CHELSEA MARIE MERCEREAU, PETITIONER - v. -, 2023 SKKB 99

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 99 Date: 2023 05 12 Docket: DIV-SA-00142-2019 Judicial Centre: Saskatoon BETWEEN: CHELSEA MARIE MERCEREAU, PETITIONER - and - KEVIN ROBERT RAY KING, RESPONDENT Counsel: Valerie G. Watson, K.C. for the petitioner Jeremy A. Caissie for the respondent ___________________________________________________________________________ FIAT GOEBEL J. May 12, 2023 ___________________________________________________________________________ OVERVIEW: [ 1 ] The parties are the parents of two children, R.K. currently age 8 and C.K. currently age 6.

They married in 2013 and separated in 2017 when the children were ages 3 and 1, respectively. [ 2 ] In January 2018 they signed an interspousal agreement resolving issues relating to parenting, child support, spousal support and property.

The parenting plan provided for the following schedule, in addition to a detailed plan around holidays: 3) The parties hereby agree that the Wife is the primary residential caregiver of the children of the marriage, [R.K.], born the [ redacted ], 2014 and [C.K.], born the [ redacted ], 2016, and have agreed to joint legal custody and depending on the Husband’s employment schedule, they would work towards a 50/50 shared parenting arrangement, subject to the following:

a) The parties agree to the following with respect to a regular rotation:

i) The Husband will have the children every Tuesday after work until Thursday at 4 p.m. ii) The parties agree that the Wife will have the children on the time not specified above. iii) The parties agree that when they have the children, they are responsible to oversee homework and any other activities that need to becompleted for that time. iv) The parties agree that when they have the children, they are responsible for their care, or finding childcare, for the children’s PDdays and other interim breaks.

v) The parties agree that the intention is that the Wife and the Husband have equal time with the children. The parties further agree thatthe Husband will give six (6) months written notice to the Wife that he intends, and is able, to have the children an equal amount of time. [3] In 2019, a petition for divorce was issued. No parenting or support relief was sought at that time. A divorcejudgment was granted on April 17, 2019. [4] There is no debate that the parties religiously followed the

schedule set out in the agreement. The childrenspent every Tuesday and Wednesday night in the care of the father, who did not work on Wednesdays or Thursdays. They spent the restof their time in the care of the mother who planned her employment

schedule and childcare plan in accordance with this arrangement.The mother was also responsible for the children’s registration and participation in extracurricular activities and school. [5] In April 2022 the father’s work

schedule was modified such that he now had Fridays and Saturdays off fromwork each week. He notified the mother and immediately shifted his parenting time to Thursday and Friday evenings. He also notifiedthe mother of his desire to move towards “equal time” in accordance with the 2018 parenting agreement. [6] The mother was unhappy with the abrupt change to the longstanding

schedule and insisted that the childrenremain in her care for at least one weekend per month. In addition, she raised a number of concerns about the father’s request for sharedparenting. [7] Unable to reach a consensus, each party filed an application with the court. At a subsequent judicial caseconference, counsel agreed that the applications, which were procedurally flawed, would be struck and that the father would file a newapplication for corollary relief that would allow both parties to advance their positions relating to parenting and child support.

A hearingdate and filing deadlines were set in consultation with counsel. [8] Thereafter the father served and filed an application for corollary relief but despite the specific directioncontained in Rule 15-24(6) of The Queen’s Bench Rules, filed little evidence respecting the children’s needs or interests, choosing insteadto focus on his contractual right to equal parenting. On the first court date the judge held that there was insufficient evidence to proceedand the application was adjourned. [9] By the next hearing date, supplementary affidavit materials had been filed but the father’s position did notevolve.

The father remains incensed that the mother, and now the court, appear to be “looking behind” the provisions of the 2018parenting agreement. He says that nothing short of 50/50 parenting is acceptable. [10] While the mother does not oppose some changes to the parenting schedule, she argues that a jump to sharedparenting is not in the best interests of the children at this time despite the wording of the 2018 agreement. [11] In terms of consensus, both parties ask the court to render a final determination on the parenting issue inchambers rather than sending the matter on to a pre-trial conference or trial.

