S.L.L. PETITIONER - v. -, 2022 SKKB 277

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 277 Date: 20 22 12 20 Docket: DIV-ES-00005-2021 Judicial Centre: Estevan BETWEEN: S.L.L. PETITIONER - and - D.B.L. RESPONDENT Counsel: Adam A. Fritzler for the petitioner Gulzaib Fida for the respondent JUDGMENT BROWN J. December 20, 202 2 Introduction [ 1 ] The parties have been married for 29 years. They jointly cared for J.D., born *********************, and L.D., born ******************.

J.D. and L.D. are, however, the couple’s grandchildren, not their children. [ 2 ] S.F. is the children’s biological mother and B.D. is their biological father. It has been some ten years since S.F. and B.D. have been involved in J.D. and L.D.’s parenting. The children were apprehended from them in 2012. The parties separated in 2019 with S.L.L. taking J.D. and L.D. with her. [ 3 ] S.L.L. applies for an order requiring: (

a) Provision of D.B.L.’s most recent pension plan statement together with particulars of all payments received by D.B.L. from that pension plan, monthly since August 31, 2019; (

b) Compliance by D.B.L. with the notice to file income information dated February 5, 2022 and his most recent income tax return together with any notice of assessment or reassessment; (

c) Child support; (

d) Spousal support; (

e) Costs. [ 4 ] D.B.L. swears to wanting the boys with him on a week on/week off basis. He also makes various statements in his affidavit about wanting more parenting time with the children, however no application in that regard has been made. His access and parenting time will therefore not be dealt with in this decision. He will need to make an application for such relief if he desires same. [ 5 ] S.L.L. says that D.B.L. was a pipe fitter throughout the marriage and has a pension plan. She wants current

information on the details of such plan. Background [ 6 ] S.L.L.’s 2021 line 15000 is $29,502. [ 7 ] D.B.L.’s 2019 Line 15000 is $44,625, his 2020 line 15000 is $46,006, and his 2021 line 15000 is $63,278.

D.B.L. claims a number of items should be removed from this total for the purpose of calculating support as they are non-recurring. [ 8 ] S.L.L. submits that the court should average D.B.L.’s income for the past three years and utilize that amount as his income. [ 9 ] Even before considering the issue of the income to be attributed to D.B.L. he makes two preliminary objections: 1) the children are not his legal responsibility so no child support should be ordered as against him; 2) the mandatory family dispute resolution provisions of The Queen’s Bench Act, 1998 , SS 1998, c Q-1.01 , apply and no orders can be made until mandatory mediation has occurred.

The children are not D.B.L.’s children [ 10 ] It is not disputed that someone who stands in loco parentis can and should be ordered to provide child support to another person who is caring for the children. The difference here, says D.B.L., is that he is a grandparent and his only role has been as foster caregiver. In his circumstances, he submits, there is no obligation to provide child support to S.L.L. with whom the children presently reside. [ 11 ] The specific facts of such a situation are important to examine here. In that regard: (

a) S.L.L. and D.B.L. have been found to be people having a sufficient interest in the children and, pursuant to that order, have been caring for the children for ten years now. (

b) The biological parents of the children have not been caring for the children during the past ten years. (

c) It has not been established on admissible evidence that the biological parents of the children have the resources to provide child support. The biological parents have not been providing any child support. Indeed, neither S.L.L. nor D.B.L. have apparently tried to obtain child support from the children’s biological parents during their ten years of time S.L.L. and D.B.L. have been caring for the children. (

d) S.L.L. is still caring full time for the children. The only difference at present from the previous ten years is that D.B.L. no longer resides with S.L.L. (

e) D.B.L. indicates in his affidavit that he has been trying to have parenting time with the children but S.L.L. is opposing him in exercising this, and will not let him be with the boys at the times of and for the duration he desires. [ 12 ] D.B.L. cites Graves v Lonechild , 2006 SKQB 449 , 286 Sask R 120 [ Graves ], for the proposition that foster parents are not responsible for child support and are treated at law differently than those who would so be found.

He argues that all that has been determined here is that S.L.L. and D.B.L. are persons having a sufficient interest in the children and therefore he is not responsible for child support to S.L.L. [ 13 ] Reliance is placed on para. 2 of Graves which states: [2] ... The petitioner seeks to be designated as custodian of Bailey once the Court finds him to stand in loco parentis within the meaning of the common law and Children’s Law Act, 1997 , S.S. 1997, c. C-8.2 [since rep] of Saskatchewan.

