A.P. v J.P., 2020 SKCA 134

Court of Appeal for Saskatchewan Docket: CACV3233 Citation: A.P. v J.P. , 2020 SKCA 134 Date: 2020-12-04 Between: A.P. Appellant (Respondent) And J.P. Respondent (Petitioner) Before: Jackson, Schwann and Tholl JJ.A. Disposition: Appeal allowed in part, formal judgment varied Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice Schwann On appeal from: QB FLD 261 of 2014, Saskatoon Appeal heard: October 9, 2020 Counsel: Valerie Watson, Q.C., for the Appellant Jacob Watters for the Respondent Tholl J.A. I.

Introduction [ 1 ] A.P., the appellant, is the mother of I.P. who was born in November of 2009. J.P. is I.P.’s father. The parties separated in 2012 and entered into a consent judgment in 2014 under which A.P. was given primary residency of the child, with J.P. having specified parenting time. Despite this resolution, the parenting arrangements remained chaotic and fraught with problems. Over the next several years, A.P. made numerous unfounded allegations regarding J.P.’s parenting, ranging from hygiene concerns to sexual abuse. Ultimately, J.P. applied to vary the consent order and sought sole custody of I.P.

After a lengthy trial, I.P. was placed in J.P.’s sole custody with only Skype access for A.P. The trial judge provided for a review of A.P.’s parenting time upon the completion of a psychiatric evaluation, with conditions or recommendations set out with regard to the information that A.P. should provide to the psychiatrist. The trial judge awarded costs for the trial of $5,000 plus disbursements to J.P., who was self-represented at trial. [ 2 ] A.P. initially appealed the whole of the judgment. She requested primary residency of I.P. with supervised parenting time for J.P. or, in the alternative, a new trial.

However, in her written and then in her oral submissions, she significantly narrowed the issues in this matter. She no longer seeks primary residency or a new trial. A.P. asserts the trial judge erred by restricting her parenting time to Skype calls, as opposed to in-person parenting time, by making the conditions related to the psychiatric assessment too onerous, and by awarding costs against her.

J.P. submits the trial judge did not err in any of the ways suggested but, as set out more fully below, somewhat supports A.P.’s position with regard to the nature of the conditions placed on the psychiatric evaluation. [ 3 ] For the reasons that follow, I would allow the appeal only to the extent that the formal judgment that was issued must be amended to accurately reflect the conditions that the trial judge determined were required with regard to A.P.’s psychiatric assessment. II. Background [ 4 ] A.P. and J.P. met in university and were married in May of 2008.

I.P. was born in November of 2009 and was, for the most part, a healthy, content child. The marriage was an unhappy one and the parties separated for the final time in May of 2012. I.P. remained residing primarily with her mother. Difficulties regarding J.P.’s parenting time arose immediately after separation, with A.P. initially restricting his parenting time to one hour per week under her constant supervision. In September 2012, an interim order granted J.P. unsupervised parenting time.

Over the next two years, A.P. took I.P. for medical care on numerous occasions alleging a myriad of health issues, which she mainly blamed on J.P. At some point in this same time frame, A.P. began to raise concerns about J.P. having possibly sexually abused I.P.; and, as a result, I.P. was subjected to repeated examinations and assessments without any findings of such concerns.

An investigation by the Ministry of Social Services and the RCMP in 2013 resulted in no charges against J.P. in relation to sexual abuse. [ 5 ] In June of 2013, the Ministry of Social Services apprehended I.P. from her mother’s care and temporarily placed her in J.P.’s care.

I.P. was returned to A.P.’s care within one month when A.P. entered into a parental services agreement and provided her consent to the conditions in an order that was granted on July 16, 2013, pursuant to The Child and Family Services Act , SS 1989-90, c C-7.2 . [ 6 ] From July of 2013 to May of 2014, J.P. had unsupervised parenting time with I.P. for one out of every three weeks. On July 4, 2014, Ball J. granted a consent judgment reflecting an agreement reached between the parties during the pre-trial conference on June 26, 2014.

The consent judgment provided for joint custody, primary residency to A.P., parenting time for J.P. once per month, half of summer, one week at Easter, one week at Christmas, and eight additional unspecified days during the school year that were intended to extend weekends. [ 7 ] Notwithstanding the resolution of all issues in July of 2014, A.P. continued her pattern of disrupting and limiting I.P.’s time with her father.

Almost immediately after the issuance of the consent judgment, A.P. reiterated her allegations that the father’s poor parenting was harming I.P. and resumed taking her for many medical examinations in an attempt to gather evidence to support her

allegations. In addition, A.P. unilaterally determined that weekend , as set out in the consent order, did not include Friday evenings. Shortly thereafter, she further restricted J.P.’s parenting time. In a 15-month period from mid-2014 to late 2015, J.P. only had parenting time twice, consisting of less than 48 hours each time. [ 8 ] In November of 2014, following an enjoyable weekend visit with her father, I.P. was taken to a hotel by her mother who physically examined her and allegedly found her anus and vagina to be red and sore. I.P. had a thumb-sized bruise on her buttock.

