Court of Appeal for Saskatchewan Docket: CACV3808 Citation: S.G. v K.B. , 2021 SKCA 133 Date: 2021-10-08 Between: S.G. Applicant/Appellant (Respondent) And K.B. Respondent/Respondent (Petitioner) Before: Ottenbreit, Schwann and Tholl JJ.A. Disposition: Fresh evidence application allowed, appeal dismissed in large part Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Mr.

Justice Ottenbreit The Honourable Madam Justice Schwann On appeal from: FLD 12 of 2021 (QB), Regina Appeal heard: September 7, 2021 Counsel: Karolee Zawislak for the Appellant David Kreklewich for the Respondent Tholl J.A. I. INTRODUCTION [ 1 ] S.G. and K.B. are the parents of a three-year-old child, K.G. In December of 2020, S.G. left the family home in Saskatchewan and moved to Alberta, taking K.G. with her. S.G. asserts that K.B. was aware that she and K.G. were permanently relocating to Alberta and had agreed with her plan. K.B. disputes that he was informed of her plans or that he had consented to the move.

He promptly applied to the Court of Queen’s Bench for an order that the child be placed in his care in Saskatchewan. The Chambers judge granted an interim order, which required K.G. to be returned to Saskatchewan, with equal, shared parenting to be implemented, provided S.G. also came back: K.B. v S.G. (18 March 2021) Regina, FLD 12 of 2021 (Sask QB) [ QB Fiat ].

If S.G. did not return and reside within 20 kilometres of K.B.’s residence, then K.B. would have primary residency of the child. [ 2 ] On appeal, S.G. argues that the Chambers judge failed to consider K.G.’s best interests, impermissibly varied the status quo, ignored evidence of family violence and made significant errors in her findings of fact. She further contends that the Chambers judge erred by neglecting to address her objections to K.B.’s affidavit evidence.

Lastly, she asserts that the Chambers judge erred by imposing a condition regarding the location of her residence when the issue was not raised at the hearing. S.G. applies to adduce fresh evidence on appeal in relation to her ability to reside in the required area. [ 3 ] For the reasons that follow, I would dismiss S.G.’s appeal with the exception of an adjustment to the geographical area in which she must reside, and impose a consequential date amendment, in order to have equal, shared parenting. II.

BACKGROUND [ 4 ] In the summer of 2015, the parties met in the Kayville area of Saskatchewan, where K.B. farmed with his father. At the time, S.G. was residing in Alberta, but was visiting her father, who also farmed near Kayville. They started dating shortly after meeting. In late 2015, S.G. moved to Saskatchewan where she began living with K.B. The relationship experienced difficulties, resulting in their separation in January of 2017, and S.G. moving to a town 35 kilometres away. Around this same time, S.G. learned that she was pregnant.

In August of 2017, S.G. moved to Delacour, Alberta, to live with her grandparents. Her mother and brother also resided in that same area in Alberta. K.G. was born in late September of 2017. Three months after the birth, S.G. moved to a townhouse in the nearby community of Strathmore, Alberta. [ 5 ] S.G. continued to live in Alberta with K.G. for approximately the first year of his life. After some initial difficulty arranging parenting time, K.B. regularly visited the child and S.G. in Alberta.

By some point in 2018 – the date being in dispute – the couple had rekindled their relationship and S.G. and K.G. moved back to Kayville, where they began residing with K.B. He had recently started a job with an oilfield service business and S.G. recommenced working in a part-time, seasonal position as a crop insurance adjuster. [ 6 ] The evidence regarding further separations is controverted, but the parties agree that they had separated and reconciled on at least one further occasion.

K.B. averred that they separated for approximately three months from October to December of 2019, but that he continued to provide the majority of K.G.’s care, whereas S.G. says that she provided the bulk of the child’s care during the separation. They reconciled again before Christmas of 2019. S.G. deposed a previous short separation also had occurred around Christmas of 2018. [ 7 ] In August of 2020, K.B. obtained a new job as an agricultural manager in the Indian Head area, and the parties moved from the Kayville area to a farmhouse close to Indian Head, which had been provided by K.B.’s new employer.

S.G. averred that they separated for a final time around late September of 2020, but continued to live in the same house. K.B. puts the date of the separation in November

of 2020. Both parties agree that S.G. left the home near Indian Head on December 28, 2020, took K.G. with her, and moved to Delacour,Alberta. The two communities are more than 750 kilometres apart. The parties disagree on the circumstances surrounding S.G.’sdeparture. S.G. asserts that K.B. was aware that she and K.G. were moving permanently to Delacour, and that he had consented to themove. K.B. contends that he believed they were going to Alberta for a family visit and would return to Saskatchewan in a week or two. [8] On January 15, 2021, K.B. filed a without notice application in the Court of Queen’s Bench.

