Docket: CACV2436 Clifton Francis Appellant/Respondent - v. -, 2013 SKCA 85

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 85 Date: 2013-08-15 Between: Docket: CACV2436 Clifton Francis Appellant/Respondent - and - Danita Lynn Taniskishayinew Respondent/Applicant - and - Patricia Smoke Respondent/Non-party Before: Caldwell J.A., in chambers Counsel: Shandel C. Wilson , on behalf of the appellant/respondent Danita Lynn Taniskishayinew, on her own behalf

Appeal: From: 2013 SKQB 212 Heard: August 14, 2013 Disposition: Application granted Written Reasons: August 14, 2013 By: The Honourable Mr. Justice Caldwell Caldwell J.A. [ 1 ] The applicant mother seeks a lifting of the stay of execution on the judgment of the trial judge (indexed as 2013 SKQB 212 ) which was automatically imposed upon the father’s appeal from that decision.

In her judgment, the trial judge awarded the mother custody of the parties’ son with the child to have access to the father for one extended weekend per month during the regular school year and for one half of major school breaks, with each party to share and assist in the transportation of their son for the purposes of access. [ 2 ] In her reasons for judgment, the trial judge addressed whether it would be in the best interests of the child to grant custody to the father or to the mother in accordance with the factors set out in s. 8 of The Children’s Law Act, 1997 , S.S. 1997, c. C-8.2.

The trial judge’s conclusions in that respect were as follows: [38] I intend to first address the factor which in my view is the most important, and in many cases determinative when deciding that which is in a child’s best interests. It is set out in s. 8(a)(

i) of the Act and relates to the “quality of the relationship that the child has with the person who is seeking custody and any other person who may have a close connection with the child.” [Emphasis in original] … [41] … It is not possible to conclude that Mackenzie can be bonded or attached to either of his parents in any meaningful way. From the time that Mackenzie was a toddler until he was 10 or 11 years old, both of his parents abdicated their parental responsibilities in favour of his grandmother, Patricia. Danita did so because of substance abuse and a transient lifestyle.

Clifton did so apparently out of selfishness and disinterest. To a large extent, until 2011, both Danita and Clifton were strangers in Mackenzie’s life. Danita chose not to exercise the access agreed to by her and Patricia in 2006 for almost five years. Clifton made less than satisfactory efforts to inquire about the well being or circumstances of his son until Patricia contacted him to take Mackenzie over the Christmas season in 2010. By then, Clifton had not bothered to have any involvement with Mackenzie from the time he was an infant.

Even after that, Clifton did not maintain any contact until Patricia again contacted him to come and take Mackenzie to Moose Jaw in June 2011. [42] Both Danita and Clifton glossed over their evidence when attempting to explain why they had been absent for so much of Mackenzie’s life. Danita blamed Patricia saying that she had denied her access to Mackenzie in 2007. Yet her own witnesses verified that for a period of that time, Danita was homeless and living in a vehicle. Patricia may have had good cause to deny access. Similarly, Clifton was less than forthright on this issue.

He said he did not know where Danita was living and did not know how to effect contact with Mackenzie. He did know, however, where Danita’s father lived, and with a minimum of effort, could have initiated contact. I suspect that Clifton’s lack of involvement was due more to a concern that he would be held responsible to assist in the financial support of Mackenzie rather than anything else. This is the pattern that he has followed with both James and Aryana. [43] The person who raised Mackenzie from the time that he was a toddler until June, 2011 was Patricia.

Unfortunately at that time, for unexplained reasons, Patricia also abandoned Mackenzie and no longer has any contact with him. The only person who has been a constant in Mackenzie’s life is his little sister Mackaylia. All of the important adults who have been, or should have been, concerned about him have failed him in every significant way. It is not difficult to conclude that from Mackenzie’s perspective, he must view his relationship with any of these adults as tenuous at best. [44] As to the other factors to be considered under s. 8 of the Act , little more can be said.

As noted above, scant evidence was provided regarding the personality, character or emotional needs of Mackenzie. While Clifton attested to the fact that Mackenzie is doing well in school, he provided no independent evidence of that assertion, not even a report card. The evidence of both Danita and Clifton was insufficient to undertake any informed analysis of the remaining considerations required by the legislation.

Their testimony focussed more on their own personal struggles rather than the needs and circumstances of Mackenzie – perhaps justified in their particular circumstances, but nonetheless disturbing. [45] This is one of those rare cases where a decision must be made between two parents who have in the past both been inadequate and uninvolved parents. But fortunately, they appear to have improved their situations to the point where they can adequately parent Mackenzie. Both have suitable accommodations and I am satisfied that alcoholism or other addictions are not at this time an issue in either household.

