J.W.C. PETITIONER - v. -, 2022 SKKB 237

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 237 Date: 2022 10 31 Docket: DIV-SA-00293-2016 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: J.W.C. PETITIONER - and - K.D.H. RESPONDENT Counsel: Jane M. Basinski for the petitioner K. Brianna M. Spenst for the respondent ___________________________________________________________________________ FIAT GOEBEL J. October 31, 2022 ___________________________________________________________________________ Overview: [ 1 ] The parties have two children, Paige age 13 and Kevin age 9.

For the past few years they have shared care of the children pursuant to the terms of a 2019 judgment entered into by consent shortly before a trial was scheduled to proceed. [ 2 ] Presently, they are unable to agree on parenting arrangements for Paige. The father says that Paige is unhappy in the mother’s home and prefers to reside with him. The mother says that the father is trying to take advantage of a strained relationship between the mother and Paige that predated the judgment. [ 3 ] The father now applies to vary the 2019 judgment by seeking a Voice of the Child report and an order

amending the judgment to conform to that report. At the first court attendance, the parties were directed to participate in mandatory dispute resolution in compliance with s. 44.01 of The Queen’s Bench Act , 1998 , SS 1998, c Q-1.01 . Pending same, the father asks that the voices report be completed. The mother opposes this request arguing that a voices assessment is premature, unnecessary and contrary to Paige’s interest. [ 4 ] Having heard the parties and having reviewed the jurisprudence and written materials filed, I conclude that it is not appropriate to order a voices report in this situation.

My reasons are set out below. Brief History of Proceedings: [ 5 ] The parties met in 2007, began residing together in 2009, married in 2015 and separated a few months later in 2016. In 2016 they were in and out of court on parenting issues. At that time the relationship between the parents was highly strained in part due to inappropriate discipline being utilized by the mother against the children. The first interim order required that the mother’s parenting time be supervised, although within a few months the supervision requirement was lifted and interim parenting was directed to proceed on a shared basis.

At that time, the court also directed that the children engage in therapy with a child psychologist. [ 6 ] For the following two years there was minimal court involvement. In 2018 the parties participated in a pre- trial conference at which time a comprehensive parenting assessment was directed at the father’s cost. The pre-trial conference was adjourned to await the completion of the report, with trial dates tentatively set for June 2019. [ 7 ] A detailed report was completed by Dr. Greenough on February 25, 2019.

When the pre-trial conference resumed shortly thereafter, the parties entered into minutes of settlement implementing many of the recommendations in his report. On April 24, 2019 a final judgment was granted with the consent of the parties and trial dates were vacated. Both parties were represented by experienced legal counsel at that time. [ 8 ] The consent judgment provided for a shared parenting

schedule for both children, supported by therapy and education. It also required that the children continue to see the child psychologist, Dr. G. Farthing, unless deemed unnecessary by the psychologist or the parties. With respect to the parents, the judgment directed that “the parties shall attend New Ways for Families with Aspire Too”. The consent judgment also contained detailed provisions respecting decision-making. [ 9 ] In July 2022 the father filed an application to vary the consent parenting judgment. In his application he seeks the following relief: a.

The preparation of a Voice of the Child report to be completed with reference to the child of the marriage, namely PAIGE, born ***, 2009, and presently 13 years old. b. Amendment of the current parenting

schedule in conformation with the Voice of the Child report. [ 10 ] In support of this relief, he sites the following grounds: 3. Grounds for making this application: a. There are concerns regarding the ability of the Respondent mother to effectively parent the children. b. Paige has made multiple statements to the Petitioner father about her concerns with respect to residing with her mother. c. Paige has exhibited concerning behaviours regarding parenting time with the Respondent mother. d. Paige is thirteen years old and should be afforded the opportunity to have her voice herd. e.

It is in the best interests of the children that they reside in a home where they are respected, and are free from harassment. [ 11 ] As an application to vary a final judgment is deemed to be a “commencement document” (see Rule 15-1 of The Queen’s Bench Rules ), the parties were required to comply with the mandatory dispute resolution process prescribed by s. 44.01 of The Queen’s Bench Act, 1998 . Pending same, the father asked that Paige be afforded the opportunity to have her voice heard.

