A. T. v. G. L., 2023 SKKB 281

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 281 Date: 20 23 12 22 Docket: FLD-RG-00173-2023 Judicial Centre: Regina, Family Law Division BETWEEN: A. T. and G. L. PETITIONER S - and - P. A. and TOUCHWOOD CHILD AND FAMILY SERVICES INC. RESPONDENTS CORRECTED JUDGMENT: The text of the original judgment has been changed per the corrigendum released December 27, 2023. (A copy of the corrigendum is appended to this corrected judgment.) Counsel: Gulzaib Fida for the petitioners Joanne Moser for the respondent Kimberly Stonechild for Touchwood Child and Family Services JUDGMENT BROWN J.

December 22, 202 3 [ 1 ] G.L. [G.] and A.T. [A.] have, as grandparents and step grandparents respectively, and people having been declared by the court to have a sufficient interest in the children, been caring for A.T. born [REDACTED] and P.T. born [REDACTED] since June 2017.

They were asked by P.A. [P.] to do so as she was struggling with addictions, violence was at play in the home and there were all too frequent interactions with the criminal justice system. [ 2 ] By order of February 26, 2019 Justice Turcotte ordered that the children A.T. and P.T. were placed in the indefinite custody of A. and G., persons having a sufficient interest in them. [ 3 ] Of specific interest in this matter with respect to the order of Justice Turcotte is the provision at para. 4(

a) which states: 4 … (a) [A.T.] and [G.L.] shall not return the children to parental care without the prior written approval of the Minister of Social Services or by court order [ 4 ] A positive development since the order of Justice Turcotte in 2019 is that P. has been able to achieve sobriety and maintain it for a significant period of time. She has, earlier this year, been released from prison and is living well without violence affecting her situation. She avers to being well over two years sober as of the time of the application and has filed a number of

certificates of achievement in that regard. [ 5 ] By the relevant point in time, the Ministry of Social Services [Ministry] had delegated the management of the ongoing child protection file to Touchwood Child and Family Services [TCFS]. For the purposes of this matter TCFS stands in the shoes of and exercises the authority of the Ministry by way of delegated authority. [ 6 ] Unfortunately, the communication between TCFS, P., A. and G. was neither as timely nor as clear and accurate as one would have hoped for regarding the welfare of the children.

TCFS believed that A. and G. were eager for P. to be reunited with the children. However, this is not the perspective that A. and G. held either at the time of the annual long term wardship review in August 2022 or presently.

Their stated view is that they did not anticipate there being a full transition of the children from their care to P.’s, and certainly not one undertaken as quickly as TCFS had the transition occur. [ 7 ] The result of the breakdown in communications was that TCFS took active and somewhat immediate steps to bring about the reunification according to their understanding of what everybody desired as well as due to a complaint originating in A.’s and G.’s home.

This meant that TCFS encouraged P. in a considerably increased substantial and essentially full-time parenting role regarding the children and facilitated this happening. A. and G. aver to not being supportive of it proceeding that quickly or that extensively. Even P. says in her affidavits that she was surprised at the essentially complete transition happening so suddenly and that she thought there would be a more gradual transition than was undertaken by TCFS. Thus, P. herself attempted to keep A. and G. engaged with the children, seeing this as good for both the children and A. and G.

Unfortunately, the distrust A. and G. had developed for TCFS crept into their relationship with P. This meant, they say, that they were not responsive to P.’s efforts to keep them involved with the children. [ 8 ] The result was that as early as May 2023 a short-term weekend parenting time was extended by Yorkton Tribal Council Child and Family Services to be a long-term parenting situation that P. had with the children. By summer of 2023 P.’s home was the place of primary residence with every other weekend parenting time for A. and G.

This presented as something of a mystery to A. and G. as they had been facilitating shorter visits between the children and their mother P. and say they were not fully informed of the plan TCFS had for much longer and more all-encompassing parenting time for P. [ 9 ] Ultimately, TCFS determined that in its role as delegate of the Ministry with regards to these children, they would bring about the terms of reunification between P. and the children.

It should be noted that likely precipitating this in some measure was a complaint from a different child resident with A. and G. regarding some happenings at their home. This child was no longer resident there as of the time of the argument in chambers and it appears the complaint has not been verified or given any credence to this point in time. I consider that matter to no longer be in issue regarding this application. [ 10 ] Nonetheless, the complaint no doubt prompted more precipitous action by TCFS than would normally be the case.

It is on the heels of the complaint that P., A. and G. began having issues amongst themselves. Until that point in time things were going smoothly with A. and G. primarily caring for the children and P. having weekend access two or three times per month depending on the month. [ 11 ] A. and G. state at this time they do not want the children to go to P. on a full-time basis. While they are not entirely opposed to a reunification at some future time, they are concerned that P. is not ready for a quick transition to full time care and that even if P. is, the children are not.

They advocate a much slower, more cautious and measured test of P.’s readiness for more parenting time and the children’s adjustment to that new situation. [ 12 ] A. and G. therefore retained counsel and issued a petition pursuant to The Children's Law Act, 2020 , SS 2020, c 2 [ CLA, 2020 ] seeking to be identified once more as persons of sufficient interest and ordered to be the place of primary residence for the children. Their request is that the children be returned to them.

The primary basis is due to there being no application pursuant to The Child and Family Services Act , SS 1989-90, c C-7.2 [ CFS ] leading up to the new parenting arrangement which they submit is required first in order for Justice Turcotte’s order to be varied or terminated. [ 13 ] P. responds by indicating that there are both procedural and substantive problems with A.’s and G.’s approach. First of all, she submits, they have not complied with the mandatory family dispute resolution requirements set out in s. 44 of The King’s Bench Act , SS 2023, c 28 .

In particular, they have not attended any form of family dispute resolution. P. submits that this is a prerequisite and a legal requirement such that no application may be brought without first having completed mandatory family dispute resolution and received a certificate of attendance. She submits that the Opikinawasowin [OPIK] [1] by TCFS would have been an appropriate form of dispute resolution if A. and G. had attended.

Unfortunately, they did not. [ 14 ] In response, A. and G. submit that the children must be ordered returned to them immediately because the proper authority pursuant to which the children might be in someone else's care rather than in A.’s and G.’s, has not been complied with. In their submission the only way that the children could be with someone else and not them given Justice Turcotte’s 2019 order is through an application pursuant to s. 39 of the CFS . Since no one has brought such application, the court lacks jurisdiction to do anything except declare that the children must be returned to them.

ISSUES [ 15 ] Thus the issues include:

(

a) can this application by A. and G. be entertained prior to mandatory family dispute resolution as required by The King’s Bench Act ? (

b) if the application does proceed, is the jurisdictional question raised by A. and G. correct in that TCFS was legally unable to place the children with P. in light of Justice Turcotte’s 2019 order? and (

c) in what way does the best interests of the children analysis enter into the equation here and in particular does it conflict with family reunification as a priority of the CFS ? What is in the best interests of the children here? Discussion [ 16 ] The initial order which provided that A. and G. were to be the place of primary residence of the children was made under the CFS .