A.P. took the child to the Emergency Department in Saskatoon and complained that she had been hurt while in her father’s care. The bruise was observed to be smaller than one centimetre and the rash was diagnosed as vulvitis, which was the same condition I.P. had previously been diagnosed with in 2012. Following protocol, the hospital personnel reported the allegations. A.P. took several steps with regard to attempting to solidify these allegations, including providing a statement to the police, which are detailed in the trial judgment.

In the end, no charges were laid in relation to these allegations, but A.P. continued to deny access to J.P. [ 9 ] As a result of the unilateral termination of his parenting time, J.P. applied for an order enforcing the specific provisions of the consent judgment. A.P. resisted his application, and requested that the consent judgment be set aside or varied so that J.P.’s parenting time would only occur if it was supervised. A viva voce hearing of the application was ordered and commenced on April 28, 2015.

In his decision on the application, rendered on October 9, 2015, Mills J. determined that no sexual assault or interference had occurred during the November 2014 visit. He further determined A.P. had no valid reasons to refuse to comply with the consent judgment and ordered that it be followed. [ 10 ] In October of 2015, workers from the Ministry of Social Services met with A.P. and discussed issues regarding her parenting.

A.P. and the Ministry entered into a series of parental services agreements. [ 11 ] J.P.’s parenting time with his daughter resumed on November 6, 2015, although not without significant resistance from A.P. Immediately upon I.P. returning from the November 6 weekend access with her father, A.P. took her to a doctor and alleged the child had been sexually abused by her father during the visit. The doctor reported the allegations to the police. A.P. withdrew I.P. from school and home-schooled her for the rest of the year without informing J.P. The police interviewed I.P. on November 25th.

Oblivious to the new allegations, J.P. attended her school to pick her up for his November 27 parenting time, but she was not there and he was unable to obtain any information about her whereabouts. On returning home, he learned he was going to be charged with sexually assaulting I.P. on the November 6 weekend. [ 12 ] J.P. pleaded not guilty to the criminal charges and a trial was set for May of 2016. A.P. continued her obstructive behaviour in relation to all aspects of J.P.’s parenting. The criminal trial was conducted from May 25 to 27, 2016, with Whelan J. reserving her decision.

Meanwhile, the Ministry of Social Services remained involved with A.P. and I.P. The Ministry generally had difficulty contacting A.P. and engaging with her. The Ministry retained a psychologist to complete an assessment of A.P. and J.P., which was eventually completed in June of 2016. A.P. repeated many of her earlier allegations to the psychologist. The psychological tests conducted for the report suggested J.P. was a well-rounded, emotionally healthy individual. With regard to those same tests, A.P.’s level of defensiveness was so high that four out of the five tests were incapable of being interpreted.

She had elevated scores on the “Lie Scale” and “Faking Good Index” and had a tendency to blame others. When the Ministry received the report, it informed A.P. that she would be required to receive a referral for a psychiatric referral from her family doctor. [ 13 ] On August 3, 2016, Whelan J. rendered her decision and acquitted J.P. of the criminal charges. After the acquittal, A.P. immediately made herself and the child unavailable to be contacted, fabricating reasons for doing so. Her lawyer withdrew, having been unable to contact her.

The Ministry attempted to call her and attended her home on multiple occasions with no success for several days. J.P. was able to have a Skype call with I.P. on August 8th. A.P. then terminated his Skype access. [ 14 ] After numerous attempts to contact her, the Ministry was finally able to meet with A.P. on August 8, 2016. They signed another parental services agreement, which contained several conditions. One of the conditions required A.P. to complete all her referrals, and the social worker emphasized to her the need for a psychiatric referral.

A.P. attended her family doctor on August 9, 11 and 18, 2016, but she again misrepresented the situation and withheld key facts. As a result, her doctor did not make a referral for a psychiatric assessment. [ 15 ] Having had his parenting time unilaterally terminated once again, J.P. applied to reinstate his access or, alternatively, to change I.P.’s primary residency. The application was directed to trial, with J.P. receiving sole interim decision-making for I.P.’s education and counselling requirements. His interim parenting time was set out in detail for the period leading up to trial.

However, A.P.’s pattern of obstruction, violation of court orders, misuse of the medical system and groundless allegations of sexual abuse continued. [ 16 ] On September 20, 2016, the Ministry apprehended I.P. from A.P.’s care. The trial judge outlined the reasons for the apprehension, and the circumstances surrounding it ( J.P. v A.P. (13 March 2020) Saskatoon, FLD 261 of 2014 (QB) [ Trial Decision ]): [168] On September 20, 2016, the Ministry apprehended the child from the mother, concerned about the child’s emotional well-being, and the mother’s lack of cooperation with the Ministry for nearly a year.

