S.A.R. v A.K.L., 2021 SKCA 124

Court of Appeal for Saskatchewan Docket: CACV3476 Citation: S.A.R. v A.K.L. , 2021 SKCA 124 Date: 2021-09-15 Between: S.A.R. Appellant (Respondent) And A.K.L. Respondent (Petitioner) Before: Leurer, Barrington-Foote and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Mr. Justice Leurer The Honourable Mr. Justice Barrington-Foote On appeal from: DIV 336 of 2017, Regina Appeal heard: June 9, 2021 Counsel: S.A.R. on his own behalf R. Bradley Hunter, Q.C., for the Respondent Kalmakoff J.A. I.

INTRODUCTION [ 1 ] S.A.R. and A.K.L. were married. They have two children together. When they separated in 2016, they shared parenting of their children under an informal arrangement. In June of 2017, however, A.K.L. applied to the Court of Queen’s Bench for an order granting her joint custody and primary residence of the children and an order permitting her to relocate with them to a town approximately 430 kilometres away from where they had been living. In May of 2019, the trial of that application took place. The trial judge granted A.K.L.’s application.

He determined that joint custody was appropriate and that the children’s best interests would be served by them having their primary residence with A.K.L. in the new location ( A.K.L. v S.A.R. (23 Aug 2019) Regina, DIV 336/2017 (Sask QB) [ Trial Decision ]). [ 2 ] S.A.R. appeals from the Trial Decision .

He contends the trial judge erred in a number of ways, including misapprehending or failing to consider important portions of the evidence, failing to properly weigh the various factors bearing on the children’s best interests, and failing to apply the proper legal test when deciding whether the children’s best interests would be served by the parenting regime ultimately imposed. [ 3 ] S.A.R. also seeks to introduce new evidence on the appeal. [ 4 ] For the reasons that follow, I have determined that both S.A.R.’s application to introduce new evidence and his appeal must be dismissed. II.

BACKGROUND [ 5 ] S.A.R. and A.K.L. were married on July 4, 2009. They separated permanently in November of 2016. They are the parents of two children who are now 11 and 8 years of age. [ 6 ] At the time of separation, S.A.R and A.K.L. were living on an acreage between Regina and Lumsden. Initially, they attempted to implement a “nesting” arrangement, where the children remained in the family home and the parents alternated between being present in that home with the children and staying in their own separate residences. But S.A.R. and A.K.L.’s finances were tight and their housekeeping habits were very different.

They also disagreed on the appropriate split of parenting time. For these and other reasons, the nesting arrangement did not work very well, or for very long. After approximately a month and a half, S.A.R. and A.K.L. ended the nesting arrangement. He remained in the family home; she moved into a rental home in the town of Lumsden.

They continued to share parenting time, on a roughly equal basis, with the children moving back and forth between their residences. [ 7 ] On June 15, 2017, A.K.L. filed a petition in the Court of Queen’s Bench and an application seeking joint custody and primary residence of the children and permission to relocate with the children to Macklin, Saskatchewan. She said she wished to relocate there for two main reasons: (

i) it is where her parents and other family members reside; and (ii) she had been offered full-time employment in nearby Provost, Alberta. She had also recently begun a romantic relationship with R.M., a man who lived near Macklin. [ 8 ] S.A.R. opposed the relocation of the children.

He responded with an application seeking joint custody and orders that he parent the children for 9 days out of each 14-day period, and that their primary residence be with him. [ 9 ] When these competing applications were first heard in Chambers, the Chambers judge dismissed A.K.L.’s application for interim relocation of the children. He determined that the relevant status quo had been shared parenting and that an interim move as

proposed by A.K.L. would cause “profound disruption to the children’s lives”. Accordingly, he ordered that S.A.R. and A.K.L. wouldhave interim joint custody of the children with equal shared parenting time on a week-on / week-off basis until the matter could be fullyresolved at trial (A.K.L. v S.A.R. (18 Jul 2017) Regina, DIV 336/2017 (Sask QB) [Interim Decision]). [10] The parenting arrangement ordered by the Interim Decision remained in place until the matter went to trial in May of 2019. Inthat interim period, the parties continued to live in Lumsden. S.A.R. continued to experience financial difficulty.

By early May of 2018,the family home, where S.A.R. had been living, had been listed for sale. He moved into a two-bedroom apartment. A.K.L.’s parentshelped her secure a house in Lumsden; they made the down payment to purchase the house, and she made the mortgage payments. [11] A.K.L.’s relationship with R.M. progressed. At the time of trial, they were expecting a child together and A.K.L. testified thatthey were planning to marry. [12] The trial took place in the Court of Queen’s Bench in late May of 2019.

The Trial Decision was rendered on August 23, 2019.The custody and parenting issues were determined in A.K.L.’s favour. The trial judge concluded that the children’s best interests would beserved by joint custody, but with a parenting arrangement that made A.K.L. the parent of primary residence and permitted the children tomove with her to the Macklin area.

He also ordered that S.A.R. would have the children in his care every second weekend from Friday toSunday, five full weeks out of each summer, and 65% of all school holidays, and that A.K.L. would bear the bulk of the responsibility fortransporting the children to and from S.A.R.’s residence. III. THE ARGUMENTS ON APPEAL [13] S.A.R. argues that the Trial Decision should be overturned because the trial judge misapprehended material aspects of theevidence relating to the parties’ respective financial positions and his capacity as a parent.

This misapprehension of the evidence, saysS.A.R., led the trial judge to weigh the various considerations relevant to the determination of the children’s best interests improperly.S.A.R. also contends that the trial judge erred in his analysis of the factors bearing on the question of whether A.K.L. should be permittedto relocate with the children. He submits that the Trial Decision should be set aside and the children returned to reside primarily with him. IV. THE STANDARD OF REVIEW [14] Custody and parenting orders are exercises in judicial discretion. They are generally heavily fact-dependant.

A deferentialstandard of review applies to appeals from such orders. Absent an error in law, a palpable and overriding error of fact, or amisapprehension of evidence, an appeal court should not intervene. An error of law includes a failure to correctly identify the legal criteriawhich governed the exercise of discretion or a misapplication of those criteria.

However, an appellate court cannot overturn the trialdecision simply because it would have made a different decision or balanced the factors in a different way than the trial judge did (Van dePerre v Edwards, 2001 SCC 60 at paras 13–15, [2001] 2 SCR 1014 [Van de Perre]; Olfert v Olfert, 2013 SKCA 89 at para 17, 417 Sask R283 [Olfert]; Ackerman v Ackerman, 2014 SKCA 86 at para 14, 442 Sask R 113 [Ackerman]; Peterson v Peterson, 2019 SKCA 76 at para20, 30 RFL (8th) 341 [Peterson]; S.T. v J.T., 2019 SKCA 116 at para 44, 33 RFL (8th) 253); Kot v Kot, 2021 SKCA 4 at para 20, 63 ETR(4th) 161. [15] Not all errors are material.

