T.S. Petitioner - v. -, 2022 SKKB 246

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 246 Date: 2022 11 17 Docket: FLD-SA-00284-2016 Judicial Centre: Saskatoon, Family Law Division ___________________________________________________________________________ BETWEEN: T.S. Petitioner - and - J.B. Respondent Counsel: Siobhan H. Morgan for the petitioner Melissa J. Nelson for the respondent ___________________________________________________________________________ FIAT GOEBEL J.

November 17, 2022 ___________________________________________________________________________ Note: Pseudonyms have been used for children’s names throughout this redacted version of the fiat. History of Proceedings [ 1 ] The parties cohabited for a number of years before they separated in April 2016. They have two children together – K., born in 2013, and M., born shortly after the separation in 2016. They also each have one child from prior relationships. The mother’s son Daniel was born in 2007, and the father’s daughter Kerry was born in 2009. [ 2 ] The petition was issued in August 2016.

At that time, the children were in the primary care of the mother. [ 3 ] The first interim order was made in December 2016 providing for joint custody of the children with primary care to the mother and gradually increasing parenting time for the father ( T.S. v J.B. (16 December 2016) Saskatoon, FLD-SA-00284-2016 (Sask QB)). In addition, the father’s income was set at $102,490, and he was directed to pay interim child support and payments towards accumulated arrears. [ 4 ] In February 2018, the parties entered into minutes of settlement at a pre-trial conference.

With respect to parenting they agreed that the children would remain in the mother’s primary care but would be in the father’s care on his non-work days. They also agreed to share parenting during school breaks and that either party could seek a review of the parenting arrangement in two year’s time. With respect to child support, the minutes of settlement provided that the father would pay $1,261.00 per month on an income of $90,000 per annum, with an annual exchange of income information commencing in May 2019.

No judgment or order incorporating these terms was made at that time. [ 5 ] In July 2018, the father applied to decrease the child support payable under the minutes of settlement, alleging that the parties had a de facto shared parenting arrangement. That application was dismissed by the court on the basis that there had been no material change since the minutes of settlement had been signed only a few months earlier.

Costs were assessed against the father. [ 6 ] In November 2018, the parties attended another pre-trial conference where they executed minutes of settlement respecting the distribution of family property. At that time, the parties also agreed that parenting exchanges would occur at a neutral location. No other amendments to the parenting or support arrangements were made at that time. Again, no judgment or order incorporating these terms was made. [ 7 ] In 2018, the father commenced a relationship with his current romantic partner, R.S.

Throughout 2018 and 2019, the father and his partner advanced a number of reports to the Ministry of Social Services [Ministry] accusing the mother of child abuse. Those reports were either screened out or investigated and ultimately determined to be unsubstantiated. Nevertheless, the reports continued, with the father and his partner unsatisfied with the position taken by the investigators.

[ 8 ] In September 2019, the father applied to decrease child support on a retroactive basis to June 2019 due to a change in his employment and income. He also applied for property-related relief. In a written fiat dated October 4, 2019 ( T.S. v J.B. (4 October 2019) Saskatoon, FLD-SA-00284-2016 (Sask QB)), the court held that it was not appropriate to apply the adjustment formula set out in the minutes of settlement given the decrease in the father’s income.

On the other hand, the court found that the father’s current income remained in the range of $90,000 (as set out in the minutes of settlement) and ordered that he continue to pay support in the amount of $1,261.00 per month, without prejudice to revisiting the issue after January 2020 if the father’s decrease in income was likely to continue. [ 9 ] On March 5, 2020, the father served and filed two applications. The first was a “Notice of Application for Judgment” respecting family property pursuant to the court’s jurisdiction to grant a final judgment incorporating the terms of a settlement agreement.

Essentially, he asked that the November 2018 minutes of settlement respecting property be incorporated into a final judgment. [ 10 ] The second application was by “Notice of Application” and sought shared parenting and a cessation of child support. The application cites the February 2018 minutes of settlement that provided for a review of parenting but was not characterized as either an interim or final application.

Unlike the concurrent property application, it was not brought as an application for judgment. [ 11 ] The mother was self-represented at that time and says that she hoped and expected that if she conceded on what the father was asking for, the unsubstantiated reports of abuse would end. Before the first return date and without filing any response, the mother consented to all of the relief being sought. [ 12 ] On March 17, 2020, counsel for the father filed a consent judgment resolving property issues.

The judgment was granted by Justice Danyliuk on the same day that it was filed ( T.S. v J.B. (17 March 2020) Saskatoon, FLD-SA-00284-2016 (Sask QB)). Also on March 17, 2020, counsel for the father filed draft consent orders providing for shared parenting and a cessation of child support payments. These consent orders were also granted by the court on March 17, 2020. [ 13 ] The parenting order provided for joint custody along with a week-on/week-off shared parenting schedule. The order also granted leave to the parties to come back to the court in the event of a dispute respecting parental decision-making.

It makes no reference to being final or interim in nature. [ 14 ] The child support order set the mother’s income at $37,662 and the father’s income at $29,224. It further directed that commencing on March 1, 2020, there would be no interim child support paid by either party.

The order also imposed an obligation on the parties to exchange their income information annually and utilize the recalculation service for future adjustments. [ 15 ] Over the next two years, the shared parenting arrangement continued except when disrupted when ongoing reports were being investigated by the Ministry. [ 16 ] In September 2021, the mother brought an application to vary the 2020 parenting order on the basis that the father and his partner continued to advance unfounded complaints and engage in alienating behaviour.

In her prayer for relief, she seeks sole decision-making authority and primary care of both children. She also asks that the father’s parenting time be supervised. [ 17 ] The father opposed the mother’s application, initially seeking an order providing him with sole decision-making and primary care – although he did not file his own application for relief. [ 18 ] Robust materials were filed by the mother in support of her motion, and by the father in response. [ 19 ] In November 2021, the parties agreed to adjourn the application and participate in a private parenting assessment.

The assessment report was completed a few months later and made a couple of recommendations – dependent upon what version of events was ultimately accepted. [ 20 ] Shortly thereafter, the mother returned her application to court. Both parties filed supplementary materials and detailed briefs in advance of the hearing date.

By the hearing date, eleven affidavits had been filed appending hundreds of pages of exhibited materials. [ 21 ] While on reserve, counsel for the mother advised the court that the Ministry had once again been called upon to investigate her care of the children but was not aware of who advanced the report. A few weeks later, counsel for the Ministry confirmed in a letter to the court that a report to the Ministry respecting the mother had been received, investigated and closed.

The Ministry has no ongoing involvement with the family. [ 22 ] In addition, the court sought further submissions from the parties respecting whether the 2020 parenting order was intended to be interim or final. While in the view of the court the parenting and child support orders have the indicia of being interim orders, both parties argue that it was intended to be a final order and ask that the court proceed on that basis. Position Advanced by Each Parent [ 23 ] The mother says that the father and his partner have been undermining the relationship between her and the children since the 2020 order.