Among other things, he sought anorder directing that K.G. be immediately returned to Saskatchewan and placed in his care. Justice Megaw declined to make the order onan ex parte basis and directed that the application be brought with notice, returnable on February 3, 2021. On February 3, 2021, Tochor J.adjourned the matter and gave directions for the filing of materials. He also ordered that K.B. would have parenting time with K.G. fromFebruary 6 to 13, 2021. S.G. filed her response affidavit and one from her grandmother. K.B. filed a reply affidavit.

S.G. then filed a noticeof objection, pursuant to the Court of Queen’s Bench “Family Practice Directive #3: Objections to Affidavit Evidence in Family Matters”,FAM-PD #3 (1 May 2014) [FAM-PD #3], in which she objected to portions of K.B.’s reply affidavit. On February 19, 2021, the matterwas adjourned for a further five days for the purposes of K.B. replying to the notice of objection and for the parties to consider therecently released decision of this Court in K.G.K. v L.T.K., 2021 SKCA 12 [K.G.K.].

K.B. did not file any material in response to the noticeof objection. [9] K.B.’s application was heard on February 24, 2021, by the Chambers judge. She reserved her decision and ordered that theparties share parenting on a two week on–two week off basis, until her decision was rendered. Her decision was released on March 18,2021. III. CHAMBERS DECISION [10] After listing the issues, the Chambers judge provided a detailed description of the background and set out the positions of theparties.

She began her analysis by examining whether the Court of Queen’s Bench for Saskatchewan had jurisdiction over the child anddetermined that it did. That finding is not challenged on appeal. She then turned to the issue of whether K.G. should be returned to theIndian Head area. She reviewed the principles found in B.P.T.F. v J.H., 2020 SKQB 50, and Mantyka v Dueck, 2012 SKCA 109, 399 SaskR 303, noting that the best interests of the child is the paramount consideration on an interim mobility application.

She referenced s. 10 ofThe Children’s Law Act, 2020, SS 2020, c 2 [CLA], and enumerated some of the factors that she was directed to consider when assessingthe child’s best interests. She further noted the additional factors from s. 15 of the CLA that are to be considered when assessing bestinterests when a parent seeks to relocate a child. [11] The Chambers judge determined that K.G. has “two parents who have been actively involved in his care and have sharedequally in providing a stable, loving relationship” (at para 15).

She noted the presence of extended family in both locales and commentedon both parents being willing and able to provide appropriate care for their child. [12] Regarding the move on December 28, 2020, the Chambers judge found that S.G. had told K.B. that she was planning to visither mother and grandparents in Delacour and that he believed they would be returning to Saskatchewan in a couple of weeks so S.G. couldcontinue her employment as a crop adjuster.

The Chambers judge concluded that S.G. “made an error in judgment in failing tocommunicate and cooperate with [K.B.] on matters affecting the child when she moved to Alberta, which was done without [K.B.’s]approval and resulted in this court application” (at para 15). [13] In the process of evaluating K.G.’s best interests, the Chambers judge examined S.G.’s reasons for wanting to move to Albertaand considered the impact on the child.

She referenced Russell v Russell, 2018 SKCA 80, 16 RFL (8th) 26 [Russell], as authority for herstatement that “any relocation that significantly impacts a child should be avoided on a temporary basis” (QB Fiat at para 17), but went onto note that the test remains the best interests of the child and each case must be assessed on its own facts. [14] The Chambers judge referred to the well-known principle from Guenther v Guenther (1999), (SK KB),181 Sask R 83 (QB), which states that courts should not vary the status quo on an interim basis in the “absence of evidence of risk to thechild” or other compelling circumstances (at para 8).

Relying on Gebert v Wilson, 2015 SKCA 139, [2016] 5 WWR 656 [Gebert], shenoted that status quo is not one of short duration or that of the situation that arises immediately after separation. She observed the recentdirection from this Court in K.G.K., which reminds courts to “tread cautiously” when addressing a case where the “unilateral actions” ofone parent in relocating a child could establish a new status quo (at para 17).

The Chambers judge concluded the status quo in the matterat hand consisted of “the parties living and raising the child as joint legal decision-makers for the child, with equal powers andresponsibilities and shared parenting” (at para 18). [15] In her conclusion regarding K.G.’s best interests, the Chambers judge determined there were no reasons to believe he was atrisk and found no compelling reason to vary the status quo that existed in December of 2020. She decided that it was in K.G.’s bestinterests to be returned to the Indian Head area in short order.

In making this decision, she stated as follows: [19] … [K.B.] has demonstrated that he has been an active and engaged parent in the past and has participated in shared parenting of thechild. He has a plan for parenting of the child going forward on an interim basis.

The child has an extensive family network in the IndianHead area. [K.B.] is allowed to work flexible hours to ensure that he is able to pick-up and drop-off the child at daycare, attend medicalappointments and be available for any unexpected occurrences that require his attention. [16] The Chambers judge ordered that S.G. was to return K.G. to the Indian Head area within 30 days from March 18, 2021.

