L.D.S. PETITIONER - v. -, 2022 SKKB 226

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 226 Date: 20 22 10 14 Docket: FLD-RG-00131-2022 Judicial Centre: Regina BETWEEN: L.D.S. PETITIONER - and - D.F. RESPONDENT Counsel: Zina Scott for the petitioner Foster J. Weisgerber, K.C. for the respondent JUDGMENT DRENNAN J. OCTOBER 14, 2022 Introduction [ 1 ] The father, D.F., seeks to vary the interim order of Madam Justice Richmond, entered into by consent and granted on August 12, 2022, granting the mother, L.D.S., primary residence of the parties’ children, B.F., born [redacted], and M.F., born [redacted] [Consent Order].

The father seeks an order that the children reside primarily with him in [redacted], Saskatchewan, and that the mother have every second weekend parenting time with the children. [ 2 ] For the reasons that follow, I dismiss the father’s application. I direct the matter to a pre-trial conference in the ordinary course. I vary the Consent Order to the extent a new third party is required to manage the parties’ exchanges of the children, and the parties are consenting to that change and to specify the paternal grandfather, A.F. Evidence and Position of the Parties [ 3 ] The parties separated in June 2021.

Prior to the separation, the parties lived in [redacted]. In July 2021, the mother and children moved to [redacted], Saskatchewan. The father remained in [redacted]. [ 4 ] The mother commenced this proceeding by way of petition issued in May 2022. The parties had prior litigation in 2016 (under FLD-RG-00462-2016), resulting in an interim order granted by Mr. Justice Keene on March 3, 2017, requiring the father’s parenting time to be supervised. The parties reconciled thereafter in 2018. [ 5 ] The father was charged with an assault on the mother in June 2021.

He was immediately subject to a no contact provision with respect to the mother, which was amended from time to time to facilitate his access to the children. He is currently subject to a peace bond recognizance including that no contact provision until December 2022. [ 6 ] The father had limited supervised and video parenting time with the children in the summer and fall of 2021. He did not see the children from December 2021 until August 2022.

He asserts this was a unilateral circumstance brought about by the mother, and that he did not consent to this parenting arrangement, nor to her move with the children to [redacted]. The mother’s evidence suggests that the children were fearful of the father, were uncomfortable with visits, and that the father did not pursue parenting time with the children beyond some intermittent efforts through his father, A.F. [ 7 ] Ultimately, the parties resolved matters by way of the Consent Order on August 12, 2022, which formalized

the primary residence of the children with the mother and granted the father access every second weekend, in addition to a holidaysharing. The children’s daycare provider, J.T., was agreed upon to facilitate the exchanges of the children. The Consent Order furtherdealt with child support, and adjourned issues of spousal support and division of family property sine die. [8] What happened after the Consent Order is in dispute. The father has no direct contact with the mother, and nopersonal knowledge of her circumstances, but relies on information provided to him by Mr. T. as a basis for his concerns. [9] Mr.

T. deposes that the mother had a car accident in August 2022. He avers that she struggled to manage thechildren’s behaviours as well as her finances thereafter. He deposes that he and his wife attempted unsuccessfully to find her employment(para. 4 of his affidavit sworn September 22, 2022). He describes the mother as “crying, overwhelmed and distraught” on severaloccasions while dropping off the children, with the children “punching” and “kicking” her (para. 5). He describes her home as being “incomplete disarray” (para. 5).

He opines that her “financial, mental, and emotional stability” has “deteriorated recently” (para. 3). Hedeposes that following the mother learning she would be evicted, he assisted her in writing a letter, signed and notarized on September13, 2022, placing the children in the care of the father for the school year in [redacted]. [10] The September 13, 2022 letter signed by the mother states the following: “I hereby [sic] L.D.S. am taking sometime to re-contruct [sic] my living circumstances in order to better emotionally, financially andphysically provide for our children B.F. and M.F.

We have disgust [sic] that in order to maintain stability for them, D.F. will provide carefor our children for the school year in [redacted] SK 2022. #[redacted], SK”. [11] The mother was represented by Legal Aid at the time of the Consent Order. On September 8, 2022, a notice ofchange of solicitor was filed with the court, indicating Mr. Weisgerber, K.C. was representing the mother. [12] The mother’s evidence is that she initially signed the letter giving interim care to the father, under the auspiceshe was being evicted. She did not have the benefit of legal advice.

She believed at the time that she had no remedies to challenge theeviction. She was fearful that she and the children would be homeless. She deposes that Mr. T. “encouraged” and “helped” her to writethe letter placing the children in the father’s care, and that the words used in the letter reflect his influence. She avers that the father wasbehind in paying child support, which she typically allocated towards her rent. She deposes that Mr.

