M.H. v H.S., 2019 SKCA 122

Court of Appeal for Saskatchewan Docket: CACV3486 Citation: M.H. v H.S. , 2019 SKCA 122 Date: 2019-11-13 Between: M.H. Appellant (Respondent) And H.S. Respondent (Petitioner) Before: Caldwell, Barrington-Foote and Tholl JJ.A. Disposition: Appeal dismissed (orally) Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Barrington-Foote On Appeal From: FLD 343 of 2019, Regina Appeal Heard: November 13, 2019 Counsel: Jonathan Martin for the Appellant David Couture for the Respondent Tholl J.A. I.

Introduction [ 1 ] The parties are the parents of a child, K.H., who was born in December 2014. Their relationship ended some time ago. H.S., the mother, resides in a southeastern Saskatchewan town and M.H., the father, resides in another Saskatchewan city – approximately 100 kilometres apart. They had successfully utilized a shared parenting arrangement for several years, but K.H. reached the age where he was eligible to start kindergarten in September 2019. M.H. and H.S. were unable to agree on parenting and school arrangements in the face of this new reality.

This resulted in a Chambers application by H.S. in which she sought an interim order regarding kindergarten attendance and parenting arrangements. [ 2 ] In an unreported decision, M.H. v H.S. (17 September 2019) Regina, FLD 243 of 2019 (Sask QB) [ Chambers Decision ], the Chambers judge determined K.H. should attend kindergarten in H.S.’s town, with scheduled parenting time for M.H. during the year that K.H. attends kindergarten.

This had the effect of changing the equal shared parenting regime into interim primary residency with H.S. for this period. [ 3 ] M.H. appeals the Chambers Decision and asks this Court to substitute an interim order requiring K.H. to reside primarily with him and attend kindergarten in his city. He asserts the Chambers judge overlooked or misapprehended key evidence, committed an error in principle and rendered a clearly wrong decision.

H.S. submits the Chambers judge did not commit any of the alleged errors and arrived at a discretionary decision that cannot be disturbed on appeal. [ 4 ] At the conclusion of the hearing of the appeal, the appeal was dismissed with reasons to follow. These are those reasons. II. The Chambers decision [ 5 ] The Chambers judge began his analysis by noting there were no issues regarding either parent’s ability to parent K.H. They are both appropriate and committed parents. He found, inter alia , the following: (

a) both parties are well established in their careers in their current communities; (

b) K.H. had attended pre-kindergarten and participated in extra-curricular activities when residing with his mother; (

c) K.H. spends time with his brother during parenting time with his father; (

d) M.H. did not think it was necessary to enroll K.H. in pre-kindergarten or kindergarten. His view on kindergarten has changed, but this change was driven by the Chambers application as opposed to M.H.’s recognition of the value of kindergarten. (

e) K.H. has a community of friends and involvement in his mother’s town where he attended pre-kindergarten and participated in extra-curricular activities. He is enrolled in kindergarten and enjoys a community of friends; (

f) when with the father, there is no community for K.H., with the exception of his brother and grandmother; (

g) the importance of kindergarten is well known; (

h) K.H. should continue to be in the community and enjoy activities he has known in his mother’s town and not be put a year

behind his friends; (

i) it is in K.H.’s best interest to remain in the kindergarten program in his mother’s town, while continuing to maximize the time he spends with his father and brother. [ 6 ] The Chambers judge ordered K.H. to continue kindergarten in his mother’s town. M.H. was ordered to have parenting time with K.H. three weekends per month, extended to commence Thursday and end Monday when the kindergarten

schedule permitted. This has the effect of all of the weekends being three day weekends. Additionally, M.H. has parenting time on one weekday each week from 4:00 p.m. to 7:00 p.m. The Chambers judge stated the following at the conclusion of the Chambers Decision : [15] This decision is to deal with the current situation regarding kindergarten. The parties should proceed to have the matter set down for pre-trial conference and trial, if necessary. That will allow for a final determination of where this child will continue to attend school. III.