Where an error or misapprehension cannot reasonably be seen as having affected the conclusion, itdoes not provide a basis for appellate intervention (Van de Perre at para 15; Kane v Proffitt, 2018 BCCA 106 at para 42, 6 RFL (8th) 282). V. THE ISSUES [16] Taking into account the trial record, the submissions of the parties, and the standard of review that governs appeals fromcustody and parenting decisions, the following issues arise for determination on this appeal: (

a) Should the evidence that S.A.R. seeks to adduce be admitted? (

b) Was there a material error of fact or law, or a material misapprehension of the evidence, that affected the parenting order? VI. ANALYSIS A. Should the evidence that S.A.R. seeks to adduce be admitted? [17] S.A.R. applies to introduce two affidavits, both sworn on May 28, 2021, as new evidence on this appeal.

He has entitled one“Best Interest Affidavit of the Appellant” [Best Interest Affidavit] and the other “Conflict Affidavit of the Appellant” [Conflict Affidavit]. [18] Applications to adduce evidence in civil appeals are governed by Rule 59 of The Court of Appeal Rules and require an exerciseof discretion by the Court.

The principles applicable to the exercise of that discretion vary depending on whether the evidence existedbefore the decision from which the appeal is taken or arose thereafter (Maitland v Drozda (1983), (SK CA), 22 Sask R1 (CA) [Maitland]; Turbo Resources Ltd. v Gibson, (SK CA), [1987] 60 Sask R 221; Mental Health and AddictionsServices v S.B., 2021 SKCA 18 at para 8, 456 DLR (4th) 587 [S.B.]; Cannon v Saskatchewan (Court of Queen’s Bench), 2021 SKCA 77at para 46 [Cannon]). [19] Where the evidence sought to be introduced on appeal existed at the time of the trial, this Court has consistently employed thetest set out in cases such as Maitland and R v Palmer, (SCC), [1980] 1 SCR 759 [Palmer] to guide its discretion.

In thecontext of proceedings that engage the best interests of children, the Maitland / Palmer test is applied in a somewhat more flexible fashion,

with new evidence being admissible on appeal where the following prerequisites are met: (

a) the evidence could not have been adduced at trial; (

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

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

d) the evidence is credible. See, for example: Riel v Riel , 2017 SKCA 74 at para 15 , 99 RFL (7th) 367 [ Riel ]; C.L.B. v J.A.B. , 2016 SKCA 101 at para 22 , 484 Sask R 228; M.H. v H.S. , 2019 SKCA 122 at para 10 ; Babich v Babich , 2020 SKCA 25 at para 29 ; and A.M.D. v M.R.M. , 2021 SKCA 71 at para 34 .

The overarching principle is that this Court has all the necessary authority to receive further evidence that is in the best interests of the child: B.L . v Saskatchewan (Ministry of Social Services) , 2012 SKCA 38 , [2012] 12 WWR 468; S.T. v J.T ., 2019 SKCA 116 at para 94 , [2020] 6 WWR 55 [ S.T. ]. [ 20 ] Where the evidence a party seeks to introduce on appeal arises after the trial, the test is slightly different, as observed in Cannon : [49] Evidence that arises after the hearing need not meet the Palmer test, but the Palmer factors are still relevant to the question of whether such evidence should be admitted ( C.H. v S.F. , 2021 SKCA 24 at para 18 [ C.H. ]).

The evidence must be admissible and relevant to an issue under appeal “in the sense that it bears upon a decisive, or potentially decisive, issue in the proceeding”; it must be credible; and if believed, it must reasonably have the potential, when taken with the other evidence adduced, to have affected the result ( C.H. at para 18 ).

Further, as stated in S.B. at paragraph 8 , “it must not violate the principle of public policy that favours finality to litigation”. [ 21 ] In my view, even applying the more flexible test required in the circumstances, neither of S.A.R.’s affidavits meet the test for admissibility on this appeal. [ 22 ] The Best Interest Affidavit, for the most part, pertains to events that have occurred, and how the parenting arrangement imposed by the Trial Decision has functioned, since that decision was rendered.

The affidavit also refers to a letter that A.K.L. purportedly wrote in 2016 to the parents of a man with whom she had been involved in a romantic relationship but who, prior to the letter being written, had died. S.A.R. says this letter supports a conclusion that, had the man not passed away, A.K.L. would not have become romantically involved with R.M. and would not have sought to relocate with the children.

S.A.R. submits that this evidence is properly admissible because, if this Court allows his appeal, it provides an evidentiary basis upon which to determine the children’s current best interests and make a new parenting order. [ 23 ] S.A.R.’s argument must be rejected, for two reasons. [ 24 ] First, the Best Interest affidavit fails to meet the requirements of being highly relevant and potentially decisive of the children’s best interests. The portion of the affidavit pertaining to the letter A.K.L. purportedly wrote to the parents of the deceased man is of no relevance whatsoever.

Speculation about whether she would have relocated if past events had turned out differently could not possibly have any bearing on the children’s best interests. Although the remainder of the affidavit, which is S.A.R.’s account of how the parenting arrangement has been functioning in the time period since the trial, is potentially relevant to the children’s best interests, I am not persuaded that it is highly relevant or potentially decisive on that point (see, for example: A.O. v T.E. , 2016 SKCA 148 at paras 118–120 , 88 RFL (7th) 34 [ A.O. ]).

This portion of the affidavit speaks to S.A.R.’s view of various matters that have transpired since the Trial Decision was rendered. It has not been tested and is lacking in context. Moreover, it does not pertain to any particular issue that decisively tilts the balance in a different direction than the trial judge found. As such, it fails to meet the second, third and fourth prerequisites set out above. [ 25 ] Second, even if we were to allow S.A.R.’s appeal, the nature of the evidence in the Best Interest Affidavit appears to be aimed at demonstrating a change in circumstances.

As the court pointed out in S.T. , a party is not necessarily precluded from leading fresh evidence “that matters had changed, particularly in the period after the Judgment issued, in a manner that might meet this test” (at para 95). However, as was noted in Riel at paragraph 20 , an application to introduce new evidence on appeal “must…not be in substance a disguised application to vary”.

Generally, evidence of a change in circumstances will be more properly placed in a variation application in the Court of Queen’s Bench, where the opposing party would have the opportunity to challenge it and lead evidence in reply so that the necessary findings of fact could be made.

Determining whether there has been a material change of circumstances on the basis of contested evidence is not the role of this Court. [ 26 ] In the Conflict Affidavit, S.A.R. deposes that Lisa Smart and Jeff Deagle, the lawyers who represented him at trial, were in a position of conflict, because they had previously been members of the law firm that represented A.K.L. at trial. He says that, although he was aware that Ms. Smart and Mr.

Deagle had previously worked at that firm during the time A.K.L. was a client, he had not fully understood the ramifications of that fact until after the trial and, if he had possessed that understanding prior to trial, he would not have agreed to be represented by them.