Specifically, he asks the court to direct that a Voice of the Child report be completed by a private assessor, Donalda Halabuza. He is prepared to cover the costs relating to same. [ 12 ] The mother opposes this request on a number of grounds. Firstly, she questions whether the court should order a voices report before finding that there has been a material change in circumstances. Secondly, she argues that a voices report would be unhelpful, if not harmful, to Paige given the family dynamic.

Finally, given longstanding allegations that the father has engaged in alienation, she queries as to whether such a report would contain the child’s authentic voice or provide any real assistance to the trier of fact. Issues: [ 13 ] The issues are as follows: 1. Where a parent applies to vary a final judgment, can the court direct a Voice of the Child report before making a finding that there has been a material change in circumstances since the original judgment was granted? 2.

If so, is it appropriate to direct a Voice of the Child report respecting Paige given the history of this proceeding and the allegations being advanced? Analysis:

Where a parent applies to vary a final judgment, can the court direct a Voice of the Child report before making a finding that there hasbeen a material change in circumstances since the original judgment was granted? [14] The mother argues that the father must meet the burden of demonstrating that there has been a material change incircumstances before the court can entertain his application for a voices report. Otherwise, she argues, it risks forcing the family backinto litigation without there being a legitimate legal basis to do so.

In support of this argument she cites D.M. v R.W., 2016 SKQB 113[D.M.] and Mayne v Mayne, 2009 SKQB 329, 339 Sask R 264 [Mayne]. [15] The father opposes this technical approach and relies on jurisprudence that has found that where an applicationto vary is grounded upon the wishes of the child, the threshold test of material change can only be established after a voices report hasbeen provided to the court: Kittelson-Schurr v Schurr, 2005 SKQB 90 at para 10 [Schurr], X.M. v R.M., 2017 SKQB 167 [X.M.]. [16] There is no dispute respecting the applicable law or governing legal analysis when it comes to an application tovary a final parenting order pursuant to s. 17 of the Divorce Act, RSC 1985, c 3 (2d Supp).

Notwithstanding the recent amendments to theDivorce Act, s. 17(5) continues to mandate a two-stage inquiry with the father bearing the onus of demonstrating that a material changehas occurred since the last judgment was granted. If he fails to meet this threshold, the enquiry ends and the existing parenting order willcontinue to govern.

See Gray v Wiegers, 2008 SKCA 7, 307 Sask R 117 [Gray], Talbot v Henry (1990), (SK CA), 25RFL (3d) 415 (Sask CA). [17] The material change threshold is not a mere formality met by the slightest change or the mere passage of time.In order to meet the threshold test, the change must have altered the child's needs or the ability of the parents to meet those needs in afundamental way.

The change must also be a “distinct departure” from what the court could reasonably have anticipated when theprevious parenting order was granted: see Gordon v Goertz, (SCC), [1996] 2 SCR 27, L.M.P. v L.S., 2011 SCC 64,[2011] 3 SCR 775, A.M. v Ministry of Social Services, 2020 SKCA 114. [18] One function of a high threshold in parenting disputes is to prevent parties from re-litigating issues that werealready considered and rejected.

The Court of Appeal in Gray emphasized the policy considerations as follows: [24] The policy reasons behind the threshold requirement for reopening a custody and access order were helpfully described by BayntonJ. in McLeod v. Impey, 2003 SKQB 167, 123 A.C.W.S. (3d) 714 and Popescul J. in Scott v. Higgs, 2007 SKQB 231, 160 A.C.W.S. (3d)1024. Popescul J. adopted this analysis expressed by Baynton J.: 23 …In my respectful view, trial judges too often lower the bar of the threshold that an applicant must meet before they enter into aconsideration of the application on its merits.

