D.C.I. PETITIONER - v. –, 2022 SKKB 265

KING’S BENCH FOR SASKATCHEWAN REDACTED VERSION Citation: 2022 SKKB 265 Date: 2022 12 05 Docket: DIV-SA-00514-2022 Judicial Centre: Saskatoon BETWEEN: D.C.I. PETITIONER - and – M.B.I. RESPONDENT Counsel: Curtis P. Clavelle for the petitioner Jane M. Basinski for the respondent ___________________________________________________________________________ JUDGMENT BARDAI J. December 5, 2022 ___________________________________________________________________________ Note: Pseudonyms have been used through this redacted version of the judgment.

Introduction [ 1 ] David of Visount, Saskatchewan and Maureen of Bruno, Saskatchewan, are the parents of Wendy, born [redacted], 2016 and Priscilla, born [redacted], 2018. [ 2 ] David, the father, applies for a parenting order with respect to the children who presently reside with the mother in Bruno. David presently has time with the children on alternate weekends, though this parenting time is not established pursuant to any order. David applies to have the children live with him in Viscount, where Wendy goes to kindergarten.

He suggests that Maureen have parenting time three of every four weekends, that there be joint decision-making, that he have interim possession of the family home and costs. [ 3 ] The mother, for her part, wants the kids to remain with her in Bruno approximately 47 kilometres from the school in Viscount. She wants to be able to register Wendy in school in Bruno and says this is what Wendy, the six-year-old, wants and is excited about. Maureen is presently homeschooling Priscilla. [ 4 ] Maureen applies to strike large portions of David’s reply affidavit.

[ 5 ] The material details allegations of family violence (in the form of alleged controlling behaviour and emotional abuse), parental alienation and withholding. There are also disputes over who was the primary parent of the children during the course of the relationship and whether the 47-kilometre distance between Bruno and Viscount amounts to a long commute or is rather a relocation. [ 6 ] David seeks relief unrelated to parenting, being exclusive interim possession of the family home. David’s support system, including his parents, are in Viscount while Maureen’s are in Bruno.

The result is that the request for exclusive possession of the family home does not appear to be hotly contested. The dispute between the parties is all about interim parenting. David’s Evidence [ 7 ] David’s evidence is that the parties began living together in 2013 and married in 2015. He farms with his father and brother and works as a heavy-duty mechanic. He was raised in the Viscount area and has spent most of his life there.

Maureen is a nurse and was raised near Bruno, Saskatchewan, though the parties lived outside Viscount for most of their relationship. [ 8 ] David says that parenting duties were equally shared while he and Maureen were together in the early years and that he attended appointments and fed the children, getting help from his parents when Maureen returned to work after her initial maternity leave with Wendy.

Maureen suffers from Lyme disease and medical conditions which, according to David, affected her ability to care for the girls and resulted in him becoming the primary parent when Maureen’s health began to deteriorate. [ 9 ] David says he handled most of the driving in terms of getting the girls to their activities and parented the children when they were sick, leaving work in Meacham early to help with the girls, though he ultimately quit his job at Dan’s Truck and Trailer so that he could be nearer to home and provide more support. [ 10 ] The family moved closer to David’s parents to get additional help.

He says that when Maureen became ill, she would wake up late and take afternoon naps and so the household tasks and parenting fell to him. His material attaches a blog authored by Maureen in which she talks about how David helped pull her through a difficult time in her life and how he provided significant support to her as she dealt with a number of medical issues. [ 11 ] The parties separated in July of 2022 and the children initially went with Maureen to Maureen’s parents’ home in Bruno. The period after separation was difficult and inconsistent.

David says Maureen tried to change Wendy’s school from Viscount to Bruno. Ultimately, Wendy was enrolled in kindergarten in Viscount. He says that Maureen has withheld the children from him and that there have been considerable difficulties in communications between the parties. David says the constant commute back and forth to Bruno is difficult for the girls. [ 12 ] David describes Wendy as wise beyond her years, a child who loves to learn, craft, play with toys, cook and watch videos. She enjoys dance, hockey and sleepovers. Wendy has some medical challenges.

She has tested positive for celiac disease, has an irregular heartbeat and has had an acute episode of hypothyroidism. She also suffers from anxiety. [ 13 ] Priscilla, meanwhile, is a happy-go-lucky four-year-old. Priscilla likes playing in the shop with tools, does not mind getting dirty and, like her sister, enjoys baking, playdates, hockey and sleepovers. Medically, Priscilla suffers from eczema and Ehlers-Danlos syndrome. [ 14 ] The girls are very close to one another.

