STEPHANIE MARIE DAHL Petitioner - v. -, 2022 SKKB 217

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 217 Date: 2022 09 27 Docket: DIV-SA-00153-2018 Judicial Centre: Saskatoon, Family Law Division ___________________________________________________________________________ BETWEEN: STEPHANIE MARIE DAHL Petitioner - and - CURTIS CARL DAHL Respondent Counsel: Reginald E. Sauer for the petitioner Jeremy A. Caissie for the respondent ___________________________________________________________________________ FIAT ELSON J. September 27, 2022 ___________________________________________________________________________

Preamble [ 1 ] On September 22, 2022, I issued a fiat in this matter as an unreported decision of the Court. Since its issue, I have been persuaded that the fiat should be published. Accordingly, the published and slightly redacted version of the fiat, bearing the date of its publication, appears below. Introduction [ 2 ] This matter pertains to the ongoing parenting of a young child, whose parents have had a shared parenting arrangement. The parents live in Saskatoon and Estevan, respectively.

The distance between the two locations is more than 460 kilometres. [ 3 ] Each parent registered the child for kindergarten in the respective locations, although the registration in one of the centres was cancelled by the local school division. The decision to register the child in school has caused the matter of parenting to come back to this Court. Background [ 4 ] The parties are the parents of a five-year-old girl, L.D., born (redacted), 2017 [L.D.]. They were formally divorced through a judgment dated May 31, 2019, which divorce became effective on July 1, 2019.

The judgment included a provision for the parties to have “joint custody and shared parenting” of L.D. I should note that this judgment was by consent, arising from minutes of settlement concluded at a pre-trial conference before Konkin J. on April 29, 2019. [ 5 ] The 2019 shared parenting arrangement continued until the late spring of 2020, when the pre-trial conference before Konkin J. was reconvened on June 18, 2020. This occurred due to the petitioner’s stated intention to relocate to Estevan.

According to the evidence, the petitioner had been in a relationship with her current partner, Blayne Thomson, who has resided in Estevan. In 2020, the couple made plans to live together in that city. [ 6 ] At the reconvened pre-trial conference, the parties, each with their own counsel, reached an agreement for ongoing parenting after the move. That agreement, set out in signed minutes of settlement, stipulated that, commencing June 28, 2020, the parties would share parenting of L.D. on a two-week alternating basis, with exchanges taking place in Regina.

Except for a paragraph that addressed the right of both parties to attend extracurricular activities or school events, the minutes did not specifically address school attendance, at all. [ 7 ] It is important to note that the minutes contemplated the prospect of a mobility trial related to the petitioner’s

relocation. In this regard, paragraph 6 of the minutes reads as follows: 6. Prior to a mobility trial being scheduled the parties will request a resumption of the pre-trial conference before the Honourable Mr. Justice D.B. Konkin. The benefits of a custody and access and assessment may be discussed at that time. Following these minutes, neither party took any steps to reconvene the pre-trial conference and there has been no trial or other hearing to address the mobility issue. [ 8 ] In March 2022, L.D. reached the age of five years and became eligible to attend kindergarten.

According to the petitioner, the respondent had agreed, as early as September 2021, that L.D. could attend school in Estevan. She also deposed to a discussion about the respondent possibly moving to Estevan or giving up his parenting time.

The petitioner exhibited an electronic message from the respondent, dated September 13, 2021, in which he asked about his “deadline” either to get a job in Estevan and “continue 50/50 or stay here and give time up without going to court/child support etc. … obviously before school…” [ 9 ] The matter was not discussed again until March 2022 when, after an argument between the parties, the respondent threatened to register L.D. for kindergarten in Saskatoon. [ 10 ] The petitioner has now registered L.D. for kindergarten at Pleasantdale School in Estevan, within the Southeast Cornerstone School Division [Southeast Cornerstone].

In the meantime, the respondent registered L.D. for kindergarten at St. Bernard School in Saskatoon, within the Greater Saskatoon Catholic Schools Division [SCS]. The affidavit evidence does not disclose the dates when these registrations occurred. Having said all this, when the matter was heard in chambers, the Court was told that the registration in Saskatoon was cancelled by SCS, apparently on the basis that L.D. could not be registered for school in two different school divisions. Neither counsel was aware of the specific legal basis for the cancellation.

