Docket: CACV2308 Shawn Taras Mantyka (Respondent) Appellant - v. -, 2012 SKCA 109

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 109 Date: 2012-11-19 Between: Docket: CACV2308 Shawn Taras Mantyka (Respondent) Appellant - and - Jennifer Suzanne Dueck (Petitioner) Respondent Coram: Jackson, Richards and Caldwell JJ.A. Counsel: Beau J. Atkins for the appellant Dennis J. Fisher for the respondent Appeal: From: 2012 SKQB 321

Heard: October 18, 2012 Disposition: Dismissed Written Reasons: November 19, 2012 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Caldwell Richards J.A. I. Introduction [ 1 ] The appellant, Shawn Mantyka, and the respondent, Jennifer Dueck, were married in 2003 and were together until separating in 2009. They have two young children. [ 2 ] The children lived with Ms. Dueck in Saskatoon and spent alternating weekends with Mr. Mantyka. He resided on a farm near Aberdeen, just east of Saskatoon.

This arrangement was in place for about two and a half years. Ms. Dueck then moved with the children to Biggar, approximately a one hour drive west of Saskatoon. [ 3 ] Mr. Mantyka commenced divorce proceedings and sought a shared parenting arrangement. He asked the Court of Queen’s Bench, on an interim basis, to either require Ms. Dueck to relocate back to Saskatoon or direct that the primary residence of the children be with him. The Chambers judge undertook a “balance of convenience” analysis as between Mr. Mantyka and Ms. Dueck and declined to make the order Mr. Mantyka had requested.

However, he was prepared to grant Mr. Mantyka some additional access to lessen the impact that the move would have on his ability to see the children between scheduled weekend access dates. [ 4 ] I conclude that the learned Chambers judge might well have erred in the course of his analysis. Nonetheless, I would not interfere with his bottom-line decision. Rather, the Court of Queen’s Bench should expedite the pre-trial conference in this matter so that a lasting decision about the children’s situation can be made as soon as possible. II. Background [ 5 ] As noted, Mr. Mantyka and Ms.

Dueck married in 2003 and had two children. They lived on a farm near Aberdeen, about 25 to 30 minutes east of Saskatoon. Their children are presently four and six years old. [ 6 ] Mr. Mantyka and Ms. Dueck separated in the fall of 2009. Shortly after the separation, Ms. Dueck and the children moved to Saskatoon. Mr. Mantyka remained on the farm. It appears that Mr. Mantyka and Ms. Dueck managed to maintain a positive and cooperative relationship, at least as far as matters concerning the children were concerned. [ 7 ] Mr. Mantyka and Ms.

Dueck entered into a formal separation agreement (the “Agreement”) in February of 2010. It provided that the primary residence of the children would be with Ms. Dueck but that she and Mr. Mantyka would have joint decision making in relation to medical, education, religion and similar issues. Mr. Mantyka was to have access every second weekend from Friday after school to Sunday after dinner. There were also provisions in the Agreement concerning access on holidays, birthdays and so forth. It was expressly anticipated that, because Mr.

Mantyka is a farmer, his parents would be actively involved in child care during the seeding and harvest seasons. The Agreement also specified that Mr. Mantyka and Ms. Dueck would have an opportunity to attend the children’s extracurricular activities, parent teacher interviews and the like regardless of where the children were in the custody rotation. [ 8 ] Mr. Mantyka exercised his weekend access rights while the children lived in Saskatoon. He says that, on average, he was also at one or two of the children’s extracurricular activities each week.

He states, as well, that he enjoyed parenting time beyond scheduled weekends as, for example, when Ms. Dueck was on vacation. For her part, Ms. Dueck says that Mr. Mantyka did not see the children as often as he suggests and that sometimes he would not see them for two weeks outside of his access weekends. [ 9 ] Both Ms. Dueck’s parents and Mr. Mantyka’s parents live in Saskatoon. Mr. Mantyka says his parents took care of the children twice per week on average and that the children often slept over at his parents’ home. Ms.

Dueck indicates that the children were at their paternal grandparents four to six times per month with the occasional sleepover. She acknowledges that Mr. Mantyka’s parents often take the children on outings and to activities. Ms. Dueck’s parents were also quite involved with the children. She says they often sleep at their house and that they too take the children to numerous kinds of activities and outings. [ 10 ] By April of 2012, Ms. Dueck was engaged to another man and was living with him in Saskatoon. He and the children apparently have a good relationship. [ 11 ] Mr.

