Docket: CACV2208 Duane Allan Wutzke Appellant (Petitioner) - v. -, 2012 SKCA 15

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 15 Date: 20120222 Between: Docket: CACV2208 Duane Allan Wutzke Appellant (Petitioner) - and - Regan Dawn Bittner Respondent (Respondent) Before: Richards J.A. (in Chambers) Counsel: Marcel Simonot, Q.C. for the Appellant appearing by telephone Neil Raas for the Respondent appearing by telephone

Application: From: F.L.D. No. Div 08184 of 2011, J.C. Prince Albert Heard: February 22, 2012 Disposition: Application is granted (orally) Written Reasons: February 22, 2012 By: The Honourable Mr. Justice Richards Richards J.A. I. Introduction [ 1 ] This is an application pursuant to Rule 15 for an order lifting the stay of a decision prescribing interim custody and access. II. Background [ 2 ] The appellant Duane Wutzke and the respondent Regan Bittner have a five-year-old child. They separated in 2009 and the child lived primarily with Ms. Bittner. Mr. Wutzke and Ms.

Bittner entered into a custody and access agreement in May of 2010. Ms. Bittner subsequently became a caregiver for her terminally ill partner and had limited ability to care for the child. As a result, the child’s residence shifted to Mr. Wutzke during this period. [ 3 ] In July of 2011, Mr. Wutzke and Ms. Bittner signed an informal agreement which contemplated alternating parenting weeks during the month of August. The Chambers judge found that Mr. Wutzke then began to deny access to Ms. Bittner. Both Ms. Bittner and Mr.

Wutzke brought applications seeking sole custody of the child with specified access for the other parent. [ 4 ] The Chambers judge awarded interim joint custody with the primary residence of the child to be with Mr. Wutzke. He then structured an interim access order on these terms: i. Duane Wutzke and Regan Bittner shall have joint custody of the child Chase Diesel Wutzke born July 26, 2006 with primary residence to be with Duane Wutzke. ii.

Regan Bittner shall have access to and parenting time with Chase from after school on December 20 th , 2011 until Christmas morning at 11.00 a.m. and again from December 29, 2011 at 9.00 a.m. until 12.00 noon on January 4 th , 2012. iii. Commencing January 1, 2012 Regan Bittner shall be entitled to one parenting period, in each calendar month, consisting of a period of time commencing when kindergarten dismisses on Chase’s 3 rd kindergarten day in one of his 3 day kindergarten weeks until 9.00 a.m. on the day preceding the 1 st kindergarten day of the next ensuing 3 day kindergarten week.

Regan Bittner shall have the right to designate the starting day of such period in each month and shall inform Duane Wutzke of the period selected a minimum of 3 days in advance of the pickup date. iv. Regan Bittner shall pick up Chase at his school in Debden or at Duane Wutzke’s residence as she elects and be responsible for all of her transportation costs. Duane Wutzke shall be responsible for picking up Chase in Fort McMurray for his return to Debden and shall be responsible for his own transportation costs. v.

Regan Bittner shall also be entitled to additional parenting time with Chase, up to a maximum of additional 6 days a month. This additional parenting time shall take place in the proximity of Debden Saskatchewan, so as to ensure that Chase is able to attend to his regular kindergarten

schedule during any of these additional days. If Regan Bittner elects to exercise such additional parenting time, in any month, she shall inform Duane Wutzke of her election and the times involved at least 3 days in advance. Pickups and returns on such dates may be at Chase’s school, or Duane Wutzke’s residence or a public place in Debden as selected by her.

vi. Regan Bittner may communicate her elections and related information by mail, telephone (including leaving a message), text message or email. This communication may be made through third parties including to or through one of Duane Wutzke’s parents. III. Analysis [ 5 ] The automatic stay of custody and access orders may be lifted in whole or in part pending an appeal. The overriding consideration in deciding whether to lift a stay is the best interests of the child. See, for example: Wiegers v. Gray , 2007 SKCA 30 ; Stochmanski v. Stochmanski , 2005 SKCA 58 , 262 Sask.

R. 232. [ 6 ] I am persuaded that the stay in this case should be lifted. The Chambers judge found, and Mr. Wutzke quite fairly does not suggest otherwise, that it is in the best interests of the child to spend time with both parents. Indeed, if Ms. Bittner did not now live in Fort McMurray, the Chambers judge would have ordered equal parenting on the basis of alternating weeks. [ 7 ] The reality of this case is that, but for the order under appeal, there is no means of mandating the access found to be in the child’s best interests. As counsel for Ms.

Bittner indicates, the parties will return to the “wilderness” they were in before the Chambers judge made his decision if the stay remains in place. The Chambers judge found that the wilderness in question involved a situation where Ms. Bittner was being denied access. [ 8 ] Mr. Wutzke expresses concern about transporting the child from Fort McMurray to Saskatchewan as per the terms of the order under appeal and about the fact that the child will miss kindergarten and extra-curricular activities when he is in Fort McMurray.

These, however, were the very issues considered by the Chambers judge when he determined what was in the child’s best interests. In the context of an application to lift a stay, I see no basis for interfering with his assessment of this situation. [ 9 ] The child will miss two days of kindergarten each month. That would not seem to be a major problem for a five-year-old. The child is apparently also involved in some sports programs but, again, missing a few games or practices is surely not a major consideration in the life of a pre-schooler.

Moreover, the order of the Chambers judge runs only until the end of June of 2012. This means that whatever issues might arise from the child’s absence from his home town will be of short duration. IV. Conclusion [ 10 ] In the end, I conclude that it is appropriate to lift the stay in this case. There will be no order as to costs. [ 11 ] If Mr. Wutzke elects to pursue his appeal, he shall serve and file his factum and the appeal book by March 12, 2012. Ms. Bittner shall serve and file her factum by March 26, 2012. Thereafter, the Registrar shall then

schedule the argument of the appeal for the first reasonably available date. DATED at the City of Regina, in the Province of Saskatchewan, this 22nd day of February, A.D. 2012. “Richards J.A.” Richards J.A.