I point out that it would have been sufficient for the petitioner to seek a designation as a person of sufficient interest rather than to be found in loco parentis . The latter is a more difficult status to establish on evidence and carries with it obligations and liabilities to the child which the status of a person of sufficient interest does not carry. Nonetheless, the Court understands that the petitioner's case wishes to establish and have him declared in loco parentis .

To do so, the evidence would have to demonstrate that the petitioner treated Bailey as his own child and that the child looked to the petitioner and depended upon the petitioner as a father figure. [ 14 ] The follow up in Graves is at para. 4 : [4] ...

To succeed in obtaining child support from the petitioner the respondent would have to succeed in establishing upon the evidence that a parent-child relationship existed between the petitioner and Bailey at times when the petitioner and respondent resided together. … [ 15 ] Both The Family Maintenance Act, 1997 , SS 1997, c F-6.2 [ FMA ] and the Divorce Act , RSC 1985, c 3 (2d Supp) are identified in the petition as the applicable and governing legislation here. The FMA defines who is a “parent”, and what a parent’s obligation to provide maintenance entails, in ss. 2 and 3 .

Those sections read, in part, as follows:

Interpretation 2. In this Act: ... “parent” means:

(

a) the father or mother of a child, whether born within or outside marriage; (

b) the father or mother of a child by adoption; or (

c) a person who has demonstrated a settled intention to treat a child as a child of his or her family, other than a person who is providing foster care services as defined in The Child and Family Services Act [ The Child and Family Services Act , SS 1989-90, c C-7.2 ] ... Obligation to provide child maintenance 3(1) Every parent has an obligation to provide maintenance for his or her child to the extent that the parent is capable of doing so.

(2) Subject to subsections (4) and (5), the amount of maintenance to be provided pursuant to the obligation mentioned in subsection (1) is to be determined in accordance with the guidelines.

(3) On application, the court shall order maintenance for a child in accordance with the guidelines.

(4) Notwithstanding subsection (3), the court may order maintenance for a child in an amount that differs from the amount that would be in accordance with the guidelines if the court is satisfied that: (

a) special provisions in an order, judgment or written agreement respecting the financial obligations of the parents, or respecting the division or transfer of their property, directly or indirectly benefit a child or that special provisions have otherwise been made for the benefit of a child; and (

b) the application of the guidelines would result in an amount of maintenance that is inequitable given those special provisions.

(5) Where, pursuant to subsection (4), the court orders maintenance for a child in an amount that differs from the amount that would be in accordance with the guidelines, the court shall record its reasons for doing so.

(6) Notwithstanding subsection (3), the court may order maintenance for a child in an amount that differs from the amount that would be in accordance with the guidelines if: (

a) the parents consent; and (

b) the court is satisfied that reasonable arrangements have been made for the maintenance of the child.

(7) An order made pursuant to this

section continues in effect after the eighteenth birthday of the person for whom maintenance is payable where the person is: (

a) under the claimant's charge; and (

b) unable, by reason of illness, disability, pursuit of reasonable education or other cause, to: (

i) withdraw from the claimant's charge; or (ii) obtain the necessaries of life. [ 16 ] The Divorce Act contains the following provisions of application here; 2 … Child of the marriage

(2) For the purposes of the definition "child of the marriage" in subsection (1), a child of two spouses or former spouses includes (

a) any child for whom they both stand in the place of parents; and (

b) any child of whom one is the parent and for whom the other stands in the place of a parent. … Child support order 15.1

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage. Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1). Guidelines apply

(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicableguidelines. Terms and conditions

(4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or untila specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fitand just. Court may take agreement, etc., into account

(5) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined inaccordance with the applicable guidelines if the court is satisfied (

a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or thedivision or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for thebenefit of a child; and (

b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those specialprovisions. Reasons

(6) Where the court awards, pursuant to subsection (5), an amount that is different from the amount that would be determined inaccordance with the applicable guidelines, the court shall record its reasons for having done so. Consent orders

(7) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined inaccordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been madefor the support of the child to whom the order relates. Reasonable arrangements

(8) For the purposes of subsection (7), in determining whether reasonable arrangements have been made for the support of a child, thecourt shall have regard to the applicable guidelines.

However, the court shall not consider the arrangements to be unreasonable solelybecause the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance withthe applicable guidelines. [17] The Supreme Court of Canada’s decision in Chartier v Chartier, (SCC), [1999] 1 SCR 242[Chartier], and the line of cases which follow it, set out important principles which have application here.

One is that a person cannotmake a unilateral decision to terminate his parental relationship with a child in relation to whom he has always been a de facto parent. [18] There is a difference between relevant

definitions in the Divorce Act and the FMA in a situation in which a non-biological parent may have child support obligations. This difference includes the language, in which is “… stands in the place of aparent” in the Divorce Act versus has “… demonstrated a settled intention to treat ... as a child of the person’s family …” in the FMA. [19] The Divorce Act, in s. 15.1, gives the court the authority to order a spouse to pay support for “... any or allchildren of the marriage”.

