Docket: CACV2502 Darren Alix Appellant (Petitioner) - v. -, 2014 SKCA 46

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 46 Date: 2014-04-22 Between: Docket: CACV2502 Darren Alix Appellant (Petitioner) - and - Misty Irwin Respondent (Respondent) Coram: Richards C.J.S., Caldwell and Herauf JJ.A. Counsel: David Flett for the appellant Adrian McBride for the respondent Appeal: From: F.L.D. No. 9 of 2009, J.C. of Swift Current Heard: April 22, 2014 Disposition: Appeal allowed (orally) Written Reasons: April 24, 2014

By: The Honourable Chief Justice Richards In Concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Herauf Richards C.J.S. I. introduction [ 1 ] The appellant, Darren Alix, and the respondent, Misty Irwin, have a five-year-old child. A Queen’s Bench order provides that they have joint custody of the child and that she will reside “primarily” with Ms. Irwin. Mr. Alix has generous access. [ 2 ] Ms. Irwin lived in Swift Current and Mr. Alix lived in Waldeck, 18 kilometres outside of Swift Current. At the end of September 2013, acting unilaterally and without notice, Ms.

Irwin moved with the child to Moose Jaw, an hour and a half drive from Waldeck. This led Mr. Alix to bring a variation application with the objective of assuming primary care of the child. Alternatively, he sought an order requiring Ms. Irwin to return the child to Swift Current. [ 3 ] The Chambers judge dismissed Mr. Alix’s application on the basis that the move to Moose Jaw did not involve a material change in circumstances. Mr. Alix appealed from that decision. [ 4 ] We allowed Mr. Alix’s appeal after oral argument with a promise of short written reasons to follow. These are those reasons.

II. background [ 5 ] Mr. Alix and Ms. Irwin were never married and have never cohabited. [ 6 ] Ms. Irwin had two children from a previous relationship and now has a fourth child from another relationship. [ 7 ] The child in issue here was born in February of 2009. She is presently five years old. [ 8 ] Various applications were made in connection with the custody of the child but, in the end, a consent order was issued on July 28, 2011. It was amended, again by consent, on August 20, 2012. The order reads, in its most relevant terms, as follows: 1. The parties shall have joint custody of [the child]. 2.

IT IS FURTHER ORDERED AND ADJUDGED THAT [the child] shall reside primarily with [Ms. Irwin]. 3. (a) [Ms. Irwin] shall parent one weekend commencing Friday July 27, 2012 and continue thereafter with [Mr. Alix] then parenting two consecutive weekends. Pick up times shall be 6:00 pm on Friday and return time shall be 6:00 pm on Sunday. (b) [Mr. Alix] shall parent every Wednesday from 5:00 pm to 8:30 pm. (

c) In future, [Mr. Alix] shall be entitled to 7 days consecutive holiday time upon 30 days notice to [Ms. Irwin]. (

d) For Christmas 2012, [Mr. Alix] shall parent from December 23 rd at 6:00 pm to December 25 th at 1:00 pm and [Ms. Irwin] shall parent from December 25 th at 1:00 pm to December 27 th at 6:00 pm. The parents shall continue to alternate in years thereafter. The regular midweek and weekend access will be suspended from December 23 rd to December 27 th to accommodate Christmas. (e) [Mr. Alix] shall parent from 8:00 am to 6:00 pm on Father’s Day and [Ms. Irwin] shall parent from 8:00 am to 6:00 pm on Mother’s Day. (f) [Ms. Irwin] shall be entitled to have [Mr. Alix] miss his midweek Wednesday parenting time to allow her to take a holiday provided

she gives two week’s written notice and provides compensatory time the following week. (g) [Ms. Irwin] shall have [the child] for four hours on Halloween, even if it falls on [Mr. Alix’s] access time. (

h) Both [Mr. Alix] and [Ms. Irwin] shall provide the other with the first option to provide child care. [9] Mr. Alix and Ms. Irwin had a difficult relationship. At the beginning of September 2013, Ms. Irwin was charged with break andenter and assault in connection with an incident at Mr. Alix’s home. She is presently bound by a non-contact order. [10] On September 26, 2013, Mr. Alix says the child told him that she was moving to Moose Jaw. Moose Jaw is 174 kilometres fromSwift Current and 156 kilometres from Waldeck. [11] Ms. Irwin moved to Moose Jaw at the end of September. She did not provide Mr.