Section 39 of the CFS is therefore the most direct and immediate way to a variation of the 2019 order of Justice Turcotte. However, the question raised in this application includes whether it necessarily follows that any and all other potential sources of authority for determining where the children ought to reside and who should have parenting time and in what proportion cannot coexist and be alternate pathways. [ 17 ] It is not disputed that TCFS stands in the place of the Ministry here.

In terms of authority, one question posed by A. and G. is whether, absent a s. 39 application in these circumstances, the court has jurisdiction in relation to the children and the parties. Underlying this is the fact that two statutes are at play in relation to the same circumstances. Both family reunification and the best interests of the children are legislatively stated features.

The CFS provides for statutorily defined goal by virtue of various sections including: 3 The purpose of this Act is to promote the well-being of children in need of protection by offering, wherever appropriate, services that are designed to maintain, support and preserve the family in the least disruptive manner. [ 18 ] The promotion of the well-being of children through services that are designed to maintain, support and preserve the family is the statutory language in s.3 which has generated the question regarding reunification priorities.

There are additional references to both the family and the children in the CFS which should not be overlooked. With respect to the family this includes: Family services 5. Subject to this Act and the regulations, the minister may: (

a) establish, operate and maintain family services; (

b) provide family services to or for the benefit of a parent or a child where the minister considers them essential to enable the parent to care for the child; (

c) enter into agreements with any person providing family services by which the minister is obliged to make payments for the provision of family services pursuant to this section. ... 14(1) If, on investigation, an officer concludes that a child is in need of protection, the officer shall: (

a) notify the parent in writing of the officer's conclusion; and (

b) offer family services to the parent. 14(2) If a parent acknowledges the need for family services and agrees to the provision of those services, a director may enter into an agreement with the parent for the provision of family services. ... [ 19 ] Throughout the CFS , however, a best interests of the child priority is set forth, including: 4 If a person or court is required by any provision of this Act other than subsection 49(2) to determine the best interests of a child, the person or court must take into account: (

a) the quality of the relationships that the child has with any person who may have a close connection with the child; (

b) the mental, emotional, physical and educational needs of the child and the appropriate care or treatment, or both, to meet those needs; (

c) the child’s cultural and spiritual heritage and upbringing; (

d) the home environment proposed to be provided for the child; (

e) the plans, with respect to the care of the child, of the person to whom it is proposed that the custody of the child be entrusted; (

f) if practicable, the child’s wishes, having regard to the age and level of the child’s development; (

g) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; and

(

h) the effect on the child of a delay in making a decision. ... 16(3) If, on an application pursuant to subsection (1), the court is of the opinion that contact between a child and another person would cause the child to be in need of protection, the court may make a protective intervention order containing any terms and conditions that the court considers to be in the best interests of the child, including, without limiting the generality of the foregoing, a direction to a person named in the order to refrain from any contact or association with the child. ... 17(7) The director may, before a protection hearing, grant access to a child apprehended pursuant to subsection (1) to his or her parent or any other person on any terms and conditions that, in the opinion of the director, would be in the best interests of the child. ... 26. . .

(2) The court may make an order prohibiting the publication of a report of a protection hearing or any part of the report of a protection hearing, if the court believes that the publication of the report or part: (

a) would not be in the best interests of any child directly or indirectly involved in the hearing; or (

b) would be likely to identify, have an adverse effect on or cause hardship to: (

i) the child who is the subject of the hearing; or (ii) any other child. ... 28(3) The court may admit hearsay evidence if, in the opinion of the court, the evidence is credible and trustworthy and it would not be in the best interests of a child for the child to testify. ... 29(1) At a protection hearing, the court may, if it considers it to be in the best interests of a child who is the subject of the hearing, order that the child be: (

a) served with notice of the hearing within the time and in the manner considered appropriate by the court and permitted to be present at the hearing or any part of it; or (

b) brought before the court and interviewed by the court. ... 32(1) The court may request that: (

a) a child who is the subject of a protection hearing; (

b) a parent of the child mentioned in clause (a); or (

c) any person having a sufficient interest in the child mentioned in clause (a); undergo medical, psychological, developmental or educational assessment performed by a person qualified in the relevant discipline to assist the court in determining the best interests of the child for the purposes of making an order pursuant to

section 36 or 37. ... 34(1) Subject to

section 33 and subsection (2), the court may adjourn a protection hearing from time to time.

(2) Before adjourning a protection hearing, the court shall consider the best interests of the child and, in particular: (

a) the importance of continuity in the child’s care and the possible effect of disruption of that continuity; and (

b) the effect on the child of a delay in making a decision. 35(1) If the court adjourns a protection hearing pursuant to subsection 34(1), the court may make an interim order that the child: (

a) remain with or be returned to his or her parent; (

b) remain with, or be placed in the care of, a person having a sufficient interest in the child; or (

c) remain or be placed in the care of the minister.

(2) In making an interim order pursuant to subsection (1), the court:

(

a) shall consider the best interests of the child; and (

b) may make the order subject to any terms and conditions, including access to the child by the parent or a person designated pursuant to

section 23, that the court considers appropriate. ... 37(4) In making an order pursuant to subsection (1), (2) or (3), the court: (

a) shall consider the best interests of the child; (

b) may consider the recommendations of the officer mentioned in subsection 36(2); and (

c) may consider the recommendations of a chief, a chief’s designate or an agency that appears in court pursuant to subsection (11). ... 38(9) Subject to subsection 68(1), the total of the periods of all orders made pursuant to clause 37(1)(

c) shall not exceed 24 months unless the court determines, after considering the best interests of the child, that an extension is required.

(10) The total of the periods of all orders made pursuant to subsection 37(6) shall not exceed 18 months unless the court determines, after considering the best interests of the child, that an extension is required. ... 39(1) Subject to subsection (2), the court may, on the application of any party to the original protection hearing, vary or terminate an order made pursuant to

section 37 if: (

a) there has been a change in circumstances; and (

b) it is in the best interests of the child to vary or terminate the order. . . . 50(3) If a child who has been voluntarily committed to the minister pursuant to

section 46 has not been placed for adoption pursuant to The Adoption Act , 1998, the court may, on application, extend the time for revocation mentioned in clause (1) (

b) if, in the opinion of the court, it is in the best interests of the child within the meaning of that Act. ... Placement considerations 53 In any case where an officer is arranging residential services for a child or an order is to be made by the court pursuant to subsection 37(1), the officer or court shall, having regard to the best interests of the child: (

a) consider the feasibility of placing the child with a member of the child’s extended family; and (

b) if practicable, attempt to maintain the child in an environment that is consistent with the child’s cultural background. [ 20 ] The CLA, 2020 has no similar provision to the noted sections of the CFS with respect to a “family” priority and reunification as the goal. As such, the CLA, 2020 clearly prioritizes the best interests of the children in the ways defined and vantage points proffered. In a CLA, 2020 instance family reunification would be but one facet to consider within the overall milieu of best interests of the children.