The definition of “child of the marriage” in s. 2(2)(b), the Divorce Act includes any child of whom one of thespouses is “… the parent and for whom the other stands in the place of a parent”. [20] However, that distinction has not been raised in argument here. Specific provisions of the Divorce Act versus theFMA have not been identified in the application. Both are claimed in the petition. The result is it is appropriate to apply the lowerstandard to the facts here. It is not open to quibble over which one ought to govern as it is the best interests of a child that is in issue.

In asituation such as this, with both statutes being in play, the appropriate resolution is the standard which most readily affords the childsupport, should that be available. [21] In Chartier, the respondent was not the biological father to the child for which support was sought. He did,however, play an active role in caring for and being a father figure to his wife’s biological daughter throughout the marriage. There hadbeen discussion about him adopting the child although no adoption occurred.

The petitioner sought a declaration that the husband was inloco parentis and had child support obligations regarding the daughter. [22] The Supreme Court found that the husband “stood in the place of a parent” within the meaning of the DivorceAct and, as such, was obligated to pay support for the daughter. In doing so, the court in Chartier determined that the common lawdefinition of in loco parentis was not synonymous with or of significant assistance in determining the scope of the words “in the place ofa parent” used in the Divorce Act.

The court adopted the approach taken by the Alberta Court of Appeal in Theriault v Theriault, 1994 ABCA 119, 113 DLR (4th) 57, which focussed on the best interests of the child and not on biological lineage or legal status. [23] Of importance to this matter is the fact that the court indicated that it is not in the best interests of the child topermit a parent to simply decide if there is or is not a parental relationship. At paras. 21-23 of Chartier, Justice Bastarache wrote: 21.

This being said, it is my opinion that the decision in Theriault, supra, provides the proper approach to this issue as it recognizes that

the provisions of the Divorce Act dealing with children focus on what is in the best interests of the children of the marriage, not onbiological parenthood or legal status of children. Theriault was an appeal from an interim maintenance award made to the mother andprimary care-giver of two children made against the husband in a pending divorce suit. The children were not the husband's biologicalchildren.

The husband gave advice and supervision to the two children from infancy but, at the hearing for interim support, he arguedthat his commitment to the children arose from the marriage and was conditional on the continuation of that relationship. 22.

Kerans J.A. rejected the approach in Carignan [Carignan v Carignan (1989), (MB CA), 64 DLR (4th) 119 (ManCA)], supra, and held, at p. 213, that once someone “has made at least a permanent or indefinite unconditional commitment to stand inthe place of a parent”, the jurisdiction of the courts to award support under the Divorce Act is triggered and that jurisdiction is not lost bya subsequent disavowal of the child by the parent. Underlying Kerans J.A.’s decision is the best interests of the child. At p. 213, KeransJ.A. held: Our society values parenthood as a vital adjunct to the upbringing of children.

Adequate performance of that office is a duty imposed bylaw whenever our society judges that it is fair to impose it. In the case of the natural parent, the biological contribution towards the newlife warrants the imposition of the duty. In the case of a step-parent, it is the voluntary assumption of that role. It is not in the bestinterests of children that step-parents or natural parents be permitted to abandon their children, and it is their best interests that shouldgovern. Financial responsibility is simply one of the many aspects of the office of parent.

A parent, or step-parent, who refuses or avoidsthis obligation neglects or abandons the child. The abandonment or neglect is as real as would be a refusal of medical care, or affection,or comfort, or any other need of a child. 23. Other courts have also taken the view that a person who stands in the place of a parent cannot unilaterally withdraw from thatrelationship. In Laraque v. Allooloo (1992), (NWT SC), 44 R.F.L. (3d) 10 (N.W.T. S.C.), de Weerdt.

J., in rejectingthe notion that a person can unilaterally withdraw from a relationship in which he or she stands as a parent to a child, focussed on the bestinterests of the children of the marriage. At pp. 17-18, he held: ... the view that one can doff the in loco parentis role at will disregards the primary regard which the courts must surely have for theinterests of dependant children, and the duty of the courts to ensure that those interests are judicially protected, and not ignored,especially where those interests are not separately represented. ...

At the risk of being repetitious, it is well-settled law that it takes a properly informed and deliberate intention to assume parentalobligations for support of a child, on an ongoing basis, to bring the in loco parentis status in law into being.