Mantyka, likely through the children, developed a concern that Ms. Dueck and her fiancé might be moving to Calgary. There was a discussion toward the end of April of 2012 during which Ms. Dueck indicated that she would not move to Calgary. However, beyond this point, the affidavit evidence filed by Ms. Dueck and Mr. Mantyka in relation to her relocation is not consistent in many

important respects. [ 12 ] Ms. Dueck says, at para. 28 of her affidavit, that she told Mr. Mantyka in April that she and her fiancé were considering selling her house but “would not be moving very far out of Saskatoon”. She says Mr. Mantyka expressed “no concerns whatsoever” about her moving “a short distance out of town” and that, as a result, she listed her house for sale on May 7, 2012. [ 13 ] Mr. Mantyka denies all of this at para. 24 of his reply affidavit. He says “I deny the truth of paragraph 28 [of Ms. Dueck’s affidavit]. I most certainly did advise [Ms.

Dueck] that I did not want the children to be moved”. He then goes on to say Ms. Dueck is “clearly lying”. He indicates that Ms. Dueck said that, if she were to consider moving, the furthest would be to Martensville, Clavet or Aberdeen. [ 14 ] On May 7, 2012 Mr. Mantyka learned from a friend, not Ms. Dueck, that Ms. Dueck’s house was for sale. [ 15 ] Ms. Dueck attests, at para. 29 of her affidavit, that she talked to Mr. Mantyka about moving to Biggar on May 29, 2012. That day, at 8:49 p.m., Mr.

Mantyka sent her an email expressing his concerns and reading as follows: I was thinking more about our conversation earlier today. While I understand I will be able to see the girls, what I am concerned about is missing out on the daily activities that are what make our children who they are. I am thinking about when they are in school and are involved with it. I want to make it to a volleyball game, come to a science fair or watch our child spell a word that I can’t even say. I am already having trouble talking with the girls about their daily lives.

I would ask you to think back to your life and remember the times you accomplished something and your parents were there to support you and cheer you on (volleyball). … I am trying to change my work situation and feel confident I can make it work to free me up to be available more. All I ask is that I can be given that chance. Thanks for listening. [ 16 ] Later the same evening, Ms. Dueck responded by way of an email stating: I have done some thinking as well since we talked this afternoon. I am sure you know that I want the very best for the kids.

I have always tried my very best to make not only the kids happy, but everyone else happy as well. At some point I also need to put myself in that list of who I want to make happy. I understand that you want time with the girls, and I have done everything that I can do to try to make that happen, offering for you to take them at many different times. My efforts have been mostly futile up to this point. I have, and will continue to do everything that I can for them to have a good relationship with you. You can take them long weekends, weeks in the summer, Christmas, spring break.

As I have always said you are also more than welcome to call as often as you like, or skpe [ sic ] with them. Living out of town does make coming to see school events more difficult, I do see that, but it is only a 45 minute drive out of the city. I am willing to make the trips back and forth to the city as often as I can for you to spend time with the girls. You may also have to make that same effort sometime.

Your time with them absolutely will not be less, in fact I will be able to be much more flexible. … I have sold our house and the possession date is for July 14 th , so our plan is to be moving sometime between the end of June and then. Biggar is where we are planning to move to, it gives us all the things we are looking for. The lower cost of living enables me to be a stay-at-home mom, and we are able to get a house that allows the girls to have their own room, and room and safety to play outside. … I hope that you can understand. [ 17 ] At para. 29 of her affidavit, Ms. Dueck also says that, although Mr.

Mantyka expressed concern about the move, he did not at any point say he would not agree to it and did not reply to her email. For his part, Mr. Mantyka says at para. 25 of his reply affidavit that “I very clearly told [Ms. Dueck] on May 29 that I did not want or consent to the move”. [ 18 ] Mr. Mantyka states in his affidavit that, as soon as he raised the funds to see a lawyer, he immediately made an appointment in that regard. He indicates that he was unable to meet with the lawyer until June 25, 2012. [ 19 ] In the interim, on June 20, 2012, Ms. Dueck sent Mr.

Mantyka an email advising that she and her fiancé had purchased a house in Biggar and would be moving: I just wanted to let you know that our offer was accepted and the conditions were all met on the house we put an offer on in biggar [ sic ]. We’ll be moving sometime between July 4 th - 14 th . I’ll still have the same cell phone number and I’ll get you a home number when I get it. Our new house address is 302 6 th Ave W. [ 20 ] Mr. Mantyka did not reply to the email. However, at para. 25 of his reply affidavit, he says that he spoke with Ms.

