T.M.D. PETITIONER - v. -, 2023 SKKB 150

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 150 Date: 20 23 07 12 Docket: FLD-RG-00275-2022 Judicial Centre: Regina, Family Law Division BETWEEN: T.M.D. PETITIONER - and - N.S.W. RESPONDENT Counsel: David A. Couture for the petitioner Alexander R. Deacon for the respondent Fiat RICHMOND J. July 12, 202 3 [ 1 ] T.M.D. and N.S.W. have one child born of their relationship, B.D-W. born [REDACTED]. N.S.W. has had no involvement with B.D-W. since T.M.D. disappeared with B.D-W. in August 2021.

The question is whether, on an interim application, is in B.D-W.’s best interests for N.S.W. to have a parenting time order. [ 2 ] T.M.D. and N.S.W. met in 2015 but did not begin dating until 2018. They moved in together and discovered they were expecting B.D-W. shortly after they began cohabitation. T.M.D. already had a child from a previous relationship, A.M.D. born [REDACTED]. A.M.D. is not a subject of these proceedings and there is nothing in the evidence to suggest N.S.W. was involved in parenting A.M.D.

T.M.D. describes heavy cocaine use by N.S.W. during their relationship and concedes she also used drugs but quit upon discovering she was pregnant. [ 3 ] Drug use, however, was not the only source of trouble in their relationship. According to T.M.D., N.S.W. was not happy about the pregnancy and accused her of sleeping with someone else. He also punched her and choked her, leaving bruising. A Snapchat conversation following one such altercation wherein he apologizes for laying hands on her, corroborates her story. [ 4 ] Despite the physical abuse, T.M.D. tells of how N.S.W. was able to convince her to stay.

However, their relationship continued to deteriorate and she claims he kept her isolated by leaving her without a phone much of the time and continued to punch and push her. [ 5 ] B.D-W. was born premature. T.M.D. describes how N.S.W. did not show up to the hospital until approximately the third day she was there. His behavior (yelling and throwing things) was such that the Ministry of Social Services was called. As a result, T.M.D. agreed to have her friend come home with her when she was released. [ 6 ] Once home with B.D-W., she described N.S.W.’s physical and verbal abuse escalated and he made a death threat.

Police were called and ultimately, N.S.W. was charged and released on condition he have no contact with T.M.D. Despite the requirement of no contact, she claims N.S.W. showed up at her door intoxicated and pushed her into a glass cabinet. Police were called by someone outside the home and she claims N.S.W. threatened to kill her if she told them he was there. She complied but nonetheless, the police searched the home and located N.S.W.

Both T.M.D. and N.S.W. were arrested for this incident though the charges were later dropped. [ 7 ] T.M.D. moved in with her mother and grandmother at the insistence of the Ministry of Social Services but eventually moved back home. The abuse began again, and a vicious attack ensued in early December resulting in damage to her cheek that later required the care of a surgeon.

[ 8 ] T.M.D. describes trying to keep the children away from the abuse but claims B.D-W.’s life was also threatened. Ultimately, T.M.D. left with the children in the summer of 2021 and found a place where N.S.W. did not know to find her. He has not seen B.D-W since. T.M.D. is now in school and hopes to find work soon. [ 9 ] In October 2022, T.M.D. issued a petition.

Efforts to personally serve N.S.W. proved unsuccessful and an order for substitutional service was granted by Megaw J. in December 2022. [ 10 ] Following the substitutional service, N.S.W. filed an answer and counter petition requesting joint decision- making responsibility and parenting time. He disputed T.M.D.’s claim for child support asserting that he was in receipt of social assistance. [ 11 ] In May, N.S.W. requested a judicial case conference to request parenting time with B.D-W. He sought supervised parenting time with an eventual expansion of time with B.D-W.

In response, T.M.D. brought her own request for full decision-making authority and a complete denial of parenting time for N.S.W. alleging a history of domestic abuse. [ 12 ] N.S.W.’s affidavit, filed in support of his application confirms the parties’ relationship was “rocky”. He has otherwise denied or downplayed the violence. He points out that the charges against him were stayed and insists that their altercations often arose because T.M.D. hit him or tried to prevent him from leaving which resulted in him trying to stop her from hitting him or pushing her away in self-defence.

He admits to breaking a lamp while trying to leave on one occasion and admits to damaging a door. [ 13 ] N.S.W. claims to have been involved with B.D-W. when he was an infant but does not dispute that he has not seen him since T.M.D. moved away with B.D-W. N.S.W. has also moved and now lives in Grenfell, Saskatchewan and is in receipt of social assistance. Why N.S.W. has moved to Grenfell or why he is not working is unknown.