She says the impact of this conduct has been detrimental to the children and amounts to a material change in circumstances. She further argues that as a result, shared parenting is no longer in the best interests of the children. [ 24 ] In support of her position, she refers to the numerous unfounded reports of alleged abuse that have been made to the Ministry and the police which have deliberately put the children in the midst of conflict.

She also alleges that the father has resisted any direct communication with her, rendering joint decision-making impossible and jeopardizing the children’s needs. [ 25 ] The father denies that either he or his partner have improperly interfered in the children’s relationship with the

mother. He says any reports that were made to the Ministry were driven by sincere concerns about the mother’s care and a legal duty toreport. [26] When the application initially came before the court in the fall of 2021, the father took the position that themother was an unsafe parent who was subjecting the children to physical and, possibly, sexual abuse. He felt that he should have solecare of the children and that the mother should have supervised parenting time. [27] However, by the date of the hearing several months later, the father’s position had changed dramatically.

Hiscounsel advised the court that the information and recommendations contained in the parenting assessment assuaged the father’sconcerns and provided him with insight into the situation. According to his counsel, the father now accepts that repeated reports to theMinistry are problematic for the children and is prepared to make changes in both his stance and behaviour to avoid putting the childrenin the midst of the conflict that this creates.

On this basis, he now argues that there is no material change in circumstances and asks thatthe mother’s application be dismissed with costs. [28] Alternatively, if the court finds that there has been a material change, the father is amenable to an order that“tweaks” the parenting judgment by incorporating a number of conditions and recommendations made by the assessor in her report.Counsel for the father also confirmed that he would consent to an order requiring him to personally attending all parenting exchanges, bethe sole source of contact for the mother on parenting-related issues and inform the mother of any issues or concerns raised by thechildren prior to speaking to third party agencies such as the police or the Ministry.

If required, the father is also willing to participate inthe High Conflict Mediation Program. [29] At the hearing, both parties confirmed that they would be willing to undergo a psychological assessment and/orparticipate in family counselling (with parents and the children) if the court ordered same. The Legal Framework [30] The mother brings her application pursuant to s. 8(4) of The Children’s Law Act, 2020, SS 2020, c 2 [CLA].

Thatsubsection allows a court to vary a parenting order if there has been a material change in circumstances since the last order was made.Section 10 provides that when varying a parenting order, the court shall only take into consideration the best interests of the childreninvolved. [31] These provisions have long been held to require a two-stage test: Gordon v Goertz, (SCC),[1996] 2 SCR 27 at paras 10-16, and Gray v Wiegers, 2008 SKCA 7, 47 RFL (6th) 1 [Wiegers]. The first stage requires the applicant tosatisfy the court that there has been a material change in circumstances since the last order was made.

In order to constitute a “materialchange”, the change must alter a child’s needs or the ability of a parent to meet those needs in a fundamental way. Moreover, todiscourage parties from relitigating parenting issues that were already considered, the applicant must also satisfy the court that thechange was neither foreseen nor reasonably contemplated by the court when the original order was made. If the applicant is unable tosatisfy the court that such a change has occurred, the inquiry ends, and the existing order will remain in place.

Only where the thresholdis met does the court proceed to the second step focused on the impact of the change on a child’s best interests.

See also T.C. v A.E.,2021 SKCA 79; A.M. v Ministry of Social Services, 2020 SKCA 114; Thieven v Thieven, 2019 SKCA 128, 30 RFL (8th) 257; Talbot vHenry (1990), (SK CA), 25 RFL (3d) 415 (Sask CA); and Greyeyes v Greyeyes, 2021 SKQB 14 [Greyeyes]. [32] While this jurisprudence deals with applications brought pursuant to the Divorce Act, RSC 1985, c 3 (2d Supp),and while the language in the CLA differs slightly from the federal legislation, the same two-stage test for variation applies, informed bythe same policy considerations that support a vigilant stage one analysis: D.M. v M.M., 2022 SKQB 44; Jacobsen v Hainstock, 2008SKQB 161, 315 Sask R 161; and Scott v Higgs, 2007 SKQB 231 at para 13, 300 Sask R 48. [33] In addition, while a judge sitting in chambers has the jurisdiction to vary a final parenting order based solely onaffidavit evidence, the judge must consider whether it is appropriate to exercise their discretion to do so: Zettl v Spence, 2016 SKCA 97at para 60, Koback v Koback, 2013 SKCA 91, 42 RFL (7th) 277; Bromm v Bromm, 2010 SKCA 149 at para 16, 91 RFL (6th) 268; andZaba v Bradley (1996), (SK CA), 137 Sask R 295 (CA).

Where the evidentiary record is sparse on material points, orwhere the affidavit evidence is largely inadmissible or contradictory, the matter will rarely be concluded in chambers.

In that event, thecourt must consider whether an issue, or the entire matter, should be directed to a viva voce hearing, a pre-trial conference and/or a trial,taking into account the issues in dispute and principles of proportionality: T.C. v A.E., at para 31; McCorriston v Hunter, 2019 SKCA106, 33 RFL (8th) 310; and Greyeyes, at paras 20-21. [34] In Greyeyes, I summarized this balance as follows: [20] As the issue is driven by an application to vary a final order, the starting point is to determine whether a fair and just finaldetermination can be made on affidavit evidence in chambers before directing the matter to pretrial and trial: Gore-Hickman vGore-Hickman, 2008 SKQB 185, Pippin v Pippin, 2014 SKQB 348, 51 RFL (7th) 460 and McCorriston v Hunter, 2019 SKCA 106, 33RFL (8th) 310. [21] This requires the Court to consider the nature and quality of the affidavit evidence, including whether the evidence is conflictingon material facts.

That said, a trial will not necessarily be required on every occasion where there is controverted evidence. In addition tothe obvious underlying considerations favouring the affordable, timely and just adjudication of claims generally, in matters involving thevariation of parenting orders there are additional policy considerations at play. As noted by the Court of Appeal in Wiegers [2008 SKCA7, 307 Sask R 117] (para 24), not only do few parents have the financial and emotional resources to relitigate parenting issues, butchildren benefit greatly from the stability and predictability that final orders bring.

While I recognize these policy considerations wereidentified in Wiegers with reference to the stage one test, they similarly support a rigorous sifting of the evidence at the chambers stageto determine whether a final order can be fairly made before sending the parties back into the fray. [35] Where the chambers judge deems it necessary to direct the parties to a further proceeding, the judge may alsoconsider what interim arrangements may be in the best interests of the children pending that hearing while also having regard to the

jurisprudence that cautions against significant changes that could unnecessarily destabilize the children on an interim basis. Seidel vSeidel, 2021 SKCA 92 [Seidel], and Gebert v Wilson, 2015 SKCA 139, 467 Sask R 315. The State of the Evidence [36] The evidence consists of 11 sworn affidavits and hundreds of pages of exhibits. Much is controverted. [37] In addition, both parties rely on the content of a report prepared by a privately retained parenting assessor, anunsworn copy of which was appended to the mother’s affidavit.