Dueck on June 24 and “again told her that I was not going to consent to the move. [Ms. Dueck] was made aware of my position …”. [ 21 ] Mr. Mantyka met with his lawyer on June 25, 2012 and indicates that, on June 27, 2012, the lawyer wrote by email to both Ms. Dueck and the lawyer who had advised her with respect to the Agreement. In the letter, Mr. Mantyka’s lawyer formally advised that Mr. Mantyka was opposed to the move. However, there was some confusion about email addresses. On July 8, 2012, Mr. Mantyka and Ms. Dueck met in the course of an access exchange and Mr.

Mantyka asked her if she had received the letter. Ms. Dueck replied in the negative and, in fact, did not receive it until July 10, 2012. By that time, she had already relocated to Biggar. Ms. Dueck responded to the lawyer by sending an email stating as follows:

I advised Shawn on May 29 th that I intended to move to Biggar, giving him time to respond. We had several conversations where I stated my intent as well. At the time that I received this email we had already moved to our new house in Biggar, which Shawn knew. III. The decision in the court below [ 22 ] Mr. Mantyka filed a petition for divorce on July 12, 2012. In it, he proposed a shared parenting arrangement organized on a “one week on-one week off” basis. Mr. Mantyka also filed a notice of motion on July 19, 2012.

He sought, by way of the motion, an order that the residence of the children not be changed from Saskatoon and, although not particularly clearly expressed, he appears to have also sought shared parenting on either an alternating one week on - one week off basis or a two weeks on - two weeks off basis. In the alternative, Mr. Mantyka sought an order that the primary residence of the children be with him on the farm near Aberdeen. The particulars of the relief sought by Mr. Mantyka was stated as follows in his motion: 1.

An Order that the residence of the children of the marriage namely: Claire Ree Mantyka, born May 16, 2006 and Haley Cheyanne Mantyka, born December 30, 2007 shall not be changed from the City of Saskatoon; 2. An Order that the Petitioner and Respondent have shared parenting of the children on a two weeks on and two weeks off basis. 3. In the alternative, that the primary residence of the children be with the Petitioner on his farm located in Aberdeen, and that the Children attend school in Aberdeen or Saskatoon. 4.

If the Respondent returns to Saskatoon, the Petitioner requests that a shared parenting regime be ordered as follows: a. Shared parenting with a alternating one-week on and one-week off rotation, so that the children do not need to be shuttled back and forth so often. . . . [ 23 ] Ms. Dueck filed an answer and counter-petition in which she proposed that Mr. Mantyka have access every second weekend as contemplated by the Agreement. Both Mr. Mantyka and Ms. Dueck filed lengthy affidavits in support of their positions. [ 24 ] The Chambers judge reviewed the affidavits and the positions of Mr. Mantyka and Ms. Dueck.

He rendered a decision on August 9, 2012. In his view, the evidence was to some extent “opaque”. He regarded the “fault” for the situation in which Mr. Mantyka and Ms. Dueck found themselves as being something which could not be attributed only to Ms. Dueck. He said this: 24 In this case, unlike Ofukany , the evidentiary landscape is somewhat opaque. Shawn was not uncomfortable with some type of move in or around Saskatoon, however in the end, Biggar is not attractive to him.

Both parties could have avoided this legal debate had they spoken clearly and precisely to each other well in advance of any final decisions being made. As is often the case, life does not lend itself to such precision. In sum, the "fault" for the problem now presented to the court cannot be laid solely at Jennifer's feet. [ 25 ] The Chambers judge then observed that he had to do a “balance of convenience” analysis and explained this as follows: 25 In broad terms, at this juncture, the court must engage in a "balance of convenience" analysis.

The option of directing Jennifer to return the children's residence to Saskatoon injects a number of collateral considerations. Firstly she would have to find a rental accommodation in a difficult market for rental accommodation. Secondly, she would also, by implication, have to choose to cease living with her fiancé to return to the City. Alternatively, she would have to cease being the children's primary parent so that she could continue to live with her fiancé in Biggar.

The change of the primary parent would be a considerable change for the children as they have always known Jennifer as their primary parent, and I observe they are still quite young. 26 The other option of allowing her to remain in Biggar (at least on an interim basis) will dislocate Shawn. . . . [ 26 ] The judge accepted that it would be more difficult for Mr. Mantyka to attend extracurricular activities and otherwise see the children between scheduled weekend access times if they are in Biggar. However, he also noted that Mr.

