K.G.K. v L.T.K., 2021 SKCA 12

Court of Appeal for Saskatchewan Docket: CACV3724 Citation: K.G.K. v L.T.K., 2021 SKCA 12Date: 2021-01-22 Between:K.G.K.Appellant (Respondent)AndL.T.K. Respondent (Petitioner)AndT.N.E.Intervenor Before: Jackson, Ottenbreit and Caldwell JJ.A. Disposition: Appeal dismissedWritten reasons by: The Honourable Mr. Justice CaldwellIn concurrence: The Honourable Mr. Justice OttenbreitIn dissent: The Honourable Madam Justice JacksonOn appeal from: FLD 87 of 2020, SaskatoonAppeal heard: December 10, 2020Counsel: James J. Vogel, Q.C. and Joanne Moser, Q.C. for the Appellant Brent D.

Barilla, Q.C. for the Respondent Drew Filyk for the Intervenor Caldwell J.A. I. Introduction [1] KGK appeals against an interim custody order [Interim Order] made under a fiat dated September 28, 2020 [September Fiat],granting LTK’s application under The Children’s Law Act, 1997, SS 1997, c C–8.2, for joint custody and shared parenting and for anorder requiring Ms. KGK to return the four children of the marriage to the area of the parties’ family farm near Clair, Saskatchewan. [2] Ms.

KGK appeals principally on the basis that the Chambers judge erred in law by varying the status quo under which sheasserts she was the “primary parent” to the children. She argues secondarily that the Interim Order fails to address the separation ofsiblings. She also submits the Chambers judge should have ordered a viva voce hearing and deferred making any order in the face ofcontroverted evidence. For the reasons herein, I would dismiss the appeal with costs to Mr.

LTK in the usual way. [3] It is important to approach this appeal with a full understanding of the factual, legal and procedural context in which theChambers judge made the Interim Order. Factually, it is undisputed that the parties had been married for ten years and have four middle-and elementary-school aged children (12, 9, 7 and 7), and that Mr. LTK stands in loco parentis to the oldest child, who is Ms. KGK’sbiological child from a prior relationship. However, before turning to that context, I must underscore the highly-deferential standard ofappellate review in appeals of this nature. II.

Standard of Review [4] Custody and access applications are heavily fact-dependent. As a consequence, the orders made, and the custody andparenting arrangements established thereunder, result from the exercise of judicial discretion. Accordingly, the scope of appellate reviewis delimited and narrow, calling for the appellate court to afford a considerable measure of deference to the decision-making that led to theorder in question.

In plain terms, this Court is simply not entitled to remake the Interim Order from the bottom up, taking a different viewof the evidence and rebalancing the relevant factors, so as to refashion the custody and parenting arrangements as we might prefer it.Rather, as Bastarache J. wrote in Van de Perre v Edwards, 2001 SCC 60, [2001] 2 SCR 1014: [15] As indicated in both Gordon and Hickey, the approach to appellate review requires an indication of a material error.

If there is anindication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of thefactors. In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judge ignored or misdirectedhimself with respect to relevant evidence. This being said, I repeat that omissions in the reasons will not necessarily mean that theappellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian ad Litem of) v.

Ashmore (1999),1999 BCCA 6 , 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused [2000] 1 S.C.R. vi, an omission is only a material errorif it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affectedhis conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence. [5] Although not a standard of appellate review, another consideration that informs the approach to be taken in this appeal is this

Court’s general and oft-expressed reluctance to interfere with interim orders of the sort the Chambers judge made in this case. Writing forthe Court in Mantyka v Dueck, 2012 SKCA 109, 399 Sask R 303, which involved an appeal from an interim custody order made in thecontext of an application to reverse the unilateral relocation of children by a custodial parent, Richards J.A. (as he then was) said: [47] …This Court has repeatedly discouraged appeals from interim orders in family law proceedings. See, for example: Foss v. Foss(1991), (SK CA), 31 R.F.L. (3d) 367; Graham v.

Tomlinson, 2010 SKCA 101, 324 D.L.R. (4th) 156 at para. 15;M.V.D. v. C.K.L., 2005 SKCA 145, 275 Sask. R. 158 at para. 6; Hall v. Hall, 2011 SKCA 86, 337 D.L.R. (4th) 89 at para. 1. It has takenthis approach in an effort to help litigants avoid both the delays that such appeals necessarily involve and, as well, to avoid the cost ofsuch proceedings. As Jackson J.A. said in Hall “[i]n most cases, the interests of the parties, and the children, are best served by proceedingquickly to the pre-trial settlement conference stage rather than expending time and scarce resources on an appeal from an interim order”.

See also: Wyatt v Reindl, 2020 SKCA 36, 36 RFL (8th) 253; Russell v Russell, 2018 SKCA 80 at para 12, 16 RFL (8th) 26; Potzus vPotzus, 2017 SKCA 15 at paras 28–29, [2017] 7 WWR 296; J.P. v J.P., 2016 SKCA 168 at paras 34–38, 89 RFL (7th) 92; C.L.B. v J.A.B.,2016 SKCA 101 at paras 13–14, 484 Sask R 228; Bolan v Bolan, 2013 SKCA 97 at paras 6–7, 423 Sask R 151; Jochems v Jochems, 2013SKCA 81 at para 24, 417 Sask R 232; and Foss v Foss (1991), (SK CA), 31 RFL (3d) 367 (Sask CA). III.

Appellate review of the september fiat [6] With the standard of review front of mind, I turn to the September Fiat, wherein the Chambers judge identified the governingaspects of the procedural and factual context of the application before him as well as the legal framework for addressing the issues arising: [3] [Ms. KGK] has taken the children and moved away from the community in which the parties lived and in which their childrengrew up. [Mr. LTK] did not consent to her relocating the children. The parties had no prior order regarding the custody or parentingarrangement for the children.

The parenting arrangement that has existed since the parties’ separation has largely been imposed by [Ms.KGK]. [Mr. LTK] has brought an application of first instance to address the mobility issue and the appropriate interim parentingarrangement until the parties can resolve their matters at pre-trial or trial. [4] In such circumstances, a chamber judge’s function is to determine the appropriate interim parenting arrangement rather thanassessing the relocation question in isolation. A blended approach that examines the relocation in the broader context of the competingcustody claims of the parties is required.

See J.P. v J.P., 2016 SKCA 168 at para 41, 89 RFL (7th) 92. [5] As a result, the issue to be dealt with in this decision is simply “What interim parenting arrangement is in the best interests of thechildren?”. Mobility will be addressed within my analysis of this issue. … [13] So what then should be the nature of my analysis to determine what parenting arrangement is appropriate in the first instance inlight of the fact that the respondent has already relocated the children out of their home community? Ryan-Froslie J.A. answers thisquestion in Russell v Russell, 2018 SKCA 80, 16 RFL (8th) [Russell].

In Russell, the parties had two young children. They had resided onthe family farm throughout their relationship. After separation, the mother moved with the children to a town where she worked, some 60kilometres away from their home community, without the father’s consent. In an application in the first instance, the chambers judgeawarded interim, joint custody. Relying on Gordon v Goertz, (SCC), [1996] 2 SCR 27 [Gordon], he ordered the motherto relocate the children's residence to the catchment area of the school located in their home community.

The mother appealed the interimorder arguing that the mobility test in Gordon did not apply, that she had a compelling reason for moving and that returning the children totheir home community was not in their best interests. [7] Following reference to the factors in Gordon v Goertz, the Chambers judge quoted from the reasons of Ryan-Froslie J.A. inRussell v Russell, where she said: [14] Gordon v Goertz arose in a factually different context—an application for variation where there was a pre-existing final ordergranting the mother sole custody of the parties’ young child with generous access to the father.

