LEROY WILKERSON PETITIONER - v. -, 2022 SKKB 278

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 278 Date: 2022 12 20 Docket: FLD-RG-00116-2022 Judicial Centre : Regina, Family Law Division BETWEEN: LEROY WILKERSON PETITIONER - and - RACHEL MARKS RESPONDENT Counsel: Rani L. Grewal for the petitioner Zina L. Scott for the respondent JUDGMENT BROWN J. DECEMBER 20, 2022 [ 1 ] Leroy and Rachel were married in December 2001. They had two daughters: Hailey, born September 10, 2002 and Jayda, born October 15, 2005. The parties separated in 2006, were divorced in 2010 and entered into a separation agreement which contained a parenting plan on April 7, 2010.

A divorce judgment which specified the custody and parenting arrangement was issued the same day. [ 2 ] Pursuant to that judgment, which recognized both parties and the children resided in Missouri, USA, was that Rachel had “sole physical custody” and Leroy had “visitation”. Visitation consisted of access from 5:00 p.m. to 8:00 p.m. every Wednesday and from 5:00 p.m. Friday to 6:00 p.m. Sunday every second weekend. [ 3 ] Leroy avers to exercising his parenting time until Rachel unilaterally moved with the children over his objections.

He says she did not advise him where she moved to and he avers to not seeing his children since 2012. In his search to find them he swears to ultimately hiring a private investigator who finally located them in Assiniboia, Saskatchewan in 2019. [ 4 ] Once the children were located Leroy began court proceedings in 2019 in Missouri so he could see his children. Rachel was served and retained counsel in Missouri to represent her there, thus attorning to the jurisdiction.

Leroy says that Covid 19 interrupted the proceedings and created significant delays in his efforts to obtain an order enforcing his parenting time with his daughters. [ 5 ] On April 8, 2022 a judge in Missouri granted Leroy’s access motion which states that: The Court finds Leroy’s [sic] Wilkerson’s testimony credible that he was denied custody and visitation with his children under the original judgment of dissolution. The Court further finds his testimony credible that he did not know that Respondent had relocated to

Canada with the children. The Court finds Rachel Marks’ testimony that she notified him of the relocation to Canada in compliance with Missouri statutes not to be credible. The Court further finds that Respondent did not have good cause to deny custody and visitation to Petitioner. . . The evidence shows that Respondent moved the children in a manner to keep Petitioner from knowing where the children lived and to keep her whereabouts secret. . . . the court finds that there was a denial or interference with custody and visitation under the judgment of dissolution without good cause.” [ 6 ] The Missouri judge then ordered that:

a) Rachel was to pay a $500 fine to Leroy;

b) Rachel was to participate in counselling within 15 days of the judgment regarding the importance of providing the children with a continuing and meaningful relationship with both parents with Rachel bearing the cost of the counselling until released from the program by the counsellor, to a maximum of $2,000 U.S.;

c) Rachel was to pay $851 U.S. to Leroy for the reasonable expenses incurred as a result of the denial of his visitation within 30 days;

d) Rachel was to pay $1,040 U.S. to Leroy for legal fees; and

e) Rachel was to deposit a bond in the amount of $3,000 U.S. with the clerk of the court to ensure compliance with orders. [ 7 ] Leroy applies pursuant to Rule 15-33 of The Queen’s Bench Rules and ss. 9(3) , 25 (

b) and 27 (

b) of The Children’s Law Act, 2020 , SS 2020, c 2 [ CLA ] to enforce orders of the circuit court of St. Louis, Missouri dated April 7, 2010 and April 14, 2022. Specific relief stemming from the request for enforcement of the orders are: 1. An order requiring Rachel to participate in counselling regarding the importance of providing the children with a continuing and meaningful relationship with both parents; 2. An order requiring Rachel to have the child, Jayda Wilkerson, born October 15, 2005 participate in counselling to re-establish the parent-child relationship between Leroy and the child; 3.