Alix with any notice of the move and, apparentlyas a result, he did not see the child for several weeks. [12] Ms. Irwin explains that she moved “because housing [in Moose Jaw] was affordable and I have family in Moose Jaw. My auntand her children, who range in age from late teens to early twenties, reside in Moose Jaw.” III. proceedings in the court of queen’s bench [13] Early in October of 2013, Mr. Alix filed an application for variation. The relevant parts of his prayer for relief were as follows: 1. [I] have primary care of [the child]. Alternatively, [I] have compensatory parenting time. 2. [Ms.

Irwin] return the child, to Swift Current and she be prohibited from removing the child from Swift Current until furthercourt order. [14] The Chambers judge dismissed the application. First, he dealt with Ms. Irwin’s notices of objection to some of the evidence filedby Mr. Alix and struck parts of three affidavits. He then concluded there had been no material change in circumstances and, as a result,dismissed the application. He did this by writing as follows: The establishment of a material change in the circumstance of the child is a prerequisite to the court entertaining the application to vary.

In this particular case, I note that the said consent order of August 20, 2012 provided that the child would reside primarily with [Ms.Irwin] and that [Mr. Alix] would have specified access. With respect to the extent that there has been a change in circumstances, it would appear that such a change is limited to [Ms. Irwin’s]relocation to Moose Jaw, the reasons for which she has addressed in her affidavit material. The material filed fails to establish that therelocation of [Ms.

Irwin] to a community a relatively short drive away has resulted in the necessary material change in her daughter’sneeds since the pronouncement of the consent order of August 20, 2012. In the result, the within application is dismissed. … IV. analysis [15] The basic principles which govern an application to vary are not in dispute. The key point for purposes of this appeal is that a courtmay vary a custody or access order only if there has been a material change in circumstances. The Supreme Court explained this asfollows in Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27 at para. 12: 12 What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must havealtered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), (BC SC), 35 R.F.L. (3d) 169 (B.C.S.C.).

The question is whether the previous order might have been different had thecircumstances now existing prevailed earlier… 13 It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change inthe condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) whichmaterially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge whomade the initial order. [16] In our respectful view, the Chambers judge erred in two ways when he applied these principles.

First, he considered only thedistance between Waldeck and Moose Jaw and did not examine the logical and unavoidable implications for the child’s relationship withMr. Alix which flows from the fact she now lives so far from him. Second, the Chambers judge restricted his assessment of the newcircumstances to whether they affected the child’s needs and did not consider, as required by Gordon v. Goertz, the extent to which Mr.Alix’s ability to meet those needs had changed.

[ 17 ] The affidavit material filed by Mr. Alix was thin and the Chambers judge was quite right to be concerned about it. More specifically, Mr. Alix provided little by way of particulars about how the move to Moose Jaw had affected, or would affect, either the child or his relationship with her. [ 18 ] Nonetheless, in our view, Ms. Irwin’s move involves consequences of some significance which flow logically and necessarily from the simple reality that Moose Jaw is a considerable distance from Waldeck. Instead of living 18 kilometres from the child, Mr. Alix now lives 156 kilometres from her.

In terms of his ability to care for the child and spend time with her, the fact she resides roughly one and a half hours away will have a number of effects: (

a) Parenting from 5:00 p.m. to 8:30 p.m. on Wednesdays will be very difficult at best. In order for him and his daughter to get that three and a half hours of time together, Mr. Alix will have to drive approximately three hours (round trip). He will have to leave Waldeck about 3:30 p.m. and will not get home until about 10:00 p.m. When he is with the child, he will not be able to take her to his home but will presumably have to manage their interaction in restaurants, parks or the like in Moose Jaw. All of this will have its concomitant consequences for the child. Ms. Irwin suggests that Mr.

Alix had not been using his Wednesday night access times but, even if this is true, he is nonetheless entitled to that access by virtue of the governing order. (

b) Mr. Alix’s right to provide child care when Ms. Irwin is busy or otherwise needs assistance will become effectively meaningless. When he lived just a few minutes from the child, it was reasonably easy for him to step in on short notice outside of the strict calendar prescribed by the August 20, 2012 order. His affidavits suggest this happened fairly frequently. Most of this sort of interaction will be impossible if the child is in Moose Jaw, some one and a half hours away. (

c) Weekend access will become far more complicated. As noted, the round trip between Waldeck and Moose Jaw will take about three hours. If the child is to remain connected to Mr. Alix’s home and his larger family, she (a five year old) will have to endure that travel time. Further, the child is apparently already involved in extracurricular activities in Moose Jaw on the weekends. These activities will be compromised if she is with Mr. Alix in Waldeck. (