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

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

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

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

She would be required to establish compelling reasons why such a move would be in the bestinterests of the children. On the evidence filed in this matter, Mr. [sic] Russell is unable to rebut the presumption because there are no

compelling reasons to justify and move away from the locale of the children’s home community. … [17] I have some concerns with the notion of a presumption against relocation on an interim application as neither the Divorce Act nor The Children’s Law Act, 1997 [SS 1997, c C-8.2 ] provides for such a presumption. The best interests of the child test entails a balancing of all relevant factors. A move by a child from his or her home community is one such factor.

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

Interim orders are meant to be temporary - put in place to give parents an opportunity to work out a more permanent solution or, failing that, to enable the court to make a final determination of what is in a child’s best interests based on all the relevant evidence. Interim applications do not afford judges an opportunity to see and hear the parents or allow for a full airing of the relevant issues. Evidence is often contradictory and incomplete.

Moving a child from his or her home community on an interim basis may cause unnecessary disturbance to the child who, after trial, may be uprooted again and returned to that community. Moreover, allowing moves on an interim basis may have the unintended effect of finally determining the parenting issues by establishing a new status quo. That is not to say that a separating parent can never move with a child on an interim basis.

The test is the best interests of the child and each case must be assessed based on its own unique factual context. [18] Further, as Richards J.A, as he then was, pointed out in Mantyka v Dueck , 2012 SKCA 109 , 399 Sask R 303, the “move first and ask questions later”' approach to relocation should not be approved or encouraged: [35] ... Neither parents nor their counsel should see relocations of children as a means of obtaining tactical advantages in custody or access disputes.

Among other things, that is why there is a distinct reluctance to give any credit to a custodial parent who moves unilaterally, knowing that the move will be controversial, and then attempts to resist an application to reverse the move by arguing that he or she has quit a job, sold a house or otherwise made decisions which will be difficult to roll back. Problems of this sort are generally seen as being self-imposed. ...

See also Jochems v Jochems , 2013 SKCA 81 at para 33 , 417 Sask R 232. [ 8 ] The Chambers judge concluded his statements on the applicable law by writing: [15] Thus, the test is what is in the best interests of the children. [Ms. KGK]’s desire to live in Moose Jaw is but one factor to be considered with all the other factors set out in Gordon to determine what parenting arrangement is in the best interests of [the children]. [ 9 ] As the Chambers judge recognised, this is a circumstance where the “best interests of the children” is the governing consideration in the inquiry.

To the extent that she alleges the Chambers judge erred in his identification of the relevant law or otherwise erred in principle when approaching the issues that had been placed before him, I find Ms. KGK’s submissions in this appeal are wholly without merit.

As the reasoning in the September Fiat resolutely indicates, the Family Law Division Chambers judge had a full appreciation and complete regard for the law relevant to the inquiry placed before him. [ 10 ] Having set out the correct legal framework, the Chambers judge turned to apply it by evaluating the evidence relevant to the issue of what custody and parenting arrangements would be in the best interests of the children.

The Chambers judge set out the facts as he found them in clear terms in the September Fiat and under a fiat of July 10, 2020, wherein he had earlier dealt with summer custody and access issues [ July Fiat ]. [ 11 ] In her argument, Ms. KGK suggests that the Chambers judge erred in his findings of fact because he ignored or overrode the findings set out in an April 22, 2020, fiat [ Adjournment Fiat ], under which a different judge had adjourned the hearing of these applications as not being “urgent” in the context of a COVID-19 shutdown at the Court of Queen’s Bench.

However, the decision to adjourn could not have given rise to findings on the matters at issue in any way that would have bound the Chambers judge, who heard the applications on their merits with the benefit of the parties’ arguments.

The judge who issued the Adjournment Fiat understood this, stating that the issue of whether the removal of the children from Clair was wrongful “remains fully open to argument when the application is heard” and noting that an adjournment would allow the parties to “marshal better evidence regarding [the oldest child’s] medical situation and the availability and proximity of necessary medical resources” (at para 17). [ 12 ] I propose to quote verbatim the Chambers judge’s findings of fact. However, before I set out those findings, I would point out one factor that is not common to all proceedings of this nature.

The Chambers judge ordered a different shared parenting arrangement with respect to the oldest child, Mr. LTK’s stepson, because TNE, who is that child’s the biological father, enjoyed two weekends per month of access with him. An affidavit of Mr. TNE was before the Chambers judge in this matter and, with the consent of the parties, Mr. TNE filed additional affidavit evidence and made representations in this appeal. [ 13 ] Turning now to the facts, the Chambers judge expressly incorporated the findings of fact he had made under the July Fiat into the September Fiat .

In the July Fiat , the Chambers judge found: [7] The parties lived on a farm in the Clair District of Saskatchewan. The Petitioner ran a large grain farming operation and continues to do so today. He has recently begun operating a seed cleaning business on their farm site as well. When he was not busy with farm work, the petitioner helped parent the children. He would do things with the children, attend their activities, coached [the oldest child’s] hockey team and helped the children with their homework, among other things. [8] The respondent was a farm spouse.

She looked after the children, took them to school, to their appointments and activities. She looked after their home, did household chores and cooked for the family and the hired men. She did the books for the farming operation, paid the bills, did the payroll, took meals out to the field, hauled grain and ran some of the machinery. The farm was a busy place and although the petitioner helped the respondent parent when he was not doing something farm related, she was the primary caregiver to the children. …

[10] After the parties separated, the respondent and the children moved to Moose Jaw. Her parents reside there, as does [the oldest child’s] biological father. She has rented a three bedroom home there. The petitioner remains on the farm in the family home. His parents live approximately 20 kilometres away in Wadena. [11] [The oldest child] has some medical issues. In late 2019 or early 2020, he was diagnosed with an egg-sized cyst against his cerebellum. He is presently waiting to have it surgically removed, however, the timing of his surgery is in flux due to COVID-19.

On March 21, 2020, [the child] had a seizure and was taken to the hospital in Moose Jaw. He was eventually diagnosed with epilepsy and has to take daily medications. [12] After the parties separated, the petitioner had some parenting time with the children at the farm on March 30, 2020. When the respondent brought the children to the farm, the petitioner’s friend, Kevin, was there. An incident occurred between the respondent and Kevin. The RCMP were called and Kevin ended up being charged with aggravated assault.

Despite this incident, since April 10, 2020, the respondent has facilitated the petitioner’s parenting time with [the children] every Friday to Sunday except for one weekend. The petitioner has also had access to [oldest child] in Moose Jaw at the beginning or end of some of his access weekends with the other children. … [ 14 ] The respondent admitted in her evidence that the children love the petitioner and that the girls have adjusted to spending weekends with him at the farm. She states that with his present medical issues, [the oldest child] is apprehensive about going to the farm, especially without her.

He misses the petitioner and would prefer if the petitioner saw him in Moose Jaw. [14] In the Chambers judge’s further inquiry into the best interests of the children under the September Fiat , he first looked to the evidence to determine what had been the status quo at the time of separation. Accepting the evidence of both parties, he found that, albeit they had assumed different roles during their marriage, the status quo prior to separation had been shared parenting, which had taken place in and around the Clair community.

In particular terms, he wrote: [16] In the present case, the parties were a farming couple. Together they ran a large grain farming operation, although, their roles were different. I think it safe to say that they farmed in the traditional sense. That is, the petitioner husband did the majority of the physical farming while the respondent wife performed in a support role. She cooked meals and took them out to the field. She operated some farm equipment and looked after the payroll. She looked after the house and the children.

She got them to their appointments and looked after them when they were sick. [17] I am satisfied that from a time perspective, the respondent spent more time with the children than the petitioner. The petitioner farms over 6,000 acres and even with hired help, a lot of his time was taken up with his farming responsibilities. However, reducing the analysis to a straight mathematical calculation of who spent more minutes, hours or days with the children is not appropriate, nor is it useful.

