S.T. v J.T., 2019 SKCA 116

Restriction on Publication An order has been made in accordance with s. 26(2) of The Child and Family Services Act prohibiting the publication of any report which discloses the identity of the children who are the subject matter of this proceeding or any information which may identify the children in question. Court of Appeal for Saskatchewan Docket: CACV3380 Citation: S.T. v J.T. , 2019 SKCA 116 Date: 2019-11-08 Between: S.T. Appellant (Petitioner) And J.T. Respondent (Respondent) And Ministry of Social Services Third Party (Third Party) Before: Schwann, Barrington-Foote and Kalmakoff JJ.A.

Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Madam Justice Schwann The Honourable Mr. Justice Kalmakoff On Appeal From: DIV 691 of 2014, Saskatoon Appeal Heard: September 20, 2019 Counsel: James Vogel, Q.C., and Joanne Moser, Q.C., for the Appellant Davin Burlingham for the Respondent No one appearing for the Ministry of Social Services Barrington-Foote J.A. I.

Introduction [ 1 ] In an unreported decision issued January 25, 2019, a judge of the Court of Queen’s Bench [trial judge] granted sole custody and primary residence of the parties’ 10-year-old son and 7-year-old daughter to the respondent, J.T. [Judgment]. That decision would fundamentally change the long-standing custody and primary parenting regime and result in the children moving from their mother’s home in Regina to their father’s home in Saskatoon. S.T., the primary parent since at least June 2014, would have only specified access.

The trial judge also ordered that S.T. pay child support and determined the division of family property. [ 2 ] S.T. appealed the trial judge’s decisions as to parenting, child support and family property. She abandoned her appeal relating to family property as a result of this Court’s denial of her application to adduce fresh evidence. This decision deals with her appeal relating to the remaining issues. [ 3 ] For the reasons that follow, S.T.’s appeal is dismissed. II. Background [ 4 ] S.T. is a primary school teacher who specializes in the treatment of children with autism.

She and the children have lived in Regina since 2014. J.T., who has been a farmer and worked at various jobs, lives in Saskatoon with his new partner and her 12-year-old daughter from a prior relationship. [ 5 ] The parties, who were married in 2005, and both of their children, were born in Ireland and were Irish citizens at the time of trial. The family emigrated to Canada in 2012 at J.T.’s behest. S.T.’s unhappiness with the move quickly became a major source of marital discord. The parties separated in June 2014, when S.T. and the children moved to a shelter in Saskatoon.

Shortly after, S.T. reported to the police that J.T. had inappropriately touched his daughter in 2013 [2013 allegation]. She also reported that J.T. was responsible for the disappearance of his former girlfriend in Ireland [Irish allegations] and that he had drugged, sexually assaulted and threatened to kill S.T. [ 6 ] The 2013 allegation was investigated by the Ministry of Social Services [MSS] and police. No further action was taken. Indeed, J.T. was not aware of that allegation until 2016.

The allegations relating to the assault of and threats to S.T., on the other hand, resulted in criminal charges against J.T. He was tried and acquitted on those charges in October 2015. The Irish allegations had not been

resolved when this action went to trial. [ 7 ] Custody and access have taken an unusual course as a result of allegations against J.T. made by S.T. and the children. S.T. filed a petition pursuant to The Children’s Law Act, 1997 , SS 1997, c C-8.2 , and The Family Maintenance Act, 1997 , SS 1997, c F-6.2 , shortly after the parties separated. She promptly made an interim application for sole custody of the children, a restraining order against J.T. and an order permitting her to return to Ireland with the children [mobility application].

In response, J.T. sought an order for the return of the children and interim joint custody. [ 8 ] The parties’ competing applications were heard July 28, 2014, resulting in an order for joint custody of the children and that their primary residence be with S.T. S.T.’s mobility application was denied. J.T. was granted four hours access every Saturday and Sunday, supervised for the first 90 days, with the right to apply for a review of parenting and access arrangements. The Court also ordered that S.T. was not obliged to tell J.T. where she and the children were living.

In August 2014, S.T. and the children were placed in the Federal Witness Protection Program as a result of the Irish allegations and were moved from Saskatoon to Regina. J.T. continued to live in Saskatoon. On September 26, 2014, J.T.’s supervised parenting time was reduced to three hours each Saturday. [ 9 ] In November 2014, S.T. issued a petition seeking a divorce, sole custody of the children, child support, and division of the family property. J.T. applied for unsupervised access. On July 9, 2015, an order was made to consolidate the divorce action and the action S.T. had commenced in July 2014.

J.T.’s application for unsupervised access was dismissed, in part due to the potential impact of his then still outstanding criminal charges. J.T. appealed that decision to this Court. [ 10 ] Following his acquittal on the criminal charges in October 2015, J.T., undeterred, again applied unsuccessfully for unsupervised access. On December 16, 2015, a Queen’s Bench judge ordered that he have supervised Christmas access. His application for unsupervised access was adjourned.

On January 6, 2016, a Chambers judge decided to again adjourn that application, pending a decision in or the abandonment of J.T.’s appeal to this Court. [ 11 ] As a result, J.T. abandoned his appeal. His application for unsupervised access proceeded and was dismissed on February 5, 2016. The Court found J.T. had not proved a sufficient change in circumstances to call for variation despite his acquittal on the criminal charges, as S.T. continued to assert and intended to prove that he had assaulted and threatened her. [ 12 ] The trial of the family law issues proceeded as scheduled on May 9–13, 2016 [2016 trial].

Judgment was reserved. On the last day of the trial, S.T. consented to an interim order which provided that J.T. would have unsupervised access from 7:00 p.m. Friday to 4:00 p.m. Sunday on alternating weekends. [ 13 ] There would be only three unsupervised visits pursuant to the consent order, in May and June 2016. On June 22, 2016, S.T. reported that her daughter had told her that J.T. had inappropriately touched and exposed himself to her and to the then 10-year-old daughter of his new domestic partner, D.C. She also said her son had told her he was physically and verbally abused by J.T.

She did not claim to have witnessed any inappropriate behaviour. [ 14 ] On June 30, 2016, MSS issued a notice of apprehension of both children. The children’s allegations were investigated by MSS and police. Both alleged victims of sexual assault were interviewed and medically examined. No charges were laid. J.T. applied to reopen the trial with respect to custody and access. That application was finally granted on January 19, 2017.

Matters relating to The Child and Family Services Act , SS 1989-90, c C-7.2 , were consolidated with the custody and access matters and MSS was added as a party. [ 15 ] The reopened trial proceeded from July 4–7, 2017 [2017 trial]. Judgment was again reserved. On July 28, 2017, S.T. consented to an order allowing D.C. and her daughter to attend J.T.’s supervised visits with the parties’ children. On August 1, 2018, an order was granted allowing J.T. unsupervised parenting time for nine days.

On December 18, 2018, an order was made granting him unsupervised access on alternate weekends and during the children’s Christmas break. [ 16 ] As noted above, the Judgment issued on January 25, 2019. The trial judge ordered that J.T. would have sole custody and primary residence of the children. To avoid disrupting the children by moving them abruptly during the school year, he ordered that the transfer of primary parenting would occur July 1, 2019, with generous parenting time to J.T. and counselling for the children to assist with the transition.

