Dukart v Quantrill (Jones), 2015 SKCA 138

Court of Appeal for Saskatchewan Docket: CACV2648 Citation: Dukart v Quantrill (Jones) , 2015 SKCA 138 Date: 2015-12-10 Between: Jody Dukart Appellant And Robynne Quantrill (Jones) Respondent Before: Caldwell, Herauf and Whitmore JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Herauf In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Whitmore On Appeal From: DIV 324 of 2013, J.C. of Regina Heard: October 21, 2015 Counsel: Terence Graf, Q.C. for the Appellant Drew Filyk for the Respondent Herauf J.A. I.

Introduction [ 1 ] This appeal involves the parenting arrangement for the parties’ six year old child, Aaliyah. After a three day trial, the trial judge declined the father’s request to order a full shared custody regime where Aaliyah changes residence on a weekly basis (see 2014 SKQB 391 ).

Instead, the trial judge ordered primary residence to be with the mother with parenting times to the father that, in the words of the father, relegate him to the status of a “weekend dad”. [ 2 ] The father appeals on the premise that the trial judge made a material error by placing unreasonable reliance on the father’s hours of work and the distance from his home to his daughter’s school in coming to her conclusion of what parenting regime would be in the best interests of Aaliyah. [ 3 ] The father also takes issue with the trial judge’s failure to give sufficient weight to the separation agreement and the interim court order that both provide for “joint and shared custody” of Aaliyah. [ 4 ] I agree with the submissions of the father.

I respectfully disagree with the conclusion of the trial judge that shared custody would not be in the best interests of Aaliyah. Notwithstanding the narrow standard of review in custody appeals, I would allow the appeal and set aside, for the most part, the order of the trial judge and impose a shared custody parenting regime. II. background [ 5 ] The parties lived together for approximately two years. Aaliyah was born after a planned pregnancy. The parties separated in June of 2010 when Aaliyah was about one year old.

The father continued to reside in the family home on an acreage outside of Bienfait, Saskatchewan. The mother moved back to Lampman, Saskatchewan, where her family resided. [ 6 ] The parties entered into a formal separation agreement on January 27, 2011. As noted, the agreement specified that the parents “shall have joint and shared custody of the child”. No parent was to be designated as having primary residence. The agreement provided that the father was to have parenting time of approximately 5.5 days out of a two-week period or roughly 40 percent of the time.

It should be noted that the parties observed the forty-sixty split immediately after separation, even before it was formalized in January of 2011. [ 7 ] Certain problems arose with respect to parenting times. The father launched this application. In the meantime, the father was able to change his shifts at the mine where he had been employed for many years. The 12-hour shifts that he now works are days-only and the times involved are from 7 a.m. to 7 p.m. The shifts rotate weekly on a two-week schedule.

On the first week, the father has Saturday, Sunday and Monday off; then works Tuesday and Wednesday; and then has Thursday and Friday off. The next week the father works the five days he had off the prior week and he has Tuesday and Wednesday off that week. [ 8 ] The mother works full-time, Monday to Friday, and has a babysitter for before and after school, as necessary. [ 9 ] The parties were subject to an interim court order granted on November 15, 2013. Once again, the interim order provided that the parties “shall have interim joint custody and shared parenting of the child”.

No primary residence was designated. The interim order increased the father’s parenting time from 5.5 days to 6 days every two weeks. The interim order also permitted each parent to register their daughter in an extracurricular activity in their respective hometown.

[ 10 ] The residences of the parties are approximately 28.5 kms apart and it takes roughly 25 minutes to drive from the acreage where the father resides to Lampman where Aaliyah attends school. [ 11 ] Both parties are in new relationships. Both parties have extended families who live close by. III. the trial decision [ 12 ] The trial judge acknowledged the primary consideration to be the “best interests of the child”. She referenced the guiding principles set out in The Children’s Law Act, 1997 , SS 1997, c C-8.2: 6 …

(5) When making an order pursuant to subsection (1), the court shall: (

a) give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person seeking custody to facilitate that contact; and … 8 In making, varying or rescinding an order for custody of a child, the court shall: (

a) have regard only for the best interests of the child and for that purpose shall take into account: (

i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have a close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (

v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; (

b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child; and (

c) make no presumption and draw no inference as between parents that one parent should be preferred over the other on the basis of the person’s status as a father or mother. [ 13 ] The trial judge described the personalities of the parents, which are not complementary to each other.

Notwithstanding the differences in personalities and their inability to communicate, the trial judge acknowledged that the parents had been “maintaining basically shared parenting for nearly four years” (see para. 13). [ 14 ] The trial judge’s reason for declining to order shared custody is encapsulated in para. 19 of the trial judgment: [19] Even so, these issues are not in and of themselves sufficient for this court to necessarily conclude that the overt and covert hostility and lack of trust between these parents is sufficient to negate the possibility of shared parenting going forward.