Mantyka’s alternating weekend access, as prescribed in the Agreement, would continue unchanged. He observed too that the degree of dislocation faced by Mr. Mantyka as a result of the move was not the same as that involved in cases where children are relocated hundreds or thousands of kilometers away from a parent. [ 27 ] In the end, the Chambers judge decided to allow the children to remain in Biggar with Ms. Dueck . He endeavored to offer Mr. Mantyka some consolation by way of an increase in access.

In this regard, he wrote as follows: 28 Unfortunately, in the end the court must choose which parent will be dislocated. The harsh reality is that by permitting Jennifer and the children to stay in Biggar, the court will dislocate Shawn.

However, his prejudiced status can be adjusted for much more easily than requiring Jennifer to return to Saskatoon or, alternatively, give up primary parenthood. 29 I am of the view that by allowing Jennifer to stay in Biggar, that material change in the parenting plan status permits Shawn to seek a court order adjusting his parenting time. 30 Logical adjustments could be made to compensate for his diminished access by providing greater holiday time with the children or assigning him exclusive benefit of every February break until the children graduate from school. I do not pre-judge it nor do I seize

myself with it, but I simply submit it as fodder for consideration by counsel. [28] In the end, the Chambers judge made this order: 31 I make the following orders: 1. Shawn's motion returnable August 1, 2012 is dismissed, without costs; 2. Shawn is at liberty to proceed to trial with a view to seeking an order compelling the children's primary residence to be returned toSaskatoon or other incidental relief; 3. I direct the parties to attempt to reach an agreement between themselves so as to increase Shawn's parenting time to compensate forthe dislocation of Jennifer's move to Biggar; 4.

If the parties cannot reach agreement, Shawn is at liberty to bring an application, on five days' notice, any time after October 1, 2012,for an order providing him with increased parenting time; 5. The children's residence will not be changed from Biggar unless the parties agree in writing or unless same is permitted by acourt order. IV. Analysis A.

Some Governing Principles [29] The ground rules governing the relocation of custodial parents and their children are generally well established. [30] Most fundamentally, it is settled that the guiding consideration in matters concerning both custody and access is the “bestinterests of the child”. The foundational decision in this regard is Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27. There, McLachlin J. (as she then was) summarized the applicable law as follows: 49 The law can be summarized as follows: 1.

The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child. 2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child,having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4.

The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views areentitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances ofthe case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs ofthe child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [emphasis added] [31] The case law also provides that significant caution is necessary when deciding whether a custodial parent should be allowed tomove with a child on an interim basis, i.e. before a trial of the relevant issues. This is so for two reasons. The first is because an interimchange of location can all too easily create a new “normal” and thereby effectively go some distance toward determining the final resultof the proceedings. Ryan-Froslie J. explained the problem as follows in Benson v. Benson, 2011 SKQB 457, 388 Sask. R. 89 at para. 18:

The difficulties a Court faces in determining mobility issues on interim applications has been the subject of considerable judicialcomment. The evidence presented on interim applications is in the form of affidavits. Often those affidavits are not extensive enough toenable a court to thoroughly examine the best interests of a child. That evidence is often contradictory and the Court has no ability to testits authenticity or determine issues of credibility.

Allowing a child to move on an interim application uproots the child from itscommunity and makes a return to that community unlikely on a hearing of the final application because of the consequent disruption tothe life of the child. In other words, allowing such a move often amounts to a final determination of the issue. It is for those reasons thatCourts have long held that as a general rule moves should not be allowed on interim applications (See: Guenther v.

Guenther, [(1999), (SK KB), 181 Sask.R. 83 (Q.B.)] at para. 5). [32] The second reason for approaching interim relocations with caution is that the record before the court normally consists only ofaffidavit evidence which, by its nature, is often incomplete or somewhat limited in scope. Moreover, such evidence is oftencontradictory or inconsistent. It is thus both difficult and unwise to make important decisions on the basis of a record with these sorts offrailties. See: Nieman v. Bull, 1999 SKQB 204 at para. 7; Shiplack v. Shiplack, 2008 SKQB 254, 317 Sask.

R. 223 at para. 19. [33] All of this has led to an overall approach where, of course always bearing the best interests of the child or children in mind,interim relocations by a custodial parent are allowed only in compelling circumstances. See generally: Bala and Wheeler, “CanadianRelocation Cases: Heading Towards Guidelines” (2012), 30 C.F.L.Q. 271. Indeed, in his often-cited decision in Ofukany v.