S.A.R. argues that this evidence should be admitted on the appeal because it is relevant to the question of whether the quality of legal representation that he received was so deficient as to render the trial unfair. [ 27 ] S.A.R. also makes an assertion in the Conflict Affidavit about a member of this Court, who was not part of the panel that heard this appeal, having improperly presided over an unrelated matter, many years ago, involving a dispute between S.A.R. and a rural municipality.

He says this is relevant because it illustrates why he is particularly sensitive to issues of conflict. [ 28 ] In my view, none of the evidence contained in the Conflict Affidavit is properly admissible as evidence on this appeal. To start, S.A.R.’s notice of appeal does not assert unfairness of the trial on the basis of inadequate legal representation or a conflict of interest as a ground of appeal. Nor has he applied to amend the notice of appeal in that respect.

Furthermore, even if we were to proceed on the basis that such a ground of appeal has been properly raised, there is nothing in the Conflict Affidavit that meets the test for admission as evidence on the appeal.

[ 29 ] Lawyers owe a duty of loyalty to their clients and have an ethical obligation to avoid situations where they have a conflict of interest. A lawyer must always be in a position to provide complete and undivided loyalty to the interests of their client (see, generally, R v Neil , 2002 SCC 70 , [2002] 3 SCR 631). [ 30 ] When a lawyer acts for one client against a former client, two main conflict-of-interest-related concerns arise. The first is that the lawyer will be in a position to misuse confidential information obtained from the former client.

The second is that the lawyer will fail to effectively represent the current client’s interests because of the relationship with the former client. A lawyer cannot properly act in a matter where they may use confidential information obtained from a former client to the detriment of that client. Nor can a lawyer who is tempted to prefer their own or other interests over those of their current client provide effective representation ( Canadian National Railway Co. v McKercher LLP , 2013 SCC 39 at paras 23–26 , [2013] 2 SCR 649). [ 31 ] S.A.R.’s argument here is premised on the theory that because Ms. Smart and Mr.

Deagle had previously worked at the firm that represented A.K.L., they must have felt a loyalty to her or her trial counsel and, as a result, did not fulfil their professional obligation to diligently protect his interests. But there is nothing in the trial record or the Conflict Affidavit that supports this contention. In advancing this argument, S.A.R. focused on the fact that his lawyers failed to raise objections to certain questions that A.K.L.’s counsel asked during cross-examination.

However, in my view, none of the questions that he drew to our attention in attempting to illustrate this point were inappropriate. The fact that his lawyers did not object to proper questions asked by opposing counsel does not support an assertion that they failed to provide adequate representation. Nor does the fact that his lawyers did not attempt to tender irrelevant evidence such as the letter referred to in the Best Interests Affidavit. Moreover, there is no evidence to suggest that Ms. Smart or Mr.

Deagle ever had any type of relationship with A.K.L., or even that they had any contact with her or her file while she was a client of their former law firm. [ 32 ] The confidentiality concerns to which S.A.R. refers also lack an evidentiary basis. There is nothing in the record to suggest that Ms. Smart or Mr. Deagle used any confidential information they may have obtained from A.K.L. and, even if they had, it is unclear how that could have prejudiced S.A.R.

In that respect, the conflict that S.A.R. describes is not one that, on its face, raises any concern about the quality of representation he received or the fairness of the trial. [ 33 ] In the end, even taking the Conflict Affidavit into account, S.A.R.’s argument that he did not receive adequate legal representation because his lawyers were in a position of conflict is nothing more than a bare assertion with no support in the evidence.

That being the case, none this proposed evidence is relevant to, or potentially decisive of, the issues in play on this appeal. [ 34 ] In the result, S.A.R.’s application to adduce new evidence on the appeal must be denied. B. Was there a material error of fact or law, or a material misapprehension of the evidence, that affected the parenting order? [ 35 ] S.A.R. contends the trial judge made a number of factual findings that were rooted in misapprehensions or mischaracterizations of the evidence.

While he acknowledges that some of the factual errors he raises are not individually significant, he says their cumulative effect was serious and material and infected the trial judge’s analysis of the legal issues. S.A.R. also asserts that the trial judge committed legal errors in his analysis of the factors relevant to the determination of whether A.K.L. should have been permitted to relocate with the children. 1.

The Trial Decision [ 36 ] In order to properly analyse S.A.R.’s arguments, it is useful to begin by reviewing the Trial Decision . [ 37 ] The central issue at trial was the appropriate parenting arrangement. More particularly, given the parties’ respective plans for their places of residence, the issue was where, and with whom, the children should primarily live. [ 38 ] The trial judge began by reviewing the evidence. Over the course of 105 paragraphs, he canvassed the testimony given by A.K.L., S.A.R. and the various other witnesses who had testified.

In the process of this review, the trial judge explicitly discussed evidence pertaining to the parties’ current living arrangements, the needs and conditions of the children, A.K.L.’s plan for relocation, and the parties’ general performance as parents. [ 39 ] Along the way, he made a number of findings, including the following: (

a) S.A.R. “clearly loves his children very much and they do well when they are with him”, but his perception of their interests is “not as clear, insightful or immediate” as A.K.L.’s (at para 40); (

b) S.A.R. often placed his own interests ahead of children’s, as evidenced by his insistence on having them cared for by a paid babysitter, rather than letting them spend time with A.K.L. when he required childcare during his designated parenting time (at paras 42– 48); (

c) S.A.R. also did a number of things that were “either to the detriment of the children or not to their benefit”, including insisting that they be present when A.K.L. packed her things to move out of the family home (contrary to her request) and taking numerous actions that were designed to make communication between the parties more difficult. The trial judge found this to be “problematic”, and a source of tension (at paras 66–68 and 102); and (

d) A.K.L. was “the primary parent for the [children] when they were together as a family” and she was “the primary caregiver and most involved person” with the children during the time the parties lived together (at para 89). [ 40 ] The trial judge framed the “central issue” in the trial as being mobility (at para 110) and ultimately determined that it was in the children’s “best interests that they be primarily with their mother” and that they move with her to the Macklin area, provided that S.A.R.

continued to have “generous access and parenting time” (at para 127). He reasoned that, even though the children had connections to Lumsden and to S.A.R., the move to Macklin to reside primarily with A.K.L. would permit them to “achieve more, experience more and be more secure” (at para 128). He explained the factors that led him to this conclusion in the following way: [131] [A.K.L.] has done without any support from [S.A.R.] since separation. This has necessitated she work full time, take on some debt to make ends meet, provide for the children, and meet her obligations.