They also agree to adjourn issues related to child supportwith the expectation that they will be able to resolve support issues once parenting is determined. ISSUE: [12] The court is being asked to determine, on a final basis, the parenting arrangement that is in the best interests ofthe children at this time, taking into account the provisions of the 2018 parenting agreement and the evidence relating to the bestinterests factors. ANALYSIS: a.

The legal framework: [13] This application comes before the court as a corollary relief proceeding brought pursuant to the Divorce Act,RSC 1985, c-3 (2d Supp) and Rule 15-24 of The Queen’s Bench Rules. Although the application was not framed as a

summary judgmentapplication, I see no jurisdictional impediment to making a final determination of the parenting issue in chambers as requested by theparties.

The substantive consideration that informs whether I can make a final order depends on whether there is sufficientuncontroverted evidence before the court to make a fair and just determination of the children’s best interests: Zettl v Spence, 2016SKCA 97 at para 60, 81 RFL (7th) 259; Koback v Koback, 2013 SKCA 91, 42 RFL (7th) 277; Bromm v Bromm, 2010 SKCA 149 at para16, 91 RFL (6th) 268; Bradley v Zaba (1996), (SK CA), 137 Sask R 295 (CA); Greyeyes v Greyeyes, 2021 SKQB 14at paras 20-21; and T.C. v A.E., 2021 SKCA 79 at para 31. [14] Where an evidentiary record is sparse on the material factors in play, or where the affidavit evidence is largelyinadmissible or contradictory, a parenting matter should not be concluded in chambers: T.C. v A.E., at para 31; McCorriston v Hunter,2019 SKCA 106, 33 RFL (8th) 310.

In that event, it is reasonable to expect the court to make an interim parenting order having regard tothe best interests of the children and the jurisprudence that cautions against significant changes that could destabilize the children on aninterim basis: Seidel v Seidel, 2021 SKCA 92; and Gebert v Wilson, 2015 SKCA 139, 69 RFL (7th) 17.

b. The best interests analysis [15] The focal point of my determination is the best interests of R.K. and C.K. This engages a child-centered analysisfocused on each child’s right to an arrangement that best meets their physical, emotional and psychological safety, security and well-being: s. 16(2) of the Divorce Act.

Children not only have the right to be protected from harm, they also have “the right” to the bestpossible arrangement available to them in the circumstances presented by the evidence: Young v Young, (SCC), [1993] 4SCR 3 at 100. [16] In contrast, parental “rights” play no role in the best interests analysis. Parental preferences, and the positionsthey advance, must be sifted through the best interests lens.

Similarly, the court must guard against giving weight to arguments thatdirectly or indirectly advance presumptions respecting shared parenting, primary care or “status quo”: Gordon v Goertz, (SCC), [1996] 2 SCR 27 [Gordon]; Ackerman v Ackerman, 2014 SKCA 86, 442 Sask R 113; and Scobie v Thiessen, 2021 SKCA 47,54 RFL (8th) 256. [17] In 2021 the Divorce Act was amended to provide further guidance in the application of the best interests test.Subsection 16(3) of the Divorce Act lists a number of specific factors to be considered including each child’s specific needs andrelationships, children’s wishes and preferences, parental capacity, past and future care arrangements, each parent’s willingness andability to communicate and cooperate with the other and each parent’s willingness to support the child’s relationship with the other.Subsection 16(4) also requires the court to consider whether there is a history of family violence and if so, determine its impact on aparenting arrangement. [18] Parenting plans are also to be considered in this analysis.

Section 16.6 specifically addresses this issue andprovides as follows: 16.6(1) The court shall include in a parenting order or a contact order, as the case may be, any parenting plan submitted by the partiesunless, in the opinion of the court, it is not in the best interests of the child to do so, in which case the court may make any modificationsto the plan that it considers appropriate and include it in the order.

(2) In subsection (1), parenting plan means a document or part of a document that contains the elements relating to parenting time,decision-making responsibility or contact to which the parties agree. c. Parenting agreements [19] A significant point of debate in this matter is the weight that the court should give to the contractual provision inthe parties’ 2018 interspousal agreement that ostensibly provides the father with the right to shift to equal parenting on six months noticeto the mother.