Often no determination is made before trial as to whether the applicant can meet thethreshold. The determination is almost always made after the trial judge has heard all the evidence, often from many witnesses over alengthy period of time. There is an adverse consequence of erring on the side of finding that there has been no material change incircumstances that affect the child. It is significant because the appeal court will not have the benefit of the trial judge’s findings of facton the merits of the second aspect of the case.

There is accordingly a tendency to quickly pass over the first aspect of the case and tofocus on the second aspect. 24 There are many good policy reasons however, for paying more than lip service to the threshold requirement. Few parties have thefinancial resources to be repeatedly in court re-litigating custody and access issues. There are significant benefits to the children and allthe parties involved in the stability and predictability that custody and access orders bring by finalizing the issues in dispute.

Obviously,custody orders are never final in the absolute sense and must be flexible to ensure that the best interests of the children are being met.But if the variation of custody orders becomes the rule rather than the exception, the best interests of children in general will not beserved. It is accordingly essential to give full consideration to the threshold issue before moving on to the merits of the second aspect ofthe case. (McLeod v. Impey, quoted and approved in Scott v. Higgs at para. 17.) [25] I, too, agree with these comments.

It is my view that mere passage of time and increased maturity of the child does not, in and ofitself, constitute a material change of circumstance as is required by s. 17(5) of the Divorce Act and the case law that has interpreted thatsection. Were it otherwise, there would be an automatic right to seek variation of custody orders on a regular basis every few years. Thisis clearly contrary to the established law.

While the reviewing judge may, of course, take into account that a child’s needs may change ashe or she matures, it is necessary to go further to determine whether and to what extent those changes have, in the case before thereviewing judge, made the original order inadequate. [19] More recently, in T.C. v A.E., 2021 SKCA 79, Barrington-Foote J.A., dissenting in part, added the followingguidance and caution when the court is called upon to vary a final parenting order in a high-conflict parenting dispute: [103] What, then, is sufficient to prove a material change?

If the bar is set too low, the disgruntled parent will be tempted to haveanother go, increasing cost and conflict. The requirement for a material change recognizes the importance of resolving custody disputes –to the extent finality is possible where parenting arrangements are concerned – and of the crucial stability that can result from having anissue adjudicated. It also recognizes the human reality that parenting disputes involve high stakes and high emotions, and that it can taketime for those involved to find an angle of repose. Parents can, and too often do, behave badly in these circumstances.

To unduly weakenthe meaning of the phrase “material change”, whether in the name of judicial discretion or otherwise, ignores these realities. [20] It is with this legal context in mind that I must consider the issue at hand – specifically, whether the court mustfirst find that the material change threshold has been established before it can order a Voice of the Child report. [21] This issue has been considered in a number of cases with what appears, at first blush, to be varied results.

Forinstance, Smith J. in Schurr held that where a child expressed a wish to reside with one parent, and is of a sufficient age to express thatdesire, a voices report ought to be prepared and the matter ought to proceed on to a pre-trial conference. He held: 9 The petitioner raises the argument that the respondent cannot clear the threshold test for a variation application of showing a materialchange. All the respondent proffers is his opinion as to Dallen's position and that is not enough. The respondent replies that the Voices of

the Children report will amply demonstrate that there has been a material change since the original custody order of July 7, 2000. That change is Dallen's maturing intellect and, with that, his desire to live with his father on a week-on, week-off basis. 10 I must respectfully reject the petitioner's argument that the respondent's application fails on the threshold test.

When an application is based on the wishes of the child, the threshold test of material change can only be established after a review of a Voices of the Children report. [ 22 ] Smith J. directed the voices report proceed while also reminding the parties that despite the age of the child, there is no principle of law that the express wish of a child is absolute or determinative of parenting issues. [ 23 ] In Gilewich v Gilewich , 2007 SKQB 70 , 37 RFL (6th) 182, the court was grappling with the use of a comprehensive parenting assessment in the context of an application to vary a final parenting order.