There had been little progress since the Ministry had renewed its involvement with the mother in October 2015, and she was made fully aware of the concerns and of the conditions she would be required to meet. In the Ministry’s view, the mother had failed to carry through with the agreed conditions. On the evidence available to it, it was under a duty to investigate whether the mother required psychiatric support before being able to properly parent the child.

There were objectively reasonable concerns that the child was being coached on what to say, or being exposed to too many adult conversations on the subject of sexual abuse allegations. [169] Like the earlier apprehension in 2013, there was a great deal of hysteria. The Ministry brought police assistance in expectation of resistance. The mother hid with the child in the basement, and eventually had to be restrained before the child could be removed from her. In the child’s presence, the mother repeated a variety of allegations that the father had physically and sexually abused the child.

The child was taken for mental health assessment at Mental Health Outpatient Services. No concerns were uncovered. [ 17 ] Upon apprehension, the Ministry placed I.P. in emergency foster care. After a home assessment and a series of visits, I.P. was placed in J.P.’s care on October 11, 2016. She has remained in his sole care since that date, with the exception of a short period in March of 2017, when she was temporarily removed from his home as a result of more baseless allegations leveled by A.P. She was quickly

returned to his care without conditions or concerns. The child has remained in his care and has thrived. [ 18 ] Until the Trial Decision was released, A.P. had regular Skype visits with I.P. since October 11, 2016, and some in-person, supervised visits. The psychiatric assessment required by the Ministry was conducted in November of 2016. However, A.P. continued her previous pattern and provided inaccurate and incomplete information to Dr. Mela, her psychiatrist. He was unable to complete a full assessment. [ 19 ] There were numerous interim applications and management conferences in this matter.

The trial was finally set to commence on December 12, 2016, but was adjourned. It was further adjourned from the subsequent trial date of April 17, 2017. Both of these adjournments were at A.P.’s request on short notice. The trial finally commenced on September 11, 2017, after the trial judge refused another request by A.P. to adjourn it. Both parties were self-represented at trial. It was conducted intermittently from September 11, 2017, to November 15, 2017. III. Trial Decision [ 20 ] By the time the trial commenced, J.P.’s primary position had shifted from asking that a specific parenting

schedule be set to requesting that the consent judgment be varied to provide him with sole custody. A.P. sought to have the variation application dismissed, except for her request that it be modified to require J.P.’s parenting time be supervised. [ 21 ] The trial judge exhaustively reviewed the evidence and made extensive findings of fact. The above

summary of the background of this matter does not begin to capture all of the evidence and facts set out in the Trial Decision . The Trial Decision meticulously set out the details of A.P.’s persistent efforts to paint J.P. as an incompetent parent who sexually abused his daughter, the extensive involvement of various professionals, the Ministry’s role, I.P.’s numerous unnecessary medical visits and A.P.’s unrelenting interference with J.P.’s parenting. The trial judge also reviewed the various parental attributes of each parent and examined the personal characteristics of the child.

This review of the facts covered well over sixty pages in the trial decision. [ 22 ] The trial judge’s findings are rife with examples of A.P. misrepresenting facts and withholding key information from J.P., the Ministry, an array of professionals and the court, when it suited her. The following excerpt from the Trial Decision , which describes the mother’s reaction to the father’s acquittal in August of 2016, provides a good example of the tenor of the trial judge’s findings of fact in this regard: [150] The mother made herself and the child unavailable.

She claimed afterward that she had been advised by the child’s therapist to get out of town and that she had safety concerns for the child due to the father’s acquittal. This was a rather brazen fabrication on the mother’s part. She attributed other comments to the child’s therapist that had no foundation in fact. Among these, she said the therapist had been highly critical of the [criminal] trial process and of the judgment itself. The therapist had purportedly told her that the child would need to be “glued and patched together” after her brutal trial experience.

She claimed the therapist had also recommended that all Skype calls with the father should cease. [151] This is how the mother operates in order to give her stories a veneer of credibility. It is always “the doctor said this” or “the lawyer said that” or “my therapist told me to do this” or “the child’s therapist advised this …”. However, the child’s therapist was exceedingly careful to restrict her communications with the mother to conveying the dates and times of the child’s appointments, little more. The foregoing were the mother’s opinions, not the opinions of the therapist.

What the therapist did recommend was a sensitive and structured reunification process between father and daughter, but events conspired to prevent that from happening. [ 23 ] The trial judge applied the well-known, two-part test to determine if a variation should be granted. She first examined whether there had been a material change in circumstances. This was readily found to have occurred based on the mother’s extreme conduct, her extensive undermining of J.P.’s parenting and her withholding of his parenting time.

