T.B.S. v S.J.B, 2020 SKCA 93

Court of Appeal for Saskatchewan Docket: CACV3452 Citation: T.B.S. v S.J.B , 2020 SKCA 93 Date: 2020-08-05 Between: T.B.S. Appellant (Person of Sufficient Interest) And S.J.B. Respondent (Petitioner) And J.E.R.B. Respondent (Respondent) Before: Ottenbreit, Barrington-Foote and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Barrington-Foote On appeal from: 2019 SKQB 174 , Moose Jaw Appeal heard: June 10, 2020 Counsel: Foster Weisgerber, Q.C., for T.B.S. David Flett for J.E.R.B.

S.J.B. acting on her own behalf Tholl J.A. I. Introduction [ 1 ] S.J.B. and J.E.R.B. are the parents of two children. They separated in 2015 and, in 2016, entered into a consent judgment placing the children in the sole custody of J.E.R.B. Despite the formal custody arrangements, the children resided primarily with their paternal grandmother, T.B.S. In January 2018, S.J.B. became aware that J.E.R.B. had been incarcerated for serious criminal offences. She brought an application seeking to vary the consent order and sought sole custody and primary residency of the children.

T.B.S. was opposed to the application so she applied to be named as a person of sufficient interest and sought to have the children placed in her care. At the conclusion of the trial, the trial judge determined it was in the children’s best interests to be placed in the sole custody of S.J.B.: S.B. v J.B. , 2019 SKQB 174 [ Trial Decision ]. [ 2 ] T.B.S. has appealed the Trial Decision and asserts the trial judge erred in his analysis of the factors related to the children’s best interests.

Specifically, T.B.S. argues the trial judge placed insufficient emphasis on the factors set out in s. 8 of The Children’s Law Act, 1997 , SS 1997, c C-8.2 [ CLA ], and treated them as merely thresholds that S.J.B. needed to cross in order to obtain custody. She also contends he did not place proper weight on the status quo, failed to give adequate weight to the fact that T.B.S. had been the primary parent for years and did not meaningfully consider the impact of the children moving to a different city.

T.B.S. further asserts the trial judge did not give proper consideration to S.J.B.’s shortcomings as a parent and placed undue weight on the fact that S.J.B. is the biological mother. J.E.R.B. was separately represented on the appeal and adopted T.B.S.’s positions on each issue. S.J.B. opposed each ground of appeal and asserts deference is owed to the trial judge’s determinations. [ 3 ] For the reasons that follow, it is my view that the appeal should be dismissed. II. Background [ 4 ] S.J.B. and J.E.R.B. began living together in 2011 when S.J.B. was 17 years old and J.E.R.B. was 19 years old.

They have two children. M.O.B. was born in 2012 and M.K.B. was born in 2015. S.J.B. and J.E.R.B. married in July 2015. These young parents had difficulties with lifestyle choices and substance use and struggled with parenting. The children spent a great deal of time in the care of T.B.S. [ 5 ] S.J.B. and J.E.R.B. separated in November 2015 and S.J.B. moved to another city where her extended family lived. The children and J.E.R.B. continued living in their original city with T.B.S.

On January 29, 2016, Schwann J. (as she then was) granted a consent judgment [Consent Judgment] that, among other things, gave sole custody and primary residency of the children to J.E.R.B. and provided six days per month of parenting time for S.J.B. In reality, the children continued to reside with T.B.S. and she was their primary parent. [ 6 ] Shortly after moving, S.J.B. began residing with her current common law partner. She quickly obtained and has maintained full-time employment as a continuing care aide. S.J.B. ceased using illicit drugs and settled into a stable lifestyle.

From 2016 to 2018, she continued to have regular parenting time with the children, but it was significantly less time than that set out in the Consent Judgment.

[ 7 ] T.B.S. is married and lives with her husband. She is in her late forties and is in good health. T.B.S. is retired but she has an interest in several businesses and is financially stable. She has been intimately involved in the care of each child since their births. There has never been any question about T.B.S.’s ability to provide the children with a good and loving home and she has done so for many years. [ 8 ] In early 2018, S.J.B. became aware that J.E.R.B. had been incarcerated for serious criminal offences.

As a result, she applied to vary the Consent Judgment and have the children placed in her sole custody. T.B.S. opposed the application. She applied to be named as a person of sufficient interest in relation to the children, pursuant to s. 6 of the CLA , and for an order that the children continue to reside primarily with her. The applications were heard by a Chambers judge in the Court of Queen’s Bench.

The Chambers judge issued an interim order naming T.B.S. as a person of sufficient interest and ordered that the children remain in her primary care with specified parenting time for S.J.B. ( S.B. v J.B. (15 May 2018) Moose Jaw, FLD No 58 of 2015 (Sask QB)). The applications were directed to trial for a final determination. III. Decision at Trial [ 9 ] The trial commenced on June 18, 2019, and concluded on July 3, 2019. A court-appointed custody and access assessor testified as a court witness. S.J.B. testified and called her parents, her sister, her common law partner and several co-workers as witnesses.

J.E.R.B. participated by video conference from the penitentiary. He testified, called his brother-in-law as a witness and supported his mother’s position. T.B.S. testified and called her daughter as an additional witness. [ 10 ] The trial judge made extensive findings of fact, which will be discussed as necessary below. [ 11 ] None of the parties challenged S.J.B.’s assertion that there had been a material change in circumstances, which permitted the trial judge to consider varying the Consent Judgment.

The trial judge determined the father’s incarceration, the mother’s improved situation and the reality of the parenting arrangements were sufficient to constitute a material change of circumstances. [ 12 ] All the parties acknowledged T.B.S. was a person of sufficient interest in relation to the children.