Ofukany,2009 SKQB 234, at para. 12, Smith J. took the position that there is a presumption, albeit a rebuttable one, that the children in mobilitycases should “remain in the locale of the status quo until the debate proceeds to trial to be fully and fairly determined.” [34] The difficult business of adjudicating mobility issues can be made even more challenging when a custodial parent relocatesbefore the propriety of the relocation is raised in court.

This is because the custodial parent may have already quit a job, sold a house orotherwise given up accommodation in his or her original place of residence and taken up work or made living arrangements in the newplace of residence. The children too may have left a school and their established patterns and settled into a new school, made newfriends and developed new routines. There can be, as a result, a significant measure of disruption involved in reversing or rolling back arelocation which has already taken place.

This is not a part of the equation when a custodial parent seeks leave to relocate in advance ofa planned or anticipated move. [35] That said, a family law culture of “move first and ask questions later” is self-evidently not something that can be either approvedor encouraged. Neither parents nor their counsel should see relocations of children as a means of obtaining tactical advantages in custodyor access disputes.

Among other things, that is why there is a distinct reluctance to give any credit to a custodial parent who movesunilaterally, knowing that the move will be controversial, and then attempts to resist an application to reverse the move by arguing thathe or she has quit a job, sold a house or otherwise made decisions which will be difficult to roll back. Problems of this sort are generallyseen as being self-imposed. See for example: Ofukany v. Ofukany, supra at paras. 6 and 7; Brandt v.

Dean, 2010 SKQB 401, 363Sask.R. 293 at para. 19. [36] With those general concepts in mind, it is now possible to turn to the particulars of this case. B. The Approach of the Chambers Judge [37] Mr. Mantyka’s central argument is that the Chambers judge erred in the general approach he used to decide the matter beforehim. At least on the face of the Chambers decision, there appears to be some merit in his submission. This is so because the Chambersjudge made no direct reference to the best interests of the children in the course of his analysis.

Rather, he expressly based his approachon the “balance of convenience” between Mr. Mantyka and Ms. Dueck. As a result, his reasoning appears to have focused on anassessment of the disruptions that would be felt by Ms. Dueck if she were to be required to re-establish herself in Saskatoon as comparedto those that would be felt by Mr. Mantyka if the children remained in Biggar. If this was, in fact, the true basis of the Chambers judge’sdecision, then it would have been founded on error.

His reasoning should have revolved around the best interests of the children. [38] There is also a second way in which the reasoning of the Chambers judge seems to be based on a questionable foundation. As Iunderstand his analysis, he was inclined to tip the scales in favour of Ms. Dueck because, to use his words, the “fault” for the presentdilemma should not be laid solely at her feet. It is perhaps not entirely clear what the Chambers judge meant in this regard but, readinghis decision as fairly as I can, I take his comment to be tied back to an observation that Mr. Mantyka, in the April conversation withMs.

Dueck, had been prepared to accept a move to Martensville, Clavet or possibly Aberdeen. This seems to have led the Chambersjudge to conclude that Mr. Mantyka somehow lulled Ms. Dueck into believing that Biggar fell into the same category as those othertowns and was therefore acceptable as a relocation destination. [39] Although Mr. Mantyka’s views about a move to Martensville, Clavet or Aberdeen might possibly be something that wasconceded orally by counsel during argument in the court below, the affidavits themselves do not reveal the factual basis on which theChambers judge reached his conclusion on this point.

As indicated above, in her affidavit of July 27, 2012 at para. 28, Ms. Dueck statesthat, near the end of April 2012, she advised Mr. Mantyka that she and her fiancé were thinking of selling her house and moving “notvery far out of Saskatoon”. She says that, because Mr. Mantyka “expressed no concerns whatsoever about me moving a short distanceout of town with the children”, she listed her house for sale. However, in his reply affidavit of July 30, 2012 Mr. Mantyka says “I denythe truth of paragraph 28 [of Ms. Dueck’s affidavit]. I most certainly did advise [Ms.

Dueck] that I did not want the children moved”. [40] Thus, at best, the affidavit evidence on this point was contradictory and, as a result, there appears to have been no room for theChambers judge to use it to conclude that Mr. Mantyka would have been untroubled by a move to places like Martensville and Clavet. C. The Proper Result [41] As discussed above, the Chambers judge might well have erred in his basic approach and with respect to the evidence. However,the question before this Court is whether his bottom-line decision should be reversed.