David is concerned that the children are being exposed to conflict and that the separation is having a particularly pronounced effect on Wendy. Maureen’s Evidence [ 15 ] Maureen’s evidence is that she and David were married in Bruno. She says they moved to Viscount to allow David to have family time and spend more time at home as he was “rarely home”. She describes Wendy as creative. Wendy loves crafting and adores dance. She attends school in Viscount and her favorite subject is math. [ 16 ] Priscilla is confident and witty. Priscilla loves sensory play, dancing, Barbies and her Moana blanket.

Priscilla is currently being home-schooled. [ 17 ] Maureen says that while the parties were together she was the one who made the girls’ breakfast and prepared their lunches. When Wendy was born with jaundice, Maureen was the parent who cared for her throughout. Maureen also took a maternity leave when Priscilla was born. Priscilla has particularly sensitive skin and Maureen says she was the one who has dealt with Priscilla’s skin issues.

Maureen says she is the one who has attended to the children’s medical needs while David was working full time and was rarely home. [ 18 ] Maureen does acknowledge that Tamara (David’s mother) cared for Wendy one to two nights a week when she returned to work after maternity leave. Since Priscilla was born, Maureen has been home caring for the girls. David works odd hours and is in the shop often till late into the night (between 1:00 a.m. to 4:00 a.m.). [ 19 ] In terms of her health, Maureen suffered from extreme postpartum depression and anxiety. She relied on the support of her parents during this period.

In 2018 she was diagnosed with postpartum thyroiditis. During this period, David would take the children to his parents, leaving her home alone. Maureen’s health deteriorated and she went to the Mazankowski Heart Institute in Alberta, accompanied by Tamara, as she was unable to contact her family. In February 2022, Maureen shaved her head as she did not feel capable of caring for her hair and needed to devote her energy to the girls. She was admitted to hospital on May 12, 2022.

To deal with issues of severe pain, Maureen took pain medications from her purse and accidentally overdosed. [ 20 ] Maureen acknowledges going through a period where she felt her life was not worth living, though upon getting support from her mother, she was able to see marked improvement in her mental health. Maureen suffers from depression and says she was being isolated from her parental supports while she was with David. She says constant comments from David’s family left her

feeling as though she had no self-worth. Since separating, she has gotten help and her mental health and physical health have both improved. [ 21 ] Maureen describes David’s family as being hostile and unsupportive. She lists a number of examples of behaviour, including yelling, use of degrading comments, describing her as useless, taking the girls in their car without car seats, spanking Priscilla and generally disrespectful behaviour. She says that by contrast her family have been supportive.

Maureen has been attending counselling since 2018. [ 22 ] In terms of the girls’ schooling, Maureen has been the one to attend interviews. She says that Wendy wants to go to school in Bruno and is anxious about attending in Viscount. [ 23 ] In terms of recent events, Maureen says that David leaves the girls in the care of someone who is not suitable, that David has encouraged the girls to hang up on her, that he has installed security cameras at the family home, that he has not dealt with safety issues in the home and that he has only spent sporadic time with the girls since September.

She raises concerns about the care David provides when the girls are with him, pointing to a delay in getting Wendy treated for an ear infection. [ 24 ] Maureen takes significant issue with David’s evidence, his role in childcare, his description of her medical condition and the material filed in support of his application. [ 25 ] Finally, Maureen says that David has been transferring money out of their accounts leaving little for her and the girls. [ 26 ] In addition to the affidavit of Maureen, there is an affidavit by Maureen’s friend who talks about taking Maureen to medical appointments, the stress caused by David’s family, the type of mother Maureen is, and that the girls were agitated around David. [ 27 ] Finally, there is the affidavit of Cathy, Maureen’s mother.

Cathy says that in the time that she was around Maureen, after Wendy’s birth and into 2018, she “ never saw David help care for the girls in any way…”. Cathy describes a difficult relationship with David and how she was isolated from her daughter. Cathy describes the childcare support she has provided to Maureen and her grandkids and the support provided while Maureen was in hospital. Cathy has spent time with Wendy and Priscilla each month since September 2018. Reply and Supplementary Evidence [ 28 ] In reply, an affidavit has been filed by David’s mother, Tamara.

Tamara takes considerable issue with Maureen’s evidence. She details the support provided to Maureen, denies generally speaking negatively about Maureen, though acknowledges saying some hurtful words which she regrets. Tamara puts many of the facts asserted to by Maureen in issue and says she is shocked by the way her involvement over the years has been downplayed. [ 29 ] Next, there is a lengthy late reply from David which I permitted to be filed. He reiterates his role in parenting the girls and says he learned for the first time in Maureen’s affidavit that Priscilla is being homeschooled.