That judgment was automatically stayed on the filing of this appeal on February 25, 2019. With one exception, J.T.’s application to lift the stay was denied on May 23, 2019, and the Court ordered the following parenting arrangements pending the disposition of this appeal: (

a) primary residence would remain with S.T.; (

b) J.T. would have unsupervised parenting time every second weekend until the end of August 2019, and on the Father’s Day weekend of June 14–16, 2019, and not on the weekend of June 7, 2019; (

c) shared parenting time on a two-week rotation during the school summer break; and (

d) unsupervised parenting time for J.T. every second weekend commencing September 12, 2019, and specified access during school holidays. [ 17 ] The Court also lifted the stay of the provision that the children receive counselling. [ 18 ] In the result, the parties have had joint custody and S.T. has had primary residence of the children continuously from July 2014 to the present. J.T. had limited supervised access until December 11, 2018, but for three weekends in May and June 2016. He has, since December 18, 2018, had unsupervised parenting time every second weekend and during school vacations. III. Judgment under Appeal

[ 19 ] When the Judgment issued on January 25, 2019, approximately 32 months had passed since the 2016 trial and 19 months since the 2017 trial.

The parenting issues in play at trial were the MSS child protection application pursuant to The Child and Family Services Act, 1997 , the parties’ competing custody applications under the Divorce Act , RSC 1985, c 3 (2d Supp), and, depending on the decision as to primary parenting, S.T.’s mobility application to return to Ireland with the children. [ 20 ] The evidence at both the 2016 trial and the 2017 trial was considered in deciding the parties’ child custody and mobility applications. The evidence presented at the 2016 trial was not applied to the child protection hearing.

MSS took the position the children were in need of protection if the Court found they were sexually or physically abused. It took no position as to parenting arrangements if the Court did not reach that conclusion. [ 21 ] After outlining the evidence of all witnesses in some detail, the trial judge identified and quoted the relevant provisions of the three statutes.

He commented that the competing custody applications were for a final order for custody pursuant to the Divorce Act , but that ss. 8 and 9 of The Children’s Law Act, 1997 “provide guidance to the court when determining the best interests of the children” (at para 429). He correctly noted that “[t]he governing principle in making a custody and access order is in the best interests of the children” (at para 431). [ 22 ] The trial judge then analyzed the parenting issues.

He dealt first (at paras 432–444) with whether the children were in need of protection, noting that MSS relied on the allegations by the parties’ daughter that she had been sexually touched by J.T. during the three visits in May and June 2016. He concluded that the alleged sexual assaults did not occur. He also found the allegation that J.T. had abused his son was not supported by the evidence. In the result, he found neither child was in need of protection. [ 23 ] Having disposed of the protection issue, the trial judge dealt with parenting.

He began by outlining the following legal principles: [445] The governing principle with respect to determining custody and access is the best interests of the children. Both the Divorce Act and The Children’s Law Act, 1997 provide that a court, in determining custody and access, is to consider only the best interests of the children having regard to the children’s condition, means, needs and other circumstances . A parent’s past conduct is not to be considered unless that conduct is relevant to his or her ability to act as a parent.

Further, the court must consider the principle of maximum contact which provides that a child should have as much contact with each parent as is consistent with his or her best interests. Accordingly, the court must address the willingness of each parent to facilitate the children’s contact with the other parent. [446] There is no presumption in favour of the “ Status quo ” in custody disputes. The status quo is merely a factor to be considered in determining the best interests of the child.

The status quo , while an important factor, must be weighed along with all other factors that might affect the best interests of the child. [ 24 ] The trial judge summarized the positions of both parties. He noted that S.T. emphasized she had been the primary parent since birth and particularly since July 2014, and that she continued to allege that J.T. sexually, physically and emotionally abused the children. The trial judge acknowledged the children had been in the primary care of their mother and that J.T. had limited parenting time since July 2014 as a result of the various allegations levied against him.

He rejected S.T.’s evidence that J.T. inappropriately touched his daughter in 2013 and concluded that he had “never inappropriately touched [his daughter] in a sexual manner” (at para 450). [ 25 ] As to the allegations of inappropriate touching in May and June 2016, the trial judge acknowledged that S.T. did not claim to have witnessed inappropriate behaviour, but merely advised MSS and the police of what she had been told by her children. The trial judge dealt at length with S.T.’s claim that she honestly believed her children’s allegations.

He relied on the analysis in Bourque v Janzen , 2007 SKQB 297 [ Bourque ], relating to unfounded allegations of abuse in the context of a custody dispute, and concluded there were three possible explanations for the allegations of sexual abuse: that S.T. had an honest but mistaken belief they were true; that she had made the allegations as a result of “an emotional disturbance”; or that she had made the allegations “knowingly and with the intent to manipulate the course of litigation” (at para 456).

Having rejected the first two explanations, he chose the third: [457] The only explanation remaining is that [S.T.] has embarked on a course of action with the specific goal of limiting or prohibiting [J.T.] from having custody of the children and preventing him from having any meaningful access to them.

This conclusion is bolstered by a consideration of other evidence, all of which is consistent with [S.T.] embarking on a course of action to effect the outcome of the trial. [ 26 ] He then reviewed that other evidence, which related to the timing and nature of S.T.’s allegations – including allegations that J.T. had built an underground bunker due to a paranoid fear of a collapse of the world order, that he was associated with the KKK and that he is a necrophiliac – at some length, and concluded there was “ample evidence to establish that [S.T.] has embarked on a prolonged course of action designed to affect the outcome of these proceedings and drive a wedge between the children and their father ” (at para 478). [ 27 ] The trial judge then addressed the suggestion by S.T.’s counsel that “a stern warning to [S.T.] that continued false allegations of sexual abuse could lead to a change in custody would be sufficient to curtail such behaviour in the future” (at para 479).

In doing so, he identified six principles [six principles]: [481] From a review of the Bourque and T.(K.E.) decisions, … I garner the following principles: 1. there are a range of circumstances that may lead a parent to make unfounded allegations of sexual abuse including; a. allegations are made in the honest but mistaken belief that sexual abuse has occurred; b. allegations of sexual abuse are made knowingly with the intent to seek revenge or manipulate the course of litigation; c. allegations are made as the result of an emotional disturbance of the accuser;

2. the determination by a court that the allegations of abuse are unfounded having been made as

an act of hostility toward the wrongfully accused parent or in an effort to affect the outcome of the litigation, may, in itself, constitute child abuse; 3. where allegations of abuse are rejected by a judge the usual response is to proceed on “best interests” assessment taking into account the accuser’s motive in making the allegation, the reaction of the children to the allegation and whether the accuser can maintain a positive relationship with the child and the other parent ; 4. in the majority of cases where the alleged abuse is determined to be unfounded, the accusing parent continues to have custody with a warning that persisting in the unfounded allegation may result in a variation of custody; 5. in the relatively few cases in which the accuser is suffering from an emotional disturbance or has been motivated by hostility to the wrongfully accused parent or the accuser has set out to attempt to manipulate the course of litigation, the accusing parent may lose custody; 6. in cases where the court is considering varying the child’s primary place of residence from that of the accuser to the home of the wrongfully accused parent, caution must be used to ensure that such a significant change remains in the best interests of the children. [ 28 ] The trial judge then made the following findings of fact, and concluded a stern warning would not be an appropriate remedy: [482] I do not accept [S.T.]’s position that a stern warning would be sufficient to deter her further inappropriate behaviour in the future. [S.T.]’s actions over a prolonged period establish an escalation in the allegations that she has made against [J.T.].

She believes him to be a murderer and a necrophiliac. At the 2016 trial she chose not to provide any evidence of her 2014 allegation that [J.T.] had inappropriately touched [their daughter] in 2013. She withheld evidence relevant to determining custody of the children.

