuc C.J.S. I concur. “Smith J.A.” for Richards J.A.