ASHLEY DAWN HECK (MESZAROS) PETITIONER - v. -, 2023 SKKB 147

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 147 Date: 2023 07 06 Docket: DIV-RG-00410-2015 Judicial Centre : Regina, Family Law Division BETWEEN: ASHLEY DAWN HECK (MESZAROS) PETITIONER - and - MICHAEL LEE MESZAROS RESPONDENT Counsel: Soni Dhaliwal for the petitioner David J. Flett for the respondent JUDGMENT MEGAW J. July 6, 2023 INTRODUCTION [ 1 ] This long-standing matter now returns to court with the parties making cross applications involving parenting and child support.

The respondent, father, seeks to have the petitioner, mother, found in contempt of court as a result of the father’s lack of parenting time with their daughter. The father also seeks to have counselling at Aspire Too continue with specific directions to be followed. Finally, the father seeks solicitor/client costs of this application together with costs of the previous application. [ 2 ] The mother seeks a variation of the existing parenting order providing her with primary parenting of the two children who are estranged from the father. As well, she seeks an order varying the child support to be paid.

She also seeks solicitor/client costs of her application. [ 3 ] I decline to make a finding that the mother has acted in contempt of an order of this Court. I further decline to vary the parenting order that is presently in place. I decline to direct the parties, and the children, back into the Aspire Too program. I direct that the parties immediately enroll the two children who are estranged from the father in an appropriate child/adolescent counselling program in Regina, Saskatchewan. I also provide some specific direction regarding the contact between the estranged children and the father.

I dismiss the application to adjust the child support without prejudice to re-commence that application with the appropriate information included. I further decline to award solicitor/client costs to either of the parties and decline to exercise my discretion to order costs either on these applications, or the previous application, in these circumstances. [ 4 ] My reasons follow. BACKGROUND

[ 5 ] The complete background to this matter is set forth in the following judgments of this Court: 2019 SKQB 21 , 2020 SKQB 230, 2021 SKQB 295, and 2022 SKQB 197 . The parties have been in continual conflict and difficulty since the time of their separation back in 2015 with respect to parenting of their children. A final order providing for shared parenting has been in place since the time of the trial judgment of the action in 2019.

However, the parenting of the children has remained in difficulty and the parties have continued to blame one another for the situation involving the children. [ 6 ] At the time of the last judgment in 2022, the eldest child, Brock, was no longer seeing or interacting with his father. The change had happened quite abruptly and immediately following the delivery of the 2019 trial judgment. That situation continues and the father has no parenting time with this child. This young man is now coming 15 years of age and about to enter grade 10 in the fall.

To repair, or at least improve, the relationship between the father and this child, the services of a few professionals have been sought. Most recently, at the father’s request, the parties engaged with a reunification service called Aspire Too. That engagement came to an end earlier this year. [ 7 ] More recently, in January of this year, the relationship between the daughter and the father has fractured. The daughter is 12 years old, and she has indicated to both of the parties that she does not want to engage with the father. She is about to enter grade 7 in the fall.

Efforts have been made to engage with the counselling at Aspire Too as well to affect a repair of that relationship and to have the child spend time with the father. Regrettably, those efforts have not been successful, and the father and daughter remain disconnected. [ 8 ] Following the last judgment, and as a result of the direction in that judgment, the services of the indicated family counselling service in Saskatoon, Saskatchewan were utilized. This counselling service entailed sessions with the parents and the eldest child. It appears this was expanded to include the other children.

The scheduled sessions ended earlier this year. It would appear that the sessions did not result in the relationships between the father and the two affected children being improved in any way. At least, there is no evidence filed which would suggest any measure of improvement in this regard. [ 9 ] At the time of the trial judgment in 2019, child support was determined by imputing income to each of the parties. The father’s total annual income was imputed to be $100,000. The mother’s annual income was determined to be $120,000. The mother was operating her own company. The father was not actively employed.

Child support, based on the shared parenting regime, was ordered based on the mother paying $339 per month to the father. [ 10 ] The father seeks to have the mother found in contempt of court as a result of him not being able to exercise parenting time to the daughter. Essentially, he deposes that the mother has not done that which she is obligated as a parent to do to cause the daughter to engage in parenting time. He also seeks to have the sessions at Aspire Too resume but with very specific directions attached.

He holds the view that the mother has not been actively engaged in the counselling process. [ 11 ] The mother seeks to vary the existing parenting judgment to reflect the fact that the two children are in her full- time care. She seeks to be designated as the primary parent for these children. The mother also seeks to have child support varied to reflect the fact that she has full-time care of two of the children. As part of this support variation application, she seeks to have the father’s imputed annual income increased to $180,000.

She seeks to have her annual income, for child support purposes, set at $18,000. Her materials refer to her having declared bankruptcy and being involved in starting up a new business. [ 12 ] The parties continue to engage in a shared parenting regime of the middle child. The other two children live exclusively with their mother and the father continues to have virtually no contact with them. DECISION 1. Meeting with the children [ 13 ] Following receipt of submissions from counsel, I determined to meet with the two children who are estranged from their father.

Because this is not a usual procedure in my judicial experience, I explain the rationale behind the meeting, the nature of the meeting, and my take-aways as a result of the meeting. [ 14 ] Prior to arranging the meeting, I invited counsel to make submissions regarding the proposed procedure. Neither counsel opposed the meeting being held and, in fact, both were in favour of this occurring. I declined any overtures to direct how the meeting should be conducted. [ 15 ] I determined a meeting was necessary here for a few very specific reasons.