Priscilla previously attended pre- school in Viscount. David denies Maureen’s characterization of his role overall in parenting and suggests the relationship between Maureen and her own mother, Cathy, has at times been tense, such that Maureen has isolated herself from her mother. [ 30 ] In particular, David takes issue with the suggestion that when the girls are in his care, it is his mother, Tamara, who is their primary care provider.

David goes paragraph-by-paragraph through Maureen’s affidavit and much of his evidence is the subject of the notice of objection. [ 31 ] Finally, in a supplementary affidavit from Maureen, she talks about recently testing positive for COVID-19 and that David did not keep the girls while she was sick or provide appropriate care to the girls during this period. Objection Application [ 32 ] Before addressing the substance of David’s application, a preliminary issue has been raised by Maureen.

She objects to material filed in David’s reply affidavit on the basis that it is repetitive, amounts to hearsay, is scandalous, could have been raised in the first instance and is irrelevant. [ 33 ] The material filed in the context of this application is endemic of the types of affidavits now being filed as a matter of course in proceedings brought before the Court, especially in the case of family proceedings. [ 34 ] The affidavits and accompanying exhibits filed in connection with this application are more easily measured by weight than by page count. The affidavits on file include: (

a) an initial affidavit from David – 29 pages/133 paragraphs (excluding exhibits); (

b) an affidavit from David’s mother, Tamara; (

c) an affidavit from Maureen – 32 pages/144 paragraphs (excluding exhibits); (

d) affidavits from Maureen’s friend, Sharon and Maureen’s mother, Cathy; (

e) a late-filed reply affidavit from David to the evidence filed by Maureen - 28 pages/122 paragraphs (excluding exhibits); and (

f) a late filed 12-paragraph supplementary affidavit from Maureen (raising new facts), which was filed so late in the day that David did not have a reasonable opportunity to respond, though no adjournment was sought.

[ 35 ] The approach on this case and on others coming before the Court appears to be to provide the Court with every single fact or detail of every negative interaction between the parties, no matter how trivial, without regard to the relief being sought. It is, in effect, a shotgun approach to affidavits. [ 36 ] I appreciate the concern that parties and counsel have in making sure the Court has a complete picture but when the Court is presented by the two parties with 411 paragraphs of evidence (excluding affidavits of non-parties and exhibits), the key evidence in that volume of material can get lost.

To be clear, this is not a criticism of these counsel as this appears to be a common issue in cases now coming before the Court. [ 37 ] There are, of course, times when lengthy affidavits are needed to provide the relevant evidence and context to the Court, but it is important when putting together an affidavit that counsel and/or the litigants take the time to consider exactly what evidence is relevant to the relief sought.

To that end, there appears to be two growing misconceptions which need to be dispelled. [ 38 ] First, the party that files the longer affidavit with more information is not necessarily the party that will succeed on the application. The question is not who can file the most material. [ 39 ] The second misconception is that the person that gets the last word, the last affidavit wins.

Again, that is just not the case. [ 40 ] The starting point when any application, including an objection application, is being contemplated, is Rules 1- 3(1) and 1-3(2) of The Queen’s Bench Rules , which state: Purpose and intention of these rules 1-3

(1) The purpose of these rules is to provide a means by which claims can be justly resolved in or by a court process in a timely and cost effective way.

(2) In particular, these rules are intended to be used: (

a) to identify the real issues in dispute; (

b) to facilitate the quickest means of resolving a claim at the least expense; (

c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as is practicable; (

d) to oblige the parties to communicate honestly, openly and in a timely way; and (

e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments. [ 41 ] In short, the first question that needs to get asked is whether the motion being considered is necessary to the identification of the real issues in dispute and will it facilitate the quickest means of resolving the dispute at the least expense?

If, for example, the purpose of the application is simply to make the other side “look bad” rather than further the determination or resolution of the matter, parties should pause and seriously reflect on whether such an application is appropriate.

The question must be asked each time, does the application help identify the real issues in dispute and further the case towards a timely and cost-effective resolution or not? [ 42 ] Once a determination has been made that a particular application is warranted – for example, in this case an initial parenting order – the applicant should next consider the legal test they will need to meet to get the relief they want. In the context of a parenting order, the issue turns on the best interests of the child and an assessment of certain statutory criteria.

