M.R., PETITIONER (APPLICANT/RESPONDENT) - v. -, 2023 SKKB 210

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 210 Date: 2023 10 04 Docket: DIV-BF-00058-2023 Judicial Centre: Battleford BETWEEN: M.R., PETITIONER (APPLICANT/RESPONDENT) - and - A.R., RESPONDENT (RESPONDENT/APPLICANT) Counsel: Roger J.F. Lepage for the petitioner and Eric Bergeron, student-at-law Meagan J. Bortis for the respondent ___________________________________________________________________________ FIAT SCHERMAN J.

October 4, 2023 ___________________________________________________________________________ Introduction [ 1 ] The proceedings were commenced on July 31, 2023, by M.R. [M.R.], when he filed a petition for divorce also seeking relief in respect of parenting arrangements and family property.

That same date he filed a notice of application seeking a variety of relief relating to the interim parenting of the children of the marriage. [ 2 ] This was in the context of the respondent, A.R. [A.R.], having left the family home on June 26 with their five children without telling M.R. she was leaving with the children nor to where she was moving. He has been unable to communicate with her or the children in the interim.

[ 3 ] On August 24, 2023, A.R. filed an answer and counter-petition opposing his application for joint decision- making rights and parenting time. That answer and counter-petition stated the petitioner had been charged with sexual assault, sexual interference and invitation to sexual touching of their two eldest children, E.Y. and A.Y.

A no-contact with these children condition was ordered by the Provincial Court. [ 4 ] A.R. then filed an application for substantive interim relief seeking the following relief: 1) Waiver of the mandatory mediation requirements of the King’s Bench Rules; 2) The Respondent, A.R., shall have interim sole decision-making of the children, E.Y., DOB [ redacted ], 2009, A.Y., DOB [ redacted ], 2011, E.R., DOB [ redacted ], 2014, I.R., DOB [ redacted ], 2016 and W.R., DOB [ redacted ], 2018. 1) The Respondent, A.R., shall have primary care of the children, E.Y., DOB [ redacted ], 2009, A.Y., DOB [ redacted ], 2011, E.R., DOB [ redacted ], 2014, I.R., DOB [ redacted ], 2016 and W.R., DOB [ redacted ], 2018. 2) The Petitioner, M.R., has an annual income of $40,000.

The Petitioner shall pay child support to the Respondent for the children, E.Y., DOB [ redacted ], 2009, A.Y., DOB [ redacted ], 2011, E.R., DOB [ redacted ] 2014, I.R., DOB [ redacted ], 2016 and W.R., DOB [ redacted ], 2018, in the amount of $1,077.00 per month commencing September 1, 2023 and continuing on the first day of each month thereafter until further Order of the Court. 3) The amount of child support or maintenance for a child that is payable under this order may be recalculated by the Saskatchewan Child Support Recalculation Service if eligible for recalculation and if the recalculation service determines that recalculation is permissible and appropriate pursuant to The Family Maintenance Act, 1997 and the regulations.

Either party may apply to the recalculation service at: Saskatchewan Child Support Recalculation Service Room 323, 3085 Albert Street Regina, SK If the payor fails to comply with the income disclosure requirements of the recalculation service, the payor’s income may be deemed to have increased as set out in

section 21.33 of The Family Maintenance Regulations, 1998. 4) The Petitioner, M.R., is restrained from contacting, molesting, annoying, harassing or otherwise interfering with the Respondent, A.R., or the children, E.Y., DOB [ redacted ], 2009, A.Y., DOB [ redacted ], 2011, E.R., DOB [ redacted ], 2014, I.R., DOB [ redacted ], 2016 and W.R., DOB [ redacted ], 2018 until further order of the Court. 5) Costs. [ 5 ] Although filed late, counsel for M.R. agreed to this application being heard on August 31, 2023 along with his notice of application.

The Parties’ Positions at the Hearing [ 6 ] In light of the sexual offence charges and other allegations of child and spousal abuse – which offences and allegations M.R. denies – he has modified the relief he seeks from the Court. His position is that, in light of the situation and that in the past A.R. has been the primarily present parent, what he now asks is: (

a) For a parenting assessment to be done of both parents by a qualified person; (

b) As regards the youngest three children, an order that:

i) He have daily access by phone or other electronic means; ii) He have afternoon or evening parenting time every Tuesday and Thursday from 5:00 p.m. to 7:00 p.m.; iii) Weekend parenting time every other weekend from Friday at 5:00 p.m. until Sunday at 5:00 p.m.; and iv) Parenting on a week-on/week-off basis at an appropriate time. (

c) With respect to E.Y. and A.Y., specified parenting time which he agrees may, for a period of time, be supervised. If necessary he is prepared to pay the costs associated with such supervision. (

d) He is agreeable to the child support order that A.R. seeks. [ 7 ] A.R. continues to seek the full scope of the relief she claims in her application. The Affidavit Evidence Filed [ 8 ] The affidavit evidence filed on behalf of the parties consists of the following: (

a) By M.R.:

i) His initial affidavit filed July 31 in support of his application; ii) A reply and response affidavit filed August 30; iii) Affidavits filed August 30 of:

1. G.R. – his father 2. L.L. – his mother 3. E.L. – his stepfather 4. C.R. – his brother 5. N.R. – his brother 6. D.R. – his sister-in-law. (

b) By A.R.

i) Her response affidavit filed August 24; ii) Affidavits filed August 24 of 1. P.S. – her mother 2. W.T. – a friend 3. C.B. – a friend iii) A.R.’s reply affidavit to M.R.’s reply and response affidavit filed August 30, 2023 as well as responding to the affidavits of N.R., D.R. and C.R. and L.L. and E.L. The Applicable Law [ 9 ] Applicable statutory provisions are as follows:

(1) Divorce Act , RSC 1985, c 3 (2d Supp), s 16, which reads as follows: 16

(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (

c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; (

d) the history of care of the child; (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (

g) any plans for the child’s care; (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (

k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account: (

a) the nature, seriousness and frequency of the family violence and when it occurred; (

b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(

c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (

d) the physical, emotional and psychological harm or risk of harm to the child; (

e) any compromise to the safety of the child or other family member; (

f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (

g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and (

h) any other relevant factor.

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

(2) The Children’s Law Act, 2020 , SS 2020, c 2 , s 10, which reads as follows: 10(1) In making, varying or rescinding a parenting order, the court shall take into consideration only the best interests of the child.

(2) A parenting order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.

(3) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, including: (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (

c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; (

d) the history of care of the child; (

e) the child’s views and preferences, by giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (

g) any plans for the child’s care; (

h) the ability and willingness of each person with respect to whom the parenting order would apply to care for and meet the needs of the child; (

i) the ability and willingness of each person with respect to whom the parenting order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (

j) any family violence and its impact on, among other things: (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child; and (ii) the appropriateness of making a parenting order that would require persons with respect to whom the parenting order would apply to cooperate on issues affecting the child; and (

k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

(4) In considering the impact of any family violence pursuant to clause (3)(j), the court shall take the following into account: (

a) the nature, seriousness and frequency of the family violence and when it occurred; (

b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (

c) whether the family violence is directed towards the child or whether the child is directly or indirectly exposed to the family violence; (

d) the physical, psychological and emotional harm or risk of harm to the child; (

e) any compromise to the safety of the child or other family member; (

f) whether the family violence causes the child or other family member to fear for one’s safety or for the safety of another person;

(

g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and to improve the person’s ability to care for and meet the needs of the child; (

h) any other factor that the court considers relevant.

(5) In determining the best interests of a child, the court shall not consider the past conduct of any person unless the conduct: (

a) is relevant to the ability of that person to exercise decision-making responsibility or parenting time; or (

b) constitutes family violence.

(3) The King’s Bench Act , SS 2023, c 28 , s 13-11: 13-11 On application, a judge may: (

a) make an order restraining a person from molesting, annoying, harassing, communicating with or otherwise interfering with the applicant or a child in the lawful care or custody of the applicant; and (

b) require the respondent to enter into any recognizance, with or without sureties, or post any bond that the judge considers appropriate. [ 10 ] In J.B. v J.M. , 2023 SKCA 24 [ J.B. ] , the Court of Appeal held and instructed as follows: [43] The Chambers judge began his analysis of that question by recognizing that s. 10 of the Act [ The Children’s Law Act, 2020 ] directed him to focus only on E.M.’s best interests. He cited the full text of that

section and then stated that there was one particular consideration he was required to address before any others, namely, the “allegations of family violence and in turn [E.M.]’s safety” (at para 38). Over the next 14 paragraphs, the Chambers judge reviewed the evidence pertaining to those allegations, including the denials by J.B. and J.M. that anything of that sort had occurred. [44] Once he had done that, the Chambers judge concluded that he was unable to “determine the truth” of the family violence allegations based on the contradictory evidence before him.

However, he accepted that there was “some evidence, which may be credible” that J.B. was “capable of family violence” and that, as a result, E.M.’s safety “may be threatened” (at para 53). Notwithstanding that the evidence left him unable to find that J.B. had ever actually engaged in family violence, the Chambers judge concluded that the mere allegations of such conduct fell within the definition of family violence in s. 2(1) of the Act (at para 55) and they suggested that J.B. was “incapable and unwilling to meet the needs of [E.M.]”.