First and foremost, it seemed incredible to me that despite the engagement of some extremely qualified individuals for relationship repairing and counselling, absolutely nothing had been accomplished for these children and this family.

It is quite astounding to think of the funds that have been expended, the hours spent on the road travelling to various appointments, and the hours spent with these professionals, only to conclude that nothing has been fixed and there was no reasonable prospect of anything ever being fixed simply by continuing down the same roads that had already been travelled. [ 16 ] I thought that perhaps giving the children an opportunity to provide their input and perspective might be a better resource than what had happened before.

I am mindful of the direction in the Divorce Act , RSC 1985, c 3 (2d Supp) when considering the best interests of the children, to consider, where appropriate, their wishes and desires. A meeting would allow me the opportunity to learn those wishes and desires directly from the children.

It would also permit me the opportunity to gain a better understanding of the dynamics behind the children’s decision to sever their relationship with their father. [ 17 ] I also determined to meet with the children in the interests of obtaining some perspective on both why they were making the decisions they were making and on what might be done to attempt to facilitate a repair of the fractured relationships.

Letting them know that they had a voice in what was going on, but not necessarily a choice in the ultimate result, was something that I thought, amidst all of the turmoil that has been these court proceedings, they deserved. At their ages and stages, I thought they had the right to understand what was going on which might impact their lives. I also thought they had the right to explain their thoughts and situations

directly to me, rather than having those filtered and explained by their parents in the voluminous affidavit material. [ 18 ] Finally, I determined to meet with the children because we have all been tethered together for a good part of their young lives. I thought it important to try to understand, even from a brief encounter, who these individuals were. I thought they might be a bit curious to see who the old judge was who seemed to be making decisions about their family. [ 19 ] We met on June 29, 2023. Present at the meeting were the children, Brock and Faith, Ms.

Colleen Wagner, a Deputy Local Registrar, and me. A recording device was present. I advised the children that Ms. Wagner and I worked together and that was why she was present. I also indicated I thought they might be more comfortable if she was with me for the interview. I explained that the entire interview would be recorded but only a judge of the court or the Court of Appeal would be able to listen to the recording.

I explained that in our court system, we like to have a record of everything that is said and done in case we need to go back and take a look at things and what happened. [ 20 ] We discussed the fact that whatever they told me during the meeting, I would not be relaying their words to their parents. I also told them that I had requested their parents not prepare them for this meeting by giving them any information about the meeting or what they should say during the meeting. I relayed to them that this meeting was an opportunity for me to speak directly to them.

They had some understanding of their parents having been through the court system to determine what their parenting should look like. While we did not delve into their level of knowledge in depth, it seemed relatively clear that they do not have a complete knowledge of the court proceedings nor what has taken place. [ 21 ] We met for just over one hour. Both of these young people appeared comfortable in my presence. They told me there had been no discussion with anyone to prepare them for the meeting.

They were generally prepared to talk with me about whatever I brought up. [ 22 ] While I will not be disclosing the exact nature of the conversation I had with Brock and Faith, I will say meeting with them was quite impactful on my perception of them and on determining the direction of this judgment. These two young people are intelligent, engaging, and independent adolescents. They were respectful of me and provided thoughtful responses to all of the questions that I asked. Both of the parents should be very proud of these children.

They are shining examples of good kids leading good lives, despite the difficulties their parents’ separation has caused to them and their family. I was particularly impressed with their willingness to engage with me and provide thoughtful responses to the questions that were posed. [ 23 ] I learned that at this stage of their lives they are quite resolute in the decisions they have made. They explained the reason for their decisions. I understand they continue to love both their parents but just find it difficult, now, to interact with their father.

They indicated they will do their best to abide by any decision I may make but, if I forced them to return to a shared parenting arrangement, they were uncertain whether they would be willing to do what that type of order directed. [ 24 ] I was not left with any impression that the responses from these two teenagers were coached or prepared. They were genuinely spontaneous in their responses and had fun as we attempted to get more than the typical one- or two-word answers. I am comfortable that for the purposes of this judgment, these children expressed their feelings and emotions without embellishment.

Their ultimate wishes and desires have influenced the outcome of this judgment. 2. The binding pretrial [ 25 ] During the original submissions on this matter, counsel for the petitioner raised with the court the availability of binding pretrial conferences in this jurisdiction. A brief discussion ensued on that procedure. Following that, I indicated to counsel that if their clients wished to engage in a binding pretrial conference, they would need to indicate that to the court.

I told them I would wait for a short period of time before commencing preparation of this judgment to allow them to consult with their clients and make a decision regarding participating in the pretrial conference. [ 26 ] The prospect of having a binding pretrial was left available by the court simply because it seemed that all of the things that had been done in this litigation had done nothing to solve the parenting dilemma the parents were facing with the children, Brock and Faith. I do not make the foregoing statement lightly.

Nothing has worked to cause even a micro repair to the children’s relationship with their father. The parents have not accomplished anything on this front. The professionals have not accomplished anything either. Yet another judgment had the prospect of falling into a similar void. I wondered if there was not a better avenue to try to lend the court’s assistance to arrive at some form of meaningful and lasting change. [ 27 ] With all of that in mind, what was received from each of the parties on this front was less than encouraging.