For the purposes of this application, counsel ask and agree that the courtaccept the information contained in the report as admissible for the truth of its contents notwithstanding that it contains unsworn anduntested hearsay, subject to arguments regarding the weight the court should accord to the assessor’s recommendations. [38] The parties also ask and agree that the court admit copies of redacted contact notes prepared by the Ministry(appended to the mother’s affidavit) also subject to arguments regarding weight. [39] Notwithstanding this arrangement between counsel, some caution is warranted.

For instance, while the partiesagree that the information and observations of the assessor are admissible, they depart significantly on what weight should be ascribed toher recommendations. The father asks the court to give significant weight to the assessor’s recommendations, while the mother arguesthat the court should not do so without providing the parties with an opportunity for cross-examination. [40] Secondly, appellate jurisprudence cautions against giving significant weight to untested parenting assessmentswhen a matter comes before the court in chambers.

In Babich v Babich, 2017 SKCA 48, the court of appeal overturned a chambersdecision on this basis, holding as follows: [27] The courts have identified the difficulty Chambers judges face when they are asked to make interim parenting decisions basedsolely on affidavit evidence and unchallenged custody/access assessments. Ryan-Froslie J. (as she then was) described this difficulty inBurka v Burka, 2003 SKQB 407, 239 Sask R 107 [Burka]: [12] It is difficult, if not impossible, on interim applications for a judge to make any factual determinations.

Affidavits are oftencontradictory and it is impossible to weigh credibility based on affidavit evidence. The evidentiary basis necessary for the admission of acustody/access assessment is rarely present and the assessor’s findings are seldom tested by cross-examination. Moreover, often on aninterim application an assessor’s qualifications are unknown. Those qualifications would of course affect the weight a judge gives toopinions rendered. For judges on interim applications to rely on such assessments may well usurp the role of the trial judge.

The dangerof over-reliance on assessments is exemplified by the Saskatchewan Court of Appeal decision of Haider v. Malach (1999), (SK CA), 177 Sask R. 285; 199 W.A.C. 285 (C.A.), leave to appeal to the Supreme Court of Canada refused (1999), 249 N.R.398; 189 Sask. R. 319; 216 W.A.C. 319 (S.C.C.). While that case dealt with the use of such an assessment at trial, it illustrates the factthat important information may be missing from such assessments and that the evidentiary basis for the assessment may not be supportedby witnesses who address the same issue.

It is important to recognize that custody/access assessments are “tools” for the use of the court.They do not usurp the judge’s role and they are not determinative of the issues between the parties. … [17] … There are a number of factors a court should consider in determining whether or not it is proper to consider an assessment on aninterim application. Such factors include but are not limited to: 1. The nature of the application (i.e., whether it is an interim application or an application for variation); 2.

The nature of the relief sought (i.e., custody, access, a change from supervised to unsupervised visitations, etc.); 3. The purpose of the assessment (i.e., whether it is for use by the chamber judge and/or at trial); 4. The scope of the assessment (i.e., whether it is a full custody/access assessment, a focussed assessment, a voices of the childrenreport, etc.); 5. Whether the assessment raises some immediate concern relating to the health and/or safety of the children; 6. Whether the parties agree to the use of the assessment; 7.

Whether an evidentiary basis has been established for the opinions expressed in the assessment; and 8. Whether the assessor can be subjected to cross-examination before the report is used. … [29] In Koeckeritz [2008 SKQB 92, 312 Sask R 276], the Court was not prepared to rely upon the custody/access assessment in theapplication before it. One of the reasons given was that “the validity of the assessor’s opinion is solely dependent upon the truth of theassumptions upon which it is based” (at para 14).

The Court also noted that the respondent did “not agree with the recommendations ofthe assessor and she has not had an opportunity to challenge the basis for his opinion” (at para 14). [30] Additionally, this Court has cautioned judges against relying on unsworn reports and has indicated that opinions in such reportsshould not be considered to the extent they are based on hearsay.

In Tindall v Craig, 2006 SKCA 76, 285 Sask R 148, this Court dealtwith an appeal from an order granting interim custody of a 10-year-old girl to her father, notwithstanding the child had been in thecustody of her mother since the parents had separated about four years earlier. The Chambers judge was faced with conflicting affidavits,a psychologist’s report, and an Investigation Record conducted by the Department of Community Resources and Employment, Familyand Youth Services. The reports and the father’s affidavits all raised concerns about the mother’s drinking. The mother denied any issues

with alcohol. This Court allowed the appeal stating: [12] The appeal must succeed.

Even assuming that the Investigation Record was admissible into evidence by reason of the agreementof the parties, and that the psychologist’s report was admissible into evidence under s. 97 of The Queen’s Bench Act, 1998, S.S. 1998, Q-1.01, both of which propositions are at least arguable, there is no evidence other than unsworn hearsay evidence upon which it could befound that the mother was alcoholic and that the child suffered from it, while there is sworn evidence from the mother denying that to beso, as well as sworn evidence from three other persons supporting the mother’s evidence to at least some degree. … [18] … As to the reports prepared by Karin McEwen and Francis Stewart, neither were sworn or verified under oath.

Thus Rule 603(3)does not apply to them, and to the extent that they were based on hearsay, they should not have been considered. [19] Without the hearsay evidence, there was no case for even direction of the trial of an issue, let alone an order in favour of thefather. [20] But even if the hearsay were admissible, given the direct denial under oath by the mother of either alcoholism or lack of propercare for the child, there should have been an order directing trial of an issue rather than a decision made on the written evidence filed:Bradley v. Zaba (1996), (SK CA), 137 Sask.

R. 295; 107 W.A.C. 295 (C.A.). [41] Here, much of the information summarized in the assessor’s report is hearsay. In addition to the underlyingconcerns with hearsay evidence referenced by the Court of Appeal in the above quotation, The Queen’s Bench Rules specificallyprovides that hearsay evidence is not admissible when final relief is being pursued: Rule 15-46(3), and Heimlick v Longley, 2022 SKQB55 at para 42. [42] The parties also ask the court to admit the contents of redacted case notes disclosed by the Ministry for the truthof their contents.

Ostensibly, this position is grounded upon the business records exception to the hearsay rule, although the foundationfor same cannot be found in the affidavit evidence filed. [43] The admissibility of contact notes and other documents generated by the Ministry was recently considered bythe Saskatchewan Court of Appeal in A.M. v Ministry of Social Services. Kalmakoff J.A., writing for the unanimous court, summarizedthe state of the law on this point in Saskatchewan as follows: [115]

Section 50 of The Evidence Act, SS 2006, c E-11.2, governs the admissibility of business records in civil proceedings inSaskatchewan. It reads as follows: 50(1) Any record made of any act, transaction, occurrence or event is admissible in any proceeding as evidence of the act, transaction,occurrence or event if: (

a) it was made in the usual and ordinary course of a business; and (

b) it was in the usual and ordinary course of the business to make the record at the time of the act, transaction, occurrence or event orwithin a reasonable time after the act, transaction, occurrence or event.

