J.L., PETITIONER - v. -, 2023 SKKB 35

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN 2023 SKKB 35 Date: 2023 02 08 File No.: FLD-SA-00208-2019 Judicial Centre: Saskatoon BETWEEN: J.L., PETITIONER - and - T.T., RESPONDENT Counsel: J.L. on his own behalf Shauna L. Shewchuk for the respondent ___________________________________________________________________________ JUDGMENT SCHATZ J. February 8, 2023 ___________________________________________________________________________ Introduction and Issues [ 1 ] This proceeding involves the parenting and decision-making regarding the daughter of the parties, B.L. who was born on [ redacted ], 2019.

It also involves an application by the father of the child, J.L. [J.L.] to relocate the child from Saskatoon, Saskatchewan, where she was born, and where she lived with both parties separately until January of 2020, to Regina, Saskatchewan, located 263 kilometers away. B.L. is currently residing in her paternal grandparents’ home in Regina with her father and with her mother in Saskatoon on a very irregular basis, on what is supposed to be a seven-day rotation arrangement by agreement of the parties pursuant to an interim shared parenting order.

Also at issue are the child support issues that flow from the granting of the parenting order. [ 2 ] The parties met in 2018 while both were living in Saskatoon. J.L. was working in automobile sales at the time and the respondent, T.T. [T.T.] was a stay-at-home mother of two young boys, T. and B. T.T. has treaty status and is a member of [ redacted ] First Nation. The relationship was a rocky one from the start due in part to J.L.’s drinking. T.T. also suffered from depression and anxiety. T.T. became pregnant with J.L.’s child in late 2018.

[ 3 ] In April of 2019 the parties ended their romantic relationship. After B.L. was born J.L.’s mother D.L. came to Saskatoon from Regina to assist with the baby. She stayed at J.L.’s home. The plan was for D.L. to stay two weeks. She stayed four months. The relationship between D.L. and T.T. was strained from the beginning. J.L. was working full-time. T.T. felt D.L. was hostile towards her and constantly judging her as a mother. Following her birth B.L. was moved between J.L.’s residence and T.T.’s residence.

While she was at J.L.’s residence D.L. cared for B.L. while J.L. worked during the day. [ 4 ] Immediately following B.L.’s birth most of her time was spent at J.L.’s residence. J.L. preferred this and T.T. acquiesced to it. The relationship between B.L. and T.T. suffered during this time as D.L. was always present when T.T. was with B.L. at J.L.’s home and T.T. was permitted little private parenting time with B.L. by J.L.

This affected her ability to bond with the child and affected T.T.’s depression and anxiety in a negative way. [ 5 ] As a result of the effect of the situation on T.T.’s mental health, T.T. sought treatment. J.L.’s control on T.T.’s parenting continued. On May 12, 2019, T.T. packed up B.L.’s belongings from J.L.’s house and took her to her home. As a result of her actions J.L. called the Mobile Crisis Unit of Child and Family Services and the police.

No action was deemed necessary by either the police or Child and Family Services. [ 6 ] J.L. had a petition issued and brought an application for sole interim primary parenting and supervised access for T.T. in June of 2019. At that point B.L. was spending the majority of her time with J.L. and being cared for primarily by D.L. J.L. had concerns with respect to the lack of predictability he felt was exhibited by T.T. and her parenting ability.

On August 23, 2019, Justice Klatt ordered that the parties would have joint custody of B.L. and equal parenting time on a five-day rotation with the parties having the ability to agree to changes in parenting time to accommodate their schedules and travel. [ 7 ] J.L. was not happy with the interim order. Within days of the order he contacted T.T. and indicated to her that he was withdrawing from parenting totally. He did not see B.L. for over two months. [ 8 ] During this time T.T. continued to be contacted by D.L. T.T. sent pictures of B.L. to D.L. and tried to maintain a relationship with her.

In October of 2019 J.L. reached out to T.T. and indicated he wanted to resume parenting on a shared basis pursuant to the court order. [ 9 ] During the months of October through to December shared parenting resumed. On December 31, 2019, T.T. learned that J.L. was planning to move to Regina when she discovered packed boxes in his residence. J.L. indicated he was moving to Regina for employment and for the support of his parents in parenting B.L. T.T. did not have a vehicle or a means to travel to Regina and the move caused her concern for these reasons.

J.L. indicated to her at the time that he would be responsible for all transportation of B.L. to and from Saskatoon for parenting following his move to Regina. [ 10 ] Following the move to Regina the relationship between J.L. and T.T. began to deteriorate further. In January of 2020 B.L. was not returned to T.T. This resulted in an interim application for immediate return of the child and police assistance, if necessary. By order dated February 14, 2020, Justice Goebel ordered J.L. to return B.L. and compensatory parenting time for T.T.

The parties were also ordered to attend the High Conflict Parenting After Separation Course. [ 11 ] As a result of J.L.’s refusal to return B.L., a further interim order was rendered by Justice Keene on February 20, 2020. Once again J.L. was ordered to return B.L. to T.T. and police assistance was ordered if B.L. was not returned by March 2, 2020. Compensatory time with T.T. was also ordered. This time B.L. was returned by J.L.’s parents. [ 12 ] Covid-19 began to seriously impact T.T.’s parenting time in April of 2020. J.L. refused to allow T.T. to take B.L.

He was concerned B.L. would be exposed to the virus while in T.T.’s care. As a result of further missed parenting time by T.T. an interim application to the Court was required. On May 27, 2020, Justice Konkin ordered J.L. to immediately return B.L. to T.T.’s care and also ordered the police to become involved and redeliver the child if J.L. refused to return her. Compensatory parenting time was again awarded to T.T. [ 13 ] J.L.’s refusal to deliver B.L. to her mother caused significant issues into the summer of 2020.

As a result of the stress being suffered by T.T. she considered giving up parenting of B.L. and reached out to J.L. in this regard. However, J.M., her family support worker, discussed this with her and T.T. remained committed to parenting B.L. The issue of pick-ups continued to be an issue between 2020 and the date of trial in 2022. T.T. had and continues to have no vehicle. She was and continues to be dependent on friends and family for transportation. When J.L. moved to Regina with B.L. it was agreed that he would be responsible for all travel associated with parenting exchanges.

That ended following the move. [ 14 ] In December of 2020 another parenting issue arose related to travel and exchanges. T.T. went to Regina to pick- up B.L. for her regularly scheduled parenting time and J.L. refused to let T.T. take B.L. As a result a further interim application was required. On December 23, 2020, Justice Bardai ordered J.L. to return B.L. to T.T.’s care and also ordered the police to assist if required. [ 15 ] J.L. filed a variation application in December of 2020 alleging a change in circumstance claiming B.L. was at risk in T.T.’s care.

An interim order outlining one-time responsibility for travel was issued by Justice Acton on January 13, 2021. J.L. was also ordered to provide financial disclosure by January 14, 2021. [ 16 ] J.L.’s variation application was heard by Justice Haaf on January 27, 2021. On February 1, 2021, she issued a fiat denying his variation application finding no evidence that B.L. was at risk. Justice Haaf did change exchange times to 4:00 p.m. Costs were awarded to T.T. in the amount of $1,500.00.

J.L. appealed the order of Justice Haaf and subsequently abandoned his appeal. [ 17 ] Apart from the initial interim application there have been no less than six court orders requiring J.L. to return B.L. to T.T. since February of 2020. Three of these have included police assistance provisions. T.T. continues to struggle to pick B.L. up on her scheduled exchange date as she does not have a vehicle with which to retrieve the child and is dependent on others for rides.

J.L. continues to refuse to return B.L. to Saskatoon as agreed and in compliance with the initial Justice Klatt order and those that have followed it. He raises concerns with respect to T.T.’s parenting ability, her lack of consistency, her housing, and her lifestyle in general.