Although counsel for the father made no reference to s. 16.6 in his written or oral submissions, he strenuously argued thatit would be inconsistent for the law and the courts to encourage parents to resolve parenting disputes outside of court, unless the courtalso gives full weight to their negotiated outcomes. [20] Indeed, parents are not only strongly encouraged to resolve their parenting issues outside of court, they are nowrequired to participate in family dispute resolution before seeking relief from the court: s. 44.01 of The Queen’s Bench Act, 1998, SS1998, c Q-1.01.

I further accept that parental autonomy should be both facilitated and respected.

On the other hand, it does notnecessarily follow that the court is bound to blindly implement parenting agreements without considering whether the provisions trulyreflect the best interests of the children: Gordon at para 69; S.K. v R.K., 2015 SKQB 235, 479 Sask R 94; J.L.P. v J.R., 2014 SKQB 366at para 6, 461 Sask R 139; Watch v Watch (1999), (SK KB), 182 Sask R 237 (QB) at paras 6 to 8; Lloyd v Lloyd,2018 SKQB 116 at para 13; Friesen v Friesen, 2022 SKQB 83; K.D. v C.K., 2021 SKQB 92; Gudmundson v Fisher, 2018 SKQB 264;D.A. v T.A., 2017 SKQB 285, 100 RFL (7th) 32; and Daniel v Daniel, 2022 SKKB 279. [21] This pre-amendment jurisprudence has consistently held that while parenting agreements are relevant to aparenting determination, they are not binding on the court.

The weight the court will afford to a parenting agreement will depend on anumber of factors including the circumstances surrounding the negotiation and execution of the agreement, the length of time since theagreement was signed, any changes since the agreement was reached, the formality of the agreement, and whether the terms of theagreement were actually implemented, followed and, most importantly, appear to be in the best interests of the child at the present time. [22] In a 2021 unreported decision of Wilkinson J. (Fitzgerald v Fitzgerald, (31 August 2021) Saskatoon, DIV-SA-00506-2017 (Sask QB)), she considered in detail the interplay between applications to enforce parenting agreements and s. 16.6 of theDivorce Act.

She concluded that the court retains discretion to ensure that its orders reflect the best interests of the children even wheredoing so requires that the provisions of parenting agreements be modified, overridden or even ignored.

While lengthy, the followingquotation from her unreported decision provides a thoughtful and eloquent analysis of the various considerations in play: [52] Prior to the introduction into law of s. 16.6 of the Divorce Act, the prevailing view, as clearly spelled out in Graham v Tomlinson,2010 SKCA 101, 359 Sask R 251 [Graham], was that the Court could not vary an agreement made by the parties. The Court of Appealheld that the preclusion applied even though the agreement in question arose out of a pretrial settlement conference.

Jackson J.A.explained it in these terms: [19] The parties did not incorporate the terms of the Minutes of Settlement into the divorce decree. They did not register the Minutes ofSettlement under The Family Maintenance Act, 1997. Thus, there was no court order to be varied. While the application brought by Ms.Tomlinson was not cast in terms of an application for corollary relief under the s. 16 of the Divorce Act, it was such an application. [20] As Popescul J. wrote in Belfour v.

Belfour, 2007 SKQB 295, 303 Sask.R. 33, neither the legislation nor the rules of court providefor an application to vary an agreement, as opposed to a court order: [12] Part of the relief sought is a variation of a memorandum of settlement. A settlement agreement is an arrangement between parties,akin to a separation agreement or interspousal contract, and not a court order. Neither the applicable legislation nor The Queen's Bench

Rules allow for or contemplate an application for variation of an agreement. See Steiner v. McKnight,(2001), 200 Sask.R. 232, 14 R.F.L.(5th) 193, 2001 SKQB 12 (Fam. Div.). The appropriate procedure would be to bring a notice of motion claiming interim relief at whichtime the existence of the agreement would become a factor to take into account when determining the merits of the motion. Accordingly,the application, insofar as it pertains to the application to vary the memorandum of settlement, is dismissed. [Emphasis added.] See also Andrew v. Andrew, 2008 SKQB 56. There is a good policy reason for this approach.

