CARMA RAE CECHANOWICZ Petitioner - v. -, 2023 SKKB 133

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 133 Date: 2023 06 23 Docket: DIV-RG-00455-2021 Judicial Centre: Regina, Family Law Division ___________________________________________________________________________ BETWEEN: CARMA RAE CECHANOWICZ Petitioner - and - EVAN JAMES CECHANOWICZ Respondent Counsel: Emily F. Bancescu for the petitioner Nicole K. Folk for the respondent ___________________________________________________________________________ FIAT GOEBEL J.

June 23, 2023 ___________________________________________________________________________ Overview [ 1 ] The parties are the parents of three young children: Freya, age 8; Cooper, age 5; and Rosie, age 2. They began to cohabit together in 2011, married in 2013 and separated in 2021.

The parties are both loving and devoted parents but are unable to agree on an interim parenting arrangement given that they reside in different communities located approximately 130 kilometres apart. [ 2 ] Having considered the evidence filed within the governing legal framework, I find that it is in the best interests of the children in the interim to remain in their mother’s primary care and to have generous parenting time with their father.

Summary of Evidence [ 3 ] The parties began cohabiting in 2011 in Regina. In 2012, they moved to Fort Qu’Appelle, Saskatchewan, where the mother obtained work as a daycare director. Fort Qu’Appelle is located approximately 73 kilometres from Regina. The father continued his employment in Regina despite the commute, often being away home from 6:30 a.m. to 6:30 p.m. each day. [ 4 ] In 2015, Freya was born and the mother took a 12-month maternity leave. She returned to work at the daycare for a few months before learning that she was pregnant again. In the fall of 2016, she decided to stay at home full time.

Cooper was born in 2017. Cooper was diagnosed with a serious heart defect at his birth. He was later diagnosed with a genetic skin disease as well. These health issues required that Cooper attend numerous medical appointments and undergo numerous medical procedures as well as three surgeries over the course of his young life.

Both parents were involved in his medical care although the mother, a full-time stay at home parent, attended to the bulk of managing same. [ 5 ] In 2019, the parties sold their home in Fort Qu’Appelle and moved into a rental home in Pilot Butte, Saskatchewan, a community located approximately 18 kilometres from Regina. After a few months, they purchased an acreage near Edenwold, Saskatchewan, a community located approximately 45 kilometres from Regina. In October 2020, Rosie was born.

Throughout this time, the mother remained at home caring for the children. [ 6 ] In September 2021, the parties separated when the father left the family acreage and moved into a basement suite in Regina. The parties agreed that the acreage needed to be sold. The sale of that property was finalized in July 2022, requiring the mother and children to find another place to live. The mother proposed that she and the children move to Melville, Saskatchewan, to be near her parents and extended family.

Melville is 137 kilometres from Regina. [ 7 ] The father agreed on the understanding that the move was temporary – to provide the mother with time to “regroup” and work on her mental health. He says that they agreed the mother and children would return to Fort Qu’Appelle, or another smaller centre in the vicinity of Regina, within the year. The mother says that she never agreed to any such condition and intended to remain in Melville with the children when she moved, although her text messages to the father during that time period are more cryptic.

[8] The parties also agreed that the father would have the children in his care each weekend. The father hasconsistently exercised this parenting time. On the odd weekend when the mother asked for the children to remain with her, the fatheragreed but expected additional parenting time the following weekend, even if it required Freya to miss a day of school. [9] The mother and children immediately became immersed in the Melville community. Freya and Cooper wereregistered for school, and Rosie began to attend a local daycare.

The mother applied for and obtained employment as a teachers’ assistantat the children’s school. She also registered the children in extracurricular activities. [10] That fall the father began seeking a commitment from the mother that she planned to return to the Regina areathe following spring and advised her that he was willing to commute from any one of a number of different communities in the area. Themother waffled and told him she had second thoughts about moving back. She also asked him to consider moving to Melville.

By then,she had invested in the purchase of a home in Melville (although the property remains registered to her parents). [11] Around this time, the father moved from Regina to White City, Saskatchewan, to live with his new romanticpartner. White City is located approximately 20 kilometres from Regina and 130 kilometres from Melville. Despite same, the father saysthat he remained open to relocating to any number of “bedroom communities” near Regina if the mother agreed to return with thechildren. [12] Through many pleading text exchanges, the father asked the mother to commit to return with the children.