Again, despite having concluded that he could not determine whether the allegations of family violence were true, he made positive findings that the conduct was “serious”, that it had “occurred over a three-month time span”, and that it showed a “patter[n] of [coercive] and controlling behaviour in relation to family members”, which would “compromise [E.M.]’s safety” (at para 56).

Ultimately, the Chambers judge concluded that “the concerns for [E.M.] being exposed to family violence” overrode any other relevant considerations in the best-interests analysis (at para 57). [45] With respect, I am satisfied that the Chambers judge’s reasoning on this point demonstrates error. Let me explain. [46] It is beyond question that the occurrence of family violence is an important consideration in making a parenting order under the Act . The impact of family violence is specifically enumerated in s. 10(3)(

j) as a mandatory consideration in the best-interests analysis and s. 10(4) gives further guidance as to how the effects of family violence are to be taken into account in determining a child’s best interests. Those provisions read, in relevant part, as follows: 10(3) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, including: … (

j) any family violence and its impact on, among other things: (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child; and (ii) the appropriateness of making a parenting order that would require persons with respect to whom the parenting order would apply to cooperate on issues affecting the child; … …

(4) In considering the impact of any family violence pursuant to clause (3)(j), the court shall take the following into account: (

a) the nature, seriousness and frequency of the family violence and when it occurred; (

b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (

c) whether the family violence is directed towards the child or whether the child is directly or indirectly exposed to the family violence; (

d) the physical, psychological and emotional harm or risk of harm to the child; (

e) any compromise to the safety of the child or other family member; (

f) whether the family violence causes the child or other family member to fear for one’s safety or for the safety of another person; (

g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and to improve the person’s ability to care for and meet the needs of the child; (

h) any other factor that the court considers relevant.

[47] As this Court observed in A.M.D. [2021 SKCA 7], “Violence in the home cannot be condoned, and judges must treat allegations of violent conduct involving intimate partners and children with care when making parenting orders” (at para 60).

When a court considers the effect of family violence in the context of a parenting order, it is not necessary that the party alleging the occurrence of family violence specifically prove precise incidents of it, but a Chambers judge must be able to conclude, based on the totality of the evidence, that family violence has in fact occurred or, at the very least, that such allegations are sufficiently credible to give rise to a level of risk to the child’s safety that it bears upon their best interests (see, generally, C.L.B. v J.A.B. , 2016 SKCA 101 at paras 44-46 , 82 RFL (7th) 269 ; Watts v Laframboise , 2021 SKQB 279 at para 38 ).

This requires the court to “assess the totality of the evidence with care and objectivity to determine whether the allegations should be accepted as reliable, true, or probably so, or whether they are based on speculation, conjecture, suspicion or unreliable evidence such that they should be rejected ” ( Shoman v Mais , 2022 SKQB 106 at para 48 ).

A Chambers judge may properly decline to consider the effect of family violence as a factor in making an interim parenting order where the evidence pertaining to it is highly controverted and of such a nature that it does not permit the necessary findings of fact to be made ( A.M.D. at paras 59-60; S.G. v K.B. , 2021 SKCA 133 at para 47 [ S.G. ] ). [48] In this case, the evidence pertaining to the occurrence of family violence was highly controverted. On one hand, there were the affidavits of C.M. and T.M.

Their accounts of family violence having occurred were entirely based on hearsay, and key aspects of what they alleged were premised on accounts given by young children about events that had purportedly occurred at some unspecified time in the past. None of this was supported by any first-hand accounts or any relevant documentation. On the other hand, in their affidavits, J.B. and J.M. explicitly denied that any such events had occurred.

Even assuming, for the sake of argument, that the hearsay evidence contained in C.M. and T.M.’s affidavits was properly admissible under Rule 15-46(3) of The Queen’s Bench Rules , the nature and quality of that evidence called for the Chambers judge to address the conflicts in the evidence and make a determination about whether it was sufficiently probable that J.B. had actually committed acts that fall into the definition of family violence before weighing it as a consideration under s. 10(3)(

j) of the Act . In my respectful view, the Chambers judge failed to do this. [Italics emphasis in original] [49] Importantly, the Chambers judge did not explicitly reject J.B.’s denial, and he made no clear finding in relation to whether family violence had, actually or even probably, occurred. He simply accepted that there was “some evidence, which may be credible” that J.B. was “capable of family violence”.

Given the equivocal and tentative nature of that finding, it was an error in principle to leap, as the Chambers judge did, to a conclusion that the concern for family violence was such that it overrode all other relevant considerations in the best-interests analysis. [50] In saying this, I recognize that it is not the role of an appellate court to second-guess the weight that a first-hand trier of fact assigns to various items of evidence.