Such deep seated beliefs and behaviours would not be altered by a stern warning. [ 29 ] The trial judge reiterated the need to undertake a best interests analysis, “taking into account the accuser’s motive in making the accusation, the reaction of the children to the false allegations and whether the accuser can maintain a positive relationship with the children and the other parent” (at para 483).

He also reiterated that “[c]aution must be exercised if the court is considering a change in primary residence due to the very significant impact such a decision would have on the children”. [ 30 ] The trial judge highlighted certain factors that weighed in S.T.’s favour in the best interests analysis. He found she was “bright, articulate, and genuinely loves her children”. He noted her new home was close to her old home and close to the children’s schools, and that the children were doing very well in school and participated in various extracurricular activities.

He referred to her continuing employment as a learner resource teacher, and her testimony that her relationship with the children was strong. [ 31 ] The trial judge also referred to the lack of independent evidence of that relationship and as to the relationship between the children and her new partner.

He noted that S.T. wished to return to Ireland notwithstanding the “very good life” she described for her and the children in Saskatchewan. [ 32 ] The trial judge then reached the following conclusions about S.T. and the effect of her actions on the children: [491] [S.T.] has established that she is capable of physically caring for the children, however her actions have had a detrimental effect on the children’s emotional well-being.

Most significantly, the children have been subjected to a prolonged and sustained distorted view of their father and have been denied a meaningful relationship with him. [J.T.]’s parenting time with the children has been primarily supervised visits … The children, particularly [their daughter], have been subjected to interviews during the course of the investigations into alleged sexual abuse. The effect on the children has been significant.

The children are now in need of counselling to assist in repairing the damage done to the relationship with their father. [J.T.] testified that [his son] was intent on making recordings of the 2016 unsupervised visits. Although there is no explanation for [that] behaviour, it is unusual behaviour for a child to engage in such an activity. I suspect that the children, particularly [the son], are experiencing emotional and psychological trauma arising from the conflict between their parents, largely occasioned by [S.T.]’s actions. [ 33 ] The trial judge reached very different conclusions about J.T.

He found that J.T. was capable of understanding the children’s emotional needs and was able and willing to address those needs. He accepted the evidence of D.C., which in his view “established [J.T.] to be a caring and supportive father who consistently made good parenting decisions with respect to his children” (at para 493). He referred to the evidence that J.T. had formed a close relationship with D.C.’s daughter and that J.T.’s children had a good relationship with D.C. [ 34 ] The trial judge addressed the maximum contact principle.

He found that S.T. had “consistently shown a propensity to deny the children any opportunity to have a meaningful relationship with their father”, noting her steadfast desire to return to Ireland despite the fact their father would be in Canada (at para 494). He concluded that if the children were left with S.T., she would not promote any contact between the children and J.T.

He concluded that J.T., on the other hand, would put his animosity aside to allow the children to have a meaningful relationship with their mother. [ 35 ] The trial judge acknowledged that joint custody is generally appropriate when each parent is bonded with the child. He quoted this Court’s decision in Schick v Woodrow , 2012 SKCA 1 , 385 Sask R 153 [ Schick ], where the Court noted that a sole custody order may reduce the noncustodial parent to a passive bystander in their children’s lives.

However, he concluded that S.T.’s animosity toward J.T. and her inability to see him as anything other than evil prevented any possibility of a joint custody order. [ 36 ] The trial judge then held that the children should be placed in J.T.’s primary care. In doing so, he specifically noted that he was “cognizant of the fact that the children have been in [S.T.]’s primary care for the past four years” (at para 498).

He commented that the children “outwardly appear to be doing well in her care as evidenced by their success in school and extra-curricular activities”, but at the expense of forfeiting any meaningful relationship with J.T. He found J.T. was equally capable of meeting the children’s physical needs and better understood their emotional needs, and that he would ensure a good relationship with S.T. and promote maximum contact with her.

He referred to J.T.’s actions during the three unsupervised visits in May and June 2016 in support of his conclusion that J.T. is an intuitive parent despite his limited involvement with the children as a result of his supervised access.

[37] Finally, the trial judge dealt with the relationship between J.T. and his children and the potential disruption resulting from anabrupt change in primary residence. He recognized that the children had become somewhat estranged but saw no reason why J.T. couldnot overcome that.

He concluded counselling was needed to assist the children. [38] In the result, the trial judge ordered that the children would remain in S.T.’s primary care until the end of the school semester inJune 2019, and that during that transition period, J.T. would have unsupervised parenting time every second weekend from Friday at 5:00p.m. to Sunday at 6:00 p.m., extended to include Fridays and Mondays when the children were not required to be in school, and during theFebruary school break and the second half of the Easter break. J.T. was granted primary residence commencing July 1, 2019.

Parentingtime during the school summer vacation would be shared equally in two-week blocks. Commencing September 13, 2019, S.T. would haveparenting time every second weekend, and would have the children half of the time during school vacations. [39] The trial judge ordered that counselling be provided by a registered therapeutic counsellor practising in Saskatoon.

Hedescribed the purpose of the counselling as “to assist the children in transitioning from their mother’s home to their father’s home andassisting the children with any anxiety or trauma arising from the extended conflict between their parents” (at para 514). He ordered thatboth parties were entitled to receive all counselling records or reports and could be involved if the counsellor deemed it beneficial. [40] The trial judge also found, in the alternative, that if he had granted custody to S.T., he would not have granted her mobilityapplication to move with the children to Ireland.

He noted that the Court must consider the factors listed in Gordon v Goertz, (SCC), [1996] 2 SCR 27 [Gordon], adopting the

summary of those factors in Chepil v Chepil, 2014 SKQB 341 at paras 40–41, 458Sask R 289. He concluded that it would not have been in the children’s best interests to relocate to Ireland as S.T. – who sought to be closeto her extended family – had not provided an adequate reason to do so. He noted that her financial situation would not significantlyimprove and that there would be a devastating loss of contact between the children and J.T., both as a result of distance and because S.T.would not make any effort to promote contact. IV. Grounds of Appeal and Standard of Review [41] S.T.’s factum posed the following questions on this appeal: (

a) Did the trial judge err in law by changing custody and primary residence to J.T. instead of ordering that the parties have jointcustody, that the children reside primarily with S.T., and that J.T. have specified access? (

b) Did the trial judge err in law by issuing the Judgment in 2019 based on evidence from 2016 and 2017, without informinghimself of the children’s current circumstances? (

c) Did the trial judge err in law by ordering that the parties be compelled to provide and/or receive information pertaining to thechildren’s education, health and welfare, when the parties had the right to receive that information pursuant to The Children’s Law Act,1997? [42] S.T. also asked the following questions which do not need to be answered in light of the decision that the appeal as to custodyand parenting is denied: (

a) Did the trial judge err in law by ordering that the children be counselled for transition to J.T.’s home, as such a transition is notin their best interests? (

b) Did the trial judge err in law in ordering costs against S.T.? [43] S.T.’s submissions related primarily to the first ground of appeal. Although that ground is cast as relating to an error of law, shealso identified grounds that are better characterized as allegations that the trial judge misapprehended the evidence and committed materialerrors. The specific errors alleged included the following: (

a) The trial judge erred by concluding there was parental alienation based solely on J.T.’s claim that it existed and despite thelack of sufficient evidence to support such a finding, including a lack of expert evidence as to the meaning or presence of parentalalienation. (

b) The trial judge erred by finding that an order for joint custody was impossible. (

c) The trial judge did not consider and properly apply the factors specified in s. 16 of the Divorce Act and s. 8 of The Children’sLaw Act, thereby failing to take account only of the best interests of the children, including by: (

i) placing undue emphasis on S.T.’s past conduct, without properly considering its relevance to S.T.’s ability to parent; (ii) failing to give sufficient weight to the status quo; (iii) failing to adequately consider the limited impact on the children of S.T.’s conduct, by failing to give adequate weight to theevidence the children were doing well and the lack of expert or other evidence that their relationship with J.T. was permanently affected orwas irreparable; (iv) finding that allegations of child sexual abuse were the central theme in this case; (

v) failing to consider the maximum contact principle in relation to the radical reduction of S.T.’s contact with the children; and (vi) failing to consider alternatives to an order changing custody and primary parenting to address S.T.’s conduct.

