Russell v Russell, 2018 SKCA 80

Court of Appeal for Saskatchewan Docket: CACV3243 Citation: Russell v Russell , 2018 SKCA 80 Date: 2018-09-05 Between: Marie Elizabeth Russell Appellant (Petitioner) And Warren Lee Russell Respondent (Respondent) Before: Caldwell, Ryan-Froslie and Schwann JJ.A. Disposition: Appeal dismissed (orally) Written reasons by: The Honourable Madam Justice Ryan-Froslie In concurrence: The Honourable Mr. Justice Caldwell The Honourable Madam Justice Schwann On Appeal From: DIV 92 of 2018, Regina Appeal Heard: September 5, 2018 Counsel: Gerald Heinrichs for the Appellant Riley Potter for the Respondent Ryan-Froslie J.A. I.

Introduction [ 1 ] Ms. Russell appeals from a custody and access order that required the parties’ children to reside in their home community on an interim basis. As school was commencing at the time of the appeal hearing, this Court dismissed Ms. Russell’s appeal from the bench with written reasons to follow. These are those reasons. II. Background [ 2 ] The Russells lived on the family farm throughout their relationship. They have two children, aged 8 and 5. The parties separated on February 14, 2018. Ms. Russell deposed Mr. Russell was angry, abusive and violent throughout the relationship. Mr.

Russell admitted the parties had arguments but denied he had ever been physically or mentally abusive to Ms. Russell or the children. [ 3 ] Following the separation, Ms. Russell moved with the children to a town located approximately 60 kilometres from their home community. Ms. Russell has employment there to which she had commuted during the marriage. Mr. Russell did not consent to the children’s move. That decision was made unilaterally by Ms. Russell and without court approval. [ 4 ] Mr. Russell applied for shared custody of the children on a week-on/week-off basis and for an order requiring Ms.

Russell to return the children to their home community. Ms. Russell countered with an application of her own. She sought, among other things, interim sole custody and primary residence of the children. [ 5 ] The Chambers judge who heard the applications rendered his decision on April 25, 2018. He found Ms. Russell had been the primary caretaker with Mr. Russell “taking a lesser but active role in parenting the children”.

Citing this Court’s decision in J.P. v J.P. , 2016 SKCA 168 , 89 RFL (7th) 92 [ J.P. ], and the Court of Queen’s Bench decision of Ofukany v Ofukany , 2009 SKQB 234 , 338 Sask R 196 [ Ofukany ], the Chambers judge found there was a “presumption” that a move would not be permitted on an interim application. [ 6 ] The Chambers judge concluded Ms. Russell was unable to rebut that presumption because there were no compelling reasons to justify the move. He determined the issue was “whether this is truly a mobility case in which a move should not be permitted or whether Ms.

Russell’s move was simply a move within the same vicinity that is acceptable within the specific circumstances of the matter at hand.

If a move is within the same vicinity, the principles of mobility do not apply.” [ 7 ] The Chambers judge determined this was a mobility case because the children had been “moved away from their father, their home, their school, their friends, their daycare, their activities and the only community they [had] known” to a town they had no previous connection with. [ 8 ] Finally, the Chambers judge concluded the children are not at risk in their father’s care and that they are “closely attached” to him. In the circumstances, the Chambers judge determined an interim order of joint custody was appropriate.

He ordered Ms. Russell to “promptly relocate the Children’s residence” to the “catchment area” of the school located in their home community. If Ms. Russell moved with the children, she would have primary care of them with specified access to Mr. Russell alternating on a weekly basis as follows: in week one, he would have the children from Thursday after school to Sunday at 7:00 p.m. to be extended to Monday at 7:00 p.m. where Monday is a statutory holiday; in week two, he would have the children from Thursday after school until 7:00 p.m.

All school vacations, including the Christmas, February, Easter and summer breaks were to be shared equally. If Ms. Russell chose not to

return with the children, then Mr. Russell would have primary residence. [9] Ms. Russell appealed only the portion of the Chambers judge’s decision requiring the children be returned to the catchmentarea of the school in their home community. Her appeal alleges the Chambers judge erred by finding this was a mobility case and byfailing to find Ms. Russell had good and compelling reasons for the move. Ms. Russell also submits the Chambers judge erred byconcluding an order returning the children to their home community was in their best interests. III. Preliminary Matter [10] Ms.