He alleges she provides inadequate care to their daughter. None of his concerns are supported by the evidence presented at trial. The parties now share parenting on a seven-day weekly basis with exchanges occurring at 4:00 p.m. on Sundays, when such exchanges do occur. [ 18 ] Since B.L.’s birth in [ redacted ] of 2019 T.T. has been unemployed. She suffers from depression and anxiety which have been controlled effectively by appropriate treatment. She receives social assistance and child tax credits. J.L. has been employed in the automobile sales business since meeting T.T.

In 2017 he earned $159,062.00, in 2018 he earned $146,437.00 and in 2019 he earned $141,189.00. He was unemployed for part of 2020 but did not provide income information for that year other than to indicate in evidence that he expected it was under $70,000.00. J.L. alleges he suffered an issue with his vision which caused him to be unemployed for part of 2020. No evidence was presented to suggest his vision issues affected his employment at the date of trial or his ability to drive. In 2021 J.L. earned $83,484.15. Since B.L.’s birth he has paid no child support.

Summary of Relevant Evidence [ 19 ] Five witnesses provided evidence at trial. J.L., D.L., J.L.’s mother, and M.C., T.T.’s landlord, provided evidence on behalf of J.L. T.T. and J.M., T.T.’s Family Support Worker, provided evidence on behalf of T.T. [ 20 ] The parties met online in Saskatoon in 2018 while both were living in Saskatoon. J.L. was working in automobile sales at the time and the respondent T.T. was a stay-at-home mother of two young boys, T. and B. T.T. has treaty status and is a member of [ redacted ] First Nation.

The relationship between J.L. and T.T. was a rocky one from the start due in part to J.L.’s drinking. T.T. also suffered from depression and anxiety which she received treatment for during her time with J.L. T.T. became pregnant with J.L.’s child in late 2018 and when she advised him of the pregnancy he was supportive of assisting in parenting the child. [ 21 ] In April of 2019 the parties ended their romantic relationship, having never lived together, but remained committed to co-parenting their child.

After B.L. was born on [ redacted ], 2019, J.L.’s mother D.L. came to Saskatoon from Regina to assist with the baby and stayed at J.L.’s home in Saskatoon. The parties had planned for D.L. to stay for two weeks but she ended up staying four months. The relationship between D.L. and T.T. was strained from the beginning. J.L. was working full-time during this period and T.T. felt D.L. was hostile towards her and very judgmental of her performance as a mother.

Following the birth the child was moved between J.L.’s residence and T.T.’s residence and while at J.L.’s residence D.L. cared for the child while J.L. worked during the day. [ 22 ] Following B.L.’s birth most of her time was spent at J.L.’s residence. J.L. preferred when B.L. was at his home and his mother was caring for her and T.T. acquiesced to this. Both J.L. and D.L. gave evidence that T.T.’s behaviour during this time appeared erratic because she would come and go from J.L.’s home on a regular basis.

T.T. gave evidence that she felt judged and controlled by D.L. and J.L. while in J.L.’s home during this time. The Court accepts T.T.’s evidence as fact in this regard and finds her behaviour during this period to be understandable given the circumstances. B.L. had issues with weight gain and reflux which required a modified formula. J.L. entered into evidence a journal outlining his concerns with B.L. but gave no evidence regarding the contents of the document other than indicating his mother had helped him prepare it based on notes he had prepared.

The Court finds this document does not provide much assistance and it is given little weight. No evidence exists to suggest that B.L. was other than a normal infant experiencing periodic issues as most infants do. [ 23 ] The relationship between B.L. and T.T. suffered during this time as D.L. was always present when T.T. was with B.L. at J.L.’s home and T.T. was permitted very little private parenting time with B.L. by J.L. The evidence was clear that J.L. and D.L. parent very differently than T.T. J.L. and D.L. are very structured in their approach to parenting generally.

When B.L. would be dropped-off they would provide extremely detailed lists to T.T. detailing B.L.’s

schedule and her needs, despite knowing T.T. was a third-time mother and had parented on her own for years. This affected T.T.’s ability to bond with the child and affected her depression and anxiety in a negative way. J.L. and D.L. were also not tolerant of changes to pick-up or drop-off times or changes to B.L.’s schedule. This created huge tension between the parties. It is the Court’s finding that J.L. and D.L. parent very differently than T.T., but neither can be faulted for their own unique approaches.

There is more than one way to raise a child, and absent any evidence of neglect or acting contrary to the child’s best interests, different parenting styles are acceptable. [ 24 ] As a result of the growing tension the situation began to have a negative effect on T.T.’s mental health. As a result she sought treatment. However, J.L.’s control on T.T.’s parenting continued. On May 12, 2019, which was Mother’s Day, T.T. packed up B.L.’s belongings from J.L.’s house and took B.L. to her home. As a result of her actions J.L. called the Mobile Crisis Unit of Child and Family Services and the police.

No action was deemed necessary by either the police or Child and Family Services. [ 25 ] J.L. had a petition issued and brought an application for sole interim primary parenting and supervised access for T.T. in June of 2019. B.L. was spending the majority of her time with J.L. being cared primarily by his mother at the time. J.L. had concerns with respect to the lack of predictability and parenting ability of T.T. due to her depression and the inconsistent scheduling of her parenting.

On August 23, 2019, Justice Klatt ordered that the parties would have joint custody of B.L. and equal parenting time on a five-day rotation with the parties having the ability to agree to changes in parenting time to accommodate their schedules and travel. [ 26 ] J.L. was not happy with the interim order. Within days of the order he contacted T.T. and indicated to her that he was withdrawing from parenting totally. He did not see B.L. for over two months. [ 27 ] During this time T.T. continued to be contacted by D.L. She sent pictures of B.L. to D.L. and tried to maintain a relationship with D.L.

In October of 2019, J.L. reached out to T.T. and indicated he wanted to resume parenting on a shared basis pursuant to the Justice Klatt order. He gave evidence that he was contacted regarding B.L.’s immunizations and felt it necessary to re- engage in parenting at this time. [ 28 ] During the months of October through to December shared parenting resumed pursuant to the Justice Klatt order. On December 31, 2019, T.T. learned that J.L. was planning to move to Regina with B.L. because she discovered packed boxes in his residence.

J.L. indicated he was moving to Regina for employment and for the support of his parents during his parenting of B.L. He did not ask T.T.’s permission or seek her input regarding the move. T.T. did not have a vehicle or a means to travel to Regina and the

move caused her concern for that reason. J.L. indicated to her at the time that he would be responsible for transporting B.L. to and from Saskatoon for parenting time with T.T. following his move to Regina. Regina is 263 kilometres from Saskatoon. [ 29 ] Following J.L.’s move to Regina the relationship between J.L. and T.T. began to deteriorate further. J.L. and D.L. were frustrated with T.T.’s inability to pick B.L. up at a consistent date and time. T.T. did not have a vehicle and was dependent on friends and family for rides.

J.L. and D.L. did not approve of the cleanliness of T.T.’s home and objected if B.L. was allowed to sit on a blanket on the floor with toys. They did not feel T.T. interacted enough with B.L. However, they were rarely with her when she did to witness the interactions. On one occasion B.L. was returned to J.L. with a bump on her head and J.L. and D.L. immediately jumped to the conclusion that T.T. had been neglectful in caring for B.L. yet no evidence to support this was provided at trial. On one occasion T.T. forgot to return B.L.’s medicine when B.L. was returned.

D.L. and J.L. both gave evidence at the trial that this caused them grave concern as to her ability to parent, even though this occurred on only one occasion and J.L. was able to readily refill the prescription. J.L. also gave evidence that he felt T.T. was involved in selling or using drugs, yet no evidence was presented to support this allegation. T.T. denied any use or involvement with drugs either before, during or after her pregnancy during the trial. I accept her evidence as fact. [ 30 ] In January of 2020 B.L. was not returned to T.T.