T., who received and forwarded e-transfers of the father’s child support payments, appears to have not provided her all of the monies that the father transferred for childsupport. The mother’s counsel opined in argument that Mr. T. was unilaterally “skimming” the payments for child care fees owing tohimself and his spouse. [13] When the mother obtained legal advice, she was advised of remedies to challenge the eviction notice. Sheinstructed her counsel to pursue collection of the child support arrears from the father, to pay towards her rent.

When she realized hermistake in believing homelessness was imminent, she sought to have the children returned to her care. [14] The mother denies there is any emotional or other instability in her life. She deposes that finances are herprimary stressor. She has started a home cleaning business which is in its infancy.

She has taken steps to register the children in[redacted] School, the school they attended in [redacted] during the 2021/2022 school year. [15] The father had the children in his primary care for approximately seven days in September 2022 before themother picked them up from [redacted] school on September 20, 2022, under the authority of the Consent Order. She did so without thefather’s consent.

The father subsequently obtained the ex parte order of Justice Mitchell, dated September 22, 2022, for police assistancein returning the children to his care pending the hearing of this matter. [16] The father seeks primary residence of the children on the basis there has been a material change incircumstances since the Consent Order. He argues this is due not only to the mother’s letter granting care of the children to the father forthe 2022/2023 school year, but as there has been a change in the mother’s ability to meet the children’s needs which materially hasaffected the children.

The father points to the specific language used in the letter which he believes is indicative of the mother’semotional struggles beyond a living situation in flux. He critiques her lack of employment. He suggests that much weight should beafforded to the observations and opinions of Mr. T. on the mother’s stability. He admits to being behind in child support payments, butless so than the mother claims, as he has paid for other items (including her vehicle and cell phone). Issues 1. Is there a compelling reason or risk justifying an interim variation of the Consent Order? 2.

Has there been a material change in circumstances since the Consent Order? 3. What order is in the best interests of the children? [17] The foregoing issues are intertwined and will be considered collectively below.

Analysis [18] In argument, the father’s counsel cited the Saskatchewan Court of Appeal’s decision in A.M. v Ministry of SocialServices, 2020 SKCA 114 [A.M.], which summarized the test for a material change in circumstances as follows: [133] As the Supreme Court of Canada stated in Gordon, [ (SCC), [1996] 2 SCR 27] change alone is not enough tosatisfy the applicant’s burden with respect to this first step. The change in circumstances must be material.

It “must have altered thechild’s needs or the ability of the parents to meet those needs in a fundamental way” and represent “a distinct departure fromwhat the court could reasonably have anticipated in making the previous order” (Gordon at para 12). Justice McLachlin (as shethen was), writing for the majority in Gordon, went on to say:

[13] It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a changein the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) whichmaterially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge whomade the initial order. (Emphasis added) [19] The Consent Order is an interim order.

In Babich v Babich, 2015 SKQB 352, 466 Sask R 294, this Courtreviewed the principles enunciated in Guenther v Guenther (1999), (SK KB), 181 Sask R 83 (QB) [Guenther], andthe threshold to vary interim custody orders, noting the court’s general reluctance to vary interim parenting arrangements as such areintended as a temporary, regularizing measure pending pre-trial and trial: [40] When reviewing an interim order, it is incumbent upon the court to remember the threshold test with respect to any changes orvariations of that order. In Guenther v. Guenther (1999), (SK KB), 181 Sask. R. 83 (Sask.

Q.B.) [Guenther] Laing J.settled the threshold as follows: 5 What this application ignores and there have been others recently, is the consistent case law which states the courts should not varyinterim custody arrangements whether legal or de facto in the absence of evidence that the child or children are in some way at risk, orother compelling reason. In Harden v. Harden (1987), (SK CA), 54 Sask. R. 155 (C.A.), Sherstobitoff J.A. on behalfof the Court adopted the statement of Kerans J.A. of the Alberta Court of Appeal in R. v.

R. (1983), 1983 ABCA 156 , 34 R.F.L.(2d) 277 at p. 284 wherein Kerans J.A. stated: … it is at the time of an interim disposition that one should not lightly disturb de facto arrangements: see Cropper v. Cropper (1974), 16R.F.L. 113 (Ont. C.A.). We should remind ourselves that interim custody is just that: a makeshift solution until the correct answer can bediscovered. If a judge could tell what is best at the outset, there is no need for an interim order.

Interim orders are designed to minimizeconflict between parents and cause the least harm to the child and determination of the cause. . . . 8 It appears from the foregoing case law, it constitutes an error in principle, and a reversible error in law to vary interimcustody arrangements pending trial in the absence of evidence of risk to the child.