Referring to jurisprudence from the Alberta Court of Appeal McIntyre J. stated as follows: [12] With respect to the parenting assessment report I refer to the decision of the Alberta Court of Appeal in Tucker v. Tucker 1998 ABCA 281 ; [1999] 4 W.W.R. 461. This was an appeal by the father from an order directing a psychological assessment of their son. The assessment was to be heard at a hearing of the mother’s application to vary custody and access. The court rejected the father’s argument that it was not appropriate to use a psychological assessment to establish a change in circumstance.

To make finding a material change a pre-condition to ordering an assessment might remove from the judge the most objective method of determining whether material changes had occurred. The court concluded an assessment was properly ordered where there was some evidence of changes in the child’s life, giving the court reason to believe that further investigation of the child’s circumstances was warranted. [13] I see the assessment here in that light. The affidavit material raised sufficient questions as to indicate that the present arrangement may be dysfunctional.

The fiat directing the assessment also flagged as an issue the possibility that the situation was being manipulated by the petitioner or perhaps by Megan herself. The assessor addressed both of these issues and is of the opinion that neither of these situations exist. [14] In the circumstances of this matter it was determined that a parenting assessment could assist in determining whether this matter ought to proceed to trial. In the circumstances of this family, a further trial would undoubtedly be an emotional roller coaster.

That step is not to be taken lightly but at the same time where circumstances warrant a trial may be the only option. [15] In Tucker , supra , at paragraph 30 the court observed: 30 An assessment may establish a serious change in the psychological well-being of a child. In fact, it may be the only way of ascertaining whether the day-to-day changes which have occurred since the original order was made are negatively affecting his or her psychological well-being and resulting in a change of condition.

The child’s needs and well-being cannot always be determined by how well he or she is doing in school or by the fact that he or she has friends. The appearance of success does not necessarily equate with inner security. Sometimes, despite any change in the visible exterior circumstances, the changes within the child justify reconsidering the custodial and access regime in which he or she lives. [16] The question posed is apropos the present circumstances.

Have day-to-day changes which have occurred since the original order negatively affected the children’s psychological well-being such as to result in a change of condition which may justify reconsidering the custodial regime? [ 24 ] However, in Mayne , McIntyre J. did not apply the same reasoning to an application for a voices report, citing policy reasons behind courts’ reluctance to return a family to litigation when a final judgment is already in place. With respect to the timing of a voices report, he held as follows: 19 The possibility of ordering a Voices of the Children Report was raised.

Unless the court concludes that there has, in fact, been a material change of circumstance or that the alleged changes could constitute a material change of circumstance, it is not appropriate to order a Voices of the Children Report. I am satisfied there has been no material change of circumstance. As I have previously observed, I am satisfied these parties will be respectful of and listen to Juliana’s views and opinions. [ 25 ] In Knudsen v Knudsen , 2013 SKQB 216 [ Knudsen QB ], the court followed Schurr and directed that a voices report be completed before making the threshold finding.

Ball J. held that wh en the application is grounded on the wishes of the child, the threshold test of material change can only be established after a review of a voices report, particularly where there is conflicting evidence that indicates that the child’s views are not being reliably communicated to the court. He held: 8 The conflicting affidavit evidence filed by mother and father make it clear that Julie’s views are not being reliably communicated to the court.

I am satisfied that an independent assessment of her wishes with respect to her mother’s proposed move back to Assiniboia and there resumption of a shared parenting arrangement will assist the court in deciding this application. [ 26 ] The father’s application for leave to appeal was denied: Knudsen v Knudsen , 2013 SKCA 72 , 417 Sask R 117. Ottenbreit J.A. held as follows: [10] I have concluded that Mr. Knudsen’s application for leave must be dismissed. In my view, Mr. Knudsen will have an uphill battle arguing that the Chambers judge erred by ordering a Voices of the Child report.

It is without dispute that, generally speaking, a Voices report can assist courts in assessing how a parenting arrangement should be crafted. In the specifics of this case, the Chambers judge determined that such a report was warranted. The reason given by the Chambers judge for the order was that, in the face of an application for variation and in the presence of conflicting affidavit evidence, it was necessary for the report to be done so the court could properly assess the view of the child in this case. [11] Mr.