Shefurther ordered that if S.G. was prepared to relocate to the Indian Head area, and take up residence within a 20-kilometre radius of K.B.’shome, she would have shared parenting time with K.G. on a one week on–one week off basis. If she chose not to reside within that radius,K.G. would live primarily with K.B. with generous parenting time for S.G. The written reasons and the interim order contained otherdetails regarding exchanges, holiday time, joint decision-making, the lack of the need for police assistance, and specific notice if K.G.were to be taken out of Saskatchewan for any purpose.

An expedited pre-trial conference was also ordered. [17] The Chambers judge did not address S.G.’s notice of objection to K.B.’s affidavit in any manner that is endorsed on the file orreflected in the QB Fiat.

[ 18 ] S.G. filed her notice of appeal on April 5, 2021. Pursuant to Rule 15 of The Court of Appeal Rules , the order that resulted from the QB Fiat was stayed. Pending the disposition of the appeal, the parties agreed to abide by the earlier February 24, 2021, order that provided for shared parenting on a two week on–two week off basis. S.G. has continued to reside in Alberta. IV. ISSUES [ 19 ] The issues can be distilled to the following: (

a) Did the Chambers judge err by not addressing S.G.’s notice of objection in relation to portions of K.B.’s February 17, 2021, reply affidavit? (

b) Did the Chambers judge make palpable and overriding errors of fact? (

c) Did the Chambers judge err by failing to consider K.G.’s best interests, impermissibly varying the status quo and ignoring evidence of family violence? (

d) Did the Chambers judge err by requiring S.G. to reside within a 20-kilometre radius of K.B.’s home in order to have equal, shared parenting? Should fresh evidence be admitted in relation to this issue? V. ANALYSIS A. Notice of objection to affidavit evidence [ 20 ] S.G. filed a notice of objection in advance of the application in the Court of Queen’s Bench in which she objected to portions of 9 of the 33 paragraphs of K.B.’s February 17, 2021, reply affidavit.

There is no indication in the record as to whether the Chambers judge accepted or rejected any of the objections. [ 21 ] When a party wishes to object to any portion of an opposing party’s affidavit material in a family law matter, FAM-PD #3 sets out the process by which to do so. The practice directive contemplates the objecting party completing a form, attaching the impugned affidavit (with the alleged offending portions highlighted or underscored) and providing a

summary reason why each portion should be struck. Common reasons for seeking to have averments struck in the context of an application for interim relief include assertions that the evidence is argument, speculation, opinion, scandalous, irrelevant, or inadmissible hearsay. The opposing party is entitled to file a response to the notice of objection. There is no argument on the objections unless requested by the judge hearing the application.

A judge will frequently render their decision immediately before the parties commence argument, but it is also common to reserve on the notice of objection when the underlying application is reserved. [ 22 ] Notices of objection are rooted in Rules 13-30, 15-41(7) and 15-46 of The Queen’s Bench Rules (the latter two Rules were Rules 15-19(7) and 15-20 until August 23, 2021), which set out the requirements for affidavits generally and family law affidavits specifically.

When a notice of objection is filed, a Chambers judge should identify any portions of the affidavit that are to be struck, or note that none of the objections are valid. The rationale for this requirement was set out in Wongstedt v Wongstedt , 2017 SKCA 100 , [2018] 4 WWR 82, as discussed in Thomas v Input Capital Corp. , 2020 SKCA 67 , 12 PPSAC (4th) 339: [32] In any Chambers application, it is necessary for the record to be clear with regard to the evidence that is admitted and that which is not.

The reasons for this proposition, and the associated procedure, are succinctly described in Wongstedt v Wongstedt , 2017 SKCA 100 , [2018] 4 WWR 82 [ Wongstedt ]: [38] … Where objections are take n to affidavit evidence, the judge who hears them should briefly articulate which portions of a contested affidavit are not in conformance with The Queen’s Bench Rules and what has been struck from the record.

There are many ways this could be done effectively … but the key is to plainly identify what is or is not in evidence, giving a ve ry short reason for striking any material that has been struck from the record (i.e., argument, speculation, opinion, irrelevant, rhetoric, hearsay, etc.).

Indeed, a judge may simply strike out offending material by hand, noting the reason therefor, on the affidavit itself. [39] Regardless of how it is done, the parties, counsel and judges who hear subsequent applications (particularly, those requiring an applicant to establish a material change in circumstances) must know what evidence was properly before the court or what evidence was struck from the record.

Lastly, the practice of clearly identifying evidence that has been struck and briefly stating why it was struck provides an appellate court with the foundation for meaningful review of that decision, if it should be appealed. [ 23 ] In the matter at hand, the Chambers judge erred by failing to address the notice of objection on the record.