It is no longer necessary that she pay all of these expenses unaided by [S.A.R.]. [R.M.] will assist greatly in improving her and the boys' standards of living. He will assist in improving their access to a lifestyle that is more likely to see them succeed. [132] Being primarily with [A.K.L.] is in the best interests of the children. The move with her to Macklin is also in the best interests of the children. This is based on the following facts and factors:

a) I do not find that the move is occurring for any improper purpose. [A.K.L.] is originally from Macklin. She grew up there and still has significant family there. [A.K.L.] has now found a meaningful future life there as well. She has found a partner, [R.M.], who is good for her and good for the boys as a potential stepfather. [R.M.] and [A.K.L.] are expecting a child together and I find the relationship has strong prospects of being long term.

b) It is not reasonable for [R.M.] to move to Lumsden. He has a significant farming operation and cattle ranch in Macklin and many connections to that community. His family lives there including his sister, her husband and her children. c) [A.K.L]'s life has been naturally evolving in Macklin as opportunities arose there. She was acting reasonably in pursuing those opportunities to advance herself as [S.A.R] has not been employed sufficiently to pay support. She is now moving forward in a most natural and understandable way where her new partner resides. Her life will be enhanced.

The children's lives will be enhanced due to her efforts to have a better life with the assistance of [R.M.]. d) [A.K.L.]'s savings on rental costs in Lumsden will provide greater financial security to the family as a whole, most importantly the children. [S.A.R.] has had sporadic employment at best. He has not been forthcoming in providing all relevant income information to [A.K.L.]. He has not secured full-time employment but is content to spend much time on employment insurance.

e) It is [A.K.L.] who has secured, through [R.M.]'s contribution, the financial grounding for the children. This in turn provides them with opportunities that will enhance their lives and give them greater options for their futures. Part of this will be greater resources to put towards post secondary education.

f) I find that even with the more recent shared parenting arrangement, the boys have been primarily parented by [A.K.L.] throughout their lives considering the time when the family was together as well. She has been the person that was constantly there for them. She set up the appointments and ensured they went. She has been and still is their psychological parent. I find that they have always felt completely safe and secure with her. I find that she has never given a reason for them to be frightened of her nor given them reasons to be fearful. This is not the same regarding [S.A.R.]. He has had angry outbursts, sometimes directed at them.

g) While [S.A.R.] appears to have made progress in this regard, I find that he has previously done things, said things and acted in ways that were not good for the children. One of these of more recent origins is not allowing [A.K.L.] to care for them when she had time during the week to do so. Instead he insisted on using his limited resources to hire a sitter while denying that opportunity to [A.K.L.]. This was inappropriate and self-centred.

I find this was negative for the children, deprived them of quality time with their mother and only in his own interests and spiteful at that. h) [S.A.R.] continues to lack the capacity [A.K.L.] has to not prefer his own interests over that of the boys'.

While he is more self-aware now than three years ago, the incidents which include: Ramble being disposed of, [a child, A.]'s haircut prior to the important family wedding, failures to provide [A.K.L.] with the parenting time she was entitled to, changing the plan for [A.K.L.] to have her parenting time with the children based on his own interests and not the children's, scaring [A.] so that his trip to Edmonton for his birthday was diminished and insisting on using a sitter when [A.K.L.] was ready, willing and available to care for the boys, are some of the examples that show he is not able to separate a tactical advantage he sees himself gaining from truly putting the children's best interests first. i) [S.A.R.]'s communications with [A.K.L.] belie a lack of appreciation as to what is best for the children.

Many texts and emails establish [S.A.R.]'s unnecessary and inappropriate reactions to straightforward matters and attempts to prompt upset in [A.K.L.]. [A.K.L.] has continually strived to communicate accurately and in a way that minimizes conflict and problems focusing instead on the boys' best interests. j) [S.A.R.] has been unable to set aside his own irritation and upset in order to have common parent/teacher interviews. This is not due to [A.K.L.]'s actions. She has been willing to meet jointly. [S.A.R.] cannot seem to get to that point.

k) The proposed move is admittedly some four and a half hours away and [A.K.L.] will be tasked primarily with transportation given it is her that is moving. She has established that she is the parent who will ensure access is provided to the other parent if she is the primary place of residence for the boys. [S.A.R.] has proven that he is not the parent who would ensure [A.K.L.]'s access if he was the place of their primary residence.

With [S.A.R.]'s cooperation [A.K.L.] will ensure his access and it can result in a continuing close connection between [S.A.R.] and his children. 1) The home life the boys will have in the Macklin area will be positive and beneficial to them. [R.M.] and [A.K.L.] are both close and appropriate with each other and the children. They will have a brother or sister for the boys in the near future. Many cousins, aunts, uncles and grandparents live there. They have opportunities to be involved in farming and ranching and are already showing an interest in that. A solid, supportive home is of benefit to the boys.

m) The boys out-of-school time can be maximized with [S.A.R.]. As the natural course of things, with the boys being in Macklin and [S.A.R.] being in Lumsden, it is clear weekdays will be less accessible to him. He will need to have additional time when it works for travel to provide him reasonable and generous access.

n) The boys are familiar with the home and area that they will be primarily residing in. Rapid adjustment to life in Macklin will take place. The children have progressed far enough in their connection thereto that they will flourish in Macklin.

o) The household the children will primarily reside in will be solid and supportive. They already have very strong ties to [R.M.], who appears to be a very good person and a positive influence in their lives as well as in [A.K.L.]'s. [R.M.] will never replace [S.A.R.] or be a substitute to the children for their father, but it is a positive that he is a solid and responsible person who cares for them and for [A.K.L.]. Having a strong home life with a supporting partner for [A.K.L.] enhances the children's quality of life as well. p) [A.K.L.] will be able to pay off debt which has accumulated given she has not been provided the support from [S.A.R.] he was required to provide.

q) The children will have a larger yard, access to the great outdoors the rural farm provides and a capacity to have pets as well as raise and manage livestock of their own. This is not possible in the current apartment situation in Lumsden.

r) The boys are of an age, character and intellect where the change is something they can understand and adjust to. There are no special needs that come into play and weigh against the move. s) [A.K.L.] and the boys will have a much larger extended family on which to rely and to whom they are bonded in Macklin. [S.A.R.] is not close to the few family members he has in the Regina area. He is still on the outs with his brother while [A.K.L.] gets along with him and his family.

t) The cost of activities in Macklin are lower than in Lumsden. u) [A.K.L.] can maintain a reasonably high level of contact between the children and [S.A.R.]. There is FaceTime, Skype, email, text messages and various ways this can occur, even given the distance. [R.M.]'s flexible life enables him to provide transportation when he is not in the throes of his busy seasons of seeding and harvest, as well as [A.K.L.]'s capacity for transportation given she will likely work part time. v) [S.A.R.] does not have a career or long-term employment that moving to the Unity area is simply not feasible.

He has failed to explore the possibility of finding work there, once again to give himself a tactical advantage in the present proceeding. Thus, information on what might be available for someone with construction skills such as he has is uncertain. He can relocate more readily than most people in his situation if he chooses to explore that potential. [133] I come to the conclusions set out herein in consideration of the personalities of the boys and all the evidence led at the trial. This in totality confirms [A.K.L.] is the appropriate parent to have primary residence of the boys.

