Docket: CACV2311 Tara S. Olfert (Petitioner) Appellant - v. –, 2013 SKCA 89

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 89 Date: 2013-08-21 Between: Docket: CACV2311 Tara S. Olfert (Petitioner) Appellant - and – Korvin Arthur Grant Olfert (Respondent) Respondent Coram: Richards C.J.S., Ottenbreit and Caldwell JJ.A. Counsel: Dennis J. Fisher for the appellant B. Lynn Galey for the respondent Appeal: From: 2012 SKQB 301 Heard: June 20, 2013 Disposition: Dismissed Written Reasons: August 21, 2013

By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Ottenbreit Caldwell J.A. [ 1 ] The appellant mother appeals from the trial decision of a Queen’s Bench judge dismissing her application to relocate with her children to Indianapolis, Indiana, from Swift Current, Saskatchewan (indexed as: 2012 SKQB 301 ).

No appeal has been taken from any other part of the judge’s decision, which included grants of joint custody with primary residence of the children going to the mother, an order for financial disclosure for the purposes of child support calculation, as well as custody and access provisions. I have considered the mother’s submissions and, while I find some merit in them, I conclude that the standard of review prohibits appellate interference with the judge’s decision in this case. [ 2 ] I begin with the facts. The appellant mother was born and raised in Indianapolis.

The maternal grandparents and the mother’s brother live in Indianapolis. She attended medical school there and, as part of her elective curriculum, took a two-month practical training experience at a medical clinic in West Central Africa, where she met the respondent father. She is now a medical doctor and carries on a general practice in Swift Current, but she is also licensed to practice medicine in Indiana. She has a professional interest in “travel medicine” as well as HIV/AIDS management, for which there is limited scope in Swift Current.

In the past, she has easily found employment in her field of interest in Indianapolis. [ 3 ] The father was born and raised near Swift Current. His father passed away in 2011, but his mother continues to live on the family farm near Swift Current. He holds a bachelor’s degree in agricultural chemistry and was employed for several years as an irrigation agrologist. He does research work on a contract basis and assists with his brother’s orthodontic clinic in Swift Current every other week. He intends to take over the family farm.

He expects it will provide the bulk of his income in the future. [ 4 ] The parents courted at a distance and married in Indianapolis in 2002. They lived in Minneapolis, Minnesota, during the first year and a half of their marriage, where the mother completed her medical residency. They then moved to Swift Current so the father could complete an 18 month return-to-work obligation. On their evidence, both parties confirmed their mutual intention had been to train for and conduct charitable work overseas; it being their long-term goal to live and work in Africa.

While living in Swift Current, the parties had two children; the first was born in the fall of 2003 and the second in the fall of 2006. [ 5 ] When the father had satisfied his return-to-work obligation, he began to stall the mother on her efforts to pursue their goal of working overseas. In time it became clear he no longer had an interest in working overseas and had no intention of leaving Swift Current. This created tension in the marital relationship.

Furthermore, the mother says she felt trapped and felt the father’s family was being intrusive and overbearing and interfering in their home life and in their parenting of their children. The mother advised the father that she would file for divorce unless the parties left Swift Current; and, so they left. [ 6 ] In late 2009, the parents had decided to engage in overseas work in Niger with a Christian organization called Serving in Mission (“SIM”). SIM required them to undertake a year of Bible studies and a year of French language training prior to embarking on long-term work in Niger.

In August 2010 the family moved to Indianapolis so the parents could undertake a year of Bible studies. But, prior to the move, the father insisted the parents enter into an interspousal agreement under which they would agree that any dispute regarding custody and access of their children would be subject to the jurisdiction of the courts of Saskatchewan, and they executed such an agreement before leaving. [ 7 ] In Indianapolis the family lived with the maternal grandparents. Both children attended school in Indianapolis. Both children made friends and were engaged in organized activities there.