Knudsen’s arguments on the application for leave to appeal are essentially the arguments which he made before the Chambers judge as to why the report should not be ordered. His arguments in his notice of appeal that there should have been material change

demonstrated before the Chambers judge could order a Voices report puts the cart before the horse and, in my view, prima facie isdestined to fail. The issue of whether there is a material change is yet to be determined. The Chambers judge took into consideration theprevious Voices reports already done including the one report done two years ago and exercised his discretion to order another one inwhat appears to be the best interests of the child. Mr.

Knudsen seeks to overturn a discretionary order, the result of which, at least in theabstract, would be of some benefit to the Court. [27] In D.M., Megaw J. distinguished this line of reasoning on the basis that, in the case before him, there wasevidence that the child had been coached and/or that the child’s views were as a result of inappropriate influence or alienation. Inrefusing to order a voices report, Megaw J. held: [19] It may well be in the circumstances of a particular case that a child’s wishes may be sufficient to determine there has been amaterial change.

That will depend on the facts presented and the particular situation with the child and his or her parents. I do not want tobe seen as forestalling this possibility. [20] In the case before me, the content of the existing Voice of the Child report raises real concerns over the respondent’s influence withthe children on their decision regarding where they will reside. It appears to have happened with the eldest boy. There is every reason tosuspect it has occurred with the other two children.

Perhaps more importantly, there is no additional evidence beyond the wishes of thesetwo youngest children as to a material change in circumstances affecting their needs and requiring a fundamental alteration of theparenting situation. [21] In the circumstances before me, I am not prepared to order a Voices of the Children report with respect to the two youngestchildren. I determine there has not been a material change in circumstances established. The wishes, as expressed, are not sufficient tocreate that material change. [28] Most recently, in X.M.

Brown J. distinguished D.M. where there were a number of concerning allegations raisedby the evidence, not only the wishes of the child for whom the report was being sought. Citing Knudsen QB and Schurr, Brown J.ordered a voices report and made a further order prohibiting the parents from discussing the report process with the child or fromcoaching, swaying or prompting the child towards any particular views or statements. [29] This review of the jurisprudence clarifies that there is no rule or legal principle that prohibits the court fromordering a voices report before the material change threshold has been met.

Each case must be decided on its own facts. [30] As with all types of parenting assessments, the main focus of the inquiry is whether the report will be ofassistance to the trier of fact in the ultimate determination of the legal issues in play: s. 97 of The Queen’s Bench Act, 1998, Rule 15-1 ofThe Queen’s Bench Rules, Bouvier v Levesque, 2009 SKQB 382, 74 RFL (6th) 311, Hill v Preston, 2012 SKQB 370, Schurr at para 13.It is unlikely the court will order a voices report where it is doubtful the report will hold much weight in the final analysis, particularlywhere there is evidence that engaging the child in the assessment process may unintentionally entrench the child further into the dispute.When the request for a report is made in the context of an application to vary a final parenting order, the court must also factor in thepolicy considerations that discourage re-litigation and promote the stability and predictability that final parenting orders provide forfamilies. [31] To accomplish this balance, the caselaw recognizes a number of relevant factors including whether the wishesof a mature child are the primary or sole basis for the material change and if so, whether the evidence on that point is actually in dispute.Often both parents agree on what a mature child prefers but debate whether their wishes are in the child’s best interests.

In that situation,the voices report may be of little assistance to the trier of fact. [32] The court will also consider whether a voices report is the best course for determining a particular child’swishes. For instance, where a child is prone to excessive stress or anxiety, evidence gleaned through a therapeutic professional or morefulsome parenting assessment may have more weight than a voices report. Likewise, engaging a child who is already embroiled in theparental dispute might prove harmful to the child and the family dynamic.

Where the process has the potential to leave a resistant childwith the impression that they are “in charge”, or directly responsible for the outcome of the proceeding, a more fulsome parentingassessment may be more appropriate. [33] These considerations recognize that a voices report has a narrow scope and is unlikely to include meaningfulrecommendations or a detailed analysis of considerations that are grounding the child’s views.