What has been put into issue in the present application is which statutorily established priority is to be the governing one in a situation such as this; family reunification or the best interests of the children. [ 21 ] It is correct to observe that the CFS casts the interests of children slightly differently than the CLA, 2020 does. There is an emphasis in the CFS which recognizes the best interests of the children and also adheres to an underlying philosophy that preservation of or reunification regarding families is a laudable goal.

In this context it would mean that preservation and/or reunification of the family must be appropriate, meaning both possible and good for the children. If those factors are present there is a presumption that it is in the interests of children. [ 22 ] The CLA, 2020 on the other hand, has no such legislative priority built into it, even with the list of enumerated considerations to apply when determining the best interests of the children. Family preservation or reunification is not one of the enumerated factors.

However, it is also clear that the enumerated considerations in the CLA, 2020 are not closed and that other factors may be important to take into account as well (see T.B.S. v S.J.B , 2020 SKCA 93 , 45 RFL (8th) 148 [ T.B.S. ]). It is worth pointing out that as much contact as is in the best interests of the child with each parent is still such a consideration regarding the best interests of a child and the CLA, 2020 . [ 23 ] A somewhat similar situation to this was faced by this Court in A.(O.), Re, 2008 SKQB 3 , 306 Sask R 242, where the order at issue had similar but not identical wording: [8] … 1.

The persons of sufficient interest shall not return the children to the care or custody of [D.A.] without prior approval of the Department or an order of this Honourable Court.

[24] In A.O. (Re;), 2008 SKQB 3 [Re; A.O.], applications were made to the court by the persons of sufficient interestwho had care of the children for some period of years. However, s. 39 of the CFS was not relied upon by the persons of sufficient interestfor their applications and one of the questions posed was whether that prevented the persons of sufficient interest from arguing the matterand/or receiving an order. [25] Justice Sandomirsky analyzed the situation and concluded as follows: [26] I find that the persons of sufficient interest employment of a notice of motion is perfectly acceptable.

It is of no prejudice to anyof the parties. This is particularly so, inasmuch as the substance of the application, whether pursuant to the court ordered review or byway of a variation proceeding addresses the issues of protecting these children and the relationship which they should have with theirmother, if at all. A separate action commenced by statement of claim is not required. Nor is it necessary to institute a variationproceeding under s. 39 by the use of form 632.

The use of the proper form is however considered appropriate. [26] Similarly, Justice Danyluik in Laliberte v Jones, 2016 SKQB 192, 89 RFL (7th) 468 made the followingobservation which has application here: [17] First, I note this is a family law matter. It is not a criminal trial, nor a commercial dispute. This is an action involving a child’sinterests. The court is not obligated to sit idly by and act only as a referee.

In family law matters this court frequently exercises itsinherent or parens patriae jurisdiction to attempt to do real justice between the parties and for the children, and to ensure that theinterests of children (who cannot speak for themselves in these proceedings) are protected. Family law requires a somewhat differentperspective than what is required for other legal disputes, not only for adjudicators but for counsel and the litigants as well. [18] This is reflected in legislation, in the rules of court, in judgments, and in the very practice and procedure by which such mattersare conducted. [19]

Section 7 of The Queen’s Bench Act, 1998, SS 1998, c Q-1.01 creates the Family Law Division of this court, which is dealt within

Part XI of that Act. A review of these provisions discloses the different approach to be taken in family law matters. Judges are freer todo things on their own motion. The clear legislative intent is that family law matters are not to be dealt with in a fashion restricted bynarrowly interpreted rules and procedures. Practicality, empathy and common sense are to hold places of prominence in suchproceedings.

For example, s. 98 states: 98 A judge, having due regard for the proper administration of justice, shall conduct all family law proceedings as informally as thecircumstances of the case permit, and no decision, order or other action of a judge shall be quashed or set aside because of informality. [20] The Queen’s Bench Rules in Saskatchewan are of like effect. Rule 15-2 reiterates s. 98. [27] Within the context of child protection authorities and the oversight provided by the court, the Supreme Court inB.J.T. v.

J.D., 2022 SCC 24, 469 DLR (4th) 183 [B.J.T.] noted: [63] No general principle prevents a judge on a best interests of the child analysis from considering the actions of a child protectionagency. Such inquiries are not only permissible, they may in some circumstances be required on account of the court’s essentialoversight role in child welfare matters and its parens patriae jurisdiction. [64] The Director has the statutory responsibility to safeguard children and has broad investigative and apprehension powers to act intheir best interests.

Child protection workers perform an essential public service, under often arduous and challenging circumstances.The decision to place children in state care brings profound, life-altering consequences for children and families. “Few state actions canhave a more profound effect on the lives of both parent and child” (New Brunswick (Minister of Health and Community Services) v. G.(J.), (SCC), [1999] 3 S.C.R. 46, at para. 76). [65]

Section 7 of the Canadian Charter of Rights and Freedoms “requires that this dramatic form of state intervention only take placein accordance with the principles of fundamental justice” (Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, [2000] 2 S.C.R519, at para. 15, per Arbour J., dissenting in the result).

To ensure that child protection agencies exercise their jurisdiction only whenwarranted and with due fairness to children and parents, child protection statutes give courts the authority to supervise the exercise of anagency’s power (e.g., the Child Protection Act, [RSPEI 1988, c C-5.1] ss. 27 and 29). This important role, with its attendant checks andbalances, is exercised throughout the proceedings. Hence, even in the assessment of a child’s best interests, an agency’s decision-makingprocess remains the proper subject of inquiry as part of the court’s oversight role.

Similarly, the jurisdiction under parens patriae to actin the best interests of a child gives ambit to a superior court to take due notice of an agency’s conduct insofar as it impacts a child’s bestinterests. ... [67] While judges must not lose sight of the child’s best interests, they should also not fear appellate intervention for exercising theirsupervisory functions by referring to or reviewing a child protection agency’s conduct.

Provided the focus remains on the applicablelegal principles, it is in everyone’s best interest that the checks and balances established in child welfare legislation are front of mind forall decision makers, including judges undertaking a best interests analysis. [Emphasis in original] [28] This rationale is applicable to the CFS in Saskatchewan as well. The substantial and continued references to thebest interest of the children in that statute elevates that objective to a place of priority, even within that Act alone.

When the CLA, 2020has been infused into the situation it makes the answer very clear; the best interests of the children is the controlling perspective to take.Family reunification must be situated within that matrix and in no way takes priority to it. If family reunification, or a particular form orproposed process of family reunification, is not in the best interests of a child, it falls away as an important indicator in a parentingdetermination. Even s.39 CFS itself confirms that an application to vary is to assess the best interests of the children.