[44] These grounds must be considered in light of the deferential standard of review on appeals of parenting orders. As CaldwellJ.A. said in Olfert v Olfert, 2013 SKCA 89 at para 17, [2013] 10 WWR 209, the standard of review in family law cases “is a review formaterial error, a serious misapprehension of the evidence, or an error in law; an appellate court cannot overturn the trial decision simplybecause it would have made a different decision or balanced the factors differently”.

See also, for example, Ackerman v Ackerman, 2014SKCA 86 at para 14, [2014] 10 WWR 429 [Ackerman]; and Peterson v Peterson, 2019 SKCA 76 at para 20. As Caldwell J.A. also said,that standard of review was best set out in Van de Perre v Edwards, 2001 SCC 60, [2001] 2 SCR 1014 [Van de Perre].

In this case, thefollowing comments by Bastarache J. in Van de Perre, which emphasize the need for an appellate court to find error before intervening,bear particular emphasis: 13 … an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in theappreciation of the facts. Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the uniquecircumstances of each child is the hallmark of the process.

This discretion vested in the trial judge enables a balanced evaluation of thebest interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. … 15 … appellate review requires an indication of a material error. If there is an indication that the trial judge did not consider relevantfactors or evidence, this might indicate that he did not properly weigh all of the factors.

In such a case, an appellate court may review theevidence proffered at trial to determine if the trial judge ignored or misdirected himself with respect to relevant evidence. This being said,I repeat that omissions in the reasons will not necessarily mean that the appellate court has jurisdiction to review the evidence heard attrial. As stated in Van Mol (Guardian ad Litem of) v.

Ashmore (1999), 1999 BCCA 6 , 168 D.L.R. (4th) 637 (B.C.C.A.), leave toappeal refused [2000] 1 S.C.R. vi, an omission is only a material error if it gives rise to the reasoned belief that the trial judge must haveforgotten, ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate courtcannot reconsider the evidence. V. Analysis A. Did the trial judge err in law by changing custody and primary residence toJ.T. instead of ordering that the parties have joint custody, that the children resideprimarily with S.T., and that J.T. have specified access? 1.

Unfounded Allegations and Best Interests: Legal Framework [45] It is fair to say an order that fundamentally changes long-standing custody and primary parenting arrangements as a result ofgroundless allegations of sexual, physical or emotional abuse, absent expert evidence of serious negative impacts on the children, is not acommon outcome.

That is so despite the fact those long-standing parenting arrangements – together with the very limited parenting timefor the wrongfully accused parent that are often the flip side of the coin – have resulted from the misconduct of the accuser, who may beseen as having been “rewarded” for that misconduct. As Prowse J. (as she then was) nicely put the matter, commenting on the position ofa father who was the victim of such misconduct in T.(K.E.) v P.(I.H.), 1991 CarswellBC 2671 (WL) (SC) [T.(K.E.)]: [76] It is unquestionably unfair to Mr.

T. that he has been deprived of his children for the past year by circumstances beyond hiscontrol. It is also unfair that the very person whose actions placed him in this position is to be granted custody of the children. But, unlikeother proceedings where the Court seeks to do justice between the parties, and in so doing attempts to be both just and fair, custodyproceedings have a completely different focus, namely, the best interests of the children. It is not the parties’ best interests which govern,but rather the interests of the children. Fairness to the parents is a secondary consideration.

It is not that the Court is not sympathetic to theapparent injustice that arises to a parent such as Mr. T. in these circumstances; it is simply that the Court cannot allow sympathy for theparent to interfere with the best interests of the children. [46] This passage reflects the principle that a court, as the trial judge said, “in determining custody and access, is to consider onlythe best interests of the children having regard to the children’s condition, means, needs and other circumstances” (at para 445).

For thatreason, and as the trial judge also said, “[a] parent’s past conduct is not to be considered unless that conduct is relevant to his or her abilityto act as a parent”. By the same token, parental conduct must be considered if it is relevant to his or her ability to act as a parent.

Just asparenting arrangements must not be changed to punish parental misconduct, they must be changed if to do so is in the best interests of thechild. [47] The trial judge relied on Bourque – which referred with approval to and quoted extensively from S.(K.) v S.(D.), 2003NLSCUFC 20 [S.(K.)], and T.(K.E.) – in identifying six principles (see para 27 above) that apply where, as he found in this case,unfounded allegations of sexual abuse are a “central feature” of the case.

Although I would not adopt his formulation of these sixprinciples verbatim, there is much to recommend it, and it did not result in an error in this case. [48] In his first principle, the trial judge adopted the three potential explanations for unfounded allegations of abuse described in S.(K.). On a similar note, T.(K.E.) contrasted a report based on an honest belief rather than a baseless and vindictive desire to attack the partyaccused, or to destroy their relationship with the children.

Regardless of the exact language used, identifying why the accuser made orpromoted false allegations is an important consideration. The point is not to punish parental wrongdoing.

Rather, there is an obviousrelationship between the intentions of the parent making or promoting the allegations, parenting ability, and the best interests of the child.Further, the three categories of “intent” described in S.(K.) and by the trial judge, while not a comprehensive list, will often apply andprovided a useful screen on the facts of this case. [49] The trial judge’s second principle also mirrors S.(K.), which pointed out that judges have found that making unfoundedallegations may in itself constitute child abuse.

In T.(K.E.), Prowse J. expressed the same fundamental idea as to the meaning of intentionalallegations in the context of that case:

[70] If I were satisfied that Ms. P. had manufactured these allegations of abuse, or had consciously encouraged or coached the childrento say that they had been abused for whatever reason, I would have no hesitation in saying that she would not be a fit person to havecustody of the children. For such a finding would be tantamount to saying that she was prepared to sacrifice the mental and emotionalwell-being of the children for her own purposes, whatever those purposes may have been. [50] Substantially the same views have been expressed by many courts, in this and similar circumstances.

A striking exampleis Huckerby v Paquet, 2014 CarswellSask 899 (WL) (QB) [Huckerby], where Wilkinson J. offered the following blunt comments inrelation to a parent who had alienated her children from their father: [236] Excluding an otherwise capable parent from a relationship with their children and exploiting emotionally vulnerable children forselfish or improper purposes is a corruption of parental authority and a violation of the trust obligations inherent in familial relationships.It is behaviour that falls well below the minimal standard of parental care that will be tolerated by our society, if one might borrow thewords of Baynton J, in Saskatchewan (Minister of Social Services) v.