As such, I will determine which portions of K.B.’s February 17, 2021, affidavit should have been struck: Paragraph Portion Struck Reason 10 The last four sentences and exhibit A and exhibit B Inadmissible hearsay without sufficient foundation 12 The last two sentences and exhibit C and exhibit D Inadmissible hearsay without sufficient foundation 22 The last two sentences Opinion and speculation 24 The first sentence and the last three sentences Opinion and speculation 29 The first ten words of the second sentence and the last two sentences Opinion and speculation 32 The last seventeen words of the second sentence, the sixth sentence, and the last two sentences.

Opinion

[ 24 ] Despite this error, it is my view that the failure to address the notice of objection did not have a material effect on the determinations made by the Chambers judge in this matter. Much of the objectionable material consisted of opinions that would have carried no weight in any event. Crucially, the Chambers judge did not specifically refer to any of the impugned evidence in her written reasons, and there was a significant amount of admissible evidence that supported each of her key findings of fact.

As such, in these circumstances, the identification of this error does not assist S.G. in her appeal nor does it warrant appellate intervention. B. Errors of fact [ 25 ] Based on S.G.’s written and oral submissions, there are three main areas where she asserts the Chambers judge made palpable and overriding errors of fact. Those factual findings can be summarized as follows: (

a) K.B. was not aware of the permanency of S.G.’s move and did not consent to it (at paras 6 and 15); (

b) K.B. was an active, involved father and the status quo consisted of two parents engaged in shared parenting (at paras 15, 18 and 19); and (

c) S.G.’s father lived in the Indian Head area (at para 8). [ 26 ] While there had been some inconsistency in the case law as to the standard of review for findings of fact based on affidavit evidence, that issue has now been resolved.

A standard of palpable and overriding error applies to the review of fact finding by a Chambers judge, whether or not those determinations were based on viva voce or affidavit evidence: Nelson (City) v Mowatt , 2017 SCC 8 at para 38 , [2017] 1 SCR 138; AB v Rogers , 2021 SKCA 96 at para 42 ; and Yorkton (City) v MiSask Industries Ltd. , 2021 SKCA 43 at paras 22–25 , [2021] 6 WWR 18. [ 27 ] In Arcand v Atsu , 2021 SKCA 81 , Caldwell J.A. described the application of the standard of review for findings of fact in the following terms: [6] In short, to decide the interim applications that were before him, the Chambers judge inferred from the evidence that this was a unilateral relocation.

We may only disturb that finding if it is palpably in error and the error overrides the result. In Benhaim v St- Germain , 2016 SCC 48 at para 38 , [2016] 2 SCR 352, Wagner J. (as he then was) adopted the figurative description of a palpable and overriding error from R v South Yukon Forest Corporation , 2012 FCA 165 at para 46 , 4 BLR (5th) 31, where Stratas J.A. wrote: [46] Palpable and overriding error is a highly deferential standard of review. … “Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case.

When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall. [7] The standard of review for findings and inferences of fact is one reason why it is said that appellate courts owe a considerable measure of deference to the decision making that leads to family law orders.

Under the standard, even if we have a different view of the evidence, we cannot remake findings or redraw inferences of fact unless they are clearly wrong and have affected the result ( H.L. v Canada (Attorney General) , 2005 SCC 25 at paras 52–55 , [2005] 1 SCR 401). [ 28 ] With this standard of review in mind, I will examine the three factual errors that are alleged by S.G. [ 29 ] First, S.G. contends the Chambers judge erred by finding that K.B. believed she was only going to Alberta for a visit and did not consent to a permanent move.

In his initial, January 15, 2021, affidavit, K.B. denied any knowledge of the permanency of the move, and contended that he did not consent to the relocation: 8. … On December 28, 2020 [S.G.] told me she planned to visit her mother and maternal grandparents in Delacour, Alberta. My understanding was that [S.G.] would be visiting her mother and grandparents temporarily for a couple weeks before returning to Saskatchewan to find a new residence and continue her employment with SCIC.

I therefore reluctantly agreed to let her take [K.G.] with her to Delacour, Alberta to visit notwithstanding my concern over her possibly moving and the COVID-19 travel restrictions. 9. That in early January of 2021, I received a text message from [S.G.] saying that she was glad to be back in Alberta and informed me that a gas station was hiring there. On January 5, 2021 I asked [S.G.] when she would be coming back home with [K.G.].

On January 11, 2021, I asked [S.G.] once again to bring [K.G.] home. [S.G.] refused to bring [K.G.] back to Saskatchewan unless I agreed to sign a contract stating that I would bring [K.G.] back to live with her in Alberta. I refused to sign a contract that would result in [K.G.] permanently moving to Alberta.

I told [S.G.] that even though I agreed to her taking [K.G.] on a trip to Alberta, I did not consent to her living there permanently with [K.G.]. … … 16. … [S.G.] took [K.G.] to Delacour, Alberta for a temporary visit and never had my consent to move with [K.G.] to Delacour, Alberta to permanently reside there. [ 30 ] In response, S.G. averred as follows in her February 11, 2021, affidavit: 38. … [K.B.] did not want me living anywhere but Indian Head. I had a full-time job opportunity in Saskatoon with SCIC, but [K.B.] said I was not even allowed to move as far as Saskatoon. … … 40.

