Docket: CACV2442 Angela Beth Ackerman (Petitioner) Appellant - v. -, 2014 SKCA 86

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 86 Date: 2014-08-21 Between: Docket: CACV2442 Angela Beth Ackerman (Petitioner) Appellant - and - Brett Christopher Ackerman (Respondent) Respondent Coram: Ottenbreit, Caldwell and Ryan-Froslie JJ.A. Counsel: James J. Vogel for the appellant R. Bradley Hunter, Q.C. for the respondent Appeal: From: 2013 SKQB 247 Heard: June 27, 2014 Disposition: Dismissed Written Reasons: August 21, 2014

By: The Honourable Madam Justice Ryan-Froslie In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Caldwell Ryan-Froslie J.A. I. Introduction [ 1 ] Angela Ackerman appeals a decision of the Court of Queen’s Bench with respect to both custody and the division of family property (see: 2013 SKQB 247 ). An order was made bifurcating the appeal to enable Mr. Ackerman to file a cross-appeal with respect to the division of property. Accordingly, this judgment deals only with the issue of custody. [ 2 ] For the reasons set out below, Ms. Ackerman’s appeal is dismissed. II.

Background [ 3 ] Angela and Brett Ackerman began living together in December 2006 and were married on January 12, 2008. They have two children of their relationship: P., born […], 2008 and H., born […], 2010. When the parties separated on March 12, 2011 P. was three years of age while H. was just six months. [ 4 ] Ms. Ackerman was employed throughout the parties’ relationship, but took maternity leave after the birth of both P. and H.. Following P.’s birth she returned to work part-time (Monday through Thursday). Mr. Ackerman, who often worked from home, looked after P.

Mondays and took him to daycare Tuesdays, Wednesdays and Thursdays. On Friday P. was in the care of Ms. Ackerman. [ 5 ] When the parties separated Ms. Ackerman was still on maternity leave with H.. By the time of trial, she had returned to work, P. was attending Montesorri School and H. was registered there as well.

The parties, who live in close proximity to one another, agreed that when P. entered grade one he would go to a school located approximately mid-way between their two homes. [ 6 ] Following the Ackerman’s separation they were unable to reach an agreement with respect to a parenting plan for the children. On November 2, 2011 an interim order was made which provided the children’s primary residence would be with Ms. Ackerman and that Mr. Ackerman would have parenting time as follows: Week 1: Both P. and H., Monday and Wednesday 12:00 p.m. to 6:00 p.m. P.: Friday from 12:00 p.m. to Sunday at 6:00 p.m.

H.: Friday and Sunday 12:00 p.m. to 6:00 p.m. Week 2: Both P. and H., Tuesdays and Thursdays from 12:00 p.m. to 6:00 p.m. Based on this order, Mr. Ackerman had parenting time with P. seven out of 14 days and H. six out of 14 days. This parenting regime had been in place for approximately 18 months by the time of trial. [ 7 ] There was no evidence of any type of abuse during the Ackermans’ relationship. However, post-separation conflict arose between them centered around their respective roles in the children’s lives. Both Mr. and Ms.

Ackerman videotaped each other and engaged in inappropriate communications and behaviours. By the time of trial, communication between them had been reduced to emails. [ 8 ] In 2012 Mr. Ackerman began living with Shayla Fitch. They have one child of their relationship, a son, who was born in 2012. [ 9 ] At trial Mr. and Ms. Ackerman agreed an order for joint custody was appropriate. They differed, however, on the way their parenting regime should be structured. Mr. Ackerman wanted a shared parenting arrangement whereby P. and H. would alternate between his and Ms. Ackerman’s residence on a weekly basis. Ms.

Ackerman, on the other hand, wanted the children to reside primarily with her, with specified access to Mr. Ackerman, alternating weekends from Friday evening to Sunday evening to be extended by 24 hours in the event of a long weekend. In addition, the week prior to Mr. Ackerman’s weekend, he would have the children one weekday evening from 4:00 p.m. to 7:30 p.m. and the week following his access weekend, he would have the children two evenings from 4:00 p.m. to 7:30 p.m. Under Ms. Ackerman’s parenting plan, Christmas and Easter holidays would be shared equally. Ms. Ackerman suggested that in 2014 Mr.