An order requiring Rachel to pay the costs of the counselling; and 4. An order that Rachel not interfere with the work of the counsellor to re-establish the parent-child relationship. [ 8 ] Rachel responds by saying Leroy had anger issues, was an alcoholic and drug user and also physically abused her when they were together. She disputes his version of her departure from Missouri and avers to giving him notice and his doing nothing in response.

She says the court process in Missouri in the more recent hearing did not adequately take into account her side of the story and the judge was dismissive of her efforts to put her evidence forward. She says their youngest daughter Jayda, who will be 18 in less than a year, has no interest in a relationship with Leroy at this point.

She avers to trying to arrange counselling in Moose Jaw, Saskatchewan for her but that Jayda refuses to attend. [ 9 ] Rachel presently argues that Leroy has not proceeded in accordance with the requirements set out in The Queen’s Bench Rules in Saskatchewan as he has not issued a petition or established how a notice of application can serve as the commencing document. Thus, she says the matter has proceeded improperly and ought not result in an order as requested until restarted by the issuance of a petition.

Issue [ 10 ] Is the applicant required to issue and serve a petition in order to obtain an order enforcing a registered extraprovincial parenting order? What is the proper order here? Discussion [ 11 ]

Section 24 of the CLA provides as follows: Recognition of extraprovincial parenting order 24(1) An extraprovincial parenting order may be filed with the court, together with an affidavit of the person seeking to file the order stating that the order is in effect and has not been set aside or varied by another court or by an extraprovincial tribunal.

(2) The extraprovincial parenting order filed with the court must be certified as a true copy by: (

a) a judge or other presiding officer of the extraprovincial tribunal; or (

b) the clerk or other official charged with the keeping of records and orders of the extraprovincial tribunal.

(3) No proof is required of the signature or appointment of a judge, presiding officer, clerk or other official with respect to any certificate produced as evidence pursuant to this section.

(4) The person filing the extraprovincial parenting order must provide notice of the filing to all other parties affected by the extraprovincial parenting order.

(5) Subject to subsection (6), an extraprovincial parenting order, once filed, shall be recognized as if it had been made by the court.

(6) On application by any party affected by the extraprovincial parenting order, the court may refuse to recognize the extraprovincial parenting order if: (

a) the order was made by an extraprovincial tribunal that did not have jurisdiction; (

b) except in cases of urgency, the order was made without the child having an opportunity to be heard in accordance with the laws of the jurisdiction in which the order was made; (

c) except in cases of urgency, the order was made without a party having an opportunity to participate in the proceeding that led to the order; or (

d) recognition of the order would be manifestly contrary to public policy in Saskatchewan.

(7) Subject to the regulations, a request for advance recognition or a declaration of enforceability of an extraprovincial parenting order is to be made in the prescribed form and manner.

(8) The court shall not review the merits or the fact-finding of an extraprovincial parenting order. [ 12 ]

Section 25 of the CLA provides as follows: Enforcement of extraprovincial parenting order 25 On application, the court may: (

a) enforce an extraprovincial parenting order that has been recognized pursuant to

section 24 as if the order had been made by the court; and (

b) make any order that the court considers necessary to give effect to the extraprovincial parenting order as if the order had been made by the court. [ 13 ] As can be seen by virtue of these provisions of the CLA , recognition of extraprovincial parenting orders in the first instance and enforcement following that recognition each have certain requirements. To achieve recognition of an extraprovincial parenting order the order must be filed with the court pursuant to s. 24 of the CLA and, if the technical requirements set out therein are met, it is to be treated as an order made by this Court.

That did occur in this situation and compliance with those technical requirements is not contested. [ 14 ] Several reasons are also noted in the CLA for this Court potentially refusing recognition of the Missouri order.

These include: (1) failure to give an opportunity for the child to participate and be heard at the hearing in accordance with the laws of Missouri; (2) not giving a party an opportunity to participate in the Missouri proceeding that led to the order; or (3) concluding that recognition of the Missouri order would be manifestly contrary to public policy in Saskatchewan. [ 15 ] I do not find that any of these factual scenarios are established in this matter. In fact, the record indicates that Rachel had a full opportunity, and took advantage of such opportunity, to participate in the Missouri proceedings.