The Court uses the evidence, applied to the statutory criteria to craft an order that protects a child’s physical, psychological and emotional safety, security and well-being.

In that assessment, the Court will consider, inter alia : • a child’s needs given their age, level of development and need for stability; • the strength of a child’s relationship with both parents and others who play an important role in the child’s life; • each parent’s willingness to support the child’s relationship with the other parent; • the history of care; • the child’s views (in cases where the kids are a little older); • the child’s heritage; • plans for the child’s care; • the ability and willingness of each parent to meet the needs of the child;

• the ability and willingness of each parent to communicate and cooperate with the other parent; • any family violence and its affect on the ability of a parent to care for a child and its impact on the ability of the parents tocooperate on issues affecting the child; and • civil or criminal matters pertaining to the child’s well-being and safety. [43] Past conduct is not to be considered unless it constitutes family violence or is relevant to the ability of a personto exercise decision-making responsibility or parenting time. [44] The criteria set out above are found in both s. 10 of The Children’s Law Act, 2020, SS 2020, c 2, and in s. 16 ofthe Divorce Act, RSC 1985, c 3 (2nd Supp). [45] What this means is that when preparing an application or an affidavit for a parenting order, evidence relevant tothese criteria should be included, but information and details that have nothing to do with the best interests of the child/children shouldbe omitted to the extent possible.

Leaving the irrelevant material out allows the Court and the parties to get to the root of a matter andfocus on what is important. It also ensures that the key points are not lost in a mountain of superfluous evidence. [46] Further, I would remind parties that in a parenting application, past conduct not relating to the best interests of achild is only to be considered in limited circumstances.

Including all that history when it can rarely be considered serves no purpose butto drive up costs to the parties and invite objections. [47] Parties would be well-advised to consider Rules 15-46(1) and (2), which state: Affidavit evidence 15-46(1) An affidavit must be confined to the statement of facts within the personal knowledge of the person signing the affidavit, exceptwhere this rule provides otherwise.

(2) An affidavit must not contain: (

a) argument; (

b) speculation; (

c) opinion; (

d) any matter that is scandalous; (

e) any matter that is irrelevant, that may delay the trial or make it difficult to have a fair trial, or that is unnecessary or an abuse of theCourt process. [48] In Dlouhy v Dlouhy (1995), (SK KB), 130 Sask R 285 at para 7 (QL) (QB), Dawson J. notes: 7. …Matters at issue in family law proceedings are of an emotional nature. However, that does not mean that the court will considerfacts or opinions which do not comply with the Rules. The Rules are designed to ensure that only relevant, probative and admissibleevidence is before the court on interlocutory applications.

Affidavits in family proceedings should be confined to the salient matters atissue between the parties. They should contain only the significant or important evidential matters. They should not contain informationor allegations of marginal or trivial importance. Such statements which are irrelevant or argumentative only heighten animosity betweenthe parties and increase the costs of litigation. … [49] I agree entirely with the remarks of Dawson J. but would add to those comments that just because a litigant hascause to object does not mean that they necessarily need to or should.

As Megaw J. put it in Noseworthy v Morin, 2014 SKQB 206 atparas 6-7, 449 Sask R 283: [6] The use of the phrase "carpet-bombing" is interesting and historically accurate. It invokes a picture of not only numerous affidavitsbeing filed but also the contents of those affidavits involving an anarchy of opposition to rules and procedures. The new Queen’s BenchRules were designed to control the potential unruliness of family law proceedings and ensure the evidence coming before the court wasrelevant, admissible and appropriate.

It can fairly be said that the Queen’s Bench Rules were intended to provide the affidavit preparerwith sober second thought on the affidavit's contents at the risk of exposing either the client, or in an appropriate case the lawyer, to costsand to the risk of being sanctioned by the court. They have been effective and continue to be effective to ensure that the emotional aspectof family law does not allow the contents of the affidavits to devolve to essentially school yard squabbles.

This is a good thing and will,of course, continue to be encouraged in our court. [7] It is now commonplace to find a Notice of Objection to Affidavit Evidence as part of a family law application. Indeed, this type ofapplication may be the new weapon of choice in the arsenal available in the family law arena. However, on occasion it appears theobjection is advanced more because it can be, rather than because it should be. The Queen’s Bench Rules are in place to deal withproblematic affidavit contents.

That problematic content, like all material on a litigation file, is to be considered and a determinationmade as to whether the content really, in a final analysis, matters to the issues before the court. That is to say that a technical violation ofthe provisions respecting affidavit contents, while potentially subject to complaint, may not need to be complained about. Discretionalways being exercised prior to any application, proper consideration should precede the routine service and filing of a Notice ofObjection.