Ackerman could have the children for three non-consecutive weeks during the summer and, in 2015 and thereafter, she proposed that this would be increased to four weeks or one-half the summer school vacation. Ms. Ackerman wanted sole decision-making power with respect to all aspects of the children’s lives. III. The Trial Judge’s Decision [ 10 ] The trial judge found that both the Ackermans were capable of parenting their children. He acknowledged Ms. Ackerman was the children’s primary caregiver and that conflict had arisen between the Ackermans following their separation. He found, however, that Ms.

Ackerman had “exaggerated the conflict” so that shared parenting would not be considered. The trial judge ordered “joint custody” asrequested by both the Ackermans. He also ordered a shared parenting arrangement in which the children would alternate between theirparents’ residence on a weekly basis. The Christmas and Easter school holidays were to be shared equally and both parents would havethe children for four weeks during the summer school vacation. He gave Mr. Ackerman authority to determine who the children’s doctorwould be and Ms. Ackerman authority to determine who their dentist would be. Both Mr. and Ms.

Ackerman could choose up to twoactivities for the children to participate in. Any additional activities had to be agreed to by both of them. IV. The Issues [11] While Ms. Ackerman agrees with the order for joint custody, she appeals the trial judge’s decision granting shared parenting. Hernotice of appeal sets out five grounds, but there are really only three issues for determination: (

i) Did the trial judge err in law by varying the status quo? (ii) Did the trial judge err in law by ordering a shared parenting arrangement? and (iii) Did the trial judge err by changing the children’s primary residence from the home of Ms. Ackerman, their primary caregiver? [12] Following the filing of Ms. Ackerman’s appeal, Mr. Ackerman applied to lift the stay with respect to the parenting order. OnAugust 30, 2013 the stay was lifted. Since that time (a period of almost one year) the shared parenting regime ordered by the trial judgehas been in effect. V. Jurisdiction and Standard of Review [13] Ms.

Ackerman appeals the trial judge’s decision pursuant to s. 21 of the Divorce Act, R.S.C. 1985, c. 3 (2nd sup.), which allowsappeals from “any judgment” of a court. [14] In H.(C.R.) v. G.(D.), 2010 SKCA 127 at para. 3, 362 Sask. R. 216, this Court set out the standard of review in custody matters asfollows: The Supreme Court of Canada articulated the standard of appellate review applicable to custody and access appeals in Van dePerre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014.

Speaking for the Court, Bastarache J. stated at para 11: [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 statutes 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. [Emphasis added by SCC.] As pointed out in H.(C.R.) v. G.(D.), supra, the scope of appellate review in custody cases is a narrow one. An appellate court shouldonly intervene where there is a material error, a serious misapprehension of the evidence, or an error in law.

It is not entitled to intervenesimply because it would have made a different decision. VI. Preliminary Matter [15] At the commencement of the appeal, Ms. Ackerman applied to adduce fresh evidence. That evidence consisted of an affidavitwith two undertakings attached – one relating to Ms. Ackerman and one relating to Mr. Ackerman. The undertakings arose as a result ofalleged criminal activity by both the Ackermans post-trial. The purpose of the fresh evidence was to establish that the Ackermanscontinue to have an acrimonious relationship. [16] Counsel for Mr.

Ackerman opposed the admission of the evidence, arguing it was of no use in deciding the issues relating toparenting and, if it had been available to the trial judge, that it would not have been determinative of that issue. In the event the evidencewas allowed, Mr. Ackerman’s legal counsel requested that an affidavit of his client also be admitted. That affidavit contained Mr.Ackerman’s assertion that the criminal charges laid against him are not well-founded. [17] Neither the affidavit sought to be adduced by Ms. Ackerman, nor the affidavit of Mr.