This resulted in an interim application for immediate return of the child and police assistance, if necessary. By order dated February 14, 2020, Justice Goebel ordered J.L. to return B.L. and compensatory parenting time for T.T. The parties were also ordered to attend the High Conflict Parenting After Separation Course. [ 31 ] As a result of J.L.’s refusal to return B.L., a further interim order was rendered by Justice Keene on February 20, 2020. Once again J.L. was ordered to return B.L. to T.T. and police assistance was ordered if B.L. was not returned by March 2, 2020.

Compensatory time with T.T. was also ordered. This time B.L. was returned to T.T. by J.L.’s parents. [ 32 ] Covid-19 began to seriously impact T.T.’s parenting time in April of 2020. D.L. and J.L. were concerned that T.T. was not following proper Covid-19 protocols and given J.L. was living with the [ parents of J.L. ] with B.L. and the [ parents of J.L. ] were seniors this caused them concern. There was no evidence presented, however, to suggest that T.T. did not comply with provincial protocols regarding Covid-19.

D.L. and J.L. were also concerned with T.T. driving on winter roads yet there was no evidence presented to suggest driving was not recommended on the dates T.T. travelled. T.T. testified at trial that early in 2020 travel had become a significant concern in that J.L. refused to transport B.L. both ways and T.T. did not have access to a vehicle. T.T. testified that she would contact J.L. if she was not able to come because she could not find a ride and ask him to bring B.L. to her.

J.L. consistently refused. [ 33 ] As a result of concerns on the part of D.L. and J.L. regarding Covid-19 T.T. missed B.L.’s first birthday and further court-ordered parenting time and an interim application to the Court was required. On May 27, 2020, Justice Konkin ordered J.L. to immediately return B.L. to T.T.’s care and also ordered the police to become involved and redeliver the child if J.L. refused to return her. Compensatory parenting time was again awarded to T.T. [ 34 ] The lack of cooperation on the part of J.L. with respect to delivery of B.L. caused significant issues into the summer of 2020.

As a result of the stress being suffered by T.T. she considered giving up parenting of B.L. and reached out to J.L. in this regard. However, J.M., her family support worker, discussed this with her and T.T. remained committed to parenting B.L. [ 35 ] The issue of pick-ups continued to be an issue between 2020 and the date of trial in 2022. T.T. had and continues to have no vehicle. She was and continues to be dependent on friends and family for transportation.

When J.L. moved to Regina with B.L. it was agreed that he would be responsible for all travel associated with parenting exchanges but that ended following the move. [ 36 ] In December of 2020 another parenting issue arose related to travel and exchanges. T.T. went to Regina for her regularly scheduled parenting time and J.L. refused to let T.T. take B.L. As a result a further interim application was required.

On December 23, 2020, Justice Bardai ordered J.L. to return B.L. to T.T.’s care and also ordered the police to assist if required. [ 37 ] In December of 2020 J.L. filed a variation application alleging a change in circumstance requesting that the interim order of Justice Klatt be varied. He was concerned there was a risk of harm to B.L. while in T.T.’s care. An interim order outlining one-time responsibility for travel was issued by Justice Acton on January 13, 2021.

J.L. was also ordered to provide financial disclosure by January 14, 2021. [ 38 ] J.L.’s variation application was heard by Justice Haaf on January 27, 2021. On February 1, 2021, she issued a fiat denying his variation application, finding no evidence of risk of harm to B.L., and changing exchange times to 4:00 p.m. Costs were awarded to T.T. in the amount of $1,500.00. J.L. appealed the order of Justice Haaf and subsequently abandoned his appeal. [ 39 ] J.M. was called as a witness in support of T.T.’s case. She is a Family Support Worker employed with Haven Family Support in Saskatoon, Saskatchewan.

She has worked in this capacity for 15 years. [ 40 ] J.M. first met T.T. when T.T.’s second son was born. T.T. was suffering from very serious post-partum depression and reached out for help approximately 10 years ago. J.M. indicated in her evidence that T.T. had not required support for the entirety of the past 10 years, but on an “on call” basis. Sometimes J.M. would see T.T. two to three hours a week, sometimes she would not see her for a month.

As a Family Support Worker J.M. is responsible for assisting T.T. in booking appointments, helping her understand professionals, family routines and structure, as required. [ 41 ] J.M. indicated in her evidence that her first priority was always to protect the children in her assignment. She has a professional obligation and duty to report any concerns to the Ministry of Social Services and the police regarding children in the families she serves.

She indicated in evidence she had never had any concerns with respect to T.T.’s parenting and no cause to contact either the Ministry of Social Services or the police regarding T.T. She stated that T.T. reached out to her when she began seeing J.L. as she had concerns with respect to his addiction. J.M. was aware that T.T.’s mental health was struggling following J.L.’s move to Regina. She gave evidence that B.L. had an easy relationship with T.T. when she was a baby and was relaxed and content in T.T.’s care.

J.M. attended some but not all medical appointments and indicated there were no ongoing medical concerns. On occasion J.M. would attempt to get vouchers for gas from benevolent funds so that T.T. could afford to purchase gas to pick-up B.L.

[ 42 ] J. M. indicated in her evidence that if T.T. is awarded parenting of B.L. she will be provided with supports, including psychiatric supports if required through the SAID program which T.T. participates in. She stated that in her view, having witnessed T.T. parenting, T.T. can provide for all of B.L.’s needs, and J.M. will continue to assist her with all of B.L.’s ages and stages of development if B.L. is placed in T.T.’s care. [ 43 ] M.C. was called as a witness by J.L. He has been T.T.’s landlord since January of 2021.

M.C. gave evidence that T.T. is a responsible tenant and there have been no disturbances since he has been responsible for the property where T.T. lives. [ 44 ] Apart from the initial interim application there have been no less than six court orders requiring J.L. to return B.L. to T.T. since February of 2020. Three of these have included police assistance provisions. T.T. continues to struggle to pick B.L. up on her scheduled exchange date as she does not have a vehicle with which to retrieve the child and is dependent on others for rides.

J.L. continues to refuse to return B.L. in compliance with the initial Justice Klatt order and those that have followed it. He raises concerns with respect to T.T.’s parenting ability, her lack of consistency, the quality of her housing, and her lifestyle in general. He alleges she provides inadequate care to their daughter. None of his concerns are supported by the evidence presented at trial. They now share parenting on a seven-day rotating

schedule with exchanges occurring on Sundays at 4:00 p.m., when they do occur. The evidence presented by each of T.T., J.M., J.L., and D.L. was that B.L. continued to be non-verbal at the date of trial. The parties have a plan to address this with continued speech therapy and continue to support B.L. in ongoing routine medical appointments and any required treatment.

There has been considerable conflict related to medical appointments and treatment, however, in that T.T. gave evidence that J.L. tries to obtain medical information without her knowledge and has misrepresented the parenting arrangement to medical professionals. The Court accepts T.T.’s evidence as fact in this regard. [ 45 ] T.T. presented evidence at trial that she has a plan for B.L. moving forward if she is granted primary parenting. She has selected a pre-school at the school her son B. is attending, [ redacted ], for B.L. A school bus would pick both B.L. and B. up for school.

T.T. indicated in her evidence that both of her siblings are also readily available to assist with appointments and activities as is J.M. [ 46 ] Since B.L.’s birth in [ redacted ] of 2019 T.T. has been unemployed. She suffers from depression and anxiety which have been controlled effectively by appropriate treatment. She continues to be a stay-at-home mom. B.L. enjoys a positive relationship with her two brothers B., who is 10 years old, and T., who is 14 years old. T.T. receives social assistance and child tax credits. J.L. has been employed in the automobile sales business since meeting T.T.