[29] Ultimately, even in the context of this matter where two statutory priorities have apparently come into conflict,the best interests of the children will be the primary and controlling feature. In this intersection of slightly differing priorities, thestronger of the two is that of the best interests of the children. Therefore, even if one assumes that the TCFS acted without authority bymoving the children from A. and G. to P., if sending the children back to A. and G. is not in the children’s best interests, the court willnot order that.

Simply because TCFS acted without engaging the most direct line of statutory authority, here being a s. 39 application,does not remove the need to evaluate the best interests of the children in the order to be made. It is part of that section, were it to havebeen utilized. Any implications of an agency acting without authority would need to be considered a separate issue and dealt with apart from ensuring the best interests of the children.

The best interests of the children will always be theprimary focus. [30] This is reflected in the Supreme Court’s conclusion in B.J.T., and the statement found at para. 97: [97] In the end, the child’s best interests is the paramount consideration in child protection proceedings (G. (J.) [New Brunswick(Minister of Health and Community Services) v G. (J.), (SCC), [1999] 3 SCR 46], at para. 72). State apprehension iswarranted when maintaining a child’s existing family relationship is no longer in the child’s best interests (Catholic Children’s AidSociety of Metropolitan Toronto v.

M. (C.), (SCC), [1994] 2 S.C.R. 165, at p. 203). This aligns with the balance thatchild protection legislation attempts to strike between a child’s best interests and preserving their existing family unit (M. (C.), at p. 196;see also M. J. Schlosser, “Third Party Child-Centred Disputes: Parental Rights v. Best Interests of the Child” (1984), 22 Alb. L. Rev. 394,at p. 409). [31] Thus, while the objection to the process utilized here is not entirely misplaced, it lands the parties at the samespot nonetheless; what is in the best interests of these children.

An approach which prioritizes the best interests of the children isaffirmed through any of the lenses chosen.

Section 21 of CFS points to this as well, given that unless the court otherwise orders, theproceedings pursuant to CFS are stayed pending the decision of the court with respect to the parenting order pursuant to the CLA, 2020. [32] To be clear, the court does not lack jurisdiction to deal with these children. They have resided in the provincetheir entire lives. No jurisdictional issue respecting which of Canada’s ten province’s judicial systems ought to prevail has been (or couldbe) raised here.

Nor does one appropriate process, s. 39 of the CFS, having not been followed oust the jurisdiction of the court pursuantto the CLA, 2020 or the inherent jurisdiction of the court to ensure the best interests of the children. [33] This then raises the issue put forward by P.; are A. and G. barred from the order they seek as they have notcomplied with the mandatory family dispute requirements of the Kings Bench Act.

Section 7-4 of The King’s Bench Act [34]

Section 7-4(4) of The King's Bench Act provides for the situation where there is a failure to participate in familydispute resolution or to obtain an exemption from family dispute resolution prior to bringing an application to court: 7-4(4) Subject to subsection (6), a party who fails to participate in family dispute resolution is prohibited from: (

a) taking any further step in the proceeding; and (

b) filing with the court any further application for relief. [35]

Section 7-4(6) of The King's Bench Act allows a party to seek an exemption from participating in mandatoryfamily dispute resolution for the following reasons: 7-4(6) On an application made with or without notice, the court, or any other person or class of persons prescribed in the regulations,may exempt a party from the requirement to participate in family dispute resolution pursuant to this

section if: (

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

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

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

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

e) in the opinion of the person hearing the application, there are extraordinary circumstances. [36] It is correct to observe that A.’s and G.’s application is subject to the mandatory family dispute resolutionprovisions of The King’s Bench Act. No application for an exemption has been sought by them as applicants. P. argues that noapplication ought to have been brought by them without first attempting family dispute resolution or seeking an exemption.

I add to thisthe possibility of the provision of a stop gap order with an intention to proceed to mediation as soon as possible thereafter. [37] There are no restraining orders, there exists no family violence and no allegations of attempts by A. and G. toengage P. and/or TCFS in mediation which has been refused have been made. In fact, on the latter point TCFS took the initiative andquickly arranged for an OPIK which A. and G. did not participate in. This leaves extraordinary circumstances as the only otherpossibility besides a stopgap order. [38] The application is admittedly of a somewhat compelling nature.

However, I cannot find that serious harm willbefall the children if an exemption in order to provide an immediate order is not given. There clearly is some urgency to the situation, butit is not at such a level that a full, complete and unlimited exemption on that basis is required. Part of the milieu in that regard is that A.and G. have limited their own contact with P. who has tried to engage them in their further care of the children. This was ostensibly due

to their mistrust of TCFS which was unfortunately transferred to P. But P. attempted to include them more significantly and they have not reciprocated. Significant concern regarding the care P. is providing them would normally result in taking any and all opportunities to have the children with them. It would also normally include communicating fully with P. about the children. [ 39 ] As observed by Justice Haaf in Anaquod v McLean , 2022 SKQB 134 , there is a trend in family law away from an adversarial culture of litigation to a culture of negotiation.

The King 's Bench Act as per s. 7 - 4 requires parties, to the extent that it is appropriate to do so, to try to resolve family law disputes through an alternative dispute resolution process and outside the court structure. One of the meritorious goals of these legislative changes is to reduce trauma to children by reducing the conflict between the parties who are their parents and/or caregivers. [ 40 ] As noted, in this instance there was an OPIK arranged by the TCFS for just such a purpose. A. and G. opted not to attend, citing a new job for A. as the reason. I find this most unfortunate.

The OPIK would have been an ideal way for all parties to meet, set out their concerns, identify their hopes and discuss options with the benefit of community members who care greatly for all participants. The court, being interested in hearing from the TCFS regarding any recommendations that came out of the OPIK, received a copy of their recommendations, albeit in an unsworn form. This was ordered to be provided to all parties. [ 41 ] A. and G. have made certain choices through which they limited their contact with P. and as a result with the children.

They made choices which meant they did not engage with the establishment of or at the OPIK which proceeded. As noted by Justice Wilkinson in V.J.C.(Re) , 2009 SKQB 395 : [114] Norine requested an Opik , and the Ministry agreed to arrange one. As described by Mary Wall, the Ministry official responsible for arranging the process, the Opik is a culturally sensitive and respectful forum.

It engages the experience of a council of three Elders who meet with all the parties - the children, the Ministry, the parents and relatives, and the foster parents - for the purpose of making recommendations regarding the best interests of the children. For those who participate honestly and sincerely, it can be a redemptive experience. [ 42 ] I believe the OPIK would have been a very helpful occasion for A. and G. to have put forward the reasons they believe the children’s best interests are served through a different transition than has occurred and is still unfolding.

I appreciate that some trust has been lost by them given all the circumstances, but that does not explain the lack of effort to put forward their perspective in whatever forum presents itself.