The father responded by indicating he was prepared to engage the binding pretrial process, but he sought to introduce a condition to his participation. That is, he would agree to participate if it was done according to the timing he proposed. [ 28 ] Attempting to place conditions on the court, while not necessarily improper, is rather unseemly. What the father was saying was that he would participate if the timing was as he wanted. This was done quite regardless that the court sets its own schedule.

As well this was done quite regardless of the distinct possibility that the parties would not be able to resolve their issues and a judgment would need to be rendered which would take the matter outside the father’s timeline. [ 29 ] But the mother’s response was no more helpful. The correspondence from counsel was critical of the way in which the father’s counsel had responded without discussion on the issues to be submitted to the pretrial. Of course, if there was to be a pretrial it would be on the issues presented by the applications before the court.

Regardless, there was no indication from the mother that she was interested in the process in any event. [ 30 ] The father’s further response, perhaps unfortunately predictable with what has happened here, was to immediately withdraw his interest in the binding pretrial process. Instead of approaching the potential of such a process from the perspective I have identified above, the parties determined it would simply be another step in the adversarial process. Rather than attempting to see how it could advance the best interests of these children, the parties saw it as an opportunity to launch yet more

conditions or criticisms. [ 31 ] The end result is that the binding pretrial did not proceed. This judgment is the result. With that, I embark on a determination of the substantive issues presented by these applications. 3. Contempt application [ 32 ] The father seeks an order finding the mother in contempt of this Court’s judgment dated January 18, 2019, based on his assertion that the mother has failed to provide him with parenting time to the parties’ daughter.

The mother responds by denying that she is being contemptuous of the court order and rather, the daughter has simply made her decision not to spend time with the father. [ 33 ] The daughter is 12 years old. In January of this year, she decided to stop the shared parenting routine and has since determined to have no contact with her father. The father has sought to continue parenting the child both by contacting her and by contacting the mother. Neither of those have been successful.

What time the father has been able to secure with the daughter has been short and generally ended with difficulty and the child leaving to return to the mother. [ 34 ] While there is much in the affidavits filed on this application about these difficulties, two examples perhaps best illustrate the different approaches taken by each of these parents. The first example involves an aborted attempt to have the child begin her parenting time with the father. On this occasion the mother drove the child to the father’s home with the apparent intention of having the child commence her parenting time with the father.

When they arrived, the child refused to get out of the car. The mother insisted the father come out to the car to convince the child to go with him. The father insisted the mother takes steps to cause the child to leave the car. Neither of the parents were prepared to accede to the request of the other. The mother left with the child still in the car. The father did not receive his parenting time. [ 35 ] The second example involves arrangements being made to have the father meet with the child over a meal. The mother dropped the child off at the restaurant.

The child went into the restaurant and the father attempted to have a discussion with her regarding a listing of concerns which she had apparently authored regarding his parenting style. The child refused to talk. The father determined the meeting should end and contacted the mother to pick up the child. The mother says she waited to see if the situation would change. Her waiting was a total of five minutes. The child exited the restaurant and the father’s time with her came to an end. [ 36 ] The mother essentially argues that she is incapable of forcing this child to do anything with respect to the father.

The father argues that the mother is doing nothing to cause this child to complete her parenting time with him. He argues further that she is complicit in the failure to be able to parent the child and that history is repeating itself in what happened between the father and the eldest child. The father holds the view that the mother has not been cooperating with the requirements of the counselling in Saskatoon. [ 37 ] The background to an application for contempt was most recently set forth in Jackson v Jackson , 2022 SKKB 207 [ Jackson ].

The starting point for a consideration in this regard is Rule 11-26 of The Queen’s Bench Rules : Declaration of civil contempt 11-26(1) Except when a person is before the Court as described in subclause (3)(a)(ii) or (v), before an order declaring a person in civil contempt of Court is made, notice of the application for a declaration for civil contempt must be served on the person in the same manner as a commencement document.

(2) A notice of the application pursuant to subrule (1) must be in Form 6-5.

(3) A judge may declare a person to be in civil contempt of Court if: (

a) the person, without reasonable excuse: (

i) does not comply with an order, other than an order to pay money, that has been served in accordance with the rules for service of commencement documents or of which the person has actual knowledge; (ii) is before the Court and engages in conduct that warrants a declaration of civil contempt of Court; (iii) does not comply with an order served on the person, or an order of which the person has actual knowledge, to appear before the Court to show cause why the person should not be declared to be in civil contempt of Court; (iv) does not comply with an order served on the person, or an order of which the person has actual knowledge, to attend for questioning pursuant to these rules or to answer questions that the person is ordered by the Court to answer; (

v) is a witness in an application or at trial and refuses to be sworn or affirmed or refuses to answer proper questions; or (vi) does not perform or observe the terms of an undertaking given to the Court; or (

b) an enactment so provides. [ 38 ] The Children’s Law Act, 2020 , SS 2020, c 2 then sets forth the potential penalties to be imposed following a finding of contempt with respect to parenting time orders: Contempt of court 44(1) If the court on its own motion or on application is satisfied that any person has displayed wilful contempt of its orders or resistance to the court’s process or orders with respect to decision-making responsibility or parenting time with respect to a child, the court, in addition to any other remedy including variation of the order, may impose:

(

a) in the case of a first finding of contempt: (

i) a fine of not more than $5,000; (ii) imprisonment for a term of not more than 90 days; or (iii) both that fine and imprisonment; and (

b) in the case of a second or subsequent finding of contempt: (

i) a fine of not more than $10,000; (ii) imprisonment for a term of not more than 2 years; or (iii) both that fine and imprisonment.