In 2017 he earned $159,062.00, in 2018 he earned $146,437.00 and in 2019 he earned $141,189.00. He was unemployed for part of 2020 due to an alleged issue with his vision and did not provide income information for that year, other than in evidence he indicated that he expected it was less than $70,000.00. There was no evidence presented at trial to suggest his alleged vision issues affected his current employment or his ability to drive. In 2021 J.L. earned $83,484.15. Since B.L.’s birth he has paid no child support. Analysis 1.

What parenting arrangement is in the best interests of B.L.? [ 47 ] The applicable legislation respecting relocation is The Children’s Law Act, 2020 , SS 2020, c 2 [ Act ], which came into force on March 1, 2021. The relevant provisions are as follows: Change in residence 12(1) This

section only applies if the change in residence does not constitute a relocation.

(2) A person who has decision-making responsibility or parenting time with respect to a child and who intends to change the person’s place of residence or that of the child shall notify any other person who has decision-making responsibility or parenting time with respect to the child of the proposed change in residence.

(3) The notice mentioned in subsection (2) must be given in writing and must set out: (

a) the expected date of the change in residence; and (

b) the address of the new residence and contact information of the person or child, as the case may be.

(4) Notwithstanding subsections (2) and (3), the court, on application made without notice, may provide that the requirements in those subsections do not apply or may modify them, including where there is a risk of family violence. Notice of intended relocation 13(1) A person who, pursuant to a parenting order, has decision-making responsibility or parenting time with respect to a child and who intends to undertake a relocation shall notify any other person who has decision-making responsibility or parenting time with respect to the child of the proposed relocation.

(2) The notice mentioned in subsection (1) must be given in writing at least 60 days before the expected date of the proposed relocation and must set out: (

a) the expected date of the relocation; (

b) to the extent known, the address of the new place of residence and contact information of the person or child, as the case may be; and (

c) a proposal as to how decision-making responsibility or parenting time, as the case may be, could be exercised.

(3) Notwithstanding subsections (1) and (2), the court, on application made without notice, may provide that the requirements in those

subsections do not apply or may modify them, including where there is a risk of family violence. Relocation authorized 14 A person who has given notice pursuant to

section 13 and who intends to relocate a child may do so as of the date set out in the noticeif: (

a) the relocation is authorized by the court; or (

b) the following conditions are satisfied: (

i) the person with decision-making responsibility or parenting time with respect to the child who has received a notice pursuant tosubsection 13(1) does not object to the proposed relocation within 30 days after the date on which the notice is received, by filing withthe court: (

A) an objection in the prescribed form; or (

B) an application pursuant to

section 8; and (ii) there is no order prohibiting the relocation. Best interests of child — additional factors to be considered for relocation 15(1) In deciding whether to authorize a relocation of a child, the court shall take the following into consideration, in addition to thefactors mentioned in

section 10: (

a) the reasons for the relocation; (

b) the impact of the relocation on the child; (

c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and thelevel of involvement in the child’s life of each of those persons; (

d) whether the person who intends to relocate the child complied with any applicable notice requirement pursuant to

section 13 orpursuant to family law legislation, an order, an arbitral award or an agreement; (

e) the existence of an order, an arbitral award or an agreement that specifies the geographic area in which the child is to reside; (

f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-makingresponsibility or parenting time, taking into consideration, among other things, the location of the new place of residence and the travelexpenses; (

g) whether each person who has decision-making responsibility or parenting time or a pending application for a parenting order hascomplied with all obligations pursuant to family law legislation, an order, an arbitral award or an agreement, and the likelihood of futurecompliance.

(2) In deciding whether to authorize a relocation of the child, the court shall not consider whether the person who intends to relocate thechild would relocate without the child if the child’s relocation was prohibited. Burden of proof for relocation 16(1) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child spendsubstantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocationwould be in the best interests of the child.

(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child spends thevast majority of time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden ofproving that the relocation would not be in the best interests of the child.

(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.

(4) The court may decide not to apply subsections (1) and (2) if the order mentioned in those subsections is an interim order. Costs relating to exercise of parenting time on relocation 17 If the court authorizes the relocation of a child, the court may provide for the apportionment of costs relating to the exercise ofparenting time by a person who is not relocating between that person and the person who is relocating the child. [48] Judicial decisions concerning the parenting of children and any possible relocation are made with regard to thebest interests of the child.

Gordon v Goertz, (SCC), [1996] 2 SCR 27, has historically been authority for this approachand is the basis upon which the amendments to the legislation regarding relocation which came into force in 2021 were drafted. TheSupreme Court in Barendregt v Grebliunas, 2022 SCC 22, 71 RFL (8th) 1, further refined the approach to be followed. [49] The first step in the relocation analysis is to determine which party bears the burden of proof. Section 16(1) ofthe Act provides that if the parties to a proceeding substantially comply with an order, award or agreement, the party who intends to

relocate the child has the burden of proving that the relocation would be in the best interests of the child. Section 16(4) of the Act provides that the court may not apply s. 16(1) if the order is an interim order. At the time of B.L.’s relocation to Regina in January of 2020 J.L. and T.T. were complying with an interim court order which granted them shared parenting and joint decision-making for B.L. The interim order was put in place in August of 2019, based on the sworn evidence presented at the interim application.

There had been no change in circumstances between August of 2019 and the date J.L. moved with B.L. which was December of 2019. J.L. indicated in his evidence that his reasons for moving were to obtain the support of his parents and find employment. He had been provided with parental support while in Saskatoon and had a job in Saskatoon at the time of the interim order. No evidence was presented as to the lack of employment in Saskatoon. I therefore find that the interim order is a significant factor in determining onus and s. 16(1) of the legislation governs.

J.L. therefore bears the onus of proving that the relocation is in the best interests of B.L. I. The Best Interests Factors [ 50 ]

Section 10 of the Act sets out the factors that are to be considered by the Court in determining what is in B.L.’s best interests. They are as follows: Best interests of child 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. (1) Section 10(3)(a) - The Child’s Needs [ 51 ] The legislation requires the court to consider the child’s needs, given their age and stage of development, such as their need for stability. B.L. is a lucky girl in that she has two parents who clearly love her and have the ability to meet her emotional and physical needs. Both J.L. and T.T. have demonstrated an ability to meet B.L.’s needs. She has, however, experienced significant disruption in her short life due to the conflict between the parties and the differences in their parenting approaches and styles.

Stability has been lacking and conflict has been significant. The Court has considered B.L.’s need for stability and a lack of conflict as primary factors in arriving at a decision that minimizes conflict to the greatest extent possible and provides stability for B.L. so that she knows what to expect and where her home is and will not be relocated and moved unexpectedly. There needs to be some

schedule that is supported by both parties which B.L. can depend on. There are significant challenges in coming up with an arrangement that will suit both parties in this case, as one of those parties lives in Regina and the other does not have the financial means or a vehicle to travel. B.L.’s need for stability and lack of conflict, however, needs to be paramount in the parenting arrangement moving forward.

The Court determines this to be a major factor in supporting its decision on parenting. (2) Section 10(3)(b) -The Nature and Strength of the Child’s Relationship with Each Parent, Siblings and Grandparents [ 52 ] B.L. has been denied a relationship with her mother. The combined factors of J.L.’s oppressive and judgmental nature and his move with B.L. to Regina in January of 2020 have effectively stood in the way of T.T. and B.L. developing any sense of a normal mother-daughter relationship. There is no doubt that J.L. loves his daughter and believes he is acting in her best interests.

