J.M.M. PETITIONER - v. –, 2023 SKKB 137

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 137 Date: 2023 06 27 Docket: DIV-SA-00299-2020 Judicial Centre: Saskatoon BETWEEN: J.M.M. PETITIONER - and – I.D.M. RESPONDENT Counsel: Sherry L. Fitzsimmons for the petitioner Benjamin C. Rakochy for the respondent ___________________________________________________________________________ JUDGMENT BARDAI J. June 27, 2023 ___________________________________________________________________________ Note: Pseudonyms have been used throughout this redacted version of the judgment.

Introduction [ 1 ] Isaac [father] applies for production of pay stubs from Joanne [mother], and variation of the order of Labach J., dated August 14, 2020.

He seeks overnight parenting time with Francis, born [redacted], 2019, from Friday to Sunday on alternating weekends and alternating Monday nights and holiday parenting time, as well as cancellation of a restraining order pertaining to his partner, Allisen. [ 2 ] On August 14, 2020, Labach J. rendered a fiat which contemplates joint parenting, unsupervised daytime parenting for the father with exchanges at the police station, continuation of a restraining order prohibiting the father from attending at the family home in Shellbrook, exclusive possession of the family home in favour of the mother, and that the father be provided with his personal items from the family home. [ 3 ] There is also a restraining order against Allisen stemming from allegations by the mother that Allisen threatened her and the parties’ children, Francis and Brenda. [ 4 ] In May 2022, the mother reached out to the father inquiring about further parenting time for the father with

Francis. This included overnights and these overnights have continued, though there have been issues from time to time with communication, enrollment of the children in activities, missed parenting time due to work commitments and COVID-19. Requests for compensatory parenting time in relation to Francis have been refused according to the father. The parties’ older child, Brenda, is 17 and no relief is sought in relation to Brenda, given her age and decision to live with her mother. [ 5 ] The parties have also been unable to reach agreement on summer parenting time. [ 6 ] Francis is a growing 4-year-old.

He is active and affectionate. He helps his dad with chores and likes to ride his bike, play LEGO and play outside. He has an established routine when he visits his father. The father seeks shared parenting over the summer or, alternatively, a week uninterrupted. [ 7 ] In terms of disclosure, the father is asking that the mother provide her pay stubs as he has done. Both the father and the mother are employed with the RCMP and the father says the mother should be able to provide what he has provided. [ 8 ] This matter is scheduled for trial in January 2024. [ 9 ] The mother’s position is that: (

a) she is agreeable to allowing for flexibility in parenting time; (

b) she is amenable to the father having a week of parenting time in each of July and August as long as the father’s weeks do not conflict with her weeks away; (

c) she does not take a position on rescinding the restraining order made against Allisen (recognizing that Allisen, another RCMP officer, lives with the father and the continuation of such a restraining order is impractical); (

d) she is prepared to provide her pay stubs to the extent she can get them, but says she has had problems getting them; and (

e) she is prepared to agree to the father having alternate weekends but not alternate weekends and alternate midweek parenting time. Her counsel indicates that if parenting time for the father is to include alternate Fridays, it should not include midweek time. [ 10 ] The mother takes issue with aspects of the father’s evidence but fundamentally, does not oppose much of what the father seeks.

Her evidence is that it will be easier for Francis to be in the father’s care from Saturday morning until Sunday at 5:00 p.m. instead of both days, but, again, her counsel indicates that if the alternating weekends are to include Fridays, midweek parenting time should not be ordered. The mother submits that midweek parenting time is tough on Francis. [ 11 ] The mother raises concerns about the father involving the child in the dispute between the parties.

The mother says that Francis is doing well in the current parenting arrangement. [ 12 ] In a late-filed reply affidavit, the father says that the records sought from the mother are readily accessible. He denies that the mother has fostered his relationship with Brenda, denies speaking negatively about the mother and says if summer shared parenting is ordered, he is able to spend two weeks in each of July and August with Francis. Disclosure [ 13 ] The parties have an ongoing obligation to make disclosure.

The father has disclosed his pay stubs and the mother, who has the same employer, must request her pay stubs as well and disclose those pay stubs to the extent that they are received. Her counsel indicates that she is prepared to undertake to write her client’s employer seeking this information and provide whatever information is received. That proposed approach should address the issue of disclosure. Variation [ 14 ] The first question when faced with a variation application is whether variation is sought of an interim order or of a final order.