A party could spend more time with their children but not be as good or effective a parent as the party who spent less time with the children. Or to put it another way, the party who spent less time with the children may still have been an excellent parent to them. [18] I am satisfied in this case that the petitioner spent time caring for the children with the respondent when he was not working or the demands of the farming operation were not so immediate. There were times when he got the children ready for school and onto the school bus, that he played with them and did activities with them.

He helped coach [the oldest child’s] hockey team for some four years. He took the girls to their activities. He took all the children snowmobiling, swimming and to other things. He may not have spent as much time with the children as the respondent, but he was the main breadwinner for the family. The time he did spend with the children was quality time. [19] The children love both the petitioner and the respondent and the parties love their children.

Despite the fact that the respondent spent more time looking after the children than the petitioner, they both worked together to raise the children, provide for them and make decisions that were best for them. [20] By all accounts, the children were normal children. They had friends in and around the Clair community. They were doing well at Quill Lake school. They were involved in activities. They did things with the neighbours and their children. They went on trips as a family. There was no evidence that the children were wanting for anything.

Both parties were capable of meeting, and were meeting, the children’s needs when they were together. [21] What the parties were not doing was getting along. They both readily admitted that they argued a lot. Their numerous affidavits are full of allegations of verbal and physical abuse and threats of moving out. But this evidence is controverted.

There is no doubt that the parties had arguments but even though the parties had arguments, and sometimes these arguments were in front of the children, there was no evidence that it affected either of their abilities to care for their children. [22] This was the status quo when the parties were together. … [ 15 ] The Chambers judge then inquired into the circumstances extant at the time of the hearing, finding that the custody and parenting arrangements were not consistent with the status quo prior to separation: [22] … After the parties separated on March 20, 2020, the respondent unilaterally relocated to Moose Jaw with the children.

She did not seek a court order allowing her to take the children to Moose Jaw nor did the petitioner consent to the children going to live with her there. The petitioner filed an application on April 9, 2020 to have the children returned to their home district. His parenting time with the children until his application was eventually argued, was largely controlled by the respondent.

This was not the status quo parenting arrangement of the parties. [ 16 ] Continuing to follow the proper legal framework, the Chambers judge turned his mind to consider what custody and parenting arrangements were in the best interests of the children going forward until a pre-trial or trial. Here, he was directly confronted by the difficult state of affairs brought about by Ms. KGK’s unilateral relocation of the children without agreement or court order.

[17] While the Chambers judge’s reasons demonstrate that he appreciated he had to keep the best interests of the children front ofmind at all times, he understood that the law also required him to tread cautiously, so as not to reward Ms. KGK for her unilateral actionsor otherwise condone her conduct. The concern in such circumstances is to avoid the unilateral establishment of a new status quo thatmight ultimately determine the issue of custody and parenting arrangements in advance of a pretrial or trial.

This was the correct approachto take (see: Russell v Russell at paras 17–19; J.P. v J.P. at paras 40–49; Jochems v Jochems at para 33; Mantyka v Dueck; and Gilles vGilles, 2008 SKCA 97, 311 Sask R 223). As Richards J.A. wrote in Mantyka v Dueck: [31] The case law also provides that significant caution is necessary when deciding whether a custodial parent should be allowed tomove with a child on an interim basis, i.e. before a trial of the relevant issues. This is so for two reasons.

The first is because an interimchange of location can all too easily create a new “normal” and thereby effectively go some distance toward determining the final result ofthe proceedings. Ryan-Froslie J. explained the problem as follows in Benson v. Benson, 2011 SKQB 457, 388 Sask. R. 89 at para. 18: The difficulties a Court faces in determining mobility issues on interim applications has been the subject of considerable judicial comment.The evidence presented on interim applications is in the form of affidavits.

Often those affidavits are not extensive enough to enable acourt to thoroughly examine the best interests of a child. That evidence is often contradictory and the Court has no ability to test itsauthenticity or determine issues of credibility. Allowing a child to move on an interim application uproots the child from its communityand makes a return to that community unlikely on a hearing of the final application because of the consequent disruption to the life of thechild. In other words, allowing such a move often amounts to a final determination of the issue.

It is for those reasons that Courts havelong held that as a general rule moves should not be allowed on interim applications (See: Guenther v. Guenther, [(1999), (SK KB), 181 Sask. R. 83 (Q.B.)] at para. 5). [32] The second reason for approaching interim relocations with caution is that the record before the court normally consists only ofaffidavit evidence which, by its nature, is often incomplete or somewhat limited in scope. Moreover, such evidence is often contradictoryor inconsistent. It is thus both difficult and unwise to make important decisions on the basis of a record with these sorts of frailties.

See:Nieman v. Bull, 1999 SKQB 204 at para. 7; Shiplack v. Shiplack, 2008 SKQB 254, 317 Sask. R. 223 at para. 19. [33] All of this has led to an overall approach where, of course always bearing the best interests of the child or children in mind, interimrelocations by a custodial parent are allowed only in compelling circumstances. See generally: Bala and Wheeler, “Canadian RelocationCases: Heading Towards Guidelines” (2012), 30 C.F.L.Q. 271. Indeed, in his often-cited decision in Ofukany v.

Ofukany, 2009 SKQB234, at para. 12, Smith J. took the position that there is a presumption, albeit a rebuttable one, that the children in mobility cases should“remain in the locale of the status quo until the debate proceeds to trial to be fully and fairly determined.” [34] The difficult business of adjudicating mobility issues can be made even more challenging when a custodial parent relocates beforethe propriety of the relocation is raised in court.

This is because the custodial parent may have already quit a job, sold a house or otherwisegiven up accommodation in his or her original place of residence and taken up work or made living arrangements in the new place ofresidence. The children too may have left a school and their established patterns and settled into a new school, made new friends anddeveloped new routines. There can be, as a result, a significant measure of disruption involved in reversing or rolling back a relocationwhich has already taken place.

This is not a part of the equation when a custodial parent seeks leave to relocate in advance of a planned oranticipated move. [35] That said, a family law culture of “move first and ask questions later” is self-evidently not something that can be either approvedor encouraged. Neither parents nor their counsel should see relocations of children as a means of obtaining tactical advantages in custodyor access disputes.

Among other things, that is why there is a distinct reluctance to give any credit to a custodial parent who movesunilaterally, knowing that the move will be controversial, and then attempts to resist an application to reverse the move by arguing that heor she has quit a job, sold a house or otherwise made decisions which will be difficult to roll back. Problems of this sort are generally seenas being self-imposed. See for example: Ofukany v. Ofukany, supra at paras. 6 and 7; Brandt v. Dean, 2010 SKQB 401, 363 Sask.

R. 293at para. 19. [18] Accordingly, having found that the status quo at time of separation was shared parenting where the children lived, went toschool, and had their friends and activities in and around Clair, the Chambers judge made a number of findings as to what custodyarrangements would be in the children’s best interests going forward. In the course of doing so, the Chambers judge also dealt with thefive reasons Ms. KGK had put forward as “compelling” her to unilaterally alter the pre-separation status quo. However, I do not see this asplacing improper emphasis on Ms.

KGK’s motivations for relocating to Moose Jaw or, perhaps more accurately, her motivations for notreturning to Clair. [19] The Supreme Court of Canada, in Gordon v Goertz, (SCC), [1996] 2 SCR 27 at para 61, made it clear in thecontext of a custodial parent’s application to relocate that the parent’s reason for relocating is relevant only in the exceptional case whereit addresses that parent’s ability to meet the needs of the child. Even though Ms. KGK did not have sole custody and had not applied orsought Mr.