Relying on s. 6 of the CLA and D.L.C. v G.E.S ., 2006 SKCA 79 , 270 DLR (4th) 597, the trial judge determined T.B.S. would be named as a person of sufficient interest. [ 13 ] The trial judge canvassed Saskatchewan caselaw that had examined the best interests of a child in the context of a custody dispute between a biological parent and a person of sufficient interest. He considered Hendricks v Swan , 2007 SKQB 36 , [2007] 5 WWR 740 [ Hendricks ]; Hayes v Moyer , 2011 SKCA 56 , 371 Sask R 250 [ Hayes ]; S.A.L. v.

K.H. , 2011 SKQB 397 , 384 Sask R 263 [ S.A.L. ]; Haygarth v Martel , 2012 SKQB 439 , 410 Sask R 96 [ Haygarth ]; and A.J.R. v M.R.A. , 2013 SKQB 223 , 422 Sask R 151 [ A.J.R. ]. After considering these cases, he made the following conclusion: [100] On the basis of the foregoing, I conclude the paramount concern in determining custody is to attempt to determine that which is in the best interests of the children. In situations like those in this case, the biological parent does not get a presumption of entitlement to custody over a party of sufficient interest.

Rather, that factor is one to be considered in determining the best interests of the children. All things being equal, it is reasonable to conclude the biological parent would be considered for custody. [ 14 ] He then moved on to examine each of the considerations for determining the best interests of a child found in s. 8 of the CLA . After analyzing the facts in relation to each issue, he determined the following: (

a) the nature of the relationships with the children was equivalent as between S.J.B. and T.B.S.; (

b) both parties have appropriate homes for the children; (

c) the children have no health concerns or other needs that cannot be met by S.J.B. or T.B.S.; (

d) the wishes of the children are not a factor in this specific matter; (

e) S.J.B. and T.B.S. both have capacity to act as a legal custodian for these children; and (

f) while T.B.S. has plans for the children’s post-secondary education, given the children’s young age, this had no current impact with respect to the decision at hand. [ 15 ] The trial judge considered the status quo, the fact the children had been in T.B.S.’s care for years and the disruption to the children in moving cities. He concluded as follows in relation to these issues: [140] Which then all brings us to the children’s relationship with the grandmother, and whether the status quo arrangement is such as to warrant refusal to change the current custodial arrangement.

The children are ensconced in their lives in [her city]. They are part of the fabric of the grandmother’s life, both familial and activity wise. They attend on the great-grandmother to bake cookies, amongst other things. They see their aunt … and her children daily. They have their school … . They have friends through school and their activities. They also, with the grandmother’s encouragement and arrangement, participate in community events. The grandmother was anxious to point out in her testimony that they walk in the annual Pride parade together. [141] The children appear to have a normal life … .

They are doing those things expected of children their age. They are young, but they have been doing their activities for their short lives. [142] The mother testified the children have friends in [her city] in the immediate area of their home. She, together with her parents and sister, confirmed the family is engaged in and involved with the children when they are on parenting time … . They have activities … while not organized …, they are activities nevertheless.

[143] Were these children older, it would likely be much more difficult to separate them from their present status quo. However, these children are young. … At these ages, it cannot be suggested, on the state of the evidence presented at trial, they are so intertwined in their community that there is risk to them by separating them from it. [144] I do not determine the status quo is such as to warrant a refusal to change the parenting arrangement.

Rather, due to the youth of these children, and their involvement with the mother …, particularly over the last year, they will be able to comfortably re-establish themselves in the mother’s community. [ 16 ] The trial judge then concluded his assessment of the best interests of the children with the following determinations: [147] In all of the circumstances, I find each of these houses could properly provide for these children.

I find each of these homes could provide the love, care, and stability, required to allow these children to mature, grow, and thrive. [148] Upon a consideration of all of the foregoing, I determine the parental relationship is an important factor here to be considered. The welfare of the children does not warrant setting aside the mother’s biological connection to these children.

As recognized by Ryan-Froslie, J.A. this relationship is important and should not be lightly set aside. [149] On balance, I determine the biological mother’s impact tips the scales towards granting her custody and primary residence of the children. The situation between the homes is equally in the best interests of the children. The children are able to equally thrive as between the homes.

The status quo of these children, at their young ages, is not something which tips the scale in favour of the grandmother. [150] The children appear to have connected well with the mother and the mother is now connected with the children. The last period in excess of a year, and longer, given the mother’s improved situation, has seen the mother exercise regular parenting time with the children. The children have been regularly spending time with the mother, and they have been involved with her extended family.

By all accounts, the relationship between the mother and the children has been positive and effective. [151] In the result, I determine the mother shall receive custody of the children and their primary residence shall be with the mother. [ 17 ] To accomplish the change in parenting arrangements, the trial judge ordered a brief period of transition. He determined T.B.S. should continue to have frequent and regular parenting time with the children and set out a specific

schedule that permits the children to spend every second weekend and one half of all school holidays with their grandmother. IV. Issues and Standard of review [ 18 ] While T.B.S. raised eight grounds of appeal in her notice of appeal, her grounds of appeal can be combined into the following issues: (

a) Did the trial judge err in assessing the factors specified in s. 8 of the CLA by treating them as minimum requirements that S.J.B. merely had to meet in order to be equivalent to T.B.S. when considering the best interests of the children? (

b) Did the trial judge err by failing to consider S.J.B.’s shortcomings and conduct? (

c) Did the trial judge err by placing insufficient weight on the status quo and T.B.S.’s status as the primary caregiver and psychological parent? (

d) Did the trial judge err by overlooking the children’s connection to their community and speculating as to the ease with which they could integrate into a new community? (

e) Did the trial judge err by placing undue emphasis on S.J.B.’s status as the biological parent? [ 19 ] The scope of review in child custody cases is narrow and deferential: S.T. v. J.T ., 2019 SKCA 116 at para 44 , [2020] 6 WWR 55; A.L. v. M.L ., 2019 SKCA 61 at para 17 , 29 RFL (8th) 89; A.O. v. T.E. , 2016 SKCA 148 at paras 69–70 , 88 RFL (7th) 34 [ A.O. ]; and Ackerman v Ackerman , 2014 SKCA 86 at para 14 , [2014] 10 WWR 429 [ Ackerman ]. An appellate court can only intervene where there has been a material error, a serious misapprehension of the evidence or an error in law. V. Analysis A.