(2) The circumstances of the making of a record mentioned in subsection (1), including the time of making the record in relation to thetime of the act, transaction, occurrence or event and lack of personal knowledge by the maker, may be shown to affect its weight, butthose circumstances do not affect its admissibility. [116] Business records are a statutory exception to the hearsay rule. Once a record is admissible on that basis, the question of whatweight is to be assigned to the hearsay portions of the evidence is a matter for the trier of fact, even if it is double or triple hearsay.

Asthis Court noted in B.L. [2012 SKCA 38, [2012] 12 WWR 468]: [29] … Business records are considered inherently reliable because they are created in a context where they are systematically stored,produced and relied on. They are made in circumstances of regularity and continuity which produce habits of precision. Therefore,provided the record complies with the statutory prerequisites, it is sufficiently credible and trustworthy to be admissible and it matterslittle whether the record contains double or triple hearsay. This is so especially in the light of a specific provision like s. 50(2) of TheEvidence Act.

This subsection signals that the resolution of the issue of what to make of “hearsay” in the record, whether double or thirdparty variety, is left to weight and the discretion of the judge and not admissibility. [117] Put another way, it is open to a trial judge to admit records but to give little or no weight to hearsay found in the admissible record(B.L. at para 32).

It is also within the discretion of a trial judge to admit “even those portions of the record which are inadmissible asbusiness records, for the limited purpose of narrative or background” or to edit or delete “parts which do not meet the requirements of ss.50 - 52 of The Evidence Act” (B.L. at paras 33-34). … [119] As for the Protection Assessment Report, the appellants also took no issue before the variation judge with its admissibility anddid not seek to limit the purpose for which any of its contents – or Ms. Baier’s evidence – could be admitted.

That said, I would agreewith the appellants so far as they argue that the Protection Assessment Report was not admissible for the purpose of proving that V.P.had committed recent violent acts. Section 50(1)(

b) of The Evidence Act requires that, before a record can be admitted to prove

an act,transaction, occurrence or event, it be shown that it was in the “usual and ordinary course of the business to make the record at the timeof the act, transaction, occurrence or event”, or to do so within a reasonable time afterward. This had not been shown on the record. I alsonote that the document and Ms. Baier’s testimony were replete with other hearsay. In particular, Ms. Baier said various things about Mr.Nippi’s observations and opinions and also made reference to incidents of violence involving V.P., as they were described by other

individuals. [120] While it is fair to say the rules of evidence can be somewhat relaxed in family law and child protection proceedings to ensure that all relevant evidence pertaining to children is before the court, that does not mean the rules of evidence have no application. All evidence must still meet the tests of relevance and reliability (see: S.V., Re , 2002 SKQB 499 , 228 Sask R 161 ).

Otherwise inadmissible hearsay evidence should not be relied upon for the truth of its content in determining crucial issues in child protection hearings but is admissible to complete the narrative or to put things in context ( DCP v C.P. & T.P. , 2014 PECA 18 at para 48 ).

Contextual information that is confined to primary sources of information, or records made in trustworthy circumstances is entitled to weight in the decision-making process ( J.B., Re , 2013 SKQB 272 ). … [ 44 ] With the above considerations in mind, including the agreement of the parties, I am prepared to admit the assessor’s report and contact notes and accept the following information contained in those reports and notes for the truth of same: (

a) information on when and by whom reports to the Ministry were made; (

b) actions taken by the Ministry as a result of the reports being made; (

c) observations made respecting the mother, the father and his partner, except where that information is contradicted by sworn evidence; and (

d) observations made respecting the children, except where that information is contradicted by sworn evidence. [ 45 ] I am not prepared to give weight to the recommendations contained in the assessment report or hearsay contained in the assessor’s report or contact notes, including information provided by educators and/or counsellors respecting concerning conduct by the father and his partner.

Likewise, with respect to the sworn affidavits, I am not prepared to give any weight to hearsay statements or controverted allegations. [ 46 ] With these evidentiary parameters in mind, I now turn to my determination of the legal issues. The Issues [ 47 ] The issues in dispute are: 1. Has there been a material change in circumstances since the parenting order was granted on March 17, 2020? 2. If so, what parenting arrangement is in the best interests of the children? 3.

If the court is unable to make a fair and just final determination in chambers, what interim order is in the best interests of the children pending agreement or further court order? Analysis 1. Has there been a material change in circumstances since the parenting order was granted on March 17, 2020? [ 48 ] The burden of persuasion lies upon the mother.

Her counsel argues that the material change threshold is amply met by the cumulation of concerning changes since the operative parenting order was granted in 2020, including an escalation in unsubstantiated reports of abuse being made against her by the father and his partner, conduct by the father and his partner that undermines the children’s relationship with the mother, the father’s unwillingness to engage directly in the co-parenting relationship and the negative impact that all of this behaviour is having on the children. [ 49 ] While she concedes that there was conflict between the parties prior to the 2020 order, including unsubstantiated reports being made to the Ministry, she says that it was not reasonably foreseeable that after she consented to the relief the father was seeking from the start - being shared parenting and the cessation of child support – the reports would increase in frequency and severity, nor that the father and his partner would double down in their efforts to undermine her relationship with the children.

As stated, she also points to the impact the chronic reports are having on the children – something that was not evident when the operative parenting order was made. [ 50 ] The father’s position is more fluid. First and foremost, he argues that the admissible and uncontroverted evidence does not align with the mother’s narrative, nor does it support a finding that there has been a material change in circumstances.

In that regard, he says that the parties were mired in conflict and allegations of abuse at the time they consented to the shared parenting order in 2020 - a sad state that, predictably, has continued. [ 51 ] Furthermore, while the father does not deny that he and his partner made a number of reports to the Ministry and police since the 2020 parenting order, he does not concede that these reports were motivated by a desire to alienate the children or undermine their relationship with the mother.

To the contrary, he deposes that the reports arose out of a sincere concern for the children, so much so that until a few months ago, he believed that the 2020 order should be varied to require that the mother’s parenting time be supervised. He also points to the fact that other professionals advanced reports based upon disclosures made by the children during that time period. [ 52 ] On the other hand, the father now claims that the receipt of the assessor’s report invoked a “road to Damascus” experience for him.

He now appreciates and understands that repeated reports to the Ministry and police are harmful for the children and is prepared to unequivocally accept the findings of the Ministry workers and police in this regard. Moreover, the father deposes that he is prepared to recommit to an active and respectful co-parenting relationship with the mother. [ 53 ] Either way, the father argues that there has been no material change in circumstances and asks that the mother’s

application be dismissed with costs. [54] As a starting point, there is little debate that conflict and alienating behaviour can constitute a material change incircumstances. In T.C. v A.E., the court of appeal confirmed that the risk of a child becoming alienated, with its consequent impact onthe child, could amount to a material change in circumstances necessitating a variation.

Tholl J.A., writing for the majority of the court,summarized the jurisprudence as follows: [81] While this Court has not previously addressed this precise issue, several cases from the Saskatchewan Court of Queen’s Benchhave considered it: see, for example, K.J.B.S. v S.G.S., 2018 SKQB 194; J.J.B. v S.J.B., 2019 SKQB 172, 27 RFL (8th) 129; Planchot vPlanchot, 2009 SKQB 396; Mathieson v Mathieson, 2005 SKQB 441, 272 Sask R 66; and Smith v Smith (1997), (SK KB), 160 Sask R 161 [Smith].