As such, a voices report will rarely havemuch weight in the determination of a child’s best interests where there are concurrent findings that the child has been subjected toinappropriate influence or alienation. Such was the case in M.L.S. v N.E.D., 2017 SKQB 183 [M.L.S.], where the court held as follows: 231 Without question, a child’s wishes are relevant to determining a parenting arrangement that is in their best interests.

Often, theconsideration of this factor raises practical questions about how to go about determining the child’s wishes and preferences – particularlywhere there is controverted evidence. 232 In this situation, there was no such controversy.

At the trial it was undisputed that the children not only preferred to remain in theprimary care of the father, but had completely rejected the potential for any future relationship with, or contact with, their mother. 233 Accordingly, the focus at trial was not upon determining their wishes, but rather upon the weight the court should give to thosepreferences when deciding what parenting arrangement is in their best interests. The father has been adamant that the court should weighheavily the stated wishes of the children. This has been his mantra for the past seven years.

The mother argues that the court should giveminimal weight to their stated wishes at this time. 234 As a starting point, despite the age of the child there is no principle of law that the express wish of a child is absolute and, in itself,determinative of the issue of custody: Johns v Hinkson (1996), (SK KB), 151 Sask R 168 (QB), A.J.R. v M.R.A., 2013SKQB 223, 422 Sask R 151, Kittelson-Schurr v Schurr, 2005 SKQB 90.

235 It is important that neither parents, nor the court, abdicate their decision-making power to a child who may not have the experiencenor context to make adult decisions, or who may be motivated by factors that are not in their best interests in the long term. Rather, thecourt must engage in a case-by-case assessment of “due weight” having regard to all of the evidence to determine if the child’s wishescorrespond with his or her best interests. 236 Commonly, the determination of “weight” is anchored upon the age and maturity of the child.

While these factors are informativeindicators, they cannot alone determine the significance of a child’s views, particularly where there is evidence of parental estrangement.It remains necessary to consider whether the “voice” being expressed is authentic, free from interference by a parent or third party orsome other consideration. 237 There are many cases where the uncontroverted wishes of teenage children were given minimal weight in the face of evidence thatthe children had been involved in parental alignments brought on by manipulation and/or where there was clear evidence that one parenthad undermined the child’s relationship with the other parent: Huckerby [[2014] SJ No 791 (QL) (Sask QB)] (children ages 14 and 17),C.O. v D.O., 2010 ONSC 6328 at para 16 (children ages 15, 12 and 10), I.S. v D.S., 2010 BCSC 306 at para 126, 83 RFL (6th) 333 (childage 12), Zacconi v Mahdavi, 2010 ONSC 3294 (child age 14), Scervino v Scervino, 2011 ONSC 4246 at para 39, 4 RFL (7th) 363 (childage 12), A.G.L. v K.B.D. (2009), (ON SC), 65 RFL (6th) 146 (Ont Sup Ct) at paras 143 to 149 (child age 14), V.M.B. vC.J.B., 2004 BCSC 596 at para 34 (child age 14), Reeves v Reeves, [2001] OJ No 308 (QL) (Ont Sup Ct) (children ages 16 and 13),J.K.L. v N.C.S. (2008), (ON SC), 54 RFL (6th) 74 (Ont Sup Ct) at paras 196 and 197 (child age 13), Tock v Tock, (ON SC), [2006] OJ No 5324 (QL) (Ont Sup Ct) at paras 121 to 123 (child age 14), Finch v Butler, 2010 ONSC4796 at paras 69 to 70 (children ages 12 and 13), R.A.L. v R.D.R., 2007 ABQB 79 at para 199 (child age 13) and S.G.B. v S.J.L., 2010ONSC 3717 at paras 130 to 134 (child age 16). 238 Where the “voice” has been influenced or manipulated by a parent or third party, the child’s views must be viewed with caution.Further, as in all cases involving custody and access, the court must consider whether the express wishes are compatible and consistentwith other evidence respecting the child’s best interests overall. [34] To summarize, when exercising its discretion to order a Voice of the Child report within the context of anapplication to vary a final parenting judgment, the court will balance a number of factors, including: a. the evidence respecting the maturity of the child; b. whether the wishes and preferences of the child are the sole or primary ground for the material change or whether there are anumber of alleged changes in play; c. whether the evidence respecting the child’s wishes and preferences is controverted; d. whether there are other, possibly more appropriate, mechanisms by which the child’s views could be presented to the court; e. whether the evidence or history of the proceeding raises concerns that engaging the child in the voices assessment process maycause unnecessary stress, or even harm, to the child or family dynamic.