[ 50 ] It has been eight years since the decision of Megaw J. but it seems that “carpet bombing” is returning in vogue when the intention of The Queen’s Bench Rules is to discourage exactly such a practice.

Again, I would take the parties back to Rule 1-3 and the first question anyone should ask before bringing any application, namely, does the application move the file further to resolution in a timely and cost-effective way, or, rather, take the parties down a path that they need not travel? [ 51 ] One thing parties should consider, especially when making an objection that an affidavit filed in reply or any affidavit is repetitive is what is the effect of such an objection?

When this type of application is made, the chambers judge will read the initial paragraph, read the same evidence in the reply, read it again for the third time in the notice of objection and consider it a fourth time when the issue is argued. The effect of this type of objection is to essentially shine a giant spotlight on material which a party says should not be emphasized through repetition, because it is already before the Court. This observation should not in any way be viewed as recommending, condoning or suggesting that repetitive material in affidavits or reply material is appropriate. It is not.

Parties need to recognize that telling the same story multiple times does not make it any more or less true. That said, as Megaw J. put it, just because you can object, does not mean you should or that it is a good idea. [ 52 ] With 411 paragraphs of affidavit evidence from the parties, there will invariably be issues in each affidavit.

The question is whether shining the giant spotlight and spending time arguing about this material helps progress the matter or only winds up driving up costs on issues that, frankly, are in many instances only tangentially relevant to the statutory criteria. [ 53 ] Before considering the paragraphs that are objected to, a couple observations need to be made about reply evidence generally. As noted succinctly by this Court in Mortenson v Dunn, 2001 SKQB 143 at para 6 , 205 Sask R 289: [6] …The purpose of the reply affidavit is to respond to new matters raised by the opposite party in their affidavit.

A reply affidavit is not for the purpose of raising new matters or to reiterate points already made. … [Emphasis in original] [ 54 ] The reply affidavit is to be used for a limited purpose. It is designed to give a party an opportunity to respond to new matters raised by a responding affidavit. These are new matters, being matters that could not have reasonably been anticipated when the first affidavit was prepared. A reply affidavit is not an opportunity to get in the last word, or a chance to raise new facts that could have reasonably been raised in the first instance.

It is not to be used to backfill obvious holes in the original material, or to be employed to reiterate, only more eloquently, what was already said or could have been said in the first instance. In short, it is not a do-over and is not intended to be used as such. [ 55 ] Rule 15-46(4) carries a harsh consequence for those who ignore the Rules respecting affidavits: 15-46

(4) If an affidavit does not comply with this rule, the Court may, on its own motion or on the application of a party: (

a) strike out all or part of that affidavit; and (

b) award costs against the party filing the affidavit or that party’s lawyer. [ 56 ] With that background, we must consider the paragraphs in the reply affidavit of David for which objections have been made. The objections may be grouped into three broad categories: (

a) new material not raised by the responding affidavit or material which repeats information in the original affidavit. This objection is raised in regard to paragraphs: 7, 10, 11, 12, 13, 14, 15, 17, 20, 22, 26, 27, 31, 32, 33, 35, 43, 45, 55, 59, 63, 65, 70, 72, 76, 79, 83, 84, 85, 88, 89, 93, 94, 98, 99 and 107 of the reply affidavit; (

b) hearsay/scandalous in paragraphs: 21, 23, 27, 29 and 40 of the reply affidavit; and (

c) opinion, speculation or argument in paragraphs: 21, 26, 68, 75, 77, 78, 81, 96 and 104 of the reply affidavit. New or Repetitive Material not responding to Maureen’s Affidavit [ 57 ] David’s application is all about parenting. His affidavit in the first instance could have and should have included all the facts relevant to the issue of parenting.

It is fair to say that not every single fact raised in a responding affidavit from Maureen could have been anticipated but it should not come as a surprise that there would be questions about who the primary parent was and who had what parenting duties while the parties were together. [ 58 ] The reply affidavit references, almost on a paragraph-by-paragraph basis, each paragraph of Maureen’s affidavit and then provides David’s perspective. In many instances, David’s evidence is simply an elaboration or reiteration of what is in his original affidavit.

This is particularly obvious when we see the language “As previously mentioned…”, “Again ...” and “as previously discussed…” sprinkled throughout the affidavit.