LTK’s consent to relocate the children, the Chambers judge still had to assess her reasons for disrupting the status quo in thecontext of determining what might be in the best interests of the children going forward. To be clear, in this case, Ms. KGK has not allegedthat she is unable to meet the needs of the children from the Clair area. She averred that her reasons for moving were: (

a) Mr. LTK had been physically and verbally abusive to her throughout their marriage; (

b) she had been assaulted by Mr. LTK’s friend, Kevin, at the family farm; (

c) she had almost no friends or support in and around Clair; (

d) she expected to have problems finding full-time employment in and around Clair; and (

e) the oldest child has medical issues that require him to be near a “major” hospital. [20] The Chambers judge addressed each of these reasons on the evidence before him. However, he was unpersuaded theyindividually or cumulatively amounted to “compelling circumstances” that had necessitated the substantial change in the status quobrought about by the 300-kilometer dislocation of the children from their father/stepfather and from their home community, extended

family, friends, school and activities. [21] As to an abusive relationship, the Chambers judge was unconvinced by the affidavit evidence that Ms. KGK’s or Mr. LTK’sallegations were reliable, stating: [25] … Despite carefully reviewing both parties’ affidavit evidence, I am not able to determine what, if anything, occurred between theparties. The extent to which either party was abusive to the other will have to be determined at trial on better evidence, subject to the rigorsof cross-examination. [22] The Chambers judge further observed that, of the three specific instances of physical abuse alleged by Ms.

KGK, the third didnot involve Mr. LTK and had occurred ten days after the parties had separated. The Chambers judge noted that a criminal charge had beenlaid against “Kevin”, but no trial had yet occurred (in the appeal hearing, we were given to understand that the charge has since been“dropped”). Further, the information about Kevin, and as to the threat he might pose to Ms. KGK in the community, was scant (at para28). [23] As to the two other allegations of abuse, the first incident had occurred in October of 2015 and was said to be corroborated byphotographic evidence of bruising.

There were no photographs relating to any other allegations of physical abuse by Mr. LTK. The secondincident was said to have occurred in March of 2020. The Chambers judge addressed these allegations not by discounting their occurrencebut by observing that Ms. KGK had, based on her own evidence, acted in a manner inconsistent with her assertion that the allegeddomestic abuse and the assault by Kevin had “left her scared to be at the farm or in the community” (at para 27).

To the Chambers judge,this assertion rang “hollow especially when she was prepared to stay on the farm and have the petitioner relocate” (at para 29). Ms. KGKdisputes the validity of this inference but there was ample evidence to support it, including the opposition in her answer and counter-petition to Mr. LTK’s claim for exclusive possession of the family home, which document was filed on June 1, 2020, after her affidavitalleging the occurrence of domestic abuse. [24] Given the differing affidavit evidence in respect of the issue of physical abuse in particular, Ms.

KGK asserts the Chambersjudge should have deferred making any order as to custody or parenting and should have instead ordered a viva voce hearing. I find nomerit to this argument in the context of this case. The Chambers judge had the authority to make the decision he made on the basis ofaffidavit evidence before him (Koback v Koback, 2013 SKCA 91 at para 14, 423 Sask R 35).

In that regard, it is clear he found there was asufficient evidentiary basis to determine the pre-separation status quo, the extant circumstances of custody and parenting, and that thechildren’s best interests lay in returning, as close as would be possible, to the pre-separation status quo pending pre-trial or trial.Importantly, the Chambers judge found, taking them as they were, that the allegations of verbal and physical abuse did not affect hisassessment of the abilities of either of the parents to care for their children or of what parenting arrangements might be in the children’sbest interests.

From an appellate perspective, the Chambers judge’s findings of fact in this regard are sustained by the evidence (Bromm vBromm, 2010 SKCA 149, 362 Sask R 190; Bradley v Zaba (1996), (SK CA), 137 Sask R 295 (CA)). [25] In addition, Mr. LTK had brought the application in this matter, seeking to re-establish the pre-separation status quo custodyand parenting arrangements in circumstances where Ms. KGK had precipitously relocated the children, taken them out of his custody andunilaterally curtailed his parenting time.

It may be unreservedly said that, because they ask judges to make decisions on the basis of theevidence that is put before them, family law litigants must put their best foot forward. Nothing in the record suggests Ms. KGK had notdone so. This is particularly true given the extra time Ms.

KGK had to marshal her evidence because the hearing of this matter had beenpostponed for two months (from April 22, 2020, to June 24, 2020) by reason of COVID-19 restrictions at the Court of Queen’s Bench.Indeed, the Chambers judge who wrote the Adjournment Fiat recommended that the parties adduce additional evidence. [26] Further, Ms. KGK did not seek to cross-examine on the affidavit evidence or ask that the matter be set down for a viva vocehearing in light of the evidence.

Nor did she say that her affidavit evidence was not the whole of the evidence that she could bring to bearon the matters at issue or that it failed to address in full the factors the Chambers judge had to consider in his assessment of the children’sbest interests (Zettl v Spence, 2016 SKCA 97, 484 Sask R 193; Bradley v Zaba). Given all of this, Ms. KGK must be taken to have askedthe Chambers judge to reject Mr. LTK’s application for joint custody and shared parenting and for an order returning the children to Clairon the basis of the evidence that was before the Court.

While it lay within the Chambers judge’s discretion to order a viva voce hearing ifhe deemed it necessary, nothing on the record or in his reasons suggests that he erred because he did not do so on his own motion. [27] As to Ms. KGK’s third ground for not returning the children to Clair, namely, lack of community support, the Chambers judgeexpressed “having trouble accepting this as a reason to relocate the children” (at para 31). He observed that the parties had lived in theClair district for ten years and Ms.

KGK did not deny that they had “quite a number of individuals and couples and their children that theywere friends with and did things with” (at para 31). He found there was no evidence to support her allegations that the community hadsoured against her. [28] As to her employment prospects, Ms. KGK had provided no evidence of any effort to find work in or around Clair or as to hereducation, skills and training. Nonetheless, the Chambers judge knew she had been able to find some employment there prior toseparation, remarking there was no evidence Ms. KGK had gone back and reapplied for those positions.

He characterised her assertion oflack of employment prospects as “yet another bald statement with next to no evidence corroborating her claim”, by which I take him tomean that Ms. KGK had not provided any details or documentary evidence to support her averments (at para 33). Moreover, the Chambersjudge remarked that Mr. LTK had agreed to pay Ms. KGK $8,500 per month, which “would go a long ways to alleviating [her] financialconcerns even if she was not able to find a job” (at para 34). [29] Lastly, the Chambers judge assessed what he saw as perhaps Ms.

KGK’s “strongest argument… for moving to Moose Jaw”,namely, the oldest child’s medical conditions (at para 35). But even then, he found her characterisation of the oldest child’s circumstanceswas “not borne out by the medical information filed” (at para 35). Again, this was months after the Adjournment Fiat wherein a judge hadsuggested that the parties “marshal better evidence regarding [the oldest child’s] medical situation and the availability and proximity ofnecessary medical resources” (Adjournment Fiat at para 17). Notably, in this regard, it was Mr.

LTK who had filed the majority of thedirect medical evidence related to the oldest child’s medical circumstances and the availability of medical resources. For her part, Ms.KGK had chiefly averred to what she said others had told her about the child’s medical requirements.

[30] Another reason the Chambers judge gave for rejecting Ms. KGK’s characterisation of the oldest child’s medical circumstanceswas that the child’s cyst had existed prior to separation and had not then been seen as requiring relocation from Clair. As to the child’sepilepsy, the Chambers judge found the evidence indicated that it was being managed and, importantly, the evidence did not support Ms.KGK’s assertion that the child had to be near a “major” hospital.

Rather, the evidence supported the inference that any concerns in thisregard could be addressed by the nearby hospital in Wadena, Saskatchewan. [31] As part of this appeal, Ms. KGK and Mr. TNE each put before us an application to adduce fresh evidence. Ms. KGK’s evidencewas in respect of the medical status of the oldest child and as to the current well-being of the children in Moose Jaw. Mr. LTK does notobject to our receipt of this new evidence (it is new evidence because it was created after the September Fiat).