The trial judge’s treatment of the factors under s. 8 of the CLA [ 20 ] T.B.S. argues that the evidence established she was far superior in many of the categories under s. 8 of the CLA . She asserts the trial judge erred by treating the factors in s. 8 as a minimum requirement as opposed to using the factors to compare the two proposed parenting arrangements in the context of the children’s best interests. T.B.S. submits the trial judge treated each factor under s. 8 as a threshold; and, because S.J.B. crossed that threshold, he determined the factors to be equivalent between the two parties.

J.E.R.B. adopts her position. S.J.B. submits the trial judge committed no such error. [ 21 ]

Section 8 of the CLA is as follows: Conditions for custody order 8 In making, varying or rescinding an order for custody of a child, the court shall: (

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

(

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

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

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

c) make no presumption and draw no inference as between parents that one parent should be preferred over the other on the basis of the person’s status as a father or mother. [ 22 ]

Section 8 (

a) of the CLA contains a non-exhaustive list of factors that guide a trial judge in determining the best interests of a child when parenting arrangements are in dispute: B.B. v E.B ., 2020 SKQB 56 at para 18 . T.B.S. is correct that the

section is not simply a list that is to be graded on a pass–fail basis. On the other hand, it is also not the formulation of a math problem or a score-keeping system. It is not a recipe to be assessed only by examining its ingredients and not the final product: A.O. at para 136 .

The assessment of all of the factors that influence a child’s best interests is a difficult task that is undertaken by a trial judge through considering every factor related to a child’s best interests, assigning the weight that is appropriate in the circumstances and determining the appropriate parenting arrangements on the basis of the cumulative effect of all of the factors. It is a highly discretionary process and decision. If, as asserted by T.B.S., the trial judge simply treated each factor as an on–off switch, transforming the best interests test into a fitness test, that would constitute an error of law.

However, I do not agree that he did so. [ 23 ] T.B.S. submitted that the factors from s. 8 of the CLA clearly favoured her as a parent. She focused on three of those factors in oral argument: (

a) s. 8(a)(i) – the quality of the relationship with the children; (

b) s. 8(a)(iv) – the capacity of the parties to act as legal custodian; and (

c) s. 8(a)(vi) – the plans for the future of the children. T.B.S. asserts the trial judge made numerous factual findings regarding the s. 8 factors that significantly favoured her, but then went on to conclude the factors were equivalent as between the two parties.

She submits this represents an error in law because that equivalency could only be found if each factor was treated as a minimum threshold that merely needed to be crossed. [ 24 ] Turning first to the quality of the relationships, the trial judge set out extensive findings of fact regarding the parties’ circumstances, the children’s needs and characteristics and the extended families. He found many facts that indicated T.B.S. has a high- quality relationship with the children.

She had been their primary caregiver for most of their lives and was found to have been “intimately involved in their care virtually from the time of their births” (at para 51). The trial judge further found “it is apparent they have become a focus of her life” (at para 128). The high-quality nature of this relationship was uncontroverted and never in question. [ 25 ] The trial judge also found many facts that indicated S.J.B. had a high-quality relationship with the children.

While S.J.B. had provided some of the children’s care prior to the separation in 2015, the parents’ partying lifestyle had led to the children being primarily cared for by their grandmother. Post-separation, S.J.B. had used less than one-half of her parenting time from 2016 to 2018. She had consistently exercised all of her parenting time after the interim order was granted in 2018. The trial judge heard extensive evidence from several witnesses that described the children’s more recent interactions with S.J.B.

Although he disregarded the bulk of the custody and access assessor’s opinion, the trial judge relied on her assessment that “the mother and the grandmother both have a loving and caring relationship with these children” (at para 119).

On the basis of all of the evidence, he determined the children have a loving bond with their mother, are connected to her, are excited to see her, spend their time in a normal family way during her parenting time, and the relationship is positive and effective. [ 26 ] After examining all of these factors, the trial judge found “the nature of the relationships to be equivalent” (at para 122). There is no indication the trial judge considered this factor as a pass–fail test. This alleged error of law is not present here.

The trial judge comprehensively considered the evidence and then determined that, while the relationships were very different, particularly from a quantity standpoint, there was a rough equivalency in the quality of the relationships. I cannot conclude he misapprehended the evidence or made a material error in doing so. [ 27 ] Turning to the trial judge’s assessment of capacity to act as a custodian, the trial judge did not state whether he found either party to have more capacity than the other.

However, in addressing this issue, he thoroughly examined the facts related to parenting capacity and provided cogent reasons. T.B.S.’s capacity was never questioned and was encapsulated in the fact-finding regarding her parenting of the children. The trial judge spent a good deal of time considering S.J.B.’s capacity, given his finding that she had historically engaged in a lifestyle that involved partying, drugs and a lower commitment to parenting. He concluded she did not have the capacity to parent in 2015. He then proceeded to carefully evaluate the evidence to determine if that situation had changed.

In this regard, the trial judge found as follows: [102] … As well, the mother’s situation has improved completely since the granting of that judgment. She is in a different, better place, in

her life. She has improved both her personal situation and her financial situation. … [109] I also determine whatever was going on with the mother historically, is just that, history. The events relayed of the mother’s behaviour dated back almost ten years. Her involvement with partying and drug use dates back to, perhaps, 2011 and her high school years. What transpired with the mother and father, prior to separation, is now between four and seven years old.