The foregoing case law indicates that once aninterim custody arrangement has been in place for some time, whether de facto, by court order, or by agreement of the parties, the non-primary care parent should not apply on an interim basis to vary the arrangement (except where risk to the child exists), but proceed tofinal order.

In this province, that means obtaining a pre-trial date for a pre-trial conference, and if the matter is not resolved at that stage,proceed to trial where the Court will determine what is in the best interests of the child. […] 43 I am mindful this Court is reluctant to engage upon either review or a change to interim parenting arrangements. It hasbeen stated many times, but bears repeating, interim arrangements are intended to be an immediate measure to allow the parties toregularize their parenting arrangements pending final determination by the court.

That final determination involves a hearing on theevidence and weighing and a review of that evidence. At the interim stage, all that is before the court is affidavit material upon whichresolutions of disputed fact, credibility or other evidence weighing techniques cannot reasonably be done. [Emphasis added] [20] The principles in Guenther were considered by the Saskatchewan Court of Appeal in Gebert v Wilson, 2015SKCA 139, [2016] 5 WWR 656 [Gebert], which confirmed that interim variations of parenting arrangements should only occur wherethere is evidence of risk or compelling reason to do so (para. 13).

Gebert notes however that this threshold does not displace the need toconsider statutory factors surrounding making an order in a child’s best interests, pursuant to The Children’s Law Act, 1997, SS 1997, cC-8.2 and / or the Divorce Act, RSC 1985, c 3 (2d Supp). [21] The onus is on the father in this instance to demonstrate risk or other compelling circumstance justifying achange to the Consent Order to facilitate the children’s best interests, and inherently in that, a material change in circumstances since theConsent Order impacting “the child[ren’s] needs or the ability of the [mother] to meet [the children’s] needs in a fundamental way”.

Thefather argues that this occurred by virtue of the mother’s abdication of care of the children in September 2022, coupled with Mr. T.evidence that the mother is not stable, and is not appropriately managing the children, her household, and her finances. [22] There are a number of problems with the father’s argument on the evidence before me.

I find the father has notmet his onus. [23] First, the evidence does not demonstrate that there has been a change in the mother’s ability to meet thechildren’s needs in a fundamental way, nor a corresponding change in the needs, condition and circumstances of the children since theConsent Order. This application was triggered in essence by the mother’s decision to sign the September 13, 2022 letter, giving interimcare of the children to the father. In making that decision, the mother held a mistaken belief about her housing status.

She was fearfulwhen she relinquished care of the children that they would not have a roof over their heads. Her decision was undoubtedly difficult butdesigned to ensure the children had a home and stability in the face of what she believed to be a pending eviction. She was, however,mistaken with respect to her legal remedies and acted without legal advice.

Once she was advised of her remedies by legal counsel, sherealized she could provide the children with a home. [24] Secondly, the children were only very briefly in the father’s primary care before the mother realized her errorand attempted to regain care of them. The manner in which she intercepted the children at school was perhaps not ideal, but given theparties’ restrictions on communication and the breakdown in the relationship with Mr. T., it is somewhat understandable.

The shortperiod of time over which this matter unfolded, and the length of time the children were displaced from her care, is relevant to the contextof how the children’s needs, conditions and circumstances have been impacted. This is not a case where a parent abdicated care ofchildren for a protracted period of time, to deal with legitimate issues of addictions, homelessness, or mental health. This is a case wherea mother mistakenly believed she would not be able to house her children, due to fiscal stress. The mother obtained prompt legal advice,and attempted to rectify the error quickly.

[ 25 ] Third, there is no objective evidence that the mother is emotionally or otherwise not able to care for the children, or that the children are at risk in her care. The mother does not have Ministry of Social Services involvement, nor a history of mental health or other struggles that impede her ability to parent. I do not accept the evidence of Mr. T., and agree with counsel for the mother that much of his evidence is opinion and conjecture regarding the mother’s struggles.

His evidence lacks detail to support his assertions (for example, he describes her home in “disarray”, with no particulars given of what that disarray entails; he describes her emotional state as “deteriorating” with no support for that premise beyond his observations of her crying on several occasions, the content of several text messages his wife received, and his own opinion that she is not managing the children’s behaviours, her household or finances well). [ 26 ] The text messages appended to Mr.

T. affidavit show the mother confiding some upset to the Ts., but are not indicative of anything more than a “bad day”, or days, as suggested by the mother’s counsel. All parents in various life situations struggle and will have hard days - but it does not follow that they are ill equipped more broadly to act in their children’s best interests. I accept the mother’s evidence that the wording of the letter written on September 13, 2022, was influenced by the “assistance” of Mr. T. in the preparation of the letter. I note as well that Mr.