However, even thoughadduced by consent, I find the new evidence does not change the Chambers judge’s overall factual conclusions as to the status quo prior toseparation or as to what interim custody and parenting arrangements would be in the children’s best interests going forward. In its mostrelevant terms, the evidence speaks to the oldest child’s anxiety about returning to the family farm without Ms. KGK. However, theChambers judge was alive to this fact when he made the Interim Order (see July Fiat at para 14).

Therefore, while relevant, the evidencedoes not bear decisively on the issue of what custody and parenting arrangements are in the best interests of the children, would not haveaffected the result of the September Fiat, and does not mandate intervention by this Court to change that result on appeal. In myassessment, the new evidence speaks far more to the negative effect on the oldest child of his dislocation from the family home in Clairthan it provides a reason to perpetuate that dislocation. [32] I find no merit to Ms.

KGK’s secondary argument that the Chambers judge erred by failing to address the separation of siblingsin the Interim Order. On the facts of this case, it was open to and not unreasonable for the Chambers judge to find that it would be in thechildren’s best interests to live in a week-on/week-off shared parenting arrangement with both parents, if Ms. KGK resided in the Clairarea; and that it would be in the children’s best interests to live primarily with Mr. LTK, if Ms. KGK chose to remain in Moose Jaw.

Ms.KGK’s position is inconsistent with the current circumstances under which she has, since the September Fiat, granted Mr. TNE two fullweeks per month of access with the oldest child, thereby herself separating the siblings. Nonetheless, the Chambers judge did not orderthe same week-on/week-off rotation for the oldest child, cognisant of Mr. TNE’s then two weekends per month of access to him, amongother considerations.

Although it was been alleged as such, I do not see this as overlooking the issue of the separation of siblings but asdirectly addressing it and minimising the detrimental effect of that factor in either of the custodial eventualities contemplated under theInterim Order. [33] Turning to address Ms. KGK’s principal argument in more direct terms (i.e., that the Chambers judge failed to account for theimpact of a change in the “primary parent” when assessing the best interests of the children), I find her appeal must fail on the facts andthe law. First, the Chambers judge did not find that Ms.

KGK had been the “primary parent” prior to separation but rather that she hadbeen the “primary caregiver” (at para 8). He further found the pre-separation status quo had been one of shared parenting and there is nobasis to conclude there was material error in that finding. In argument, Ms. KGK quite properly acknowledged that the term “primaryparent” (and, for that matter, “primary caregiver”) has no legal status and is not a trump card in an inquiry into the best interests ofchildren (Russell v Russell at para 26; see also Ackerman v Ackerman, 2014 SKCA 86 at para 56, 48 RFL (7th) 1).

In Gilles v Gilles,Wilkinson J.A. said (at para 24): …The mother wears her label of ‘primary parent’ as though it were a merit badge. A characterization of a parent as a child’s ‘primarycaregiver’ is not, ipso facto, a judicial endorsement as ‘best caregiver’.

A parent can be the dominant physical and emotional presence in achild’s life in a less positive sense as well. [34] Furthermore, s. 3(1) of The Children’s Law Act, 1997 provides that, unless otherwise ordered by a court or agreed to by theparents (unless the parents never cohabitated after the birth of the child in question), “the parents of a child are joint legal custodians of thechild with equal rights, powers and duties.” To be clear about the application of this law in the circumstances of this case, the parties hadcohabitated for ten years, there were no prior court orders relating to child custody and the parties had not agreed to anything other thanjoint legal custody of their children with equal rights, powers and duties.

The fact one parent has acted as the “primary parent” or “primarycaregiver” or other similar description is a factor that must be considered but it cannot override the analysis required under the law, whichmust begin with the legal presumption that “the parents of a child are joint legal custodians of the child with equal rights, powers andduties”. The Supreme Court stripped the tattered veil of legal cogency from the so-called “tender years doctrine” decades ago.

In Young vYoung, (SCC), [1993] 4 SCR 3, L’Heureux-Dubé J. wrote: “Although the welfare principle long predates the 1970s, itwas at that time that the emerging focus on the rights of children began to supplant the tender years doctrine, as courts adopted theprinciple expressed by de Grandpré J. in Talsky v. Talsky, (SCC), [1976] 2 S.C.R. 292, at p. 293, that ‘the paramountconsideration in custody matters is the welfare of the infants’”. In this regard, s. 8(

a) of The Children’s Law Act, 1997 states that a court,when making, varying or rescinding an order for custody of a child, must “have regard only for the best interests of the child” (emphasisadded).

Section 8(

c) reinforces this singular focus by providing that a court shall “make no presumption and draw no inference as betweenparents that one parent should be preferred over the other on the basis of the person’s status as a father or mother”. [35] Second, I do not agree that the Chambers judge failed to analyse the circumstances or failed to do so properly.

He workedthrough a detailed assessment of the pre-separation status quo, the extant circumstances, and the reasons given for altering the pre-separation status quo, all in an effort to determine what custody and parenting regime might be in the best interests of the children. It isclear the Chambers judge was alert to all of the relevant evidence and that his assessment of the pre-separation status quo and extantcircumstances directly underpinned his decision-making. [36] Importantly, Ms. KGK did not and does not now say that Mr.

LTK is unable or unfit to parent the children; rather, sheadamantly contends only that he does not have the time to do so, being a successful grain farmer. Mr. LTK, on the other hand, averred thathe is willing to parent the children, has hired an additional farmhand and has otherwise arranged to facilitate his parenting of the childrenon a week-on/week-off rotating schedule. The Chambers judge took this information and more into account in the problematiccircumstance where Ms.

KGK had unilaterally taken the children to Moose Jaw and thereafter imposed her one-sided views on access,thereby negatively affecting the relationship between Mr. LTK and the children. This circumstance is relevant and material to determiningthe best interests of the children under s. 6(5)(

a) of The Children’s Law Act, 1997, which provides that a court making a custody ordershall “give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of thechild and, for that purpose, shall take into consideration the willingness of the person seeking custody to facilitate that contact”. Putplainly, the evidence did not support the drawing of an inference that the move to Moose Jaw would improve Ms. KGK’s ability or

capacity to care for the children or to meet their needs and, most certainly, not in a manner that would outweigh the detrimental effect of removing the children from the Clair district and the family home and estranging them from Mr.

LTK, their home community, their friends, their extended family, their school and their activities. [ 37 ] Returning to the September Fiat , in summarising his findings under the inquiry into what custody and parenting arrangements would be in the children’s best interests going forward, the Chambers judge wrote: [45] The majority of the respondent’s reasons for moving to Moose Jaw are focussed on herself and not on the children’s best interests.

Putting aside the problems I have identified with her evidence, there is no evidence that the petitioner was ever verbally or physically abusive to the children, that they have been assaulted by anyone in their home community or that they do not have any friends or support in the Clair district. The only reason for the respondent’s move that has anything to do with the children was to be close to a “major” hospital for [the oldest child’s] medical issues. But, there is no evidence that it had to be a major hospital.

There is a hospital in Wadena capable of dealing with [him] if he has another seizure and an ambulance service available to transport him to the Children’s Hospital in Saskatoon, if need be. He is on a waitlist for surgery to have his cyst removed at the Children’s Hospital and when that day arrives, he will have to travel from either Clair district or Moose Jaw to Saskatoon.

Clair is slightly closer to Saskatoon than Moose Jaw. [46] There are no compelling reasons justifying the respondent relocating the children to Moose Jaw and I have concluded that it is not in their best interests to do so. [The three youngest children] have lived their entire lives on the farm until the parties’ separation. [The oldest child] was two years old when the parties married and has lived the majority of his life on the farm at Clair.

His biological father lives in Moose Jaw but [the oldest child] only sees him two weekends per month. [47] All of the children went to school in Quill Lake, have friends in the district and took

part in many extracurricular activities in the area. The petitioner’s family reside in the area and the children spend time with them. The respondent’s parents live in Moose Jaw and she would often take the children to see them. [48] Removing the children from the only home they have ever really known and settling them in Moose Jaw where they had no friends, had never attended school before or been involved in any activities is a significant and needless disruption to them. [49] The petitioner runs a significant farming operation in and around Clair and could not move to Moose Jaw.