People grow and mature, and that is to be recognized and considered by the court. … [116] With respect to what is going on now in the mother’s life, the evidence given by her, which was uncontradicted in any respect, convinces the court she has established a new, healthy life, since she separated from the father and left … . She is employed in a responsible position.

Both her evidence, and that of her co-workers, confirms she is performing well in her job and is well-respected by those around her. … [119] In the result, on the issue of the effect of the mother’s history, I determine not to have it impact on the decision to be made here. It is apparent she is functioning in a different space from where she was some years ago. She has matured and grown. She is capable now of acting as a parent to these children. … [130] What has she then done? Following the separation, she moved …. Initially she lived with her parents. Then she moved into her present home.

She is in a relationship … . That relationship is now three years old. As indicated, that relationship is stable. They each testified to their commitment to one another. [131] After her separation, the mother took some counselling sessions. It appears this was to allow her to work on herself and improve her life situation. She did this on her own, without seeking to inject it into the court process, or for any other ulterior motive. [132] She has stable employment. Her co-workers and her direct supervisor testified as to her performance on the job.

They indicated she is performing admirably as a continuing care aide. She is empathetic to the residents and she has taken on a mentor role when new employees are hired. She is working full-time hours. She enjoys her job and is planning on obtaining the credentials required for her position. [133] She has maintained contact with her family. It appears they are loving and supportive both of her and of the children. Her parents and her sister are quite involved with her and the children. While that involvement is not to the extent of the grandmother’s, or her extended family, it is appropriate involvement.

It shows a commitment by both the mother and her family to regularize the children’s experience with family. [134] As a result of all of the foregoing, I determine the mother presently has the capacity to act as legal custodian of the children. She has come a long way. She has matured and grown into her role as a parent of these children. During her testimony, she presented as bright and capable.

Despite her attempts to paint a rosy historical picture, she is now capable of raising these children. [ 28 ] The trial judge further considered two specific concerns regarding capacity: S.J.B.’s reaction to unfounded allegations of sexual abuse, and her lack of involvement in the children’s schooling. The trial judge carefully explored these two issues and determined they did not cause him to doubt her capacity. [ 29 ] With regard to future plans for the children, the only distinguishing factor between the parties was T.B.S.’s plans for the children’s post-secondary education.

The trial judge found this to be irrelevant to his determination of the best interests of a four-year-old and six-year-old child and, as such, it did not factor into his decision.

I can see no error in a trial judge determining to place no weight on the fact that one party had better plans for potential post-secondary education that was more than a decade away. [ 30 ] T.B.S. points to paragraph 149 of the Trial Decision as further indication that the trial judge considered all of the factors regarding the children’s best interests to be simple threshold factors: [149] On balance, I determine the biological mother’s impact tips the scales towards granting her custody and primary residence of the children. The situation between the homes is equally in the best interests of the children.

The children are able to equally thrive as between the homes. The status quo of these children, at their young ages, is not something which tips the scale in favour of the grandmother. [ 31 ] I disagree that this conclusion reflects the error of law alleged by T.B.S. This conclusion follows an extensive and thoughtful analysis by the trial judge of all of the factors and a determination that both situations were equally in the best interests of the children.

It does not, in my view, indicate the trial judge only required S.J.B. to simply meet the bare minimum criteria in order to rank equally with T.B.S. on each factor related to the children’s best interests. He conducted a best-interests test not a fitness test. Further, I can see no material error or misapprehension of the evidence reflected in the trial judge’s conclusions on each of these factors. He thoroughly examined the evidence and arrived at findings that are well grounded in that evidence. B.

S.J.B.’s shortcomings and conduct [ 32 ] T.B.S. submits the trial judge failed to consider S.J.B.’s shortcomings as a parent and her conduct. She asserts S.J.B.’s prevarications at trial should have been further considered by the trial judge as an indication that S.J.B. would continue, as she puts it in her factum, a “campaign of mistruths and prevarications” against her. She further contends that the trial judge failed to consider whether S.J.B. exercised poor judgment in relation to the unfounded allegations of sexual abuse. T.B.S. argues this represents material error.

J.E.R.B. adopts that same position. [33] I find myself unable to agree with T.B.S.’s submissions on this issue. The trial judge specifically referred to S.J.B.’s conductand her handling of the sexual abuse allegations and evaluated the evidence in relation to the two issues. After doing so, he concluded asfollows: [106] The mother’s apparent prevarications are a concern. They are a concern in terms of her willingness to attempt to provide evidencewhich was not accurate.

Perhaps more importantly, they are a concern regarding determining how she will react going forward. [107] It was apparent during her testimony, the mother was intent on painting the best picture of both herself, and her life, that she possiblycould. Apparently, this intent required her to cast her past life in a different hue than reality. The court understands the desire to attempt tocast oneself in a good light.

The court does not understand a willingness to put forward evidence which is not accurate. [108] In the end, having considered the evidence given, I determine the mother’s misguided efforts to recreate history ought not to impacton the decision to be made here. I am mindful of the direction in s. 8(

b) of The Children’s Law Act, 1997, and past conduct is not toimpact on the decision unless that conduct is relevant to the issue of parenting. I am satisfied, as will be explained herein, the mother’spast conduct does not now impact on her ability to parent these children. … [135] The mother’s reaction to the sexual abuse allegation has raised concern. She did not, for a moment, consider and evaluate the reportsfrom the children. Rather, she immediately assumed the grandmother had put the children up to this story.

She did not discuss theallegations with [her common law partner], or, for that matter, with anyone else. She explains this failure to discuss as she simply did notbelieve anything had happened. [136] I have weighed this concern. The parties were in a custody dispute. The sexual abuse allegation came in the throes of that dispute. Itis not unreasonable for the mother to have suspected the allegation was generated because of that dispute. This is so, particularly in light ofthe clear determination of the authorities there was no truth to the allegation.