Sherefused. The parties also attended mediation sessions but were unable to reach an agreement. [13] Reluctantly, the father applied to the Court for an interim parenting order. While his preference is for the motherto move back to the Regina area, in the event that she refuses to do so, he seeks primary care of the children commencing on July 1,2023, to allow them to complete the school year in Melville. He also proposes that the mother have the children in her care on alternateweekends. [14] The mother is adamantly opposed to this arrangement.

She says that she has always been the primary caregiverto the children and that they are settled in the Melville community. She seeks an interim order allowing the children to remain primarilywith her and proposes that the father have the children in his care three weekends out of every four – a small change to the currentschedule that would accommodate some weekend time with the children in her care. Issue [15] The parties agree on joint decision-making and a sharing of care during school breaks. The sole issue is the carearrangement that is in the best interests of the children in the interim.

Analysis The legal framework [16] When making any parenting order, the focus of the Court is solely upon the best interests of the children.

Thisengages a child-centered analysis focused on each child’s right to an arrangement that best meets their physical, emotional andpsychological safety, security and well-being: s. 16(2) of the Divorce Act, RSC 1985, c 3 (2d Supp). [17] In 2021 the Divorce Act was amended to provide guidance in the implementation of this best interests test.Section 16(3) of the Divorce Act identifies a number of factors that assist the Court in a tailored and child-centred analysis of bestinterests and includes a consideration of each child’s specific needs and relationships, children’s wishes and preferences, parentalcapacity, past and future care arrangements, each parent’s willingness and ability to communicate and cooperate with the other and eachparent’s willingness to support the child’s relationship with the other.

That said, the enumerated factors are not exhaustive nor are they tobe treated like a checklist. At all times, the hearing judge retains the discretion to determine the relevance and weight of each factorbased on the evidence before the Court: J.B. v J.M., 2023 SKCA 24, and R.C.S. v R.D.L., 2022 SKCA 52. [18] The pre-amendment jurisprudence also provides guidance in the implementation of the best interests test.

TheSupreme Court of Canada emphasized that children have the “right” to the best possible arrangement that is available to them in thecircumstances presented by the evidence: Young v Young, (SCC), [1993] 4 SCR 3 at 100. [19] In contrast, parental “rights” play no role in the best interests analysis, and the positions that parents advancemust always be sifted through the best interest lens.

Even parenting agreements must be consistent with the children’s best interestsbefore they will be given significant weight: Mercereau v King, 2023 SKKB 99. [20] Similarly, parenting determinations must not become distracted by a desire to promote parental accountability orconsequences where doing so is otherwise inconsistent with the children’s interests.

The Court must also guard against giving weight topositions that directly or indirectly advance presumptions respecting shared parenting, interim relocation, primary care or “status quo”:Gordon v Goertz, (SCC), [1996] 2 SCR 27; Scobie v Thiessen, 2021 SKCA 47, 54 RFL (8th) 256; Russell v Russell,2018 SKCA 80, 16 RFL (8th) 26; and Ackerman v Ackerman, 2014 SKCA 86, 48 RFL (7th) 1. [21] Where a parenting determination is interim in nature, it has long been accepted that the order should endeavourto preserve stability for children absent compelling evidence or risk of harm necessitating a change: Seidel v Seidel, 2021 SKCA 92 atparas 10-11; Gebert v Wilson, 2015 SKCA 139, 69 RFL (7th) 17; Napper-Whiting v Whiting, 2014 SKCA 33, 433 Sask R 235; andGuenther v Guenther (1999), (SK KB), 181 Sask R 83 (QB). [22] This “status quo” jurisprudence is not intended to stimulate a footrace or detailed calculations on past care in aneffort to get the upper hand in an interim dispute.

Quite the opposite. Its purpose is to ensure that the realities of the children’sexperiences are understood and their stability and security is protected pending a final determination. In Gebert v Wilson,

Ryan-Froslie J.A. put it this way: [11] First, the principle expressed in Guenther does not displace the legislative requirement enunciated in both the Divorce Act , RSC 1985, c 3 and The Children’s Law Act, 1997 , SS 1997, c C-8.2 that in making decisions with respect to parenting arrangements, the paramount consideration is the best interests of the child. In our view, the principle itself is rooted in that paramount consideration.

It recognizes that changes in custody and primary residence have a profound effect on children—altering their day to day home environment, their routine, their contact with important people in their lives including caregivers, siblings, extended family and friends and may result in a change of school and activities—and thus, generally should not occur on an interim or temporary basis as a final resolution may result in such a change being reversed with all of the same attendant disruptions to the child.

Positions advanced [ 23 ] The father argues that the mother’s move to Melville was not done with his unequivocal consent, does not reflect the status quo , and is not in the best interest of the children to continue.

