Docket: CACV2567 Brittinea Campbell (Respondent) Appellant - v. -, 2014 SKCA 132

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 132 Date: 2014-11-24 Between: Docket: CACV2567 Brittinea Campbell (Respondent) Appellant - and - Jade Skylar Hine and Kathleen Gail Hine (Petitioner) Respondent Coram: Jackson, Klebuc and Ryan-Froslie JJ.A. Counsel: Gregory M. Kuse for the appellant Mary Lou Senko for the respondent Appeal: From: FLD 464/08, J.C. of Saskatoon Heard: November 24, 2014 Disposition: Allowed (orally)

Written Reasons: December 16, 2014 By: The Honourable Madam Justice Ryan-Froslie In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Klebuc Ryan-Froslie J.A. [ 1 ] Brittinea Campbell appeals a custody order made in Chambers which changed her daughter’s primary residence from Ms. Campbell’s home to the home of the child’s father, Jade Hine. This Court gave an oral decision allowing the appeal. What follows are our written reasons. [ 2 ] Ms. Campbell and Mr. Hine never lived together. They had a dating relationship which resulted in the birth of a child, Kylah born October 29, 2003.

Kylah, who is 11 years of age, has always resided with her mother at Prince Albert, Saskatchewan. Mr. Hine resides at Regina Beach, which is a three and a half hour drive from Prince Albert. It is uncontroverted that Kylah had very little contact with her father during the first two years of her life. It is unclear how much time he spent with her from 2005 until 2008. In December 2008 Mr.

Hine filed a petition pursuant to The Children’s Law Act, 1997 , SS 1997, c 8 .2, requesting access to Kylah. [ 3 ] On May 12, 2009 an interim order was granted giving him access every other weekend from Friday to Sunday at Regina Beach, as well as Christmas and Easter access and one week during the summer. Mr. Hine’s access was problematic and other interim orders followed, but for the most part, the access regime created by the May 12, 2009 order remained in place. [ 4 ] On October 26, 2010, a custody/access assessment was ordered. That assessment was completed and a report was rendered on June 10, 2011.

The assessment set out two options with respect to a parenting regime. Option one provided Kylah’s primary residence would remain with Ms. Campbell, while option two provided her primary residence would be with Mr. Hine. There were positive and negative implications associated with both options. [ 5 ] In March 2012, Mr. Hine amended his petition to include a request for joint custody, with Kylah’s primary residence to be with him. Trial dates were set for September 2012. [ 6 ] On the eve of trial, the parties entered into a written agreement settling the issue of Kylah’s custody. The agreement provided that Ms.

Campbell and Mr. Hine would have joint custody of Kylah, with Kylah’s primary residence to be with Ms. Campbell. Mr. Hine was to have access to Kylah every second weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m., to be extended by one day when the weekend was a statutory holiday. He was also to receive one-half of the Christmas, Easter and February school breaks and four weeks during the summer (two consecutive weeks and two non-consecutive weeks). An option for additional access was available dependent upon the agreement of both Ms. Campbell and Mr. Hine. [ 7 ] From the material filed by Ms.

Campbell and Mr. Hine it is obvious that when the agreement was entered into, Mr. Hine was deeply concerned by the fact Kylah was absent from and/or late for school a significant amount of time. According to Mr. Hine, Kylah was absent and/or late for school prior to the agreement as follows: Kindergarten 2008/09 – absent 47 days and late 11 times; Grade 1 2009/2010 – absent 51 days and late 40 times; Grade 2 2010/2011 – absent 51.5 days and late 27 times; Grade 3 2011/2012 – absent 50 days and late 14 times. Mr. Hine was also concerned that he actually receive the access agreed upon.

To deal with these concerns, the agreement provided for compensatory access and a decrease in child support if access visits were missed. It also provided, at para. 4, that Kylah’s attendance at school was of “utmost importance” and that she was to attend school each and every day unless ill. Illness was to be verified by either a physician’s note, or if the illness did not require attendance at a physician’s office, then by Mr. Hine consenting to the absence. If Kylah was absent from school more than once without “authorization”, then her primary residence would be automatically changed from Ms.

Campbell’s home to Mr. Hine’s home. [ 8 ] The terms of the agreement were incorporated into a consent judgment dated September 17, 2012. [ 9 ] Kylah’s absences from school again became problematic during the 2013/2014 school year and eventually led Mr. Hine in May 2014 to apply to enforce and/or vary the consent judgment, so that Kylah’s primary residence would be with him. Some aspects of the circumstances leading up to that particular application are in dispute. [ 10 ] Based on the school calendar attached as Exhibit H to Mr.

Hines’ May 9, 2014 affidavit, Kylah was absent from school during the 2013/2014 school year as follows:

Term 1 (September-October) 2 days Term 2 (November- February) 15 days Term 3 (March to April 4, 2014) 8 days Total days absent from school: 27 days According to Mr. Hine, 12 of those days were “unauthorized”, while Ms. Campbell attests the absences were due to illness. [ 11 ] As a result of Kylah’s absences from school Mr. Hine felt Ms. Campbell had contravened the agreement and the September 17, 2012 consent order. As a result, he determined Kylah’s primary residence should be changed to his home. [ 12 ] On April 19, 2014, Mr.