Positions of the Parties [ 11 ] It is the petitioner’s position that, in keeping with the June 2020 minutes of settlement, the matter should come back to the Court for a pre-trial conference and possibly a trial. In the interim, the petitioner maintains that L.D.’s best interests are served by her primarily residing with the petitioner for the purpose of her continuing to attend school in Estevan. [ 12 ] The respondent’s position has two parts, a primary position and a secondary one.

The primary position is that there should be a change in the parenting arrangement such that L.D. should now primarily reside with him in Saskatoon. In support of this position, the respondent deposes to various concerns about L.D. living in Estevan with the petitioner and Mr. Thomson.

In furtherance of this position, the respondent has also obtained evidence through the affidavit of the petitioner’s mother. [ 13 ] I am satisfied that it is not necessary for me to recite, in detail, the concerns expressed by the respondent and the petitioner’s mother, virtually all of which were vigourously denied in a reply affidavit by the petitioner. Suffice it to say that the evidence about ongoing parenting arrangements is very controverted.

As such, it is impossible to resolve those issues based on affidavit evidence, alone. [ 14 ] The respondent’s secondary position pertains to interim parenting pending a pre-trial conference and a trial. On this issue the respondent posits that the Court can allow shared parenting to continue by directing, on an interim basis, that L.D. be registered for kindergarten in both Estevan and Saskatoon.

In this regard, the respondent’s counsel observes that kindergarten is not compulsory and that the Court should have overarching jurisdiction to make an interim direction in this regard. [ 15 ] Further to this secondary position, the respondent’s counsel was asked whether he was aware of any legal or jurisdictional issues that might arise if the Court accepted his submission. Counsel could not address these issues, one way or the other. Analysis [ 16 ] Principally for the reasons already referenced, I am not prepared to entertain the respondent’s primary argument.

As mentioned, the evidence relating to the quality of ongoing parenting is virtually irreconcilable.

It is neither safe nor prudent for the Court to come to such a significant decision without the benefit of more reliable presentation of evidence, such as would be received through a trial or cross-examination on affidavits. [ 17 ] In short, I am satisfied that the matter of ongoing parenting, which will necessarily involve attendance at school, must be addressed through a pre-trial conference and possible trial, or through a binding pre-trial conference. [ 18 ] Turning to the interim orders, I am satisfied that I must also reject the respondent’s secondary argument.

More particularly, I am convinced that there is no meaningful jurisdiction or basis in law for the Court to direct two separate school divisions to accept L.D.’s registration. I am also satisfied that, if I were to make such a direction, one or other of the school divisions could lawfully refuse to abide by it. I will explain. [ 19 ] To address this issue, I have considered the relevant provisions of The Education Act, 1995 , SS 1995, c E-0.2 [ Act ]. Three provisions attracted particular attention.

The first provision, in s. 2 of the Act , is the definition of “compulsory school age”, which reads as follows: 2 In this Act : … “compulsory school age” means having attained the age of six years but not having attained the age of 16 years; …

This definition has particular significance when addressing the compulsory school attendance provisions of the Act , such as s. 156 , which I need not recite here. [ 20 ] The other two notable provisions are s. 142(1) (

a) and s. 85(1) (

g) of the Act . Respectively, these provisions address: (1) the right of a pupil to attend school; and (2) the corresponding duty of a school division’s board of education with respect to that right. These two provisions read as follows: 142

(1) Subject to the other provisions of this Act , every person who has attained the age of six years but has not yet attained the age of 22 years has the right: (

a) to attend school in the school division where that person or that person’s parents or guardians reside; and … 85

(1) Subject to

section 86, to any directive of the minister and to the duties of the conseil scolaire with respect to the division scolaire francophone and any fransaskois school in a francophone education area, a board of education shall: … (

g) determine what school any of the children of the school division shall attend; … [ 21 ] By my reading of the Act , s. 142(1) (

a) is consistent with the overall scheme of the statute, which is to recognize that the right to an education is that of pupils within the stipulated age. Even where the pupil is a child, the right belongs to the child – not the child’s parent or guardian. [ 22 ] The right, however, is not without limitation. In this respect, I think it noteworthy that the singular reference to “school division”, as opposed to the plural, signifies the legislature’s intention that, as a rule, the right to attend school should not extend to more than one school division.