The children attended two local churches and joined a children’s group at one of them. The maternal grandparents provided childcare and were quite involved in the children’s daily lives. [ 8 ] The parents completed their studies in Indianapolis in the spring of 2011. They intended to spend the summer of 2011 working in Swift Current and then to move to Sherbrooke, Québec, to complete French language training; however, prior to their intended move to Québec, SIM advised them that the mother would not be permitted to work with SIM because she did not believe homosexuality was a sin.

On learning this, the father advised the mother that he intended to remain in Swift Current. The marriage then broke down and divorce proceedings were commenced shortly thereafter. [ 9 ] Until trial, the parents and the children had continued to reside together in the family home in Swift Current. The paternal grandmother provided some childcare and has been involved in the children’s lives during their residency in that city.

While none of the father’s siblings reside in or near Swift Current, the children’s uncle and aunts and the children’s cousins do travel to Swift Current and sometimes some of their cousins remain there on an extended basis, usually in the summer. The mother has maintained the children’s relationship with the maternal grandparents by regularly taking them to Indianapolis. [ 10 ] The parties agree that the children are generally happy and have adjusted well to the changes in their lives. The children have friends, extended family, and religious communities in both Swift Current and Indianapolis.

They have engaged in athletic, social and religious activities in both cities. Both have attended school or pre-school in both cities. [ 11 ] Refreshingly, each parent acknowledges that the other parent has demonstrated a commitment to the children’s best interests and neither parent has made allegations about or cast aspersions on the other.

[ 12 ] The mother has said she will remain in Swift Current with the children if they are not permitted to move to Indianapolis. The father has said he will take advantage of the flexibility associated with farming to spend up to six months of the year in Indianapolis if the children are permitted to move there. [ 13 ] As noted, after trial the judge awarded joint custody but with the mother’s residence established as the primary residence of the children.

This decision was based on the judge’s acceptance of and reliance on a May 2012 custody and access report assessment with respect to the children and the testimony at trial of its author, a registered psychologist who specialises in that area. [ 14 ] Although somewhat lengthy, the following are the salient parts of the reasons for judgment as pertain to the mother’s application to relocate to Indianapolis with the children: [175] The plans that the petitioner presents for the girls includes the perceived benefits of a large American metropolis (Indianapolis).

She contrasts this against the more minimal benefits of a small prairie city, Swift Current. I find the girls’ needs can be adequately met in both centres. If the children were to remain in Swift Current under their mother’s primary care, they are able to access and enjoy the amenities which Indianapolis has to offer during their frequent visits to that city. The quality of schooling in each city has some differences, particularly cultural, but, on balance, I find the girls’ educational and extra-curricular activities can be adequately met in either city. . . . [177] The children’s wishes as conveyed through Mr.

Stewart, given their respective ages and maturity, do not surprise the court. They have come to accept their parents’ separation- in its compromised form. The girls do not want their parents to fight with one another. They yearn for peace and the happier times of the past. They have expressed their love for each parent and the overwhelming desire to have each parent as a present force in their lives. Their feelings are articulated by Mr. Stewart and displayed in the various test results. Those feelings are common to most children of this age in similar circumstances.

Their feelings are also consistent with the maximum contact principle and speak to their best interests. [178] The petitioner stated in her evidence that faced with the prospect of not being allowed to relocate the children, she would remain in Swift Current. Case law has discussed the “classic double bind” facing a parent in the petitioner’s position.

The “double bind” arises because a court may, on the one hand, draw an adverse inference against a parent who reveals an unwillingness to abandon the proposed move and, on the other hand, may view preservation of the status quo as a readily available attractive option, if the parent is willing to forego the relocation. See Hejzlar v. Mitchell-Hejzlar , [2011 BCCA 230 , 100 R.F.L. (6 th ) 32] [179] In this case the parties have zealously guarded their positions vis-a-vis the children to avoid creating a status quo of primary parent in either’s favor.