In the context of a final order, the applicant must establish first that there has been a material change in the circumstances of the child. As noted by Kalmakoff J.A. in A.M. v Ministry of Social Services, 2020 SKCA 114 [ A.M. ] at para 133 , demonstrating a material change involves establishing: (

a) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (

b) that such change materially affects the child; and (

c) that the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. [ 15 ] Clearly, not every change is “material”.

The change must be of “sufficient magnitude to compel the conclusion that the previous order might have been different had the circumstances that now exist prevailed at the time the original order was made.” See: A.M, at para 134 and see Mryglod v Tarling, 2023 SKCA 26 [ Mryglod ]. [ 16 ] If a material change is established, the Court then looks at what is in the best interests of the child and attempts to craft a parenting order that protects the child’s physical, psychological and emotional safety , security and well-being to the greatest extent possible.

In the context of a best interests analysis, the Court will examine, 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 children 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 effect 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; • civil or criminal matters pertaining to the child’s well-being and safety; and • past conduct is not to be considered unless it constitutes family violence or is relevant to the ability of a person to exercise decisionmaking responsibility or parenting time.

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 of the Divorce Act, RSC1985, c 3 (2d Supp). [17] When a party is seeking to vary an interim order and replace an existing status quo with a new interim order, theapplicant, in addition to the above, must demonstrate that the child is at risk or that there is/are other compelling reasons to vary theinterim order.

See T.C. v A.E., 2021 SKCA 79 at para 79. [18] What is clear from both the test for variation of a final order and the test for variation of an interim order is thatchildren need stability, consistency and routine. Wholesale changes to those routines should only be made where there is good reason todo so. [19] As is evident, the additional consideration applicable to interim variations of interim orders means that the testto be met to alter or replace an interim order with another interim order is higher than is the case where variation is sought of a finalorder.

The reason for the added consideration is simple, an interim parenting order is intended to provide stability to the parentingsituation, usually by maintaining the status quo, in the aftermath of a separation. It provides a short-term solution to a difficult problem ata time when emotions are running high, pending a pre-trial conference and trial when there will be a better evidentiary foundation uponwhich to make a final order. See: Rue v Babyak, 2012 SKQB 541 at para 16, Nahorniak v Nahorniak, 2015 SKQB 317 and Harden vHarden (1987), (SK CA), 54 Sask R 155 (CA).

Parties are expected to get their case to trial as quickly as isreasonably possible without coming back to the Court for multiple variations, which will upset the existing routine of a child prior totrial. In any separation, children will already be going through a difficult process; managing and minimizing change in their lives until afinal order can be made is generally in their best interests.

As a result, the Court will only intervene to replace an interim order withanother interim order if: a. material change in the circumstances of the child is established; b. the best interests of the child warrant a variation; and c. there is a risk to the child or some other compelling reason to vary. [20] In this case, the father is trying to vary an interim order prior to trial. Accordingly, such application is subject tothe added consideration of compelling reason. [21] The father relies on Mryglod, a recent decision of the Court of Appeal.

In that case, the Court was faced with avariation application in the context of a final order. That case involved a child who had aged 10 years since the final order, the parentshad re-partnered and so new adults had been added to the child’s life, both parents had changed residences, there was now an extendedcommute to get to the mother’s home from school, there was tension between the mother and the child, the child was experiencingemotional difficulties, a new half sibling had been added to the father’s family and the child was having difficulties with the mother’spartner.

These circumstances together gave rise to a material change warranting a reconsideration of the parenting order and anassessment as to whether it was in the child’s best interests to vary the final order. [22] In the context of this case, there has not been a great deal of change in Francis’s life since the interim order wasmade. Francis is older (a little less than three years has passed since the date of the interim order) and the father is having more parentingtime than was originally ordered. Allisen also now lives with the father.

These are certainly changes but they do not give rise to a“material change” in the Court’s view. [23] In Gray v Wiegers, 2008 SKCA 7 at para 23, 307 Sask R 117, the Court considered whether the passage of timeon its own amounts to a material change in the circumstances of a child warranting variation and found: [23] I agree with that comment. It does not suggest, however, that mere passage of time constitutes a material change in the needs orcircumstances of the child.