It confirms it is not in their best interests that [S.A.R.] be their primary place of residence. It confirms their best interests see them living with [A.K.L.] in the Macklin/Unity area. [ 41 ] Notwithstanding his determination that the children would primarily reside with A.K.L., the trial judge did not order S.A.R. to pay child support, because he accepted A.K.L.’s concession that, in the circumstances, paying child support would amount to undue hardship for S.A.R., and the children would be well-supported by the combined incomes of A.K.L. and R.M.

He also stipulated that the question of child support could be “approached and varied” in two years if S.A.R.’s income had “risen dramatically thus providing him some capacity to provide support” (at para 144). The trial judge also made orders with respect to division of family property. 2. Custody and Mobility – the governing legal principles [ 42 ] The Trial Decision granted A.K.L.’s application to relocate with the children from Lumsden to Macklin.

S.A.R. alleges the trial judge committed material errors in his assessment of the evidence and the factors relevant to the determination of the question of mobility and, consequently, primary residency and access. [ 43 ] At the time of the trial, s. 16 of the Divorce Act , RSC 1985, c 3 (2d Supp) [ Act ], governed orders for what were then termed custody and access. It provided judges with broad discretion, guided by two key principles in cases where, as here, both parents are involved and willing to care for the children, namely: (

i) best interests of the children; and (ii) maximum contact. In that respect, s. 16 of the former Act read, in relevant part, as follows: Order for custody 16

(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage. … Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. … Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [ 44 ] The wording of s. 16(8) clearly provided that the principal determination to be made in any case involving custody is the best

interests of the child: Van de Perre. The governing jurisprudence reinforces this. Best interests of the child is truly the only relevantconsideration in making a custody order: Gordon v Goertz, (SCC), [1996] 2 SCR 27 [Gordon]; see also Russell vRussell, 2018 SKCA 80 at para 15, 16 RFL (8th) 26. [45] Determining the best interests of the child requires a child-centered analysis, representing the child’s right to the best possiblearrangement in the circumstances.

While parental interests and claims are entitled to serious consideration, they must be set aside wherethe welfare of the child demands it (A.O.). [46] As s. 16(10) read at the time of trial, a court making a custody order was also required to give effect to the “maximum contact”principle. This was, in substance, a recognition that contact with each parent is generally valuable. As the Supreme Court observed inGordon, the maximum contact principle is “mandatory, but not absolute.

The Act only obliges the judge to respect it to the extent that suchcontact is consistent with the child’s best interests” (at para 24). Notably, the maximum contact principle does not create a presumption ofshared parenting.

What maximum contact should be, in any individual situation, depends on the best interests of the child or children inquestion and the particular circumstances of the case (Ackerman at para 40). [47] While the Act was amended, effective March 1, 2021, and s. 16 was significantly overhauled, the key principles that underpinthe making of what are now termed parenting orders and contact orders that are relevant to this appeal remain.

In that respect, the newversion of s. 16(1) provides that a court “shall take into consideration only the best interests of the child of the marriage in making aparenting order or a contact order”, and s. 16(6) requires the court to “give effect to the principle that a child should have as much timewith each spouse as is consistent with the best interests of the child”. [48] Another significant change to the Act deals with relocation. Effective March 1, 2021, ss. 16.9 to 16.95 speak to cases involvingrelocation.

Among other things, those provisions spell out what notice must be given by parents or other persons with parenting time ordecision-making responsibility who wish to relocate (s. 16.9); specify under what circumstances relocation will be permitted (s. 16.91);list the factors that may or may not be considered by the Court in determining whether relocation is in a child’s best interests (s. 16.92);and state who bears the burden proof in contested proceedings (s. 16.93). [49] Of course, none of ss. 16.9 to 16.95 were in force at the time of trial.

The Act, as it existed prior to March 1, 2021, did notcontain provisions that spoke specifically to mobility or relocation. Under the former version of the Act, decisions respecting contestedmobility applications were governed by the criteria set out in Gordon, the operation of which was summarized by this Court in Alansari vKreke, 2020 SKCA 122: [16] In Gordon v Goertz, McLachlin J. (as she then was) gave four directions to judges to guide their way through a mobilityapplication (at para 49), which may be paraphrased as follows: (

a) the judge must embark on an inquiry into what is in the best interests of the child, having regard to all the relevant circumstancesrelating to the child’s needs and the ability of the respective parents to satisfy them; (

b) the inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitledto great respect; (

c) the only issue in the inquiry is the best interest of the child in the particular circumstances of the case; and (

d) the focus in the inquiry is on the best interests of the child, not the interests and rights of the parents. [17] Justice McLachlin then set out a number of factors designed to help judges determine what is in the best interest of the child (atpara 49): (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs ofthe child; (

f) disruption to the child of a change in custody; and (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [18] Relying on the direction in Gordon v Goertz, a judge will assess the evidence to determine which of four scenarios is in the bestinterests of the child or children in question, although all four scenarios may not be viable in each case (Olfert v Olfert, 2013 SKCA 89 atparas 20-22, 417 Sask R 283): (

a) the child and the applicant relocate, and the respondent does not; (

b) the child does not relocate and neither do the parents; (

c) the child and the respondent do not relocate, and the applicant does; and (

d) the child relocates and so do the parents. [19] When assessing the viable mobility scenarios under the factors set out in Gordon v Goertz, judges have considered matters from

the following non-exclusive list: (

a) how long each parent has cohabited with the child; (

b) the quality and the quantity of each parent’s parenting time with the child; (

c) the age, maturity, and needs of the child; (

d) whether and how relocation would better enable the applicant parent to meet the child’s needs; (

e) the distance and cost of travel if relocation were allowed; (

f) whether the respondent parent could or would relocate; (

g) whether either parent’s new partner (if any) would also relocate; (

h) the willingness and ability of the applicant parent to ensure the child’s access to the respondent parent and to foster that parental relationship; (

i) whether the parents have entered into an agreement as to relocation; (

j) the financial resources of each of parent; (

k) the child’s wishes; and (

l) the permanence of the proposed relocation. [20] To be clear, not all of the foregoing concerns will be relevant in every mobility application and there may well be other concerns that are relevant to a specific application. … [ 50 ] From all of this it is clear that, as in every case, the best interests of the children in mobility cases must be determined from a child-centric perspective ( Olfert at para 18 ). Cases involving applications to relocate are not about the “rights” of the parent. The best interests of the child always govern even if they do not align with the wishes or interests of a parent.

In some cases, relocation may be in the child’s best interests, even if it has the effect of limiting access for one parent or the other. [ 51 ] In the context of an appeal, the question of whether the trial judge has properly applied the relevant legal principles must be assessed through the lens of deference. The question is not whether this Court would have balanced the relevant factors the same way the trial judge did; appellate intervention is only warranted if the record reveals a material error of fact or law, or a material misapprehension of the evidence. 3. The errors alleged a.