In my view, the real impediments to such a parenting plan are the combined factors of dad’s work

schedule and the distance between the two communities where these parents live…. [ 15 ] She expanded on the distance between the two communities by determining that as Aaliyah grows older, she “will naturally want, and is entitled, to have a significant number of her activities in the same community where she attends school and is developing her most significant friendships” (see para. 19). [ 16 ] In essence, the trial judge determined that Aaliyah’s attendance at school in Lampman will mean that she will develop her close friendships and extracurricular activities in that community which precludes a shared custody arrangement. [ 17 ] As a result of her concerns over the father’s hours of work and distance between Bienfait and Lampman, she concluded “that shared parenting is simply not an option that is in the best interests of Aaliyah” (see para. 20). [ 18 ] The trial judge made an order that the parties have joint custody with primary residence to be with the mother.

She provided parenting times to the father on alternating weekends. For ease of reference those arrangements will be repeated here: … 3. IT IS FURTHER ORDERED that the petitioner should have parenting of Aaliyah on the alternating weekends that he is off work. The Petitioner works from 7:00 am to 7:00 pm each Friday preceding his three days off of Saturday, Sunday and Monday. To accommodate

the petitioner’s parenting time on that weekend, the respondent will arrange to have Aaliyah driven to the Petitioner’s residence by 6:00pm on each such Friday and Aaliyah shall remain in the petitioner’s care until the petitioner arranges to return Aaliyah to therespondent’s home by 6:00 pm on the Sunday evening, unless Monday is a day off school, in which case the petitioner will returnAaliyah by 6:00 pm Monday evening. 4.

IT IS FURTHER ORDERED that each Thursday preceding the petitioner’s weekend off work and provided the Friday is a day offschool, the petitioner will also have parenting time from the close of school at 3:00 pm on Thursday until noon on Saturday. Thepetitioner will be responsible for arranging Aaliyah’s transportation to his home after school and the respondent will arrangetransportation from the petitioner’s on Saturday morning.

In the event that Friday is a school day, the petitioner’s parenting time on thesealternating weekends will not start until 3:30 pm on Friday with responsibilities for pick up and drop off unchanged. 5. IT IS FURTHER ORDERED that given that the Petitioner has every second Tuesday and Wednesday off work, he may alsoprearrange with the respondent to pick up Aaliyah after school on either one or both of these days and spend the late afternoon andevening with her provided that he takes her to any of her scheduled activities and gets Aaliyah back to the respondent’s home by 7:30pm. 6.

IT IS FURTHER ORDERED that the petitioner will have one half of all school holidays, even if he is required to work during some ofthose holiday days. … IV. standard of review [19] The standard of review in custody cases is well known. Its most recent articulation from this Court was in Ackerman vAckerman, 2014 SKCA 86, [2014] 10 WWR 429 [Ackerman] where Ryan-Froslie J.A. stated at para. 14: … the scope of appellate review in custody cases is a narrow one. An appellate court should only intervene where there is a materialerror, a serious misapprehension of the evidence, or an error in law.

It is not entitled to intervene simply because it would have made adifferent decision. V. issue [20] The only issue is whether the trial judge erred by not providing a shared parenting arrangement in the circumstances of thiscase. VI. analysis [21] The first matter to mention is that the trial judge found each party to be a loving and devoted parent who provides a safe andstable home life.

She also found that each step-parent and the extended family of each parent were devoted to Aaliyah and were fullysupportive and willing to assist with Aaliyah in any way possible. [22] As already noted, the trial judge did not consider the parents’ inability to communicate, their hostility toward each other, orlack of trust as impediments to shared parenting. In fact, her reasons display that she was somewhat surprised that the parents, in spite ofthese issues, were able to make shared parenting work for almost four years.

I note that the term “shared parenting” in the context of thetrial judgment does not connote equal parenting. However, 5.5 to 6 days out of a period of 14 days is as close as it gets to true equalparenting. [23] If the matter ended at this point, it is difficult to see how shared parenting would not be an appropriate outcome. However, thematter does not end here.

The trial judge listed the “real impediments” that in her view thwart an order for shared custody; father’s workschedule and the distance between the communities where the parents live. [24] The father contends that the trial judge erred in principle by considering these factors as impediments to shared custody. Themother counters that this decision was the trial judge’s to make and cannot be disturbed on appeal. [25] Before attending to the merits of the appeal, it is necessary to deal with the main argument of the mother, namely, thestandard of review.