Given that premise, it isdifficult to conclude that this status is meaningless or can be negated at whim whenever the person on loco parentis is visited by secondthoughts on the matter or decides to abandon the project altogether. [24] The relevant point in time to apply such considerations when determining whether or not a parental relationshipexists is the time when the family was a unit, not the time when the application is brought or argued which is often much after thebreakdown of the family. [25] The Supreme Court in Chartier set out the factors that should be taken into account when determining whether aperson stands, or stood, in the place of a parent at the relevant time, which include considering, at core, the nature of the relationship.The court must determine the nature of the relationship by looking at a number of factors, among them of which is intention and in thatregard intention which is not only expressed formally but as gleaned through examining actions.

In this way even expressed intentionsmay change as the intention found by a court. [26] The questions include: Did J.D. and L.D. participate in the extended family in the same way as would a biological child? Did D.B.L. provide financially for J.D. and L.D. (depending on ability topay)? Did D.B.L. discipline J.D. and L.D. as a parent would? Did D.B.L. represent to J.D. and L.D., the family, or the world (whether explicitly or implicitly) that he is responsible as a parent normally would be to J.D. and L.D.?

What isthe nature of J.D. and L.D.’s relationship with their absent biological parents? [27] In relation to an interim application to determine whether D.B.L. is a “parent” within the meaning of the DivorceAct or the FMA, it should be borne in mind that interim child support will be ordered if S.L.L. establishes a “prima facie case”, not proofpositive. (See: A.M.T. v R.D.C., 2012 SKQB 85 at para 15, 395 Sask R 65; Wojcichowsky v Wojcichowsky, 2009 SKQB 89 at para 5;McPhail v Hunt, 2009 SKQB 403 at para 16, 342 Sask R 225; Prowse-Myers v Myers, 2004 SKQB 139 at para 9, 2 RFL (6th) 408;Streibel v Konya, 2007 SKQB 102 at para 6, 297 Sask R 145; and Bodner v Huckerby, 2013 SKQB 89, 415 Sask R 226. [28] In Major v Major (1998), (SK KB), 175 Sask R 34 (QB), Justice Baynton of this Court setout, at para. 26, a list of factors which might be considered on an application such as this.

They include: [26] … - changing the child’s name to that of the respondent - discussing the possibility of adopting the child - the child’s reference to the respondent as [“D.B.L.”] or [“S.L.L.”] - the child’s perception of the respondent as a father or mother figure - the age of the child - the duration of the child’s relationship with the respondent

- whether the respondent participates in disciplining the child - whether the respondent provided financial support for the child - whether the application is for interim or final support - whether there has been any intention to terminate the relationship - whether the child has a relationship with the non-custodial biological parent - whether any other person is obligated to support the child - whether the respondent spends time personally with the child - whether the respondent is a “psychological parent” - whether the respondent has ever sought custody of or access to the child - the nature of the post separation conduct of the applicant or the respondent, such as a denial by the applicant of access to the childby the respondent. [29] Of note are factors such as the age of the children and the duration of the children’s relationship with D.B.L. andS.L.L.

As well, this is an application for interim support which effectively lowers the threshold at this stage of the proceedings. This wasapplied in Nicholauson v Nicholauson, 2019 SKQB 287. [30] In this matter I conclude on the prima facie case standard that D.B.L. was a parent to J.D. and L.D. whencohabiting with S.L.L. There is no evidence of his being distant from the boys or telling the world he was simply a foster parent. He is seeking shared parenting of the boys andcomplains of S.L.L.’s efforts not to give him more time.

All indications are he was a parent to the boys. [31] I am satisfied, based on the evidence before me, S.L.L. has made out the requisite prima facie case that for thepurposes of this interim application. They have cared for and raised the boys for ten years. They have been for all intents and purposestheir parents, even though they are simultaneously their grandparents. Much more than a mere foster parenting relationship is in evidencehere.

Therefore, the boys fall within the definition of “children” and both S.L.L. and D.B.L. as “parents” as contained in the Divorce Act.D.B.L. has an obligation to support the boys financially. [32] I also note that s. 5 of the Federal Child Support Guidelines, SOR/97-175 [Guidelines] gives the courtdiscretion when setting child support where a person stands in the place of a parent.

Table support need not automatically be ordered (seeCampbell v Campbell (1998), (SK KB), 166 Sask R 41 (QB) at para 56, and Dengler v Dengler, 2012 SKQB 110 atpara 29, 394 Sask R 221. [33] As recently noted by Haaf J. in Woodrow v Lepoudre, 2022 SKQB 143: [15] While deviation from the Guidelines is rare in most cases, s. 5 alters the landscape and requirement to order the Guidelinesamount of support.