The factual situation this case presents with the parents residing under the same roof, though apart, and each posturing to be actively, if not equally engaged in the children’s health care, education, spiritual lives, extra-curricular activities and other circumstances is unique. The general trend of the jurisprudence since Gordon v. Goertz is not applicable to these unique circumstances. As Larlee J.A. stated in the decision H. (P.R.) v. L. (ME.) , 2009 NBCA 18 ,71 R.F.L. (6 th ) 235 at para. 18 : 18 The general trend of the jurisprudence since Gordon v.

Goertz has been to grant approval for a proposed move, so long as it is proposed in good faith and is not intended to frustrate the access parent’s relationship with the child. However, the relocating parent must generally also be willing to accommodate the interests of both the child and the access parent. This will generally require a restructuring of access, with the relocating parent possibly incurring the increased costs of access in the new arrangement, sometimes by way of an alteration of the child support obligations.

However, this general trend is most evident in cases where there is a clear primary caregiver for the child or children. A proposed move is less likely to be approved where caregiving and physical custody have been equally shared between parents. Furthermore, no such trend is evident in cases where the proposed move would result in a separation of siblings who have, prior to that point, lived together. The court-imposed separation of siblings remains exceptional. … [183] On the facts before me the classic double bind does not apply.

The parents share legal and defacto [ sic ] custody of the children within the same household. That is the status quo. The issue, aside from determining primary care, is to resolve whether the petitioner’s desire to relocate Bianca and Sophia to Indianapolis is in the children’s best interests. As difficult as the factual decision in custody and in mobility cases may be, the law is settled and well propounded. The law can only set out guiding principles. Gordon v. Goertz did set out those guiding principles and that decision continues to endure as can be seen from the decisions which I have previously quoted.

This case requires the court to get back to the basics – to deal with first principles. [184] The best interest principle is easy enough to articulate – the tough slugging is in the application, particularly to difficult factual situations. This is one of those cases because each parent is a good and competent parent. Each child yearns to have a loving, meaningful and ongoing relationship with each parent. The maximum contact principle is entrenched in both statutes, The Children’s Law Act and the Divorce Act because of its importance.

The maximum contact principle is not an exclusive or predominant factor – see Gordon v. Goertz at para. 25. There the court reminds us that it is one of two statutory factors set out in ss. 16(1) and 17(9) of the Divorce Act (and is present [ sic , in] s. 6(5)(

a) of The Children’s Law Act, 1997 ). The Supreme Court adds that, “the reviewing judge must bear in mind that Parliament has indicated that the maximum contact with both parents is generally in the best interests of the child”. … [190] I acknowledge the petitioner’s desire to relocate with the children to Indianapolis to be closer to her own family is a fair desire. However, parenting involves personal sacrifice. The petitioner can expect the intrusion into her personal and family life will cease with this divorce and judgment.

I find that the best interests of Bianca and Sophia will be served by being in their mother’s primary care. To this end, neither the respondent nor his family shall have any status to interfere with the petitioner’s private life, her home life, professional life or parenting of the girls. The petitioner’s social life shall be as a femme sole. Thus, her main complaints and concerns are addressed. In matters of the girls’ grooming, dress and health care issues, the petitioner shall have exclusive authority over these

parenting matters. [191] The petitioner and respondent shall continue as joint legal custodians of Bianca and Sophia. There is no evidentiary basis norreason to disenfranchise one parent and to legally empower the other as a sole custodian. … [195] To ensure maximum contact and thereby achieve a parenting scheme which augers with the best interests of Bianca and Sophia,the respondent shall parent the children between the end of the school day on Thursday until the commencement of school the followingMonday morning in each alternate week.

Then, on the Wednesday evening preceding the petitioner’s weekend, the respondent shallparent Bianca and Sophia from the time school recesses until 9:00 p.m. I have chosen Wednesday as the evening when AWANA is held.If AWANA is on another week day evening of the week preceding the mother’s weekend, that evening shall substitute for Wednesday.In this manner, the children will have the maximum weekly contact with the respondent as befits their best interests.