For instance, is there a real concern that engaging the child in avoices assessment process will unintentionally entrench an aligned child further into the dispute; f. whether the evidence or history of the proceeding raises concerns that the views expressed in a voices report are unlikely to reflectthe authentic voice of the child; g. whether, given the above considerations, is it likely that a voices report will meaningfully assist the trier of fact in determining aparenting plan that is in the best interests of the child; and h. whether the considerations that favour a voices report outweigh the policy considerations that discourage re-litigation and promotethe stability and predictability that final parenting orders provide for families. [35] With these factors in balance, I turn to the father’s request for a voices report in this particular case.

Is it appropriate to direct Paige to participate in a voices report at this time? [36] The father’s application seeks an order directing the preparation of a voices report for Paige, and further, thatthe parenting

schedule set out in the 2019 judgment be amended to conform with the report.

This prayer for relief is curious andconcerning for a number of reasons. [37] First, the grounds identified in his application, along with much of the father’s sworn evidence, raise concernsabout the mother’s capacity to parent and the best interests of both children, yet he seeks only to alter the parenting arrangement forPaige. [38] Second, despite the jurisprudence holding that the wishes of a child are but one factor in the ultimatedetermination of their best interests, the father asks that the court defer any variation of the parenting judgment to Paige – based solely onthe statement of her wishes as described in a yet unseen and unprepared report.

This leaves no space for the court’s consideration of otherbest interests factors and asks the court to essentially delegate the ultimate issue to Paige and an assessor tasked with preparing a limitedscope report. [39] Third, by framing his prayer for relief in this way, he leaves little room to proceed with the application in theevent a voices report is not ordered by the court. [40] This aside, having considered the jurisprudence, evidence and arguments advanced by the parties, I am notsatisfied that a voices report would be of assistance to the trier of fact in this instance.

[ 41 ] First and foremost, the evidence respecting Paige’s wishes are not controverted. The mother does not deny the father’s assertion that Paige would prefer to reside with him. Second, while Paige is 13 years of age – well within the age range where the court will consider the appropriateness of a voices report, there is evidence that she is also assertive, strong-willed and has exhibited defiance in her relationship with the mother.

There is a legitimate concern that a limited scope voices report could further entrench Paige in the parental dispute. [ 42 ] Third, the history of this matter mitigates against proceeding with a voices report absent a finding of material change. As stated, the parties and children participated in a detailed and thorough parenting assessment process before entering into the 2019 final judgment. The report of Dr. Greenough dated February 25, 2019 raised many of the same concerns that now appear to ground the father’s application.

For instance, the report identifies a strained relationship between Paige and the mother, indicates that Paige claims to be uncomfortable with her step-brothers in the mother’s home and states that Paige prefers to reside with the father. The report also indicates that the father was claiming to have difficulty getting Paige to go to the mother’s home, including that the father claimed to have recordings of Paige protesting about going to the mother’s home. Also in his report, Dr. Greenough indicates that Dr.

Farthing, a child psychologist who had a therapeutic relationship with the children, raised concerns about Paige feeling caught between her parents – stating that she was “vulnerable to reporting to each parent what she thought they wanted to hear”. [ 43 ] Fourth, the allegations raised by the father respecting inappropriate discipline in the mother’s home, if proven, raise concerns that go well beyond the relief being sought and the scope of a limited scope voices assessment process.