T. appears to have not had the parties and children’s best interests at heart, given his own financial interest in the matter (and his unauthorized interception and use of the father’s child support payments, while he was the parties’ chosen and trusted intermediary). [ 27 ] Fourth, much of the father’s argument in chambers centred on his view that the mother has been and remains financially unstable, and unable to provide for the children. He argues she has been largely unemployed, and is engaged in a new and uncertain house cleaning endeavour. Mr.

T.’s evidence criticizes the mother for not accepting help from he and his wife to secure business clientele. I take the father’s point that an inability to provide a roof over a child’s head may impact a parent’s ability to meet a child’s basic needs in certain circumstances. The evidence here however is that the mother was mistaken as to her eviction, and that she was never in fact evicted or homeless.

She took proper steps to ensure the children had a place to be in the event that occurred, and to that end, acted appropriately in their best interests (albeit it, acting upon a mistaken assumption without legal advice). [ 28 ] While the father is critical of the mother’s economic situation, he is also in arrears of child support. Although the extent of those arrears is controverted, I accept that the mother depends on those monies to contribute to her rent.

I note that the mother was in a similar financial situation at the time of the Consent Order (being represented by Legal Aid, having recently been a student, and newly looking for work). The court must be cautious to not use poverty, socio-economic status, and/or a parent’s financial hardship in and of itself as a basis to conclude there is a corresponding inability to meet a child’s needs; such financial difficulty must directly impact a parent’s willingness and ability to meet a child’s needs, as per s. 10(3) (

h) of The Children’s Law Act, 2020, SS 2020, c 2 (see L.P. v Z.M ., 2021 SKCA 134 at para 45 ). Likewise, material benefits offered by one parent do not necessarily trump the emotional, psychological and intellectual support offered by a less affluent parent ( Van de Perre v Edwards, 2001 SCC 60 , [2001] 2 SCR 1014; M.K. v U.K., 1990 ABCA 254 at para 43 , 28 RFL (3d) 189).

Homelessness, versus a mistaken belief that homelessness was imminent is a significant distinction on the evidence regarding the mother’s ability and willingness to care for the children in this case. [ 29 ] It follows that with respect to the test enunciated in A.M. , there has been no true change in the mother’s condition and ability to meet the children’s needs, nor a change in the children’s circumstance and needs since the Consent Order. There is no “fundamental” change here in either respect.

There was a mistake made by a mother, without the benefit of legal advice, that resulted in a brief, consensual change to the children’s care arrangements for a period of a week. The evidence is that the mother is the long-term primary caregiver to the children. She has a home for the children and has undertaken registration of the children in their most recent school in [redacted].

Her ability to meet the children’s needs remains unchanged. [ 30 ] Even in the event there was a material change on the facts of this case, I would not find it in the children’s best interests to change their long-held status quo on an interim basis. There is no risk or other compelling circumstance in accordance with the principles of Gebert and Guenther . A status quo is not derived from a fleeting series of events, evolved over the course of a week – it is based on a long-standing parenting arrangement ( Gebert at para 14 ).

The uncontroverted evidence is that the children have been in the primary care of the mother historically. The father has been removed from the children’s daily lives for much of the past year, only recently becoming involved in their lives again in August 2022, following the court application of the mother. There are allegations of violence perpetrated by the father on the mother. There has never been any indication the children are at risk in the mother’s care, and I do not accept the evidence of Mr.

T. that risk has arisen since the Consent Order. [ 31 ] In making the above comments, I take into account as well the criteria for determining best interests pursuant to s. 10(3) of The Children’s Law Act, 2020 , including but not limited to: a. The history of the children’s care; b. The age, development and needs of the children; c. The willingness and ability of the parties respectively to meet the children’s needs; d. The allegation that the father assaulted the mother, and the father’s entry into a s. 810 peace bond; e.

The willingness of the parties to facilitate contact, and their ability to communicate, given the father’s peace bond recognizance; f. The time the children have spent both in [redacted] and in [redacted], with their most recent residence post-separation being in [redacted] since July 2021; g. The children’s attendance in school in [redacted] in the 2021/2022 school year; and h. The father’s proposal for the mother’s access should the children live in his care, her limits on transportation (not having a car), and the shift that contact would pose for the children given the historic care arrangements.

Conclusion [ 32 ] The father’s application is dismissed. The matter shall proceed to pre-trial in the ordinary course. There will be no order as to costs. The children will return to the primary care of the mother, and the father will have parenting time as outlined in the Consent Order. [ 33 ] The Consent Order is varied only with respect to para. 7, which addresses an intermediary third party to facilitate exchanges of the children, and other communication and contact surrounding the children. That third party will now be A.F., as agreed to by the parties, or other third party they may agree to. The parties will agree upon alternate exchange locations through Mr. F. J. J.M. DRENNAN