The best interests of these children require no less. [ 43 ] With respect to whether the failure to participate in family dispute resolution removes the jurisdiction of the court, in J.B. v J.M ., 2023 SKCA 24 , the Court of Appeal noted the following: [52] Before moving on to conduct that analysis, I pause to note that this conclusion makes it unnecessary to address J.B.'s argument that the Chambers judge lacked jurisdiction to make the parenting order contained in the Decision [ J.B. v J.M . (24 November 2022) Battleford, FLD-BF-00060-2022 (Sask KB)] . [53] J.B.'s argument on that point is rooted in s. 44.01(3) of T he Queen's Bench Act, 1998 , SS 1998, c Q-1.01 , which requires parties to an application in family law proceedings such as this one to participate in family dispute resolution.

Section 44.01(4) prohibits parties who fail to participate in that process from taking any further steps in the proceedings and from filing further applications for relief unless they are specifically exempted from that requirement under s. 44.01(6) .

While I recognize that, in some cases, King's Bench judges have declined to render an interim decision in family law proceedings where the parties have not participated in family dispute resolution (see, for example, Cabiles v Erbach , 2021 SKQB 129 at para 39 ; and Lisitza v Herle , 2022 SKQB 71 at para 18 ), there is nothing in the text of s. 44.01 that suggests a failure by a party to participate in family dispute resolution strips the Court of King's Bench of its parens patriae jurisdiction to grant relief.

There are also King's Bench decisions that have held that judges may properly make orders in a family law proceeding, even where the parties have not complied with s. 44.01(3) , where the circumstances call for temporary measures to address a child's best interests (see, for example, Anaquod v McLean , 2022 SKQB 134 at para 29 ).

Moreover, in the circumstances of this case, there is a live question as to whether C.M. was truly a "party" to the proceeding, such that he and J.B. would fall within the ambit of s. 44.01(3), prior to the Chambers judge determining that C.M. was a PSI [person of sufficient interest]. [ 44 ] In Cabiles v Erbach , 2021 SKQB 129 [ Cabiles ] the application brought there did not move forward in those circumstances as compliance with the mandatory family dispute resolution requirements was lacking.

While compliance has not occurred here, this situation is different than Cabiles and also fits the context recognized in Lisitza v Herle , 2022 SKQB 71 for a partial exemption or stop gap order. The difference between this matter and Cabiles is that a substantial change to the fully understood status quo has been quickly brought about in the present matter. The children have been with A. and G. for 7 years. Within weeks of that being their full time normal they were moved to being with P. full time. In Cabiles the status quo parenting arrangement was sought to be varied by the applicant going forward.

This difference is of significance regarding the question of the appropriateness of a partial exemption or stopgap order. [ 45 ] Thus, the matter is one for application of appropriate principles. A full exemption has not been sought here. None will be ordered. Even if one was sought, on the information before the court it is not appropriate. However, given the court’s inherent jurisdiction and the fact that the long-term status quo has been suddenly changed without first applying to the court, this is a situation where a stop gap order is appropriate prior to mediation.

It is appropriate in these circumstances as waiting for completion of mediation before making any order is not in the best interests of the children given the fact which are not in dispute. [ 46 ] The applicants must therefore proceed through the mediation process. I encourage them to be a part of an OPIK if that is still a possibility. Whether it is still a possibility or not is within the purview of TCFS.

If it does proceed, I am prepared to consider the recognition of the OPIK, should TCFS make submissions in light of the provisions of the relevant Act and regulations, that the OPIK, should one proceed with the participation of all parties, in this instance meets the requisite requirements. It is clearly a beneficial form of family dispute resolution, and whether it is in compliance with The King’s Bench Act and The King’s Bench Regulations , Sask Reg 100/2023 requirements is a matter yet to be submitted. As noted, I am open to hearing submissions in that respect.

An OPIK engages the parties and members of the community in an atmosphere of collaboration and has much to offer. In some cases, even the children are involved in what is hoped to be a low stress environment. [ 47 ] I am willing to hear submissions regarding whether it can be, given the benefits it provides, the basis for a certificate of completion of family dispute resolution efforts. Best interests [ 48 ] The issue in this matter is therefore governed by the CLA, 2020 . It is the best interests that trump reunification if there is a conflict.

The relevant portions of the CLA, 2020 are: 8(1) Notwithstanding sections 3 to 5, on the application of a parent or other person having, in the court's opinion, a sufficient interest, the court may, by order: (

a) appoint one or more persons as a child's legal decision-maker, and, if applicable, determine the sharing and division of decision- making responsibility; (

b) grant parenting time with respect to a child to one or more persons; (

c) determine any aspect that is incidental to exercising decision-making responsibility or parenting time; (

d) authorize or prohibit the relocation of a child in accordance with sections 13 to 17; and (

e) make any additional order that the court considers necessary and proper in the circumstances.

(2) If the court appoints a parent as legal decision-maker pursuant to subsection (1), the court may, if the court is of the opinion that it is in the best interests of the child to do so, by order, authorize the parent to appoint another person: (

a) to be the child's legal decision-maker on the parent's death; (

b) to be the guardian of the property of the child on the parent's death; or (

c) to have both of the duties mentioned in clauses (

a) and (b).

(3) On application and before making an order pursuant to subsection (1), the court may make or vary an interim order on any terms and conditions it considers appropriate.

(4) On application, the court may vary or discharge any order made pursuant to this

section if there has been a material change in circumstances since the date of the order.

(5) If an order is made for supervised parenting time pursuant to this section, the court may specify in the order the amount of any cost for the supervision that each party is required to pay.

(6) Unless the court orders otherwise, a parent who is granted parenting time with respect to a child has the same right as the parent who is the child's legal decision-maker to make inquiries and be given information respecting the health, education and welfare of the child.

(7) Unless the court orders otherwise, a parent who is granted parenting time with respect to a child is not entitled to be consulted about or to participate in the making of decisions by the child's legal decision-maker . … 10(1) In making, varying or rescinding a parenting order, the court shall take into consideration only the best interests of the child.

(2) A parenting order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(3) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, including: (

a) the child's needs, given the child's age and stage of development, such as the child's need for stability; (

b) the nature and strength of the child's relationship with each parent, each of the child's siblings and grandparents and any other person who plays an important role in the child's life; (

c) each parent's willingness to support the development and maintenance of the child's relationship with the other parent; (

d) the history of care of the child; (

e) the child's views and preferences, by giving due weight to the child's age and maturity, unless they cannot be ascertained; (

f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (

g) any plans for the child's care; (

h) the ability and willingness of each person with respect to whom the parenting order would apply to care for and meet the needs of the child;

(

i) the ability and willingness of each person with respect to whom the parenting order would apply to communicate and cooperate, inparticular with one another, on matters affecting the child; (

j) any family violence and its impact on, among other things: (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child; and (ii) the appropriateness of making a parenting order that would require persons with respect to whom the parenting order would apply tocooperate on issues affecting the child; and (

k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

(4) In considering the impact of any family violence pursuant to clause (3)(j), the court shall take the following into account: (

a) the nature, seriousness and frequency of the family violence and when it occurred; (

b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (

c) whether the family violence is directed towards the child or whether the child is directly or indirectly exposed to the family violence; (

d) the physical, psychological and emotional harm or risk of harm to the child; (

e) any compromise to the safety of the child or other family member; (

f) whether the family violence causes the child or other family member to fear for one's safety or for the safety of another person; (

g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and to improve theperson's ability to care for and meet the needs of the child; (

h) any other factor that the court considers relevant.