Hine picked Kylah up for his Easter access with the intention she would not be returned to Ms. Campbell’s primary care. He did not mention Kylah’s change of residence to Ms. Campbell or discuss it with her prior to him informing Kylah of the change. Ms. Campbell received notification of Mr. Hine’s plan through text messages from Kylah. [ 13 ] There is some dispute as to exactly what Mr. Hine told Kylah and her reaction to it. It is clear however, that Kylah was distraught by the turn of events as was Ms. Campbell. Ms.

Campbell and her mother travelled to Regina under the pretext of wanting to give Kylah “hugs and kisses” and tell her everything would be all right. They were able to get Kylah into their car and to return to Prince Albert with her. Thereafter, Ms. Campbell refused to allow Mr. Hine any contact with Kylah. Fearing Mr. Hine would take Kylah from school, Ms. Campbell kept her home and instead sent her to Sylvan Learning Centre, which up to that point had been involved with Kylah due to problems she was having with her school work. [ 14 ] As indicated earlier, on May 15, 2014 Mr.

Hine initiated his application to enforce and/or vary the September 17, 2012 consent judgment. The Chambers judge, who heard the application in July 2014, relied on the June 10, 2011 custody/access report to find it was in Kylah’s best interest that her residence be changed from that of her mother’s home to her father’s home effective August 30, 2014. Ms. Campbell was to have access alternating weekends from Friday to Sunday (extended by one day to include statutory holidays) and half of the school vacations, including summer, Christmas, Easter and the February break.

The Chambers judge made a number of ancillary orders/recommendations, including an order that Kylah attend counselling. He also ordered an updated custody/access assessment upon receipt of which either Ms. Campbell or Mr. Hine could return the matter to the Chambers list. [ 15 ] Ms. Campbell appealed the Chambers judge’s decision arguing he failed to consider Kylah’s best interests. Her appeal “stayed” the Chambers judge’s order so that Kylah remained in her care. Mr. Hine then applied to this Court to lift the stay.

On September 24, 2014 Justice Lane, in Chambers, ordered Kylah’s primary residence would continue with Ms. Campbell pending the hearing of the appeal. He specified access to Mr. Hine consisting of every second weekend from Friday to Sunday with the exchange (when she travelled to Regina Beach) to occur at Watrous. He also provided an enforcement provision and ordered the stay be lifted with respect to the updated custody/access assessment so it could be completed. [ 16 ] The order from which Ms. Campbell appeals relates to custody and is discretionary in nature.

While the standard of review with respect to such orders is highly deferential, an appellate court will intervene where there has been a material error, a serious misapprehension of the evidence, or an error in law (see: Van de Perre v Edwards , 2001 SCC 60 at para 11 , [2001] 2 SCR 1014). [ 17 ] In this case, the Chambers judge erred in three respects. First, he relied too heavily on the enforcement provisions of the consent judgment to trigger a fundamental alteration of Kylah’s parenting regime, which included both changing her primary parent and relocating her to another centre.

Second, he made those changes without appropriate evidence of Kylah’s best interests. Third, he relied on a dated custody/access assessment which was not properly admitted as evidence before him. [ 18 ] With respect to the first error, the consent judgment while agreed to by the parties, contained provisions that should not have been endorsed by a court. In particular an “automatic” change of custody, primary residence or access, if a parent does or fails to do certain things, is not appropriate.

The problem with such provisions is that they do not take into account the best interests of the child at the time an alleged breach occurs; nor do they contemplate any “reasonable excuse” for the breach. It is the best interests of the child that must govern custody and access matters. Those interests should never be sacrificed in the interests of expedience or enforcement. Provisions of a consent judgment, such as the one before this Court, can lead parents to engage in self-help measures, such as refusing to return children following access visits, which is exactly what occurred in this case.

As a result of what Mr. Hine perceived as “unauthorized” absences from school, he kept Kylah in his care thereby effectively changing her primary residence. Ms. Campbell’s response was to “rescue” her daughter by spiriting her away.

None of this was in Kylah’s best interests. [ 19 ] With respect to the second error, the evidence before the Chambers judge was solely in the form of affidavits and accordingly, he had no way to resolve the contradictory evidence on critical issues including: whether Kylah’s absences from school following the making of the consent judgment were “authorized” or acceptable; the state of Kylah’s physical and/or mental health, particularly in light of Ms. Campbell’s evidence (denied by Mr.

Hine) that Kylah had contemplated suicide when in her father’s care, after being told of the change of residence; and the effect a change in Kylah’s primary residence might have upon her. [ 20 ] To determine what was in Kylah’s best interests, the Chambers judge needed to evaluate the considerations set out in s. 8 of The Children’s Law Act, 1997 , namely: her physical, psychological, social and economic needs, the capacity of both her parents to act as legal custodians, the home environment provided by each parent, the plans of both Ms. Campbell and Mr.