That said, these allegations are controverted by the mother who deposes that she feels the need to protect herself from false allegations. She cites instances when she believes that the father made unsubstantiated reports to child protective services, including one recent instance after this application was filed. She says she keeps detailed diaries and has installed “nanny cameras” in her home so that she is able to respond in detail if false allegations arise. It is noted that in his 2019 report, Dr.

Greenough opined that the father’s weak commitment to joint parenting was shaped by his lack of confidence that the mother can adequately meet the children’s physical and emotional needs. The assessor felt that the father remained “hypervigilant to the possibility that she might neglect or physically abuse the children”. [ 44 ] The mother also alleges that the father consistently undermines her relationship with Paige which has impacted her ability to successfully resolve parent/teen conflict with Paige in her home. It is noted that Dr.

Greenough also considered allegations that Paige was being estranged from the mother by the father in 2019, and opined as follows: Friedlander & Walters (2010) proposed a hybrid model of alienation in which a child may have both “realistic estrangement” (abuse, neglect or very poor parenting towards a child) as well as the child using exaggerated and unjustified reasons for refusing contact. The writer suspects, to some degree, both these elements are at play in this situation. [ 45 ] Ultimately, Dr.

Greenough recommended a shared parenting arrangement to maximize the children’s contact with both parents as well as to deliberately provide an opportunity for the mother and Paige to improve their relationship, alongside therapeutic support.

As these recommendations directly influenced the parenting agreement reached by the parties, and ultimately the provisions of their consent judgment, they are relevant when considering whether there has been a material change in circumstances in this instance. [ 46 ] Finally, as stated, it is very concerning that the relief sought by the father at this time delegates the determination of the child’s best interests to the child.

Not only is the court reluctant to put the child in the place of “owning the fight”, it has long been held that neither parents, nor the court, should abdicate their decision-making power to a child who may not have the experience nor context to make adult decisions, or who may be motivated by factors that are not in their best interests in the long term: Howe v Whiteway , 2015 SKCA 72 , 460 Sask R 253, Aalbers v Aalbers , 2011 SKCA 156 , 385 Sask R 141 , Godard v Godard , 2015 ONCA 568 , 387 DLR (4th) 667 , Jackson v Jackson , 2016 ONSC 3466 , M.L.S. at para 235. [ 47 ] In his affidavit, the father deposes that the assessor would have sufficient information to ferret out any undue or improper influence and make recommendations.

This expectation is misplaced. These reports are by no means exhaustive and the authors rarely make recommendations. Voices reports serve as a neutral platform for mature children to express their views. Those views may be authentic, free from influence or inappropriate considerations – but they may not. Caution must be exercised. [ 48 ] In conclusion, despite the excellent credentials of the proposed assessor, I am not satisfied that a voices report would be of meaningful assistance to the trier of fact.

Moreover, given the history of this matter and the father’s stance, there is a risk that proceeding in this fashion may cause further harm to the strained family dynamic that the 2019 judgment sought to address. Conclusion: [ 49 ] The father’s application for a voices report respecting Paige is dismissed.

As the father’s entire application to vary is grounded upon the voices report being completed, his application to vary is also dismissed with costs payable to the mother fixed at $1,000 and payable within 60 days. [ 50 ] This order is without prejudice to any future application to vary that may be brought by either party upon the completion of statutory requirements. That said, the parties are reminded that these types of problems are rarely resolved in court.

Unless each parent humbly and respectfully sets aside their feelings and tries to find a child-centered solution that will remove the stress and responsibility for the situation from their children’s shoulders, the battle will continue and their children will feel forced to choose sides, or worse. The court is heartened to hear that the parents have agreed to participate in mediation.

Perhaps, with the assistance of counsel and a skilled mediator, they can refocus their energy and resources towards a unified commitment to keep their children out of the conflict and implement their co-parenting responsibilities in a child-centred manner before any long-term damage is done. J.

G.V. GOEBEL