While the Act contains specific exceptions for special circumstances, such as in s. 142(5), I am satisfied that, but for such circumstances, the overarching rule is that an eligible pupil cannot be registered in two separate divisions. [ 23 ] I think it also noteworthy that, in facilitating the exercise of a child’s right, s. 85(1) (

g) of the Act imposes a duty on a school division’s board of education to determine the school that child shall attend. That determination is left solely to the board of education. I am satisfied that there is no authority or jurisdiction for this Court to insert itself in the exercise of that duty. [ 24 ] Theoretically, it could be argued that the Court could exercise its jurisdiction parens patriae in this instance. While I think this argument is extremely doubtful, I am satisfied that, if such jurisdiction exists, it could only be exercised in the most extraordinary of circumstances.

That is not the situation here. [ 25 ] Applying these considerations to the present case, I note that L.D. is not yet of compulsory school age. That said, she will attain that age before the current school year ends. It follows that, while she presently does not have the statutory right under s. 142(1) (

a) of the Act , she will soon have that right and it will be confined to only one school division. In the circumstances, it makes little sense for the Court to disrupt the present situation. [ 26 ] In saying all of the above, I recognize that L.D.’s statutory right to attend a school depends on where her parents or guardians reside. The right to attend school in Estevan is obviously premised on the petitioner’s residence in Southeast Cornerstone. Of course, the respondent’s residence in SCS could similarly have supported L.D.’s right to attend school in Saskatoon.

Although I have no evidence on the specific dates of the respective registrations, I strongly suspect that the petitioner registered L.D. before the respondent did, and that this was the basis for SCS to cancel the registration and defer to Southeast Cornerstone. [ 27 ] In the end, I am satisfied that the Court must be mindful of L.D.’s registration for kindergarten in one school division.

Aside from the legal and jurisdictional hurdles in dividing that registration between two different school divisions, it seems to me that disrupting her registration, even on an interim basis, would not serve L.D.’s best interests as a young child just starting her school experience. I say this despite acknowledging that kindergarten is not mandatory. It necessarily follows that, on an interim basis, L.D. should primarily reside with the petitioner while attending school. Conclusion [ 28 ] In the result, the following interim orders shall issue: a.

The child, L.D., born (redacted), 2017 [L.D.], shall reside primarily with the petitioner in Estevan, Saskatchewan. b. Subject to mutual agreement between the parties or any further orders that may arise from pending proceedings, the respondent shall have parenting time with L.D. during the following times: i. At least one long weekend per month to be arranged by the parties taking into account the school calendar and the days that L.D. is off school; ii.

One half of the Christmas Break which, unless otherwise agreed by the parties, shall consist of the time from Friday, December 30, 2022, to Sunday, January 8, 2023; iii. During the family week break from Saturday, February 18, to Saturday, February 26, 2023; iv. During the Easter break from Friday, April 7, to Sunday, April 16, 2023;

v. Alternating two-week rotation during L.D.’s summer break from school, with exchanges to occur every second Sunday; and vi. Unless otherwise agreed by the parties, the exchanges for the respondent’s parenting time shall take place at 3:00 PM in Regina. c. T he parties are directed to attend a pre-trial conference on an expedited basis, and any trial arising from such pre-trial conference shall proceed as soon as is practicable and subject to the availability of a judge of this Court to preside at the trial. d. In the alternative to a trial, the parties are invited to consider the possibility of a binding pre-trial conference pursuant to Division 3 of

Part 4 of The Queen’s Bench Rules . e. The costs of this application shall be in the cause. [ 29 ] Finally, I repeat my oral comments in chambers about the availability of this Court’s judges to conduct a trial if that should be necessary. At present, there are unfilled vacancies which have impacted this Court’s ability to

schedule various proceedings. While one hopes these vacancies will be filled so that this matter can be resolved in a timely way, the parties must understand that there are no assurances. J. R.W. ELSON