In the absence of a court order, the parties’agreement should not be taken as controlling the Court’s discretion to fix an order that is in the best interests of the children. As PopesculJ. stated in Belfour, the agreement becomes a factor for the Court to consider, in much the same manner as a court would consider anyexisting arrangement for the children. [21] Mr. Graham’s counsel submitted, however, that the agreement before the Court should be considered in a different light as it aroseout of a pre-trial conference, and contains the Minutes of Settlement negotiated at that conference.

He submitted that the Court shouldapply the same consideration to an application to vary Minutes of Settlement, reached at a pre-trial conference before a Queen’s Benchjudge, as it does to a court order. While the pre-trial conference judge usually plays a pivotal role in achieving a settlement in thisjurisdiction, there is no independent means of testing whether what the parties tell the judge is the truth. The ultimate agreement is basedon what the parties represent the facts to be. The fact that the agreement arose out of a pre-trial conference does not change the principlearticulated in Belfour. … [23] Mr.

Graham argues that to permit a change in custody based on these facts, where the mother reneged on an agreement, is not fair.This, of course, is not the principal concern of the Court, which is, the best interests of the children. The focus cannot be on Mr.Graham’s “time” with the children, to the exclusion of what is in their best interests. There was no evidence, before the Chambers judge,of a clear arrangement other than the

schedule that the children had been living under for over ten months by the time the application washeard and for over one year by the time the decision was released. That status quo had been in place for 18 months by the time this Courtheard the appeal. [53] The rationale in Graham was applied in Sterling v Sterling, 2013 SKCA 103, 423 Sask R 175, where the Court said: [6] In Graham v.

Tomlinson, 2010 SKCA 101, 324 D.L.R. (4th) 156, this Court confirmed that neither the legislation nor the Rules ofCourt provide for an application to vary an agreement. [7] As such, the Chambers judge had no jurisdiction to deal with the parenting arrangements contained in the separation agreement.

Theappeal of the Chambers judge’s decision regarding parenting arrangements is therefore allowed, but the appellant’s application to varythese arrangements is dismissed on the basis that the Chambers judge had no authority to deal with that matter. [8] Should the appellant wish to pursue the matter of variation of parenting arrangements he should do so pursuant to s. 16 of theDivorce Act, R.S.C. 1985, c. 3 (2nd Supp.). See also Kemery v Kemery, 2012 SKCA 130, 405 Sask R 231 to like effect. [54] How has this line of authority been affected by the introduction into law of s. 16.6 of the Divorce Act?

The primary concern inGraham was that neither the legislation nor The Queen’s Bench Rules provided for an application to vary an agreement, as opposed to acourt order. The legislation now effectively bestows the authority to make “modifications” to a parenting agreement in prescribedcircumstances. [55] There has, to date, been limited judicial comment on s. 16.6.

However, in McBennett v Danis, 2021 ONSC 3610, in acomprehensive decision addressing the effect of the Divorce Act amendments on parenting orders, Chappel J. had this to say in relation tos. 16.6: [91] …it appears that Parliament has given us all a clear direction to reformulate our understanding of what parenting orders should looklike.

Section 16.6(1) reflects a clear policy decision on the part of Parliament that parental choice respecting parenting matters should berespected if they are consistent with the child’s best interests.

The Ontario Court of Appeal recently confirmed this policy in Knapp v.Knapp, 2021 ONCA 305 (C.A.) in which it emphasized that “[i]t is always preferable-and in the best interests of the children-that theparenting plans be developed by the parents” (at para. 17). [56] That said, she underscored the primacy that must be given to the child’s best interests, adding: [93] … The Supreme Court of Canada has emphasized that the analysis of the child’s best interests in the context of parenting disputesmust be undertaken from the lens of the child rather than from the parents’ perspective; parental preferences and rights do not play a rolein the analysis except to the extent that they are necessary to ensure the best interests of the child (Young [ (SCC), [1993]4 SCR 3], at paras. 74 and 202; Gordon [ (SCC), [1996] 2 SCR 27], at pp. 50, 54, 68).