Misapprehension of evidence [ 52 ] S.A.R.’s first line of attack is that the trial judge made findings of fact that were based on a misapprehension of the evidence relevant to two main aspects of the analysis: (

i) the parties’ respective financial positions and S.A.R.’s ability to meet the children’s needs in that respect; and (ii) S.A.R.’s capacity as a parent. i. Financial position and ability to meet the children’s needs [ 53 ] The ability of parents to meet the needs of their children is unquestionably an important consideration in determining best interests. Financial resources are part of that equation.

To that end, a parent’s financial means - while they cannot be permitted to overwhelm the analysis - are a relevant consideration. [ 54 ] S.A.R. argues that the trial judge misapprehended the evidence respecting the parties’ respective financial positions in several ways, the cumulative effect of which was material and serious. While I would agree that the trial judge’s reasons reveal a mischaracterization of some of the evidence, that error was not of such a nature as to persuade me that it would be appropriate to interfere with the bottom-line result.

Let me explain. [ 55 ] One area in which S.A.R. suggests the trial judge misapprehended the evidence relates to his employment history, which the trial judge used terms such as “spotty” ( Trial Decision at para 50) and “sporadic” (at para 132(d)) to describe.

He also found that S.A.R., as of the date of trial, had “not secured full-time employment” and was “content to spend much time on employment insurance” (at para 132(d)). [ 56 ] S.A.R. contends the trial judge could only have reached such conclusions by misapprehending or ignoring evidence about the circumstances that led to changes in his employment or to periods of non-employment. In that regard, he points to his testimony that his employment at the time of trial, although probationary in nature, was full-time.

He also takes particular issue with the trial judge’s use of the term “content” to describe S.A.R.’s attitude towards his frequent changes in employment or periods of non-employment. He says that, by using that term the trial judge must be taken as having ignored his testimony that such instances were often due to factors beyond his control, such as his medical needs, or layoffs due to downsizing. [ 57 ] With respect, I see nothing in the portions of the reasons with which S.A.R. takes issue that gives rise to a reasoned belief that the trial judge ignored, overlooked or misconceived the evidence.

While I would agree that the trial judge misdescribed the nature of S.A.R.’s employment at the time of trial this does not, in my view, reflect a serious misapprehension of the evidence that affected the final

conclusion. As for the trial judge’s characterization of S.A.R.’s employment history, his approach to receiving employment insurance, and the amount of time that his income was derived from employment insurance, I see no basis to conclude that the trial judge ignored or misapprehended S.A.R.’s account of the gaps in his employment history. He simply took a different view of that account than S.A.R. thought he should have.

There is no basis for us to intervene here. [ 58 ] S.A.R. also submits that the trial judge misapprehended the evidence relevant to A.K.L.’s financial circumstances, in particular the evidence regarding her housing costs, the accumulation of debt, and the fact that she had not received child support. [ 59 ] As to housing costs, A.K.L. testified that, when she had initially moved into her own accommodation, she had been paying $1,500 per month in rent, which took up more than 50 per cent of her salary.

To alleviate that pressure, her parents had helped purchase a house for her to live in; they had made the down payment and she was responsible for making the monthly mortgage payments. S.A.R. points to paragraph 4 of the trial decision, where the trial judge states that “[A.K.L.] presently lives in Lumsden in a home that her parents own, but it is a rental arrangement for her”.

He says this was a misapprehension of the evidence A.K.L. had given, and contends that this error led the trial judge to later erroneously conclude that A.K.L.’s move to Macklin (where she would live with R.M.) was in the children’s best interests because it would alleviate the financial pressure of having to rent a house (at para 138).

He argues that this misapprehension of the evidence was serious because it caused the trial judge to see A.K.L.’s housing situation in Lumsden as a financial liability (rent cost) as opposed to a financial benefit (building equity). [ 60 ] I cannot agree with S.A.R.’s argument on this point. Whether the monthly payment A.K.L. was making is seen as a rental payment or a mortgage payment is of little significance in the grand scheme of the best interests analysis. The evidence was clear that, when A.K.L. was living in Lumsden, she was faced with a housing cost that was onerous for her, given her financial means.

As I read the trial judge’s reasons, he concluded that her planned living arrangement with R.M. would substantially reduce the bite that housing costs took out of her monthly budget and, at least in the immediate future, her financial picture and her ability to meet the needs of the children would be improved. On the whole of the evidence, such a conclusion was entirely reasonable.

Accordingly, in my view, even though the trial judge mischaracterized the nature of the housing payment A.K.L. was making at the time of trial, that mischaracterization had no impact on the overall analysis. [ 61 ] S.A.R. also argues that the trial judge made a material error, grounded in a misapprehension of the evidence, when he found that A.K.L.’s proposed new living arrangement with R.M. would enable her able to “pay off debt which has accumulated given she has not been provided support” that S.A.R. was “required to provide”, and that this was a factor weighing in favour of her position (at para 132(p)).

He points out that no child support order had ever been made. Furthermore, he says, there was evidence to establish that A.K.L.’s income was greater than his, so she may well have been obligated to pay child support to him if a proper analysis had been conducted. S.A.R. also says there was no evidence that A.K.L. had incurred any debt apart from the family debts the two of them shared. [ 62 ] On this point, I agree that the trial judge erred, at least insofar as it was incorrect for him to suggest that S.A.R. had failed to pay child support that he was “required” to pay.

No child support order had ever been made and the evidence was that, apart from the initial brief period when the parties attempted the nesting arrangement, there had been roughly equal-time shared parenting since separation. [ 63 ] Moreover, while there was evidence that the income S.A.R. reported in his 2016 tax return was higher than the income A.K.L. reported in her tax return that year, the situation was reversed in 2017 and 2018, with A.K.L. reporting a higher income those years.

The discrepancies in their incomes during those years were not large and, in the end, given the shared parenting arrangement that existed during that time, there was no basis for the trial judge to conclude that any substantial amount of child support had ever been payable by S.A.R. [ 64 ] I would also agree that the trial judge’s finding that A.K.L. had taken on “some debt to make ends meet” (at para 131 and referred to again at para 132(p)) reflects an error in his treatment of the evidence.

A.K.L testified that her parents had provided her with almost $100,000 that went to paying her legal fees, making a down payment on a house, and giving her $1,500 per month when that was necessary to help her meet ongoing expenses. There were no particulars provided about whether there was an expectation that this money would be repaid and, as such, no clear basis in the evidence for this to be characterized as debt. [ 65 ] That said, I am not persuaded that these errors provide a basis to interfere with the bottom-line conclusion.

As is apparent from the trial judge’s reasons, S.A.R.’s limited financial resources were only one of a multitude of factors that led him to conclude the children’s best interests would be served by residing primarily with A.K.L. and moving with her to Macklin. There was ample evidence to support the conclusion that A.K.L.’s overall financial picture and, thus, that of the children if they were primarily in her care, would be improved if she were to relocate to reside with R.M. ii.

