Docket: CACV2441 Tamara Lee Bolan Respondent/Appellant - v. –, 2013 SKCA 84

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 84 Date: 2013-08-14 Between: Docket: CACV2441 Tamara Lee Bolan Respondent/Appellant - and – Joshua Brett Bolan Applicant/Respondent Before: Caldwell J.A. in Chambers Counsel: D. Heather Funk and Alana Wakula, for the respondent/appellant Jeremy A. Caissie, for the applicant/respondent Application: From: DIV No. 335 of 2013

Heard: August 13, 2013 Disposition: Application Allowed, in part Written Reasons: August 14, 2013 By: The Honourable Mr. Justice Caldwell Caldwell J.A. [ 1 ] The respondent father has applied to lift the stay of execution automatically imposed under Rule 15(1) of The Court of Appeal Rules on the Court of Queen’s Bench chambers judge’s July 11, 2013 interim order, as supplemented by her July 12, 2013 fiat, by reason that the appellant mother has filed a notice of appeal.

The mother appeals from the interim order which, inter alia , granted the parties joint custody of their two children with primary residence to the mother and weekend access for the father. [ 2 ] After summarizing the evidence before her, the chambers judge made the following findings and orders in her July 12, 2013 fiat: [27] There are indications from this evidence that each parent is exaggerating the faults of the other and minimizing their own behaviours. However, much remains to be explored. [28] The father has recently sought personal counselling. The wife would be well advised to do likewise.

Any potential concerns for risk to the children are minimized in that the wife is now residing with her parents. The father wants shared parenting and indicates he has the support of his mother, who is prepared to assist. Alternatively, he will look for third party caregivers. As to the paternal grandparents, they are identified as a source of contention in the marriage, and the situation may not be ideal for the children.

As to the third party care, it is not in the best interests of the children, at their present age, to be in the care of strangers when family is available. [29] There are frailties in the evidence of both parties. For interim purposes, I accept the evidence of long time friends of the couple that the father is not a present risk to the children, and that supervised access is not required. That said, it is clear that the mother has been the parent more readily available to the children and that is the status quo that should be maintained pending further order.

The fact she has undertaken to reside with her parents goes some way to alleviating any concerns about potential risks for the children, if they exist as alleged. There will be an order for interim joint custody. Until further order, the parenting arrangement will be as follows: 1. The children’s primary residence will be with the mother, so long as she remains resident with her parents in Warman. 2.

The mother should take immediate steps to seek assistance with [the daughter’s] behavioural issues and developmental delays, whether through the Early Childhood Intervention Program, the Alvin Buckwold Centre, or other similar agencies. 3. The parents should both file proof they have engaged with a professional counsellor and evidence of compliance with the mandatory parent education requirements. 4. The father will have access weekly, from Friday at noon to Sunday at noon.

The no-contact provision [arising under a criminal matter] will require someone other than the parties to facilitate exchanges of the children. If this cannot be arranged between counsel, the parties will use the Supervised Exchange program in Saskatoon, assuming the program can accommodate them. If not, the issue of how to facilitate the exchanges will be returned to me. [30] After the parties have completed the parent education course and received the benefit of a reasonable time in counselling, the parenting arrangement can be reviewed on written request of either party, on 14 days’ notice.

If the paternal grandmother is willing to provide care for the children during the father’s parenting time, she should provide an affidavit on her own behalf. [31] I make an order that the children shall not be removed from the jurisdiction of Saskatchewan without written agreement of the parties, or Court order. [32] Some costs are warranted to express disapproval of the mother’s actions. She had family in Saskatchewan who are quite obviously willing to lend assistance. The removal of the children to Alberta without communication or notice of any kind was entirely inappropriate.

The father will have costs in the amount of $1,000. [ 3 ] When a respondent applies to lift a Rule 15(1) stay of execution, the general objectives of the Court are to prevent injustice, to ensure that the result is as fair and equitable as possible for all sides, to minimize prejudice, and to balance competing interests: Gerski v. Gerski , 2006 SKCA 66 , 285 Sask. R. 121.

However, where matters concerning a child may be considered the focus of the order appealed from, the primary objective of the Court is to determine whether it is in the best interests of the child to lift the stay of that order or to allow it to remain in place. In Wiegers v. Gray , 2007 SKCA 30 , Cameron J.A. described the central question before the court in these terms: [1] … It is thus necessary to approach these applications from the perspective of the child and the child’s welfare.

Generally, the central question is how the child is apt to be affected, should the stay be lifted or allowed to remain in place pending the determination of

the appeal, having regard for such considerations as the potential for harmful disruption in the life of the child should the appeal succeed. [ 4 ] As is often the case with an appeal involving an interim custody order, the only established parenting times for the children are those set out by the chambers judge in her fiat; and, those provisions are now stayed by reason of Rule 15(1).

Given that the parents’ inability to address issues of parenting led them to court in the first place, it is safe to say that they will be unable to fill this gap on their own pending the hearing of the appeal from the interim order.

This will leave the parties and, more importantly, the children in a circumstance of uncertainty and insecurity as to custody and access and parenting arrangements in general. [ 5 ] As may be gathered from the chambers judge’s reasons, the father has experienced some considerable difficulty with the mother obstructing the children’s access to him and the mother has levelled allegations of abuse against the father. The judge was clearly alive to these issues and directly addressed them in her reasons.