d) Even the prescribed access on days like Christmas and Father’s Day will necessarily be affected because, given the distance between Waldeck and Moose Jaw, it will be difficult to “share” such events. [ 19 ] In short, Ms. Irwin’s relocation significantly curtails and complicates contact between the child and Mr. Alix. All of this has occurred in circumstances where there has been no suggestion that a move by Ms. Irwin was in any way on the radar screen when the August 20, 2012 consent order was issued. As a result, in our view, Mr. Alix has established a material change in circumstances: (

a) there has been a change in his ability to meet the needs of the child, (

b) this change materially affects the child, and (

c) the change was not foreseen when the consent order was made. It follows that Mr. Alix’s application should not have been dismissed as it was. [ 20 ] A material change in circumstances having been established, it is clear that these proceedings should move forward to a pre-trial conference. The dates of May 28 and 29 are available in Swift Current. Accordingly, there will be an order that this matter be set down for a pre-trial conference in that city on either May 28 or 29, as determined by the Local Registrar. [ 21 ] This, however, leaves unresolved the question of how to handle the fact that Ms.

Irwin has moved the child to Moose Jaw. This is a serious turn of events and not one which cannot be taken lightly. As I said on behalf of the Court in Mantyka v. Dueck , 2012 SKCA 109 , 399 Sask. R. 303 at para. 35 : … a family law culture of "move first and ask questions later" is self-evidently not something that can be either approved or encouraged. Neither parents nor their counsel should see relocations of children as a means of obtaining tactical advantages in custody or access disputes.

Among other things, that is why there is a distinct reluctance to give any credit to a custodial parent who moves unilaterally, knowing that the move will be controversial, and then attempts to resist an application to reverse the move by arguing that he or she has quit a job, sold a house or otherwise made decisions which will be difficult to roll back. Problems of this sort are generally seen as being self-imposed. See for example: Ofukany v. Ofukany , supra at paras. 6 and 7; Brandt v. Dean , 2010 SKQB 401 , 363 Sask.R. 293 at para. 19 . [ 22 ] There is no suggestion here that Mr.

Alix is not entirely capable of adequately caring for the child. His affidavits, although far from complete, establish that he has been doing a reasonably significant amount of child care, not just for the child at the heart of these proceedings but for Ms. Irwin’s other children as well. However, given that the pre-trial conference is only about five weeks away, there will be no direction that the child be relocated to Swift Current at this time. That said, if custody and access issues remain unresolved after the pre-trial conference at the end of May, Ms. Irwin will have to make a choice.

Either she will have to move back to Swift Current with the child or Mr. Alix will take over the lead parenting responsibilities and the child will live primarily with him in Waldeck. If Ms. Irwin does return to Swift Current before June 30, 2014, parenting opportunities and responsibilities will continue as per the August 20, 2012 order. V. conclusion [ 23 ] The appeal is allowed. This matter will proceed to a pre-trial conference in Swift Current on either May 28 or 29, as determined by the Local Registrar. The August 20, 2012 Queen’s Bench order remains in place in the interim.

If the issues concerning the child’s time with her parents (custody and access) are not resolved at the pre-trial conference, and if Ms. Irwin has not taken up residence in Swift Current on or before June 30, 2014, the primary residence of the child will change on July 1, 2014 so as to be with Mr. Alix in Waldeck. Thereafter, Ms. Irwin shall have liberal and generous parenting time with the child at such times as may be agreed between her and Mr. Alix or as may be determined by the Court of Queen’s Bench on the application of either of them. If Ms. Irwin does return to Swift

Current with the child on or before June 30, 2014, custody and access will continue to be governed by the August 20, 2012 order of theCourt of Queen’s Bench. [24] Mr. Alix seeks costs in this Court. However, a needy person’s certificate has been filed for Ms. Irwin and she is represented bycounsel from the Legal Aid Commission. Rule 574(1) of the former Queen’s Bench Rules (now Rule 13-47 of The Queen’s BenchRules) provides that “[u]nless the court shall otherwise order” a needy person shall not be required to pay costs to any other party.

Theseemingly well-established general practice in the Court of Queen’s Bench is that costs are not awarded against a litigant in possession ofa needy person’s certificate and represented by Legal Aid. But, as the text of Rule 574(1) itself suggests, a needy person’s certificatedoes not absolutely insulate an individual from an award of costs. See, for example: Erickson v. Erickson (1995), (SK KB), 138 Sask. R. 190 (Q.B.). [25] The question of what sorts of considerations or factors should lead a court to award costs against an individual holding a needyperson’s certificate is self-evidently important.

However, we had no submissions on this point and, as a result, are not prepared to traveldown that road in this case. The order for costs made against Mr. Alix in the Court of Queen’s Bench is set aside. No costs will beawarded in this Court.