E.(S.), (SK KB), [1992] 5 W.W.R. 289, 41 R.F.L.(3d) 405 (Sask. Q.B.). [51] I agree that knowingly making or promoting false allegations of child abuse, whatever the reason, may itself constitute childabuse, and demonstrate that the accuser is prepared to sacrifice the mental and emotional well-being of his or her children for his or herown purposes. The question of whether and to what extent parental misconduct of this kind – inherently abhorrent as it is – should becharacterized as abuse turns on the facts. [52] The term “abuse”, of course, is not the issue.

The issue is what the parent alleged, why, to whom, in what manner, in whatcontext, for how long, and with what effect, and how these and other facts relating to the allegations are relevant to that parent’s ability toparent in all the circumstances. It must also be kept in mind that unfounded allegations of sexual abuse are more than just a means ofpreventing the wronged parent from having parenting time.

Such allegations have the potential to lay waste to the accused person’s lifeand relationship with their children in a manner that destroys the possibility of a healthy relationship ever being established. [53] That said, unfounded allegations of sexual or other abuse do not demand a particular result. That is so due to the nature of thebest interests analysis. As McLachlin J. (as she then was) said in Gordon at paragraph 20, “[t]he multitude of factors that may impinge onthe child’s best interest make a measure of indeterminacy inevitable.

A more precise test would risk sacrificing the child’s best interests toexpediency and certainty”. [54] A change in primary parenting will be necessary in some cases. More often, the court will be able to craft an order based on amenu which includes terms such as counselling for the children, compensatory and generous parenting time for the wronged parent,temporarily cutting off contact between the children and the accuser, ongoing supervision by the court, or a stern warning of the kindproposed by appellant’s counsel. Every case is unique.

As Ryan-Froslie J.A. emphasized in Ackerman: [48] … Sometimes trial judges are faced with impossible situations and they must craft a parenting regime that they know will not beperfect but best addresses the child’s needs and interests. In exercising their discretion they should not be arbitrarily limited to certaintypes of orders because in other cases judges have found the presence or absence of certain things, such as effective communication, was adeciding factor for them. Resolving custody issues requires a balancing of factors to determine the best interests of the child.

What thosefactors are and how they will be weighed will vary greatly depending on the circumstances of each case. It is for this reason that trying todetermine custody based on a review of “similar” cases is a questionable practice. [55] The third principle suggested by the trial judge is that a best interests analysis is “the usual response” when allegations are“rejected”. That language was used in Flannigan v Murphy, 1985 CarswellOnt 1923 (WL) (SC), which was cited in S.(K.). With respect, abest interests analysis should not be the “usual” response.

The best interests of the child are the only question in every custody and accesscase and must always drive the analysis. Further, while the three factors referred to by the trial judge in the third principle – the accuser’smotive in making the allegation, the reaction of the children to the allegation, and whether the accuser can maintain a positive relationshipwith the child and the other parent – will often be key issues when considering the impact of false allegations, others may be equallyimportant.

For the reasons explored below, I do not take the trial judge to have suggested or to have proceeded otherwise. [56] As to the three remaining principles adopted by the trial judge, they identify legitimate issues. A warning to the accuser todesist or lose custody is not uncommon if the accuser retains custody. A parent who makes unfounded allegations is more likely to losecustody if their misconduct was the result of hostility or an attempt to manipulate litigation than if they were honestly mistaken.

Thesignificance of “an emotional disturbance” – which I take to refer to mental illness – will depend on the nature of that illness, including thelikelihood it will continue, recur, respond to treatment, or result in bad parenting in the future. The trial judge’s exhortation that cautionmust be used to ensure that varying primary residence remains in the child’s best interests is a reminder that unfounded allegations ofsexual assault are not a trump card. They are a form of parental misconduct that may be relevant to parenting ability. In some cases, theyare very important and in other cases, less so. 2.

Analysis: Unfounded Allegations and Best Interests [57] The trial judge’s analysis confirms that he applied these principles. He found that none of the allegations of sexual assault andverbal and physical abuse levelled by S.T. or her children were true. He did not, as S.T. submits, erroneously find that S.T. alleged J.T.had assaulted and abused both their children and D.C.’s daughter in May and June 2016.

Rather, he found that S.T. had reported herchildren’s allegations not in the honest but mistaken belief they were true, but as part of “a prolonged course of action designed to affectthe outcome of these proceedings and drive a wedge between the children and their father” (at para 478). That conclusion was certainlyopen to him based on the evidence. Neither direct coaching nor direct allegations by the parent are necessary elements to arrive at afinding of parental misconduct in the context of false allegations of this kind.

A parent may promote their cause through the use of moresubtle tools. [58] Further, and importantly, the trial judge found that S.T. could not and would not change her deep-seated beliefs about J.T. andthe resulting behaviours, even if she was warned that continued false allegations could lead to a change in custody. That key conclusion

bears directly on S.T.’s parenting ability and the children’s long-term best interests. [ 59 ] Having reached these conclusions, the trial judge went on to conduct a best interests analysis, referring again to the three questions identified in his “third principle” and the need to exercise caution to ensure a change in primary residence was in the children’s best interests.

He specifically considered the alternative of a warning, and found it wanting. [ 60 ] In my respectful opinion, the Judgment demonstrates that the trial judge understood and grappled with the only issue, being the best interests of the children having regard to their condition, means, needs and other circumstances. He cited the correct statutory provisions. His

summary statement of the law, while brief, was unobjectionable. Although he dealt at length with S.T.’s and the children’s allegations against J.T. – including mentioning her unproven assertion that she believes him to be a murderer and necrophiliac – that does not demonstrate that he allowed that factor to dictate the result or failed to consider other relevant factors. [ 61 ] To the contrary, the Judgment demonstrates that the trial judge considered the other relevant factors. He referred to the fact that S.T. had been the primary parent since at least 2014 and that J.T. had very limited supervised access.

He considered and contrasted the parenting skills of the parties. He correctly summarized and expressly considered the maximum contact principle, with particular and understandable attention not only to S.T.’s past behaviour, but to what he found S.T.’s deeply entrenched beliefs and behaviours said about the future. He noted that the children were established and successful at school and in extracurricular activities, and discussed the evidence relating to the quality of their relationships with J.T., S.T., D.C., D.C.’s daughter, and S.T.’s new partner.

He described the children’s characteristics and needs. [ 62 ] The trial judge also recognized that the children were “somewhat estranged” from J.T. and that his son needed to bond with him. However, he concluded that both this issue as well as the risk that the change in parenting arrangements and residence – and thus to the status quo and in the primary parent – would be unduly disruptive to the children could be addressed by counselling and a delayed move. [ 63 ] In my view, this approach does not disclose an error in principle.

The decision in A.(A.) v A.(S.N.) , 2007 BCCA 363 , 243 BCAC 301 [ A.(A.) ], is instructive. In that case the parties, who had never cohabited, were the father and mother of a ten-year old girl. The father had visited the child at her mother’s home since birth but had no access for one year before trial other than in supervised clinical situations. The child had been manipulated by her intransigent and determined mother to join in a campaign of vengeance toward her father, and now refused to see him. [ 64 ] The trial judge nonetheless refused to order a change in custody to the father.

The British Columbia Court of Appeal explained that decision as follows: [25] The trial judge found it impossible to predict whether M would survive psychologically the “experiment” of changing custody in the only manner that would be available given Ms. A.’s “intransigence and determination”. Certainly, he noted, great damage would be done to M if the attempt failed or if she were unable to cope with the trauma of the “forcible rupture of her relationship with her mother and grandmother”. (Para. 85.) Considering that Ms.