Simply put, counsel for the mother submits that the trial judge made no reversible error in reaching her conclusionand the standard of review prohibits this Court from intervening. [26] This argument can be dealt with rather quickly. I would adopt the rationale of Jackson J.A. for this Court in Haider v Malach(1999), (SK CA), 177 Sask R 285 (CA) [Haider], where she commented on the standard of review in custodyappeals as follows: [11] Counsel for Mr. Malach argued strenuously and well that the standard of appellate review precludes intervention.

He citednumerous cases where the standard of review has been articulated and applied. There are, however, cases where this and other courts ofappeal have intervened. We cannot say that custody cases need never be appealed. The standard is a strict one, but by its very terms itadmits of intervention in the appropriate case. After a thorough review of the evidence, the applicable case law and the submissions ofcounsel, we are convinced that this is such a case. Like the Court in Haider, I have determined that this is an appropriate case to intervene. In my view, the trial judge made a material error

in her consideration of the “real impediments” to shared custody. I will explain why. A. Father’s Work

Schedule [ 27 ] At para. 5 of the decision, the trial judge carefully sets out the father’s work schedule. She acknowledges that, to better suit a shared custody arrangement, the father was able to move his 12-hour shifts from one week of days followed by one week of nights to all days. She set out his two-week schedule, which is fixed for a year, and acknowledged that Aaliyah’s paternal grandfather also works at the same place as the father and has the opposite 12-hour day shift from that of the father.

This would ensure that Aaliyah’s grandfather was able and willing to drive Aaliyah to school and pick her up if the father is unable to do so. As well, the father’s partner (Aaliyah’s step-mother) indicated her ability to share the driving if necessary. Having acknowledged that the step-mother and paternal grandfather are caring, competent and more than willing to be a resource if needed to assist with the care for Aaliyah, she goes no further. She simply states that the father’s work

schedule is an impediment without any further elaboration. [ 28 ] In the absence of an explanation, the trial judge’s conclusion that the father’s work

schedule is an impediment is borne of a palpable and overriding error of fact. I say this because, if the shared parenting regime was set to commence with Monday exchanges, the father would have a number of days off during that week to attend to parenting. This would allow him to be available to drive and pick up Aaliyah from school in Lampman. On the days he works, his father and partner can arrange to do so. Given this evidence, I fail to see how the father’s work

schedule becomes an impediment. B. Distance between Bienfait and Lampman [ 29 ] The trial judge provides a bit more elaboration on why this factor is, in her view, an impediment. In addition to the concerns of a 25-minute commute twice per day to drop off and pick up Aaliyah from school, the trial judge has concerns over winter driving conditions.

She then goes on to elaborate her view that, as Aaliyah gets older, she will want to be with her friends in Lampman where she attends school and will want to participate in extracurricular activities in that community only. [ 30 ] I find that it is also a reversible error to hold that these factors would be an impediment to shared parenting. A 25-minute commute to and from school is hardly a hardship. I would hazard to guess that thousands of school age children in Saskatchewan spend longer than that on a school bus in a daily commute to the nearest school.

As well, winter driving conditions are a fact of life in Saskatchewan. A parent would be appropriately prepared to take all of the necessary precautions to ensure the safety of their child if the weather is inclement. There seems to be no dispute that the father would do the same. These are reversible errors that plainly affected the trial judge’s decision and, therefore, that decision must be set aside. [ 31 ] Furthermore, the trial judge’s determination relating to friendships and extracurricular activities does not appear to have been based on any evidence at trial.

Reference to this issue does not appear in the briefs of law that were filed by counsel for the trial judge after trial. I must come to the conclusion that the trial judge came to this view without any evidentiary basis or submissions by either party. Once again, I would find this reversible error that led to the trial judge’s erroneous conclusion that shared custody is not feasible in this situation. C.

Status Quo [ 32 ] The father also contends that the trial judge failed to give weight to the parties’ agreement concerning the shared custody of Aaliyah. [ 33 ] As noted above, the parties entered into a separation arrangement on January 27, 2011, which provided for shared custody. This was further expanded by court order granted on November 13, 2013.

The trial judge, as previously set out, mentioned more than once that the parents “rather successfully shared in their daughter’s care and upbringing in the ensuing four years” from the date of separation to the date of trial (see para. 1). [ 34 ] Other than the references to the successful shared parenting arrangement, the trial judge seems not to have weighed this factor or status quo into her analysis of what is in the best interests of Aaliyah and hence committed a material error. [ 35 ] This Court in Ackerman stated that the status quo must be weighed along with other factors in determining the best interests of the child: [32] Counsel for Ms.