As stated in Tyson [Tyson v Tyson, 2004 SKQB 204, 247 Sask R 203), at para 19: “... in a situation where you aredealing with an in loco parentis relationship, s. 5 converts the Guidelines to guidelines, as opposed to a grid which must be obeyed.” Thequantum is discretionary. The analysis in Chartier does not provide guidance on quantum in the context of s. 5. [34] D.B.L. advances hearsay evidence to cast doubt on S.L.L.’s assertion that there are no resources from thechildren’s biological parents to look to.

Suffice it to say that D.B.L. can bring an application against the biological parents after this ordershould he truly believe that to be the case. There is no admissible evidence the biological parents have anything to contribute at thisjuncture. [35] Nonetheless, this situation is different than the majority of other situations. D.B.L. had advanced informationthat he is also responsible for many debts of the relationship and has recently been found liable in a civil judgment by the TD Bank. Iaccept that this is particularly dire given the family now has two households to fund.

Therefore, exercising the discretion provided by s.5 of the Guidelines, D.B.L. is ordered to pay 85 percent of the s. 3 child support set by the Guidelines. If he desires the biological parentsto provide support, he will need to make an application in that regard. Income for support purposes [36] Given the fluctuations in evidence, I find it appropriate to average the last three years of D.B.L.’s income. Thiscomes to $51,303.

He is to pay 85 percent of the amount set by the Guidelines, being $602, as monthly interim support for two childrenbased on this amount beginning on October 1, 2022 and continuing each month. Spousal Support [37] The Guidelines do not indicate a spousal support amount based on the incomes here. Should that change S.L.L.may reapply for an order of spousal support even on an interim basis. Exemption from Mandatory Mediation [38]

Section 44.01(6) of The Queen's Bench Act, 1998 states: Family dispute resolution

44.01 …

(6) On an application made with or without notice, the court, or any other person or class of persons prescribed in the regulations, may exempt a party from the requirement to participate in family dispute resolution pursuant to this

section if: (

a) there is a restraining order between the parties; (

b) a child of the parties has been kidnapped or abducted by one of the parties; (

c) there is a history of interpersonal violence between the parties; (

d) the party provides proof of attempts to engage the other party in family dispute resolution; or (

e) in the opinion of the person hearing the application, there are extraordinary circumstances. [ 39 ] As observed by Justice Haaf in Anaquod v McLean , 2022 SKQB 134 , there is a trend in family law away from an adversarial culture of litigation to a culture of negotiation. The Queen's Bench Act, 1998 as per s. 44.01 requires parties, to the extent that it is appropriate to do so, to try to resolve family law disputes through an alternative dispute resolution process and outside the court structure.

One of the meritorious goals of these legislative changes is to reduce trauma to children by reducing the conflict between the parties who are their parents. [ 40 ] S.L.L. avers to D.B.L. being angry and aggressive, blaming her for his cancer for which he has recently been receiving treatment. S.L.L. has provided evidence establishing D.B.L. is facing recent assault charges in relation to violence as against his current partner, rendering her vehicle inoperative and theft of a truck. He is charged with breaching his undertaking regarding contacting his current partner.

He has had issues with respect to making threats to use his firearms against operators of municipal graders. He has been reprimanded by virtue of such actions. [ 41 ] While the violence is not all directed at S.L.L., it is directed at D.B.L.’s current partner. It is not much of a stretch to be concerned in relation to it coming to be directed at S.L.L. if one is not cautious.

One should not easily nor readily exempt matters from mandatory family mediation given the object of the legislation to work out solutions collaboratively and move towards cooperation despite the emotions which are so often involved in family breakdowns. However, the necessary caution to this is at the same time to be aware of measures to provide adequate protection for the parties to a family dispute. [ 42 ] There is a level of violence that is in evidence here, as opposed to merely being suspicious, and therefore this situation meets the threshold set out for an exemption.

At present, in this matter, that balance tips in favour of the protection of S.L.L. I conclude it is established that there is violence here of the type that makes the matter one that ought not to proceed to mediation, at least at this time. That is not to foreclose that avenue in the future if additional evidence is provided or the situation changes from what it is now. [ 43 ] Therefore, I exempt S.L.L. from the requirement to participate in mandatory family dispute resolution given the evidence of the existence of domestic violence.

Disclosure [ 44 ] D.B.L. is ordered to provide all pension information he is in possession of forthwith to S.L.L.’s counsel. If he has none in his possession, he is to provide a direction to his pension provider to ensure all his pension information is disclosed to S.L.L.’s counsel forthwith. Costs [ 45 ] Costs are to be costs in the cause. J. D.J. BROWN