Nevertheless, a different response would have been expectedfrom the mother. [137] I have determined this is not such as to cause the mother to be incapable of acting as the legal custodian. In all other respects, sheappears to have developed a mature, parental role for the children. This incident alone is not such as to sever that role. [34] The trial judge considered the issues and came to a finding that is well supported by the evidence.

He heard and saw S.J.B.’stestimony and was in a unique position to evaluate the effect her prevarications had on her ability to parent and her willingness to facilitateaccess with T.B.S. The trial judge also evaluated the evidence of S.J.B.’s reactions to the unfounded allegations of sexual abuse and, whilethey caused him some concern, he was satisfied there were some extenuating circumstances and determined this was an isolated incidentthat did not detract from her overall parental abilities. I can find no material error, a serious misapprehension of the evidence or an error inlaw in these determinations. C.

The status quo and T.B.S.’s status as the primary caregiver andpsychological parent [35] T.B.S. submits that the trial judge erred by brushing aside the fact that she was the primary caregiver and psychological parentand ignoring the status quo. There is no question that T.B.S. has been the primary parent to the children for many years and has a strongconnection and bond with them. The trial judge clearly found that as a fact. The question is whether the trial judge erred in his treatment ofthese factors. [36] A child’s relationship with his or her primary parent is important.

The dissenting opinion of L’Heureux-Dubé in Gordon vGoertz, (SCC), [1996] 2 SCR 27, captures the essence of this relationship: [121] The assessment of the child’s best interests also involves a consideration of the particular role and emotional bonding the childenjoys with his or her primary caregiver. The importance of preserving the child’s relationship with his or her psychological parent haslong been recognized by this Court on a number of occasions (Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), (SCC), [1994] 2 S.C.R. 165, at p. 202; Racine v. Woods, supra, at p. 188; King v.

Low, (SCC), [1985] 1 S.C.R.87, at p. 101). There is a growing body of evidence that this relationship may well be the most determinative factor on the child’s long-term welfare.

As I mentioned in Young, [ (SCC), [1993] 4 SCR 3], at p. 66, the vital link between continuity in theemotional bonding of the child with his or her psychological parent and the best interest of the child finds ample support in the literature: Goldstein, Freud and Solnit’s Beyond the Best Interests of the Child, supra, while perhaps lacking in empirical data, remains an influentialanalysis of the psychological needs of children following divorce.

The authors emphasize, among other factors, the importance ofcontinuity in the child's relationships and conclude that the major focus of custody decisions should be to preserve and protect therelationship between the child and his or her psychological parent. [Emphasis added by L’Hereux-Dube.] See also Weisman, [“On Access After Parental Separation” (1992), 36 R.F.L. (3d) 35], at p. 47; cited in Bruch and Bowermaster, [“TheRelocation of Children and Custodial Parents: Public Policy, Past and Present”]: F. F. Furstenberg and A. J.

Cherlin, Divided Families:What Happens to Children When Parents Part (1991), at pp. 107–8; E. E. Maccoby and R. H. Mnookin, Dividing the Child: Social andLegal Dilemmas of Custody (1992), at p. 295; and V. King, “Nonresident Father Involvement and Child Well-Being: Can Dads Make aDifference?” (1994), 15 J. Fam. Issues 78. [37] This Court has emphasized the importance of the relationship between a primary parent and a child and the importance inmaintaining the stability of that relationship when conducting an evaluation of the child’s best interests: A.H. v R.M. (1999), (SK CA), 177 Sask R 285 (CA) at paras 83–89.

It is an error of law to fail to consider this factor or to fail to give it the emphasis it

requires: Swenson v Swenson , 2006 SKCA 45 at para 24 , 279 Sask R 55; Ackerman at para 54 ; and Dukart v Quantril (Jones) , 2015 SKCA 138 at paras 36–37 , 472 Sask R 97. [ 38 ] I make two further observations about the requirement that a trial judge give appropriate weight to a child’s relationship and connection with a primary parent. First, while this is an important factor, it remains one factor amongst many and should not be elevated to the point of creating a presumption or a priority status over the other parent.

Second, the focus of this factor is on maintaining the strong relationship that exists with a primary caregiver. The maintenance of that relationship may or may not require primary residency to continue. Depending on the circumstances, a strong relationship may also be maintained through frequent parenting time and other contact. [ 39 ] Turning to the matter at hand, it is my opinion that the trial judge properly considered the primary parent and status quo factors and gave them the emphasis they required.

The trial judge did not discuss the concept of psychological parent or determine if T.B.S. was the psychological parent. However, he was not required to do so. He made extensive findings of fact regarding each party’s relationship with the children and found T.B.S. to be the primary parent and primary caregiver. The trial judge was fully aware of the children’s relationship with each party and their current circumstances. He comprehensively canvassed those relationships, the circumstances and the proposed parenting arrangements.

After doing so, he concluded as follows (repeated here for clarity): [140] Which then all brings us to the children’s relationship with the grandmother, and whether the status quo arrangement is such as to warrant refusal to change the current custodial arrangement. The children are ensconced in their lives in [her city]. They are part of the fabric of the grandmother’s life, both familial and activity wise. They attend on the great-grandmother to bake cookies, amongst other things. They see their aunt … and her children daily. They have their school … . They have friends through school and their activities.

They also, with the grandmother’s encouragement and arrangement, participate in community events. The grandmother was anxious to point out in her testimony that they walk in the annual Pride parade together. [141] The children appear to have a normal life … . They are doing those things expected of children their age. They are young, but they have been doing their activities for their short lives. … [144] I do not determine the status quo is such as to warrant a refusal to change the parenting arrangement.