The trial judge then moved on to the second part of the test and considered afresh what parenting arrangements were in I.P.’s best interests. [ 24 ] In considering the child’s best interests, the trial judge described A.P.’s parenting methods as “over the top” (at para 236), with the mother “conspicuously dedicated to the child’s needs and wants” (at para 237).

She found A.P.’s communication with I.P. to be “laced with endearments and brimming with maternal solicitude” (at para 238), but then noted the following: “but this is the same person responsible for subjecting the child to extensive and intrusive medical examinations for ill-conceived motives.

It is an enigma, and one, it seems, that only the psychiatric profession may be capable of resolving”. [ 25 ] The trial judge expressed significant concern about A.P.’s unwillingness to permit J.P. to have a parental relationship with his daughter: [239] The mother’s irredeemable failing is that she will never willingly permit the father to have a meaningful or normal parental role. … She has no sense of the kind of give and take that is required in two-parent families. She needs to have a monopoly over the child’s affections.

What the mother seems incapable of comprehending is that the relationship with the child is not the sole barometer of good parenting. The interaction with the other parent is a significant consideration. Willingness to facilitate access is an important parental attribute, and a material factor in any custody determination. The father has demonstrated that willingness. The mother has demonstrated none, even when court-ordered to do so. Court orders are of little consequence to her. If professional opinion comes into conflict with her entrenched beliefs, it is dismissed.

The mother will simply look for someone, anyone else, who might be persuaded to take up her cause. [240] The circumstances surrounding the sexual abuse allegations highlight these concerns all too well. This case is an unfortunate illustration of the power of complaint, when placed in irresponsible hands. [ 26 ] The trial judge then analyzed the therapeutic, psychological and psychiatric evidence that had been tendered in this matter. She examined the evidence related to the mother and the child.

The trial judge noted the two expert opinions were consistent in their conclusion that further investigation of A.P. was warranted with regard to her mental health. Dr. Mela was one of the experts who testified at the trial. He had conducted a psychiatric assessment of A.P., but she had misrepresented and strategically withheld the information she

provided to him. While unable to reach firm conclusions on the information he had, Dr. Mela strongly suspected A.P. had factitious disorder by proxy, and regardless of a formal diagnosis, recommended psychotherapy given her level of anger, disappointment and stress. The trial judge addressed the contrary evidence from A.P.’s family doctor and most recent counsellor, which she found unconvincing. [ 27 ] A.P. had tendered many hours of recorded video from the Skype access visits with I.P. The trial judge reviewed these voluminous recordings. She found nothing unusual or remarkable in the father’s Skype visits.

She commented extensively on the problems revealed by the recordings of the mother’s Skype visits. After doing so, she concluded as follows regarding A.P.: [270] I am puzzled by the mother’s insistence that I watch the Skype footage. Perhaps she thought I would not. Perhaps the footage says something entirely different to her than it says to me. Whatever the case, it only serves to underscore all the subtle and not so subtle stresses placed on the child, and all the efforts to pry information from her, or to turn relatively routine childhood complaints to the mother’s advantage.

The mother’s unrelenting objective in the Skype sessions was to undermine the child’s ability to settle into her new environment. [ 28 ] The trial judge found A.P. was unwilling to accept the legitimacy of any opinion that did not conform with her own view of what was best for the child.

After further reviewing the evidence regarding the mother’s mental health, the trial judge concluded A.P. would benefit significantly from further assessment and treatment. [ 29 ] While she found J.P. was not perfect, and had not acted correctly in all of the situations he faced, the trial judge found the father’s parental attributes to be appropriate and well-suited for I.P. [ 30 ] The trial judge acknowledged an earlier wish by I.P. to reside with her mother, which was expressed through children’s counsel in the child protection proceedings.

She assessed those wishes against the whole of the evidence and noted it did not dissuade her from her conclusion. The trial judge noted that she was not convinced those vocalized wishes represented the child’s free, voluntary and informed opinion and expressed doubt that those wishes would have remained the same by the date of the trial. [ 31 ] The trial judge concluded it was in I.P.’s best interests to award sole custody to J.P., with sole decision-making authority over all important aspects of her life.

She ordered the father to keep the mother reasonably informed of the child’s status, progress, activities and travel plans. [ 32 ] The issue of A.P.’s ongoing access was then addressed. The trial judge rejected in-person parenting time. She found that such parenting time, even under supervision, was not in I.P.’s best interests and ordered 90 minutes of weekly Skype access. She ordered that the sessions be supervised and recorded.

However, the trial judge determined such access could be reviewed and enlarged or varied once the mother provided a psychiatric assessment to the court confirming that she has undertaken assessment and treatment and that there is no risk to the child in restoring supervised or other access. [ 33 ] Lastly, the trial judge determined whether costs should be awarded to J.P. After referencing Hope v Pylypow , 2015 SKCA 26 , 384 DLR (4th) 255 [ Hope ], and examining the circumstances, she ordered A.P. to pay costs of $5,000 plus disbursements. IV. Issues [ 34 ] A.P. set out several issues in her notice of appeal.