Interference in such an assessment of the evidence is justified only if there is a palpable and overriding error ( Housen v Nikolaisen , 2002 SCC 33 at para 23 [2002] 2SCR 235 ; see also S.G. at para 33 ). However, this Court has also stated that it is improper for Chambers judges to make interim findings of fact on the basis of hearsay evidence that is contradicted by direct evidence (see , for example, Tindall v Craig , 2006 SKCA 76 at para 20 , 27 RFL (6th) 39 ). To the extent that the Chambers judge made such a finding of fact, he erred. ... [56]

Section 10 of the Act provides that the only consideration in making a parenting order is the best interests of the child. In that respect, s. 10(2) states that the order must protect “to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being”.

In B.J.T. v J.D. , 2022 SCC 24 , 469 DLR (4th) 183 [ B.J.T. ] , the Supreme Court described this process as a “highly contextual and fact driven exercise” that requires a “consideration of the unique circumstances” of the child, with an eye to not only their physical and economic well-being but also to their “emotional, psychological, intellectual and moral well-being” (at para 53). [57] In Saskatchewan, proceedings under the Act require the Court to consider “all factors related to the circumstances of the child”, including those specifically enumerated in s. 10(3). [Emphasis added] The Principal Issue [ 11 ] Reduced to its essence, the main issue for me to decide is whether based on the totality of the evidence, family violence has in fact occurred or, at the very least, the allegations thereof are sufficiently credible to give rise to a level of risk to A.R. and to the children’s safety that it bears upon their best interests.

The Evidence [ 12 ] The evidence of A.R. on the issue of family violence includes the following allegations:

(1) Of increasingly controlling behaviour by M.R. during their relationship. She states that while she wanted to work outside the home, he wanted her to stay at home and take on a traditional role and that she was not allowed to spend “his money” on things like hair or nail appointments.

(2) M.R. regularly told her that she was his and not allowed to leave. He dictated how much make-up she could wear, the length and colour of her hair, what clothes she was to wear and, if she did what she wanted, he would become angry.

(3) She was not allowed to decline sex even when she had conditions that made it painful for her. When he was away he was constantly phoning her asking her to do something and/or to find out what she was doing.

(4) In March of 2023, M.R. was working in the Northwest Territories and earning between $4,200 and $5,200 biweekly which he deposited to his own bank account. He gave her an allowance of $600 to $800 a month by deposit to a joint account, from which she was to care for the home, children and buy groceries.

(5) M.R.’s treatment of her and the children got progressively worse during their marriage with M.R. engaging in angry, loud and verbally and physically abusive behaviour towards both her and the children. She said she would close the windows so the neighbours did not hear. She observed her older daughters, E.Y. and A.Y., becoming more scared of him.

(6) He told her often that children should be seen and not heard. The children were not allowed to be loud or cry, show any emotion or create any sort of mess and he would yell at the children for small infractions. She states he would scream at and berate the children daily.

(7) He would override her gentle forms of discipline and spank the children or take away food or toys in anger and yelling.

(8) She has heard her children crying in their room with phrases such as “please stop” or “please don’t hit me”.

(9) She has observed him:

i) Pick up and shake their daughter I.R.’s bedframe hard while screaming at her for not sleeping when she was 6 years old; ii) Withhold food from the children for not speaking loud enough and pour water on their son W.R.’s head on several occasions if he did something he was not supposed to do; iii) As a form of punishment, throw out things the children liked or that they had created, hold them up by their ankles, put them in cold showers, shame them or emotionally abuse them by telling them they weren’t good enough or didn’t do a good enough job; iv) The children were constantly on edge and she was scared to leave the children alone with him. [ 13 ] M.R. was to start a job in Humboldt the last week of June and be gone for two weeks.

She decided to leave with the children during this period and made an application to Saskatchewan Income Support for low-cost housing. On June 26 at the end of his first day on the job he phoned her at the family home in Lloydminster, in the middle of the night, screaming at her to wake the children and come and get him. He had been fired. She said no, knowing that disobeying him would have consequences. She called his mother, L.L., in Saskatoon to go get him, which she did. [ 14 ] She decided she needed to then leave the family home with the children.

She packed things and got a hotel room in Lloydminster for the night. She contacted Child and Family Services the next day and learned it would be a few more days before a house would become available. She then drove with the children to stay at her mother’s house in Saskatoon. [ 15 ] On the drive to Saskatoon her daughter A.Y. said she had something to tell her that she did not want her siblings to hear. A.Y. wrote a note to A.R. which revealed details of sexual offences by M.R. against A.Y. When they reached A.R.’s mother’s place she called the Children’s Help Phone and spoke to someone.

