Docket: CACV2441 Tamara Lee Bolan (Respondent) Appellant - v. -, 2013 SKCA 97

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 97 Date: 2013-09-16 Between: Docket: CACV2441 Tamara Lee Bolan (Respondent) Appellant - and - Joshua Brett Bolan (Petitioner) Respondent Coram: Ottenbreit, Caldwell and Herauf JJ.A. Counsel: D. Heather Funk and Alana D. Wakula, for the appellant Jeremy A. Caissie, for the respondent Appeal: From: DIV. No. 335 of 2013, J.C. of Saskatoon Heard: September 9, 2013 Disposition: Appeal Dismissed

Written Reasons: September 16, 2013 By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Herauf Caldwell J.A. [ 1 ] The mother, Tamara Lee Bolan, appeals from the interim order of the Queen’s Bench chambers judge with respect to the custody and access of the parties’ two children, the costs awarded against her, and the order that exchanges of the children shall occur at Tim Hortons in Warman, Saskatchewan.

The mother has not appealed from the interim award of joint custody or the order that the children reside primarily with her on an interim basis. [ 2 ] As a preliminary matter the mother sought to adduce fresh evidence before the Court by way of affidavits of the mother with respect to the breastfeeding of the parties’ son. The respondent father, Joshua Brett Bolan, did not object to the Court’s reception of this evidence. Accordingly, the panel accepted the affidavits into evidence under Rule 59 of The Court of Appeal Rules .

I turn now to the appeal proper. [ 3 ] In her Fiat of July 11, 2013, the chambers judge summarized the background to this matter: [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. [ 4 ] In addition, and relevant to the mother's appeal, the chambers judge awarded the father $250 in costs on the basis that the mother’s affidavit contained hearsay evidence which had been struck as inadmissible. The order that exchanges occur in Warman at the Tim Hortons restaurant arose separately under a fiat issued the following day, the matter of facilitating exchanges having been quickly returned to the chambers judge.

[5] The mother appealed on several grounds, but chiefly on the basis that the chambers judge had failed to consider that the father’sovernight parenting time on weekends would disrupt their youngest child’s breastfeeding routine. The fresh evidence she adduced in thisCourt spoke in specific terms to this concern.

She also appealed from the access order on the ground that the chambers judge failed totake into account the risk the father posed to their children by reason that he employed corporal punishment as a means of discipliningtheir two-year old. [6] The standard of appellate review in matters of interim custody presents a difficult hurdle for the mother to clear. An interimcustody order is a temporary balance which a Queen’s Bench chambers judge must strike after weighing the objectives and factors set out in the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (or in The Children’s Law Act, 1997, S.S. 1997, c.

C-8.2) on the basis of limitedaffidavit evidence. It is, therefore, fact-based and discretionary in nature; and, as such, an appellate court will give considerable deferenceto a chambers judge’s decision as to interim custody and parenting (See: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014,and Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518). In Jochems v. Jochems, 2013 SKCA 81, Richards C.J.S. recentlydescribed the standard in these terms at para. 23: “Simply put, that standard involves a considerable measure of deference to the decision-making of the Chambers judge.

This Court is not entitled to simply re-make a custody and access decision from the ground up along thelines that it might have preferred or thinks best.” [7] Moreover, this Court has pointedly and repeatedly said that it does not welcome appeals from interim orders in family lawproceedings (other than in exceptional circumstances), primarily because the issues between the parties are best resolved by a pre-trialconference or a full hearing at the trial level held in short order. See: Jochems v. Jochems; Mantyka v. Dueck, 2012 SKCA 109, 399Sask. R. 303; Hall v. Hall, 2011 SKCA 86, 337 D.L.R. (4th) 89; Graham v.

Tomlinson, 2010 SKCA 101, 324 D.L.R. (4th) 156; Lapoorv. Navidi, 2000 SKCA 95, 14 R.F.L. (5th) 125; Dauk v. Law, 2005 SKCA 145, 275 Sask. R. 158; Phillips v. Shergold, 2009 SKCA 131;Pawar v. Pawar, 2010 SKCA 134 (chambers), 366 Sask. R. 18; and Foss v. Foss (1991), (SK CA), 31 R.F.L. (3d)367 (Sask. C.A.).

As Jackson J.A. said in Hall at para. 1: “[i]n most cases, the interests of the parties, and the children, are best served byproceeding quickly to the pre-trial settlement conference stage rather than expending time and scarce resources on an appeal from aninterim order.” [8] In my assessment, the chambers judge here was alert to all of the issues which were raised before her in the interim applicationand to their potential for affecting the best interests of the children. By this I mean the learned family law chambers judge had referenceto the condition, means, needs and other circumstances of the children.

The chambers judge was cognizant of, among other things, thefact that the younger child was breastfeeding as this fact was clearly set out in the affidavits of both parties. She was also cognizant of thefact that the mother had previously and unilaterally presented impediments to the exercise of the father’s parenting rights, therebyundermining the principle that the children of the marriage should have as much contact with each parent as is consistent with their bestinterests.

Nevertheless, the chambers judge was ultimately of the opinion that it would be in the best interests of the children if they wereto remain in the primary care of their mother, consistent with the status quo, with the father having weekend access. She made an interimorder to this effect. [9] Quite frankly, I am unable to find any error in the chambers judge’s reasoning or her decision which would permit us to interferewith the interim custody and access order given the narrow scope of appellate review in these matters.

Furthermore, based on theevidence before the chambers judge as supplemented by the fresh evidence adduced in this Court, I am not disposed to intervene. I am ofthe respectful opinion that the interim order was and continues to be appropriate in the circumstances.

In my judgment, the chambersjudge weighed the appropriate objectives and factors arising in the circumstances of this case and there is nothing on the facts as shefound them, or on the evidence as adduced in this Court, which gives rise to an exceptional circumstance which would warrant appellateintervention with this interim custody and access order. [10] As to the chambers judge’s awards of costs against the mother, these orders result from the exercise of judicial discretion.

As adiscretionary award, a judge’s award of costs is subject to oversight in that the discretion must be exercised judicially, but its exercise isotherwise “unfettered and untrammelled” (see: Benson v. Benson (1994), (SK CA), 120 Sask. R. 17, per CameronJ.A. at paras. 89-90).

Here, I find no vitiating error on the part of the chambers judge either with respect to her application of thegoverning principles, or in disregard of critical facts or other relevant considerations such as to warrant interference by this Court.Moreover, the awards are not “so obviously unjust as to invite intervention.” [11] On the whole of it then, I would dismiss the mother’s appeal.

I would order that the father have his costs in this Court, in the usualmanner, including with respect to his application to lift the Rule 15(1) stay in this matter; but: (1) each party shall bear its own costs inthe father’s application to late file his factum, as he should not have missed the deadline but the mother should have consented to the latefiling; and (2) each party shall bear its own costs in the mother’s application to adduce fresh evidence. DATED at the City of Regina, in the Province of Saskatchewan, this 16th day of September, A.D. 2013. “Caldwell J.A.”_____________________ Caldwell J.A.

I concur “Ottenbreit J.A.”___________________

Ottenbreit J.A. I concur “Herauf J.A.” _______________________ Herauf J.A.