She significantly narrowed those issues in her factum and then even further in her oral submissions. In the end, the grounds of appeal she continues to pursue can be encapsulated as follows: (

a) Did the trial judge err by ordering only Skype access for A.P. instead of ordering in-person parenting time? (

b) Did the trial judge err by including conditions for the psychiatric evaluation that were too onerous? (

c) Did the trial judge err by awarding costs to J.P.? V. Analysis A. A.P.’s parenting time limited to Skype [ 35 ] A.P. submits the trial judge erred by limiting her parenting time to 90 minutes of supervised Skype calls per week and argues the judgment has substantially limited any meaningful contact between mother and child. She contends the evidence established that A.P. was devoted to I.P. and the child was attached to both parents. A.P. argues the trial judge failed to put any weight on the evidence that illustrated the positive aspects of her supervised access visits and, overall, ignored the maximum contact principle. A.P. also takes issue with J.P. being able to determine the Skype

schedule and to supervise this parenting time. J.P. responds by noting that the termination of in-person parenting time was temporary and subject to review. He submits such a suspension of parenting time was fully justified on the evidence in this matter. [ 36 ] The trial judge’s determinations regarding custody and parenting arrangements were discretionary decisions. Such determinations are reviewed on the deferential standard of review as set out in M.H. v A.B. , 2019 SKCA 135 , 36 RFL (8th) 261: [26] The scope of appellate review in custody and access cases is narrow and deferential.

An appellate court may only intervene where there is a material error, a serious misapprehension of the evidence, or an error in law. It is not entitled to intervene simply because it would have made a different decision or balanced the relevant factors differently than the trial judge … . [ 37 ] In applying this standard of review, it is my view that the trial judge did not err in ordering that A.P.’s in-person parenting time be temporarily suspended, limited to Skype access that was scheduled and supervised by J.P., and subject to reinstatement upon review.

[ 38 ] Suspension of in-person parenting time is an unusual remedy that occurs only in rare and exceptional circumstances for a parent who demonstrates a desire to be actively involved with his or her child. It is generally recognized that regular access with the non- custodial parent is in the best interests of a child.

However, this general recognition must yield to the specific factors that affect the best interests of a specific child. [ 39 ] In Moat v Leverington , 2013 SKQB 298 , 428 Sask R 124, Sandomirsky J. described a decision to limit the involvement of one parent in the following terms: [8] Whether the petitioner should be disenfranchised as a custodial parent, at law, is a serious matter.

Where a parent has willingly abrogated his or her parental responsibilities to a child, or, where a parent has continuously acted in a manner which is harmful to a child’s best interests, a court will disenfranchise the faulty parent where it can be concluded that in doing so it would be in the child’s best interests. Although this sentiment was expressed in a different context, the principle is fully applicable to the matter at hand.

If a parent continuously disregards the best interests of a child, the court will take the necessary steps to limit the harm to the child that arises from such conduct: see also S.T. v J.T ., 2019 SKCA 116 , [2020] 6 WWR 55. [ 40 ] In the matter at hand, there was ample evidence to support the trial judge’s conclusion that the in-person access, as it was occurring leading up to trial, was detrimental to I.P. and was contrary to her best interests. The trial judge extensively reviewed all of the evidence, both positive and negative with regard to A.P.’s parental interactions with I.P.

In her view, the evidence overwhelmingly established that A.P.’s in-person interaction with I.P., even with a supervisor, was problematic. A.P. continued to discuss the false allegations of sexual abuse during her supervised access with I.P. and attempted to use those in-person visits to undermine J.P.’s relationship with his daughter.

Based on the record before her, the trial judge’s conclusion that in-person visits were not currently in I.P.’s best interests is a conclusion that was well-grounded in the evidence and within her discretion to make. [ 41 ] It must be remembered that A.P.’s in-person parenting time was only suspended. It was not permanently terminated. The trial judge ordered that it could be reviewed, and possibly reinstated, upon A.P. providing satisfactory evidence of her psychiatric assessment and treatment.

Such a review does not require A.P. to establish a material change in circumstances in order to have in-person parenting time recommence. While A.P.’s parenting time has been temporarily limited in a significant manner, the path to relaxing the restrictions and expanding the scope of her parenting time was clearly laid out by the trial judge and solidly based on the evidence. [ 42 ] Lastly, I can see no error in the trial judge’s determination that J.P. should set the

schedule and determine the supervisor for I.P.’s Skype parenting time. The trial judge was fully aware that some of J.P.’s actions towards A.P. had been inappropriate in the past, and that the relationship between the parents was acrimonious. However, she noted that J.P. had cooperated with Skype access for the year leading up to trial and had taken the initiative in facilitating access. The trial judge found that he had “endeavored to be more than fair and reasonable in dealing with the mother’s persistent complaints and requests” regarding Skype visits (at para 287).