She later asked E.Y. if she felt safe around M.R. who stated she didn’t and that she had experienced similar sexual interactions with M.R. [ 16 ] A.R. contacted the police following which the RCMP asked her, A.Y. and E.Y. to come to the detachment on July 5, 2023 to be interviewed. The police took statements from A.Y. and E.Y. and A.R. M.R. was arrested and charged with the sexual offences noted above. He was released subject to conditions that he was to have no contact with E.Y. or A.Y. and not attend at their residence or school.

He first appeared in Lloydminster Provincial Court on September 11, 2023. [ 17 ] A.R. has obtained a home in Lloydminster as of July 4, 2023. M.R. does not know where they live and she states she and the children live in constant fear that M.R. will find them. [ 18 ] She states that she has been working with various support agencies and that she and all of the children except E.R. are in counselling. She states that: (

a) A.Y. has panic attacks thinking about M.R. finding them. She panics if asked to do something because M.R. was emotionally abusive about her not being good enough; (

b) E.Y. cries worried that she will have to see M.R. again; (

c) W.R. asks her to hit him if he does something bad, because that is what M.R. used to do; (

d) I.R. will throw things at A.R. and then ask her to throw it out, because that is what M.R. would do; (

e) E.R. does not speak of her experiences, is mostly clingy and sad but happy with the change; (

f) A.R. and the children are scared M.R. will be able to locate them. They leave the house to go to counselling and trauma related appointments. The children are anxious if they leave the house. A.Y. has had panic attacks thinking she saw his vehicle and E.Y. cries for the same reason. [ 19 ] For his part M.R. speaks positively of his relationship with his children. He acknowledges that he is a big man with a loud voice who can come across as intimidating, especially when focused on task.

He states he has recently been diagnosed with ADHD but is now taking medication for this and that he is also attending counselling to help him deal with this stressful situation. [ 20 ] He denies virtually all of the allegations made by A.R. outlined above. He states he is not now and has never been violent, black out angry, verbally or physically abusive of anyone. He does agree he speaks loudly but he states that: (

a) He would not scream at or berate the children; (

b) At no time has he said children should be seen and not heard;

(

c) He responds to various of the specific allegations, with details of what he says was happening on those occasions; (

d) There was no physical, emotional, verbal or financial abuse on his part; and (

e) He did not have any sexual interactions with his daughters, E.Y. or A.Y. [ 21 ] M.R.’s affidavit states that from his observations A.R. has been struggling for the last four years with mental health issues and that she neglects to take steps to help herself referencing her failing to fill a prescription for medication for anxiety. Submissions Made [ 22 ] Counsel for A.R. argues that I should accept the evidence of A.R. and of the other affidavits filed on her behalf arguing that the other affidavits corroborate the evidence of A.R.

She says it is a fact that after E.Y. and A.Y. gave their statements to the police and M.R. was charged with a number of sexual offences. She says the relief sought by A.R. should be granted and in the circumstances M.R. should have no access to any of the children. She also asks for a restraining order against M.R. [ 23 ] Counsel for M.R. argues that I should be very sceptical of the evidence of A.R. and of the evidence of other affiants on her behalf. He points to what he says are inconsistencies in this evidence. Among the specific concerns and inconsistencies he identifies are the following: (

a) Their daughter E.Y. had a ruptured appendix on April 26, 2023 and was in hospital in Saskatoon for a full month which month A.R. spent in Saskatoon, sleeping at her mother’s place. During this time he parented the remaining four children in Lloydminster. This he says is totally inconsistent with A.R.’s evidence that she was scared to leave the children alone with him and that she left with the children out of fear of him. It is also inconsistent with her evidence of him being a controlling person. He says this arrangement was one which A.R. dictated. (

b) While C.B.’s affidavit provides evidence of what she describes as angry startling outbursts and yelling by M.R. directed at the children, particularly E.Y. and A.Y., which she says she and her husband found very troubling, in June of 2023 she was sending her children to the R. house for child care.

Counsel says C.B. cannot credibly make the allegations she does while sending her own children to the R. household for child care. [ 24 ] Referencing the evidence he provided regarding “freezer spells” (see paragraph 160 of his reply and response affidavit), M.R. says A.R. was using a “freezer spell” and witchcraft to freeze or shut him out of her and the children’s lives which he says raises concerns about her ability to parent the children. [ 25 ] M.R.’s counsel presented argument as to why I should be skeptical of A.R.’s evidence. He argued that looking at the big picture: (

a) A.R. froze her first husband out of her life when he went back to China to visit family; (

b) The evidence demonstrates that A.R. is unhappy with M.R. as a financial provider; (

c) Her allegations of family violence are not credible – she was content to have M.R. parent the four children at home just a month before leaving; (

d) The evidence of C.B. is not credible. If M.R. was abusive of A.R. and the children, impartial evidence of that would have been available from neighbours or the children’s school. [ 26 ] Counsel for M.R. argues that there is significant concern that A.R. makes the allegations she does to justify her personal choice to leave M.R. with the children. While he does not seek shared parenting at this time, M.R. should have access to not only the three younger children, but also some access to E.Y. and A.Y.