She retained counsel and appeared at the hearing leading to the orders made there. Those legislatively recognized hurdles do not therefore prevent the registration and recognition of the Missouri order here. [ 16 ]

Section 25 outlines additional requirements for enforcement of an extraprovincial parenting order, even after recognition properly occurs pursuant to s. 24. Under s. 25, an application must be brought for enforcement of the recognized extraprovincial parenting order. The question raised herein is whether any prerequisites to that application being brought must be met in Saskatchewan in order for the enforcement order to be valid and operational and therefore enforceable. [ 17 ] Rule 15-16 of The Queen’s Bench Rules requires certain family law proceedings to be commenced by the issuance of a petition.

It provides: Petition 15-16(1) Unless provided otherwise by enactment or by the rules in this Part, every family law proceeding pursuant to this Part must be commenced by the issue of a petition in Form 15-16.

(2) The petition: (

a) must be signed by the petitioner; (

b) must be signed and sealed by the local registrar; and (

c) on being signed and sealed, is deemed to be issued.

(3) The petition must bear the date on which it was issued.

(4) The original petition must be filed with the local registrar at the time of issuing.

(5) In a divorce proceeding, the petition must contain a statement by the petitioner certifying that the petitioner is aware of the

petitioner’s duties pursuant to sections 7.1 to 7.5 of the Divorce Act .

(6) If the petitioner is represented by a lawyer, there must be endorsed on a petition commencing: (

a) a divorce proceeding, a statement signed by the lawyer certifying that the lawyer has complied with

section 7.7 of the Divorce Act ; (

b) a proceeding pursuant to The Children’s Law Act, 2020 , a statement signed by the lawyer certifying that the lawyer has complied with subsection 20(1) of that Act; (

c) a proceeding pursuant to The Family Maintenance Act , 1997, a statement signed by the lawyer certifying that the lawyer has complied with subsection 16(1) of that Act; (

d) a proceeding pursuant to The Family Property Act , a statement signed by the lawyer certifying that the lawyer has complied with subsection 44.1(1) of that Act. [ 18 ] Rule 15-32 of The Queen’s Bench Rules provides directions respecting applications brought in family law proceedings: Applications with notice 15-32(1) All applications must be by notice of application (family law proceeding) in Form 15-32 except where otherwise specifically provided.

(2) If pursuant to any enactment an application may be made to the Court or to a judge, the application must be by notice of application (family law proceeding) in Form 15-32 unless the enactment or these rules provide otherwise.

(3) In all applications, any pleading on file in the office of the local registrar may be used and taken as evidence of the pleading, unless proven otherwise.

(4) Subject to the other rules of this Part, every notice of application must, at a minimum, set out all of the following: (

a) the precise relief or remedy sought; (

b) the grounds to be argued, including a reference to any

section of an enactment or rule to be relied on; (

c) a list of the documentary evidence to be used at the hearing of the application.

(5) Except where otherwise specifically provided, a notice of application (family law proceeding), supporting affidavits and draft order must be served on each of the other parties, and filed, at least 14 days before the date set for hearing the application [ 19 ] Rule 15-45 of The Queen’s Bench Rules provides certain exceptions to the general requirements of using specified proceeding documents in family law proceedings: Application for which no document commencing a family law proceeding is required 15-45(1) If a person seeks an order from the Court in a family law proceeding in which no document commencing a family law proceeding has been filed or is required, the person shall serve on all interested parties and file with the Court, with proof of service, a notice of application (family law proceeding) in Form 15-32 setting out the precise relief or remedy sought.

(2) Applications that may be made pursuant to subrule (1) include, but are not restricted to , the following: (

a) applications for directions; (

b) applications for declaratory orders; (

c) applications pursuant to The International Child Abduction Act, 1996 (Division 12 of this Part). [ 20 ] Regarding the enforcement question, it appears that applications which may be made without petition as set by The Queen’s Bench Rules include: applications for directions; applications for declaratory orders; and applications pursuant to The International Child Abduction Act, 1996 , SS 1996, c I-10.11 .