No material explaining his living circumstances has been provided or why no effort to locate and have time with B.D-W. was made before now. [ 14 ] The question is whether it is in B.D-W.’s best interests to spend time with his natural father and what that parenting time should look like. However, prior to considering parenting, a determination must be made as to whether the parties should be required to complete mandatory dispute resolution or whether an exemption is warranted in these circumstances.

Should the Parties be Exempted from Participating in Mandatory Dispute Resolution? [ 15 ] The King’s Bench Act , SS 2023, c 28 , provides at s. 7 - 4(3) : …

(3) Subject to subsections (6) to (8), if the parties to an application to which this

section applies have not already done so, after the close of pleadings the parties must: (

a) participate in family dispute resolution; and (

b) file with the court a certificate of participation in family dispute resolution, in the form prescribed in the regulations. [ 16 ] Exemptions are set out in s. 7-4(6): …

(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. [ 17 ] T.M.D. argues they should not participate in mandatory dispute resolution given their history of violence. N.S.W. disputes that there was family violence of such a nature as to warrant an exemption but overall takes no position on the exemption. [ 18 ] Justice Brown commented on when it may be appropriate to exempt the parties from dispute resolution due to family violence at paras 41-43 of S.L.L. v.

D.B.L. , 2022 SKKB 277 : [41] While the violence is not all directed at S.L.L., it is directed at D.B.L.’s current partner. It is not much of a stretch to be concerned in relation to it coming to be directed at S.L.L. if one is not cautious. One should not easily nor readily exempt matters from mandatory family mediation given the object of the legislation to work out solutions collaboratively and move towards cooperation despite the emotions which are so often involved in family breakdowns.

However, the necessary caution to this is at the same time to be aware of measures to provide adequate protection for the parties to a family dispute. [42] There is a level of violence that is in evidence here, as opposed to merely being suspicious, and therefore this situation meets the threshold set out for an exemption. At present, in this matter, that balance tips in favour of the protection of S.L.L. I conclude it is established that there is violence here of the type that makes the matter one that ought not to proceed to mediation, at least at this time.

That is not to foreclose that avenue in the future if additional evidence is provided or the situation changes from what it is now. [43] Therefore, I exempt S.L.L. from the requirement to participate in mandatory family dispute resolution given the evidence of the existence of domestic violence. [ 19 ] In the present case, although N.S.W. denies willfully inflicting violence on T.M.D. and argues he was acting in self defence or trying to leave when violence occurred, his affidavit makes it clear this was a “rocky” or dysfunctional relationship and the level of violence goes beyond mere suspicion.

I am satisfied that in this situation, an exemption is appropriate. Is it in B.D-W.’s Best Interests to Begin Supervised Visits with His Father? [ 20 ] The Children’s Law Act, 2020 , SS 2020, c 2 provides a non-exhaustive list of factors to be considered when assessing what is in a child’s best interests. s. 10(3)(

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; [ 21 ] B.D-W. is not yet school age. The evidence filed by the mother would suggest his needs are being met and he is in a stable home environment. s. 10(3)(

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; [ 22 ] T.M.D.’s evidence is that B.D-W. has a good relationship with her and those important to her. B.D-W. does not know N.S.W. or his family. s. 10(3)(

c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; [ 23 ] T.M.D. is not prepared to support the development of a relationship with N.S.W. She argues the history of violence in their relationship is a hindrance to any healthy relationship between N.S.W. and B.D-W. N.S.W. takes no issue with T.M.D. continuing to parent B.D-W. s. 10(3)(

d) the history of care of the child; [ 24 ] Other than for the first few months of B.D-W.’s life when N.S.W. says he was involved in his care, T.M.D. has been B.D-W.’s exclusive care giver since separation and, according to her, since birth. N.S.W. argues the current arrangement was unilaterally imposed by T.M.D. as she took B.D-W. and could not be found. T.M.D.’s self-help remedy is not to be condoned though it may be explained by the nature and extent of the family violence she has depicted. s. 10(3)(

e) the child’s views and preferences, by giving due weight to the child’s age and maturity, unless they cannot be ascertained; [ 25 ] Given B.D-W.’s young age, this is not a factor. s. 10(3)(