Russell sought to adduce fresh evidence on the appeal by way of an affidavit sworn by her setting out what has occurredsince the Chambers judge’s decision. Mr. Russell filed an affidavit to be used in response if Ms. Russell’s application was successful.Ms. Russell then filed a further affidavit in reply to Mr. Russell’s affidavit. [11] This Court has stated there is a relaxed rule with respect to the admission of fresh evidence on appeals pertaining to custodyand access because central to those issues are the best interests of the child or children involved.

While the evidence sought to beadmitted in this case was new in the sense it did not exist at the time of the court application and, while it may be considered credible andrelevant, it was not, in the Court’s view, potentially decisive of the children’s best interests. Accordingly, Ms. Russell’s application toadduce that evidence was dismissed and costs were awarded to Mr. Russell of $500. Mr. Russell’s affidavit and Ms. Russell’s replythereto were also rejected. IV.

Analysis [12] As stated by Caldwell J.A. in Bolan v Bolan, 2013 SKCA 84 at para 9, 417 Sask R 265: “the standard of appellate review inappeals from interim custody orders presents a significant hurdle for an appellant to clear”.

This is so because of the high degree ofdeference accorded to judges making such orders and the long-standing position of this Court that appeals from interim custody andaccess orders should be discouraged to avoid the delay and costs associated with such appeals and to encourage the parties to movequickly to a pretrial settlement conference and trial: Hall v Hall, 2011 SKCA 86 at para 1, 337 DLR (4th) 89. This Court will notintervene unless the Chambers judge erred in principle, overlooked or misapprehended relevant evidence or the decision is clearlywrong. [13] Ms.

Russell argues the mobility test as set out by the Supreme Court of Canada in Gordon v Goertz, (SCC),[1996] 2 SCR 27, does not apply to her situation. [14] Gordon v Goertz arose in a factually different context – an application for variation where there was a pre-existing final ordergranting the mother sole custody of the parties’ young child with generous access to the father.

The issue in Gordon v Goertz waswhether the mother’s intended move to another country with the child constituted a change in circumstances as contemplated by s. 17(5)of the Divorce Act, RSC 1985, c 3 (2d Supp), such that a fresh assessment of custody and access was warranted. McLachlin J., as shethen was, writing for the majority, stated at paragraph 18 that the focus of the inquiry is not the interests and rights of the parents but,rather, what is in the best interests of the child “by reference to the material change in circumstances”.

Here there is no pre-existing orderand thus no requirement to establish a material change of circumstance. Rather, the issue before the Chambers judge was one of interimcustody immediately following separation. That said, mobility aside, the principles set out in Gordon v Goertz relating to the bestinterests test are equally applicable to initial applications: J.P. at para 41. [15] As stated in Gordon v Goertz at paragraph 49, each custody case must turn on its own unique facts with the only issue beingthe best interests of the child in the particular circumstances.

To determine what is in the best interests of the child, the court must, asrequired by s. 16(8) of the Divorce Act, have regard to the “condition, means, needs and other circumstances of the child”. Parliamentchose to mandate only two additional considerations, namely that past conduct of a spouse should not be considered unless it is relevantto his or her ability to act as a parent (s. 16(9) of the Divorce Act) and maximum contact. The principle of maximum contact requires thata child have as much contact with each spouse as is consistent with the child’s best interests.

For that purpose, the court shall take intoconsideration the willingness of a spouse seeking custody to facilitate such contact (s. 16(10) of the Divorce Act).[1] [16] Judges have sometimes referred to a “rebuttable presumption” against interim relocation: J.P. at para 42; Ofukany at para 12.This was referred to by the Chambers judge where, after quoting J.P., he stated: Applying the principles set out above, Mr. [sic] Russell is required to rebut the presumption that an interim move will not be permitted ifthe court determines this is a mobility case.