Ackerman set out the events leading to theundertakings, nor did they discuss the impact of those events on their children or how they were faring under the shared parentingarrangement. [18] Both applications to adduce fresh evidence were dismissed by this Court at the time the appeal was heard. What follows are briefwritten reasons for that decision.

[19] Rule 59 of the Court of Appeal Rules requires applications to admit fresh evidence be served and filed no later than ten daysbefore the date fixed for the hearing of the appeal. That date is when such applications are to be heard. Neither party in this casecomplied with Rule 59, but as both parties were prepared to argue the applications, they were allowed to proceed. [20] The test for admitting fresh evidence was set out by Vancise J.A. in Wal-Mart Canada Corp. v. Saskatchewan Labour RelationsBoard, 2006 SKCA 142 at para. 4, 289 Sask.

R. 20 as follows: The test for the admission of fresh evidence is well known and was articulated by this Court in Maitland v. Drozda (1983), (SK CA), 22 Sask. R. 1 (C.A.). The Court identified four factors which must be satisfied before fresh evidence would beaccepted. Those factors are: (

a) The evidence will not be admitted, if by due diligence it could have been used at trial; (

b) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the action; (

c) The evidence must be credible in the sense that it is reasonably capable of belief; and, (

d) It must be such that if believed could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. [21] The fresh evidence sought to be adduced by Ms. Ackerman was not in existence at the time of trial. It relates to post-trial conductof the parties. While such evidence may be relevant to a variation application, it is not relevant to this appeal, as the trial judge’s decisionwas dependent on the circumstances that existed as of the date of trial.

While the evidence may be relevant to the issue of custody and iscredible, it is of little or no assistance in determining the issue of an appropriate parenting plan for the children. This is so becauseindividuals charged with criminal offences are presumed innocent until proven guilty. The laying of criminal charges and/or the enteringof a peace bond without knowing the facts giving rise to those events, the role each of the Ackermans played in the incidents, and howtheir children may have been affected by them is of little value.

There is a real question what, if any weight, the trial judge would havegiven such evidence and, thus, it cannot be said that evidence, when taken with the other evidence adduced at trial, would have affectedthe result. Accordingly, Ms. Ackerman’s application to adduce fresh evidence was dismised. [22] Mr. Ackerman’s application was dependent on Ms. Ackerman obtaining a positive outcome on her application. Accordingly, hisapplication was also dismissed. VII. Analysis [23] The governing legislation with respect to this appeal is the Divorce Act (hereinafter referred to as “the Act”).

The portions of thatAct relevant to this appeal read as follows: 16.

(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respectingthe custody of or the access to, or the custody of and access to, any or all children of the marriage. …

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage asdetermined by reference to the condition, means, needs and other circumstances of the child.

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless theconduct is relevant to the ability of that person to act as a parent of a child.

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as muchcontact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration thewillingness of the person for whom custody is sought to facilitate such contact. [24] Based on these provisions, a Court, in determining custody and access, is to consider only the best interests of the child, havingregard to the child’s condition, means, needs and other circumstances.

The legislation makes it clear that a parent’s past conduct is not tobe considered, unless that conduct is relevant to their ability to act as a parent. In addition, Parliament included in s. 16(10) of the Actwhat has become known as the principle of maximum contact, i.e. that a child should have as much contact with each parent as isconsistent with his or her best interests. For that purpose, the willingness of each parent to facilitate contact with the other parent isimportant. (See: Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27 at paras 21 and 24.) [25] Section 16(4) of the Divorce Act permits courts to award custody to one or more persons. It is from this provision that courtsderive their legislative authority to order joint and/or shared custody. [26] While the terms “joint” and “shared” custody have been used to describe many different parenting arrangements, it is clear that ata minimum those terms envisage a parenting regime that generally includes joint decision-making with respect to all major mattersaffecting a child’s life. (

i) Did the Trial Judge Err in Law by Varying the Status Quo? [27] Counsel for Ms. Ackerman argued there is a presumption in favour of the “status quo” and that absent a compelling reason fordoing so the trial judge should not have varied from the parenting arrangement that was in place at the time of trial. In support of hisposition he relied heavily on this Court’s decision in Haider v. Malach (1999), (SK CA), 177 Sask. R. 285.