Although the applicants in these cases were often not successful in establishing that the requiredchange had occurred, all of them proceeded on the premise that alienating parental behaviour could form the basis for finding a materialchange in circumstances sufficient to permit a variation of an existing order or judgment. [82] Similarly, in other provinces, alienating parental behaviour has been held to be the basis for finding a material change incircumstances: see, for example, Lopez v Dotzko, 2011 ONSC 6778; J.D. v Y.P., 2011 BCSC 1237; Lower v Stasiuk, 2010 BCSC 1081,aff’d 2013 BCCA 389, leave to appeal to SCC refused, [2014] 2 SCR viii; Caparelli v Caparelli (2009), 80 RFL (6th) 446; T.S. v.

A.V.T.,2008 ABQB 185, 10 Alta LR (6th) 387; and Zinck v Fraser, 2006 NSCA 14, 22 RFL (6th) 334. [83] Given the significant impact on a child’s best interests from having strong, active, positive relationships with each of theirparents, behaviour by one parent that seeks to minimize, undermine or destroy that relationship can represent a material change inrelation to the condition, needs or circumstances of the child and the ability of the parents to meet the needs of the child. It can be acompelling reason to vary an existing interim order.

As with many issues that require determination regarding parenting, a finding thatalienating behaviour is sufficient to establish the required change is heavily dependent on the situation being examined. Such adetermination cannot be lightly made when considering a variation application in Chambers.

However, it is my view that, in appropriatecircumstances, alienating behaviour can be sufficient to constitute a material change in circumstances and a compelling reason to grant avariation of an existing interim order. [55] Ryan-Froslie J.A., dissenting in part, agreed that conflict can constitute a material change but emphasized thatcaution be taken where allegations of this nature are being advanced in the context of a variation application: [100] There is no doubt that alienation, like ongoing and escalating conflict, may constitute a material change of circumstances thatjustifies variation.

However, attempts to alienate a child are anything but out of the ordinary. They are frequently alleged and occur withdistressing frequency. The question of whether they are sufficient to constitute a material change turns on the circumstances. Importantfactors may include, but are not limited to, the following: (

a) What is the nature of the alienating behaviour? (

b) Has the inappropriate conduct been persistent? (

c) How long has the inappropriate conduct continued? (

d) How vulnerable is the child? (

e) Has the party alleging alienation asked that the behaviour stop and, if so, how has the other parent responded? (

f) Is there compelling evidence that a change in the existing order is necessary, or is there an adequate remedy within the context of theexisting order, such as increased parenting time or counselling? [101] More generally, while it is never acceptable for a parent to attempt to alienate a child from another parent, allegations ofalienation – and indeed, proven conduct which could result in alienation – must be understood in the broader context of the dispute.Evidence of physical and emotional abuse and harassment, for example, may assist the judge in understanding what is happening and incrafting an appropriate response to the problem short of a fundamental change in the parenting regime.

Children may be led to tell bothparents what they want to hear or may do so of their own accord in an attempt to maintain their relationships with their parents despitethe dislocation of their world. [102] Further, evidence that a former partner has been guilty of misconduct must be assessed with care. Parents are heavily invested inthe outcome, often not only to gain the advantage in the dispute, but to explain the failure of their relationship or to exact revenge. Quiteapart from the possibility of purposeful exaggeration, perception and memory can be distorted, and stories repeated can come to bebelieved.

The same issues can arise with the family members and friends who are members of one camp or the other. It must be kept inmind that the evidence presented at a Chambers hearing is often incomplete, is often in the words of counsel and, importantly, cannot betested as it would at trial. [103] What, then, is sufficient to prove a material change? If the bar is set too low, the disgruntled parent will be tempted to haveanother go, increasing cost and conflict.

The requirement for a material change recognizes the importance of resolving custody disputes– to the extent finality is possible where parenting arrangements are concerned – and of the crucial stability that can result from havingan issue adjudicated. It also recognizes the human reality that parenting disputes involve high stakes and high emotions, and that it cantake time for those involved to find an angle of repose. Parents can, and too often do, behave badly in these circumstances.

To undulyweaken the meaning of the phrase “material change”, whether in the name of judicial discretion or otherwise, ignores these realities.[Emphasis in original] [56] Ryan-Froslie J.A. underscored family-centered reasons for setting a high threshold in high-conflict parentingmatters.

[ 57 ] This approach is consistent with the oft-cited policy reasons accepted by the Court of Appeal in Wiegers , where it held as follows: [24] The policy reasons behind the threshold requirement for reopening a custody and access order were helpfully described by Baynton J. in McLeod v. Impey , 2003 SKQB 167 , … and Popescul J. in Scott v. Higgs , 2007 SKQB 231 …. Popescul J. adopted this analysis expressed by Baynton J.: 23 …In my respectful view, trial judges too often lower the bar of the threshold that an applicant must meet before they enter into a consideration of the application on its merits.

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

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

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

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

While the reviewing judge may, of course, take into account that a child’s needs may change as he or she matures, it is necessary to go further to determine whether and to what extent those changes have, in the case before the reviewing judge, made the original order inadequate. [ 58 ] In this situation, the mother alleges that a number of cumulative changes and circumstances demonstrated by the evidence constitute a material change in circumstances. I agree. a.

Ongoing unsubstantiated reports that the mother is abusing the children: [ 59 ] Approximately seven reports were made to the Ministry prior to the March 17, 2020, order by the father and his partner. These reports were either immediately “screened out” or found to be unsubstantiated after an investigation. The mother says that when the father applied for shared parenting in the spring of 2020, she was self-represented and desperate to end the dispute.

She says she believed that if she agreed to what the father had always been seeking, being shared parenting and a cessation of support, the conflict and false reports would end. [ 60 ] That did not happen. Within weeks after the 2020 order was granted, a report alleging similar concerns was made. Over the next year, a number of additional reports were advanced: some from the father, some from his partner and some from other adults and professionals to whom they, or the boys, made disclosures. [ 61 ] In 2021, the reports also began to include allegations of a sexual nature.

This resulted in additional investigations and police interviews involving the children. The children were also subjected to medical examinations by a maltreatment specialist. [ 62 ] The parenting assessor retained by the parties in the fall of 2021 was provided with access to the Ministry’s file for the purpose of her assessment. In her report, she details 34 instances of Ministry involvement with one or more members of this family over the past seven years.

She also spoke to the police sergeant who interviewed the children on numerous occasions who advised the assessor that the children had been interviewed more than any other children and knew the police members by name. The assessor reports that the stepmother also sent “70-75 emails to the police”. On all occasions, the police reports indicate that nothing criminal was disclosed by the children and no charges were laid. [ 63 ] The mother has consistently denied these allegations. In May 2021, she underwent a 5-hour polygraph test in an attempt to allay concerns and put a stop to unfounded reports.