As noted, this short list is not intended to be exhaustive, as the phrase states: “include, but are not restricted to” those three categories of applications. [ 21 ] I conclude that an application for enforcement of a registered and formally recognized extraprovincial parenting order is also an application envisaged by Rule 15-45 of The Queen’s Bench Rules . The proceeding in Saskatchewan is far from the first notice the respondent, Rachel, has of the parenting proceedings. Notice of those proceedings in Missouri were provided.

Rachel hired counsel and appeared there, where the order sought to be enforced now was made. The singular issue at present for Saskatchewan is the enforcement of the order already made in the foreign court which was properly registered and is now recognized here on full notice to Rachel. [ 22 ] As a result, this type of application fits very congruously with the other types of applications countenanced by Rule 15-45. Each is the extension of a proceeding likely already instituted, albeit elsewhere, and which seeks a limited type of relief from the Saskatchewan court.

The relief sought by Leroy now is analogous in scope to a request for directions or a declaration, albeit forming a different type of request than those two examples. What Leroy seeks is most closely analogous to proceedings pursuant to The International Child Abduction Act, 1996 . He looks for a way to have parenting time with his children occur as a result of Rachel leaving Missouri and now residing in Saskatchewan with them.

[23] Ultimately no disadvantage is effected on Rachel through use of a notice of application versus the issuance of apetition. Extensive relief is not sought in a wide variety of areas such as family property relief, child support and a parenting order; thematter now under consideration has but one objective; enforcement of an existing, recognized order. Admittedly the application ought tobe styled “Application for Enforcement of a Recognized Extraprovincial Parenting Order” rather than “Application for SubstantiveInterim Relief”.

However, either way, The Queen’s Bench Rules provide the answer to the potential impediment urged on the court byRachel. Form of Application/Style of Cause [24] Leroy has styled his approach to the court for enforcement of the Missouri order now recognized here as “Anapplication for substantive interim relief”. If that were the correct description of this application, it may well be that it should be broughtonly after first commencing proceedings by way of petition as required by Rule 15-16.

As Chief Justice Richards noted in Babich vBabich, 2020 SKCA 25, there are certainly times when a commencement document is essential to a particular step in a proceeding: [21] There is also a second and more basic reason why this appeal must be dismissed. It is because Mr. Babich's application for aparental capacity assessment was fundamentally ill-founded and the Judge was not in a position to grant his application even if she hadconsidered it on the merits. Let me explain. [22] The Queen's Bench Act, 1998, SS 1998, c Q-1.01, speaks to the preparation of reports such as the one in issue here.

Section 97(1)provides as follows: Custody, access reports 97(1) On application or on the judge's own motion, a judge may adjourn a family law proceeding and order the preparation of areport for the assistance of the court respecting the custody of access to or welfare of children. [23] Significantly, s. 97(1) refers to the preparation of a report in the context of an adjournment of proceedings. Not surprisingly,therefore, parental capacity assessments are ordered after an application with respect to custody or access has been commenced or avariation application has been made.

In other words, parental capacity assessments are prepared to assist in the resolution of anapplication that is before the Court. This no doubt explains why the Judge, in her fiat of October 22, 2018, specified that Mr. Babichcould "resurrect" his application for a parental capacity assessment "once all material is filed and his substantive motion to vary is beforethe court". [24] In these proceedings, Mr. Babich has not applied for a variation of the existing custody and access regime. Rather, he has made afree-standing request for a parental capacity assessment.

In effect, he is asking the Court to assist him in investigating Ms. Babich'sconduct. As was conceded in oral argument, he plans to make a variation application only if something negative, or something puttingMs. Babich in a bad light, emerges from the assessment. This is a fundamentally flawed approach to parental capacity assessments. [25] However, this matter has been extant for many years. Indeed, Leroy obtained orders for parenting in 2010. Itwas Rachel’s departure from Missouri that in reality prevented him from having what he was ordered to receive in terms of time with hischildren.

At this point in time the fact of whether she sought his approval or not is not of significance as it has been superseded by themore recent proceedings in which Rachel was a participant and, after her evidence was given, an order was made. It is that order whichcontrols the situation at present. [26] In 2021 Leroy was found to be entitled to parenting rights regarding his desire to have a relationship with hischildren and Rachel was found to be non-compliant regarding Leroy’s parenting and access.