That problem must be addressed from theperspective of where things stand today. [42] Mr. Mantyka’s motion asked for an order imposing a shared parenting arrangement (either one week on and one week off or two

weeks on and two weeks off). This sort of order would, of course, have represented a major change for the children because they havelived with Ms. Dueck for the last three years of their young lives and she has always been their principal caregiver. In light of the limiteddepth of the affidavit evidence filed by the parties, I see no way in which this sort of order could have been made on an interim basis. [43] The other sort of order presumably in play here would have been one providing that, if Ms.

Dueck wished to remain the custodialparent pending the trial, she would have to return to Saskatoon with the children. See, for example: Brandt v. Dean, supra; Dupont v.Leclair, 2009 SKQB 453; Fairley v. Fairley, 2010 SKQB 298. This sort of order would have been possible but only, of course, if theChambers judge was in a position to hold that if Ms. Dueck decided not to relocate, Mr. Mantyka should become the custodial parent. Inother words, the Chambers judge could not have simply ordered Ms. Dueck to move back to Saskatoon with the children. At most, hecould have said that Ms.

Dueck would not remain the custodial parent unless she returned. The choice of whether to move or not movewould then have been hers to make. But, and this is the point, any such order would surely have to have contemplated the possibility thatMs. Dueck might choose to remain in Biggar, and as a result, it would have had to have assessed whether the children’s best interestswould have been served by them staying in Biggar with Ms. Dueck or, as the only other alternative, by them relocating to Aberdeen tolive with Mr. Mantyka. See: Ingram v. Ingram, 2005 SKCA 73, 269 Sask.

R. 161 at para. 6. [44] On an interim basis, and having regard to the limited amount of affidavit evidence underpinning this proceeding, I again see noreasonable basis on which such things could be resolved in Mr. Manytka’s favour. Mr. Mantyka appears to be an excellent father and nodoubt loves the children very much but, simply put, I do not understand how it would have been in their best interests to relocate toAberdeen pending the trial. The key points here are that (

a) as just noted, Ms. Dueck has always been the children’s principal caregiverand they have lived with her for the last three years, (

b) although the relocation to Biggar will limit the children’s ability to seeMr. Mantyka mid-week, his weekend access will not be reduced because of the move (although the children will have a substantiallylonger commute to facilitate it), (

c) it is possible to provide the children with some extra time with Mr. Mantyka so as to make it easierfor them to maintain their relationship with him. In other words, it would not have been in the children’s best interests to move toAberdeen if Ms. Dueck elected to stay in Biggar. [45] In light of the foregoing analysis, it is my opinion that the decision of the Chambers judge should stand and that Ms.

Dueckshould be able to remain in Biggar with the children pending the trial. [46] That said, in view of its nature and history, this matter should proceed to a pre-trial and trial (if necessary) as quickly as can bereasonably arranged. The children should not be kept in limbo any longer than necessary. D. A Last Point [47] Before concluding, I wish to make a final point. This Court has repeatedly discouraged appeals from interim orders in family lawproceedings. See, for example: Foss v. Foss (1991), (SK CA), 31 R.F.L. (3d) 367; Graham v. Tomlinson, 2010SKCA 101, 324 D.L.R. (4th) 156 at para. 15; Dauk v.

Law 2005 SKCA 145, 275 Sask. R. 158 at para. 6; Hall v. Hall, 2011 SKCA 86,337 D.L.R. (4th) 89 at para. 1. It has taken this approach in an effort to help litigants avoid both the delays that such appeals necessarilyinvolve and, as well, to avoid the cost of such proceedings. As Jackson J.A. said in Hall “[i]n most cases, the interests of the parties, andthe children, are best served by proceeding quickly to the pre-trial settlement conference stage rather than expending time and scarceresources on an appeal from an interim order”. [48] This case illustrates the point.

The Chambers judge’s order was made on August 9, 2012. That is three months ago — threemonths that the parties could have used to advance the proceedings to a pre-trial conference and to put themselves three months closer toa trial, if the trial should prove necessary. V. Conclusion [49] I conclude that, although the Chambers judge might have made some errors in his analysis, this appeal must nonetheless bedismissed. The pre-trial conference should be held on an expedited basis. Ms. Dueck is entitled to costs in the usual way.

DATED at the City of Regina, in the Province of Saskatchewan, this 19th day of November, A.D. 2012. “Richards J.A.”_____________________ Richards J.A. I concur. “Jackson J.A.”______________________ Jackson J.A.

I concur. “Caldwell J.A.” _____________________ Caldwell J.A.