[28] I note that at trial Ms. Ackerman was not suggesting the parenting plan in existence up to that point should be maintained. Rather,she was advancing a plan that would in fact have decreased Mr. Ackerman’s parenting time and role in the children’s lives. I also notethat the facts in Haider v. Malach are significantly different from the facts which exist in this case. [29] In Haider v. Malach, the Court was dealing with a parenting arrangement that had been in place by agreement of the parties forone and a half years prior to any dispute arising.

That agreement which provided sole custody to the mother was confirmed by an interimcustody order made pending trial. The trial judge found the mother had not made sufficient efforts to correct her daughter’s bedwettingand soiling problems.

In doing so he relied on a court ordered custody/access report and concluded that the father should have solecustody of the parties’ daughter with access to the mother, a complete reversal of what had been in place prior to trial. [30] The Court of Appeal overturned the trial judge’s decision on the basis his findings of fact relating to the bedwetting and soilingwere not supported by the evidence and that the trial judge failed to consider the impact of a complete change in custody on the child.Given the circumstances, the Court of Appeal reversed the trial judge’s decision and granted the mother sole custody.

I note that in thatcase, the father had been physically and verbally abusive to the mother during the parties’ relationship. [31] The Ackermans’ situation bears no resemblance to the situation that existed in Haider v. Malach. The Ackermans had no post-separation agreement with respect to custody and/or access. There was no evidence either parent failed to provide appropriate care forthe children and there was no evidence of physical or verbal abuse during their relationship. Moreover, the Ackermans’ interim orderprovided Mr. Ackerman with considerably more parenting time than Mr. Haider enjoyed prior to trial.

Finally, the trial judge did notchange custody of the Ackermans’ children. The Ackermans had joint custody prior to trial and it was agreed that should continue. Whatthe trial judge did change was the amount of time each parent would have the children in their care. [32] Counsel for Ms. Ackerman misinterpreted the ratio in Haider v. Malach. That case is not authority for the proposition that apresumption in favour of the “status quo” exists in custody disputes. There is no such presumption. The status quo is a factor to beconsidered when determining the best interests of the child.

It is encompassed in the phrase “condition, means, needs and othercircumstances of the child” as set out in s. 16(8) of the Divorce Act. Thus, the status quo should be weighed, along with all the otherfactors that might affect the best interests of the child. [33] While the trial judge in this case did not address the impact of a change in the parenting plan on the children as a discrete issue, Iam satisfied he nevertheless took that into consideration in making his decision. The trial judge found as a fact that it was in thechildren’s best interests for both parents to take an active role in their lives.

He considered the age of the children and that H. could nowtolerate overnights. Given the amount of time Mr. Ackerman had been spending with the children, the trial judge concluded “sharedparenting” was the next logical step. He also concluded that reducing the number of times the children travelled between their parents’homes would reduce the conflict which occurred during exchanges. [34] Ms. Ackerman argued strenuously that maintaining the status quo was important as it ensured structure and stability for thechildren.

A change in the parenting arrangement does not necessarily equate to either a lack of structure or stability. In fact, a parentingarrangement that decreases the number of exchanges may be conducive to establishing structure and stability in a child’s life. [35] The trial judge found the Ackermans have very different parenting styles. Ms. Ackerman is very rigid and structured in herapproach, while Mr. Ackerman is more relaxed. That does not mean, however, that the children spending more time with their father willlead to instability or a lack of structure.

Children, by necessity, must adapt to a variety of parenting styles. What happens in their parents’homes, the types of food they eat, their rules and approaches to discipline may be very different from what exists at their daycareprovider’s, school, or the homes of other important people in their lives such as grandparents.