To allow a procedural hurdle that does notprejudice Rachel to stymie him further at this point, as the youngest daughter quickly closes in on adulthood, after which an order will nolonger matter, would be both unfortunate and, I conclude, not appropriate. [27] This is not a case of seeking an order providing immediate and extensive parenting interactions between youngchildren and a parent they have not seen for many years.

It is to begin with the groundwork for a hopeful reparation of the relationshipsevered by time and distance. [28] In Re T.L., 2021 SKQB 2, the prejudice suffered by non-issuance of a petition was discussed. See also Mills vMills (1987), (SK KB), 75 Sask R 239 (QB) [Mills].

Following upon Mills, Hunter v McCorriston, 2016 SKCA 144, 86 RFL (7th) 260 [Hunter] notes the use of the then existing Rule 5 of The Queen’s Bench Rules, which provided relief from proceduraldefects: 5(1) Unless the court otherwise orders, any procedural defect, including a failure to comply with these rules, shall be treated as anirregularity and shall not nullify a proceeding, any step taken in the proceeding, or any document, or order made therein.

(2) Where there has been a failure to comply with these rules, the court may, at any time and on such terms and conditions as it thinksjust, (

a) set aside a proceeding, either wholly or in part; (

b) set aside any step taken in a proceeding, or a document, or order made therein; (

c) allow an amendment to the pleadings under the rules therefor; (

d) amend any defect or error in a proceeding, in order to secure the just determination of the real matters in dispute; (

e) make such other order as may seem just.

(3) An application under this rule to set aside any proceeding, or any step taken in a proceeding, or any document or order made therein,shall be made within a reasonable time and, unless otherwise ordered, before the applicant has taken any fresh step after becoming awareof the irregularity.

(4) The court shall not set aside any proceeding or the document by which the proceeding was begun solely on the ground that theproceeding was required by any of these rules to be initiated by a commencement document other than the one employed. . . . [10] Rule 5 gives to the court almost complete power to relieve against any irregularity in complying with the Rules. In the exercise ofthis power, the guiding principle must be to see that justice is done. See Coulthard v.

Coulthard (1952), (SK CA), 5W.W.R. (N.S.) 662, a judgment of this Court, which remains the leading authority in this jurisdiction respecting irregularities and non-compliance with the Rules. [29] In Hunter, the general use and utility of the Rule was noted: 43 A review of the case law confirms the

interpretation given to Old Rule 5 in Ennis [(1991), (SK KB), 95 SaskR 149 (QB)]. The Old Rule was most commonly invoked to remedy procedural defects: (

i) where a party had failed to institute an actionwith the proper originating document; (ii) where a party had failed to adhere to the rules on affidavit evidence; (iii) where a documentlacked an endorsement or was otherwise irregular; (iv) where a party failed to obtain leave to commence an action; or (

v) where therewere other technical contraventions of or non-compliances with the Old Rules. See: Neva R. McKeague, The Queen's Bench Rules ofSaskatchewan: Annotated, 3d ed (Regina: Law Society of Saskatchewan Libraries, 2001). [30] Of particular application to this matter is the first category: the failure to institute an action with the properoriginating document. That is the nature of the defect at issue here. [31] Rule 1-6 now replaces former Rule 5. As noted in Hunter, it is properly interpreted with reference to theprevious Rule 5 authorities.

Rule 1-6 provides as follows: 1-6(1) If a person contravenes or does not comply with these rules, or if there is an irregularity in a commencement document, pleading,affidavit, Form or other document, a party may apply to the Court: (

a) to cure the contravention, non-compliance or irregularity; or (

b) to set aside an application, proceeding or other thing because of prejudice to that party arising from the contravention, non-compliance or irregularity. 1-6(2) An application pursuant to this rule must be filed within a reasonable time after the applicant becomes aware of the contravention,non-compliance or irregularity. 1-6(3) An application pursuant to this rule may not be filed by a party who alleges prejudice as a result of the contravention, non-compliance or irregularity if that party has taken a further step in the action knowing of the prejudice. 1-6(4) The Court may cure any contravention, non-compliance or irregularity but only if: (