However, by her notice of appeal, the mother has put at issue whether the chambers judge erred, among other ways, by ordering overnight access to the father for a nursing infant and by failing to give consideration to how the infant might be fed. In other words, the mother alleges the interim order has the effect of frustrating the breastfeeding of her five month old son because it grants weekend-long access to the father; and, she resists the lifting of the stay for that reason too.

She resists the lifting of the stay with respect to her two-year-old daughter for reasons of potential harm in that the father has in the past employed corporal punishment when disciplining the daughter. Nevertheless, her arguments before me focused largely on the son. [ 6 ] Although the mother has squarely raised the issue of breastfeeding in this Court, her affidavit material filed with the Court of Queen’s Bench contained but a single statement that she was breastfeeding the parties’ infant son.

Although there was no other evidence on this point, counsel for the mother says the issue of breastfeeding was raised in argument before the chambers judge and I have no doubt she took that fact into consideration. Regardless, it is clear to me that the very experienced family law chambers judge who heard this matter was alert to the child’s age and, undoubtedly, to the general needs, and what might generally be in the best interests, of a child of five months. And, the chambers judge was of the opinion that the father’s weekend parenting time would not be detrimental to the best interests of the parties’ son.

Nevertheless, the mother has said here that a lifting of the stay of execution on the interim order would effectively determine her appeal because the son might thereby become fully-weaned from breastfeeding and be unable to return to breastfeeding should the mother’s appeal be successful. [ 7 ] In his application to lift the stay the father has proposed that he would feed breast milk to his son if the mother were to provide the father with breast milk expressed for that purpose. He has, furthermore and reasonably so in my opinion, proposed a modified access

schedule such that the daughter would have access to him throughout each weekend, but that the son would only have access to him on Saturdays and Sundays, from 10:00 a.m. until 6:00 p.m., pending disposition of the mother’s appeal. The mother responds that she is unable to express sufficient quantities of breast milk to accommodate the access

schedule proposed by the father. Unfortunately, the mother’s evidence tendered in this Court does not include evidence of the child’s feeding times or whether he has regular feeding times or otherwise. [ 8 ] Turning then to the question before this Court. Given the findings of fact made by the chambers judge, I can foresee no harm to the children or any significant disruption in their lives if the stay is lifted so as to permit the father to have parenting time with the daughter on weekends and with the son on weekends during the day.

In saying this, I recognise that the father proposes to mitigate any potential for harm or disruption of the child’s breastfeeding by requesting as alternative relief that the stay remain in effect with respect to his overnight parenting time with his son. [ 9 ] It also bears repeating that the standard of appellate review in appeals from interim custody orders presents a significant hurdle for an appellant to clear.

The stark reality is that the limited scope of the power of appellate review in an appeal from an interim order means the likelihood that an appeal will not succeed is greater than the likelihood that it will succeed. As such, lifting a Rule 15(1) stay of execution could be advantageous to a child because the child would be more quickly set upon the predictable

schedule of parenting time that the chambers judge viewed as being in the child’s best interest. [ 10 ] As this Court has often noted, this Court is concerned to ensure that matters of child custody and access are resolved as quickly as possible as a quick resolution is usually in the best interest of the children involved.

In that respect, this Court has repeatedly discouraged appeals from interim orders in matters of child custody and access; however, when a party feels an appeal is the prudent course, it is generally advantageous to the child or children that the appeal be set down for hearing in an expeditious manner.

Here, given the representations of the parties’ counsel, it is possible to have the appeal of this matter within a month of today’s date. [ 11 ] As such, as I find it to be in the best interests of the children involved, I am prepared to partially lift the stay of execution imposed on the interim order under Rule 15(1) as follows: (

a) The stay is hereby lifted such that the father shall have parenting time with the children on weekends, as contemplated in the interim order; except that he shall have parenting time with his son only on Fridays from Noon until 3:00 p.m., and on Saturdays from noon until 3:00 p.m. In other words, the stay remains in place with respect to that part of the interim order granting the father parenting time each weekend from Friday at 3:00 p.m. until noon on Saturday and from 3:00 p.m. on Saturday until noon on Sunday. For reasons of certainty, I confirm that the father shall return the daughter to the mother in the manner contemplated in the interim order at noon on Sundays. (

b) the Registrar shall set the appeal to be heard by a panel of this Court as early as possible during the September 2013 sittings of this Court; (

c) the mother shall serve and file her factum and appeal book on or before August 16, 2013; (

d) the father shall serve and file his factum no later than two weeks after service and filing of the mother’s factum and appeal book; and (

e) if either party has difficulty meeting the timelines for filing appeal materials or in setting this matter down for hearing, that party

may, with notice to the other, request the Registrar to have this matter brought back before me for appeal management. [ 12 ] In addition, given the terms of the interim order, I hereby lift the stay of proceedings imposed under Rule 15(4) such that it shall not bar the parties from returning to the Queen’s Bench chambers judge to resolve any issues which might arise with respect to the facilitation of supervised exchanges of the children.

Finally, I find it is in the best interests of the children that the stays under Rules 15(1) and 15(4) be lifted with respect to the order that the children not be removed from the jurisdiction of Saskatchewan without written agreement of the parties, or Court order; and I so order. [ 13 ] Costs shall be in the cause. DATED at the City of Regina, in the Province of Saskatchewan, this 14th day of August, A.D. 2013. “Caldwell J.A.” _______ Caldwell J.A.