Standard of Review [ 7 ] An appellant seeking to overturn an interim parenting order faces a difficult task, as described in Gebert v Wilson , 2015 SKCA 139 , [2016] 5 WWR 656: [ 8 ] As stated by Caldwell J.A. of this Court in Bolan v Bolan , 2013 SKCA 84 at para 9 , 417 Sask R 265 [ Bolan ], “the standard of appellate review in appeals from interim custody orders presents a significant hurdle for an appellant to clear.” This is so because of the high degree of deference accorded to judges making such orders and the long-standing position of this Court that appeals from interim custody and access orders should be discouraged.

Interim orders are temporary in nature, and are only meant to cover a finite period of time until the issues can be resolved either through agreement or by judgment following trial.

In addition, such orders are based on limited and often controverted evidence (see Graham v Tomlinson , 2010 SKCA 101 at para 15 , 324 DLR (4th) 156; Mantyka v Dueck , 2012 SKCA 109 at para 47 , 399 Sask R 303; Jochems v Jochems , 2013 SKCA 53 at para 24 , 414 Sask R 201; and Bolan at para 10 ). [8] This Court will not intervene in interim parenting orders unless the Chambers judge erred in principle, overlooked or misapprehended relevant evidence or the decision is clearly wrong: Russell v Russell , 2018 SKCA 80 at para 12 , 16 RFL (8th) 26 [ Russell ].

The error must be of such a nature that it compels reversal of the order: Graham v Tomlinson , 2010 SKCA 101 at para 15 , 324 DLR (4th) 156. IV. Fresh Evidence Applications [ 9 ] Each party filed an application seeking to have further evidence admitted on the appeal. The evidence consists of a short affidavit from each of the parties. [ 10 ] The test for the admission of fresh evidence on appeal is somewhat flexible when the best interests of a child are at stake: Russell at para 11 and Riel v Riel , 2017 SKCA 74 at paras 14–20 , 99 RFL (7th) 367 [ Riel ].

The prerequisites for the admission of fresh evidence in an appeal that engages the best interests of a child were reiterated in Riel (at para 15 ) and were set out in C.L.B. v J.A.B ., 2016 SKCA 101 at para 22 , 484 Sask R 228: (

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. [ 11 ] None of the evidence sought to be tendered in this matter by either party is potentially decisive as to K.H.’s best interests. As such, both applications to admit fresh evidence are dismissed, without costs. V. Analysis [ 12 ] In his written submissions, M.H. submits the Chambers judge overlooked or misapprehended the evidence and, as a result, arrived at the following erroneous findings of fact (appellant factum): 19. The following palpable and overriding errors are made in this case: (

a) Finding that [the father] does not value kindergarten because of the alternative position he had taken that one way to prolong the status quo would be to have [K.H.] taught kindergarten at home during his weeks with [the father] ( Chambers Decision , paras. 5 and 9); (

b) Finding a community of friends of significant importance in [K.H.’s] life in the absence of evidence of any close friendships out of the group of children [K.H.] has attended activities with … ( Chambers Decision , para. 7); (

c) Based on the above finding, concluding that there was no community for [K.H.] in [the father’s city] like the community in [the mother’s town]. This finding rested on the conclusion that there was something special or irreplaceable about the community and friends in [the mother’s town] ( Chambers Decision , para. 8); (

d) Ignoring evidence of [K.H.’s] closeness to [his brother] and his importance in his life, calling him a "step brother" rather than a half-

brother, and treating him as an "aside" (Chambers Decision, para. 8); (

e) finding without evidence that not enrolling [K.H.] in kindergarten in [the mother’s town] would permanently set him back and put himbehind his friends in [his mother’s town] (Chambers Decision, para. 12); and (

f) ignoring the evidence of [his brother’s] enrollment in French-Immersion Kindergarten and both the benefit to [K.H.] of being in thatprogram as well as the prejudice of being prevented from enrolling in it while in kindergarten or grade 1. [13] H.S. does not accept this characterization of facts set forth by the appellant. She asserts there was ample evidence to support allof the Chambers judge’s finding of key facts. [14] I am not convinced by M.H.’s submissions regarding the alleged misapprehension of evidence.