In addition, the trial judge had reviewed numerous hours of Skype recordings from A.P.’s access leading up to trial that demonstrated that her Skype access was not being interfered with and that J.P. was not using the sessions for any purpose other than facilitating I.P.’s time with her mother. There is no merit in the argument that the trial judge erred in the manner as claimed. B. Conditions on psychiatric assessment [ 43 ] The parties are generally in agreement regarding this ground of appeal. A.P. and J.P. agree the psychiatric assessment is necessary.

A.P. submits she is willing to undertake the assessment and any recommended treatment. However, A.P. argues that the conditions placed on the assessment by the trial judge are too onerous. She argues the requirement that the psychiatrist watch the Skype recordings of her parenting time with I.P. effectively prevents her from obtaining the assessment because there are hundreds of hours of such recordings. A.P. also contends the trial judge erred by directing the psychiatrist to review specific material when that determination should be a decision for the psychiatrist to make.

For his part, J.P. takes no issue with an

interpretation of the judgment that permits a psychiatrist to review the material but does not require him or her to do so. [ 44 ] It is important to review exactly what the trial judge determined in relation to the psychiatric assessment. This is set out in the Trial Decision as follows: [284] I am of the view such a report is warranted in the present case, prior to any other supervised or unsupervised access being considered beyond Skype communication.

The mother should arrange for, and undergo, further psychiatric assessment and should provide the entirety of the child’s medical history and records, the Skype session recordings, and a copy of the court decisions, civil and criminal, to the psychiatrist. She must comply with recommended treatment before bringing any application to enlarge or vary access. [ 45 ] At the conclusion of her judgment, the trial judge reduced this portion of the judgment to the following order: [295] In

summary, I make the following orders: … (5) before seeking to enlarge or vary access, the mother shall provide the court a psychiatric assessment satisfactory to the court confirming that she has undertaken assessment and treatment and that there is no risk to the child in restoring supervised or other access … . [ 46 ] On April 18, 2018, the trial judge endorsed “Judgment will issue” on the court file and the judgment issued with the following relevant provisions: 5.

Before seeking to enlarge or vary access, the mother shall provide the court a psychiatric assessment satisfactory to the court confirming that she has undertaken assessment and treatment and that there is no risk to the child in restoring supervised or other access. The mother is to provide to the psychiatrist a copy of all civil and criminal court decisions, the entirety of the child’s medical records and the Skype

session recordings. [47] A.P. takes no issue with providing the civil and criminal court decisions along with the child’s medical records up to the pointshe is in control of such medical records. It is the Skype recordings that she contends are causing a problem. Although there was no freshevidence addressing this issue, she argues that a psychiatrist would interpret the judgment as requiring him or her to review hundreds ofhours of Skype calls, which would be cost prohibitive and prevent A.P. from obtaining the assessment that was ordered.

There is also aconcern that a subsequent judge conducting the review of her access would find a psychiatric report unsatisfactory if it did not review allof these sources of information. [48] In my view, the formal judgment does not require the psychiatrist that assesses A.P. to review the Skype calls or any otherdocuments that A.P. provides. The formal judgment, as it is currently worded, requires her to provide those records. The psychiatrist willexercise his or her professional judgment and decide what information needs to be examined for the purposes of the assessment.

A judgewho subsequently reviews any such report will also be aware, because of this judgment, that the report writer was not required to reviewall of these sources of information as a precondition to the report being satisfactory to that judge.

But, because counsel advised that thewording of the formal judgment has been an impediment in getting the assessment, I will continue in the analysis and observe that theissue can be resolved on a more fundamental basis: the formal judgment, as issued, does not reflect the order made by the trial judge. [49] Paragraph 284 of the Trial Decision contains the trial judge’s recommendations as to what records should be provided to theassessing psychiatrist. That recommendation was not carried forward to the orders made by the trial judge in paragraph 295(5) of the trialjudgment.

Because the trial judge specifically set out the actual wording of the orders she was making, the formal judgment should havereflected that same wording.

As a result, the appeal is allowed to the extent that the formal judgment is amended by removing the words“The mother is to provide to the psychiatrist a copy of all civil and criminal court decisions, the entirety of the child’s medical records andthe Skype session recordings” from paragraph 5 of the formal judgment. [50] Despite this removal of the wording from the formal judgment, A.P. should be aware that if she withholds any informationfrom the assessing psychiatrist that he or she wishes to review, it will likely negatively impact her ability to enlarge or vary her access. C.