Hine for Kylah’s future and Kylah’s wishes to the extent those were considered appropriate. Sufficient evidence relating to those considerations was not before the Chambers judge. [ 21 ] Finally, in making his decision, the Chambers judge relied on a custody/access assessment that was completed in June 2011 – three years prior to the Chambers application. While the assessor may very well have been accurate in her conclusions, it was not appropriate to rely on that assessment without allowing the parties an opportunity to cross-examine or challenge its contents.

[ 22 ] Ms. Campbell’s appeal is allowed. The July 10, 2014 order is set aside except for the provision ordering an updated custody/access assessment. [ 23 ] It is important that custody and access matters proceed as quickly as possible to a final determination. Rather than returning this matter to the Chambers judge, this Court finds itself in the position, after reviewing all of the material, of being able to make the order the Chambers judge should have made. Accordingly, there shall be an interim order varying the September 17, 2012 consent judgment as follows: 1. Mr. Hine shall have specified access to Kylah:: (

i) Friday, December 5, 2014 at 6:00 p.m. to Sunday, December 7, 2014 at 6:00 p.m.; (ii) Friday, December 19, 2014 at 6:00 p.m. to Sunday, December 21, 2014 at 6:00 p.m.; (iii) Saturday, December 27, 2014 at 4:00 p.m. to Sunday, January 4, 2015 at 4:00 p.m.; (iv) Commencing Friday, January 16, 2015, every second weekend from Friday at 6:00 to Sunday at 6:00 p.m. to be extended to Thursday at 6:00 p.m. or Monday at 6:00 p.m. if Kylah has no school on the Friday or the Monday; (

v) One-half of the Easter and February school breaks as set out in the consent judgment; (vi) For the 2015 summer school vacation, Mr. Hine shall have Kylah from Friday, June 26, 2015 at 6:00 p.m. to Sunday, July 12, 2015 at 6:00 p.m. and from Friday, August 1, 2015 at 6:00 p.m. to Sunday, August 16, 2015 at 6:00 p.m.; (vii) If this matter is not resolved by the end of August 2015, Mr. Hine’s regular weekend access shall recommence with the Labour Day weekend being Friday, September 4, 2015; 2.

Exchanges for access visits shall occur at Watrous, Saskatchewan or such other place as mutually agreed in writing by Ms. Campbell and Mr. Hine. 3. Neither Ms. Campbell, nor her mother Tania Campbell, shall contact Kylah while she is in her father’s care. 4. Mr. Hine shall ensure that Kylah contacts her mother by telephone once during weekend access visits and twice during any seven day access period at the number provided by Ms. Campbell’s counsel to this Court. 5. Ms.

Campbell shall ensure that Kylah phones her father every Sunday evening (other than the Sundays she is in her father’s care) between the hours of 7:00 p.m. and 10:00 p.m. at the number provided by Mr. Hine’s legal counsel to this Court. 6. If Mr. Hine is denied parenting time, he shall be entitled to enforcement of this order and a sheriff or peace officer may enter and search any place where they have reasonable grounds to believe Kylah may be.

They are entitled to do all things reasonably necessary to locate, apprehend and deliver Kylah to her father, Jade Skylar Hine for the purpose of exercising his access. 7. Neither Ms. Campbell, nor Mr. Hine shall discuss the issue of Kylah’s custody or the court action with her, and they shall ensure that no one else does so in their presence. 8. Kylah shall continue her counselling with Ms. Sherwin-Rohler. Ms. Campbell and Mr. Hine are to be included in those counselling sessions in such manner as the counsellor deems necessary. Ms. Campbell is to arrange service of a copy of this judgment on Ms.

Sherwin-Rohler within seven days and file proof of service with the Court of Queen’s Bench. 9. Kylah shall continue to see Dr. Denis as needed. 10. Ms. Campbell is to advise Mr. Hine of all medical and counselling appointments Kylah attends within seven days of her attending. 12. Mr. Hine shall be entitled to receive information from Kylah’s counsellor and medical practitioners so long as disclosure of such information does not breach Kylah’s right to confidentiality. 13. Should Ms. Campbell attempt to thwart or undermine the terms of this order, Mr.

Hine may apply to a judge of the Court of Queen’s Bench in Chambers for an enforcement order on three days’ notice. 14. Kylah’s attendance at school and the completion of homework on a regular and consistent basis is of the utmost importance. Accordingly, the terms of the consent judgment with respect to those issues shall continue in full force and effect except paragraph 12. 15. Ms. Campbell and Mr. Hine are to co-operate fully with the custody/access assessor.

If there are any problems with respect to the completion of the updated report, the assessor shall notify the Registrar of the Court of Queen’s Bench who will ensure the matter is brought to the attention of a judge of that Court. 16. Once the updated custody/access assessment is received, this matter is to be set for an expedited viva voce hearing. No pre-trial settlement conference shall be held unless both parties consent or a judge of the Court of Queen’s Bench so orders. 17. With the consent of Ms. Campbell and Mr.

Hine, the Queen’s Bench Family Law file shall be transferred from the Judicial Centre of Prince Albert to the Judicial Centre of Saskatoon (Family Law Division). [ 24 ] Other than as varied by this order, the September 17, 2012 consent judgment remains in full force and effect.

[ 25 ] There shall be no order as to costs.