She passed that test and appended the questions and results to her affidavit. [ 64 ] It was not reasonably foreseeable that unfounded abuse reports would continue to be advanced by the father and his partner after the father applied for, and obtained, a shared parenting order. It was also not reasonably foreseeable that the allegations would escalate to include abuse of a sexual nature. b.

The father and his partner engaging in emotional abuse of the children: [ 65 ] In April 2021, approximately a year after the consent order was granted, the Ministry turned its attention to the father and his partner with concerns that they may be subjecting the children to emotional abuse arising from repeated unsubstantiated reports being made and their persistent refusal to accept the findings of the Ministry and the police.

These concerns were deemed to be substantiated by the Ministry leading to case planning involving both parents and the father’s partner. [ 66 ] Sadly, this intervention appeared to have little substantive impact on the father and his partner. In August 2021, another report was advanced without any attempt to resolve concerns with the mother. Again, the children were interviewed by Ministry workers and the police. [ 67 ] Even after this court application was commenced, the father continued to view Ministry workers and the police

investigator as neither credible nor competent. For instance, he advised the parenting assessor in December 2021 that the Ministry was “a mess” and “a joke”. He told the assessor that he believed the children were being physically and sexually abused by the mother and that the best outcome would be sole parenting and primary care of the children with him, along with an order that the mother’s parenting time be supervised. [ 68 ] He now claims that his stance has been radically reformed, that he has seen the error of his ways and is prepared to accept the findings of the Ministry and police.

Only time will tell if this represents a sincere change in perspective. c. A breakdown in communication and the co-parenting relationship: [ 69 ] The mother alleges that after the 2020 order was granted, the father took a step back from active co-parenting. She says that he stopped attending parenting exchanges and refused to engage in any direct communication with her on parenting related matters, allowing his partner to assume a primary role. The mother says that she does not even have the father’s address or phone number and does not know if or where he is employed.

The father does not wholly deny this but says that it is exaggerated. He also alleges that the mother causes conflict at exchanges and communicates ineffectively, requiring a buffer in direct interactions. [ 70 ] The mother also alleges conflict in decision-making, particularly around K.’s ADHD treatment. She deposes that the father was unwilling to work with her to address K.’s ADHD diagnosis – refusing to attend a joint meeting with the pediatrician and resisting the treatment prescribed by a doctor.

It is not disputed that although K. was diagnosed with ADHD in September 2018, he advised the assessor more than three years later that he was waiting for a “proper diagnosis” and only administers the medication for a school event or when K. asks for it. [ 71 ] The mother also alleges that the children have demonstrated concerning behaviour at the school but, rather than work on a collaborative plan with the school, the father and his partner have ratcheted up conflict. The bulk of the evidence respecting problematic interactions with educators is hearsay and is contradicted by the father’s sworn materials.

That said, it is noteworthy that the assessor’s report indicates the father believes K.’s educators lack credibility. [ 72 ] Both parents allege that the other has failed to keep them informed about issues involving the children.

The mother says that the father did not inform her about specific medical issues and concerns, and the father says that he did not know the children were in a before-school program until he received the mother’s affidavit. [ 73 ] Despite the controverted and inadmissible evidence on this point, it is clear that the co-parenting relationship has deteriorated and that the parents are “modelling an unhealthy and toxic way to deal with conflict in relationships”: assessor’s report, page 38. This could not have been contemplated when the shared parenting order was granted in 2020. d.

A deterioration in the mother-child relationship: [ 74 ] Sadly, it is not disputed that the children’s relationship with the mother is becoming strained. She says that they commonly refer to her as “[T.S.]” or “babysitter” for the first few days after they come into her care from the father’s home and view any form of discipline as abuse. [ 75 ] The father says that the boys say that they do not want to spend time with the mother. He also says that they have told him, his partner and others that she is abusive towards them.

This is confirmed by the assessor’s observations. [ 76 ] The assessor reports that K. (age 8 at the time he was interviewed) described the mother as “a horrible person” and “mean”. He told the assessor that she “yells and screams, hits us and slaps us”. He also said that he wants to live at the father’s home. [ 77 ] The assessor also observed that K. prefaced his negative comments about the mother with comments like: “the things I’m gonna tell you mean I might be able to live at my dad’s”. He also told the assessor that his stepmother said his mom is a “bad person” and that he should not listen to her.

She also reports that at the same time as calling the mother “mean”, K. said that he likes being at the mother’s home and enjoys movie nights with her. [ 78 ] M. was only four years of age at the time he was interviewed by the assessor. The assessor observed that as soon as M. sat down during their first interview, he blurted out that the father told him to tell her that the mother drags him back and forth and slapped him. He also told the assessor that the stepmother wanted him to tell her that the mother is “not nice, slapping me and scratching me”.

He talked about what he was “supposed” to say – including that he loves his dad and stepmother. [ 79 ] The assessor noted that M.’s demeanor and comments were very different during the interview when he was brought in by the mother, when he was generally positive in his comments about her. [ 80 ] The assessor reported that both children repeated the same allegation about the mother at the beginning of their interview following time spent with the father but did not provide any context or background to the allegation nor elaborate when asked about it.

She also noted that M.’s demeanor was happy and chatty, and that he seemed to be enjoying his visit with her when making these disclosures – rather than acting upset or worried. [ 81 ] It also appears that the children referred to the mother as “[T.S.]” during the interviews. The report also indicates that both the father and stepmother told her that the children chose to refer to the stepmother as “mom”, with the father criticizing the mother for being opposed to it. The stepmother also advised the assessor that she feels like a mother to the children. e.

The children are acting out: [ 82 ] As stated, the children are making repetitive unfounded accusations against the mother to numerous sources. This alone is deeply concerning.

[83] In addition, both children are demonstrating problematic behaviour at school. While I am not prepared to admitthe allegations respecting concerning interactions between the father, his partner and the school on the basis of hearsay, I am prepared toadmit information in the assessor’s report respecting the educators’ observations of the children at school. [84] In that regard, the educators raised a number of concerns with respect to K.’s behaviour, using terms likephysical, defiant, disruptive and angry.

They advised the assessor that K. can be mean to other children, rude to teachers and strugglessocially with his peers. They also advised the assessor that he has attention issues and shows very little accountability. The educators alsodescribed one incident when M. punched another child at school. [85] During the assessment, K. told the assessor, “people try to get into my head, [T.S.] says my dad lies to me, mydad says [T.S.] lies to me, [R.S.] says the same thing as my dad, [T.S.] told me she doesn’t like [R.S.] and [R.S.] is not a nice person.

It’sconfusing.” He is clearly impacted by the parental conflict. [86] K. is meeting regularly with a school counsellor due to angry outbursts at school. In addition, he has beenreferred to a child psychologist, and both children started “trauma counselling” with Catholic Family Services.

Summary [87] I am satisfied that there has been a material change in circumstances since the 2020 order was granted. While Iappreciate that caution must be exercised where there is pre-existing conflict, I find the father’s argument that the present situation wasforeseeable and therefore cannot constitute a material change, untenable. [88] The father did not apply to suspend the mother’s parenting time in the spring of 2020 as a result of the children’sdisclosures of abuse – he sought shared parenting.