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; [ 26 ] There is nothing in the evidence to suggest this is a consideration. s. 10(3)(

g) any plans for the child’s care; [ 27 ] There is a paucity of information from either side on this issue. T.M.D. wants to continue to provide care but is also going to school and returning to work. There is no information as to how she intends to address these new obligations. N.S.W. has provided no information respecting his life other than he now lives in Grenfell and is on social assistance. There is no information as to why N.S.W. is unable to work and whether his current financial position is due to health or other causes. He expresses a desire to start a relationship with B.D-W. but provides no information as to how he would care for him or where. s. 10(3)(

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; [ 28 ] T.M.D. argues she is meeting B.D-W.’s needs. She argues N.S.W.’s behavior while they were together makes it unlikely that he can meet B.D-W.’s needs. As stated above, there is very little information as to how N.S.W. would meet B.D-W.’s needs. s. 10(3)(

i) the ability and willingness of each person with respect to whom the parenting order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; [ 29 ] The parties have had no communication since T.M.D. took B.D-W. and moved where N.S.W. could not find them. Communication while the parties were together and following separation was ravaged by physical and verbal abuse according to T.M.D. which would render ongoing communication and cooperation respecting B.D-W. a concern.

Although N.S.W. has denied much of the family violence, he has described their relationship as “rocky” and admitted enough pushing and shoving to suggest his ability and willingness to communicate and cooperate on matters affecting B.D-W. may be deficient. s. 10(3)(

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 to cooperate on issues affecting the child; [ 30 ] Family violence was at the root of this family’s disfunction and ultimate disintegration. T.M.D.’s description of their relationship would suggest N.S.W. is incapable of meeting B.D-W.’s needs. On T.M.D.’s version of events B.D-W. was repeatedly at risk in vitro and would have been exposed to violence after his birth including a threat by N.S.W. on B.D-W.’s life.

Even though N.S.W. has denied the bulk of the allegations raised by T.M.D., their “rocky” relationship and the fact that he admits to resorting to pushing and shoving, albeit to “get away” raises sufficient red flags to give pause before making a parenting order. s. 10(3)(

k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child; [ 31 ] Previous conditions of release which prohibited contact between the parties would have affected the safety, security and well-being of B.D-W. but have since expired. [ 32 ] Section 10(4) of The Children’s Law Act, 2020 mandates that the court consider a number of factors: s. 10(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 the person’s ability to care for and meet the needs of the child; (

h) any other factor that the court considers relevant. [ 33 ] If T.M.D.’s version of events is ultimately found to be true, the family violence was of a nature, frequency and seriousness that ensuring her, and B.D-W.’s ongoing safety must be prioritized. N.S.W.’s depiction of their relationship would also suggest caution in ensuring that he and T.M.D. are kept separate, and B.D-W. is not exposed to any of their altercations in future. The fact that charges were laid and yet contact continued despite non-contact being a condition of release would indicate a pattern of coercive and controlling behaviour.

T.M.D. suggests the only way she could escape was to disappear with B.D-W. Of course, removing B.D-W. from his father without following appropriate legal channels is also a major concern but one that T.M.D. has attempted to justify as acting out of fear for her and B.D-W.’s safety. For the most part the family violence was not directed at B.D-W. but he was clearly exposed to the violence regardless of whether you believe T.M.D. or N.S.W. The physical, psychological and emotional harm or risk of harm to B.D-W. is great if T.M.D.’s version of events is true and a parenting order is made without adequate safeguards.

If steps are not taken to address the source of their “rocky” relationship as N.S.W. described, B.D-W. remains at risk and both B.D-W.’s and T.M.D.’s safety may be compromised. T.M.D. has voiced fear for both her and B.D-W.’s safety. Unfortunately, there do not appear to have been any steps taken by either T.M.D. or N.S.W. to address the family violence or to determine what might be done to ensure it does not happen in the future. [ 34 ] Of note in these circumstances is that N.S.W. has not been involved in B.D-W.’s life for some time. B.D-W. does not know his father.

The status quo has been that N.S.W. has been entirely absent from his life. N.S.W., as a parent, has largely been untested. He now comes forward and requests an opportunity to parent his son, first in a supervised setting and ultimately on his own. Given the allegations against him, and the paucity of information from N.S.W. regarding his current circumstances, caution is warranted. As this is an interim application, many of the allegations of family violence have yet to be proven.