All parties bear the onus ofdemonstrating where the best interests of the child lie (Persaud v. Garcia-Persaud, 2009 ONCA 782 (C.A.)). [57] While

section 16.6 speaks to “modification” not “variation”, and while these terms are effectively synonymous in everydaylanguage, the term “variation” is typically associated with court orders and should be confined to such in the interests of clarity.However, it is plain and evident that the Court retains discretion to alter and modify the parents’ agreement “as it deems appropriate” ifthe provisions are not demonstrated to be in the child’s best interests. [58] This is not wholesale license, for just as the Court must be wary of making fundamental changes in tacit or informal parentingarrangements that have been in effect for significant periods of time, circumspection is required when considering modification toparenting agreements when making a parenting order under the Divorce Act. [59] In K.D v C.K., 2021 SKQB 92, a scenario not dissimilar to the present case was before the Court, although in that case the

application was under provincial legislation as opposed to the Divorce Act . The parents settled their parenting issues at a Pretrial Settlement Conference but had not reduced the same to formal judgment. A year after the agreement was reached, the father requested changes to the parenting

schedule agreed to in the Minutes of Settlement. One child was suffering from anxiety as a result of the parental conflict. The matter proceeded to trial before Richmond J. after two subsequent Pretrial Conferences had failed to resolve the dispute. The father argued for inclusion of some portions of the Minutes of Settlement and exclusion of others. The mother wanted to give the father less time than in the agreement. [60] Richmond J. concluded that the Pretrial Settlement Agreement was not binding on her, citing Lloyd v Lloyd , 2018 SKQB 116 [ Lloyd ] .

Nonetheless, it was a factor to be considered and a significant factor in all the circumstances of the case. She concluded that the parenting arrangement agreed to in the Minutes of Settlement remained in the children’s best interests currently. [61] In Lloyd , Goebel J. addressed the question in relation to a parenting arrangement established pursuant to an interspousal agreement rather than in Minutes of Settlement.

She held that where a party sought an interim order that differed from the terms of a parenting agreement and none of the provisions of the agreement had been incorporated into the divorce judgment, the proceeding was to be considered a fresh application focused solely on the best interests of the child. The terms of the parenting agreement were a factor to be considered but were not binding on the Court.

The weight to be afforded to the agreement would depend on a number of factors including the circumstances surrounding the negotiation and execution of the agreement, the date of the agreement, any changes since the agreement was reached, the formality of the agreement, whether the terms of the agreement were implemented, and whether they continued to be in the best interests of the child currently. [62] These cases demonstrate that the Court has endeavored to respect parental autonomy and parental choices if it could be demonstrated that those choices were consistent with the children’s best interests. [63] Thus, in relation to the mother’s argument centered on s. 29 of The Queen’s Bench Act and the requirement to show deference to agreements reached in a Pretrial Settlement Conference, it can be said that while the Court strives mightily to uphold the bargains made by litigants and to respect their freely negotiated agreements, it is also the case that s. 29(2) of that Act permits relief to be granted “on any terms and conditions that a judge considers appropriate”.

This, too, vests considerable discretion in the Court. [64] As distinct from financial bargains over property which are more susceptible to the rigors of contract law, and in contrast to spousal support agreements which fall to be tested under a strict Miglin analysis ( Miglin v Miglin , 2003 SCC 24 , [2003] 1 SCR 303 ), parenting agreements cannot be viewed purely from a transactional perspective. We do not speak of terminating parenting contracts on the ground of frustration, frustrating though they may sometimes be.

While the agreement is to be considered and weighed, the Court’s principal focus is not upon parental rights, or parental intentions, or all the assorted inducements, concessions and quid pro quos that may have ultimately sealed the deal. A parenting agreement is adjudged, above all, by a child’s prevailing best interests, the factor to which all other considerations are subordinate. [65] Modest adjustments in the nuts and bolts of parenting arrangements – a

schedule alteration to accommodate employment, for example – are entirely permissible, even on interim applications, as long as the changes conform with a child’s best interests and do not fundamentally displace the existing parenting scheme. In this regard, see the comments of Tholl J.A. in Wyatt v Reindl , 2020 SKCA 36 at paras 15 and 16 , 36 RFL (8th) 253 , citing Gebert v Wilson , 2015 SKCA 139 , [2016] 5 WWR 656 , Schedlosky v Weber , 2016 SKCA 158 , and J.P. v.