Rather, due to the youth of these children, and their involvement with the mother …, particularly over the last year, they will be able to comfortably re-establish themselves in the mother’s community. [ 40 ] The trial judge did not fail to consider that T.B.S. was the primary parent or otherwise fail to address the status quo. In my view, he also did not err in the emphasis he gave to these factors.

The trial judge fully considered these factors as part of the total picture he had to evaluate and appreciated the importance of the status quo and T.B.S.’s role as the primary parent in his evaluation of the children’s best interests. In doing so, he determined the children were equally able to thrive in either home. [ 41 ] It must be remembered that a move from T.B.S.’s home did not terminate the relationship she had with her grandchildren.

The trial judge determined that “due to her importance in these children’s lives, [she] must continue to have active and considerable access to them to ensure her presence in their lives continues” (at para 153). The trial judge sought to maintain the stability of this important relationship and determined that frequent and regular contact would ensure this occurred. While geography limited weekday access during the school year, T.B.S. will have parenting time with the children every other weekend and one-half of all school breaks, including the summer.

The children’s relationship with their grandmother will change, but the stability of that relationship will be maintained through this frequent parenting time. In my view, a material error, a serious misapprehension of the evidence or an error in law has not been established. D. The children’s connection to their community and integration into a new community [ 42 ] T.B.S. asserts the trial judge erred by speculating on the ease with which the children would integrate into a new community. J.E.R.B. supports this position.

S.J.B. submits the trial judge thoroughly reviewed this issue and did not err. [ 43 ] In my opinion, the trial judge did not err in this determination. He heard extensive evidence about these children’s temperaments, characteristics and needs, their relationship with each party, the home environment proposed by each party, the children’s connections to their two communities and the children’s engagement with their extended family in each community. He heard sufficient evidence to exercise his judgement to determine how these children would adjust in moving from a small city to another small city.

After analyzing all of the evidence, he determined as follows (repeated for clarity): [143] Were these children older, it would likely be much more difficult to separate them from their present status quo. However, these children are young. … At these ages, it cannot be suggested, on the state of the evidence presented at trial, they are so intertwined in their community that there is risk to them by separating them from it. [144] I do not determine the status quo is such as to warrant a refusal to change the parenting arrangement.

Rather, due to the youth of these children, and their involvement with the mother …, particularly over the last year, they will be able to comfortably re-establish themselves in the mother’s community. [ 44 ] The trial judge evaluated all of the evidence and determined there was no risk in moving these two young children from one community to the other. In my opinion, this determination does not reveal a material error, a serious misapprehension of the evidence or an error in law. E. S.J.B.’s status as the biological parent

[45] The trial judge stated there is no presumption of custody or residency in a custody dispute between a biological parent and aperson of sufficient interest. He determined the fact that S.J.B. was the children’s biological mother was one factor amongst many to beconsidered in determining the children’s best interests. T.B.S. agrees with this characterization of the use of this factor and submits thetrial judge was correct in setting out the law. However, she asserts the trial judge erred, despite correctly stating the law, by placing toomuch emphasis on this factor and treating it as determinative.

J.E.R.B. adopts this position. In her argument, S.J.B. submits a biologicalparent should be preferred over a grandparent unless the parent is “in a meaningfully way less than what one would expect”. This issuerequires a deeper examination of the role that biological ties play in an assessment of a child’s best interests. [46] An evaluation of a child’s best interests is always child-centred. The focus is not on parental rights: M.H. v A.B., 2019 SKCA135 at para 44, 36 RFL (8th) 261 (leave to appeal to the SCC dismissed, ), and A.O. at paras 75–77.

However, when acustody dispute arises between a biological parent and a person of sufficient interest, the fact that one party is the biological parent cannotbe ignored. [47] The CLA does not provide any statutory preference to a biological parent versus a person of sufficient interest with regard tocustody and parenting arrangements.

Section 8(

c) of the CLA prohibits the court from preferring one parent over the other on the basis ofthat person’s status as a father or mother, but that

section has no relevance to a situation where the dispute is between a parent and a personof sufficient interest. [48] Historically, biological parental ties have played a major role in custody disputes, albeit subordinate to the best interests of thechild. In King v Low, (SCC), [1985] 1 SCR 87 [King], McIntyre J. described the role of this factor: [27] … I would therefore hold that in the case at bar the dominant consideration to which all other considerations must remain subordinatemust be the welfare of the child.

This is not to say that the question of custody will be determined by weighing the economiccircumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and materialadvantages that may be available in the home of one contender or the other. The welfare of the child must be decided on a consideration ofthese and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child.

It must be the aim ofthe Court, when resolving disputes between rival claimants for the custody of a child, to choose the course which will best provide for thehealthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult. Parentalclaims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion.

Where it is clear that thewelfare of the child requires it, however, they must be set aside. (Emphasis added) [49] This language reflects the fact that when King was decided, the requirement to not lightly set aside parental claims created asignificant bar in custody disputes for persons other than the biological parents.

In Terhorst v Terhorst (1986), (SKKB), 47 Sask R 102 (QB), a case with competing custody applications by the mother, father and paternal grandparents under The InfantsAct, RSS 1978, c I-9 (the predecessor to the CLA), Grotsky J. emphasized the paramountcy of parental status in custody disputes: [27] … I should here, too, make clear to all concerned, that in considering the present application I am mindful that under s. 3(4) of theAct no presumption exists as between parents that one parent should be preferred over the other on account of his or her status as a fatheror mother.

It is here appropriate for me to point out to counsel for the applicants, and to the applicants as well, that the statutorypresumption in s. 3(4) of the Act is as between the parents. It is not a presumption which can be relied upon by or on behalf of thegrandparents. Indeed, as pointed out by Madam Justice Carter of the Saskatchewan Unified Family Court in Hayes and Hayes v. Hayes(1982), (SK CA), 16 Sask.