S.A.R.’s capacity as a parent [ 66 ] In coming to the conclusion that the children’s best interests would be served by having their primary residence with A.K.L., the trial judge made a number of findings unfavourable to S.A.R. regarding his capacity as a parent. S.A.R. contends that these findings were the product of a misapprehension of the evidence on a number of fronts. [ 67 ] In this respect, S.A.R. points first to the trial judge’s finding, at paragraph 132(

j) of the Trial Decision that he had “been unable to set aside his own irritation and upset in order to have common parent/teacher interviews”. S.A.R. says that, by finding this to be something that weighed against him in the analysis, the trial judge must have misapprehended or ignored the evidence of the children’s teachers, who testified that they did not see separate interviews as being unusual or a problem. He contends the trial judge also ignored his reasons for wanting separate interviews. S.A.R.’s argument, however, overlooks the other side of that evidentiary coin.

The same teachers who testified that separate parent interviews were not unusual also agreed that joint interviews for separated parents are possible, and that they provide a good opportunity for communication about the needs of the child. A.K.L. testified that she wanted S.A.R. to attend parent- teacher interviews with her and that she thought it would be beneficial and would show an inclination on his part to communicate.

From all of this, the basis upon which the trial judge reached the conclusion that S.A.R.’s reluctance to participate in joint parent-teacher interviews was a factor that reflected negatively on his capacity as a parent is readily apparent. I see nothing that leads me to believe the trial judge ignored or misapprehended evidence relevant to that conclusion. He simply took a different view of the evidence than S.A.R.

would have liked. [ 68 ] S.A.R. also takes particular issue with the trial judge’s statement, in paragraph 53 of the Trial Decision , that he was “not in agreement that [A.] was in general a worrier or an overly sensitive child”. Once again, S.A.R. suggests this reflects a misapprehension of the evidence that led to an erroneous finding that he did not understand the needs of his children as well as A.K.L. did. I disagree.

In this portion of the Trial Decision , the trial judge appears to have been referring to a line of questioning that took place during cross- examination, where S.A.R. was being asked about certain things he had said or done that appeared to have upset either the children or A.K.L. At one point during that line of questioning, A.K.L.’s counsel asked him about an incident where it was alleged that S.A.R. threw A. into a snowbank. S.A.R. said that A. had been having a temper tantrum and was flailing around and ended up falling on the ice as a result.

The line of questioning ended with this exchange: Q How come you weren’t able to calm him down and talk to him and work it through, spend ten minutes, Tell me what’s going on, Buddy, blah, blah, blah. Why -- how come you were not able to do that? Why -- why couldn’t you calm him down? A We both couldn’t calm him down? Q I’m asking about you; I’m not asking about [A.K.L.]. How come you were unable to do it? A I was getting out the door. Q Isn’t this part of your anger, sir?

You just grab him and just pull him out again, just like you killed the cat, just like you -- you tell him about this -- the -- the trip, just like you -- just like you pour water in his face? You just lose control with him, and -- or you try to control him and do things like that? Isn’t that what you’re up to? A No. Q In any event, you’ll agree that this went very badly for you, right? A No. Q So your son,[A.], you’ll agree, is a very -- is a sensitive and easily-upset boy, correct?

A No. [ 69 ] Even though, earlier in his testimony, S.A.R. had said that A. was “an emotional child” and that he did not want him to “be so serious all the time”, the last answer given in the passage reproduced above is consistent with what the trial judge stated in paragraph 53. I see no basis to suggest that this is a misapprehension of the evidence. [ 70 ] S.A.R. also contends that the trial judge’s determination that his evidence was not credible was based on a misapprehension of the evidence.

In this respect, he points to the trial judge’s finding that his account of an event that A.K.L. had described as a fight between him and his brother was “unconvincing” because he did not recall if the incident involved any punches being thrown (at para 100). He says this reflects a misapprehension of the evidence because his testimony was in no way uncertain; it was a blanket denial that any punches had been thrown. However, I would observe that, during cross-examination about this incident, the following exchange took place: Q Okay. Was [A.K.L.] home when you got home? A Yes.

Q Did you tell [A.K.L.] that you punched him, that you punched [the brother, J.]? A Not that I recall. Q Did you tell [A.K.L.] that [J.] punched you? A Not that I recall. Q Did you tell [A.K.L.] that anyone punched anyone? A No. Q Okay. A I don’t recall -- Q Okay. A -- punching. [ 71 ] While S.A.R. had been more categorical, earlier in his testimony, that no punches had been thrown it is easy to see how, on the basis of this exchange, the trial judge may have found his account of things unconvincing.

I see no misapprehension of the evidence here. [ 72 ] S.A.R. also takes issue with several other aspects of the trial judge’s findings regarding his parenting capacity. He says, for example, that the trial judge gave too much weight to past conduct, including the incident where he disposed of the family cat by driving it to a remote area and releasing it into the wild, and too little – or no – weight to the evidence which suggested he had learned from his mistakes and was unlikely to repeat them. I see no merit in this submission. In my view, the trial judge explicitly addressed the progress

S.A.R. had made at paragraph 132(

g) but noted that this progress was overshadowed by the cumulative negative factors set out in paragraphs 132(h), (

i) and (j). All of these factors are relevant considerations and the findings made by the trial judge are grounded in the evidence. We are not entitled to interfere with the way in which the trial judge weighed the relevant factors, simply because we might have weighed them differently. [ 73 ] Finally, on this point, S.A.R. says the trial judge’s conclusion that A.K.L. was the primary parent was based on a “fundamental misapprehension of the facts”.

He says the trial judge overlooked the evidence, including that given by A.K.L., that he was involved with, genuinely cared for, and was a good father to the children. This argument, in my view, runs contrary to what the trial judge said in his reasons. At paragraph 89, after conducting a thorough review of the evidence, the trial judge wrote: …Even with the evidence [S.A.R.] provided it was obvious [A.K.L] was the primary parent for the boys when they were together as a family.

I find [A.K.L.] was the primary caregiver and most involved person with the boys during the time the parties lived together. [ 74 ] At paragraph 132(f), he reiterated this finding and, importantly, concluded that the situation had continued after the parties separated:

f) I find that even with the more recent shared parenting arrangement, the boys have been primarily parented by [A.K.L.] throughout their lives considering the time when the family was together as well. She has been the person that was constantly there for them. She set up the appointments and ensured they went…. [ 75 ] Furthermore, at paragraphs 132(f), (g), (

h) and (

i) of the Trial Decision , reproduced earlier in these reasons, the trial judge extensively canvassed the evidence and provided a detailed explanation of why he concluded that A.K.L. had been the primary parent. [ 76 ] The finding that one parent or the other is the primary parent is a finding of fact. S.A.R. acknowledges that such a finding is entitled to a high degree of deference on appeal. We can interfere with a finding of that nature only if there is palpable and overriding error.