We had to move out of the ranch as another employee with a larger family was going to be living there. [K.B.] was being relocated a few miles away to another farm. I told [K.B.] it was not healthy for us to be under the same roof anymore, co-parenting would continue but because I did not have employment or anywhere else to move, I had told [K.B.] I needed to go stay with my family in Alberta until I

get back on my feet. [K.B.] agreed that me being with my family the was best. By being up in Alberta with my family I have help with [K.G.] while searching for employment and a place for us to live. It has taken some time to figure out my next move as I must start all over again.

When I moved to Indian Head, I had no family or proper support while living there. … 43. … When I mentioned to [K.B.] that I have been interested in being back up here because of my support system and more job opportunities, he then changed his mind about me residing here. [ 31 ] I note that, despite the repeated submissions by S.G. that K.B. helped her pack a trailer to move to Alberta, there was no evidence such conduct occurred. [ 32 ] In his reply affidavit, K.B. responded to S.G.’s assertions regarding the move: 24. (38) … I had discussions with [S.G.] about the importance of living and working within close proximity considering our plan to jointly parent [K.G.].

I was opposed to [S.G.] looking for work in Saskatoon because my parenting time with [K.G.] would be affected. … … 26.

(40) I never had any discussion, much less agreement, that it would be best for [S.G.] to move back to Alberta to be with her family. Under no circumstances would I ever agree to [S.G.] moving to Alberta with [K.G.]. I only agreed to let [S.G.] to take [K.G.] to Alberta for a family “visit”. It was not until [S.G.] was in Alberta that she told me on January 13, 2021 that she had no intention of returning to Saskatchewan. 27.

(43) At no time did I agree to [S.G.] moving to Alberta with [K.G.] nor did she advise me of her intent to relocate to Alberta. [ 33 ] As can be seen from these excerpts from the affidavits, there was highly controverted evidence regarding the circumstances of the move. The Chambers judge was entitled to weigh this conflicting evidence and to determine, on an interim basis, that K.B. was unaware of the nature of the move and that he had not consented to it. She simply preferred K.B.’s evidence on this issue to that of S.G.’s. There is no palpable and overriding error revealed in this finding of fact.

On review, an appellate court is not permitted to reweigh evidence, substituting its view for that of the judge who heard the evidence ( Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235): [23] We reiterate that it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence.

If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion. (Emphasis in original) [ 34 ] Second, S.G. asserts that the Chambers judge erred by finding K.B. was an active, involved father and that the status quo was two parents engaged in shared parenting.

She submits that the evidence established that she was the primary parent and that K.B. took a highly subsidiary role in parenting the child. [ 35 ] The evidence of each party regarding their own parenting role, and that of the other parent after S.G. and K.G. moved back to Saskatchewan in 2018, was diametrically opposed.

The main evidence that supported a finding that K.B. was an active, involved father, engaged in shared parenting in Saskatchewan, is found in paragraphs 10, 11, 12 and 17 of his initial affidavit, and the unstruck portions of paragraphs 10, 11, 12, 14, 15, 17, 30 and 31 of his February 17, 2021, reply affidavit. The evidence to the contrary is found in paragraphs 16, 17, 18, 19, 22, 23, 26, 27, 28, 30, 32, 39, 48, 49 and 51 of S.G.’s affidavit.

Again, S.G. is asking this Court to reweigh the evidence, arrive at its own factual conclusions and decide that a different view of the evidence reveals palpable and overriding error by the Chambers judge. That is something we cannot do. The evidence was highly controverted on this issue, but it was sufficient to permit the Chambers judge to make the interim finding of fact that she did. [ 36 ] Lastly, S.G. submits the Chambers judge erred by finding that her father resided in the Indian Head area. She points to paragraph 8 of the QB Fiat as a misstatement of the evidence.

In that paragraph, the Chambers judge wrote, “[K.B.] states the child has a very extensive family network in the Indian Head area, including the paternal grandparents, the respondent’s father and [K.B.’s] two older sisters”. She asserts this represents a factual error because S.G.’s father does not live in the Indian Head area.

S.G. submits this is significant because the Chambers judge must have assumed that her father would be available to assist her with daily parenting tasks, such as daycare pickup, if she was required to reside in the Indian Head area. [ 37 ] The evidence regarding S.G.’s father’s residence was not controverted. Both parties agreed that he resided in the Kayville area. That was not disputed. While the evidence does not reveal the distance between Kayville and Indian Head, S.G. referred to it as a two-hour drive and K.B. referred to it as being closer to one and one-half hours.

In either case, the distance is such that it would not be reasonable to expect S.G.’s father to assist with daycare or other daily parenting tasks on a regular basis. After noting the evidence in paragraph 8, the Chambers judge did not return to the location of S.G.’s father or make any further comment about him. She certainly did not use this factor to buttress her conclusion that the parties should resume shared parenting if S.G. resided in the Indian Head area.