What matters most is that children have aclear understanding of what is expected in each household or institution that they attend. [36] In the circumstances, I cannot find that the trial judge erred in law with respect to his handling of the “status quo”. (ii) Did the Trial Judge Err in Law by Ordering Shared Parenting? [37] Ms. Ackerman argues the trial judge erred in law by ordering shared parenting given the parties’ inability to communicate andtheir acrimonious relationship. She relied on the cases of L.(C.R.) v. L.(R.E.), [1998] S.J. No. 20 (Q.B.) (QL); K.(H.A.) v. W.(T.J.), 2010SKQB 128, 351 Sask.

R. 69 and Poirier v. Poirier, 2011 SKQB 298, 381 Sask. R. 111. [38] Mr. Ackerman, on the other hand, argued that s. 16(10) of the Divorce Act, creates a presumption in favour of shared parentingwhich Ms. Ackerman did not rebut. [39] Subsection 16(10) of the Divorce Act sets out the principle of maximum contact. McLachlin J. (as she then was), speaking for theSupreme Court of Canada in Gordon v. Goertz, supra, at para. 24, discussed the application of that

section as follows: The second factor which Parliament specifically chose to mention in assessing the best interests of the child is maximum contactbetween the child and both parents. Both ss. 16(10) and 17(9) of the Act require that "the court shall give effect to the principle that achild of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child". Thesections go on to say that for this purpose, the court "shall take into consideration the willingness of [the applicant] to facilitate" thechild's contact with the non-custodial parent.

The "maximum contact" principle, as it has been called, is mandatory, but not absolute. TheAct only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show thatit would not be in the child's best interests, the court can and should restrict contact: Young v. Young, (SCC), [1993] 4S.C.R. 3, at pp. 117-18, per McLachlin J. [40] I conclude s. 16(10) of the Divorce Act does not create a presumption in favour of shared parenting.

Rather, it establishes theprinciple that maximum contact between a child and each of his or her parents is desirable. What that “maximum contact” should be inany particular case depends on the best interests of the child. [41] The fact parents have an acrimonious relationship is a factor to be considered in determining an appropriate parenting plan.

Conflict, domestic violence and/or abuse, whether it be physical, psychological or verbal, is relevant to a person’s ability to parent. Children learn what they live and it is well documented that children who live with conflict, domestic violence and/or abuse are significantly impacted by such experiences.

How the existence of such experiences will affect the outcome of a custody or access hearing depends on a number of factors including, but not limited to, who was involved, when and where the incidents occurred, the context in which they arose, the number and severity of such incidents, the parties’ reactions to the event, including the taking of remedial steps, whether the children were present during the incidents and/or their knowledge of such events and their reaction to them. [ 42 ] In this case, there was no evidence of domestic violence or abuse during the Ackermans’ relationship.

Following their separation, however, conflict arose. This was clearly established by the various emails filed as evidence, the taped telephone conversation of March 28, 2011, the fact that both Ackermans videotaped exchanges, and other inappropriate conduct by both the Ackermans including Ms. Ackerman “tailing” Mr. Ackerman and his new spouse. The trial judge, however, found Ms. Ackerman “exaggerated the conflict between the parties so she could argue that shared parenting would not work.” [ 43 ] The trial judge enumerated a number of situations where Ms. Ackerman fuelled the conflict between herself and Mr.

Ackerman. He found Ms. Ackerman did not feel it was “necessary” to share any school information with Mr. Ackerman. She opposed Mr. Ackerman picking the children up at school. She refused to allow Mr. Ackerman’s new common law spouse to transport the children for scheduled parenting time with their father when Mr. Ackerman was undergoing a medical procedure and when he was “stuck” in his vehicle. When Mr. Ackerman’s common law spouse made a “gracious attempt” to communicate with her, Ms. Ackerman refused to reply. Ms. Ackerman would not let P. and H. attend a birthday party for the children of one of Mr.

Ackerman’s friends. The trial judge found as a fact that Ms. Ackerman “… desires to retain control over all aspects of the children’s lives and desires to retain this as control over the respondent” ( i.e. , Mr. Ackerman). In the words of the trial judge, “She has allowed her dislike of the respondent and her mistrust of him to permeate all her opinions and decisions …” regarding the children’s relationship with their father. Faced with this situation, knowing Ms.