A move toIndianapolis would have seriously jeopardized the girls’ relationship with their father and offend the maximum contact principle for nojustifiable reason. … [207] Having dismissed the petitioner’s application to relocate the children to Indianapolis, it is necessary to order that the petitionergive the respondent at least 30 day’s advance notice or such other notice as the court may specify.

To be practical and mindful of thetime required to challenge and bring a variation application to the court, I direct that the petitioner given the respondent no less than 60day’s advance written notice of any intention on her part to relocate the children’s residence in the future (ss. 6(5)(

b) of The Children'sLaw Act, 1997). … [210] Given the freedom and independence which will come with divorce and this judgment, the petitioner’s real concerns over controland intrusion into her private life, as well as professional limitations, are addressed and rectified. The other reasons advanced by thepetitioner are based upon her quest for personal happiness and advancement.

None of those reasons are sufficient, viewed separately norin the cumulative, to outweigh the best interests of the children and maintaining the maximum contact with their father, extended family,personal friends or community. [211] The maternal grandparents are retired persons of sufficient means to visit Swift Current. The petitioner is likewise able to take thechildren to Indianapolis on a regular basis.

Obedient to the overarching principle of determining where the best interests of Bianca andSophia presently are met, and only in that legal pursuit, do I render this judgment. [15] With that background in place, I now turn to the matters put in issue by the mother, namely: (

a) Whether the judge considered the factors relevant to a determination of the best interests of the children in a mobilityapplication; (

b) Whether the judge improperly weighed those factors; and (

c) Whether the judge failed to consider or misconstrued evidence related to those factors. [16] But, before embarking on an analysis of these issues, I would first set the framework for that analysis by reference to the standardof review in matters of this nature. In that respect, a high degree of deference is accorded a trial judge in matters of child custody andaccess. An appellate court may only intervene with a decision after trial if there has been a material error, a serious misapprehension ofthe evidence or an error in law. The standard of review is best set out in Van de Perre v.

Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014,in these terms: 11. In reviewing the decisions of trial judges in all cases, including family law cases involving custody, it is important that theappellate court remind itself of the narrow scope of appellate review. L’Heureux-Dubé J. stated in Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, at paras. 10 and 12: [Trial judges] must balance the objectives and factors set out in the Divorce Act or in provincial support statues with an appreciation ofthe particular facts of the case.

It is a difficult but important determination, which is critical to the lives of the parties and to theirchildren. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts whensuch decisions are reviewed. … There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard ofappellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard theparties directly.

It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court willhave a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizesthe importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, aserious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would havemade a different decision or balanced the factors differently. 12.

Hickey involved the appellate review of support orders, but the principles related to appellate review discussed therein are equallyapplicable to order concerning child custody...

. . . 15 As indicated in both Gordon and Hickey, the approach to appellate review requires an indication of a material error. If there is anindication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of thefactors. In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judge ignored or misdirectedhimself with respect to relevant evidence.

This being said, I repeat that omissions in the reasons will not necessarily mean that theappellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian ad litem of) v. Ashmore ( 1999), 1999 BCCA 6 , 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal ref’d [2000] 1 S.C.R. vi (S.C.C.), an omission is only amaterial error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in away that affected his conclusion.

Without this reasoned belief, the appellate court cannot reconsider the evidence. [17] This then is the review framework in which the analysis of this appeal must be conducted: it is a review for material error, aserious misapprehension of the evidence, or an error in law; an appellate court cannot overturn the trial decision simply because it wouldhave made a different decision or balanced the factors differently. [18] With that I turn to the first issue raised in this appeal. It is common ground that the factors which must be considered in a mobilityapplication are those set forth in Gordon v.

Goertz, [1996] 1 S.C.R. 27, as have been augmented by the decision in L.(N.D.V.) v. L.(M.S.), 2010 NSSC 68, 83 R.F.L. (6th) 214. These factors, when reviewed from a child-centric perspective, guide a court in its determination ofwhat is in the best interest of the child or children. It is that determination which is of foremost importance to a judge who hears amobility application. [19] A review of the judge’s reasons leaves no doubt that he correctly identified Gordon v. Goertz and L.(N.D.V.) v.