a) to do so will cause no irreparable harm to any party; (

b) in doing so the Court imposes terms or conditions that will: (

i) eliminate or ameliorate any reparable harm; and (ii) prevent the recurrence of the contravention, non-compliance or irregularity; (

c) in doing so the Court imposes a suitable sanction, if any, for the contravention, non-compliance or irregularity; and (

d) it is in the overall interests of justice to cure the contravention, non-compliance or irregularity. 1-6(5) The Court shall not cure any contravention, non-compliance or irregularity if to do so would have the effect of extending a timeperiod that the Court is prohibited from extending. 1-6(6) The Court shall not set aside any proceeding or the document by which the proceeding was begun solely on the ground that theproceeding was required by any of these rules to be initiated by a commencement document other than the one employed. [32] While the procedural method that Leroy has engaged for enforcement of the extraprovincial parenting order,being styled and described as “An Application for Substantive Interim Relief” likely requires him to first commence a proceeding byway of petition, that is a procedural issue.

In reality he was looking for an order enforcing a recognized extraprovincial order. In thecircumstances here, the procedural issue is within the inherent authority of the court and is addressed by The Queen’s Bench Rules.There is no jurisdictional gap in what Leroy has done. The Missouri order is an order of this Court, properly registered here. Timing isimportant in that the remaining child will be 18 years old in less than a year. [33] I find that there are no substantive matters affected in a way that creates irreparable harm to Rachel inproceeding forward without delay and without the issuance of a petition.

I find no limitation periods are being improperly extendedthrough the process utilized. A nunc pro tunc order pursuant to Rule 1-6 to waive any irregularity in the manner of proceeding herein isavailable to the court.

Conclusion [ 34 ] In a situation such as this, it is proper to commence an application for enforcement of a recognized foreign order by way of notice of application pursuant to Rule 15-45.

Leroy is entitled to have the order from Missouri recognized as well as enforced here through the use of a properly styled and described notice of application. [ 35 ] In addition to recognizing the order, and in reliance upon Rule 1-6 and its curative provisions regarding procedural irregularities resulting in recognition that what occurred here should not nullify applications such as this, I order enforcement of the now recognized order in the following way so as to give effect to it: 1.

Within 15 days of today, Rachel is to provide full and detailed information in the form of an affidavit and exhibits regarding any and all counsellors she has sought to have Jayda see including the correspondence between them which sets out where that began and ended or is presently residing. The goal is to determine the type of counselling, and the counsellor who can provide assistance so the process will be of value here. 2.

Within 15 days Rachel is to also advise on whether Jayda is willing to attend counselling and whether there is a counsellor Jayda would be willing to meet with regarding understanding and addressing the relationship matters with her father, Leroy. 3. Within 15 days Rachel is to advise who she herself proposes to see, or will continue seeing, respecting counselling and the potential for Leroy to reconnect with Jayda and her role in that. 4. Rachel is to be given any bill for such counselling and pay it to the amount of $2,000 U.S. 5.

Rachel is to forthwith pay $1,000 in costs to Leroy. [ 36 ] In accordance with Rule 1-6(1) Leroy will need to apply for the requisite order to cure the irregularity of not describing the application as an “Application for Enforcement of a Recognized Extraprovincial Parenting Order”. Upon receipt of that application I will consider, and if all is in order, likely grant, a nunc pro tunc order curing the irregularity. In that way his already served and filed notice of application for enforcement of a foreign parenting order can be brought to being fully compliant.

Leroy is given 10 days in which to bring such application. Service on counsel for Rachel is considered valid service for this and no return date is required. The orders of enforcement made herein are not to wait on the provision of the noted procedural tidying up. [ 37 ] This order takes effect immediately. If Leroy fails to bring the referenced application within 10 days, Rachel may apply to set the order aside on 10 days’ notice. [ 38 ] Leroy is entitled to his costs in an amount of $1,000 payable forthwith. J. D.J. BROWN