Ackerman was the children’s primary parent, the trial judge found the only way “joint custody” could be meaningful was to have a shared parenting regime. This was premised on his finding that it was in the best interests of P. and H. that both their parents be active and present in their lives on a regular basis. There was ample evidence to support the trial judge’s findings of fact and they should be given deference. [ 44 ] Counsel for Ms.

Ackerman argued strenuously that shared parenting cannot be “imposed” and should not be “imposed” where the parties are unable to communicate effectively. [ 45 ] The cases cited by legal counsel for Ms. Ackerman in support of this proposition are all easily distinguishable on their facts from the Ackermans’ situation. In none of those cases did the trial judge find one parent was “ratcheting up the conflict” to prevent a shared parenting arrangement. [ 46 ] In L.(C.R.) v. L.(R.E.) , the trial focused on the mother’s request to limit the father’s access to their child because of past spousal and child abuse.

In Poirier , the trial judge found that the father had physically abused the mother and used excessive discipline on one of the children. No such abuse exists in the Ackermans’ case. [ 47 ] In K.(H.A.) v. W.(T.J.) , there was a post-separation agreement of the parties whereby the mother was allowed to move with the children for educational purposes. The agreement provided for a “review” after the mother obtained her university degree.

Almost four years post-separation the trial judge found certain conduct of the father to be inappropriate and that he displayed characteristics including “stubbornness” and “inappropriate methods of resolving conflict”. Most troublesome to the trial judge was the father’s “inability” to see the other side. [ 48 ] While it stands to reason that generally, shared parenting requires a modicum of cooperation and communication, there can be no hard and fast rules. Every case must turn on its own facts with the focus always being the best interests of the child.

Sometimes trial judges are faced with impossible situations and they must craft a parenting regime that they know will not be perfect but best addresses the child’s needs and interests. In exercising their discretion they should not be arbitrarily limited to certain types of orders because in other cases judges have found the presence or absence of certain things, such as effective communication, was a deciding factor for them. Resolving custody issues requires a balancing of factors to determine the best interests of the child.

What those factors are and how they will be weighed will vary greatly depending on the circumstances of each case. It is for this reason that trying to determine custody based on a review of “similar” cases is a questionable practice. [ 49 ] In this case, there was evidence that the parties were capable of cooperating. On one occasion when Mr. Ackerman was working near Ms. Ackerman’s home, she spontaneously let P. visit him. When Mr. Ackerman and Ms. Fitch’s son was born, Ms. Ackerman had the children take flowers to the hospital. Mr. Ackerman had the children make crafts as a gift for Ms. Ackerman.

The Ackermans were able to agree on what school P. would attend for grade one and they have communicated by email. [ 50 ] Finally, Ms. Ackerman complains that the trial judge erred in dividing decision-making power by allowing Mr. Ackerman to choose the children’s doctor and her to choose their dentist. This type of order was within the power of the trial judge to make and I can find no error in him doing so. The evidence establishes Ms. Ackerman took the children to walk-in medical clinics while Mr. Ackerman took them to his family physician.

Dividing the decision-making authority as the trial judge did provides balance to the parenting arrangement. [ 51 ] In the circumstances I cannot find the trial judge misapprehended the evidence or made a material error or error in law in ordering shared parenting. (iii) Did the Trial Judge err in Law by Changing the Children’s Residence from that of their Primary Caregiver? [ 52 ] Ms. Ackerman argues that she has been the children’s primary caregiver since birth and, as such, the children’s primary residence should be with her.

It is her contention that residence should not have been changed without a compelling reason to do so. In effect, her argument is based on the presumption that a child’s “primary caregiver” should be given pre-eminence in custody disputes. That is not the law.