R. 136, at p. 140, para. 8: But surely where the natural mother or father of a child is blameless in every way in the care and upbringing of their child or children,grandparents or strangers with sufficient interest cannot gain custody simply by showing that their home is the best one, materially orculturally or in religious matters, for the child.

It seems to me impossible to consider the welfare of the child without considering thesuitability of the natural parent or parents first. [28] I am in respectful agreement with the views expressed by Madam Justice Carter. (Emphasis in original) [50] In Muirhead v Peters (1995), (SK KB), 14 RFL (4th) 267 (WL) (Sask QB), in the context of an interimapplication, Gerein J. made similar observations regarding the preferred position occupied by a biological parent: [22] In this instance the petitioners are well able to fulfil the duties and responsibilities of parents and provide care and support for thethree children herein.

In fact, in comparison to their daughter, they are better able to provide for the material needs of the children becausethey have greater financial resources. As well, because of their years of experience, including that gained in the course of raising their fourchildren, it can be said that they are particularly well equipped to raise their three grandchildren.

In short, taking into account the bestinterests of the children, they would be well served if placed in the care of the petitioners. [23] However, the analysis cannot end there for it overlooks the unique relationship which exists between a child and a parent. In myopinion, s. 8 must be applied with this relationship in mind. Absent something unusual or exceptional a parent is in a favoured position andshould be preferred over grandparents on a question of custody.

When I use the words “unusual” or “exceptional”, I do not include withinthem the enhanced ability to provide material things or the ability to bring extended experience to bear. Were these factors to decide theissue, it would be rare when grandparents would not prevail, even where parents were performing adequately. To my mind, the court mustlook initially to the best interests of a child within the context of the child’s immediate family or what remains of it.

Should theexamination disclose that the situation is in a meaningful way less than what one would normally expect, then the court should seek thebest interests of the child beyond the parameters of the immediate family. [51] The view that the biological parent occupies a strongly preferred position with regard to the custody of his or her own childrenpersisted in subsequent cases: see, for example, Muirhead v Peters, 1998 CarswellSask 164 (WL) (QB); I(W.) v I.(D.), 2000 SKQB 555,201 Sask R 285; and Ulmer v Hill, 2001 SKQB 309, 209 Sask R 221.

[52] Since the beginning of the 2000s, cases in Saskatchewan have moved away from treating biological parental status as beingakin to a presumption in favour of the parent. The notion that such a presumption exists was explicitly rejected by Sandomirsky J. inHaygarth at paras 17–19 and by Ball J. in A.J.R. at paras 52–53.

Other cases have implicitly rejected such a presumption by consideringthe biological parent status as a factor, but one that must always give way to the child’s best interests: see, for example, Hendricks; S.A.L.;Wolfe v Diedrichs, 2017 SKQB 219 [Wolfe]; R.I.K. v S.F., 2018 SKQB 31; and L.M.W. v S.L.S., 2018 SKQB 39. [53] This Court has not previously been faced with the issue of whether a biological parent enjoys a preferred position in relation toa grandparent in a custody dispute.

However, in A.O., Wilkinson J. (ad hoc) examined the importance of biological or kinship ties in amatter where the father and the non-biologically related adoptive parents sought custody of a child. She reiterated the indisputable natureof the principle that the focus in such matters is on the child and not on parental rights, relying on the guidance from King set out above.The remainder of her analysis regarding the importance of biological ties consisted of the following: [80] The trial judge concluded that the respondent’s blood tie to C was an important, but not a controlling consideration.

The best interestsof the child remained paramount. He expressly stated that should the evidence establish that the child’s best interests lay with theappellants, the fact the respondent was the biological parent would have to be set aside. … [89] The appellants say the biological connection was given disproportionate emphasis, notwithstanding the trial judge’s correctarticulation of the law.

However, as counsel for the appellants acknowledged, there is a line of authority holding that all other factorsbeing equal, the biological connection can tip the balance and this does no offence to the principle laid down in King. In M.(C.G.) v W.(C.)(1989), (BC CA), 40 BCLR (2d) 145 (CA), and in British Columbia Birth Registration No. ### (Re), 2000 BCCA 109,182 DLR (4th) 280, the British Columbia Court of Appeal accepted the proposition that where the scales are otherwise even, a biologicalfactor can be the decisive factor.

As there expressed, the benefits that flow to a child from blood ties are intangible and not readily put intowords. [90] Accordingly, had the trial judge found no difference between the parties in the areas of culture, parenting, parenting experience,sibling considerations, cultural factors and other relevant considerations, the outcome might well have been the same.

I conclude the trialjudge did not place unwarranted emphasis on the biological connection and find no error in his reasoning on this aspect. … [93] As noted in Van de Perre [2001 SCC 60] at para 10, although a trial judge’s reasons may sometimes appear to stress one factor overanother, this is inevitable in custody cases that are heavily fact-driven. This does not open the door to a redetermination of the facts by theCourt of Appeal.

In terms of the weight he ascribed to various components of the best interests test, namely blood ties, parentingcapability, and cultural factors, the trial judge approached his task with sensitivity and care, and I find no error in his conclusions. [54] In Hayes, Herauf J.A. briefly discussed the position of a parent versus a grandparent, but that matter involved an application forinterim access to grandchildren by grandparents.