(5) In determining the best interests of a child, the court shall not consider the past conduct of any person unless the conduct: (

a) is relevant to the ability of that person to exercise decision-making responsibility or parenting time; or (

b) constitutes family violence. [49] These provisions do not fully mirror the provisions of the CFS set out earlier. Those are, however, very similarand point to a very similar form of evaluation. [50] The issue of what is in a child’s best interest is mandated by the CLA, 2020 to be the controlling feature to anydecision.

As recognized in various authorities, including Young v Young, (SCC), [1993] 4 SCR 3 at 69-70; MacGyver vRichards (1995), (ON CA), 123 DLR (4th) 562 (Ont CA); Gordon v Goertz, (SCC), [1996] 2 SCR27 at para 20; Hendricks v Swan, 2007 SKQB 36 at para 73, [2007] 5 WWR 740 and S.A.L. v K.H., 2011 SKQB 397 at para 100, 384Sask R 263 [S.A.L.], it must be viewed from the child’s perspective, not from the perspective of any parent or other interested person. [51] It is also important to keep in mind that the factors listed in s. 8 and 10 of The Children’s Law Act, 1997, SS1997, c C-8.2 (since rep) are not the only factors a court may consider in determining the best interests of a child.

Originally recognizedat para. 101 of S.A.L.: 101 ... As pointed out by the Supreme Court of Canada in both Young v. Young, supra, and Gordon v. Goertz, supra, a determination ofwhat is in the best interests of a child “encompasses a myriad of considerations” and “a wide variety of factors”. (see: Young v. Young,supra, comments of L’Heureux-Dubé J. at para. 71 and comments of McLachlin J. (as she then was) at para. 206.

See also: Gordon v.Goertz, supra, at para. 20). [52] Recently Justice Goebel put the matter this way in Sali v Johnson, 2023 SKKB 181: [64] These enumerated factors are not exhaustive nor should they be treated as a prescribed checklist. In T.B.S. v S.J.B, 2020 SKCA 93,45 RFL (8th) 148, the Court of Appeal provided the following direction with respect to the application of legislated best interest factors: [22]

Section 8(

a) of the CLA contains a non-exhaustive list of factors that guide a trial judge in determining the best interests of a childwhen parenting arrangements are in dispute: B.B. v E.B., 2020 SKQB 56 at para 18. T.B.S. is correct that the

section is not simply a listthat is to be graded on a pass-fail basis. On the other hand, it is also not the formulation of a math problem or a score-keeping system. Itis not a recipe to be assessed only by examining its ingredients and not the final product: A.O. [A.O. v T.E., 2016 SKCA 148, 88 RFL(7th) 34] at para 136.

The assessment of all of the factors that influence a child's best interests is a difficult task that is undertaken by atrial judge through considering every factor related to a child's best interests, assigning the weight that is appropriate in thecircumstances and determining the appropriate parenting arrangements on the basis of the cumulative effect of all of the factors. It is ahighly discretionary process and decision. If, as asserted by T.B.S., the trial judge simply treated each factor as an on-off switch,transforming the best interests test into a fitness test, that would constitute an error of law.

However, I do not agree that he did so. 65 Ultimately, these factors exist to assist the Court in engaging in a contextually sensitive inquiry into the needs, means, conditions andother circumstances of the child whose best interests the Court is charged with determining: Gordon v Goertz, (SCC),[1996] 2 SCR 27. Children not only have the right to be free of significant harm, they have the right to the best possible arrangementavailable in the circumstances: Young v Young, (SCC), [1993] 4 SCR 3 at 100.

[53] It is also important to recognize that the facts of each situation are critical in such matters as each situation isunique. Here that includes what appears to be a priority being given to a biological parent over a biological grandparent and her partnerwho have clearly become parents in loco parentis.

This requires some further analysis. [54] In A.O. the following was set out respecting the biological connection between a child and that child’s parent: 193 While parentage as the singularly controlling factor may have been the state of the law in bygone eras, that simple proposition nolonger represents the law in Canada. 194 Justice Smith sets out the evolution of the law in Canada at paras 66-78 of Hendricks [2007 SKQB 36, 292 Sask R 206].

Brieflystated, the law has moved from the model set out in Hepton v Maat, (SCC), [1957] SCR 606, which recognizedparentage as the primary factor in custody matters, (see p. 615), through King v Low, (SCC), [1985] 1 SCR 87, whereMcIntyre J. set out the modern test at p. 101; ... I would therefore hold that in the case at bar the dominant consideration to which all other considerations must remain subordinatemust be the welfare of the child. This is not to say that the question of custody will be determined by weighing the economiccircumstances of the contending parties.

The matter will not be determined solely on the basis of the physical comfort and materialadvantages that may be available in the home of one contender or the other. The welfare of the child must be decided on a considerationof these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child.

It must be theaim of the Court, when resolving disputes between rival claimants for the custody of a child, to choose the course which will bestprovide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as amature adult.

Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion.Where it is clear that the welfare of the child requires it, however, they must be set aside. 195 This has been affirmed through subsequent decisions such as J.N.Z. v J.D., [1994] BCJ No. 969 (QL) (BCSC); MacGyver, ReBritish Columbia Birth Registration No. 99-00733 , 2000 BCCA 109, 182 DLR (4th) 280; A.L. v D.K., 2000 BCCA 455, 9 RFL (5th)341 [A.L], and S.A.L. 196 As a result, this factor alone will not determine the matter in favour of Timothy being Chantele’s sole custodial parent.

It is a veryimportant factor, entitled to “serious consideration in reaching any conclusion”, but is to be considered along with the other relevantfactors leading to the conclusion of what is in Chantele’s best interests. 197 The relationship between a child and her biological parent has been recognized as being a special one, given that biological parentsare the individuals from whom a child is created and they represent the child’s origin (see S.A.L. at paras 104-5). [Emphasis in original] [55] As A.O. was appealed, the Court of Appeal has provided additional guidance in relation to situations involving aparent and a non-parent who both have ties to a child.

At paras. 75, 76 and 89 of A.O. v T. E., 2016 SKCA 148, 88 RFL (7th) 34, theCourt of Appeal said this: 77 It is indisputable that the focus in the law is not upon parental rights to custody. Rather, it is upon the child and the child’sbest interests. The “best interests” analysis is approached from the perspective of significance to the child, not from the perspective ofparental rights.

The principle was enshrined in King v Low, (SCC), [1985] 1 SCR 87 [King], which held that parentalclaims were entitled to serious consideration but must be set aside where the welfare of the child demands it. 78 The King decision involved competing claims to custody between a biological mother and adoptive parents. The SupremeCourt upheld the trial judge’s finding that the child had a primary attachment to the adoptive parents and that it could be too disruptive tothe child’s future development to return him to his biological mother. In King, there was considerable evidence at trial about bonding andattachment.