The Court does not doubt that she loves him in return. B.L. also has a strong bond to J.L.’s mother, D.L. The strong bond B.L. shares with J.L. and D.L. has come at a cost to B.L.’s relationship with her mother. In taking B.L. to Regina with him and refusing to support the travel necessary to provide parenting time to T.T., J.L. has taken from B.L. one of the most important and key relationships of her life – her mother. J.L. has refused to recognize the significance of this relationship, and has refused to support and nurture it.

The years between the move in 2020 and present cannot be replaced. [ 53 ] B.L. also has half siblings in Saskatoon with whom she enjoys a positive relationship. If B.L. is allowed to spend appropriate time with T.T. B.L. has the opportunity to develop lasting and strong relationships with her half-brothers T. and B. who currently reside with T.T.

The parenting plan put in place must recognize the significance of T.T.’s role as B.L.’s mother and be crafted in such a way as to ensure that the bond between mother and daughter is supported and protected, and that B.L. is able to develop her relationship with T. and B. who are her only siblings to date.

The Court determines this to be a major factor supporting its decision on parenting. (3) Section 10(3)(c) -Willingness to Support the Development and Maintenance of the Child’s Relationship with the Other Parent [ 54 ] Perhaps no other factor is more prominent and should be considered most significantly in this case than J.L.’s absolute unwillingness to support the development and maintenance of B.L.’s relationship with T.T.

Whether intentional or not, J.L.’s words and actions in judging T.T. and bringing his mother to Saskatoon upon the birth of B.L. for a four-month period of time, when T.T. did not want or require D.L.’s presence, did nothing but to undermine and jeopardize the relationship between B.L. and T.T. The relationship between T.T. and B.L. was in jeopardy from the moment B.L. was born. J.L.’s decision to move B.L. to Regina to live with him and his parents only exacerbated an already difficult situation.

J.L. knew when he chose to move with B.L. that T.T. did not have a vehicle or the financial means to be engaged in the travel necessary to assist in transporting the child in accordance with the shared parenting order in place at the time. He did not discuss the move with her and he provided her with no financial support or means of transportation in order to assist. He promised her at the time of the move that he would be responsible for travel.

That ended shortly after the move. [ 55 ] Repeated court applications and court orders were not enough to encourage J.L. to be more cooperative and supportive of T.T.’s relationship with B.L. No less than six interim orders were issued by the Court requiring J.L. to return B.L. Three of these included police assist clauses allowing the police to become involved if J.L. did not comply in returning the child. Despite this, J.L. refused to transport the child. It was simply unrealistic to expect that given the circumstances T.T. would share in the travel obligations.

She had no vehicle, very little disposable income, and J.L. was providing her with absolutely no child support. Any parenting arrangement going forward must recognize the total lack of willingness of J.L. to date in supporting T.T.’s relationship with B.L. and be crafted in such a way as to support and protect this relationship going forward with realistic expectations on the part of both parties. The Court determines this to be a major factor supporting its decision on parenting. (4) Section 10(3)(d) - The History of the Care of the Child [ 56 ] To the date of judgment B.L. has been in the primary care of J.L.

The evidence presented at trial was clear that on a day-to-day analysis T.T. has not had the ability to exercise her parenting time as was intended by the original Justice Klatt order. The evidence presented by both D.L. and J.M. was clear that both parties are able to provide for B.L. and meet her needs and both parties have a positive and nurturing relationship with their daughter. B.L. has not enjoyed the relationship she might have had with her mother during the course of the last three years had J.L. been more cooperative and supportive in nurturing that relationship, however.

The history of B.L.’s care has been controlled and manipulated in large part by J.L. The parenting arrangement moving forward must recognize that it is in B.L.’s best interests to be in a home where her needs are met and she is able to establish and develop a relationship with both parties. The fact that J.L. has been the primary caregiver to date should not jeopardize B.L.’s ability to form a strong relationship with her mother before it is too late and any potential bond is irrevocably broken .

The Court determines this to be a major factor supporting its decision on parenting. (5) Section 10(3)(e) - The Child’s Views [ 57 ] B.L. is only three years old and far too young to have a preference as to what parenting arrangement is appropriate for her.

(6) Section 10(3)(f) -The Child’s Cultural, Linguistic, Religious and Spiritual Upbringing and Heritage [ 58 ] B.L. is of mixed race. T.T. has treaty status and is a registered member of [ redacted ] First Nation. J.L. is Anglo- Canadian. T.T.’s ability to foster and support B.L.’s development as a child of mixed race is strong given her background and heritage. This is a factor to be considered in crafting a parenting arrangement going forward to ensure that B.L.’s cultural heritage and background are supported and protected.

The Court determines this to be a factor supporting its decision on parenting. (7) Section 10(3)(g) -Plans for the Child’s Care [ 59 ] J.L. presented no evidence at trial regarding his plans for the child’s care going forward other than to indicate that D.L. would continue to care for B.L. during the day and he hoped to one day obtain a home of his own for him and B.L. T.T. presented evidence at trial that she has a plan for B.L. moving forward if she is granted primary parenting. She has selected a pre-school at the school her son B. is attending, [ redacted ], for B.L.

A school bus would pick both B.L. and B. up for school. T.T. indicated in her evidence that both of her siblings are also readily available to assist with appointments and activities as is J.M. The ongoing parenting plan must consider each party’s plans for the care of B.L. moving forward and the plan must be crafted in such a manner as to protect B.L.’s best interests.

The Court determines this to be a factor supporting its decision on parenting. (8) Section 10(3)(h) - The Ability and Willingness to Care For and Meet the Needs of the Child [ 60 ] Both parties presented evidence at trial supporting their willingness to care for and meet the needs of the child.

Although there is no question that J.L. and T.T. have very different parenting styles, no evidence was presented to indicate that either party is not fully able and willing to meet the needs of B.L., although the manner in which each of the parties go about meeting those needs might be considerably different. (9) Section 10(3)(i) -The Ability to Communicate and Cooperate on Matters Affecting the Child [ 61 ] J.L. and T.T. struggle greatly with communication. Their views on parenting, scheduling and even communication differ significantly. J.L. is very structured in his approach to life and feels a need to

schedule and control factors related to B.L. and her care and communicate regularly both in writing and otherwise. T.T. is more fluid in her approach to parenting and does not feel the need to communicate unless necessary. This results in conflict with respect to health and medical care as well as everyday parenting issues. The parenting arrangement moving forward must consider the challenges these parties have in simply discussing matters, and recognize that conflict must be minimized to support B.L.’s best interests moving forward. The Court determines this to be a major factor supporting its decision on parenting. (10) Sections 10(3)(

j) and (k) – Family Violence and Any Civil or Criminal Proceedings [ 62 ] There are no allegations of family violence in this case or civil or criminal proceedings so analysis pursuant to these sections is not required. II. The Relocation Factors [ 63 ] Section 15(1) of The Children’s Law Act, 2020 requires that the court consider a variety of further factors in determining if relocation is appropriate in each circumstance. They are as follows: Best interests of child — additional factors to be considered for relocation 15(1) In deciding whether to authorize a relocation of a child, the court shall take the following into consideration, in addition to the factors mentioned in

section 10 : (

a) the reasons for the relocation; (

b) the impact of the relocation on the child; (

c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons; (

d) whether the person who intends to relocate the child complied with any applicable notice requirement pursuant to

section 13 or pursuant to family law legislation, an order, an arbitral award or an agreement; (

e) the existence of an order, an arbitral award or an agreement that specifies the geographic area in which the child is to reside; (

f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility or parenting time, taking into consideration, among other things, the location of the new place of residence and the travel expenses; (

g) whether each person who has decision-making responsibility or parenting time or a pending application for a parenting order has complied with all obligations pursuant to family law legislation, an order, an arbitral award or an agreement, and the likelihood of future compliance. (1) Section 15(1)(a) - The Reasons for the Relocation [ 64 ] At trial, J.L. gave evidence that the reason for his move with B.L. to Regina was for employment and for him to have the support of his parents during his parenting time with B.L.