The decision in Hayes provides no analysis or guidance with regard to a preference forbiological parents over persons of sufficient interest in a custody dispute and does not address the issues faced in this appeal. [55] Recent jurisprudence from other provinces supports the contention that there is no presumption in favour of a biological parentwhen a court is determining the parenting arrangements that are in the best interests of a child in the context of a custody dispute: Khan vKong (2007), (ON SC), 50 RFL (6th) 31 (Ont Sup Ct

J) at para 232 (aff’d 2009 ONCA 21); Chera v Chera, 2008BCCA 374 at paras 54–55, 298 DLR (4th) 462; J.F. v T.E., 2010 NBCA 14 at para 19; M.S. v G.S., 2013 BCSC 1744 at para 84; T.E.D.D.v C.M.Y., 2016 MBQB 35 at para 73, 325 Man R (2d) 223; F.H. and A.H. v L.B., 2018 NLSC 31 at para 45; Lemon v Lemon, 2018 ONCA684 at paras 32–36, 426 DLR (4th) 387; S.S. v S.C. and C.G., 2019 NBQB 114 at para 34, 25 RFL (8th) 210; and Hutchinson v Ross, 2019ONSC 3035 at paras 134–137.

While case law from Nova Scotia does not completely support this proposition, the differing legislation inthat jurisdiction accounts for the difference: see, for example, O’Brien v Thomson, 2004 NSCA 34 at para 28, 221 NSR (2d) 297;MacLeod v Theriault, 2008 NSCA 16 at paras 15–16, 262 NSR (2d) 184; and Starratt v Starratt, 2013 NSFC 23 at para 19, 336 NSR (2d)1. [56] Based on the above survey of jurisprudence from Saskatchewan and across Canada, examined within the context of a child-centred assessment of a child’s best interests, I conclude there is no presumption in favour of a biological parent versus a person ofsufficient interest when determining the appropriate parenting arrangements for a child.

It is a factor that is subsumed within the bestinterests framework and must be considered in conjunction with all of the other factors. [57] Having determined biological parental ties are to be treated as a factor in the assessment of a child’s best interests, I would beremiss to not continue and discuss whether this factor should be treated with special significance or whether it is simply one elementamongst many that attracts no special weight. Trial judges in Saskatchewan who have considered this as one factor have described theemphasis to be given to it with varying language.

In S.A.L., Ryan-Froslie J. (as she then was) stated, “It is obvious that parental ties are animportant factor in determining custody” (at para 107). In A.O. v. T.E., 2016 SKQB 92 (aff’d A.O.), Brown J. described the connection as a“very important factor, entitled to ‘serious consideration in reaching any conclusion’” (at para 196). Justice Wilson, in Wolfe, describedthe relationship between a biological parent and a child as “a special one” (at para 74). [58] In my view, biological parental ties are a unique and important factor in the evaluation of a child’s best interests.

The existenceof a biological relationship between a child and a parent may be highly significant. It will not always be necessary for all other things to beequal – a notion that in and of itself does not fit comfortably with the best interests analysis – for the biological relationship to “tip thebalance”. However, as with the assessment of any individual factor, the weight to be assigned is fact-dependent and highly contextual. Itsimportance to a specific child’s best interests will depend on the circumstances of the case.

It may carry great weight in some situationsand substantially less weight in others, but the importance of this factor must always be analyzed through the lens of the best interests ofthe specific child whose parenting arrangements are being determined.

[ 59 ] Turning to the matter at hand, the trial judge correctly determined S.J.B. was not entitled to a presumption or preferential position by virtue of being the children’s biological mother. T.B.S. asserts that the trial judge provided S.J.B. the benefit of such a preference, despite having correctly identified that it does not exist. I disagree for the reasons that follow. [ 60 ] The trial judge carefully scrutinised all of the factors that related to the children’s best interests. He examined the factors that are listed in s. 8 of the CLA , plus other factors that are not specifically listed.

As part of his analysis, he evaluated S.J.B.’s status as a biological parent and took notice of it as a factor that favoured her. After doing so, he stated the following: “Upon a consideration of all of the foregoing, I determine the parental relationship is an important factor here to be considered. The welfare of the children does not warrant setting aside the mother’s biological connection to these children. As recognized by Ryan-Froslie, J.A. this relationship is important and should not be lightly set aside” (repeated for clarity, at para 148).

Reading these three sentences in isolation could lead to the conclusion that, despite determining biological parentage is only one factor, the trial judge then treated it as a very strong preference, or even a presumption, in favour of S.J.B. However, after examining the judgment as a whole, it is my view that the trial judge did not do so. [ 61 ] Having recognized the importance of the parental relationship as one of the factors that informed the best interests analysis for these specific children, the trial judge concluded this factor was sufficient to tip the scales in favour of the mother.

The trial judge placed significant weight on the importance of S.J.B.’s status as the biological mother, as he was entitled to do in these circumstances, but he did not use it as a trump card or apply a presumption. It was one factor, albeit an important one in the specific circumstances of this matter, that caused him to determine the children should reside with S.J.B. In doing so, he fully considered whether the status quo and T.B.S.’s primary parent status tipped the scales in the other direction and determined it did not.

This is a decision he was entitled to make on the evidence before him and, given the deferential standard of review, is not one in which this Court can interfere. F. Determination of the children’s best interests [ 62 ] I have discussed each of the factors above separately, in order to address each of the grounds of appeal, but a decision regarding the children’s best interests requires an assessment of the totality of the factors affecting those interests.

In considering all of the factors, and the alleged errors, I am unable to conclude that there has been a material error, a serious misapprehension of the evidence or an error in law. It is not the role of this Court to reweigh the factors and determine the issue of the children’s best interests afresh. Given the deferential standard of review that applies to matters of this type, I can find no justification for appellate intervention. VI. Conclusion [ 63 ] The appeal is dismissed.

S.J.B. shall have costs of this appeal, payable by T.B.S., fixed in the amount of $500, inclusive of all disbursements. [ 64 ] The trial judge was of the view that a brief transition period was required. However, we are now into the summer, during which S.J.B.’s parenting time has already increased. As such, the transition period set out by the trial judge is adequately covered by the summer parenting

schedule and there is no need for a further transition plan. “Tholl J.A.” Tholl J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.