J.P., 2016 SKCA 168 at para 47 , 89 RFL (7th) 92 . [66] I conclude the Court has the power to modify the parenting agreement reached at the Pretrial Settlement Conference and as such, it is not a question of whether it can do so, but whether it should. [Emphasis in original] [ 23 ] I wholly adopt Wilkinson J.’s reasoning. [ 24 ] Pre-amendment jurisprudence and s. 16.6 are complementary, not contradictory.

Section 16.6 reflects the court’s longstanding expectation that a parenting agreement encapsulates what the parents believed to be in the best interests of their child at the time that the agreement was made and u nder both approaches, parties can reasonably expect the court to give significant weight to the provisions of a parenting agreement where it is demonstrated that those terms meet the child’s prevailing best interests. [ 25 ] Alternatively, expecting the court to defer to parenting plans without scrutiny or regard to the evidence, runs contrary to the primacy of the best interests’ test in the statute and arbitrarily places a parent’s contractual rights above a child’s right to the best arrangement available to them in the circumstances presented by the evidence.

This stance is also inconsistent with this court’s longstanding requirement that any application to formalize the provisions of a parenting plan in a court order, even where the relief is being sought in default or by consent, must be supported by evidence that allows the court to give due consideration to best interests factors: see also Rule 15-83 of The Queen’s Bench Rules . Application of the law to the evidence: [ 26 ] As stated, both parties asked for a final determination in chambers.

While the affidavit materials are modest, there are few material inconsistencies. [ 27 ] By all accounts, the children are happy, healthy and thriving. They both do well in school and have no unique health needs or behavioural issues. [ 28 ] R.K. is currently 8 years of age and is in grade 3 at [ redacted ] School in Saskatoon. He is bright, affable, and fun loving. He enjoys Pokémon and board games. He has participated in soccer and swimming in Saskatoon in the past and recently expressed an interest in playing baseball. [ 29 ] C.K. is 6 years of age and in grade 1. She is energetic and loves to be outdoors.

She does well in school. She

enjoys helping in the kitchen and doing crafts. She has participated in soccer and swimming in the past and is presently participating in gymnastics once per week. [ 30 ] There was no suggestion that the children have a strained relationship with either parent or that they struggle with transitions or exchanges. [ 31 ] The mother and children reside in a three-bedroom townhouse near the children’s school. Each of the children have their own bedroom. They also have a separate backyard and a playground nearby.

The mother is employed on an almost full-time basis but does not work on Mondays, Tuesdays or alternate weekends. On the weekdays when she works, she drops the children off at a “before-school” program at 7:15 a.m. and picks them up directly after school. [ 32 ] The father recently remarried. He says that C.K. has a close relationship with his spouse and that R.K. has bonded with his spouse’s son, E. (age 10) who resides with them on a week on/week off basis. In addition, the father has a two-year old child from a subsequent (not current) relationship, L. (age 2).

He says that C.K. dotes on L. [ 33 ] Last fall the father and his spouse moved from a small basement suite into a townhouse in Martensville, Saskatchewan. C.K. shares a bedroom with L. located on the main floor near the master bedroom. R.K. and E. share space in a partly finished basement. [ 34 ] The mother raises some concerns with respect to the father’s care and past circumstances. Much of this evidence is controverted. For instance, she alleges and he disputes, that despite having longer blocks of time off of work since 2018, the father did not seek additional time with the children.

She also claims and he disputes, that the children were in the father’s care during an incident of domestic violence between him and his former romantic partner during which time the police were called. He does not deny being the victim of intimate partner violence, but says that the children were not present at the time. The mother also alleges and he disputes, that there was an incident in March of 2021 when child protective services investigated concerns in his home. He says that there was one incident when child protective services came to his home, arising from a report advanced by the mother.

The matter was investigated and closed. [ 35 ] The mother also claims that the father has not been actively engaged in the children’s extracurricular activities, that he has never come to watch C.K. participate in gymnastics and that he has not consistently taken them to their activities on his parenting time. He did not directly dispute these allegations. In one text message exchange, the father expressed some resistance to the children’s participation in activities on his parenting time.

In addition, it is not disputed that the father has not contributed towards the costs of the children’s activities. [ 36 ] With respect to past care arrangements, it is not disputed that since the separation in 2017 when the children were ages 1 and 3, the children have resided primarily with the mother and have spent two overnights per week with the father. Until April 2022, the father’s parenting time ran from 4:00 p.m. every Tuesday afternoon to 4:00 p.m. ever Thursday afternoon to accommodate the father’s work schedule. He also had additional time on some school holidays.