Instead, the Chambers judge referred to the general availability of family support in the Indian Head area, where K.B.’s parents and two sisters reside. This allegation of an error of fact is too vague and the assumption urged upon us by S.G. is speculative and not supported by the QB Fiat . I can see nothing palpable and overriding in this alleged error. [ 38 ] The impugned fact finding does not meet the standard of palpable and overriding error. This ground of appeal cannot be sustained. C.

Best interests, status quo, and family violence [ 39 ] S.G. asserts the Chambers judge failed to consider the factors related to K.G.’s best interests. She further contends that the

Chambers judge ignored the existing status quo – that of her being the primary parent and K.B. being relatively uninvolved – and imposeda parenting arrangement that did not reflect that status quo. Lastly, S.G. submits the Chambers judge did not consider the presence offamily violence when determining K.G.’s best interests. [40] When reviewing a judge’s interim determination of the best interests of a child, a highly deferential standard of review isapplied. Additionally, this Court has repeatedly discouraged appeals from interim parenting decisions in all but the clearest of cases.

Thisstandard of review, and the reluctance to delay final resolutions of family matters, was recently discussed by the majority in T.C. v A.E.,2021 SKCA 79: [25] … While every decision regarding a child must be rendered with only the best interests of the child in mind, that does not translateinto the standard of review that is proposed by Mr. T.C.

The standards of review that have developed in the area of interim parentingorders have taken into account the necessity to ensure that decisions are reviewable in a meaningful way while assisting the parties topromptly move their matters forward to resolution – through agreement or trial – because of the significant benefit that accrues to childrenfrom having the stability and certainty that final parenting arrangements achieve.

Discouraging appeals from interim orders, other than inexceptional circumstances, permits the best interests of children to be served by encouraging the parties to more quickly reach that finalstage rather than expending precious time and scarce resources on appeals from interim orders: Hall v Hall, 2011 SKCA 86 at para 1, 337DLR (4th) 89.

At the same time, the availability of appellate review ensures that interim orders are overturned where appropriate. [26] The standard of review that applies to the matters at hand is aptly described in Bolan v Bolan, 2013 SKCA 97, 423 Sask R 151[Bolan]: [6] The standard of appellate review in matters of interim custody presents a difficult hurdle … to clear. An interim custody order is atemporary balance which a Queen’s Bench Chambers judge must strike after weighing the objectives and factors set out in the DivorceAct, R.S.C. 1985, c. 3 (2nd Supp.) (or in The Children’s Law Act, 1997, S.S. 1997, c.

C-8.2) on the basis of limited affidavit evidence. It is,therefore, fact-based and discretionary in nature; and, as such, an appellate court will give considerable deference to a Chambers judge’sdecision as to interim custody and parenting (See: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, and Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518). In Jochems v. Jochems, 2013 SKCA 81, Richards C.J.S. recently described the standard inthese terms at para. 23: “Simply put, that standard involves a considerable measure of deference to the decision-making of the Chambersjudge.

This Court is not entitled to simply re-make a custody and access decision from the ground up along the lines that it might havepreferred or thinks best”. [27] More recently, in K.G.K. v L.T.K., 2021 SKCA 12 [K.G.K.], Caldwell J.A. stated the following regarding the standard of review thatis applied to appeals from interim parenting orders: [4] Custody and access applications are heavily fact-dependent. As a consequence, the orders made, and the custody and parentingarrangements established thereunder, result from the exercise of judicial discretion.

Accordingly, the scope of appellate review isdelimited 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. … [28] As can be seen from these excerpts, the scope of appellate review for interim parenting orders is narrow and deferential.

This Court isnot permitted to simply re-examine the evidence from the ground up and change the order to one that, in its view, is correct. [41] With this standard of review in mind, I turn to the matter at hand. S.G.’s arguments rely heavily on two assertions: (

a) K.B.consented to the move and (

b) the status quo was that of her being the primary parent with K.B. being a peripheral parent. As noted in theearlier part of these reasons, the Chambers judge concluded the opposite to be true with regard to these two key facts, which I have foundwere not the product of palpable and overriding error. With those determinations left undisturbed, most of S.G.’s arguments, as to the bestinterests and the status quo, are undermined. [42] In relation to family violence, S.G. asserts that she set out several instances of such conduct in her affidavit.

She alleges K.B.called her derogatory names in front of K.G., yelled at her and pushed her. K.B. denied all of these allegations. S.G. averred that K.B.shoved her into a wall on one occasion while she was on crutches and knocked her over. In response, K.B. stated that S.G. hit him with hercrutch and that he grabbed it to stop her as she tried to hit him a second time. [43] Each party described an incident in November of 2020.