There was no indication in the evidence that the job was to better J.L.’s career, nor did it offer an increase in his income, or that similar employment was not available in Saskatoon. In fact, J.L. gave evidence that his income decreased in 2020 by over half of what it had been in 2019. In 2019 J.L. earned slightly over $140,000.00. In

2020 he gave evidence that he earned under $70,000.00 due in part to disability and his unemployment. [ 65 ] The move to Regina occurred to allow J.L. to receive the support of his parents in parenting his daughter. J.L. cannot be faulted for wanting to include his parents in the life of his daughter and supporting her relationship with them. However, in this case it came with considerable cost. T.T. did not have a vehicle, had very little income, and had no way of getting to Regina to pick-up B.L. following her parenting time with her father.

J.L. assured T.T. he would be responsible for the travel, however, that stopped shortly after the move and this left T.T. with no means of picking up the child except to rely on the availability of family and friends which was not reliable at best. [ 66 ] The move to Regina was better for J.L., as it provided the support of his parents in parenting his daughter, and it provided a home for him and B.L. The move was also beneficial for J.L.’s parents in that it allowed them to develop a close relationship with B.L. The move was not in B.L.’s best interests nor did it benefit T.T. in any way.

In fact, the opposite is true. T.T. and B.L. saw less and less of each other as a result of the move. The move caused multiple court applications and five court orders requiring return of the child, with three ordering police assistance if the child was not returned. The move increased the already significant tension between the parties, caused further communication difficulties, and jeopardized the relationship of T.T. and her daughter. The parenting arrangement going forward must consider the fact that J.L. and his family alone benefited from the move to Regina. B.L. and T.T. did not.

The Court determines this to be a major factor supporting its decision on parenting. (2) Section 15(1)(b) - The Impact of the Relocation on the Child [ 67 ] There is no evidence to suggest that B.L. received anything short of exemplary care while living with her grandparents and father in Regina. She did, however, pay a significant price resulting from the relocation. Her time with her mother was limited and her relationship with her mother was impacted. B.L. saw increasingly less of T.T. as travel from Regina to Saskatoon became an issue.

The parenting arrangement going forward must consider the time with her mother that B.L. has lost and be crafted in such a manner as to protect their time together and allow them to nurture their relationship together. The Court determines this to be a major factor supporting its decision on parenting. (3) Section 15(1)(c) - The Amount of Time Spent with Each Person Who has Parenting Time and Their Level of Involvement [ 68 ] B.L. spent a considerable amount of time with J.L. and his parents and indeed the bulk of her time since relocating to Regina in 2020.

However, J.L. worked full-time and was not available to care for B.L. during weekdays. T.T. was and is available to provide this care to B.L. The bulk of B.L.’s care was done by J.L.’s mother, D.L. There is no question that J.L. was involved in the care of B.L. when he was in the home and not at work, but during his regularly scheduled work time, which represented the bulk of the hours B.L. was in his care, D.L. was responsible for her. The Court determines this to be a factor supporting its decision on parenting. (4) Sections 15(1)(

d) and (e) – Legislative Requirements [ 69 ] The provisions contained in ss. 15(1) (

d) to (

e) of the Act are not applicable in that the provisions requiring notice did not come into place until March 1, 2021 and the move to Regina occurred in January of 2020.

There was also no order, award or agreement that specified the geographic area within which B.L. was to reside. (5) Section 15(1)(f) – The Reasonableness of the Proposal of the Person Relocating to vary the Exercise of Parenting, Taking into Consideration the Location of the New Place of Residence and the Travel Expenses [ 70 ] Initially when the move to Regina was discussed J.L. assured T.T. that he would be responsible for all of the travel between Saskatoon and Regina. That changed soon after the move occurred with an expectation that she would do the pick-ups from Regina.

This was simply not a reasonable requirement on J.L.’s part. T.T. had no vehicle, limited income, and no way of retrieving B.L. She did the best she possibly could using what resources were available to her such as rides with friends and family, but those resources were not reliable and as a result many pick-ups were missed. Both T.T. and B.L. suffered in that their relationship was not allowed to develop and the unpredictability of travel caused increased tension and conflict between the parties.

The Court determines this to be a major factor supporting its decision on parenting. (6) Section 15(1)(g) – Whether the Person Who Has Decision-Making Responsibility or Parenting Time has Complied with All Obligations Pursuant to Orders and the Likelihood of Future Compliance [ 71 ] Perhaps the most striking and significant factor to be considered by this Court in evaluating the mobility considerations and whether or not J.L. should be allowed to relocate B.L. to Regina is whether or not he has complied with his obligations under court orders and the likelihood that he will comply with court orders in the future.

Subsequent to the initial parenting order made by Justice Klatt in August of 2019 there have been no less than six court orders requiring J.L. to return B.L. to T.T. Three of them have contained police assist clauses. Between February of 2020 and January of 2021, Justice Goebel, Justice Keene, Justice Konkin, Justice Bardai, Justice Acton and Justice Haaf all ordered J.L. to return B.L. to T.T. All of these orders were issued within just short of a year. J.L. was not persuaded by these court orders to comply with the shared parenting order put in place by Justice Klatt in August of 2019.

He simply ignored the Court. J.L. did what he wanted to do and paid no heed to Court intervention or the numerous court orders. The Court has no assurance at this point that he will comply with any orders issued subsequent to the trial. If T.T. is not provided with primary parenting of B.L. it is reasonable to assume that the continued pattern of contravention of court orders will be ongoing. The conflict will also be ongoing, and B.L.’s relationship with her mother will continue to suffer to a point where B.L. will no longer have any relationship with her mother.

The Court determines this to be a major factor supporting its decision on parenting. 2. What is appropriate child support in the circumstances? [ 72 ] Since B.L.’s birth in [ redacted ] of 2019 T.T. has been unemployed. She suffers from depression and anxiety which has been controlled effectively by appropriate treatment. She continues to be a stay-at-home mom. B.L. enjoys a positive relationship with her two brothers B., who is ten years old, and T., who is fourteen years old. T.T. receives social assistance and child tax

credits. J.L. has been employed in the automobile sales business since meeting T.T. In 2017 he earned $159,062.00, in 2018 he earned$146,437.00 and in 2019 he earned $141,189.00. He was unemployed for part of 2020 due to an alleged issue with his vision and has notprovided income information for that year, other than in evidence he indicated that he expected it was less than $70,000.00. There wasno evidence presented at trial to suggest his ongoing issues affect his current employment or his ability to drive.

In 2021 J.L. earned$83,484.15 according to his CRA T4 statement of all remuneration paid which was entered into evidence. Since B.L.’s birth he has paidno child support. [73] Counsel for T.T. asks that the Court impute income to J.L. for the year 2020 based on the average of hisprevious three years income and that his income for 2021 be based on the imputed average of 2017-2019 as a result of hisunderemployment.

In the decision Klein v Klein, 2019 SKQB 268 at paras 10 and 17, the Court states the following in relation toimputing income for child support purposes: 10 The overarching issue to be decided is whether or not I should, in the circumstances and on the basis of the evidence before me,impute income to the respondent for child support purposes.

In V.G.B. v E.H., 2004 SKQB 280, [2006] 2 WWR 502 [V.G.B.], Ryan-Froslie J. (as she then was) summarized the principles applicable to imputing income for child support purposes as follows: [11] Sections 15 to 20 of the Guidelines sets out the method by which a court should determine income for child support purposes. Inaccordance with s. 16, the general rule is that an individual’s income for child support purposes is determined using the sources ofincome set out under the heading “total income” in the T-1 General form issued by Canada Customs and Revenue Agency and adjustedin accordance with

Schedule III of the Guidelines. Mr. [E.H.] has been unemployed since May, 2003. There is no evidence that he isbeing anything other than honest with regard to his financial circumstances. The only issue is whether the Court can impute income tohim pursuant to s. 19(1)(

a) of the Guidelines on the basis he is intentionally under-employed or unemployed. That

section reads asfollows: 19.