She would be required to establish compelling reasons why such a move would be in the bestinterests of the children. On the evidence filed in this matter, Mr. [sic] Russell is unable to rebut the presumption because there are nocompelling reasons to justify and move away from the locale of the children’s home community. …[2] [17] I have some concerns with the notion of a presumption against relocation on an interim application as neither the Divorce Actnor The Children’s Law Act, 1997 provides for such a presumption. The best interests of the child test entails a balancing of all relevantfactors.

A move by a child from his or her home community is one such factor. Having said that, it is certainly a matter of best practiceor common sense that any relocation, which significantly impacts a child, should be avoided on a temporary basis. It is generally in achild’s best interests that his or her life be impacted as little as possible on an interim basis by the breakdown of the family unit. Parentalseparation accompanied by a reduction in contact with the non-custodial parent and a loss of important supports such as extended family,caregivers, school, friends and activities can be devastating for a child.

Interim orders are meant to be temporary – put in place to giveparents an opportunity to work out a more permanent solution or, failing that, to enable the court to make a final determination of what isin a child’s best interests based on all the relevant evidence. Interim applications do not afford judges an opportunity to see and hear theparents or allow for a full airing of the relevant issues. Evidence is often contradictory and incomplete. Moving a child from his or herhome community on an interim basis may cause unnecessary disturbance to the child who, after trial, may be uprooted again and

returned to that community. Moreover, allowing moves on an interim basis may have the unintended effect of finally determining the parenting issues by establishing a new status quo. That is not to say that a separating parent can never move with a child on an interim basis.

The test is the best interests of the child and each case must be assessed based on its own unique factual context. [ 18 ] Further, as Richards J.A., as he then was, pointed out in Mantyka v Dueck , 2012 SKCA 109 , 399 Sask R 303, the “move first and ask questions later” approach to relocation should not be approved or encouraged: [35] … 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 also Jochems v Jochems , 2013 SKCA 81 at para 33 , 417 Sask R 232. [ 19 ] As pointed out by this Court in J.P. at paragraph 41 , “mobility” (a parent’s desire to relocate with the children) is not a “dominant or overriding issue” to be considered in isolation. Rather, it is but one factor that must be balanced along with all of the other relevant considerations to determine what parenting arrangement is in the best interests of a child. [ 20 ] The Chambers judge recognized this.

He correctly noted that the sole test was the best interests of the children. While the Chambers judge identified mobility as an issue, I am satisfied, reading his decision as a whole, that he treated Ms. Russell’s move as only one factor in assessing the best interests of the children. The Chambers judge may have been led to set out the issues as he did based on the arguments before him. The question, however, was not whether this was a mobility case. As already stated, this was not a Gordon v Goertz situation because there was no prior order. Where Ms.

Russell intended to live with the children on an interim basis would be relevant to the assessment of the children’s best interests, no matter where she chose to live. The location of a child’s residence following separation affects his or her condition, means, needs and other circumstances. It is thus relevant to an assessment of the child’s best interests. This is true whether the child remains in the family home, moves within close proximity to that home or is moved some distance away. Thus, determining whether the case involves “mobility” is an unnecessary exercise. [ 21 ] Ms.

Russell’s choice of residence affected Mr. Russell’s ability to have access to the children. This is so because of the distance between the communities involved and the fact that both children will be in full-time attendance at school. It impacted the time the children would spend on the road and their ability to spend time with their father immediately following school. It necessitated a change of school for the oldest child.

It impacted who would provide childcare and the children’s access to established friends, activities and extended family, particularly the paternal grandfather, who resided next door to them on the family farm. The Chambers judge considered those factors, as well as the relationship the children had with each parent and the ability of the parents to meet the children’s needs. [ 22 ] Ms. Russell contended her situation was similar to what existed in Wolf v Livingstone (4 January 2018) Regina, FLD 429 of 2017 (Sask QB) [ Wolf ], in which a move was allowed on an interim basis.