He argues that the “ status quo ” that informs the determination of interim parenting is the parenting arrangement in place during the relationship when the father was directly involved in day-to-day family life, and not the status quo that has arisen in the last 10 months since the mother moved with the children to Melville: Scobie v Thiessen ; and Gebert v Wilson . [ 24 ] He also argues that the mother’s decision to remain in Melville, contrary to the understanding that they would both settle in a rural community near Regina and share care of the children, is not in the long-term best interests of the children.

To remedy same, he proposes that the children be placed in his primary care in the interim. [ 25 ] The mother does not agree. She says that the “ status quo ” from the children’s perspective is to be in her primary care day in and day out – both before the separation and since.

She says that because the father worked long hours during the relationship and commuted for employment, he was often away from the home from before the children awoke until after they had completed dinner with the bulk of his parenting involvement on weekends – something that has continued since the separation. [ 26 ] The mother also argues that her move with the children was agreed to or, at a minimum, acquiesced to by the father and, since that time, it cannot be ignored that the children have become entrenched in, and settled into, the community. [ 27 ] Finally, she argues that the significant change proposed by the father to the day-to-day care arrangements are certain to destabilize the children and could not be said to be in their best interests.

As there is nothing in the evidence to suggest there is a risk of harm or other compelling circumstances that would justify such a significant change, she says the interim arrangements should remain in place pending further agreement or trial. My findings [ 28 ] Both parties provided detailed and consistent evidence about the children – their personalities, needs, likes and interests. They are to be commended for having raised three resilient and happy children.

Cooper’s medical needs, while intensive and ongoing, have stabilized and are well in hand by the parents and his medical care professionals. [ 29 ] The parties also provided detailed evidence of their involvement with the children’s care and their plans for the future. Neither party disputes the capacity of the other parent to meet the children’s needs.

They are both loving parents who desperately want to be part of their children’s every day lives. [ 30 ] It is also not disputed that the father has consistently supported the family financially and that his ongoing employment is critical to sustain the family and meet the needs of the children. The father says the nature of his employment has changed such that he no longer works overtime, nor does he travel for work. As such, he is confident that he will have more flexibility in his work

schedule than he had during the relationship to accommodate increased parental responsibilities. [ 31 ] The mother has also pursued self-sufficiency since the separation, obtaining employment as a teaching assistant, with a work

schedule that mirrors the children’s school-day

schedule and holidays. [ 32 ] In terms of history of care, from the children’s perspective the mother has always been the children’s primary caregiver. While the father was an active parent when at home, his employment and commute required that he be away from the home the majority of the children’s weekdays, resulting in most of his quality parenting time falling on weekends. [ 33 ] Even had I found that the parties had shared care of the children during the marriage as the father suggests, maintaining that “ status quo ” is not possible in the circumstances presented by the evidence.

Neither party remained in the home, or even the community, where the family resided during the relationship. They both chose to make a fresh start in communities located a significant distance apart. Ongoing shared parenting is not an option. [ 34 ] The father moved to a community where the children had no previous ties to commence a new romantic relationship. According to the father, the weekends that the children are in his care are active, comfortable and meaningful.

He says the children have become comfortable in his home, accustomed to the community and have developed a positive relationship with his romantic partner. There is no debate that there are appropriate schools, daycares and other resources available in White City nor that the father has the means to access same. [ 35 ] Melville also has amenable resources to meet the needs of the children.

In addition, the children have longstanding ties to the Melville community where they visited frequently during the relationship, including extended stays with the maternal grandparents during which they engaged in swimming lessons and other activities. At least one of the children had been under the care of a pediatrician in Melville prior to the separation. [ 36 ] Since the move, the children have become further settled in Melville. The eldest two children attend school and

the youngest is in a daycare. They have participated in sporting events. They reside in a home that the mother has ostensibly purchased. They have frequent contact with their grandparents and other extended family. [ 37 ] When pressed, counsel for the father conceded that the “tipping point” justifying a change in interim primary care is the importance of holding the mother to account for her unilateral decision to stay in Melville when the parties had discussed and agreed that the move would be temporary.

In retrospect, the father says that the move was self-serving and the Court should not countenance this type of unilateral action. While the father concedes that this is not a relocation case per se , he argues that the jurisprudence cautioning against interim relocation informs the analysis. [ 38 ] While I appreciate the father’s frustration and desire to seek recourse, I have a number of difficulties with this argument. [ 39 ] First, the relief he seeks is inconsistent with longstanding jurisprudence that interim orders should seek to maintain stability absent risk of harm or compelling circumstances.