In a reply, matters dealt with in the original affidavit should not be mentioned or discussed again. [ 59 ] I strike those portions of the following paragraphs objected to in the notice of objection: Paragraphs 7, 10, 11, 12, 13, 15, 17, 20, 22, 26 (other than (g)), 27, 31, 32, 33, 35, 43, 45, 55, 59, 63, 65, 70, 72, 76, 79, 83, 84, 85, 88, 89, 93, 94, 98, 99 and 107. [ 60 ] I have not struck out paragraph 14 which, in my view, responds to a new issue raised in Maureen’s affidavit, being the time David would come in from the shop in the evenings. Similarly, paragraph 26(

g) is in response to Maureen’s evidence that Tamara would spank Pricilla. David’s evidence is that Maureen, herself, set that standard. That paragraph can stay. Similarly, paragraph 41 responds to a specific statement attributed to David and can stay.

Hearsay and Scandalous [61] In this case, what is objected to as hearsay is the reply evidence introduced by David of what Maureen has toldhim or communicated to him by e-mail, largely in relation to her mental health struggles and medical treatment. [62] In R v Bradshaw, 2017 SCC 35 at para 1, [2017] 1 SCR 865, the Court provides a useful

summary of whathearsay is and when it may be admitted: [1] Hearsay is an out-of-court statement tendered for the truth of its contents. It is presumptively inadmissible because — in theabsence of the opportunity to cross-examine the declarant at the time the statement is made — it is often difficult for the trier of fact toassess its truth. Thus hearsay can threaten the integrity of the trial’s truth-seeking process and trial fairness.

However, hearsay mayexceptionally be admitted into evidence under the principled exception when it meets the criteria of necessity and threshold reliability. [63] In determining whether a statement is hearsay, the question to be asked is why is the statement beingintroduced?

Is it for the truth of its contents (hearsay) or is it being proffered for the fact that the statement was made regardless ofwhether it is true? [64] If the statement is being offered for the truth of its contents, it is presumptively inadmissible unless it ispermitted by Rule or statute or fits within an exception, be it the principled exception or historic exceptions developed through thecommon law. [65] Certainly, there are many instances of hearsay in David’s affidavit but, frankly, the same is true of Maureen’saffidavit where she provides evidence of comments made to her by David and others.

Both affidavits are replete with hearsay. In familylaw proceedings, we often see hearsay. Hearsay is permitted on interlocutory applications, subject to the requirements of Rule 15-46(3).That Rule provides: 15-46(3) An affidavit may, in special circumstances, contain information that the person learned from someone else if: (a)the application on which the affidavit will be used is for an interim order, or for a matter that will not determine the final outcome of thefamily law proceeding except as permitted by subrule 15-89(4); and (

b) the source of the information is identified by name, the affidavitstates that the person signing it believes the information is true and the circumstances that justify the use of information learned fromsomeone else are stated. [66] This Rule allows for the admissibility of certain evidence on interim applications that would not otherwise beadmissible. That said, as noted by Ryan-Froslie J. (as she then was) in Rivard v Rivard, 2002 SKQB 25 at para 4, a party who wishes tointroduce hearsay evidence must: (

a) set out the source of the information; (

b) say that the deponent believes the information to be true; and (

c) provide the circumstances justifying the use of the hearsay. [67] We see hearsay regularly in family law proceedings as a means, for example, of getting the views of a childbefore the Court through the parties or a Voice of the Child report. The alternative would be to place children squarely in the middle of aconflict which is to be avoided. See, for example: Petrich v Petrich (1997), (SK KB), 157 Sask R 155 (QB).Children, especially young children, should be kept away and insulated from the conflict between their parents to the extent possible.They need not and should not be involved in the conflict.

Simply put, kids need to be allowed to be kids. [68] To ensure the hearsay statements fall within Rule 15-46(3), the parties should ensure in each instance wherehearsay is sought to be admitted, that the source of the information is given, that the affiant attests to their belief that the information istrue and the circumstances giving rise to the statement. Neither David nor Maureen do that in their affidavits each time a hearsaystatement is sought to be introduced. [69] In this case, the hearsay evidence objected to is of minimal relevance.

It frankly does not matter that at timesDavid or Maureen had disagreements with their mothers or mothers-in-law, unless it affects questions of parenting which, in this case, itdoes not. [70] There are also objections made to some of the language in the reply affidavit -- use of the word “lie” andevidence that Maureen tried, when she was at her lowest, to take her own life.