She posits that the Chambers judge’s refusal to allow the children’s relocation makes her case irreconcilable with Wolf . [ 23 ] I begin by noting that in Wolf the Chambers judge ordered the children be relocated from Swift Current, where the mother had moved with them, to Regina, which was just a few kilometres from the parties’ former home. Regardless, comparing custody cases on a factual basis to determine what order should be made is not the proper approach. [ 24 ] As I have said, the test is the best interests of the child and what is in a child’s best interests will vary from case to case.

Children are different. Their emotional ties and physical needs are different. Their conditions and circumstances are different as are their relationships with their parents. Moreover, parents’ abilities to meet the needs of their children will differ as will their willingness to foster a relationship with the other parent. Determinations of custody involve a balancing of all relevant considerations. What tips the balance in any given case is fact dependent. Accordingly, comparisons are of little use. [ 25 ] Ms.

Russell suggests the fact she was the children’s primary caregiver should have been the governing factor in the Chambers judge’s decision. [ 26 ] The Chambers judge recognized Ms. Russell had been the children’s primary parent, but that fact is not dispositive of who should have interim custody of the children. The primary parent is but one factor to be considered in determining what parenting arrangement is in the best interests of a child.

The importance of a primary parent’s role is impacted by things such as the age of the child, the child’s bond with the other parent and others of significant importance in the child’s life, the personality, character and emotional needs of the child, the child’s physical, psychological, social and economic needs, the willingness of each parent to foster a relationship with the other parent, the need for stability and the existence of other supports in a child’s life such as extended family, childcare providers, friends, schools and activities, as well as each parent’s ability to meet the child’s needs.

Domestic violence and abuse are factors as is maximum contact with both parents. As pointed out by Wilkinson J.A., as she then was, in Gilles v Gilles , 2008 SKCA 97 at para 24 , 311 Sask R 223, 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.” Thus, being a primary parent is not a “trump card” that obliterates all other considerations. [ 27 ] In this case, the Chambers judge found the children were “closely attached” to Mr. Russell. In my view, the Chambers judge properly considered the children’s relationship with both their parents. Moreover, he was cognizant of the fact he was making an interim order, which would be temporary in nature. [ 28 ] Ms.

Russell also contends that allowing the Chambers judge’s decision to stand sets a bad precedent as “ every interim custody case with children between the ages of 4 and 11 will include the same core facts: a school where the children attend, a list of friends at the school, a favourite teacher, and such” (emphasis in original).

[ 29 ] In my view, this argument is without merit. In some cases a child’s school and friends and, by extension, his or her activities, and others of significance in the child’s life, such as a favourite teacher or childcare provider, may be important factors in determining custody. In other cases they may carry little weight. Those factors are, however, matters that comprise a child’s condition, needs, means and other circumstances and, as such, they must be taken into consideration in determining what parenting arrangement is in the child’s best interests. The Chambers judge did not err in considering them.

He did not, as contended by Ms. Russell, give too little credence to her good intentions for the children and pay too much heed to what she describes as the “neighbourhood factors”. [ 30 ] The Chambers judge’s decision was a discretionary one. He correctly identified the best interests of the child as the test to be applied. Although he may have incorrectly referenced Gordon v Goertz , he recognized he was dealing with an interim application immediately following separation and considered all the factors pertaining to custody and access raised by the evidence before him.

In my view, he made no error in principle that negatively impacted the correctness of his ultimate determination of the parenting issue. He did not overlook or misapprehend relevant evidence and his decision was not clearly wrong. As such, this Court has no basis to intervene. V. Conclusion [ 31 ] Ms. Russell’s application to adduce fresh evidence is denied. She shall pay to Mr. Russell the costs of that application, fixed at $500. [ 32 ] Ms. Russell’s appeal is dismissed.

As stated following the hearing of this appeal, that means the Chambers judge’s order is in effect and that the children should be enrolled in school in their home community forthwith as any delay would have a negative impact on the children. Ms. Russell shall pay to Mr. Russell the costs of this appeal, fixed at $1,000. “Ryan-Froslie J.A.” Ryan-Froslie J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Schwann J.A.” Schwann J.A.