Docket: CACV2203 Marilyn P. Adsit Appellant (Petitioner) - v. -, 2012 SKCA 31

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 31 Date: 20120313 Between: Docket: CACV2203 Marilyn P. Adsit Appellant (Petitioner) - and - Kelly Villeneuve Respondent (Respondent) Before: Lane J.A. (in Chambers) Counsel: Marilyn P. Adsit appearing on her own behalf, by telephone Aaron M. Friedman for the Respondent, appearing by telephone

Application: From: F.L.D. No. 137 of 2009, J.C. Saskatoon Heard: February 13, 2012 Disposition: Application allowed Written Reasons: March 13, 2012 By: The Honourable Mr. Justice Lane Lane J.A. [ 1 ] The respondent father applied pursuant to Rule 15 of The Court of Appeal Rules to lift the stay of the order of Currie J. (in chambers) granted November 9, 2011, and further seeks security for costs in the amount of $3,000. The Rule 15 stay arose from the appellant mother’s appeal of Currie J.’s order leaving the issue of the mother’s mobility to be determined at a trial.

For ease of reference, I will refer to the mother either as “mother” or “appellant” and the father as “father” or “respondent.” [ 2 ] The chambers judge saw “no pressing reason for an immediate move is present” (para. 7 of his fiat). At the time of the hearing, the mother wanted to move with the child to Lloydminster, Saskatchewan. Because of the proximity of that community to the parties’ place of residence in the Battlefords, the chambers judge held the issue of mobility could wait a determination at trial.

He determined that such a move would introduce a disruption which could be compounded if the father was successful and the child ordered back to the Battlefords. He further ordered the parties to have joint custody with the primary residence being with the mother in the Battlefords and, if the mother moved from the Battlefords, the primary residence was to be with the father with reasonable access on reasonable notice to either party. [ 3 ] This was the second order preventing the mother from moving.

After separation, Wright J., on May 22, 2009, ordered that neither party remove the daughter from the Province of Saskatchewan without an order of the court or written agreement from the other party. On December 22, 2009, Family Justice Services completed a custody and access report recommending that it was in the daughter’s best interests to remain in the Battlefords and the parents should share equal custody. [ 4 ] The parties were in a relationship for approximately 20 months, separating in December 2008. They have one child, a daughter, from the relationship born August 17, 2007.

The appellant mother has a child from a previous relationship born December 22, 2001. [ 5 ] In the same month of the issuing of Currie J.’s order, the mother removed the daughter from Saskatchewan and relocated with her to Sherwood Park, Alberta where as a solicitor she joined a law firm. The father says the move occurred without his knowledge or consent. [ 6 ] The matter of lifting the stay came before me in chambers at which time the mother indicated she was not prepared to proceed as she did not have counsel.

The matter was adjourned for one week at which time I would hear the father’s application to lift the stay. The mother shortly thereafter abandoned her appeal. The father has now sought to have his costs, in the amount of $2,000, for the leave application. [ 7 ] It was agreed the matter of costs would be heard simply by written representations and I have now had the opportunity to consider the parties’ submissions. [ 8 ] The father submitted the child was moved without his knowledge or consent and contrary to previous orders of the Court of Queen’s Bench.

He was required, on the application to lift the stay, to file the necessary documents, memorandum of law and argument, affidavits, and to organize and pay for the telephone conference call. He submits his actual legal costs relating to the application are approximately $2,000, including tax and disbursements.

[ 9 ] The mother sets out in her submission the following facts (which are not a complete rendition) referencing herself as the appellant: 2. The appellant has informed and advised the respondent on numerous occasions in the past year of employment opportunities in Sherwood Park, Alberta. The appellant organized and paid for mediation in Saskatoon, Saskatchewan regarding relocating to Sherwood Park, Alberta. The parties participated in mediation on all outstanding issues, including that of relocation in March of 2011, and no agreement was reached on any issue. 3.