He argues that this Court has under its exclusive family jurisdiction the power to order contact or parenting time with them that has precedence over the no-contact order arising from the criminal proceedings. Analysis and Findings on the Credibility and Reliability of the Evidence [ 27 ] M.R.’s counsel quite properly argues that I should be skeptical when assessing the evidence presented on behalf of A.R. The allegations she makes are serious.

Courts do see cases where one parent accuses the other of, what are ultimately determined to be, unfounded allegations of domestic violence, including sexual violence against children. Malicious and evil as it may be, it is not unknown for such allegations to be used as “weapons” or “bargaining chips” in family law disputes and proceedings. Thus, it is appropriate to be skeptical of such allegations. [ 28 ] M.R. is entitled to the benefit of a presumption of innocence in the criminal proceedings. That presumption does not operate in this family law proceeding.

Here my decision must be made on the test of what is in the best interests of the children, not on the impact of the decision on M.R. It is my duty to make this difficult decision, on the evidence before me, without any starting presumption or assumptions. It must be grounded in consideration of the quoted provisions of the Divorce Act and The Children’s Law Act, 2020 , and the totality of the evidence presented. [ 29 ] What is in the best interests of the children obviously involves consideration of the benefits that flow to the children from a father being part of their lives.

It must also be weighed against the harm that might result from him having a parenting role at this time and in the circumstances extant. The decision I make is, of course, an interim one based only upon the affidavit evidence before me. A final decision will be made at some time in the future based upon in-person testimony, tested by cross-examination. [ 30 ] The test for me to apply is the test the Court of Appeal stated in J.B. above:

[47] ...

When a court considers the effect of family violence in the context of a parenting order, it is not necessary that the party alleging the occurrence of family violence specifically prove precise incidents of it, but a Chambers judge must be able to conclude, based on the totality of the evidence, that family violence has in fact occurred or, at the very least, that such allegations are sufficiently credible to give rise to a level of risk to the child’s safety that it bears upon their best interests (see, generally, C.L.B. v J.A.B. , 2016 SKCA 101 at paras 44-46 , 82 RFL (7th) 269 ; Watts v Laframboise , 2021 SKQB 279 at para 38 ).

This requires the court to “assess the totality of the evidence with care and objectivity to determine whether the allegations should be accepted as reliable, true, or probably so, or whether they are based on speculation, conjecture, suspicion or unreliable evidence such that they should be rejected” ( Shoman v Mais , 2022 SKQB 106 at para 48 ). ... [Emphasis added] [ 31 ] The allegations A.R. makes of controlling behaviour on the part of M.R. are consistent with a pattern of controlling behaviour.

M.R. denies such controlling behaviour and in paragraph 52 of his reply affidavit says she always had unrestricted access to the family vehicle and joint bank account. He dismisses the suggestion of controlling behaviour out of hand. He does not respond to A.R.’s evidence that the joint bank account to which she had access was one to which he deposited in the order of $600 to $800 a month to cover all household and grocery expenses. [ 32 ] I find A.R.’s evidence more reliable than M.R.’s.

This flows in part from the fact that the serious allegations in A.R.’s evidence of family violence are in my opinion reliably corroborated in the affidavits of each of C.B., W.T. and P.S. They corroborate each other and the evidence of the family violence and controlling behaviour. [ 33 ] Accepting that P.S. is A.R.’s mother, W.T. is P.S.’s friend and C.B., A.R.’s friend, I nonetheless find no basis to conclude their evidence is either unreliable or not credible. They have disclosed the nature of their relationship.

They have provided sworn evidence of personal observations they have made of M.R.’s behaviour, over the course of years. They viewed what they were observing as troubling. In my opinion their observations corroborate the evidence of A.R. and contradict and refute much of the evidence of M.R. [ 34 ] M.R. responds to and seeks to refute their evidence in his reply affidavit.

However, each of these affiants had significant opportunities to observe the behaviour of M.R. over many years and each describes troubling behaviour on his part. [ 35 ] M.R. also seeks to counter the affidavit evidence of A.R. and the other affiants by the affidavits of various of his family members. Given this connection, the affiants, W.T. and C.B., speak from more objective and less partial positions than M.R.’s family members. [ 36 ] The affidavit of G.R, M.R.’s biological father, is largely personal opinion and hearsay evidence.