Here, I have found that the status quo , from the children’s perspective, is in the primary care of the mother. There is no evidence of risk of harm, and I am unable to find that the mother’s refusal to return to the Regina area is a compelling circumstance necessitating a change to the status quo .

In that regard, I am unable, on the controverted evidence, to determine if the mother agreed that the move was temporary and later changed her mind, or whether there was never a “meeting of the minds” on this point. [ 40 ] Moreover, while I appreciate that there is a body of caselaw that emphasizes the importance of discouraging parents from engaging in unilateral behaviour, including relocations, the Court will not make an order that is primarily designed to hold a parent to account when the outcome of that order is otherwise inconsistent with the best interests of the children: K.F.L. v B.K. , 2021 SKQB 229 at paras 21-26 ; J.P. v J.P. , 2016 SKCA 168 at para 41 , 89 RFL (7th) 92 ; Russell v Russell , at para 17 . [ 41 ] Here, the evidence does not satisfy me that it is in the children’s best interests in the interim to require them to move to a new home and community requiring a change in caregivers, school, daycare provider and activities.

Moreover, a change from the mother’s primary care to the father’s care, with the children only having contact with the mother on alternate weekends, represents a radical shift in what the children are accustomed to that could jeopardize their stability and security. [ 42 ] I am satisfied that it is consistent with the status quo , and in the best interests of the children in the interim, to remain in the mother’s primary care and to continue to have generous weekend time with the father – an arrangement that to date has allowed the father to maintain an active presence in the lives of the children that is not significantly different, from the children’s perspective, than what they experienced during the relationship.

My specific order is set out below. [ 43 ] The parties are reminded that if they are unable to reach a settlement, the trial judge will not be bound in any way by the findings in this order. Interim orders are only intended to provide parties with a reasonably acceptable solution to a difficult problem until settlement or trial, where the best evidence will be available to the Court, tested by cross-examination. See: R.C.S. v R.D.L . , at para 44 ; Potzus v Potzus , 2017 SKCA 15 , 91 RFL (7th) 290 ; and Ford v Ford , 2015 SKCA 23 , 457 Sask R 19 .

In that regard, both counsel agree that the parties could be ready to proceed with a pretrial conference in short order and such is directed. [ 44 ] Finally, both parties seek an award of costs. While the mother’s position ultimately prevailed, the father’s position was reasonable and sincere. Since the fall of 2022, he has made genuine efforts to try to negotiate an agreement with the mother and chose to proceed to court as a last resort. Both of the parties and the children benefit from an order that provides clarity respecting interim parenting. In the circumstances, I make no order for costs. Interim Order 1.

The Local Registrar shall

schedule a pre-trial conference in consultation with counsel at the earliest opportunity. 2. Until further agreement or court order, I make the following interim parenting order: a. The parties shall have joint legal decision-making responsibility for their children and shall consult and agree on all decisions respecting the children’s care, health, travel, change of residence and involvement in activities. b. The children shall remain in the primary care of the mother. c.

Unless otherwise agreed and except as otherwise provided herein, the father shall have parenting time on each weekend from Friday evening to Sunday evening, to be extended to Monday evening in the event that Monday is a statutory holiday. Notwithstanding the above, the mother may elect to retain the children in her care one weekend per month on no less than 14 days notice to the father. In that event, the father may elect to add one compensatory parenting day to the following weekend, whether or not doing so requires that the school-age children miss a day of school to accommodate same. d.

The father shall have the children in his care for up to one half of school breaks as can be agreed by the parties. In the event of a disagreement respecting the division of school breaks, either may ask the Court to determine same on notice to the other parent by following the process prescribed in FAM-PD #7 (requesting a judicial case conference). That said, in the event that the parties cannot agree on a division of parenting time over the summer of 2023, either party may ask the Local Registrar to convene a conference call with me to determine same.

In that event, the parties shall exchange and file written correspondence at least 48 hours in advance of the conference call identifying the issue in dispute and appending a draft order detailing their proposed schedule. e. The parties shall share the cost and responsibility for transporting the children for the father’s parenting time. Unless otherwise agreed, the mother is responsible to drop the children off at the father’s home at the commencement of the father’s parenting time and the father is responsible to return the children to the mother’s home at the conclusion of his parenting time. f.

The parties shall ensure that the children are not exposed to any conflict between them or between them and third parties.

g. Nothing herein restricts the parties from reaching an agreement that varies or modifies the provisions of this interim parenting schedule. 3. I make no order as to costs. “G.V. Goebel” J. G.V. GOEBEL