Ackerman misinterpreted the ratio in Haider v. Malach [ supra ]. That case is not authority for the proposition that a presumption in favour of the “status quo” exists in custody disputes. There is no such presumption. The status quo is a factor to be considered when determining the best interests of the child. It is encompassed in the phrase “condition, means, needs and other circumstances 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 other factors that might affect the best interests of the child. [ 36 ] In Haider , the parties operated under an oral custody agreement providing that their approximately four year old daughter would reside with the mother and that the father would have access every second weekend. This arrangement was later confirmed in an interim court order. A lengthy custody trial followed. The trial judge held that the father would have custody and the mother access.

This Court reversed that finding, holding, amongst other reasons, that the trial judge failed to consider the effect that the change in the long- standing custody arrangement would have on the child.

In Haider at para 89 , Jackson J.A. noted “[i]n making a decision as to custody, consideration must be given to the importance of maintaining stability in the relationships which the child has.” The failure of the trial judge to take into account the effect on the child of the long-standing parenting arrangements in the best interest’s analysis was considered a material error. [ 37 ] I find that the trial judge here likewise erred in failing to weigh the long-standing parenting arrangement into her analysis of

the best interests of Aaliyah. It is simply not mentioned and is critical in view of the terms of the agreement the previous court order and the four years of successful shared parenting that occurred thereunder. It becomes even more fundamental since the effect of the decision of the trial judge is to reduce the father’s parenting time with Aaliyah from 6 days in a 14-day period to 3 days and 4.5 hours in a 14-day period. [ 38 ] As well, the importance of maintaining stability in Aaliyah’s relationship with a loving, devoted and involved father also leads to the father’s concern that the trial judge ignored the principle of maximum contact codified in s. 5 (

a) of The Children’s Law Act, 1997 . The trial judge did quote s. 5(

a) in her judgment, but thereafter did not mention how this principle would factor into the reduction in parenting time between Aaliyah and her father. While it is understood that maximum contact between a child and each parent is a significant objective, it is well known that this objective is always subject to the best interests of the child.

Once again, there seems to be no reference or weighing of the maximum contact principle in the analysis of the trial judge as to why shared parenting is not feasible. [ 39 ] At the end of the day, having found that the trial judge made a number of errors, it is necessary to determine the appropriate disposition of the appeal. Neither party has requested a new trial. In my view, implementing the shared custody regime as submitted by the father is the appropriate remedy. After all, shared custody has been a somewhat successful arrangement for the last four years.

In addition, as already noted, the hours that the father works and the distance between the communities where the parents reside are not impediments to shared parenting in this case.

It is evident that shared custody on balance is the best option when considering the best interests of Aaliyah. [ 40 ] With respect to the mother’s concern that the conflict and animosity between the parents would hamper any shared custody regime, I would simply adopt a statement of this Court in Ackerman : [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. [ 41 ] In my view, there is no reason why an equal, shared parenting regime should not be implemented. The father’s proposal that a week on/week off basis is appropriate. This would give credence to the parties’ arrangement via the agreement and court order as to what is in the best interests of Aaliyah.

It would also answer the mother’s concern that too many switchovers are confusing for Aaliyah and, as noted in Ackerman , it potentially would reduce the number of exchanges and, hence, reduce any conflicts that may occur as a result of the exchanges. [ 42 ] In coming to this conclusion, I am also mindful of the comments of Smith J.A. in Schick v Woodrow , 2012 SKCA 1 , 385 Sask R 153, where at para. 25 she stated: “it is presumptively in the best interests 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.” VII. conclusion [ 43 ] The appeal is allowed to the extent that paras. 1, 3, 4, 5 and part of 13 of the judgment, issued on November 27, 2014, are set aside.

There will be an order providing joint and shared custody of Aaliyah to the parties as reflected in the separation agreement and interim order. The parties shall have joint custody and equal parenting time on a week on/week off basis commencing on Mondays at 3:30 p.m. after school. The father is responsible for picking up Aaliyah at school on the Monday at 3:30 p.m. that his week will commence. I assume that the parties have made plans for the Christmas vacation period. I am reluctant to interfere with those plans.

To avoid any further conflict, I direct that the shared parenting arrangement must be in place by Monday, January 4, 2016. [ 44 ] With respect to para. 13 of the issued judgment, I would delete the reference that “priority is to be given to the activities or opportunities closes ( sic ) to Aaliyah’s primary residence.” There is no reason that Aaliyah should not be permitted to take

part in activities outside of Lampman as was recognized in the interim order. I would not alter any of the remaining provisions of the judgment with respect to vacations, medical and dental treatments, travel and passport issues. [ 45 ] I would also reverse the costs order at trial and provide an order that the father receive taxable costs of the trial. Since the father was successful on appeal, he is entitled to costs of the appeal to be assessed in the usual way. “Herauf J.A.” Herauf J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Whitmore J.A.” Whitmore J.A.