In Hobin v Hardy (1996), (SK KB),140 Sask R 222 (QB), Dickson J. adopted the definition of scandalous contained in Black's Law Dictionary, which defines the word asfollows: . . . scandalous matter is matter which improperly casts a derogatory light on someone, usually a party to the action, with respect to moralcharacter or uses repulsive language. [71] I agree that the reference to Maureen’s mental health struggles were aimed at embarrassing Maureen and castingMaureen in a derogatory light. Further, use of the term “lie” is clearly scandalous.

Frankly, the fact that Maureen had issues of mentalhealth only becomes relevant if it affects her ability to parent. [72] The objectionable portions in paragraphs 21, 23, 27, 29 and 40 of the reply are struck. Opinion, Speculation or Argument [73] Again, I find myself largely in agreement with Maureen’s counsel respecting this objection. David provides

evidence as to his opinion of Maureen’s medical condition and considerable argument. For example, talking about what the evidence “demonstrates” at paragraph 75 is argument. Those portions of paragraphs 21, 26, 68, 75, 77, 78, 81, 96 and 104 that are objected to are struck. Costs of the Objection Application [ 74 ] Maureen has largely been successful on this application but, frankly, I cannot ignore her affidavit which also contains a great deal of irrelevant and objectionable material.

Further, while the objections to David’s affidavit were well-founded, in many instances, the objections did not further the objectives set out in Rule 1-3. In some instances, the objections, while valid, were made because they could be made rather than because they should be made. Applications of this nature will sometimes result in higher cost awards, but because of these issues I am only ordering tariff costs in favour of Maureen. Reading through the affidavits of the parties, at times, felt like a treasure hunt in search of the real nuggets relevant to completion of the best interests analysis.

Review of an affidavit should never feel like a treasure hunt. Affidavits should be confined to relevant, admissible evidence pertinent to the issues raised in the notice of application. Parenting Analysis [ 75 ] The evidence in this case is highly contested and virtually every fact is disputed. For example, Maureen’s evidence is that she was isolated from her family but there is also evidence that at times she chose that isolation. The evidence of Maureen’s mother, Cathy, is that she spent time with her grandkids every month since 2018.

This begs the question about how Maureen was isolated or became isolated from her mother whom she saw each month. There is evidence from Maureen that David’s family engaged in harassing behaviour but there is also evidence that it is David’s family that provided support and transportation to medical appointments, at times travelling significant distances with Maureen to get her the help she needed. Tamara also regularly cared for Wendy. [ 76 ] The evidence suggests exaggeration, and efforts to embarrass, rather than an attempt to further resolution.

For example, the evidence of Cathy that after Wendy’s birth and into 2018 she “never saw David help care for the girls in any way…” is difficult to accept. It suggests David did nothing, ever – never changed one diaper, never wiped a single runny nose, never helped with a single feed – nothing.

I simply do not accept that suggestion in light of the totality of the evidence, including Maureen’s own evidence. [ 77 ] I further note that Maureen’s evidence that David provided minimal support does not fit with what she wrote on her blog, a hearsay statement not objected to. [ 78 ] David, for his part, raises issues of mental health in a manner that seems more aimed at causing Maureen embarrassment than furthering resolution.

There are also questions about how David was the primary parent when he was also the sole financial provider. [ 79 ] I appreciate that there remains questions about whether Maureen living in Bruno is a relocation or not. It may be a relocation if all of the children’s activities and schooling will be moved to Bruno. Right now, however, if Wendy remains in school in Viscount, it is a commute which is made daily to get Wendy to kindergarten.

I do not accept the suggestion that such a commute, at this stage, is unreasonable in light of the comments of the Court of Appeal in Dukart v Quantrill (Jones), 2015 SKCA 138 at paras 29-30 , 74 RFL (7th) 328, when considering the distance between Bienfait and Lampman: [29] The trial judge provides a bit more elaboration on why this factor is, in her view, an impediment. In addition to the concerns of a 25-minute commute twice per day to drop off and pick up Aaliyah from school, the trial judge has concerns over winter driving conditions.

She then goes on to elaborate her view that, as Aaliyah gets older, she will want to be with her friends in Lampman where she attends school and will want to participate in extracurricular activities in that community only. [30] I find that it is also a reversible error to hold that these factors would be an impediment to shared parenting. A 25-minute commute to and from school is hardly a hardship. I would hazard to guess that thousands of school age children in Saskatchewan spend longer than that on a school bus in a daily commute to the nearest school.

As well, winter driving conditions are a fact of life in Saskatchewan. A parent would be appropriately prepared to take all of the necessary precautions to ensure the safety of their child if the weather is inclement. There seems to be no dispute that the father would do the same.