Clifton’s criminal activity is in the distant past. Any concern about gambling in Danita’s home was sufficiently addressed by Richard. While both he and Danita play VLT’s from time to time, it is only with extra money that they acquire by collecting bottles. There was no evidence that would support Clifton’s assertion that Yellow Quill First Nation is a less safe place to raise children than Moose Jaw. [46] Given the lack of involvement by both of them with Mackenzie until 2011, there is little to distinguish either Danita or Clifton as

a better custodial parent. Neither of them have any particular attribute that would “tip the balance”. Both are equally at fault for neglecting and ignoring Mackenzie for most of his life. [47] Having said that, there are two important factors which lead me to the conclusion that it will be in Mackenzie’s best interests if he is placed in the custody of his mother. The first is the issue of access. Clifton has been unwilling to facilitate contact between Mackenzie and his mother.

While his claim to be unable to do so because of financial restrictions has some merit, he has been resistant to any reasonable compromise offered by Danita. He is trained as a truck driver, and has been employed in that capacity in the past. His decision to quit his employment to assist Amber with child care was reasonable at the time, but it cannot continue indefinitely. Danita has similar financial constraints, but has always sought out resources to help her with transporting Mackenzie either at the start or end of her access times.

Through his evidence and the previous Court record, I have no confidence that Clifton will accommodate Danita’s access in the future should he be granted custody, irrespective of his financial situation. Given the unfortunate circumstances of Mackenzie to this point, it is imperative that Mackenzie be provided the opportunity to have regular and consistent contact with both his parents.

I am convinced that Danita is the parent who is better able to understand and facilitate this need in the best interests of Mackenzie. [48] Secondly and equally, if not more important in this case, is the consideration set out in s. 8(a)(

i) of the Act , and in particular, that portion that I emphasized above in para. 38 – “the quality of the relationship that the child has with the person seeking custody and any other person who may have a close connection with the child.” As I have indicated previously, Mackenzie was essentially abandoned by both Danita and Clifton. Patricia raised him throughout his formative years until she also rejected him in 2011. The person who I am convinced has the closest and most enduring connection to Mackenzie is his sister Mackaylia.

She has been the only constant in his life, he grew up with her, and he should be able to live with her. Mackenzie’s relationship with his young brothers in Clifton’s home is also important, but he has not yet formed the bond with them that he has with his sister. [49] I am heartened in making this decision by the fact that the evidence is clear that Mackaylia is doing well in the care of Danita and Richard. She is succeeding academically and socially.

Hopefully Mackenzie will have the same opportunity. [ 3 ] When a respondent applies to lift a stay of execution arising under Rule 15(1), 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 clear from the trial judge’s reasons, until 2011 both parties exhibited a lack of interest in their child; moreover, the trial judge found there to be little to distinguish either the mother or the father as the better custodial parent and she concluded that both parties could adequately provide for the child.

However, the trial judge had no confidence that the father would facilitate the mother’s access to their son as he had repeatedly failed to do so in the past. On the other hand, she found that the mother had taken steps to facilitate access. But, and most importantly, the trial judge found the one constant relationship in the child’s life is with his sister, who currently resides with the mother. On the evidence adduced before her the trial judge found this sibling relationship to be the single most important factor under s. 8 of The Children’s Law Act, 1997 .

And, in keeping with that finding, she found it to be in the child’s best interest that to foster that relationship by granting custody to the mother. [ 5 ] As the trial judge noted, there is a paucity of evidence as to many of the factors set forth in s. 8 (

a) of The Children’s Law Act, 1997 . The meagre evidence before the trial judge was not much supplemented by the materials submitted in respect of the within application. Nevertheless, I conclude that the maintenance of the child’s relationship with his sister is the foremost consideration before the court in a determination of what is in the child’s best interests. As the trial judge noted, that relationship is the only constant in the child’s life.

The father’s seeming inability to facilitate the child’s access to his mother, and therefore to his sister, especially where access has been ordered by the court, is of considerable concern. Additionally, I note that the school year will commence shortly and, in that respect, the lifting of the stay would allow the child to settle into a routine and

schedule during the school year, pending the hearing of the appeal. [ 6 ] In sum, given the facts of this matter, I can foresee no harm to the child or any significant disruption in his life if the stay is lifted. However, as I noted in chambers, this means that the child is to have his access time with the father for the remainder of August, in accordance with the terms of the trial judge’s decision. The mother acknowledged this to be the case. [ 7 ] Accordingly, I find it to be in the best interests of the child to lift the stay of execution imposed on the judgment under Rule 15(1).

This, of course, puts the incentive on the father to perfect his appeal, should he still wish to do so. In that regard, if the father should perfect his appeal, I order that the mother shall serve and file her written argument, if any, within 15 days after receipt of the father’s factum (or written argument if that be the case) and appeal book. Finally, although I recognise that doing so has the potential to give rise to more problems than it may address, I also lift the stay of proceedings arising pursuant to Rule 15(4). [ 8 ] Costs shall be in the cause.

DATED at the City of Regina, in the Province of Saskatchewan, this 15 th day of August, A.D. 2013.

“Caldwell J.A.” ____________________ Caldwell J.A.