On a review of the evidence as a whole and bearing in mind that the trial judge had the benefit of seeing and hearing the parties testify in person, I see nothing that can be described as an error of that nature. Accordingly, the trial judge’s finding that A.K.L. was the primary parent is entitled to deference. [ 77 ] In the end, S.A.R.’s submissions regarding the alleged errors in the trial judge’s fact finding are largely an invitation to re-weigh all of the evidence and come to a different conclusion. The governing standard of review does not permit us to do that. b.

Alleged errors in the trial judge’s mobility analysis [ 78 ] S.A.R.’s argument under this heading is threefold. First, he submits that the trial judge failed to conduct the necessary child- centred analysis in determining the question of mobility. Second, he asserts the trial judge erred by placing more importance on factors such as the increased contact the children would have with extended family if permitted to move than he placed on fostering their relationship with their father.

Third, he says the trial judge overlooked the fact that the children had a happy and established life in Lumsden that would be disrupted by the move to Macklin. [ 79 ] As I will explain, I do not read the trial judge’s reasons as disclosing any of these errors.

When the Trial Decision is read as a whole, it is clear that the trial judge understood the legal framework that governed the exercise of discretion required of him, and that he conducted his analysis with a focus on the best interests of the children. [ 80 ] The trial judge began his reasons by extensively reviewing the evidence and making several factual determinations. Key among those was that A.K.L. had been the primary parent and caregiver for the children when they were together as a family (at para 89) and that she had a better understanding of what the children’s needs were (at paras 33–48).

He also determined that the housing arrangements for the children would be better in Macklin, with A.K.L., than they would be in Lumsden with S.A.R. (at paras 51–52). [ 81 ] When he turned to analyse the question of mobility, the trial judge instructed himself on the governing law. He outlined the factors listed in s. 16 of the Divorce Act and s. 8 of The Children’s Law Act, 1997 , SS 1997, c C-82 . He also referred to and cited portions from a number of leading authorities, including Gordon , Olfert , and various other decisions that have expanded on the principles set out in those cases.

In doing so, he acknowledged the need to keep his attention squarely focused on the best interests of the children. He summed up his review of the law by saying the following: [124] As pointed out by our Court of Appeal in A.L. v M.L. , 2019 SKCA 61 at para. 30 , when mobility is put in issue by the parties the resolution is to be approached from a child-centric perspective.

To that end, “the capacity of each parent to care for the children, the quality of the children's relationships with each parent and 'significant' other persons, the personality and emotional needs of each child, the children's physical, psychological and social needs, and the parties' future plans for the children,” are all factors. [125] In determining this matter, I am to consider only the best interests of [the children]. This is determined with reference to their condition, means, needs and other circumstances.

The past conduct of any person is relevant only if it relates to that person's ability to act as a parent of a child. It is appropriate to consider what is “as much contact with each spouse” in the context of being “consistent with the best interests” of these children. It is appropriate to consider the status quo . The task is to delve into each of these issues and consider the entirety of the evidence in light of the whole of those considerations. [ 82 ] S.A.R. does not take issue with the trial judge’s statement of the law, but rather with his application of it.

As to the first leg of his argument under this heading, he submits that the trial judge improperly intertwined A.K.L.’s best interests with those of the children. In effect, he says, the trial judge approached the question from the wrong angle by determining that, because the move to Macklin would benefit A.K.L. personally, professionally and financially, it must therefore be in the children’s best interests as well. [ 83 ] I do not accept this argument.

As a starting point, while Gordon instructs that a parent’s reason for moving is only to be considered in exceptional cases, it is not an error for a trial judge to take into account the impact of a move on the financial and emotional well-being of a parent who seeks to relocate in the best interests analysis. A child’s best interests are generally served by parents who are,

themselves, well-functioning and fulfilled.

As long as the analysis remains child-centred, and not parent-centred, the “happy parent – happy child” factor may properly form part of the analysis ( A.L. v M.L . , 2019 SKCA 61 at para 37 , 29 RFL (8th) 89; Peterson at para 41 ; Orring v Orring , 2006 BCCA 523 , 276 DLR (4th) 211). [ 84 ] In this case, while some of the factors the trial judge referred to in his analysis of the mobility question singled out aspects of A.K.L.’s relationship with R.M., when the reasons are read as a whole, it is clear that the trial judge did not lose sight of the need to put the best interests of the children first.

In particular, the trial judge was careful, when considering any benefits that may inure to A.K.L. from moving to Macklin, to maintain focus on whether the children would also benefit as a result. [ 85 ] Moreover, in addition to mentioning the benefits A.K.L. may realize from a move to Macklin, the trial judge explicitly considered a multitude of other factors. In particular, he contemplated which parent, if granted primary residency of the children, would be more likely to facilitate access for the other parent and what impact this would have on their continuing relationship with both parents (at para 132(k)).

He considered how the children’s home lives would be impacted by the move to Macklin and the impending birth of a new sibling (at para 132(l)).

He also fully and fairly considered the other benefits and drawbacks of permitting A.K.L. to move with the children to Macklin, including how their relationship with S.A.R. would be impacted, and how it would affect their housing situation, home life, relationships with extended family, social relationships and friendships, extra-curricular activities, schooling and future prospects. [ 86 ] All of these are relevant considerations and demonstrate, in my view, that the trial judge approached the matter from the requisite child-centred perspective.

This aspect of S.A.R.’s argument cannot succeed. [ 87 ] As to the second and third legs of S.A.R.’s argument under this heading, I observe that the trial judge explicitly considered the importance of fostering the children’s relationship with S.A.R. and also explicitly considered the nature and extent of any disruption that would be caused to the children by a move to Macklin. In fact, S.A.R. does not argue that the trial judge failed to consider these factors but, instead, asserts that they were not given appropriate weight in the analysis.

As a Court of Appeal, we are not entitled, in the absence of an error in principle, to re-weigh the relevant factors to see if they lead us to a different conclusion; the applicable standard of review does not permit that. As was noted in A.O. at paragraph 136 , the exercise of weighing relevant factors “ is not performed to calibrated standards. Nor is it a recipe to be assessed according to its constituent ingredients, in disregard of the final product. It is a task that lies, particularly, within the trial judge’s purview and expertise” (see also K.R. v J.K. , 2018 SKCA 35 at para 51 ).

We are not permitted to intervene just because we may have chosen to weigh the various factors differently ( Peterson at para 63 ). Accordingly, these arguments must also be rejected. [ 88 ] Although decisions regarding custody, parenting and relocation are undoubtedly difficult and often heart-wrenching for the party who comes out on the short end, they are discretionary in nature. Where, as is the case here, a trial judge, in exercising that discretion, considers and weighs the relevant factors and does so in accordance with the governing law, the bottom-line conclusion is entitled to deference. VII.

CONCLUSION [ 89 ] For the foregoing reasons, S.A.R.’s appeal is dismissed. A.K.L. is entitled to the costs of the appeal, including in relation to the application to adduce fresh evidence, calculated in the usual way. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Leurer J.A.” Leurer J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.