It provides little evidence of personal first-hand observations of the way M.R. dealt with his children or A.R. The same applies to the affidavits of C.R., N.R. and D.R. It is clear from their affidavits that their in-person contact with M.R. and A.R.’s family has been limited over the years. Thus their evidence of personal observations of interaction is similarly limited.

Significant is the consistent reference to M.R.’s loud booming voice and its use during the discipline of the children. [ 37 ] While L.L. and E.L. have had more contact with the family, the relevant aspects of their affidavits is captured by L.L.’s statement at paragraph 18 of her affidavit, “At no time during the time we spend with the children did I witness any unusual behaviour in the grandchildren’s behaviour that would make me believe they were being abused or mistreated”. This is a conclusionary statement and opinion on her part as opposed to factual evidence of specific observations.

In making my decision I find the evidence of C.B., W.T. and P.S. to be more reliable than the often opinion evidence of the affiants supporting M.R. [ 38 ] The bottom line is that I find the evidence of A.R., more credible and reliable than the evidence of M.R. and his family members.

Similarly I find the affidavit evidence of P.S., W.T. and C.B. to be more appropriately factually based, focused and reliable than the evidence of M.R.’s family members which contains significant opinion and hearsay elements along with limited evidence of actual observations of M.R.’s treatment of the children and A.R. [ 39 ] In addition to this analysis, the fact that the children, E.Y. and A.Y., have given statements to the police and M.R. was charged with sexual offences as a result is evidence that is both independent of and corroborates the evidence of A.R.

The fact that each of E.Y. and A.Y. have alleged that M.R. sexually assaulted them corroborates the allegations of each other. [ 40 ] I appreciate I have no sworn evidence from E.Y. and A.Y. For various reasons I think it would be inappropriate to attempt to obtain affidavit evidence from them and file that evidence in these proceedings.

However, I find it appropriate for me to draw the inference that E.Y. and A.Y., respectively, ages 14½ and 12 at the time of their police interviews, would have understood the seriousness of what was being investigated and that they were expected to be truthful in what they told the police. Further I take judicial notice of the fact that police officers can only charge individuals with a crime upon swearing out an information in which they state that they have reasonable grounds to believe that individual has committed the crimes charged. [ 41 ] In

summary, the affidavit evidence of A.R., reinforced on various aspects by the evidence of the affiants, P.S., C.B. and W.T., is of patterns of behaviour on the part of M.R. that were controlling, coercive and physically and emotionally abusive of the children and A.R. This evidence is reinforced and corroborated by the factual evidence that E.Y. and A.Y. have made complaints of sexual assault.

M.R. has denied the allegations made, but when I weigh all of the evidence I find the allegations made are sufficiently credible to give rise to a level or risk to the children’s safety that it bears upon their best interests. Indeed, if the allegations made are ultimately proven, then the risks to the safety of the children are significant. The degree of the risk is a significant factor to consider when making interim orders. The Best Interests of the Children [ 42 ] For the reasons outlined above, I am satisfied, on the balance of probabilities, that:

(

a) there was a pattern of control on the part of M.R. in respect of both A.R. and the children; and (

b) the allegations of family violence consisting of verbal, psychological and physical abuse of A.R. and all the children and the sexual abuse of E.Y. and A.Y. are sufficiently credible to give rise to a level of risk to the children’s safety that it bears upon their best interests. [ 43 ] With the background of these findings, I must necessarily move on to make specific decisions about what is in the individual children’s best interests.

I start with M.R.’s request that he be provided parenting time, albeit initially supervised, with the children, E.Y. and A.Y. [ 44 ] M.R. has asked the Court to order access to E.Y. and A.Y. He asks for this as a father. He has provided no evidence, nor has his counsel provided cogent reasons why, I should conclude it is in the girls’ best interests that he be given access in the circumstances. [ 45 ] My common sense leads me to the conclusion that it would be rare for a person who makes allegations of sexual assault against another person to want to associate with or spend time with the alleged sexual assaulter.

On the other hand, a reason why a person charged with assault may want to spend time with the complainant could be to encourage them, expressly or by subtle pressures, to not proceed with their complaint. That would not be appropriate. [ 46 ] Given E.Y. and A.Y., aged 14½ and 12, have each made allegations of sexual assaults by M.R. and M.R. has been charged with numerous sexual offences based on their complaints to the police, I find it difficult to conceive that they will want to spend time with M.R. or that it would be in their best interests.

At their ages and in the circumstances, their wishes are appropriately considered. The evidence of A.R. that they are scared of seeing or coming into contact with him supports that position. [ 47 ] As s. 10(1) of The Children’s Law Act, 2020 , states: A parenting order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.