A. was not amenable to treatment and that she had “undermined and sabotaged” the attempts made during the course of the trial to re-establish the relationship between M and her father, the trial judge continued: The court must focus carefully on M.’s best interests. The probable future damage to M. by leaving her in her mother’s care must be balanced against the danger to her of forcible removal from the strongest parental connections she has. I am cognizant of the inability of the court to control and manage the chaotic day-to-day results of a forcible removal of a child from a close parental bond.

I conclude that the forcible removal of M. from her mother’s and her grandmother’s care has a high likelihood of failure, either because M. will psychologically buckle under the enormous strain or because she will successfully resist re-integration with her father. Considering all of the circumstances, I cannot find that it would be in M.’s best interest to be forcibly removed from her mother’s care. [At paras. 87-8.] In the result, he ordered that sole custody and guardianship of M be granted to Ms. A., that the child attend regular counselling sessions until reaching age 18, and that Mr.

A. have access only if M “voluntarily expresses the desire to have him exercise access.” [ 65 ] The Court of Appeal commented that “the trial judge chose to leave M in a situation that he said would be detrimental to her in the long run and indeed had ‘already been detrimental to her’” (at para 26). It noted that the trial judge “found that this damage … was preferable to making the ‘fundamental change’ that Dr. Krywaniuk had stated was necessary” and had “deferred to a ‘highly manipulative’ and ‘intransigent’ parent who would clearly never permit her child to have any sort of relationship with her father”.

It was the Court’s opinion that in doing so, the trial judge had failed to take account of the long-term best interests of the child: [27] We are of the view that in so concluding, the trial judge erred in law. We agree with counsel for the appellant that the trial judge wrongly focused on the likely difficulties of a change in custody — which the only evidence on the subject indicates will be short-term and not “devastating” — and failed to give paramountcy to M.’s long-term interests.

Instead, damage which is long-term and almost certain was preferred over what may be a risk, but a risk that seems necessary if M is to have a chance to develop normally in her adolescent years. As Ms. Label argued, it was a contradiction in terms, and legal error, for the trial judge to state that M will be damaged by continuing in her mother’s custody, but to order that she remain in exactly that situation.

The obligation of the Court to make the order it determines best represents the child’s interests cannot be ousted by the insistence of an intransigent parent who is “blind” to her child’s interests. (Emphasis in original) [ 66 ] I agree with this reasoning. Stability is a very important consideration in determining parenting arrangements. However, like any factor, it is not determinative. Short-term disruption, and an acceptable level of uncertainty about long-term impacts, will sometimes be a necessary price to pay where maintaining the status quo will be detrimental to the child.

Although there are certainly differences between A.(A.) and this case, there are also important similarities on the facts, and between the reasoning in A.(A.) and that employed by the trial judge.

[67] S.T. argued that the trial judge failed to consider some of the factors he was required to consider by s. 16 of the Divorce Act ands. 8 of The Children’s Law Act, 1997. She suggested that the trial judge should have taken the approach demonstrated by the reasons in K.(S.) v K.(R.), 2015 SKQB 235, 479 Sask R 94 [K.(S.)]. In that case, Tholl J. (as he then was) methodically considered the factors specifiedin s. 8(

a) of The Children’s Law Act, 1997, and also took account of the principles specified in Gordon, as the case had certain featuresakin to a mobility case. His reasons are very clear, thorough and transparent. [68] However, just as reasons need not refer to every item of evidence, they need not take the form of those in K.(S.). The failure toexpressly refer to each of the factors listed in the legislation does not demonstrate in and of itself that a trial judge has erred by failing toconsider relevant factors. To find that it does would confuse style with substance.

The following passage from Van de Perre bearsrepeating: 15 … If there is an indication that the trial judge did not consider relevant factors or evidence, this might indicate that he did notproperly weigh all of the factors. In such a case, an appellate court may review the evidence proffered at trial to determine if the trialjudge ignored or misdirected himself with respect to relevant evidence. This being said, I repeat that omissions in the reasons will notnecessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian ad Litemof) v.

Ashmore (1999), 1999 BCCA 6 , 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused [2000] 1 S.C.R. vi, an omissionis only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidencein a way that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence. Here, I have no such reasoned belief. [69] S.T. pointed to specific alleged shortcomings in the Judgment. She submitted the trial judge failed to give sufficient weight tothe status quo.

The Judgment confirms that the trial judge referred to and took account of the status quo. This factor was, among otherthings, a key factor in his decision to provide for a lengthy transition. The correct approach to the status quo was confirmed by Ryan-Froslie J.A. in Ackerman: [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. (Emphasis in original) This statement of the law was recently affirmed in K.R. v J.K., 2018 SKCA 35 at para 69. [70] Dukart v Quantrill (Jones), 2015 SKCA 138, 472 Sask R 97, also cited this passage, and demonstrates it can be an error to failto consider the significance of a long-standing parenting arrangement.

However, as the Court said in Van de Perre, custody and accessdecisions are inherently a matter of discretion. Absent an error within the meaning of the standard of review, weight is a matter for thetrial judge. I am not persuaded the trial judge erred by failing to accord sufficient weight to the status quo, or to the fact S.T. had long beenthe primary parent. [71] I am of the same mind as to the argument that the trial judge failed to consider the maximum contact principle in relation toS.T. Again, the trial judge correctly described and expressly dealt with the application of the maximum contact principle.

He explainedwhy he concluded that a change in primary parenting was the only means to ensure maximum contact with both parents to the extentconsistent with the best interests of the children. [72] Further, given the circumstances as a whole, including but not limited to the fact the children will – absent a move by S.T. toSaskatoon – live in a different city than their mother, the amount of parenting time granted to S.T. does not give rise to a reasoned beliefthat there was an error on this account.

I note that while S.T. suggested her parenting time was at the very low end of the scale, she did notask in the alternative that it be varied. [73] S.T. also took issue with the trial judge’s statement that sexual assault allegations were the central theme in this case. Given thefocus on allegations of sexual assault at the second week of trial – which dominated the closing submissions by S.T.’s trial counsel – thatstatement, while arguably something of an overstatement, is comprehensible.

Further, to the extent S.T. means this statement demonstratesthat the trial judge failed to take proper account of other relevant factors because he was unduly focused on allegations of sexual assault, Ifind her argument unpersuasive. This statement by the trial judge must be considered in the context of the Judgment as a whole. [74] On a related note, I do not agree that the trial judge erred by placing undue emphasis on S.T.’s past conduct, without properlyconsidering its relevance to her parenting ability.

The trial judge expressly referred to the principle that past conduct is not relevant absentthat connection. Although he stopped short of expressly finding that S.T. was guilty of child abuse, he drew the link between his findingsas to S.T.’s deeply entrenched beliefs and behaviour, the negative effect of her conduct on the children, and what these factors portendedfor the future. [75] In my view, it is readily apparent those conclusions – which connect conduct and parenting ability – were central to hisdecision.

I note his conclusion that S.T.’s views meant she could not change her ways is also an important distinguishing factor betweenthis case and decisions cited by S.T., including Bourque; Lauzon v Lauzon, 2005 SKQB 145; and S.(R.M.) v M.(P.J.), 2007 SKCA 121, 302 Sask R 146, all of which were referred to at length in S.T.’s factum. [76] S.T. also argued that the trial judge did not consider the limited impact of S.T.’s conduct on the children and on theirrelationship with J.T., and the prospect that relationship could be salvaged.