S.G. averred that K.B. locked her out of the house, thereby upsettingK.G., and, later in the day, when she believed she heard K.B. throw the cat down the stairs, she went to talk to him about it. She stated thathe was intoxicated, called her names and shoved her hard, which led to mutual shoving that only ended when the dog bit him on the hand.K.B. described this incident as consisting of S.G. coming home intoxicated after leaving him and K.G. at home all day. He said anargument ensued, K.G. became upset because S.G. was screaming and he [K.B.] left the house to let the situation cool down.

When hereturned a few hours later, according to his version of events, S.G. became physically aggressive, yelled and screamed at him andattempted to hit him in the face with a snowmobile helmet and her fists, which required him to hold up his hands to protect himself andresulted in cuts to his hands. [44] Sections 10(3)(

j) and 10(4) of the CLA required the Chambers judge to take family violence into account when considering thebest interests of the child. S.G. submits that the Chambers judge erred by not providing a lengthy and comprehensive analysis of theallegations of family violence.

She points to the decision of Megaw J. in Juraville v Armstrong, 2021 SKQB 73 [Juraville], as an exampleof the type of analysis that must be done when family violence is alleged. [45] The issue of family violence, and its role in an analysis of the best interests of a child, was discussed by Kalmakoff J.A. inA.M.D. v M.R.M., 2021 SKCA 71 [A.M.D.], in the context of an application that pre-dated the current CLA and its provisions regardingthis factor: [57] Family violence is undoubtedly a relevant consideration in determining a child’s best interests for the purposes of a parenting order(see: Ackerman v Ackerman, 2014 SKCA 86 at para 41, [2014] 10 WWR 429).

A.M.D. contends that the Chambers judge failed to

properly consider the impact of M.R.M.’s violent behaviour in the home when assessing Q.M.’s best interests and that, by doing so, he failed to follow the express direction contained in s. 10 of the CLA 2020 . The point of A.M.D.’s submission here is that s. 10(3) (

j) and s. 10(4) of the CLA 2020 explicitly require a judge to consider family violence and its impact on the best interests of the child when making a parenting order. No such explicit instruction existed in the CLA 1997 . It is arguable that this change in the legislation crystallizes the obligation of a judge, when making a parenting order, to consider the impact of domestic violence in a more thorough fashion than had previously been the case.

A.M.D. says the Chambers judge failed to meet that obligation. … [59] The second, and more fundamental, problem with A.M.D.’s submission is that it overlooks the Chambers judge’s conclusion that he could not make a finding of fact on the basis of the controverted evidence before him, that there had been interpersonal or intimate partner violence on M.R.M.’s part. Nor was he able to conclude that M.R.M. had been physically abusive to any of the children.

As I set out earlier, there is no basis to interfere with the Chambers judge’s factual determinations on that front. [60] In light of that, I am not persuaded that the Chambers judge failed to give proper consideration to family violence and M.R.M.’s role in it when determining Q.M.’s best interests for the purposes of making a parenting order. Violence in the home cannot be condoned, and judges must treat allegations of violent conduct involving intimate partners or children with care when making parenting orders.

The difficulty for A.M.D. in this case was that the evidence about such matters was disputed and the Chambers judge found that he was not in a position to make credibility findings or findings of fact about her assertions. The applicable standard of review affords a considerable measure of deference to the decision-making of the Chambers judge in that respect and, in the circumstances, does not permit this Court to interfere with his conclusion. [ 46 ] Reading the QB Fiat as a whole, I am not persuaded that the Chambers judge erred in relation to how she treated the allegations of family violence.

At paragraph 9 of the QB Fiat , she addressed this issue as follows: [9] … [S.G.] states that [K.B.] often abused alcohol and was abusive to her, both physically and verbally, and often in front of the child. [K.B.] denies these allegations, stating he drinks only socially and that he has never been physically or verbally abusive. He indicates on one instance [S.G.] assaulted him and he protected himself with using his hands as a shield. [S.G.] denies this occurred. [ 47 ] The Chambers judge also instructed herself that she must take into account the factors listed in s. 10 of the CLA .

One of those items is the presence and effect of family violence. While the Chambers judge did not return to the allegations of family violence after initially referring to them, or make any specific findings regarding any of the alleged incidents, she was clearly aware of the nature of the highly controverted evidence and described this in her decision.

It is my view that these portions of her decision indicate that she considered the issue of family violence but determined that she could not make a finding that it had occurred or who had engaged in the alleged conduct. [ 48 ] As mentioned above, the Chambers judge commented that K.G. was a lucky child to have “two parents who have been actively involved in his care and have shared equally in providing a stable, loving environment” (at para 15).

This description of the home environment indirectly spoke to her assessment regarding the effect the interactions between the parents had in relation to K.G.’s best interests. The Chambers judge’s conclusion about the parenting arrangements that would most appropriately meet K.G.’s best interests further illustrates her overall findings regarding the influence of the entire constellation of factors on each parent’s ability and willingness to meet the child’s needs – including those of safety, security and emotional well-being – in two separate households.