As a result of the finding that it would be traumatic for the child to be moved, the child’s best interests demanded that theties of blood and kinship be set aside. ... [89] … there is a line of authority holding that all other factors being equal, the biological connection can tip the balance and this doesno offence to the principle laid down in King.

In M.(C.G.) v W.(C.) (1989), (BC CA), 40 BCLR (2d) 145 (CA), and inBritish Columbia Birth Registration No. ### (Re), 2000 BCCA 109, 182 DLR (4th) 280, the British Columbia Court of Appeal acceptedthe proposition that where the scales are otherwise even, a biological factor can be the decisive factor. As there expressed, the benefitsthat flow to a child from blood ties are intangible and not readily put into words. [56] Our Court of Appeal has provided further guidance in relation to the question of a biological parent's status inmatters such as this.

In T.B.S., Justice Tholl put it this way: [56] Based on the above survey of jurisprudence from Saskatchewan and across Canada, examined within the context of a child-centred assessment of a child’s best interests, I conclude there is no presumption in favour of a biological parent versus a person ofsufficient interest when determining the appropriate parenting arrangements for a child.

It is a factor that is subsumed within the bestinterests framework and must be considered in conjunction with all of the other factors. [57] Having determined biological parental ties are to be treated as a factor in the assessment of a child’s best interests, I would beremiss to not continue and discuss whether this factor should be treated with special significance or whether it is simply one elementamongst many that attracts no special weight. Trial judges in Saskatchewan who have considered this as one factor have described theemphasis to be given to it with varying language.

In S.A.L., Ryan-Froslie J. (as she then was) stated, “It is obvious that parental ties arean important factor in determining custody” (at para 107). In A.O. v. T.E., 2016 SKQB 92 (aff’d A.O.), Brown J. described the connectionas a “very important factor, entitled to ‘serious consideration in reaching any conclusion’” (at para 196). Justice Wilson, in Wolfe [Wolfe

v Diedrichs, 2017 SKQB 219], described the relationship between a biological parent and a child as “a special one” (at para 74). [58] In my view, biological parental ties are a unique and important factor in the evaluation of a child’s best interests. The existence ofa biological relationship between a child and a parent may be highly significant. It will not always be necessary for all other things to beequal – a notion that in and of itself does not fit comfortably with the best interests analysis – for the biological relationship to “tip thebalance”.

However, as with the assessment of any individual factor, the weight to be assigned is fact-dependent and highly contextual. Itsimportance to a specific child’s best interests will depend on the circumstances of the case. It may carry great weight in some situationsand substantially less weight in others, but the importance of this factor must always be analyzed through the lens of the best interests ofthe specific child whose parenting arrangements are being determined. [57] The Supreme Court of Canada has recently re-examined the nature of the biological connection a child has to hisfather.

In B.J.T., albeit in the context of apprehension proceedings involving the state, the court recognized that one needs to be cognizantthat biology is merely one factor and it should not be given undue weight: [87]... a parent's mere biological tie is simply one factor among many that may be relevant in some cases to a child's best interests, whichis and must be the paramount consideration.

Judges are not obliged to treat biology as a tie-breaker when two prospective custodialparents are otherwise equal. ... [102] ... too great an emphasis on biological ties may lead some decision makers to give effect to the parent's claims over the child's bestinterests. Parental preferences should not usurp the focus on the child's interests. As Wilson J. wrote in Racine v.

Woods, (SCC), [1983] 2 S.C.R. 173, at p. 185: "... a child is not a chattel in which its parents have a proprietary interest; it is a human being towhom they owe serious obligations." [58] The views in this regard, set out above, are valuable for application of the analysis in the new milieu broughtabout by the CLA, 2020. Nothing in that statute changes the statements recently given in relation to the importance of a biologicalparent's role in their children's lives. Nor does it skew the best interests analysis such that closeness in biological ties is weighted morethan other critical matters.

They all must be considered and given appropriate weight in the overall analysis. [59] Having recognized this biological connection as one factor, the other factors of application are also significantand must all be considered. One cannot default to biological parenthood in such situations. The remaining indicia must be consideredand, taking the situation as a whole, the children’s best interests evaluated. The Children’s Needs, Given Their Age and Stage of Development, Such as the Child’s Need for Stability [60] The children are age 6 and 7 respectively.

They require what every child needs: loving parents and a stablehome. All the parties appear to care for the children. They all want a relationship with them and love them greatly. They appear to all becapable of providing stability. However, the uprooting of the children rather suddenly put overall stability in jeopardy. It was undertakentoo quickly. It put stress on the children regardless of the fact that each home in and of itself is stable. [61] Children have needs which address their stress and confusion when routine is broken.

This manifested itself herethrough some crying and sadness initially, however P. avers to that being no longer a problem. A. and G. suggest it is more extensive intheir experience. The children’s needs are a factor that cannot be ignored. It does not govern the outcome independently or withoutreference to the other factors, but cannot be overlooked. Some form of counselling for the children is indicted here. The Nature and Strength of the Children’s Relationships With the Parties [62] The children are clearly very bonded to A. and G. They have been capably parented by A. and G. for most oftheir lives.

They are also close to and bonded with their mother, P. They are connected to the family members of A. and G. who reside atA.’s and G.’s house. They also have an older brother at P.’s home. [63] The significant difference, at this point, is that the children have not had a great deal of time to become evenmore connected to their mother and their brother which a slower more deliberate transition would have offered. The parenting time hadbeen a few hours a week until earlier this year. Nonetheless, the children have been primarily at P.’s home since late May 2023, some sixmonths now. That is not insignificant.

They have moved into Regina, Saskatchewan with P. and her partner Dean. They started the newschool year in Regina and no doubt have made friends there as well. [64] Thus, they have a strong relationship with A. and G. and a closer biological as well as bonded relationship withP. Each Parties’ Willingness to Support the Development and Maintenance of the Children’s Relationship with the Other [65] Both parties support an ongoing relationship with the other. This does not mean that they desire the other to bethe primary parent. Each desires to be the primary parent for these children.

They each support continuation of the other in the lives ofthe children. In this regard they are all to be commended. [66] However, A. and G. have let the suddenness of the transition to P. interfere with their relationship with thechildren. Rather than speak with P. and TCFS they have essentially imposed radio silence. This does not assist the children. It is not tothe children’s benefit that A. and G. have let unfortunate miscommunications and assumptions prevent them from being with the

children more. P. has been the person to reach out against the will of A. and G. so as to include them, knowing this is important. The History of Care of the Children [ 67 ] As noted, A. and G. have been the parents of the children for the majority of their lives. P. has been their hands on parent for 6 months. She was involved in their lives prior to that, with a number of days per month parenting them this year. The Children’s Views and Preferences [ 68 ] The children love A. and G. and love P. They want to be with each of the parties.