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstancesinclude the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required bythe needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse. [12] Pursuant to s. 19 of the Guidelines, the court has the discretion to impute income to a parent where it considers that appropriate inthe circumstances.

Section 19 sets out a non-exhaustive list of circumstances where a court may consider imputing income to a parent.One of those circumstances is where a parent is “intentionally under-employed or unemployed”. [13] Any analysis of s. 19(1)(

a) requires a three-step process. Firstly, the court must determine whether the parent is intentionally under-employed or unemployed. Secondly, if the parent is intentionally under-employed or unemployed, the court must determine whether anyof the exceptions set out in s. 9(1)(

a) apply. Those exceptions cover situations where the under-employment or unemployment is requiredby reason of (1) the needs of a child of the marriage; (2) the needs of any child under the age of majority; (3) the reasonable educationalneeds of the payor; or (4) the reasonable health needs of the payor. Finally, if a court determines a parent is intentionally under-employedor unemployed and that none of the exceptions set out in s. 19(1)(

a) apply, then the court must decide whether to exercise its discretionand impute income. [14] There are two lines of judicial authority dealing with the meaning of “intentionally under-employed or unemployed” One line ofauthority holds that “intentionally” means “voluntarily”. It applies where a parent chooses to be under-employed or unemployed. Nospecific intent to evade child support is necessary. This was the approach adopted by the Manitoba Court of Appeal in Donovan v.Donovan, 2000 MBCA 80, 9 R.F.L. (5th) 306 (Man. C.A.), the Ontario Court of Appeal in Drygala v.

Pauli (2002), (ON CA), 29 R.F.L. (5th) 293 (Ont. C.A.) and by Justice Dawson of this Court in Mullen v. Mullen, 2004 SKQB 65, [2004] S.J. No.85 (Q.B.) (QL). The second line of authority holds that “intentionally” in s. 19(1)(

a) requires a specific intent by the parent paying childsupport to evade that obligation. This line of reasoning was adopted by the Alberta Court of Appeal in Hunt v. Smolis-Hunt, 2001 ABCA229, 20 R.F.L. (5th) 409 (Alta. C.A.). [15] Obviously, an individual who chooses to be under-employed or unemployed to avoid paying child support is “intentionally under-employed or unemployed”. I cannot, however, conclude that is the only circumstance envisioned by s. 19(1)(a).

I adopt the reasoning ofthe Manitoba Court of Appeal in Donovan and the Ontario Court of Appeal in Drygala, supra and find “intentional” extends to situationswhere a parent required to pay child support chooses, for whatever reason, to earn less than they are capable of earning. The fact theparent “chooses” to be under-employed or unemployed, brings their situation within the meaning of “intentional” and creates thecircumstance envisioned by s. 19(1)(a).

The reason for such a choice does not change the fact it is “intentional” but it may impact thecourt’s decision whether to exercise its discretion and impute income. [16] The principles to be employed by a court in determining whether to exercise its discretion where a parent is intentionally under-employed or unemployed have been considered by a number of courts. Justice Steel of the Manitoba Court of Appeal in Donovan, supra,indicated the question is what is reasonable in the circumstances.

At para. 18 he set out the principle as follows: A decision as to whether a person is capable of earning more income than they are presently earning depends on the context.Fundamentally, the court will impute income in the same fashion that it did before the introduction of the Federal Child SupportGuidelines. Payor spouses are still entitled to make decisions in relation to their career path so long as those decisions are reasonable atthe time they are taken considering all the circumstances. [17] Julien Payne, in his

article Imputing Income, “Determination of Income, Disclosure of Income,” Child Support in Canada, DanrabInc., August 3, 1999, described the principles which apply as follows: 1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is “noanswer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn incomeis an irrelevant factor.” (Van Gool v. Van Gool (1998), (BC CA), 166 D.L.R. (4th) 528 (B.C. C.A.) at para. 30).

2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under thecircumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters asavailability of work, freedom to relocate, and other obligations. 3. A parent’s limited work experience and job skills do not justify a failure to pursue employment that does not require significant skillsor employment in which the necessary skills can be learned on the job.

While this may mean that job availability will be at the lower endof the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simplybecause the parent cannot obtain interesting or highly paid employment. 4. Persistence in unremunerative employment may entitle the court to impute income. 5. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. 6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income.

These principles have been quoted in numerous cases including Donovan, supra and Drygala, supra. … 17 It has been held that income may be imputed to a spouse who alleges ill health as an explanation for not seeking employment wherethere is not sufficient medical evidence to support the allegation. See: Allen v Allen, 2002 ABQB 47; Wolbaum v Royal (1998), (SK KB), 166 Sask R 60 (QB); Millar v Millar, (BCSC); Symons v Symons, (BCSC). [74]

Section 17 of the Guidelines states the following with respect to patterns of income: 17

(1) If the court is of the opinion that the determination of a spouse’s annual income under

section 16 would not be the fairestdetermination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that isfair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. [75] Based on the income tax information provided the Court finds J.L.’s income for child support purposes to be$146,437.00 for 2019 and $141,189.00 for 2020. The Court is not prepared to find J.L. was underemployed in either 2020 or 2021.

It isreasonable to assume that his income would have dropped in 2020 due to illness and childcare, which J.L. provided evidence on at thetrial and the Court accepts as fact due to the evidence of disability benefits received. It is also reasonable to assume that J.L.’s incomedecreased in 2021 due to his role in providing care to B.L.

Because J.L. has failed to provide any independent verification of income for2020, the Court has no alternative but to determine his income to be based on an average of his 2017 to 2019 earnings, with a discount forany loss of income he may have experienced due to disability or childcare. His average earnings for 2017 to 2019 were $148,896.00.Applying a 50 percent discount factor to that number to account for illness and childcare, the Court finds J.L.’s income for child supportpurposes in 2021 to be $74,448.00, based on his determined 2020 income.

His income for child support purposes for 2022 shall be asoutlined in his T4 for 2021 which is $83,522.90. This is also his determined income for support from January to July of 2023. [76] Based on the above, J.L. is responsible for retroactive child support in the amount of $36,942.00. His 2019obligation of four months is $1,244.00 per month, totalling $4,976.00, based on his reported 2018 income of $146,437.00. His 2020obligation is 12 months at $1,203.00 a month, totalling $14,436.00 based on his reported 2019 income of $141,189.00.

His 2021obligation is 12 months at $629.00 per month, totalling $7,548.00 based on the Court determined income for 2020 of $74,448.00 and his2022 obligation is 12 months at $713.00 per month, totalling $8,556.00, based on his reported 2021 income of $83,522.90. J.L.’sretroactive 2023 child support for January and February of 2023 is $1,426.00. J.L. shall continue to pay child support based on his 2021income at a rate of $713.00 on the first of each and every month, commencing March 1, 2023, to be adjusted July 1, 2023 based on his2022 reported income.

J.L. shall also be required to pay additional payments of $400.00 per month towards his retroactive arrears, withsuch payments commencing March 1, 2023, and continuing on the first of each and every month until his arrears are paid in full. Allincome tax information shall be exchanged by the parties no later than May 31 of each year with adjustments to be in place no later thanJuly 1 of each year. As T.T. receives income from social assistance, her income for child support purposes is zero for all of the years inissue and there is no s. 9 set-off.

J.L. shall also be responsible for the costs of all expenses under s. 7 of the Federal Child SupportGuidelines, SOR/97-175 [Guidelines], as T.T.’s income for child support purposes is zero. Conclusion [77] Having heard this matter and having weighed all the evidence presented, and having considered the bestinterests of B.L., born [redacted], 2019, as outlined in the reasons above, the Court finds that an appropriate order concerning theparenting of B.L. and the child support flowing from that parenting order to be as follows: 1.