(2) If the court imposes a sentence of imprisonment pursuant to subsection (1) that does not exceed 90 days, the court may: (

a) order that the sentence be served intermittently at those times that are specified in the order; and (

b) direct that at all times when not in confinement pursuant to the order, the person comply with conditions set out in the order.

(3) The court may order that if a person defaults in payment of a fine imposed pursuant to subsection (1)the person shall be imprisonedfor a period not exceeding 6 months.

(4) Proceedings pursuant to subsection (1) may be taken without having taken any other step for the enforcement of the order.

(5) The sheriff or any other officer or person pursuant to the sheriff’s or court’s direction may convey any person to be committed toprison without any further warrant other than a copy of the minutes of the court certified by a judge or the registrar.

(6) The keeper of the prison and all other persons whose duty it is to receive the person to be committed into custody are authorized andrequired to: (

a) receive the person to be committed into custody; and (

b) carry out and execute the order. [39] In a previous decision on this very file (2021 SKQB 295), I commented on the reluctance of the court to imposethe significant power of contempt in a family law setting: [68] To make application to utilize the court’s considerable power to find contempt is to invoke the full weight of the courtmachinery.

It is a procedure not to be taken lightly and to be invoked only in those rare, clear cases where it will indeed be applicable.While there are many judicial discussions on this power and its rare implementation in the family law context, I refer to Schultz v Schultz,2015 SKQB 399, Ackerman v Ackerman, 2017 SKQB 7, Garand v Garand, 2016 SKQB 151. [40] When considering the remedy of contempt, the direction from the Supreme Court of Canada in Carey v Laiken,2015 SCC 17, [2015] 2 SCR 79 on the purpose of contempt proceedings is of assistance: [30] Contempt of court “rest[s] on the power of the court to uphold its dignity and process. . . .

The rule of law is directly dependenton the ability of the courts to enforce their process and maintain their dignity and respect”: United Nurses of Alberta v. Alberta (AttorneyGeneral), (SCC), [1992] 1 S.C.R. 901, at p. 931. It is well established that the purpose of a contempt order is “first andforemost a declaration that a party has acted in defiance of a court order”: Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R.612, at para. 35, cited in Bell ExpressVu Limited Partnership v.

Torroni, 2009 ONCA 85, 94 O.R. (3d) 614, at para. 20. [31] The common law has developed to recognize two forms of contempt of court: criminal contempt and civil contempt. Thedistinction, which the parties to this appeal accept, rests on the element of public defiance accompanying criminal contempt: see, e.g.,United Nurses, at p. 931; Poje v. Attorney General for British Columbia, (SCC), [1953] 1 S.C.R. 516, at p. 522. Withcivil contempt, where there is no element of public defiance, the matter is generally seen “primarily as coercive rather than punitive”: R.J.

Sharpe, Injunctions and Specific Performance (2nd ed. (loose-leaf)), at ¶ 6.100. However, one purpose of sentencing for civil contemptis punishment for breaching a court order: Chiang (Trustee of) v. Chiang, 2009 ONCA 3, 305 D.L.R. (4th) 655, at para. 117. Courtssometimes impose substantial fines to match the gravity of the contempt, to deter the contemnor’s continuing conduct and to deter othersfrom comparable conduct: Sharpe, at ¶ 6.100. [32] Civil contempt has three elements which must be established beyond a reasonable doubt: Prescott-Russell Services for Childrenand Adults v.

G. (N.) (2006), (ON CA), 82 O.R. (3d) 686 (C.A.), at para. 27; College of Optometrists [College ofOptometrists (Ont.) v SHS Optical Ltd., 2008 ONCA 685, 241 O.A.C. 225], at para. 71; Bhatnager v. Canada (Minister of Employmentand Immigration), (SCC), [1990] 2 S.C.R. 217, at pp. 224-25; Jackson v. Honey, 2009 BCCA 112, 267 B.C.A.C. 210,at paras. 12-13; TG Industries Ltd. v. Williams, 2001 NSCA 105, 196 N.S.R. (2d) 35, at paras. 17 and 32; Godin v. Godin, 2012 NSCA54, 317 N.S.R. (2d) 204, at para. 47; Soper v. Gaudet, 2011 NSCA 11, 298 N.S.R. (2d) 303, at para. 23.

These three elements, coupledwith the heightened standard of proof, help to ensure that the potential penal consequences of a contempt finding ensue only inappropriate cases: Bell ExpressVu, at para. 22; Chiang, at paras. 10-11. [33] The first element is that the order alleged to have been breached “must state clearly and unequivocally what should and shouldnot be done”: Prescott-Russell, at para. 27; Bell ExpressVu, at para. 28, citing with approval Jaskhs Enterprises Inc. v. Indus Corp., (Ont. S.C.J.), at para. 40. This requirement of clarity ensures that a party will not be found in contempt where an order is

unclear: Pro Swing, at para. 24; Bell ExpressVu, at para. 22. An order may be found to be unclear if, for example, it is missing anessential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances haveobscured its meaning: Culligan Canada Ltd. v. Fettes, 2010 SKCA 151, 326 D.L.R. (4th) 463, at para. 21. [34] The second element is that the party alleged to have breached the order must have had actual knowledge of it: Bhatnager, at p.226; College of Optometrists, at para. 71.