They are still very young and their thoughts in this regard are not clearly capable of being articulated or relied upon. They did indicate disruption and stress when their arrangement at A. and G.’s home was quickly changed in significant ways. The Cultural, Linguistic, Religious and Spiritual Heritage [ 69 ] Both homes place a priority on these factors and desire for the children to be connected to their heritage and indigenous roots.

While A. and G. question the extent to which P. is committed to this, I am persuaded P. is committed to continuing the good work and efforts A. and G. have shown in this regard with these children. The Plans for the Care of the Children [ 70 ] Both A. and G., and P. offer appropriate home environments for the children. P.’s has a father figure in Dean as does A. and G. with G. providing that role model in their home. Both have other children who get along with the children and vice versa . A. and G. offer the consistency of the place the children have grown up in for most of their life. P. offers a sibling.

Each home environment is a good one. The Ability and Willingness of the Parties to Care for and Meet the Needs of the Children [ 71 ] A.’s and G.’s home has been stable for the full time the children have been there which is now over six years. P. has only in the past half year had the children primarily with her. This bodes in favour of the matter not being decided on an interim application alone, but on the basis of better and fuller evidence. P. is to be commended for her progress.

While her situation of caring primarily for the children is not as long term as A.’s and G.’s, she has shown in the last while she is capable of and is caring for them. A. and G. have done so from the time they were very small. Both homes and all parties are appropriate respecting care situations for the children. The Ability and Willingness of the Parties to Communicate and Cooperate With One Another Respecting Matters Affecting the Children [ 72 ] In this regard, P. has shown she is much more willing to communicate and cooperate with A. and G. than vice versa.

A. and G. put their own feelings ahead of the needs of the children when they stopped communicating with P. and TCFS. Its not that there was no reason to feel slighted, after all A. and G. cared for these children unselfishly for over 6 years. To have them suddenly removed and for their furniture to be taken is clearly something that would communicate the opposite of appreciation for their sacrifice.

However, caring for the children’s best interests first and foremost would see those set aside in these circumstances, at least with respect to communicating with P., who was trying to have A. and G. have more time with the children. CONCLUSION [ 73 ] The children have been with A. and G. for almost seven years. They were quickly moved out of that environment to P.’s without a gradual and careful transition occurring. They have had parenting time with P. in the past two years but rather suddenly it became full-time. This is concerning.

Absent an unusual set of circumstances, a more gradual and slow process would normally be in their best interests. The allegations coming from a resident of A. and G.’s home accounts for some of this to be sure. Perhaps without those allegations, which have not been substantiated, a gradual and well-thought-out transition would have occurred. [ 74 ] It is also noteworthy that P. herself thought the transition would be more gradual and methodical. She knows that her children are close to A. and G. and uprooting them quickly and abruptly would not be good for them.

She made efforts to keep the children more connected to A. and G. Unfortunately, that was not reciprocated, to the detriment of the children. [ 75 ] The efforts by TCFS to remove the children’s bunkbeds and belongings from A. and G. and transfer them immediately to P. was not a well thought out plan of action. The children still required those items at A.’s and G.’s. While it is true that there may ultimately be some amount of duplication if both P. and A. and G. have the full set of beds, blankets and personal belongings, that is what is required in the best interests of the children.

The children will be spending time at A.’s and G.’s home as well as at P.’s during an orderly transition. The children cannot bring their beds with them, so they will need beds in each location. It was ill conceived and conflict generating to try to have the beds pulled from A.’s and G.’s home in order to provide them at P.'s. [ 76 ] Much is still presently unknown or in flux. This makes a long-term order out of chambers based on the evidence now before me inadvisable. The matter will need to proceed to mediation, possibly to pre-trial if not resolved in mediation.

There will need to be a good faith effort at mediation by A. and G. I hope this can be by way of OPIK. If not, it will need to be by other means. This will also hopefully enable a greater amount of stability in the lives of these children. [ 77 ] The recommendations from the OPIK are of value. The only unfortunate aspect of that process was the lack of

involvement by A. and G. They should have participated but chose not to. I want them to have an opportunity to do so, if that can still occur. That may well change the recommendation to some extent. As such, this order will be based on them having an opportunity to participate. If they continue to refuse, then this order will be revisited and likely altered. I find the possibility of having an OPIK with their involvement an important feature of the dispute now before the court. [ 78 ] Progressing access is important and in the children’s best interests.

Their relationship with their mother is a good one and needs to be fostered. It ought not be fostered, however, at the expense of their security in their relationship with A. and G. Similarly, it cannot be overlooked that the children are now in mid-school year in Regina. It is not in their interests to be uprooted and moved out of Regina. If this were being decided in summer rather than now, at the end of the first portion of the school year, it would look different. However, there has been enough instability given what has happened.

It will not serve the children to reverse their primary parenting situation at this particular time in these specific circumstances. [ 79 ] Thus, between now and the successful completion of mediation, barring agreement through an OPIK or other form of mediation, P. and A. and G. are to parent the children as follows: (

a) In the first two months, beginning December 24, 2023, P. will parent the children every week from 8:00 p.m. on Sunday until 7:00 p.m. on Friday. A. and G. will parent on the weekends. If the weekend is a long weekend then the children will not be parented by A. and G. for the additional day but will return to P.’s as she needs some weekend time with the children as well. (

b) Christmas holidays in 2023 are to be shard 50/50 between P. and A. and G. The parties are to work out how that will be arranged. If they cannot agree, P. will parent for the first 3 days after school is out, and the last 4 days before school begins. A. and G. will parent in between those days. (

c) If agreement has not been forged by February 20, in the next two months, beginning February 20, 2024, P. will parent the children every week from 8:00 p.m. on Sunday until 7:00 p.m. on Friday as well as for the first weekend of each month. COSTS [ 80 ] Costs will be reserved to be dealt with at a future time but are reserved to the court. J. D.J. BROWN REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 281 Date: 2023 12 27 Docket: FLD-RG-00173-2023 Judicial Centre: Regina, Family Law Division BETWEEN: A. T. and G. L. PETITIONER S - and -

P. A. and TOUCHWOOD CHILD AND FAMILY SERVICES INC. RESPONDENTS Counsel: Gulzaib Fida for the petitioners Joanne Moser for the respondent Kimberly Stonechild for Touchwood Child and Family Services December 27, 2023 BROWN J. CORRIGENDUM to JUDGMENT of (December 22, 2023) (2023 SKQB 281) [ 81 ] Paragraph 79 should read as follows: Thus, between now and the successful completion of mediation, barring agreement through an OPIK or other form of mediation, P. and A. and G. are to parent the children as follows: [ 82 ] Paragraph 79(

c) should read as follows: If agreement has not been forged by February 20, in the next two months, beginning February 20, 2024, P. will parent the children every week from 8:00 p.m. on Sunday until 7:00 p.m. on Friday as well as for the first weekend of each month. [ 83 ] Paragraphs 79 (d), (e), (

f) and (

g) are deleted. J. D.J. BROWN