L.(M.S.) as settingforth the applicable law and that he correctly identified the particular factors outlined therein which are in play in the circumstances ofthis matter. Moreover, the judge was also clearly alive to the fact that he had to determine what was in the best interests of the childrenand that that called for a child-centric approach. To that end, he reviewed the evidence to assess each parent’s ability to meet theirchildren’s needs, the relationship of each parent with each child, and the relationships and connections of the children in and with eachcommunity in question.

He further canvased the jurisprudence as well as academic thought on those factors which he saw as beingparticularly relevant to the determination of what was in the children’s best interest. On the whole of it, I found no error in the judge’sidentification of the applicable law or in his identification of the particular factors relevant in the circumstances before him. [20] Nevertheless, with respect to this first issue, the mother says the judge erred because he failed to consider two of the four possiblescenarios or outcomes in a mobility application, omitting to consider (

c) and (

d) below: (

a) a move by the mother and children to Indianapolis with the father remaining in Swift Current; (

b) no move by the mother, father or children with all parties remaining in Swift Current; (

c) a move by the mother to Indianapolis with the children remaining in Swift Current in the primary care of the father; and (

d) a move by the mother and the children to Indianapolis accompanied by a parallel move by the father. [21] While overlooking two of the four scenarios might be characterised as a question of whether the judge considered all of thefactors relevant to a determination of the best interests of the children, I find it more properly bears upon the second issue before theCourt, which is whether the judge improperly weighed the factors relevant in the circumstances.

And, I would address it under that lineof the analysis. [22] In that regard, first let me say that I accept that each of the four scenarios set out under paragraph [20] of these reasons, or somevariation thereof, will commonly arise in a mobility application. Furthermore, I agree that it would be best practice for a court of firstinstance to consider all of the possible scenarios in any mobility application which comes before it. However, I cannot conclude thatevery case will call for a court to conduct a high degree of detailed analysis of each possible scenario.

In other words, a failure to set outa detailed analysis of each possible scenario does not necessarily give rise to a material error in the nature of that described in Van dePerre. I will explain by reference to the circumstances at hand. [23] Here, it cannot be denied that two of the four scenarios override the others, largely on the basis of the undisputed facts of this caseand the issues which were put before the judge at trial.

First, this case does not present the usual circumstance of a custodial parentseeking to move in the face of protests from an access parent; rather, here, the judge was faced with two custodial parents who were,first, asking the Court to determine whether either of them should be established as the sole custodial parent or as maintaining theprincipal residence for their children and then, second, asking the Court to make the determination on the mother’s mobility application.Given its nature then, this was a more comprehensive inquiry than usually arises in a mobility application and, properly framed as such,the inquiry rationally led the judge to give less consideration to scenarios (

c) and (d), than (

a) and (b). I say this because the judge’s firstconclusion was to prefer the mother as the primary parent for the children; but, once he had determined that the mother was better suitedto maintain the principal residence for the children, scenario (

c) did not invite full consideration because it contemplates the fathermaintaining the principal residence of the children. Moreover, scenario (

c) is largely ruled out by the “double bind” statement the mothermade, which was to the effect that she would remain in Swift Current with the children if that fit with the judge’s conclusions as to theirbest interests because their needs and best interests are a priority to her. [24] Furthermore, even if it were an omission, a failure here to more fully consider a scenario in which the mother would leave thechildren in Swift Current and relocate to Indianapolis is not an error which invites appellate intervention.

As the Supreme Court ofCanada noted in Van de Perre (at para. 15), before intervening, an appellate court must form a reasoned belief that the trial judge hasforgotten, ignored or misconceived the evidence such that it has affected his decision. Simply put, the circumstances of this case leaveno room for a reasoned belief that the alleged failure to consider a scenario in which the mother was not the primary parent in any way

affected his decision on the mobility application. I say this because the judge correctly identified the applicable law and the particular factors at play and substantiated his first determination that the mother ought to be the primary parent as being in the best interests of the children with thoughtful reasons which are tied directly to what are largely undisputed facts.