I can see no basis to conclude that it would be in E.Y.’s and A.Y.’s psychological, emotional safety, security and well-being to order any parenting time or access at this time. If, at some point in the future either of them requests contact, this topic could be revisited then. [ 48 ] I have concluded that at the very least, the allegations made are sufficiently credible to give rise to a level of risk to all of the children’s safety that it bears upon their best interests.

The best interests of the children, E.R., I.R. and W.R., respectively, aged 8, 7 and 4, need to be assessed not only individually, but in a sense collectively as a sibling group including their older sisters. Each would, on the basis of sufficiently credible evidence, have individually been exposed to the abuse alleged and collectively to observation of the abuse alleged to have been inflicted on their siblings – excluding the sexual abuses alleged by E.Y. and A.Y. which presumably occurred privately.

If what is alleged occurred, they suffered both as a consequence of what was inflicted upon them personally but also what was inflicted on others. Each child then has been both directly and indirectly exposed to family violence. [ 49 ] I have concluded what is alleged is at least sufficiently credible to give rise to a level of risk to the children’s safety. I have evidence that they are presently fearful of him. Nonetheless, I think it reasonable to conclude that there is a level of bonding and love between them. M.R. has been a part of their lives since they were born.

Some level of parenting time on supervised basis is in my opinion in the best interests of the younger three children. [ 50 ] The supervision involved should be by sufficiently qualified personnel such that they can objectively report to the Court on the topics such as bonding or resistance to contact, observed fear or affection, levels and nature of interaction and other aspects of the observed relationship between M.R. and the children. [ 51 ] When this matter was heard by me there was a paucity of information on the agencies, personnel and facilities available for supervised access in Lloydminster.

I ask counsel to investigate this topic and report back to the Court thereon as well as discussing between them the possibility of agreement on: (

a) the facilities and personnel available for supervised access; (

b) how the costs therefor can be dealt with; (

c) initial times for and duration of the supervised access; (

d) staged increases in and/or changes to such access; and (

e) circumstances under which either party may apply back to the Court for modifications of access orders made. [ 52 ] While agreement on some or all matters is encouraged, if a comprehensive agreement cannot be worked out then either party may make an application to bring the matter of access to the three younger children back before me by making a request to the registrar of the Court.

In the interim, I am of the opinion that it is not in these children’s best interest for M.R. to have access to any of the children. [ 53 ] Counsel for M.R. asked that I make an order that overrides the no-contact order with respect to E.Y. and A.Y. imposed by the Provincial Court. If as he argued, this Court has the jurisdiction to do so, I decline to make such an order because in my opinion that would not be in the best interests of E.Y. and A.Y. [ 54 ] Counsel for A.R. asks that I make the restraining order she seeks in her application for substantive relief.

Under s. 13-11 of The King’s Bench Act , I have the jurisdiction to make such an order. I have concluded that it is appropriate to make an interim order to such effect, subject to the following:

(

a) This order shall be subject to any contact or access with respect to the children, E.R., I.R. and W.R., that may be ordered by the Court; and (

b) M.R. has leave to ask the Court to reconsider the appropriateness of this restraining order after March 1, 2024 upon 14 days notice to A.R. [ 55 ]

Section 7 - 4(6) of The King’s Bench Act provides: On an application made with or without notice, the court, or any other person or class of persons prescribed in the regulations, may exempt a party from the requirement to participate in family dispute resolution pursuant to this

section if: (

a) there is a restraining order between the parties; (

b) a child of the parties has been kidnapped or abducted by one of the parties; (

c) there is a history of interpersonal violence between the parties; (

d) the party provides proof of attempts to engage the other party in family dispute resolution; or (

e) in the opinion of the person hearing the application, there are extraordinary circumstances. [ 56 ] I am of the opinion that on the basis of interpersonal violence including the extraordinary circumstances of the allegation of sexual abuse of E.Y. and A.Y., it is appropriate to and I order that the requirement to participate in family dispute resolution in this proceeding is waived. [ 57 ] Given the circumstances and M.R.’s consent in respect of the payment of child support, it is appropriate that until further order of this Court: (

a) A.R. have sole interim decision-making of all of the children; (

b) A.R. shall have the primary care of the children; (

c) Monthly child support of $1,077.00, based upon an annual imputed income of $40,000.00 be paid commencing September 1, 2023. Conclusion and

Summary [ 58 ] In conclusion and

summary:

(1) I dismiss M.R.’s application for a parenting assessment to be done. I see no reason why this would be of assistance to this Court in the circumstances. M.R.’s parenting of the children cannot be assessed when he will not be parenting them.

(2) I dismiss, on an interim basis, his application for access to the children for the reasons set forth above.

(3) An interim order shall issue granting the relief sought by A.R. as set forth in paragraph 4 of this decision. Such interim order shall be subject to what I direct in paragraphs 49 to 53 of this decision. J. B. SCHERMAN