The children were in the care of the mother at all other times, including all weekends. [ 37 ] In April 2022 the father’s work

schedule changed providing him with Fridays and Saturdays off from work. He advised the mother, on five-days notice, that his parenting time would change to Thursday at 4:00 p.m. to Saturday at 4:00 p.m. each week. The mother says that this was a unilateral proclamation that left her scrambling to find alternate childcare arrangements. That said, she was prepared to adapt but did not agree to give up every weekend.

The father says that she picks up the children at his home on Saturday afternoon at 4:00 p.m. but “withholds” them one weekend per month, resulting in the father having less time with the children than he has had traditionally. [ 38 ] The father also says that he provided the mother with written notice of his intention to transition to shared parenting at that time, although the text exchange he appended to his affidavit as verification of written notice is not quite so clear.

In any event, it is not disputed that the parties engaged in a debate about the issue and that the mother advised the father that she would not agree to transition to shared parenting. [ 39 ] The mother views herself as the parent most likely to provide the children with ongoing stability and security.

She says that the father has not attended medical appointments with the children, has not been involved in school activities or weekend activities, and that she has been solely responsible for enrolling the children in extracurricular activities and getting them to those activities. [ 40 ] In contrast, the father has not demonstrated a lot of personal stability over the past few years. For instance, he experienced significant financial difficulties after the separation - moving numerous times, living in less than ideal conditions and eventually going bankrupt in 2021.

He also admits that he fell behind in child support payments for a number of months. [ 41 ] The father has also been involved in numerous romantic relationships in the last three years. From 2019 to 2021 he resided with a woman with whom he had a child, L. Within a month of that relationship ending, he commenced a new relationship with a woman that quickly became volatile and ended with police involvement and allegations of family violence.

That relationship ended in December 2021 and by February 2022, he was residing with a new romantic partner who had a child of her own in a small basement suite that had only one bedroom for the four children to share during his parenting time. [ 42 ] By the date of the hearing, some of these concerns appear to have resolved. The father says that his current employment is secure and his income has increased (although his child support payment have not).

In October 2022, the father and his partner moved to a townhouse in Martensville and in January 2023 they married. [ 43 ] With respect to future care, the father proposes a week on/week off

schedule with the exchange on Thursday to allow the transition and exchange to occur at the children’s school rather than at a parent’s home. The father is adamant that moving to a shared parenting

schedule is consistent with the intentions of the parties when they signed the parenting agreement in 2018. He also

argues that after having little weekend time for over six years, it is fair that the children’s recreational time be equally distributed between the parents. Moreover, the father would like to synchronize the parenting time he has with R.K. and C.K., with the time their half-brother L. spends in his care (each Thursday to Saturday evening) and the time that their stepbrother E. spends in their care (alternate weeks). [ 44 ] Although the father and his spouse reside in Martensville, he is not proposing that the children change schools.

That said, he would like them to participate in extracurricular activities in Martensville as well as in Saskatoon. [ 45 ] Presently, the father works Sunday to Thursday from 7:00 a.m. to 3:30 p.m.

He says that on school days he will either rely on a “before-school” program or his spouse, who currently works Monday to Friday from 8:00 a.m. to 4:15 p.m., may be able to alter her shifts so that she can drop the children off at school in the morning. [ 46 ] The father also deposed that the children are one-eighth Metis and that he is encouraging them to explore their heritage. [ 47 ] The father says that the children have expressed a desire to spend the same amount of time with each parent.

The mother is concerned about the father involving the children in their dispute, alleging that they announced to her after a visit that they were going to be spending half-time with the father. The father denies involving them in any such discussions. [ 48 ] There is little evidence before the court on the communications between the parents other than a couple of brief text exchanges that were argumentative and unproductive.

It appears that there is nominal direct communication between the parents and that the father has been content to allow the mother to manage the children’s education, health and activities on her own. Moreover, it is not disputed that the children do not have regular phone contact with their non-resident parent despite a clause in the parenting agreement providing for same, although that does not seem to be an expectation or an issue between the parents. [ 49 ] Neither party alluded to any family violence other than the domestic violence that the father was subjected to in his prior relationship.