The parties shall have shared decision-making responsibility on all matters concerning the well-being of B.L., with thefollowing exception. If agreement cannot be reached on issues concerning B.L.’s health care, the responsibility for these decisions shallultimately rest with T.T. The reason for this condition is to minimize the conflict experienced regarding decisions in this regard andallow the parties to move forward amicably. 2. Effective March 1, 2023, T.T. shall have primary parenting of B.L., with B.L.’s primary residence being in Saskatoon,Saskatchewan for the reasons previously outlined. 3.

J.L. is granted what the Court considers to be extremely generous parenting time with B.L., significantly more than wouldtypically be awarded to a parent who is not in a shared parenting arrangement or is not the parent with whom the child primarily resides.Effective March 10, 2023, J.L. is granted parenting time with B.L. every first and second weekend in every block of three weekends,commencing at 8:00 p.m. on Friday and ending at 8:00 p.m. Sunday. This parenting time is to be exercised in Saskatoon unless T.T.agrees otherwise.

The reason for the restriction is to minimize the conflict that has occurred between the parties related to J.L.’s failure to

return B.L. to T.T. in the past. Restricting J.L.’s parenting time to Saskatoon will assist him in returning B.L. as he will not be required to make the additional trip from Regina to Saskatoon. It will also assist T.T. if enforcement measures are necessary as she will be dealing with local police authorities and will not have to travel to Regina if enforcement is necessary. Minimized conflict related to transportation of B.L. is in her best interests. In the event T.T. agrees to B.L.’s removal from Saskatoon, J.L. will be responsible for picking up B.L. and returning her to T.T. at the end of his parenting time.

All responsibility for travel and all costs associated with travel shall be J.L.’s sole responsibility. The move to Regina benefited J.L. solely and therefore it is appropriate that he assume the costs and responsibilities related to the travel which followed resulting from his decision to move to Regina. 4. In addition to the weekend parenting time outlined above, J.L. shall be granted parenting time every first and second Christmas, out of every three, commencing in 2023 from 8:00 p.m. December 23 to 8:00 p.m. January 2.

With respect to Easter break and February break once B.L. begins school, J.L. shall be granted parenting time every second and third Easter break and February break, in every group of three, commencing the year B.L. begins school. Easter and February break parenting time shall commence at 8:00 p.m. the last day of school and end at 8:00 p.m. the day before school resumes. J.L. shall also be granted summer access from 8:00 p.m. on July 1 to 8:00 p.m. the Sunday of the second week of August. All transportation obligations and costs related to weekend access shall apply.

This holiday parenting time is not restricted to Saskatoon. 5. T.T. has requested an indefinite police assist clause in the event J.L. does not return B.L. to T.T. at the end of his parenting time. The Court is not inclined to grant such a provision as it would not be appropriate on an indefinite basis. J.L. has sole responsibility for transporting B.L. pursuant to the terms of this judgment. If he fails to return B.L. to T.T., T.T. may apply to the Court to enforce the judgment.

If T.T. is required to take steps to enforce the judgment, she may also apply to the Court for costs associated with any enforcement measures. 6. J.L. shall be responsible for payment to T.T. of child support payments pursuant to the Guidelines in the amount of $713.00 per month commencing March 1, 2023. He shall also be responsible for retroactive child support in the amount of $36,942.00 as previously outlined. J.L.’s income is determined to be $83,522.90 for the purposes of support. He shall also be responsible for all agreed s. 7 expenses.

J.L. shall also be required to pay additional payments of $400.00 on the first of each and every month commencing March 1, 2023 toward his retroactive arrears until such arrears are paid in full. The parties shall exchange all income tax information on an annual basis no later than May 31 of each and every year with support to be adjusted effective July 1. Costs [ 78 ] The Court has given careful thought to the issue of costs. Rule 15-96(2) of The Queen’s Bench Rules provides that there is a presumption that a successful party is entitled to costs in a family law proceeding or a step in a family law proceeding.

Schedule I Column 2 costs shall be awarded to T.T. throughout, payable to Legal Aid Saskatchewan with the exception of the contested motion which appeared before Justice Haaf for which costs have already been awarded in the amount of $1,500.00, and the applications heard post-trial which will be addressed further in this judgment. Costs shall be payable by J.L. forthwith. Procedural Issues [ 79 ] The trial of these issues has not been without its procedural issues.

During the argument of the issues on September 23, 2022, J.L. indicated he was abandoning all parenting claims regarding B.L., and at the same time indicated he would never accept being a weekend parent. On November 28, 2022, two months after the trial had concluded, and while the decision was on reserve, a conference call was initiated by J.L. with the Court and counsel for T.T., as J.L. wished to seek leave to adduce fresh evidence for consideration in this matter.

As the trial judge I indicated that I was prepared to hear that application, provided all filing and service requirements contained in the Rules were met as it was necessary to provide an opportunity for T.T.’s counsel to properly respond on her behalf. [ 80 ] I also indicated to the parties that I was not prepared to delay issuing the decision indefinitely in anticipation of such an application. Various dates were offered to hear the application, December 14, 2022 being one of those.

When J.L. did not file materials in compliance with the Court’s Rules for this date, subsequent dates of January 13, 2023 and January 25, 2023 were offered on a conference call which occurred on December 5, 2022. J.L. was provided with further instructions concerning when to serve and file his application materials in a conference call held on December 5, 2022. [ 81 ] Further materials were not filed and served until January 12, 2023, which was past the deadline required in order for the matter to proceed on the latest of the proposed dates, January 25, 2023.

Three applications were filed by J.L. on January 12, 2023, an application for disclosure of a tape recording of a December 5, 2022 conference call, an application for drug testing, supervised parenting and a parenting assessment order, and an application to adduce fresh evidence to be considered as part of the trial. Additional affidavits were filed by J.L. on January 24, 2023. These were all filed without leave of the Court and were objected to by the respondent by notice of objection to affidavit evidence filed January 30, 2023.

I am choosing to allow the objections and exclude these affidavits pursuant to Rules 15-41(2), 15-41(9) and 15-41(10). [ 82 ] In a conference call held January 18, 2023, the Court scheduled a hearing of the tape recording, parenting assessment and new evidence applications for February 6 and 7, 2023. Filing deadlines were also set. T.T.’s counsel was given until January 30, 2023 to file response materials on all three applications and J.L. was given until February 3, 2023 to file reply materials.

The parties were instructed that a trial decision would not be released until the hearing of all three applications had occurred. [ 83 ] On February 6, 2023, the application for drug testing, supervised parenting time and a parenting assessment was heard. The affidavit filed in support of the application was unsworn and not prepared in compliance with The Queen’s Bench Rules . It also contained statements which were primarily hearsay, speculation or argument, the contents of which were objected to by the respondent by notice of objection to affidavit evidence filed January 30, 2023.

I am allowing the respondent’s objections and excluding this evidence pursuant to Rules 13-30(1)(e), 13-30(1)(f), 13-30(1)(g), 13-30(h), 15-46(1), 15-46(2)(a), 15-46(2)(

b) and 15-46(2)(e). There is no evidentiary basis for the granting of J.L.’s application for drug testing, supervised parenting time and a parenting assessment. Therefore the application is denied.

[ 84 ] On February 6, 2023, the application for release of a copy of a telephone conference call related to trial management which occurred on December 5, 2022 was heard. The call which occurred on December 5, 2022 was solely for trial management purposes to determine filing deadlines and possible dates for subsequent hearings anticipated by J.L. The purpose of the call was not to provide evidence. J.L. is free to cross-examine M

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