[53] In Gordon v. Goertz, supra, the Supreme Court of Canada addressed the issue of whether there is a presumption in favour of achild remaining with their custodial parent in relocation cases. McLachlin J. (as she then was), writing for the majority, concluded nosuch presumption exists. I find her reasoning at para. 44 of that judgment particularly apropos to the assertion that in initial applicationsfor custody a presumption exists that a child should remain with their primary caregiver.

Fifthly and most importantly, a presumption in favour of the custodial parent has the potential to impair the inquiry into the bestinterests of the child. This inquiry should not be undertaken with a mindset that defaults in favour of a preordained outcome absentpersuasion to the contrary. It may be that in most cases the opinion of the custodial parent will reflect the best interests of the child. Insuch cases, the presumption might do no harm.

But Parliament did not entrust the court with the best interests of most children; itentrusted the court with the best interests of the particular child whose custody arrangements fall to be determined. Each child is unique,as is its relationship with parents, siblings, friends and community.

Any rule of law which diminishes the capacity of the court tosafeguard the best interests of each child is inconsistent with the requirement of the Divorce Act for a contextually sensitive inquiry intothe needs, means, condition and other circumstances of "the child" whose best interests the court is charged with determining. "[G]eneralrules that do not admit of frequent exceptions can[not] evenly and fairly accommodate all of the varying circumstances that can presentthemselves": per Morden A.J.C.O. in Carter v. Brooks, [(1990), (ON CA), 30 R.F.L. (3d) 53], at p. 62. The inquiry isan individual one.

Every child is entitled to the judge's decision on what is in its best interests; to the extent that presumptions in favourof one parent or the other predetermine this inquiry, they should be rejected: "No matter what test or axiom one adopts from the manyand varied reported decisions on this subject, each case must, in the final analysis, fall to be determined on its particular facts and, onthose facts, in which way are the best interests of the children met" (Appleby v.

Appleby, [(1989), (ON SC), 21 R.F.L.(3d) 307, at p. 315). [54] I find that pursuant to the Divorce Act, the sole consideration in custody disputes is the best interests of the child. There is nopresumption in favour of either parent. Nevertheless, the role each parent plays in the life of their child and the bond between the childand each of its parents are important factors to be weighed in determining a child’s best interests. I am satisfied the trial judge in this casetook both those factors into consideration when making his decision. [55] The trial judge found Ms. Ackerman was the children’s primary parent.

He also found, however, that she had “ratcheted up” theconflict between her and Mr. Ackerman as an excuse not to participate in shared parenting. [56] As pointed out by Justice Wilkinson of this Court in Gilles v. Gilles, 2008 SKCA 97 at para. 24, [2008] 10 W.W.R. 610, the “…characterization of a parent as a child's ‘primary caregiver’ is not, ipso facto, a judicial endorsement …”, that they are in fact the “…‘best caregiver’. A parent can be the dominant physical and emotional presence in a child's life in a less positive sense as well. …” Suchis the situation here. The trial judge outlined some of Ms.

Ackerman’s conduct in fuelling the conflict between herself and Mr.Ackerman which directly affected the children. A review of the trial transcript identifies many other incidents. Most telling is the trialjudge’s conclusion that Ms. Ackerman has allowed her dislike and mistrust of Mr. Ackerman to “…permeate all her opinions anddecisions regarding the children’s relationship …” with their father. The shared parenting arrangement established by the trial judgemaintains Ms. Ackerman as an integral part of the children’s lives.

It also allows them an opportunity to have a meaningful relationshipwith their father, something the trial judge was concerned would not happen under any other parenting regime. In the circumstances, Icannot find the trial judge erred in law in making his decision. VIII. Conclusion [57] Ms. Ackerman’s appeal with respect to the trial judge’s custody decision is dismissed. The issue of costs for this part of theappeal, and for the applications to adduce fresh evidence, will be dealt with when this Court renders its decision on the appeal relating todivision of the family property.

DATED at the City of Regina, in the Province of Saskatchewan, this 21st day of August, A.D. 2014. “Ryan-Froslie J.A.”____________________ Ryan-Froslie J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A.

I concur. “Caldwell J.A.” Caldwell J.A.