If it was foreseeable in his mind that he would continue to have legitimate concernsthat the mother was abusing the boys physically and sexually, why would he seek a shared parenting order? [89] Alternatively, if it were foreseeable to the mother that the father was going to continue to advance unfoundedreports of escalating abuse, requiring the ongoing involvement of the Ministry and multiple investigations by the police, why would sheconsent to a shared parenting order? [90] Moreover, if either of those scenarios were part of the evidentiary landscape presented to a judge in support of aconsent shared parenting order, it is reasonable to expect the judge to have grave reservations that the terms of the consent order were inthe children’s best interests.

In this regard, I note that there are no terms or special provisions in the 2020 order that attempt to abate ormanage these concerns or support the father’s contention that ongoing conflict and unsubstantiated reports were foreseeable or within thecontemplation of the parties when the order was made. [91] Having found that there has been a material change in circumstances since the 2020 order was granted, the courtmust move to the second stage of the analysis and determine what parenting arrangement is now in the children’s best interests: CLA,s 10(1). 2.

What parenting arrangement is in the best interests of the children? [92] An order is not in the best interests of a child “unless it protects, to the greatest extent possible, the child’sphysical, psychological and emotional safety, security and well-being”: CLA, s 10(2).

Moreover, children not only have the right to beprotected from harm – they also have the right to the best possible arrangement that is available to them in all of the circumstancespresented by the evidence: Young v Young, (SCC), [1993] 4 SCR 3 at 100. [93] While s. 10(3) of the CLA identifies a number of factors the court must consider when making a determinationof a child’s best interests, these factors are not intended to be exhaustive nor treated like a rote checklist.

Instead, the factors assist thecourt in a tailored analysis of the evidence, viewed through a child-centred lens, with full discretion to determine the requisite focus andweight to accord to each factor depending on the unique circumstances presented by the evidence: R.C.S. v R.D.L., 2022 SKCA 52. [94] In this case, the mother argues that the current parenting arrangement is failing to protect the children’spsychological and emotional safety and well-being. [95] At the time of the assessment, the mother told the assessor that what she ultimately wants is to co-parent withthe father, make decisions together and communicate effectively.

That position has changed. At this time, the mother says that a hardreset is required to provide the children with an opportunity to reconnect with her, away from the negative influence of the father and hispartner. With this in mind, she seeks sole decision-making authority, primary care and an order that any contact between the father andchildren be suspended or supervised. [96] The father takes great exception with this suggestion and criticizes the mother for seeking such a radical changeto the current parenting arrangement.

He says it is the mother who remains entrenched in conflict and refusing to move forward. Insupport of this contention, he points to the fact that the Ministry closed its file respecting concerns that the father and his partner wereengaging in emotional abuse. [97] He also accuses the mother of “cherry picking” information from the assessor’s report while ignoring theassessor’s overall recommendation that shared parenting continue.

The father says that he stands ready to accept the recommendations ofthe assessor or, alternatively, engage in either family counselling or high conflict mediation. [98] The concerns raised and the positions being advanced are extraordinary. The children make allegations of abuselike most children speak of their day at the playground. They call their mother by her first name. They call her “babysitter”. They areacting out at school. K. has no friends. It is arguable that the current parenting arrangement may be failing to meet the children’spsychological and emotional safety, security and well-being.

[99] What is far less clear is what is underlying this behaviour. Do the children feel unsafe? Do one or both childrenhave complex needs that are not being met? Are they being alienated or coached – intentionally or otherwise, to meet one or more oftheir parents’ unmet needs? Not only is much of the evidence controverted, there are gaps where evidence has either been omitted ordeemed inadmissible for the purposes of a final hearing in chambers. Without more, I am not prepared to render a new and finalparenting order in chambers.

The behaviour is too unusual and the evidence too contentious to confidently determine a parentingarrangement that meets their best interests on the basis of affidavit evidence alone. [100] At the hearing, counsel were asked to address the possibility that the court would find that there was insufficientevidence to make a final determination in chambers. Counsel for the mother asked that the court direct a viva voce hearing to allow forcross-examination on affidavits and, in the meantime, grant an interim order placing the children in the mother’s sole care.

Counsel forthe father asked that the court stay the application and direct the parties to participate in the High Conflict Mediation Program.

Failingsuccess at mediation, the father asked that the matter be directed back to the hearing judge to determine the next step in the proceeding. [101] While the court’s ability to determine the issues would be enhanced by cross-examination of the affiants on theiraffidavits, in my view this type of abridged hearing would not bring forth the evidence required for the court to make a confidentdetermination of the parenting arrangement that would best meet the needs of these children.

The determination of the parentingarrangement that will best meet the needs of the children is directed to an expedited pre-trial conference and, if necessary, a trial. [102] In the meantime, I must determine what interim parenting order is appropriate. 3. What interim order is in the best interests of the children pending agreement or further court order? [103] The mother argues that the concerning circumstances which constitute a material change, also require animmediate variation of primary care and decision-making authority.

The father does not agree and opposes any significant change to thecare arrangement on an interim basis. In support of his position, he points to the findings of the assessor that suggest any abrupt changemay have a distressing impact on the children. Instead, the father proposes that the court “tweak” the 2020 order with a view to gettingthe family back on track.

In so doing, he asks the court to accept that the insight he experienced after reading the assessor’s report issincere and that any problematic pre-assessment behaviour and attitudes have been resolved. [104] It has long been held and accepted in this province that interim parenting orders should endeavour to preservestability for children absent compelling evidence that necessitates a change.

The governing jurisprudence was recently summarized bythe Court of Appeal in Seidel, as follows: [10] All judicial decisions regarding the parenting of a child are made with an exclusive eye to the best interests of that child (s. 16(1)of the Divorce Act, RSC 1985, c 3 (2d Supp) [Divorce Act]; and s. 10(1) of The Children’s Law Act, 2020, SS 2020, c 2). When it comesto requests to change custody or primary residence on an interim basis, decisions are often made based on an incomplete record and thesechanges themselves may be disrupted when a final resolution is achieved.

In Guenther v Guenther (1999), (SK KB),181 Sask R 83 at para 5 (QB) [Guenther], Laing J. (as he then was) recognized the existence of “consistent case law which states thecourts should not vary interim custody arrangements whether legal or de facto in the absence of evidence that the child or children are insome way at risk, or other compelling reason”. [11] Guenther has been frequently cited in the Court of Queen’s Bench and in this Court.

It has been described by Herauf J.A. as the“seminal case with regard to changes in interim custody arrangements” (Napper-Whiting v Whiting, 2014 SKCA 33 at para 3, 433Sask R 235, emphasis in original).

Guenther was further reiterated and explained by Ryan-Froslie J.A. in Gebert v Wilson, 2015 SKCA139, 467 Sask R 315 [Gebert], as follows: [11] First, the principle expressed in Guenther does not displace the legislative requirement enunciated in both the Divorce Act, RSC1985, c 3 and The Children’s Law Act, 1997, SS 1997, c C-8.2 that in making decisions with respect to parenting arrangements, theparamount consideration is the best interests of the child. In our view, the principle itself is rooted in that paramount consideration.