Nonetheless, there is sufficient uncontroverted evidence to establish that this was a troubled and dysfunctional relationship with family violence forming the basis of their “rocky” relationship. Further investigation is required to assess the extent of the family violence and what might be done to ensure the safety of B.D-W. and all concerned. Although the tendency may be to suggest that supervised parenting provides the protection needed, it is rendered more complicated by the fact that B.D-W. does not know his father. Knowing who is father is, may not necessarily result in a relationship with his father.

The court of appeal in T.S. v. J.L.W. , 2022 SKCA 35 at para 41 , [2022] 6 WWR 188 described them as two separate questions: [41] First, the factors to be considered in determining whether blood or genetic testing should be ordered are different from those governing the issue of what relationship a parent should enjoy with a child. This is so because the underlying questions involved in each of those issues are different. With respect to the latter, the question is what parenting arrangement is in the best interests of the child.

The factors to be considered in that analysis were set out in s. 8 of the CLA 1997 [ The Children’s Law Act, 1997 , SS 1997, c C-8.2 (rep)] (s. 10 of the CLA 2020 ). Those factors included things such as the child’s needs, their relationships, the willingness of each parent to support a relationship with the other parent, the ability and willingness of each parent to care for the child, etc. With respect to the former, the question is whether it is in the best interests of the child to know their parentage. [Emphasis in original] [ 35 ] There is no question that B.D-W.’s parentage is known.

Both T.M.D. and N.S.W. agree he is the father. The

issue remains whether it is in B.D-W.’s best interests to be parented by his father in firstly a supervised setting and later unsupervised. T.M.D. is adamant that given the history of family violence the answer to that question is no. The Court of Appeal in J.B. v.

J.M. , 2023 SKCA 24 summarized family violence considerations in chambers and commented at para. 47: [47] As this Court observed in A.M.D. [ A.M.D. v M.R.M. , 2021 SKCA 71 ], “Violence in the home cannot be condoned, and judges must treat allegations of violent conduct involving intimate partners and children with care when making parenting orders” (at para 60).

When a court considers the effect of family violence in the context of a parenting order, it is not necessary that the party alleging the occurrence of family violence specifically prove precise incidents of it, but a Chambers judge must be able to conclude, based on the totality of the evidence, that family violence has in fact occurred or, at the very least, that such allegations are sufficiently credible to give rise to a level of risk to the child’s safety that it bears upon their best interests (see, generally, C.L.B. v J.A.B. , 2016 SKCA 101 at paras 44–46 , 82 RFL (7th) 269 ; Watts v Laframboise , 2021 SKQB 279 at para 38 ).

This requires the court to “assess the totality of the evidence with care and objectivity to determine whether the allegations should be accepted as reliable, true, or probably so, or whether they are based on speculation, conjecture, suspicion or unreliable evidence such that they should be rejected” ( Shoman v Mais , 2022 SKQB 106 at para 48 ).

A Chambers judge may properly decline to consider the effect of family violence as a factor in making an interim parenting order where the evidence pertaining to it is highly controverted and of such a nature that it does not permit the necessary findings of fact to be made ( A.M.D. at paras 59–60 ; S.G. v K.B. , 2021 SKCA 133 at para 47 [ S.G. ] ). [ 36 ] Given the affidavits on file, there is sufficient evidence to conclude that family violence occurred. N.S.W. has admitted to some violence though denies the more serious allegations.

However, overall, having regard to all the evidence on file, the allegations made by T.M.D. are sufficiently credible as to give rise to a level of risk to B.D-W.’s safety that it bears on his best interests generally. [ 37 ] Section 10(2) mandates that “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.” B.D-W. does not know his father. He has not been part of his life since T.M.D. moved away.

N.S.W.’s suggestion that he begin supervised parenting with an increase to regular scheduled parenting time does not, on the evidence before me protect B.D-W.’s “physical, psychological, and emotional safety, security and well being.” Although supervised parenting may provide for his physical protection, it does not afford protection to his psychological and emotional safety, security and well being.

Further information is needed on the family violence, on N.S.W.’s current circumstances and the best and healthiest way to reintroduce N.S.W. into B.D-W.’s life if it is ultimately found in his best interests to do so. An interim order, even a supervised one, is not appropriate in these circumstances. [ 38 ] The status quo has been that B.D-W. has been in T.M.D.’s primary care and she has, by default, had decision making authority. On an interim basis, that should continue. The parties should proceed to a pre-trial.

Better and more complete information respecting N.S.W.’s circumstances will be required to allow the court to fully assess his circumstances and how it may be in B.D-W.’s best interests to allow N.S.W. back into his life. J. C.M. RICHMOND