The Court is still obliged to determine and assess the nature of the changes that time has wrought in relationto the needs and circumstances of the child. In fact, in that case, extensive attention was given to that very question. [24] Simply put, the Court is well aware that time stops for no one. The fact that Francis would be older within

seconds of making an order would not be lost on Labach J. or any other member of the Court. The question is not whether time has passed, but, rather, whether a material change in the circumstances of the child has occurred. [ 25 ] Francis is two and a half years older and is spending more time with his father than was provided for in the original order of Labach J., thanks in large part to his mother, who has agreed to an increase in the father’s parenting time.

Parents are under an obligation to do what they can to promote a child’s relationship with the other parent as long as doing so remains in the best interests of the child. Parents are also under an obligation to cooperate with one another on issues affecting their child. The Court expects this of parents because that is what children need. The changes that have occurred in Francis’s life would not have been beyond the contemplation of the Court when the initial interim order was made.

Frankly, even if a material change was established, there would be no compelling reason to impose a new interim order to vary the existing one prior to January’s trial, based on the facts before the Court. [ 26 ] The evidence is that the mother has accommodated an increase in the father’s parenting time, facilitating a deepening of Francis’s relationship with his father. This is to her credit, but, frankly, it is no more than is expected of her. Both parties are under an obligation to act in Francis’s best interest.

The mother has given an inch, believing that is what Francis needs, and now the father wants a mile, saying that because she has given an inch, a material change in Francis’s circumstances has occurred. Isaac now asks for shared parenting over the summer and increased parenting time the rest of the year.

To set such a precedent would discourage parents from accommodating reasonable parenting time requests, even where such requests are clearly in the best interests of the child, out of fear that by accommodating such a request, they will open the door to a variation application and, in effect, create a material change where none would otherwise exist. [ 27 ] Parties need to stop coming to court time after time seeking to vary interim arrangements and instead need to get their cases to a pre-trial conference and trial. Constantly changing the parenting arrangements prior to trial is not in a child’s best interests.

It adds uncertainty to a situation that is already challenging for any child. Interim variations of interim orders should be reserved for those cases where there has been a material change in the circumstances of the child, the existing order no longer reflects what is in the best interests of the child and there is a compelling reason to alter the status quo before trial. [ 28 ] This dispute is already set for trial. A significant change in parenting now would upset the stability in Francis’s life. I appreciate that Isaac is bringing this application because he wants to spend more time with his son.

That is a good thing, but if a change is to be made in the existing parenting arrangements, it should be made after trial unless there are compelling reasons to do so sooner. I do not find such compelling reasons to exist now. [ 29 ] Although I am not prepared to make wholesale changes to the current parenting order, in light of the submissions of the parties, I am prepared to make some minor changes to the parenting time of the father, largely based on what the mother was prepared to agree to in any event.

These minor changes to the existing interim order make sense, are in Francis’s best interests and are without prejudice to what may be ordered by the trial judge on a more fulsome evidentiary foundation. Conclusion [ 30 ] In the end result, I order: (

a) the Order of Labach J. is varied such that the father shall have parenting time with Francis on alternate weekends from 5:00 p.m. on Friday to 5:00 p.m. on Sunday; (

b) the father shall have one-week uninterrupted parenting time with Francis in each of July and August 2023 provided that such weeks do not conflict with the mother’s established plans and are not consecutive. In the summer of 2024, if there is no trial decision by that date and without prejudice to what the trial judge might order, the father will have first pick of the two uninterrupted non- consecutive weeks of parenting time (one in each of July and August) that he would like; (

c) the parenting time set out herein shall not be changed unilaterally by either party. If the father is not able to exercise parenting time on a given weekend due to work or other commitments, reasonable efforts shall be made to accommodate alternate parenting time for him; (

d) the restraining order made against Allisen is hereby rescinded; (

e) the parties shall be free to communicate with Francis by phone, Facetime or other video communication while Francis is in the other parent’s care as long as such communication does not disrupt Francis’s 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; (

f) the mother (either on her own or through counsel) shall, within two weeks, write to her employer to request paystubs for 2022. She shall thereafter produce whatever is received from her employer; and (

g) costs shall be in the cause. ______________________________J. N. BARDAI