While there was conflictingevidence regarding the facts challenged by M.H., the Chambers judge had sufficient evidence before him that supported all of his keyfindings. I am unable to find any misapprehension of the evidence regarding M.H.’s commitment to kindergarten, K.H.’s community, theimportance of K.H.’s family and friends, the benefits of the four possible kindergarten arrangements or any other evidence relevant to thechild’s best interests.

There were no misapprehensions of the evidence. [15] M.H. further submits the Chambers judge erred in principle by ignoring the importance of K.H’s brother in his life and thebenefits of French immersion kindergarten when determining his best interests. With regard to K.H.’s brother, M.H. asserts that thisrelationship should have been a much more significant factor in the determination of the child’s best interests. I do not agree there was anerror in this respect.

While a relationship with a sibling is an important element in determining a child’s best interests, the entirety of thechild’s circumstances must be considered. The Chambers judge was well aware of the presence of K.H.’s brother in his life. Hecommented on this relationship in paragraphs 5, 8 and 11 of the Chambers Decision. In paragraph 11 of the Chambers Decision, theChambers judge determined he could balance two important factors – family and community – within an arrangement that was in K.H.’sbest interests.

He found it was important to continue to maximize his contact with his brother, but specifically found this could beaccomplished through the parenting time ordered for M.H. [16] Turning to the benefits of French immersion kindergarten, it is difficult to attach much force to M.H.’s submission that thisschool option created a significant incremental benefit in the circumstances of this specific matter. M.H.’s primary position taken in thecourt below was that K.H. should not attend kindergarten at all during the weeks he was in his care.

This is telling of the additional benefitM.H. himself assigned to French immersion kindergarten as opposed to other options. It is not surprising the Chambers judge did notaddress this option in any detail.

In my view, the Chambers judge was well aware of the evidence regarding the various kindergartenalternatives when considering K.H.’s best interests and took it into account. [17] The Chambers judge balanced all of the issues related to K.H.’s best interests, including his relationship with his brother andthe value of various kindergarten arrangements, and made a discretionary decision regarding K.H.’s best interests. I cannot find an error inprinciple in his treatment of these factors. [18] Lastly, M.H. submits the Chambers judge was clearly wrong.

In support of this argument, he repeats his assertions regardingthe importance of K.H.’s relationship with his brother and the value of French immersion kindergarten as compared to the child’scommunity connections in the mother’s town. Again, I cannot agree. The Chambers judge properly considered and enunciated all of thefactors set out in the evidence, while continuing to focus on K.H.’s best interests. The result was an interim decision regarding parentingand kindergarten that, in my view, is not clearly wrong. [19] A decision regarding a child’s best interests is a discretionary decision.

All of M.H.’s arguments on appeal, while framed inlanguage reflecting the standard of review, simply invite this Court to re-weigh the evidence and substitute its discretion for that of theChamber’s judge. That is something this Court cannot do. [20] Time is of the essence in proceedings that involve the best interests of children, so all participants should do their best to haveparenting disputes move promptly towards resolution: Catholic Children’s Aid Society of Metropolitan Toronto v M.(C.), (SCC), [1994] 2 SCR 165 at 208, and S.T. v J.T., 2019 SKCA 116 at para 87.

Here, the existing order only addresses kindergarten and, ifthe parties do not attempt to move this case along, they will be facing the same dilemma in September 2020 as they did in September2019. The parties should act expeditiously to have their matter set down for pre-trial conference. VI. Conclusion [21] The appeal is dismissed with costs to the respondent, fixed at $2,000, payable forthwith.