Although the respondent spent more time than the petitioner looking after the children when they were together, by moving to Moose Jaw, she has not only displaced the children from their friends, their school and activities but she has curtailed the petitioner's ability to spend parenting time with his children. [50] The petitioner deposed that the children have told him they enjoy the farm, they miss being there and seeing their friends and that they do not want to go to Moose Jaw. The respondent deposed that the children are happy in Moose Jaw.

She said that [the oldest child] is not telling her that he wants to return to the farm and the girls have said that they want things to stay the way they are. From my perspective, the children are telling each party what they want to hear. However, what is indicative of the children's true feelings can be found in the admissions made by the respondent in her material. Specifically, she acknowledged that the children do not have any close friends in Moose Jaw yet. She said that the children have told her that they do not want to leave their home but are tired of the parties fighting.

And they have told her that they love the petitioner and miss the farm at times. It is obvious from these comments that the children miss the farm and the community they grew up in and would like nothing more than to be back there with the petitioner, the respondent, their friends and family. [51] At the end of the day, I have determined that on an interim basis, it is in the best interests of [the children] that they return to live in the Clair district.

If the respondent is prepared to relocate back to that community with the children, given her apprehension about living in Clair or Quill Lake, I will allow her to take up residence with the children within a 20-mile radius of the petitioner’s farm. If, as she maintains, it is important for [the oldest child] to be close to a hospital, this will give her the ability to take up residence in Wadena where there is a hospital.

Wherever she resides within that radius, the children shall attend Quill Lake School where they have been attending previously. [52] If the respondent returns with the children then it is in the best interests of [the three youngest children] that the parties share parenting of them on a week-on/week-off basis with exchanges occurring on Fridays after school.

Given [the oldest child’s] medical issues and the parenting arrangement between the respondent and [the oldest child’s] biological father, it is appropriate that [the oldest child] live primarily with the respondent and the petitioner have parenting time with him one week per month from a Friday to a Friday that coincides with the petitioner’s week on with the girls but does not infringe on [the child’s] biological father’s parenting time with him. [53] If the respondent is not prepared to relocate back to a 20-mile radius from the farm then all four children shall reside primarily with the petitioner and the respondent shall have such reasonable access to them as she can arrange with the petitioner. [54] Irrespective of whether the respondent returns to the Clair district with the children or not, the parties shall equally share the February school break, the Easter break, the Christmas break and summer holidays subject only to [the oldest child’s] biological father’s time with [him] over those same holidays.

IV. Conclusion [ 38 ] The approach to appellate review of an interim custody and access order requires the Court to find and articulate a material error before intervening. In this case, there is no indication that the Chambers judge failed to consider or overlooked relevant factors or evidence. There is no suggestion that he failed to properly weigh all of the relevant factors. Having reviewed the evidence, I am unpersuaded that the Chambers judge ignored or misdirected himself with respect to relevant evidence or the law.

Nor do I hold any suspicion that the Chambers judge forgot, ignored or misconceived of any evidence in a way that affected his conclusion. Rather, the September Fiat exhibits the Chambers judge’s comprehensive understanding of the relevant law and the proper approach to such matters, as well as a thorough examination of the affidavit evidence relevant to the inquiry called for in these circumstances. Lastly, the new evidence tendered by consent in this appeal would have had no effect on the Chambers judge’s reasoning or conclusions and does not

otherwise mandate appellate intervention in this case. [ 39 ] There are no exceptional circumstances inviting appellate interference with this interim family law order. As the Chambers judge properly made the order he appropriately assessed to be in the children’s best interests, there is no reason to disturb the Interim Order and, importantly, no legal basis to intervene in this matter. The appeal must be dismissed. [ 40 ] Lastly, I must commend counsel for their cooperation in expediting the hearing of this appeal, which occurred slightly more than a month after Ms.

KGK filed her notice of appeal (October 28, 2020 — December 10, 2020).

Nonetheless, as is often the case, even the effluxion of that short period of time necessitates a variation to paragraph 55 of the September Fiat but only to the extent that the children shall be returned to reside in the Clair district no later than February 15, 2021, and the custody and parenting arrangements set out therein shall be resolved on the circumstances as at that date, not October 31, 2020. [ 41 ] I recommend that the parties arrange for a pre-trial conference on the issues of custody, access and parenting on an expedited basis. [ 42 ] I would dismiss the appeal. Mr.

LTK is entitled to costs in the usual way “Caldwell J.A.” Caldwell J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A. Jackson J.A. (in dissent) I. Introduction [ 43 ] This appeal raises important issues regarding the limits on the discretionary authority of a Chambers judge to determine interim parenting arrangements. Specifically, this appeal concerns when it is appropriate to order the return of children to the area of the family home without determining whether it would be in their best interests to have their primary residence with one parent or the other.

The appeal also concerns when it is appropriate to order week on/week off parenting on an interim application. The issues arise in the context of a decision of the mother to leave the family home with the children following an allegation of domestic abuse. [ 44 ] In my respectful view, the Chambers judge in this case erred by ordering the return of the children to the Clair district to the care of their father, Mr. LTK, rather than leaving the children in the City of Moose Jaw under the care of their mother, Ms. KGK. The Chambers judge rejected Ms.

KGK’s reasons for relocating to Moose Jaw, but he did not determine whether it would be in the best interests of the children to have their primary residence be with their father if the mother were not herself prepared to return to the district of Clair. In addition, he erred by ordering shared parenting if the mother returns to the Clair district. Further, in the context of both the question of primary residence and of shared parenting, he did not come to grips with Ms. KGK’s complaints of verbal and domestic abuse. [ 45 ] In any event, the appeal must be allowed for two additional reasons.

First, the parties separated in March of 2020. Due to COVID-19, the interim application before the Chambers judge was not heard until July 6, 2020, and a decision regarding mobility and parenting could not be rendered until September: L.T.K. v K.G.K. (28 September 2020) Saskatoon, FLD 87 of 2020 (Sask QB) [ September 28 Fiat ]. The filing of the notice of appeal stayed the Chambers judge’s decision and the application to lift the stay was not heard until November 28, 2020. The stay was not lifted, but the appeal was set down on an expedited basis. Even at the hearing of the appeal, Mr.

LTK conceded that no order could be made in relation to the children until sometime in January. He did not see them moving before Christmas. As a consequence, by the time this decision takes effect, the children will have been living under an interim arrangement for almost eleven months. [ 46 ] Second, another aspect of the present reality is that the move to Moose Jaw has permitted KP, the oldest child, to develop a closer bond with his biological father, Mr. TNE, who also lives in Moose Jaw. According to the fresh evidence, which was admitted by consent, Mr.

TNE now has access to KP almost 50 percent of the time. He had previously only been able to parent KP on alternating weekends due to his work schedule. Mr. TNE, who was permitted to make full submissions on the appeal, is opposed to KP returning to the Clair district. The fresh evidence also shows that KP, who lives with a brain cyst and childhood epilepsy, has become increasingly anxious about the move. In order to give effect to this fresh evidence, KP would have to be permitted to remain in Moose Jaw.

Such a decision would see the children separated and would also create what can only be considered a “Sophie’s choice” for their mother. [ 47 ] In my respectful view, having regard for these reasons, it is not in the best interests of the children to dismiss this appeal. The parties should be directed to proceed to a pre-trial conference to be held as quickly as the Court of Queen’s Bench can accommodate the parties’ demand. At this time, it is only possible to make an interim order confirming the present status quo and to provide the children with generous access to Mr.

LTK. [ 48 ] I will expand on my reasons for allowing the appeal in the analysis that follows.