The appellant filed and served a notice of motion regarding the issues of custody and primary residence and relocation and the resulting interim order of Mr. Justice Currie of November 2011 granted primary residence to the respondent if the appellant moved. 4. The appellant filed the notice of appeal as the appellant strongly believes that interim order is not workable considering the respondent works two full time jobs, and works 12 hours per day for four days, and then works another full time job for his remaining time, and thus works seven days per week. This evidence was not before Mr.

Justice Currie which resulted in the interim order. 5. The appellant did relocate to Sherwood Park, Alberta, and commenced employment. The respondent had not reduced his work time and continues to work these hours. 6. The respondent was advised by telephone of an employment position in Sherwood Park, Alberta in December, 2011. The appellant forwarded informal offers of settlement to the respondent, and the respondent failed to reply. … 12. The appellant firmly believes that it is not in the child’s best interest to reside primarily with a parent that works seven days per week and for 12 hour shifts.

However, on February 17, 2012 the appellant did file and serve the notice to abandon the appeal. [ 10 ] She also set out a copy of an e-mailed offer of resolution to the father’s solicitor which set out her proposals for access. She notes the parties have been meeting in Lloydminster to exchange the daughter to provide for the father’s access. She argues costs ought to be left until after the court has decided the matter and this is not a situation where costs should be ordered. She further says: 17.

Although the appellant formally abandoned her appeal, it is respectfully submitted that this is only a step in further court proceedings, as the appellant suggests it is not in the child’s best interest to be left with a parent with two full time jobs. 18. Further all attempts the appellant has made and continues to communicate to the respondent to resolve issues are being declined by the respondent. [ 11 ] The appellant was the applicant before Currie J. in chambers seeking joint custody with the primary residence of the child being with her.

She also sought an order permitting her to move with the child to Lloydminster. The father did not oppose the order for joint custody and primary residence but he opposed the move. Currie J. found there was a genuine issue for trial. The issue of her mobility was the primary issue and the chambers judge concluded that, pending a trial of that issue: … the importance of not disrupting [the child’s] life by moving her to a new community outweighs the importance of her primary residence continuing to be with Ms. Adsit.

This is especially so because, whichever way matters unfold, [the child] will continue to see a lot of both parents. That being so, there is no reason to deviate from the preferable procedure of determining a mobility matter only at trial. [paras. 13-14] [ 12 ] The chambers judge directed the scheduling of a pre-trial conference on the mobility issue.

He then went on to provide that if the appellant moved from the Battlefords, the child’s primary residence would be with the father in the Battlefords. [ 13 ] It must be noted that in her submission regarding costs, the appellant advises she had informed the respondent on numerous occasions in the past year regarding opportunities in Sherwood Park, Alberta. She further says she advised the respondent of an employment position in that community in December 2011 but does not give the date.

This seemingly is in direct contradiction to her application before Currie J. where she deposed she had turned down a job offer in Sherwood Park and that her application before Currie J. was to seek an order to move to Lloydminster – not Sherwood Park. [ 14 ] The appellant has apparently decided that she alone will decide what is in the best interests of the child. She has deliberately ignored two Queen’s Bench orders and believes the latter one is not workable because of the respondent’s hours of work which evidence was not before Currie J.

It is not up to her in the face of two court orders to unilaterally decide what is in the child’s best interests. The orders are clear and unequivocal. It is particularly troublesome and of concern because the appellant is a lawyer. It is up to the father to apply to enforce the order of Currie J. and for the Court of Queen’s Bench to determine what is an appropriate response to what I see from the materials filed before me, as a deliberate flaunting of the Court order. [ 15 ] In my view, given the appellant’s prior application to move to Lloydminster and her decision to unilaterally move to Sherwood Park

in December after the order of Currie J. had refused her application leads me to no other conclusion than she intended to move notwithstanding the order and the filing of her appeal. If circumstances had changed after the order below, she could have reapplied. She chose not to do so. She chose instead to appeal and forced the respondent to make the application he did. It is entirely appropriate an order for costs on the abandonment of the appeal be made. I therefore order the appellant to pay costs in the amount of $2,000 payable forthwith. DATED at the City of Regina, in the Province of Saskatchewan, this 13th day of March, A.D. 2012. “Lane J.A.” Lane J.A.