It may be possible to infer knowledge in the circumstances, or an alleged contemnor mayattract liability on the basis of the wilful blindness doctrine (ibid.). [35] Finally, the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do theact that the order compels: Sheppard v. Sheppard (1976), (ON CA), 12 O.R. (2d) 4 (C.A.), at p. 8.

The meaning of thiselement is one of the main points in contention on appeal and I will turn to consider it in more detail momentarily. [36] The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with courtorders: see, e.g., Hefkey v. Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65, at para. 3. If contempt is found too easily, “a court’s outragemight be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks toprotect”: Centre commercial Les Rivières ltée v.

Jean Bleu inc., 2012 QCCA 1663, at para. 7. As this Court has affirmed, “contempt ofcourt cannot be reduced to a mere means of enforcing judgments”: Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., (SCC), [1992] 2 S.C.R. 1065, at p. 1078, citing Daigle v. St-Gabriel-de-Brandon (Paroisse), (QCCA), [1991] R.D.J. 249 (Que. C.A.). Rather, it should be used “cautiously and with great restraint”: TG Industries, at para. 32. It is anenforcement power of last rather than first resort: Hefkey, at para. 3; St. Elizabeth Home Society v.

Hamilton (City), 2008 ONCA 182, 89O.R. (3d) 81, at paras. 41-43; Centre commercial Les Rivières ltée, at para. 64. [41] With those comments in mind, the clear preference of the court is to find a solution to the parenting difficultyrather than to punish a parent for a failure in the existing parenting regime. In Jackson, this preference was put as follows: [66] As indicated, generally the court is always reluctant to both find a contempt and to punish for that contempt on issues ofparenting.

Rather, the court would prefer to address the parenting concerns directly and develop a parenting plan which will work for theparties, always in the best interests of the child or children. However, such is not an option here. The father has determined he is entitledto disregard clear orders.

As egregious as that statement is, it is made worse by the clear disregard of the discussion had by Leurer J.A.on the steps the father needed to take to deal with the concerns which he had. [42] Then, with that background on the law, the first step is to determine whether the mother has acted deliberately incontempt of the court order. On all of the evidence presented here, I determine that I am unable to find that the mother’s actions herewith respect to this child have been deliberately done to avoid the court order or in breach of the court order.

I determine that theevidence tendered does not allow me to be satisfied beyond a reasonable doubt that the mother was being contemptuous of the courtorder. [43] The mother has deposed that she is not preventing the daughter from seeing her dad. She further deposes that shedrove the child to the father’s home for such parenting time, but the daughter refused to exit the vehicle.

She essentially has quite bothfiguratively and literally thrown up her hands and implores the court that there is nothing further she is able to do short of physicallyhauling the child from the vehicle and physically forcing her into her father’s home. [44] The father on the other hand asserts that there is nothing for him to do in this regard. He is convinced the motheris intentionally interfering with his parenting. He is further convinced that the mother must take steps to cause these children tounderstand his right to parenting and further to cause these children to comply with that right to parenting.

He places the blame for thecurrent situation at her feet and the burden for repair in this regard entirely on her shoulders. He says she has abandoned her parentalobligations in this regard and the only appropriate solution is to find her in contempt. [45] While the father is convinced that it is solely the mother who is standing in the way of his ability to exerciseparenting time with the daughter, I am unable to make that same conclusion given the evidence in this matter. I am not able to concludeon the evidence presented that the mother is doing anything contrary to the court order.

There is no evidence which would allow me toconclude that she is deliberately disobeying the parenting arrangement set forth in the order. Nor is there any evidence to allow me toconclude that she either took steps or is taking steps to interfere with the father’s parenting time and thereby cause the rupture of thatrelationship.

On the basis of the evidence filed, I am unable to conclude that the mother has actively, or even impliedly, interferedcausing the daughter (or even the eldest son) not to have parenting time. [46] The father refers in considerable detail to his conclusion that the mother’s lack of engagement in the counsellingprogram was an attempt to thwart any possible success of that endeavour. I am not able to conclude that is so based on the evidencetendered.

While it may well be that she does not actively support this counselling program, I am not able to conclude that she has takenany steps to cause it to fail or to prevent the daughter from participating in it. [47] He further refers to the mother’s lack of assistance in having the daughter attend for her parenting times withhim. I have referred to the car incident and what took place at the restaurant.

The father appears to hold the view that the mother can andmust do more to positively get the child to the parenting times with the father. [48] I am unable to conclude that the mother’s lack of positive action equates to contemptuous behaviour in the faceof a court order. It may well be she could do more but that is not the equivalent of contempt. I will refer to this in more detail later inthis judgment.

On the evidence filed, I am not able to conclude the mother is taking steps to cause the child to react as she has done or isfailing to take steps that would cause the child to interact with her father. [49] I am able to conclude that at this stage of this child’s life, she has determined she does not want to activelyengage in parenting with the father. She is quite resolute in that decision and she has her particular reasons for taking this big step. Heractions are not guided by any dislike of her father or any push by her mother. Rather, her actions appear to be a result of her perceptionsof how she is treated.