There was simply no reason for him to immediately reconsider that determination in the context of the mobility application before him. [ 25 ] As to the alleged failure to consider scenario (d), it seems to me that the trial judge considered, but implicitly rejected, a move by the mother and the children to Indianapolis accompanied by a parallel move by the father. The judge was certainly alive to the fact the father had made his own “double bind” statement, saying he would spend up to six months per year in Indianapolis if that fit with the judge’s conclusions as to the children’s best interests.

The judge was also aware of the children’s views on a move with the mother to Indianapolis (at para. 133) with the possibility of a parallel move by the father (at para. 135). True, he did not take his analysis of scenario (

d) as far as he might have, but that is indicative only of a different emphasis being placed on the possible scenarios which naturally follows on the judge’s balancing and weighing of the factors material to the matter before him.

While I might have balanced or weighed the factors differently and then given different emphasis to scenario (d), I cannot overturn the judge on that basis alone. [ 26 ] As is evident from the jurisprudence, a failure to consider a relevant factor will constitute reversible error; but, it is a different situation entirely where a judge has considered all the relevant factors, but has placed a reasonable but different emphasis on conflicting scenarios, having regard to the evidence adduced, as the trial judge did here.

In my assessment, on the basis of his proper identification of the particular factors at work in this matter, the judge conducted a thorough analysis of each parent’s ability to meet the needs of their children, each parent’s relationship with each of their children, each child’s connection with each parent, the family connections in each city and the children’s other connections or ties to each city. Here, the fact that the judge emphasised certain scenarios over other possible scenarios does not give rise to a reviewable error. As this Court noted in Gilles v.

Gilles , 2008 SKCA 97 , [2008] 10 W.W.R. 610: [38] The exercise of weighing and balancing of the factors material to the custody decision is a prerogative belonging particularly to the trial judge. As noted in Van de Perre , the weight to be given to all relevant factors is a matter of the trial judge’s discretion exercised with regard to the evidence. While trial judges might sometimes appear to stress one factor over another, as the Supreme Court observed, this is inevitable in custody cases which are heavily dependant on the particular factual circumstances at issue.

This, they said, does not open the door to a re-determination of the facts by the Court of Appeal. [ 27 ] As to the third issue before the Court, the mother alleges the judge misconceived and failed to consider relevant evidence. The mother raises two points in this respect. First, she says the judge either ignored or misconceived the father’s “double bind” statement.

Second, she notes the judge’s decision not to allow her to move to Indianapolis with the children turned on his finding that such a move would undermine the maximum contact principle under s. 16(10) of the Divorce Act , R.S.C. 1985, c. 3 (2 nd Supp.), but she says the judge erred in law in this respect because he appears (at para. 210) to have considered that principle to involve not only to a child’s parents but also to a child’s extended family, friends and community. [ 28 ] To address this ground of appeal, I would first note that the evidence before the judge as to the qualitative nature of each location was such that neither Indianapolis nor Swift Current clearly won out over the other.

The author of the custody and access assessment noted similar attachments by the children to their friends, family and community in both Indianapolis and Swift Current. The judge referenced evidence of the children’s lack of a clear preference for either city in his decision (at para. 135).

More to the point, the judge did not find that the children were more closely attached to their family, friends and community in either centre over those in the other centre. [ 29 ] Given that apparent balance, the mother says the judge should have explained why he gave more weight in his assessment of the children’s best interests to a limitation of contact with the children’s extended family, friends and community in Swift Current than a limitation of contact with the children’s extended family, friends and community in Indianapolis.

She says the evidence shows that the majority of the children’s paternal aunts, uncles and cousins are likely to visit Swift Current only during the summer holidays and on school breaks. As such, the children’s residency in Swift Current during the school year is unlikely to facilitate the maintenance of those relationships. As the maintenance of those relationships will occur during school breaks, the mother says it can easily be facilitated if they reside in Indianapolis and visit Swift Current during those breaks.