On a related note, she submitted that the trial judge failed toconsider alternatives to a change in custody and primary parenting to address her conduct. With respect, the trial judge expressly addressedthe impact of S.T.’s conduct on the children and on their relationship with J.T. He recognized that they were succeeding at school and intheir extracurricular activities, but also found that both the children and their relationship with J.T. had been negatively impacted.Although he concluded that J.T. should be able to rebuild that relationship, he also concluded that would only occur with a change in

primary parenting and custody. [ 77 ] I find no error of law, misapprehension of the evidence or material error in this reasoning. The trial judge was obliged to consider whether something short of a change in custody and primary parenting would be in the best interests of the children. I am satisfied he did so, and not only in relation to a potential warning. He was not obliged to list and methodically reject all other options. 3.

Alienation [ 78 ] S.T. also took the position that the trial judge erred by concluding there was parental alienation despite a lack of sufficient evidence to support such a finding, including a lack of expert evidence. With respect, I disagree. The trial judge did not say S.T. had succeeded in alienating the children. He adverted to the issue and stated only that S.T.’s relocation to Ireland “would provide an even greater opportunity to alienate the children from [J.T.]” (at para 522).

He found that the children were somewhat estranged from J.T., which is a finding of a different sort. [ 79 ] Further, and even if the Judgment is taken as having found alienation in some sense of that word, I do not agree that expert evidence was required before such a finding could be made. S.T. referred to the decision in M.L.S. v N.E.D. , 2017 SKQB 183 [ M.L.S. ], in support of the proposition expert evidence is required. Although M.L.S . includes a useful and nuanced discussion of alienation, it does not stand for that proposition. [ 80 ] A finding of parental alienation should not be lightly made.

A court should attend to the fact that alienation is different than estrangement. As Goebel J. noted in M.L.S. : [181] ... just because children resist contact with one parent does not necessarily mean that they are alienated, nor does it mean that they have been the victims of alienating behaviour by the aligned parent. It is certainly possible for a child to demonstrate a sincere preference for one parent over the other. Even where a child refuses to have contact with a parent, it does not automatically follow that the aligned parent is actively engaging in alienating behaviour.

There may be a number of reasons as to why a child is resisting contact, all of which must be carefully considered. [ 81 ] It is arguable that Williamson v Williamson , 2016 BCCA 87 , 395 DLR (4th) 510, may be interpreted as authority for the proposition that expert evidence is required as to the existence of alienation and as to the appropriate response by the court (see paras 39– 48). However, I do not read the decision as stating an invariable rule.

Regardless, it is my opinion the better approach – particularly given the imprecise and variable use of the term “alienation” – is that adopted by the Alberta Court of Appeal in V.M.B. v K.R.B. , 2014 ABCA 334 : [16] The appellant challenges the finding of alienation, but that finding of fact is supported by the record. There is no rule of law that a finding of alienation can only be made based on expert evidence. The “best interests of the child” and whether one parent will “facilitate contact” are largely based on findings of fact.

Trial judges are entitled to come to conclusions on those issues based on the evidence on the record. [ 82 ] On that basis, expert evidence is sometimes but is not invariably required to determine whether alienation has occurred and what response is in the best interests of the child. 4.

Sole Custody [ 83 ] Dealing finally with the allegation that the trial judge erred by finding an order for joint custody was impossible, I note the following comments by Smith J.A. in Schick as to key considerations in awarding custody: [25] … In my view, even where one parent has been designated the parent of primary residence, 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.

There is significant risk that a parent who is prevented from playing such a role and becomes a passive bystander in the child’s life will eventually drift away from on-going involvement in the child’s life. These considerations favour an order for joint custody in the absence of some reason relevant to the best interest of the child to the contrary.

Examples of reasons to the contrary might include an insurmountable inability of the parents to communicate sufficiently well to be able to make important and necessary decisions regarding the child, or evidence of indifference or of inappropriate or abusive behaviour on the part of the parent who does not have primary care of the child. No such reasons were cited or are evidence in this case. [ 84 ] The trial judge cited this passage. In dealing with custody, he referred to S.T.’s animosity to J.T. and her inability to see him as anything but evil.

I understand those comments in the context of the Judgment as a whole to mean that he concluded, as a result of S.T.’s beliefs and behaviour, that the parties would be unable to communicate effectively to make important decisions. The trial judge’s order relating to parenting exchanges and communication supports that

interpretation. He noted that neither party wished to have any direct communication with the other. He issued a restraining order that neither party attend within 100 meters of the other except for the purpose of exchanging the children, when they would stay at least 10 meters apart. He ordered that they have no direct communication of any kind, and that all communications be through legal counsel and by written electronic or other written communication relating to the children.

He advised both parties to maintain a record of their communications. [ 85 ] Based on these facts and the principles reflected in Schick , I am unable to find a material error in the decision to award sole custody to J.T. B. Did the trial judge err in law by issuing the Judgment in 2019 based on evidence from 2016 and 2017, without informing himself of the children’s current circumstances?

[86] S.T. submitted in her factum that the trial judge erred by issuing the Judgment based on trial evidence which was led beginning32 months before and ending 19 months before the date of the Judgment. She argued that the passage of this much time created anevidentiary vacuum and thus an error of law, as there was “institutional delay” which affected the best interests of the children. Shepointed out that the length of time between trial and the date of the Judgment was a substantial part of the life of the children and thatchildren grow and develop.

She noted the lack of evidence as to whether J.T. had received his parenting time since the date of trial. [87] As S.T. noted, L’Heureux-Dubé J. commented in Catholic Children’s Aid Society of Metropolitan Toronto v M.(C.), (SCC), [1994] 2 SCR 165, “time is of the essence in proceedings concerning the welfare of children” (at 208). Although thatcomment was made in relation to a status review in a child protection case and must be understood in context, there is no doubt that delayswhich may have a significant negative impact on the children should be avoided in any case relating to custody and access.

Thatimperative should shape the conduct of counsel and all other justice system participants, to the extent possible in our sometimes woefullyunder-resourced justice system. Reserved judgments issued after the time reasonably required for the judge to decide the case are anelement of that problem.

Triage, interim remedies, and interim reasons with full reasons to follow are commonly-used tools in the judicialtool kit that can be of assistance. [88] S.T. appealed by analogy to R v Jordan, 2016 SCC 27, [2016] 1 SCR 631 [Jordan], referring in particular to the relevance ofinstitutional delay in determining whether the s. 11(

b) Charter rights of an accused have been infringed. Counsel did not suggest that theJordan framework applies to civil or family law matters, quite apart from the continued debate as to the proper treatment of judicialdecision-making as an aspect of delay in a criminal context: see, for example, R v K.G.K., 2019 MBCA 9, 373 CCC (3d) 1. Nor didcounsel allege that there had been a breach of S.T.’s or the children’s s. 7 Charter rights. [89] It is clear that factors relevant to the best interests analysis could have changed between the time of trial and the date of theJudgment.

S.T. submitted that for that reason, the trial judge should have asked for the parties to provide further evidence and, as he failedto do so, there should be a new trial. However, I do not agree the trial judge had the responsibility to take that step in the circumstances ofthis case. If S.T. had evidence of developments that had occurred since the trial that she believed would materially change the bestinterests analysis, she could have applied to again reopen the trial: see, for example, F.A. v S.K., 2018 ABPC 276 at para 101.

Althoughtrial judges must exercise their discretion to reopen trials “sparingly and with the greatest care”, they may do so if the new evidence wouldprobably have changed the result and could not have been obtained before trial with the exercise of reasonable diligence: Scott v Vanston,2016 SKCA 75, [2016] 9 WWR 256 [Scott]. [90] Further, there is authority for the proposition that the decision in 671122 Ontario Limited v Sagaz Industries Canada Inc., 2001SCC 59, [2001] 2 SCR 983, opens the door to modifications to the Scott test.