[ 50 ] In the result, the father’s application to find the mother in contempt of the court order is dismissed. 4. Specific direction regarding the daughter [ 51 ] I have referred to the parties’ submissions regarding the behaviour and approach of the other. Once again, they seek to place the blame for what has happened in the relationship between the father and the daughter squarely and solely on the shoulders of the other. The court does not see this issue in these black and white terms.

In fact, regrettably it is my conclusion that both of these parties have failed in their parenting obligations to attempt to repair the relationship between the father and both of the children who now live full time with the mother. I do not conclude their failures are either deliberate or malevolent in any way.

Rather, their failures seem to be a result of both their personalities and their forgetting that the sole focus is on the best interest of these children. [ 52 ] During submissions, counsel for the mother indicated that the only avenue available to the mother with respect to getting the daughter to re-engage with the father was to physically remove her from the vehicle and force her physically to attend at the father’s home.

Somewhat the same submissions were made with respect to the eldest child when his relationship with the father fractured. [ 53 ] On the other hand, the father’s evidence appears to be that he requires the mother to cause the child to comply with the directions for parenting time. He refused to attend to the vehicle to speak to the child. He declines to simply attempt to engage with the child without the burden of having the child explain and discuss whatever difficulties are being experienced.

At a minimum, the submissions are that the mother must actively encourage or cause the child to go to the parenting times. He says this should be accomplished through active encouragement or appropriate punishments for a failure to go. [ 54 ] I have previously referenced the comments of both Wilson J. and Ryan-Froslie J. (as she then was) regarding parental obligation to engage with the child to have that child spending parenting time with each of the mother and the father.

I cite those comments again from McGinn v McGinn , 2006 SKQB 105 : [12] It was the position of the father that the children cannot be forced to live at the mother’s home, or even have visits with the mother that may be ordered by the court. I refer the father to the decision of Madam Justice Ryan-Froslie in Card v. Perdrizet , U.F.C. 710/93, J.C. S., handwritten fiat dated September 10, 2003. As stated by Ryan-Froslie J. “. . . Children’s “wishes” should never be determinative of parenting arrangements.

They are simply one factor a court considers when structuring a child’s living arrangements.” As set out in the Card, supra , decision, when a parent says he or she cannot force a child to return to the other parent’s care the court is troubled. It is troubling because it means the parent has abdicated his or her parental role and no longer exercises control over a child.

Ryan-Froslie J. goes on to state as follows: Parents need to recognize that in abdicating their role to their children, whether that child is six or 16, they are harming the child and they are setting themselves up for future confrontations with their children.

If parents cannot make their children attend visitations or return to the other parent, the Court may question whether they can make them attend school, do their homework, abide by curfews, or abstain from the use of drugs or alcohol. [ 55 ] That direction is helpful but not in the sense of then inciting a parent to take active physical steps to cause the recalcitrant child to live up to the terms of a parenting order. Rather, the sentiment to be recognized is that the parent can encourage and provide ongoing suggestions to have the child re-engage.

I referred earlier to the mother having thrown up her hands in exasperation. In my view she ought not to do that and there are positive things she can do to encourage a relationship with the children and their father, even if that is short of actual parenting time immediately. [ 56 ] But it does not lie solely on the shoulders of the mother to cause something to happen. The father has not paid heed to what the children have said regarding their reasons for not wanting parenting time with him now. Rather, he ascribes their words to ill-motive by the mother.

He might consider listening to the children and acting on their concerns regarding their perception of parenting when they were with him. They have been very resolute in their decision. They have also made it clear that they are not going to be forced back into a parenting regime where they have to go to the father’s home. And, they have repeated much the same concerns during our direct meeting. [ 57 ] As a result of the foregoing, the father will need to consider how he can engage with the children and accept that their actions are their own and not done at the direction of the mother.

I include below a start to engage the children with the father. I appreciate it is a small step but it will provide for some ongoing communication and connection. [ 58 ] I also include a requirement that the mother actively participate in this first step. It is important that she encourage the children to respond and put boundaries requiring such response. It is also important that she continue to keep the father updated on all activities to allow him to be present should he choose to do so. 5.

Direction back to Aspire Too [ 59 ] The father seeks to have the court order that the family return to Aspire Too to continue counselling with a hope for conclusion of re-establishing the father’s relationship with the two children. He seeks to have the court impose very precise conditions and directions on the return to this counselling service. The mother generally opposes a return to Aspire Too. [ 60 ] I determine it is not appropriate to order a return to Aspire Too now. I do that for a few specific reasons and because it behooves all of us to look for a better way.

A fractured relationship between a child and his or her parent is a devastating result of the parties’ separation. It is heart-breaking to see a child not participating with one parent and it is sad to see a parent not being able to enjoy the fruits of parenting and companionship of their children. [ 61 ] The parties, the eldest child, and to an extent now, the youngest child, have been through much counselling and much professional involvement in their lives. That involvement began with a psychologist in Regina, Dr. Kluger. It progressed through Dr. Singh in Calgary, Alberta.