Given this circumstance, the mother says the judge appears to erroneously conclude that if she were permitted to move, the father would remain in Swift Current year round, having access to the children only on school holidays and summer vacations. This, she says, is contrary to the evidence of the father’s “double bind” statement to the effect that he intended to spend half of each year in Indianapolis if the children resided there.

She then closes the circle with the first and second issues which arose in this appeal by saying this alleged misapprehension of the evidence led the judge to fail to consider the appropriate factors in determining the best interests of the children and to fail to give the appropriate weight to those factors. If all of this were so, it would constitute a material error; but, I do not share the mother’s characterisation of it. [ 30 ] Let me say I agree that, for the judge, the mobility application ultimately turned on the maximum contact principle.

From the reasons for judgment it is clear the judge was keenly aware of the importance of that principle in his determination of what was in the best interests of the children. On my assessment, the judge’s comments about the principle were borne of his considerable experience with family law matters and reflect his understanding that the maximum contact principle involves the twin concepts of quality of contact and quantity of contact between a child and his or her parent. Here, he had just determined that the parties should have joint custody of their children, with the mother having primary residence.

Given that the father had expressed an intention to split his time between Indianapolis and Swift Current, the judge could perhaps have hoped to preserve a maximum quantity of contact between the father and his children by allowing the mother to move with the children and by encouraging the father to follow through on his “double bind” statement. Recall that the father did not say he would move to Indianapolis, but rather that he would try to spend up to six months per year there.

However, contact of maximum quality , albeit perhaps of lesser quantity, is clearly achieved if the children remain in Swift Current with their parents, albeit in separate residences. This is not to say, however, that the judge somehow misunderstood the maximum contact principle as applying to extended family, friends and community; it does not.

Rather, it recognises that the quality of contact with the father is enhanced because, with the children and the father residing in or near the same community, the father will have year-round opportunities for incidental or mundane but nevertheless important contact with his children, even when they are in the mother’s custody or care. Here, I speak of school- and church-based activities, extended family gatherings and visits, local community events, recreational activities, extracurricular activities, medical appointments, birthdays, parent-teacher conferences, etc.

[ 31 ] In other words, there is a qualitative element to the maximum contact principle which is undeniably enhanced by the father simply being available and present year-round in the community in which his children live their lives. Albeit rendered in the context of a joint custody determination, this Court’s decision in Schick v. Woodrow , 2012 SKCA 1 , 385 Sask.

R. 153, is illustrative of this point: [25] … In my view, even where one parent has been designated the parent of primary residence, it is presumptively in the best interest of a child to have as much contact with each parent as is reasonably possible having regard to the given circumstances and for each parent to play as active a role in the life of the child as is practical. There is significant risk that a parent who is prevented from playing such a role and becomes a passive bystander in the child’s life will eventually drift away from on-going involvement in the child’s life.

These considerations favour an order for joint custody in the absence of some reason relevant to the best interest of the child to the contrary. Examples of reasons to the contrary might include an insurmountable inability of the parents to communicate sufficiently well to be able to make important and necessary decisions regarding the child, or evidence of indifference or of inappropriate or abusive behaviour on the part of the parent who does not have primary care of the child.

No such reasons were cited or are in evidence in this case. [ 32 ] In that the judge’s decision in this regard recognises the importance of each parent playing as full an active role in the lives of their children as is possible, it reveals no reviewable error. [ 33 ] On the whole of it then, when the mother’s grounds of appeal are assessed in light of the constrained standard of review and the considerable deference owed to the judge’s perspective of the matter, I see no basis upon which to interfere with the judge’s decision. I would dismiss the appeal with costs to the respondent in the usual manner.

DATED at the City of Regina, in the Province of Saskatchewan, this 21st day of August, A.D. 2013. “Caldwell J.A.” Caldwell J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Ottenbreit J.A.” Ottenbreit J.A.