Itrecognizes that changes in custody and primary residence have a profound effect on children – altering their day to day homeenvironment, their routine, their contact with important people in their lives including caregivers, siblings, extended family and friendsand may result in a change of school and activities – and thus, generally should not occur on an interim or temporary basis as a finalresolution may result in such a change being reversed with all of the same attendant disruptions to the child. [12] Second, the principle applies generally to changes in custody and primary residence, as opposed to changes in access.

InGuenther, while Laing J. refused to change the child’s custody on an interim basis in the face of the parent’s written agreement, he didincrease the mother’s parenting time with the child. Usually, changes in access will not have the same profound effect on a child aschanges in custody or primary residence. [13] Third, the principle recognizes that the status quo may be changed on an interim basis if there is a compelling reason to do so, orif the child is at risk. That is how this Court interpreted Guenther in the recent case of Napper-Whiting v Whiting, 2014 SKCA 33, 433Sask R 235.

That case involved the appeal of an interim order which changed primary residence of a child from the mother to the father.Herauf J.A. speaking for this Court quoted with approval para. 5 of Guenther, and then stated the following in reference to thatparagraph: [4] We wish to reiterate that this is the appropriate test for applications of this nature.

In this particular appeal we find that the Chambersjudge failed to find that the child was “in some way at risk, or other compelling reason….” [Emphasis added] In short, risk to the child is not the only reason for varying the status quo on an interim basis. [Emphasis in original] [105] While it is clear that courts should not significantly vary, on an interim basis, parenting arrangements unless theaffected children faced risk of harm or there were other compelling reasons, neither is there a presumption that the status quo parenting

arrangement must remain in place. The focus must always remain on the best interests of the children with a view to whether there may be less disruptive measures that can bridge the gap until a final resolution can be put in place. [ 106 ] The mother says that the time for “less disruptive measures” has passed.

However, the cases she cites in support of a radical change in parenting arrangements were made after a trial in situations where the trial judge found that no amount of therapeutic intervention or court direction could protect the children from becoming triangulated by an aligned parent who was unable to accept that the child’s relationship with the other parent was important and entitled to respect. That is not the case here. [ 107 ] In this instance, the father has said that he is prepared to modify his response to concerning disclosures made by the children and commit to co-parenting with the mother.

If the father’s change of course is sincere, this may serve as an opportunity to determine if the shared parenting arrangement the parties contemplated in 2019 could actually meet the best interests of the children. The court is also mindful that a ll reports to the Ministry have been determined and all files closed, including their concerns respecting the father and stepmother. [ 108 ] I am not prepared to make the radical change in the status quo parenting arrangement requested by the mother at this time – although that does not forestall the possibility that such a change might prove necessary in the future.

Order [ 109 ] There has been a material change in circumstances since the parenting order granted on March 17, 2020. The determination of the parenting arrangement that best meets the interests of the children is directed to an expedited pre-trial conference and, if necessary, to trial. The local registrar is directed to

schedule an expedited pre-trial conference in consultation with counsel. [ 110 ] In the intervening time, I order that the March 17, 2020, parenting order be varied on an interim basis as follows: 1. Joint decision-making shall continue with the following further directions and conditions: a. The parties shall directly engage with one another in timely and respectful communications respecting parental decision-making and the exchange of information regarding the children’s health, counselling, education, activities and general welfare. b.

Within the next 10 days, the parties shall begin using a parenting app to facilitate information sharing and communication. The mother may choose the parenting app. Unless agreed by both parties, the app shall only be used by the father and the mother. This does not intend to restrict communication between the parties to the parenting app. The parties are encouraged to engage in communication by phone and in person so long as it remains respectful and productive. c. The parties shall keep each other apprised of any health-related incidents immediately.

They shall also keep each other apprised of any health-related appointments for the children or special public events involving extracurricular activities, school or otherwise. d. The parties shall provide each other with their current contact information, including the address where they exercise their parenting time. The parties shall provide each other with notice of a change of address at least 30 days in advance of same. 2. Interim parenting conditions: a.

Both parties shall be free to attend any appointments or activities involving the children, and the children shall be encouraged to interact with both parents at same. b. The parties shall be personally present at all parenting exchanges unless otherwise agreed upon in advance. c. The parties shall support and encourage the children’s relationship with the other parent. d. Neither party shall discuss this court proceeding with the children nor allow any such discussions to occur in their presence. e.

The parties shall refrain from making any derogatory comments about the other parent or the other parent’s extended family to the children or allow any such comments to be made in the children’s presence. f. The parties shall ensure that the children are not exposed to any conflict between them or between them and third parties. g. If the children make derogatory comments about the other parent, the parent is to remind the child that they are deeply loved by both of their parents.

The parents shall encourage the children to talk to their counsellor if they are upset or unhappy about anything that either parent has done or said. h. If the children raise allegations of an abusive nature, the parties shall raise same with the other parent in an effort to resolve the issue before proceeding with any formal report. i. The father shall ensure that the children refer to the mother as “mom” when speaking about her or to her. In the event that they refer to her by any other name, he shall remind them that she is their mother and that she is to be referred to as “mom”. j.

Similarly, the father shall encourage the children to refer to his partner by her first name or “stepmom”. In the event that they refer to her as “mom”, he shall gently correct them and remind them that she is their stepmother and that they should refer to her either by her first name or “stepmom”. k. He shall ensure that any third-party caregivers, including his partner, comply with these conditions. l. Both parents shall follow medical advice respecting treatment for K.’s ADHD, including the administration of medication as prescribed.

3. Counselling and assessment: a. K. and M. shall continue their individual counselling. A copy of the parenting assessor’s report and this decision shall be provided to their counsellor(s). b. Both parties advised the court that they are willing to participate in family counselling. Within 90 days, the parties shall jointly retain a counsellor for the purpose of developing respectful co-parenting boundaries and communication protocols. If they are unable to agree upon who that professional will be, either may refer the issue to me by contacting the local registrar.

A copy of the parenting assessor’s report and this decision shall be provided to that professional. The frequency of visits, whether they involve the children and, if so, whether they fall on the mother’s parenting time or the father’s parenting time, etc., shall be determined in consultation with the professional. Costs of all joint sessions shall be shared in the first instance. c. Both parties advised the court that they would undergo a psychological assessment if the court requested same.

They shall explore the availability and cost of a psychological testing being completed on each parent by the same professional and be prepared to speak to options respecting same at the pre-trial conference. 4. All other provisions of the March 17, 2020, order shall remain in full force and effect until further order or agreement. 5. Failure to comply with the provision of this interim order will allow either party to seek a review of the interim parenting arrangement.

In that event, either party may seek leave to ask the local registrar to convene a conference call with me to discuss scheduling a judicial case conference to discuss same. 6. The mother is entitled to costs of this application which I fix at $2,000.00, payable within 60 days. “G.V. Goebel” J. G.V. GOEBEL