And finally, it has involved Aspire Too out of Saskatoon. All of these professional referrals appear to have

one thing in common and that is they have been unable to achieve any indication of success with respect to the father’s parenting relationship with the eldest child, and now the youngest child. Surprisingly, there is no evidence referring to any margin of success and there is no indication that more of the same will result in any margin of success. While the father is no doubt hopeful that is the case, there is nothing in the evidence to allow the court to conclude such will be the result. [ 62 ] I make some comments on the report filed in these proceedings by Dr. Kluger.

It was filed as part of the mother’s materials, and apparently filed outside the filing deadline that was imposed by the court. The father seeks to have it struck for that reason alone. I decline to so strike it as it appears the mother’s counsel understood she was filing within the deadlines imposed. Regardless, I decline to give that report any weight in my deliberations and generally do not see the purpose in having it prepared for these applications. [ 63 ] Dr. Kluger was the original professional retained to deal with the eldest child’s selective mutism condition.

For reasons that have never been completely clear, his role morphed from providing consultative services on selective mutism, to providing family relationship counselling, and specific counseling regarding the father’s relationship with the eldest child. Dr. Kluger was involved with the family until his services were terminated by the father. [ 64 ] At the time of the last application to vary parenting brought by the mother, the father had indicated significant concern with Dr. Kluger and the effectiveness of the services provided. The father indicated that he sought to challenge Dr.

Kluger’s evidence at the viva voce hearing and a significant number of pages of documents were ultimately disclosed by Dr. Kluger in this regard. The application for variation was abandoned by the mother and Dr. Kluger did not testify nor was he cross examined. [ 65 ] Dr. Kluger now, by way of a report, purports to opine on a number of topics including his assessment of the father’s responsibility for the state of the relationship with the eldest child. I decline to consider that evidence in light of the father’s ongoing position regarding Dr. Kluger’s professional service and advice.

That report is little more than hearsay and there has been challenge mounted to whether any of his evidence should be accepted. [ 66 ] Beyond Dr. Kluger, there is nothing before the court that explains whether any of the various steps that have been taken have seen any progress in the relationship repair steps, or, if not, why there has been no such progress.

As indicated, this is a rather remarkable statement given the qualifications and involvement of all of the various professionals involved. [ 67 ] Specifically, there is no evidence before the court that anything was being accomplished through the Aspire Too program or that it was anticipated anything would be accomplished in the near future. That program was ordered through the last application on this file as it was one the father sought to try and it was one which appeared to have the resources to allow this family to find success.

There is no indication that either is the case, or will be the case in the reasonably near future. [ 68 ] I am mindful that the court is dealing here with mature young adolescents. The eldest child is almost 15 years old and has been estranged from his father for over 4 years. I have indicated that I am unable to ascribe that estrangement to deliberate actions of the mother.

The material does not make a case for yet more family involvement, at what must be significant cost, with missed school to travel to Saskatoon, and with the hours of counselling invested. [ 69 ] As indicated above, this young man is intelligent and able to speak his mind. At this stage in his teen years, he is not ready to re-establish a connection to his father. He has his reasons. He has stated those reasons to the father some time ago.

He remains convinced that his reasons are valid and completely explain why he has taken the steps he has taken. [ 70 ] The 12 year old daughter’s estrangement from her father, while more recent is, nonetheless apparently as resolute. She has cut off all contact and does not appear ready now to resile from her position. She too presents as intelligent, and while younger than her brother, expresses her own reasons for stopping all contact.

She has explained these reasons before. [ 71 ] In my view, further court intervention in the lives of this family, at this time, at the children’s stages, and in light of lack of movement historically, is not a recipe for any measure of present success. I am unable to conclude that the fracture in the relationships is caused by the mother. Therefore, what needs to take place is for the parents and these children to take some steps to attempt to resurrect the relationships. [ 72 ] In light of what has happened to these children, ongoing counselling is something that should not be ignored.

However, this counselling will be an opportunity for the children to receive assistance with whatever concerns, issues, or difficulties they are experiencing. As a result, the parents are directed to forthwith enroll the children with a counsellor. If they have difficulty agreeing on who that counsellor should be, that issue may be returned to me, with the suggested names, qualifications, and availability, of counsellors. I will then make the final determination. 6.

Specific direction regarding the father’s interaction with the children [ 73 ] As before, there needs to be some mechanism for the father to interact with these children, and to be certain that such interaction will be responded to. The children have expressed their desire to remain living with their mother at this stage. However, they have assured me that they will receive a weekly text message from their father seeking an update on what their week has been like. The children have assured me they will respond to that text and will respond in a fulsome way with news of the week.

They have specifically requested that the father not engage in follow-up questions unless he is invited to do so by the children, or either of them. [ 74 ] For this introductory step to be successful, the mother must encourage the children to respond to the texts received and to respond in the fulsome way they have assured me they are capable of doing.

I view this task as one of the responsibilities of the mother to ensure the children are interacting in a real and substantive way with the father. [ 75 ] While it is hoped these texts, with the aid of counselling, will cause the children to consider expanding their interactions, I leave that to develop as circumstances dictate. The ability to seek and receive information directly from the children is a significant step in these circumstances.

[76] The children have each expressed concern over being pressured to engage in parenting and pressured to explainwhy they have taken the steps they have taken. It is apparent they seek to have everyone accept that their decisions in this regard are realand should be respected. 7. Should the final parenting order be varied [77] In response to the father’s application, the mother applies to vary the current parenting order to provide that shebe the primary parent with respect to the two children who are now residing full-time with her.