These are reversible errors that plainly affected the trial judge’s decision and, therefore, that decision must be set aside. [ 80 ] I do not have to decide all of these issues and resolve the highly contradictory evidence as it is clear that what these parties need is an interim order to get them to a pre-trial conference. [ 81 ] I am satisfied on the evidence that: (

a) we have two parents who love their children dearly; (

b) we have two young girls who need a

schedule and stability. Wendy is attending kindergarten in Viscount, while Priscilla is being homeschooled in Bruno. Maureen should have discussed homeschooling Priscilla with David before removing her from the program in Viscount, but the fact that the girls are in a stable situation now is a good thing. That situation will continue until resolution or further order of the Court; (

c) both parents have played an important role in these young girls’ lives and we have two parents who are seeking to minimize the role the other has played, which is simply not appropriate. Who played the greater role is a debate that can happen at trial. It is not one I need to resolve for the purposes of making an interim order; (

d) both parents need to do better in terms of supporting the other parent’s relationship with the girls;

(

e) I am unable on the contradicted evidence to determine the history of care, but I do find that it is in the interests of both girls to maximize the time that they have with each parent; (

f) both parents purport to put forward the views of the children, but frankly, these children are too young to place much weight on their views. These parents need to stop putting these young girls in the middle of their dispute and let these young children be young children. To suggest that a six-year-old wants the move is not evidence I am going to accept, rely on, or put any weight on. Six- year- olds are too young to offer this type of view and I have concerns that Wendy’s “views” are nothing more than her mother’s wishes. In short, I am concerned about possible inappropriate influencing of a young child’s wishes; (

g) both parents are able to meet the needs of these young children and care for the girls; (

h) I am unable to determine the contradictory evidence on the issue of alleged family violence as I have two diametrically opposed accounts, conflicting evidence from the blog and from both parties’ mothers. The only conclusion I can reach at this stage is that minimizing physical contact between the parties at this time is in the best interests of the children. [ 82 ] Maureen wants to enroll the children in activities and school in Bruno, while David wants them to be in Viscount. Absent agreement and until an expedited pre-trial can occur, there will be no change in the existing activities of the girls.

Wendy will continue to attend kindergarten in Viscount and Priscilla will continue to be homeschooled, though given Priscilla’s age of four, homeschooling cannot be used as a basis to limit David’s parenting time. [ 83 ] David will have the girls every second week from Wednesday morning drop-off at 8:45 a.m. to Monday morning kindergarten drop-off. Where there is a statutory holiday on the Monday, his time will extend to Tuesday morning drop-off.

Any exchanges not occurring at school will occur in town as the parties have been doing. [ 84 ] In light of my findings, I make the following interim order: 1) The parties shall have joint decision-making for the children; 2) David shall have parenting time with the children every second week from Wednesday morning at 8:45 a.m to Monday morning kindergarten drop-off.

Where there is a statutory holiday on the Monday, his time will extend to Tuesday morning drop-off; 3) The parenting exchanges will not occur at either party’s home but will continue to occur in town or at Wendy’s school, as has been the case to date; 4) The Christmas break shall be equally shared. This holiday period shall be the period provided by the Public School calendar.

The first half of the break shall be with Maureen for 2022-2023 and David shall have the first half in 2023-2024; 5) Each party may make day-to-day decisions while the children are in their care; 6) Neither party may change Wendy’s kindergarten enrollment in Viscount without the consent of the other or court order; 7) The parties shall be free to communicate with the children while the children are in the other parent’s care by phone, FaceTime or other video communication as long as such communication does not disrupt the children’s bedtime routine or unduly interfere with the other parent’s parenting time.

If not otherwise agreed to, these calls shall occur at 6:30 p.m. each evening; 8) Each party shall keep the other informed with respect to the children’s activities, appointments, and events, including but not limited to medical and dental appointments, extracurricular activities and special functions at school; 9) In the event of an emergency, the party with the care of the children shall notify the other parent as soon as practicable; 10) The parties shall ensure that the children are not exposed to incidents of conflict between them; 11) The parties shall refrain from making any derogatory comments about the other parent to the children or from making any such comments in the presence of the children; 12) The parties shall each be entitled to speak with and obtain information from the children’s healthcare providers and teachers. 13) David shall have interim exclusive possession of the Viscount home; 14) The Local Registrar shall arrange for an expedited pre-trial on the issue of parenting; and 15) Maureen shall have one set of tariff costs for the objection application and no costs are awarded for the substantive application as success on that application was divided. ______________________________J.

N. BARDAI