Justice Frankel adopted that approach in Hansra v Hansra,2017 BCCA 199, 413 DLR (4th) 451: [59] In Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670at para. 20, 391 D.L.R. (4th) 374, which involved an application under theOntario Rules of Civil Procedure, to reopen a case and lead new evidence after the trial court’s formal order had been affirmed on appeal,Mr. Justice Lauwers stated that the test in Sagaz goes beyond the two-stage test in Scott, and “includes considerations of finality, theapparent cogency of the evidence, delay, fairness and prejudice”.

Those additional factors are, in my view, relevant to determiningwhether it would be in the interests of justice to allow a matter to be reopened. This line of authority, which has not yet been considered in Saskatchewan, may be of particular interest in parenting cases. [91] S.H. v New Brunswick (Minister of Social Development), 2013 NBCA 35, 406 NBR (2d) 242 [S.H.], is of particular interest inrelation to the potential to reopen a trial as a result of delay. In S.H., the Minister had applied for guardianship. The trial commenced inApril 2011 and concluded in December 2011.

In late 2012, the mother contacted the Chief Justice of the Court asking him to intercede, asthe judgment had not yet issued. As a result, the trial judge invited the parties to submit further evidence. A further hearing was held inDecember 2012. However, the trial judge refused to hear evidence of events that occurred after the conclusion of the trial. The decisionfinally issued in January 2013. [92] The New Brunswick Court of Appeal reversed the trial judge and remitted the matter for a new hearing based on currentevidence. S.H. was a child protection application.

The legislation required the Court to dispose of the application within 30 days unless itexplained why exceptional circumstances required a delay. The Judicature Act, RSNB 1973, c J-2, also required that a judge of the Courtof Queen’s Bench deliver his or her judgment within six months of the hearing.

These provisions were central to the Court’s analysis.However, the following analysis in S.H. identifies interests that may be of equal concern in a custody case: [21] While a delay, by itself, may not deprive the court of jurisdiction or invalidate a judgment rendered long after the end of trial, thelength of any delay is a relevant consideration in determining a party’s request to adduce additional evidence.

This is particularly so where,as here, the legislative scheme requires an early resolution of the matter, not only because of its importance for those involved, but alsobecause of the need to make timely decisions on fundamental rights on the basis of current information.

This is where Noble J. erred.While he recognized his “inordinate” (para. 15) delay in rendering a decision, calling it “far beyond a reasonable period” (para. 5), heerred in refusing a request that he consider up-to-date evidence on the circumstances of the children and of the parties. [22] Between the end of trial and the date Noble J. rendered his decision, changes had occurred in the lives of the children involved andtheir parents.

The decision to deny the request to receive new evidence is of particular importance in this case as much of the evidence thejudge had to rely on to form the basis of his decision was stale, even at the time of the hearing.

It was crucial, in order to determine thebest interests of the children, for Noble J. to be provided with current and relevant information regarding their needs and status. … [26] Although Noble J. did not lose jurisdiction as a result of the delay he occasioned, he was, as a result of it, required to give seriousconsideration to any subsequent request, from any of the parties, for leave to adduce current relevant evidence. That was not done. Thejudge was more preoccupied with avoiding further delay than with determining the best interests of the children.

Noble J. overlooked theneed to weigh the new evidence respecting their best interests, including any changes that occurred during the time his decision languishedin reserve. As a result, the parties were deprived of their right to have the guardianship application determined on the basis of their current

situation. Instead, they got a decision based on evidence tendered over a year earlier. In addition, as counsel for the children pointed out,the protracted delay and violations of the Family Services Act and of the Judicature Act, shook “the confidence of the litigants [...] in theadministration of justice.” [93] In my view, the trial judge did not commit an error of law by deciding on the basis of the evidence led at trial.

In thecircumstances of this case, he was entitled – absent an application to reopen – to proceed on the basis of that evidence and on the basisthat matters had continued as might have been expected at the conclusion of the trial. [94] I would finally note that S.T. also had another option. She could have applied to lead new evidence before this Court, as she didin relation to the division of family property.

Her failure to do so is particularly important given this Court’s approach to such applications.When asked why no such application had been made, counsel for S.T. suggested that the Court is reluctant to grant them. Although freshevidence is not permitted as a matter of course, the law on this point reflects this Court’s constant attention to the best interests of thechild.

In B.L. v Saskatchewan (Social Services), 2012 SKCA 38, [2012] 12 WWR 468 [B.L.], Ottenbreit J.A. summarized the Court’sapproach: [69] This Court has released two decisions which reflect the flexible approach to admission of further evidence enunciatedin C.M. See Redshaw v. Redshaw (1985), (SK CA), 41 Sask.

R. 141 (C.A.) and J.L.L. (Re), 2002 SKCA 78, 27 R.F.L.(5th) 337. [70] Given the foregoing, C.M. is the controlling authority in Saskatchewan on CFSA matters respecting the threshold for admissibilityof further evidence. [71] The test in C.M. may be summarized as follows: Further evidence adduced pursuant to s. 63(4) of the CFSA may be admitted if: (

a) The evidence could not have been adduced before; (

b) The evidence is highly relevant in that it enables the court to make a determination on an accurate picture of the situation at hand; (

c) The evidence is potentially decisive as to the child’s best interest; and (

d) The evidence is credible. The overarching principle, however, is that a court has all the necessary authority to receive further evidence in the best interests of thechild. [95] Although B.L. was a child protection case, this “somewhat more flexible approach to the introduction of fresh evidence has alsobeen applied in cases involving the best interests of a child in the context of custody and access proceedings”: Băcić v Ivakić, 2017 SKCA23 at para 24, 409 DLR (4th) 571.

If S.T. had evidence that matters had changed, particularly in the period after the Judgment issued, in amanner that might meet this test, she could have applied to lead fresh evidence. Having failed to do so, her submissions as to the effect ofdelay on the best interests of the children were purely theoretical. In those circumstances, it would not be appropriate for this Court toorder a new trial. C.

Did the trial judge err in law by ordering that the parties be compelled toprovide and/or receive information pertaining to the children’s education, health andwelfare, when the parties had the right to receive that information pursuant to TheChildren’s Law Act, 1997? [96] The Children’s Law Act, 1997 provides as follows: 9(2) Unless otherwise ordered by the court, a parent who is granted access to a child has the same right as the custodial parent to makeinquiries and be given information concerning the health, education and welfare of the child. [97] The Divorce Act contains a provision to the same effect, which would apply in this case: 16(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to begiven information, as to the health, education and welfare of the child. [98] The trial judge made the following order relating to access to information about the children (at para 513): … [S.T.] shall be entitled to receive all third party information respecting the children including medical, dental, school records andinformation regarding extracurricular activities and schedules. [99] It is not clear, as S.T. submits, that this order is narrower than the statutory provisions.

Even if it is, the order does not purportto limit her rights pursuant to s. 16(5) of the Divorce Act. Section 16(5) and the order can stand together. The trial judge did not err bymaking this order. VI. Conclusion [100] For these reasons, I have concluded that S.T.’s appeal must be dismissed. J.T. will have his costs of the appeal in the usual way.

As there was mixed success in the applications to adduce fresh evidence and in relation to the inclusion of the decision in the appeal book which found J.T. not guilty of assaulting and threatening S.T., there will be no costs on that account. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.