It appears this application is being madenow simply because the children are residing with her. There was no other basis for the application set forth in the evidence filed. [78] I am aware that there must be a material change in circumstances to allow for the variation of a final parentingjudgment. The parties have indicated that they are both seeking to have the children return to a shared parenting regime.

The Divorce Actprovides as follows: Factors for parenting order or contact order 17(5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there hasbeen a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, orof an order made under subsection 16.5(9). [79] In Gray v Wiegers, 2008 SKCA 7, 307 Sask R 117, the court stated: [13] As the learned chambers acknowledged, this Court has held that s. 17(5) mandates that there be a two-stage inquiry wheneverone parent seeks to vary a custody order.

The reviewing judge must first determine whether there has been a change in the condition,means, needs or other circumstances of the child. The party seeking the variation bears the onus of demonstrating a material change thatwill adversely affect the needs of the child. If no such change is established, the enquiry ends there and the existing order remains inplace.

Only after the applicant has demonstrated material change does the reviewing judge go on to consider whether the material changeis such that the best interests of the child require a variation of the order, and, if so, the nature of the variation required. See Talbot v.Henry (1990), (SK CA), 25 R.F.L. (3d) 415 (Sask. C.A.), where Vancise J.A. went on to say this: Thus there is a two-stage inquiry:

(1) The reviewing judge must determine whether there been a change in the condition, means, needsor other circumstances of the children. In determining whether there has been a change, substantially different considerations apply. Theparties are not in pari passu, and the person seeking to vary the order bears the onus as described above of demonstrating a materialchange which will adversely affect the needs of the children. If there has been no material change, the inquiry ends there and the orderremains.

(2) If the applicant has demonstrated a material change in the conditions, means, needs or other circumstances of the child, theCourt must decide whether the material change is such that the best interests of the child require a variation of the order. In other words,if there has been a material change, then the only consideration with reference to that change is the best interests of the child. [14] In both this case and in Wilson v.

Grassick, (SK CA), [1994] 6 W.W.R. 570, this Court overturned decisionsof lower courts where a variation was made without a material and “pivotal change” being established on the evidence.

These cases alsoindicated that the change must be to the child’s circumstances, not merely to the circumstances of the parties. [80] In this case, the fact that two of the children have determined to live solely with the mother clearly constitutes amaterial change in circumstances affecting the condition and living circumstances of the children. [81] However, I am unable to determine that material change requires a variation of the existing parenting order toachieve the best interests of these children. There is no substantive reason given by the mother as to why the change is required.

Rather,her application appears to be little more than a reaction to the application brought by the father. In fact, I determine that varying theparenting order now is not in the best interests of these children. [82] The focus for this application, and the previous application has been on finding a solution to the impasse createdby the children’s refusal to interact with their father. That inquiry explicitly recognizes that such interaction is a good thing and is in thesechildren’s best interests.

This judgment determines to respect the children’s decision in this regard and look for alternate ways to keep aconnection alive with the father. By varying the parenting order now, there is a concern that any impetus to continue suchencouragement will disappear. There being no substantive reason raised, I decline to make such a variation at this time. [83] Accordingly, the mother’s application in this regard is dismissed. 8. Should the current child support be varied based on the evidence now before the court? [84] The petitioner has applied to vary the current child support order.

She seeks that variation on the basis of thefollowing material changes in circumstances: 1. Two of the children now reside with her full time; 2. She has declared bankruptcy and should be assessed as having an income in the amount of $18,000 per annum; 3. The respondent should have imputed to him an income in the amount of $180,000 per annum. [85] The fact that two of the children are now residing with the petitioner full time would appear to warrant a reviewof the child support to be paid by both parties. However, the material on file from the petitioner does not allow for such a review.

Untilmore complete material is filed, I have determined to dismiss this aspect of the petitioner’s application. She may bring the applicationback before the court with an appropriate evidentiary basis.

[ 86 ] The petitioner seeks to impute income to the respondent in the amount of $180,000. There is no evidence filed in support of such an imputation. It appears the petitioner is simply asking the court to bump up the respondent’s imputed income due to the passage of time and due to what has been recorded on his income tax returns for investment income. There needs to be a basis on the evidence to make any such imputation. [ 87 ] The petitioner seeks to have her income set at $18,000.00 per annum. This is below the level of a minimum wage income.

There is no explanation in the materials on why she is now earning this income nor where she is earning this income from. This level of income represents a significant decrease in what her income had been determined to be historically. There is no indication why this is so. [ 88 ] The petitioner then refers to a new business she has started up. There is no information provided regarding this business including where it is operating; the nature of the business; nor, how long it has been operating. As well, the petitioner refers to having declared bankruptcy.

There is no indication when this happened or any explanation as to why this has happened. There is further no indication of what impact this has had on her ability to earn an income. [ 89 ] For these reasons, this part of the application is dismissed. 9. Costs [ 90 ] The parties each seek significant costs for the applications brought. There has been divided success on these applications and accordingly, I decline to exercise my discretion to order costs to either party. 10. Conclusion [ 91 ] There will be an order in accordance with that set out above.

In addition, the parties have leave to return the matter of parenting to the court following 60 days after the date hereof. That return will be for a review of how the interaction and counselling has been progressing for the children. If further adjustment is warranted or required, it can be done at the time of that review. J. M.T. MEGAW