While that was a destabilizing event that impacted the father and the children, it is not expected to reoccur. [ 50 ] At the hearing the mother proposed that the father have the children in his care from Tuesday after school until Sunday afternoon on alternate weeks. This

schedule would increase the father’s parenting time overall, provide an equitable sharing of weekend days, and overlap with the time that L. is in the father’s care. It also allows the children to remain with her in their home base in Saskatoon.

It also allows the mother to have the children in her care each Monday and Tuesday when she does not work. (The mother works every Wednesday and Thursday as well as alternate Friday, Saturday and Sunday either 6:30 a.m. to 3:00 p.m. or 7:00 a.m. to 3:30 p.m.) [ 51 ] With the consent of the parties, I find that there is sufficient uncontroverted evidence to make fair and just final determination of the parenting arrangement in chambers. Having considered the relevant factors and uncontroverted evidence, I am of the view that the proposal advanced by the mother is in the best interests of the children at this time.

It increases the father’s parenting time in a way that will allow him to meaningfully share in their school lives and their weekend time. It increases the amount of time they spend with their siblings in the father’s home. It provides the children with the physical, emotional and psychological stability that the mother has consistently provided to them over their lives. It also allows them to remain in their primary home in the community, and near the school, where they have grown accustomed.

In addition, it allows the children to be in the mother’s care each Monday and Tuesday when she does not work thereby maximizing parental contact with the parent who has historically managed and met their medical, educational and extracurricular needs.

In short, it is the best possible arrangement available to the children in the circumstances presented by the evidence. [ 52 ] Moreover, I am not persuaded that provision in the 2018 parenting agreement which provides that the parties intend to have “equal time with the children” at some point in the non-specified future to be triggered by the father providing “six (6) months written notice” to the mother, is the type of parenting plan that was contemplated by s. 16.6. The provision is vague, it appears to contradict the other provisions respecting the parenting

schedule without explanation or context for the future change or review, other than perhaps with reference to the father’s “employment schedule”. It is dated, not supported by the evidence and not child-centred. Moreover, as found herein, it is not presently in the best interests of the children. [ 53 ] On the other hand, the detailed provisions respecting the sharing of special days and holidays continue to reflect the children’s best interests and shall be incorporated into the parenting order pursuant to s. 16.6. Order: [ 54 ] I make the following final parenting order: 1.

The parties shall have joint decision-making responsibility with respect to the children of the marriage. 2. Unless otherwise agreed in writing, the parties shall have care of the children in accordance with the following parenting schedule: a. The father shall have the children in his care from Tuesday at 4:00 p.m. to the following Sunday at 4:00 p.m. on alternate weeks, coordinating with those weeks when the mother works on the weekend. b. The children shall be in the care of the mother at all other times. c.

Unless otherwise agreed, parenting during school breaks, holidays, Mother’s Day, Father’s Day and the children’s birthdays shall follow the terms of the 2018 interspousal agreement. The parties shall file a draft consent judgment incorporating those provisions for my review. If they cannot agree on the wording of those terms, they shall each file a draft judgment for my review within 30 days.

d. In the event that the parties want additional provisions from the 2018 parenting agreement to be incorporated into the judgment, they have leave to add same to a draft consent judgment for my review. If they are unable to agree on the wording of those terms, or whether they should be incorporated at all, either may ask the local registrar to convene a conference call with me to speak to the issue.

In that event, both parties shall file and exchange written correspondence setting out their position with reference to s. 16.6 and the evidence before the court, along with draft orders outlining their proposal to resolve same. [ 55 ] The mother is entitled to the costs of this application, and the prior adjournment, which I fix at $1,500.00 payable within 60 days. [ 56 ] The remaining issues raised in the application for corollary relief with respect to child support are adjourned sine die .

The parties expect that they will be able to resolve the issue of support on their own once a parenting determination has been made. If they are unable to do so, those issues may be returned to the court by requesting a judicial case conference in accordance with the process prescribed by Family Practice Directive #7, “Mandatory Participation in a Judicial Case Conference before a Chambers Hearing is Scheduled”. J. G.V. GOEBEL