Costs awarded at trial [51] The trial judge awarded costs of $5,000 to J.P. plus all proper disbursements for court fees, witness fees and disbursementsprescribed by

Schedule IV “A” of the Tariff of Costs. A.P. argues that the trial judge erred in ordering any costs in this matter because ofthe circumstances of the matter, the fact that both parties were self-represented and because she did not deliberately make the trial moredifficult. As part of this argument, while the trial judge’s adjournment decision was originally set out as a stand-alone ground of appeal onthe basis of a denial of representation, A.P. now contends that the trial judge’s refusal to adjourn the trial for her to get counsel lengthenedand complicated the trial.

She contends she should not be punished with costs for the manner in which she conducted the trial when shewished to have counsel. J.P. asserts he was wholly successful at the trial and was entitled to costs. He submits the trial judge applied theproper principles in determining that he, as a self-represented party, was entitled to costs and such a discretionary decision cannot beinterfered with on appeal. [52] An award of costs is a discretionary decision.

An appellate court will only interfere with such an award if it is demonstrated thatthe trial judge made the decision arbitrarily, misapplied a governing principle, disregarded critical facts or if the costs award is obviouslyunjust: L.R. v V.D.R., 2006 SKCA 39 at para 10, 279 Sask R 306; Phillips Legal Professional Corporation v Vo, 2017 SKCA 58 atpara 150, [2017] 12 WWR 779; and M.D.L. v C.R., 2020 SKCA 44 at para 108. [53] It is well-established that a successful party in a family law proceeding is presumptively entitled to costs: Rule 15-23 of TheCourt of Queen’s Bench Rules; K.R. v J.K., 2018 SKCA 35 at paras 95–100; and Ackerman v Ackerman, 2015 SKQB 113 at paras 25–37,473 Sask R 219.

That presumption includes matters involving parenting decisions: M.L.S. v N.E.D., 2019 SKQB 26 at para 8, 19 RFL(8th) 316 [M.L.S.]. It is similarly clear that a party may be awarded costs even if he or she is self-represented: Hope at paras 49–64.Combining these two principles, it is my view that a successful party in a family law proceeding is not disentitled to an award of costssimply because he or she is self-represented. Such costs should be carefully considered when requested and awarded only whenappropriate.

This principle was applied recently in Argue v Argue, 2019 SKQB 137 at paras 64–77, where Megaw J. assessed total costs of$3,300 against a self-represented litigant, in favour of another self-represented litigant, for a variation application heard in Chambers. [54] In Hope, in the context of a matter that was not a family law proceeding, Richards C.J.S. summarized the principles that a courtshould consider when determining entitlement and quantum of costs to award to a self-represented party: [63] … Going forward, and having regard to the lessons to be learned from cases such as Fong [(1999), (ON CA), 181DLR (4th) 614 (Ont CA)], Kennedy Street [2009 MBCA 22 , [2009] 3 WWR 414] and Dechant [2001 ABCA 81], in particular,the broad framework of analysis in this area for the courts of Saskatchewan should be as follows: (

a) The decision to award costs to a successful lay litigant is discretionary in nature. There are no automatic entitlements in this regard. (

b) In assessing the appropriateness or amount of a costs award, a judge must appreciate the basic purposes of costs: indemnification,encouraging settlement, discouraging and sanctioning inappropriate conduct and, to some extent, access to justice. (

c) A self-represented litigant should not be compensated in relation to time and effort expended on a case which flow from the simple factof being a litigant. I refer here to things like preparing to give evidence or appearing as a witness. All litigants, self-represented or not,must deal with such demands. (

d) If they are awarded, costs given to a self-represented litigant should relate to work done by the litigant himself or herself that wouldotherwise have been done by a lawyer: drafting pleadings, or arguments, conducting a hearing, preparing and delivering an argument, andso forth. (

e) Costs should not be awarded reflexively on the basis of the Tariff of Costs. The full Tariff amount might be a reasonable amount in

some situations but this will likely be unusual. It is obviously not appropriate to, in effect, over-compensate a lay litigant for his or her work and judges must remember that party-and-party costs do not fully indemnify represented litigants for their legal expenses. A measure of caution and considerable flexibility will be required in this regard. (

f) The amount of a costs award must be based on the particular circumstances of the case. Those circumstances include, but may not be limited to: the complexity of the proceeding, the amount and quality of the work done by the self-represented litigant; the significance, monetary or otherwise, of the proceeding; the reasonableness of the self-represented litigants’ position and conduct; and, the other specific considerations referred to in Rule 11-1(4) of The Queen’s Bench Rules . (

g) Judges should guard against overly complex sub-proceedings aimed at determining precisely how much work, and how much time, a self-represented litigant invested in the proceedings. There will necessarily be an element of rough and ready justice to the award of costs in this context.