II. Factual and Legal Background A.

Summary [ 49 ] The factual and legal background is complex. A skeletal chronology, which will be expanded upon in the discussion that follows, is in order: (

a) March 20, 2020: Ms. KGK leaves the family home with the children; (

b) March 30, 2020: Ms. KGK brings three of the children to the family home in order for them to spend three days with their father and after an incident takes them away again later that same day; (

c) March 31, 2020: Mr. LTK signs and files his petition seeking various remedies; (

d) April 9, 2020: Mr. LTK applies for an order returning the children [April 9 Motion]; (

e) April 20, 2020: Ms. KGK responds to the April 9 Motion; (

f) April 21, 2020: Mr. LTK applies for an order declaring that his April 9 Motion should be heard notwithstanding the Chief Justice’s “Directive and Advisory of March 19, 2020” [March 19 Directive] regarding the hearing of urgent matters; (

g) April 22, 2020: a Chambers judge determines the matter is not urgent as the removal of the children was not wrongful within the meaning of the March 19 Directive; (

h) June 1, 2020: Ms. KGK files her counter-petition; (

i) July 6, 2020: Mr. LTK’s April 9 Motion is heard; (

j) July 10, 2020: an interim fiat setting parenting times is issued; (

k) September 28, 2020: the children are ordered returned to the Clair district and other orders are made ( September 28 Fiat ); (

l) October 28, 2020: Ms. KGK’s appeal is filed; (

m) October 30, 2020: Mr. LTK applies to lift the stay caused by the filing of the notice of appeal; (

n) November 28, 2020: the stay is not lifted, but the appeal is set down for hearing on December 10, 2020, and times are fixed for the filing of factums, and the father of KP is permitted to apply for standing to make submissions, file a factum and make a fresh evidence application; and (

o) December 10, 2020: the appeal is heard. B. Initial background and events of March 20 and March 30, 2020 [ 50 ] The parties have been married for ten years. They have a nine-year-old daughter, and twin girls, who have just turned seven. The mother, Ms. KGK, has a son from a previous marriage, with respect to whom the respondent stands in loco parentis . This is KP, who will be thirteen years old in April of 2021. Up until when the parties separated, KP resided with them at their family farm in the Clair district and his biological father had regular weekend access. [ 51 ] Mr.

LTK operates a 6,700 acre grain-farm. Mr. LTK has recently begun operating a seed cleaning business on the farm site as well. In addition to this work, he rebuilds bulldozers and scrapers and resells them. Ms. KGK has had little paid employment outside of the home since the birth of the youngest children. [ 52 ] The marriage has been a rocky one. Ms. KGK alleged physical and verbal abuse. Mr. LTK denied the physical abuse and alleged an incident of such abuse on the part of Ms. KGK against him. [ 53 ] The parties sought out counselling on a fairly regular basis. Ms.

KGK’s leaving and returning appears to have been a constant in their marriage. In the last year of their marriage, Mr. LTK estimated that Ms. KGK had left with the children “at least six times”. When Ms. KGK left the family home, she would almost invariably take the children and go to her parents’ home, which is in Moose Jaw where she grew up and where KP’s biological father lives. On all past occasions, Ms. KGK would return to the farm and the parties would resume their relationship. [ 54 ] On February 3, 2020, Ms. KGK took the children and rented a unit attached to a motel in a town near the farm.

She and the children returned the same night. She said KP had told her he could not live there. When Ms. KGK got back to the farm, she asked Mr. LTK to leave the family home and move in with his parents, who reside close to the farm. He declined. [ 55 ] Beginning sometime in February of 2020, both parties began consulting lawyers. Around March 20, 2020, Ms. KGK said she asked Mr. LTK to help with the children as they were now at home on a full-time basis as a result of the school closures caused by COVID-19. She said he refused, leading to an incident – the exact details of which are contested in the evidence.

As on past occasions, Ms. KGK left and took the children with her to Moose Jaw. Mr. LTK claimed that she took substantial clothing and food when she left. Ms. KGK claimed she took with her only what she had purchased that day as a “large shop” to prepare for the COVID-19 shutdown and what was necessary for the children to wear and play with in the short term.

[ 56 ] On March 21, 2020, the day after Ms. KGK left with the children to go to Moose Jaw, KP had what was ultimately diagnosed as an epileptic seizure. He was hospitalized. KP also has a cyst on his brain that may at some point require surgery. The exact state of this child’s medical needs was the subject of evidence before the Chambers judge and the fresh evidence application in this Court.

I will delve further into KP’s present medical condition when I outline the fresh evidence sought to be admitted in this Court. [ 57 ] Notwithstanding what had occurred on March 20, 2020, and March 21, 2020, the parties were able to agree to meet in Regina on March 30, 2020. They agreed that Mr. LTK would take the three younger children to the family farm for a three-day visit on that day. However, on March 30, 2020, Ms.

KGK sent the respondent a text message saying that instead of going to Regina, she was coming with the children to the family farm to spend the night: “See you at home hunny bunny Boo Boo Bear” and “Love you, Can’t wait to see you its been awhile”. Mr. LTK asked her not to come. Ms. KGK asserts she did not get Mr. LTK’s message. Mr. LTK claims that Ms. KGK responded by saying that “until [he] had a court order, she could do whatever she wanted”. This exchange set up the issue as to whether Ms. KGK had truly left the marriage on March 20, 2020, or whether this was part of the cycle of the parties’ fighting – Ms.

KGK’s leaving and then returning. [ 58 ] What happened when Ms. KGK arrived at the farm is also contested, but it is admitted that Mr. LTK asked a friend of his to be present to defuse the situation. Ms. KGK tried to get into the house but it was locked and the locks had been changed. At some point, Mr. LTK’s friend prevented Ms. KGK from entering the home. During the course of the event, Ms. KGK was injured. The RCMP were called. Ms. KGK left with the children. Mr. LTK’s friend was charged with aggravated assault. The police did not proceed with the charge. It is presumed that the charge has been stayed. C. Mr.

LTK filed his petition on March 31, 2020, and applied for a custody order on April 9, 2020 [ 59 ] The day after the March 30, 2020, incident, Mr. LTK signed and filed his petition seeking divorce and collateral relief in the Court of Queen’s Bench. He did not ask that the primary residence of the children be with him. He asked for joint custody and shared parenting saying, “I am an equal caregiver of the children and it is in their best interest to have equal time with both parents. I have the ability to care for them on an equal basis”.

In his petition to the court, he averred that it was “no longer possible for me to reconcile or resume cohabitation with my spouse”. [ 60 ] On April 9, 2020, Mr. LTK applied in Queen’s Bench Chambers for these interim orders: 1. An Order declaring the children’s habitual residence to be within 30 kilometers of Clair, Saskatchewan and an order preventing the respondent from relocating the said children of the marriage from Clair, Saskatchewan or within 30 kilometers of Clair, Saskatchewan, without the written consent of the petitioner, or further Order of this Honourable Court. … 3. An Order pursuant to

Section 6 of The Children’s Law Act, 1997 , [ SS 1997, c C-8.2 ] that the parties have joint custody of their children … With shared parenting on a week on/week off basis should the respondent return to residing within 30 kms of Clair, Saskatchewan with the children being in the petitioner’s care commencing on Friday, April 17 at 4 p.m. Said parenting times being subject only with respect to [KP] to be worked around his time with his biological father. 4. An Order pursuant to

Section 6 of The Children’s Law Act, 1997 that if the respondent does not return from Moose Jaw, Saskatchewan to reside within 30 kilometers of Clair, the children would reside in the petitioner’s primary care in Clair, Saskatchewan. [ 61 ] In support of a shared parenting relationship, Mr. LTK provided an affidavit asserting the following: 10. The respondent and I equally shared the parenting and household responsibilities when I was not physically in the field. When the children were in school, I would help get them ready and onto the bus before heading out for the day.

After school or on the kids[’] days off, if I was out working I would usually call or go to the house to see who wanted to come outside with me or help me around the yard or on the farm or just to play with them. We would then spend time at the lake near our house or doing other outdoor activities. 11. The respondent and I also equally took the kids to the doctor or other appointments. In addition, the kids are all involved in various activities. The respondent and I would split taking the girls to their activities equally, such as to dance or singing lessons.

In addition, I helped to coach [KP’s] hockey for four and a half years. This past year, I ran a once a week hockey league for the boys, including [KP] that were not involved in competitive hockey. 12. I spend as much time with the children as I possibly can. Throughout my relationship with the respondent I would typically be the one to take the girls to their horse to ride. I also enjoy taking the kids snowmobiling, swimming, and to our fire pit that we built. I take them to sporting events, bowling, visiting neighbours. I also enjoy helping them with their homework and reading to them at night. … 26.

I want the children in my care on a week on and week off basis subject to the time [KP] spends with his biological father. 27. Given my separation with the respondent, I have made arrangements for an additional hired hand to help with seeding so that I am able to be present with the children whenever I have them in my care. If I do require assistance, then my family has offered to help out as well. I am therefore able to care for the children on a half-time basis. D. On April 20, 2020, Ms. KGK responded to the April 9 Motion and, on June 1, 2020, filed her counter-petition

[ 62 ] Ms. KGK described her role in the household prior to separation in her affidavit sworn April 20, 2020. This affidavit was made in response to the April 9 Motion and includes the following: 12. Throughout our marriage, I did everything I could to help out on the farm as well as provide most of the care for our children. I started out helping cook meals for harvest and seeding. I would run the grain cart and even drove the combine while pregnant. In the winter while the kids were in school, I helped haul grain to the elevator. When the twins were born, my in-laws retired and moved … .

I then started to cook the meals on my own for all the hired men and our family. There were times I would be running out the door to get the meals to the field while they were hot but by the time I would get them there the meals would sometimes be cold. This was because I would have four young children needing my attention and the newborn twins would be screaming so I would have to pull off to the side of the road and nurse them. I would also take the children to their extracurricular activities as [Mr. LTK] would be busy in the field. 13.

I booked all the doctor appointments and immunizations, and stayed at home to raise the children. I also had to help cook the meals for [Mr. LTK’s] men and do the payroll. I did this throughout the marriage. … 18. I would sometimes get a high school student to come and watch the girls so I could drive [KP] to meet his dad, as [Mr. LTK] was not around. This past winter, I had asked [Mr. LTK] if he would be able to drive [one child] for school skating as parents had to help get kids to the rink and tie skates. I had the flu at this time. [Mr.

LTK] said no, that it was his job to farm and my job to look after the children. Another time, I had asked him if he would put some water in the horse trough as it was really cold out and I had to lift the pails up high. The pails were heavy and awkward. He told me, “I’m not going to take time out of my job to fill the horse trough with water when my job makes more money on the pay scale than yours, so you do it”. I did end up doing it myself in the end as it had to be done, but he just followed after and ended up dumping the water out of the trough because there was straw in it.

Attached to this my affidavit and marked as Exhibit “D” is a copy of the text exchange from February 28, 2020 when I was trying to get [Mr. LTK] to drive for skating at the school. He had refused to do so. [ 63 ] In the exhibited text message exchange referred to in paragraph 18 of Ms. KGK’s affidavit, Mr. LTK wrote: “Remember you said it was my job to farm [and] yours to raise kids. I guess do your job”. [ 64 ] Ms. KGK also described Mr. LTK’s role on the farm: 31. … [Mr. LTK] will farm at least 6,700 acres this year. He oversees all aspects of the production and marketing of the farm.

He also does seed cleaning as a side business. [Mr. LTK] works Monday to Saturday all year round. He is out of the house by 8:00 a.m., if not earlier, and back once supper is ready. The majority of the time, once the children were in bed, he would go back out to the shop and continue to work. During seeding and harvest he works every day except when it is raining. I have had to cancel going to work at the school when the children were sick because [Mr. LTK] was too busy to care for them. Even when I had the flu and the children were all home during the Covid-19 [pandemic], [Mr.

LTK] would not come in to help. [ 65 ] Ms. KGK described “many incidents” of abuse. Specifically, she recounted three incidents of physical abuse as having taken place on October 3, 2015, on March 20, 2020, and on March 30, 2020 – the incident with Mr. LTK’s friend. She attached pictures of the bruising allegedly received on these three occasions. She referred to ongoing verbal abuse and described the language used. [ 66 ] On June 1, 2020, Ms. KGK filed her answer and counter-petition, also asking for exclusive possession of the family home.

She described the particulars of the current custody and access arrangements of the children as follows: 32B The particulars of the current custody and access arrangements of the children are as follows: The children are primarily in my care. I continue to be a stay-at-home mother. [KP] is my son from a previous relationship. I have sole custody of him. The Petitioner has stood in loco parentis to [KP]. which is satisfactory for the following reasons: I have always been the children’s primary caregiver. This is the arrangement that they have been accustom[ed] to since birth.

The Petitioner parents the children infrequently and has not been very involved with their care. Throughout our marriage, the Petitioner has been more involved in the farming operation. … 32I Other then the Petitioner and myself, the following persons may have an interest in the custody of or access to, or may have an obligation to support, the children: No one. [ 67 ] She asked that custody of the four children be joint, but that the children should continue to be in her “primary care with fixed parenting time set out for [Mr. LTK]”. She suggested that Mr.

LTK could exercise parenting time in Moose Jaw during the week and on alternate weekends on the farm. She averred that if Mr. LTK exercised this proposed parenting time, “he would spend much more time with the children than he ever did at any time during our marriage and prior to our separation”. E. Mr. LTK’s reply affidavit [ 68 ] In his reply to paragraph 18 of Ms. KGK’s affidavit, Mr. LTK averred as follows: [12] In reply to paragraph 18, I did most of the driving to Southey to take [KP] to see his dad and [Ms. KGK] would keep the girls, or if [Ms. KGK] drove, then I would keep the girls.

My mom would also drive him some time [ sic ]. On occasion, when [Ms. KGK] did drive, then she would get a babysitter to assist if I was unavailable. It was the respondent who would always try to tell me that the farm was my job and the kids were her job. I do not recall the incident where she said she had the flu. There were many times though that I stayed in the

house or came in from the field when the kids were sick to be with them. Mr. LTK wrote the following in reply to Ms. KGK’s paragraph 31: “In reply to paragraph 31, both the respondent and I have had to cancel things for the children” (at para 17). [ 69 ] In his reply to Ms. KGK’s allegations of physical abuse, he denied he had injured Ms. KGK and offered his version of the events, explaining the origins of her injuries. He did not deny the verbal abuse but said she too had been verbally and physically abusive to him. F.

Delay caused by COVID-19 and the application to expedite the April 9 Motion [ 70 ] As is common knowledge, most trial court operations went into emergency mode on March 16, 2020. On March 19, 2020, the Chief Justice of the Court of Queen’s Bench issued the March 19 Directive, providing for the hearing of urgent matters only. The March 19 Directive permitted such applications to proceed if the matter was made urgent due to “the wrongful removal or retention of a child”.

In order for a matter to be heard during the effective period of the March 19 Directive, it was necessary to apply for an order permitting a matter to be heard on an expedited basis. [ 71 ] On April 21, 2020, Mr. LTK applied for an order declaring that his April 9 Motion fell within the parameters established by the March 19 Directive. The Chambers judge who heard this particular application described the basis of Mr. LTK’s application and Ms.

KGK’s position in this way: [14] Counsel for the father argues there is urgency in the matter due to the wrongful removal of the children to a location 3–3 1/2 hours distant from the former family home. He says there is only one possible child-centred reason for the move, being [KP’s] present medical situation. Counsel for the mother argues there were compelling reasons for the

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