Experience will no doubt reveal something of the best procedural way to approach this issue. [ 55 ] An additional factor that is relevant to an award of costs in a child custody matter is the effect that such an award may have on a parent’s financial ability to properly care for a child and the consequent influence on the child’s best interests: George v Penner , 2020 SKQB 99 at para 16 ; M.L.S. at paras 45–53 ; Werbicki v Werbicki , 2009 SKQB 373 at para 8 , 342 Sask R 140; and Brill v Brill , 2010 ABCA 358 at para 14 , 87 RFL (6th) 254. [ 56 ] Turning to the matter at hand, the trial judge quoted the principles from Hope and then set out the following analysis regarding entitlement and amount of costs: [291] The father was efficient, well prepared, courteous and punctual.

His arguments were reasoned and reasonable. The complexities and delays were due to the mother’s evasions, machinations, and lack of preparation. On the other side, there is an access to justice consideration, albeit somewhat indirect. Until now, the mother has largely escaped financial sanctions, and has had the benefit of state- funded representation, counselling, assessment, and other outlays on her behalf. The mother is now faced with the expense of securing psychiatric evaluation and treatment if there is to be any hope of more regularized access at a future time.

A cost order should not be so prohibitive as to preclude that objective, which remains the best hope for a healthy mother–child relationship. [292] The father’s request for payment for lost income is untenable. As noted in Cabana v Newfoundland and Labrador , 2016 NLCA 75 , 96 CPC (7th) 113, to compensate on this basis would give primacy to the notion of full compensation as the basis of the cost award.

It does not differentiate between time spent on preparing and presenting the case and other time which would necessarily have been lost in any event by the simple fact, that of being a litigant and witness. [293] In all the circumstances, I conclude it is appropriate to award costs of $5,000 to the father, along with all proper disbursements for fees paid to the court, witness fees and disbursements, as prescribed by

Schedule IV “A” of the Tariff of Costs. These disbursements are to be assessed by the assessment officer in accordance with the procedures set out in

Part 11, Division 2 of The Queen’s Bench Rules and in particular Rule 11-13(4) with respect to the affidavit of disbursements. [ 57 ] The analysis conducted by the trial judge demonstrates she turned her mind to the relevant considerations and exercised her discretion in a manner that was open to her. She noted J.P.’s level of preparation and conduct of the trial as contrasted to A.P.’s methods. I do not agree that A.P. was punished by the costs award for her conduct of the trial and that this conduct would have been avoided if the trial judge had granted an adjournment so she could get counsel.

A.P. had sought adjournments three times on the eve of the three separate trial dates, with only the last adjournment request being denied. The trial judge was aware of these circumstances, but she also knew how A.P. conducted the litigation. I further note that the record reveals A.P. had the benefit of counsel for a portion of the trial, including for the cross-examination of two witnesses and ongoing legal consultation and assistance throughout.

The trial judge was alert to these facts and they are reflected in her decision. [ 58 ] With regard to quantum, the trial judge rejected J.P.’s claim for lost income because full compensation is not the basis for a costs award and much of that time would have been lost by virtue of him being a litigant and witness in the matter. She considered A.P.’s financial resources, including her upcoming expenses for evaluation and treatment, and chose an amount that she considered fair and reasonable in the circumstances.

I observe that the amount she awarded was orders of magnitude less than what could have been awarded under the Tariff of Costs for a seventeen-day trial had J.P. been represented by counsel. [ 59 ] The trial judge critically evaluated all of the factors related to the costs award. There is no room for appellate intervention with regard to either entitlement to costs or the amount of costs. VI.

Conclusion [ 60 ] The matter at hand is similar to the circumstances in N.L. v R.L. , 2008 NBCA 79 , 337 NBR (2d) 197, where Larlee J.A. addressed a trial decision that had completely terminated all contact between mother and child, pending the mother obtaining mental health treatment. The words of Larlee J.A. resonate in this case: [9] The most striking aspect of this case is that the mother bypassed the trial judge’s order that provided a method of dealing with the best interests of the child: a better method than we have at our disposal to deal with such an issue.

The mother did not take advantage of this proposed solution to have the case reviewed and have her contact with the child re-established. She decided instead to appeal the decision to this Court. A.P. has similarly spent significant time and resources pursuing this appeal, rather than addressing the concerns raised by the trial judge. That is unfortunate.

Hopefully, now that this appeal is concluded, A.P. will see the trial judgment as an opportunity to obtain the treatment required so that she can engage in a meaningful and rewarding parenting relationship with her daughter. [ 61 ] The appeal is allowed only to the limited extent of amending the portions of the issued formal judgment as set out above. In all other respects, the appeal is dismissed. J.P. shall have costs of this appeal, fixed in the total amount of $1,500, inclusive of the costs for his

application to lift the stay imposed by Rule 15 of The Court of Appeal Rules . The costs award is somewhat lower than the Tariff of Costs would impose because of the specific circumstances of this matter, as discussed above in my review of the trial judge’s award of costs. In addition, A.P. significantly narrowed her grounds of appeal and was successful in having the wording of the formal judgment, which had been taken out by J.P., amended. “Tholl J.A.” Tholl J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Schwann J.A.” Schwann J.A.