Although a fuller analysis of the issue of family violence – such as that undertaken in Juraville – would have been preferable, absent a finding that family violence had occurred, the examination of the issue was sufficient in the circumstances of this matter. [ 49 ] Overall, it is clear that the Chambers judge took account of the law regarding best interests, status quo, family violence and interim mobility as set out in the CLA , Gebert , Russell and K.G.K . She considered the factors present in the circumstances of this case and made a discretionary determination regarding K.G.’s interim best interests.

I see no error in her statements of the law or in her analysis. In light of the deferential standard of review, there is no room for this Court to interfere with her decision. [ 50 ] The interim order was stayed by the operation of Rule 15 of The Court of Appeal Rules . Rather than K.B. applying for an order to lift the stay, the parties agreed that S.G. would remain in Alberta and K.G. would rotate between them every two weeks in accordance with the February 24, 2021, order. With the release of this decision, the interim order will take effect and K.G. will now have to be returned to Saskatchewan.

However, the interim order required K.G. to be returned to Saskatchewan within 30 days of March 18, 2021. As a consequence of the appeal, that date is no longer applicable. Therefore, paragraph 2 of the March 18, 2021, interim order shall be amended to delete “March 18, 2021” and to substitute the date of this appeal judgment. D. Twenty-kilometre radius requirement [ 51 ] The QB Fiat required S.G. to reside within a 20-kilometre radius of K.B.’s residence near Indian Head in order for equal, shared parenting on a week on–week off basis to commence.

Absent S.G.’s compliance with that condition, K.G. would reside primarily with K.B. and S.G. would have generous parenting time. S.G. submits this radius is too restrictive because there are no prospects for appropriate accommodation or employment for her in the vicinity. If the main portion of her appeal is unsuccessful, as it has been, she submits that there should not be a residency requirement at all in order for shared parenting to occur.

For his part, K.B. is not opposed to the residency requirement being expanded to include Regina and other nearby communities, but he does not agree that a geographical limitation is not required. 1. Application to admit fresh evidence [ 52 ] S.G. has applied, pursuant to Rule 59 of The Court of Appeal Rules , to adduce fresh evidence only in relation to the issue of the geographical limitations imposed on her by the QB Fiat . She seeks to file short affidavits from herself and her mother.

S.G. avers that she was taken by surprise by the small radius contained in the order and was not alerted in advance to the possibility of the restriction. She submits that K.B. did not seek such a small radius and that she would have filed additional evidence had she received notice that such a

condition might be imposed. [ 53 ] The two affidavits contain evidence regarding the small number of communities within the specified geographical area, the scarcity of appropriate accommodation and the absence of any jobs other than casual work and minimum wage, shift work.

S.G.’s mother deposed that she will have to move to Saskatchewan to provide care for K.G. during S.G.’s parenting time because of the high cost of daycare. [ 54 ] The test for the admission of new evidence on appeal was discussed by Kalmakoff J.A. in A.M.D. : [34] On a number of occasions, this Court has confirmed that the test for the admission of fresh evidence is somewhat flexible when the best interests of a child are at stake. Such evidence will be admitted on an appeal that engages the best interests of a child where: (

a) the evidence could not have been adduced before; (

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

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

d) the evidence is credible. [ 55 ] In my view, the portion of the evidence that relates to the appropriateness of the 20-kilometre radius should be admitted. While K.B.’s notice sought the return of the child to Indian Head, and S.G. filed a brief of law on the Chambers application in the Court of Queen’s Bench that indicated she would move to northern Saskatchewan if required to return to this province, I find that she could not have anticipated the narrow scope of the residency requirement in the circumstances of this matter.

The evidence appears credible, relevant and potentially decisive in relation to K.G.’s best interests for the narrow issue of a geographical limitation. As such, the affidavits of S.G. and her mother will be admitted – with the exception of the last two sentences of paragraph 2 and the last three sentences of paragraph 6 of S.G.’s affidavit, which are not relevant to this issue. 2. Analysis of the 20-kilometre requirement [ 56 ] In an application seeking the return of a child, it is not permissible for a Chambers judge to order a parent to return to their previous locale.

The order is made in relation to the child. However, it is common for a Chambers judge to grant a conditional interim parenting order that requires the return of a child to their prior area of residence but makes the parenting arrangements dependent on whether the departing parent returns as well. This frequently includes setting restrictions on the location of the returning parent’s residence in order to trigger specific parenting arrangements. These parameters are often necessary but are not always required. The determination is highly fact dependant.

For example, for school-aged children that are ordered to be returned to a prior locale, it would make little sense to order a shared parenting arrangement unless the returning parent also had accommodations within reasonable commuting distance of the children’s school. [ 57 ] Chambers judges have used various descriptions to delineate the area in which the parent who wishes to move, or has moved, must reside if they are to remain being the primary-residence parent or continue with shared parenting. See, for example, the following: (

a) L.T.K. v K.G.K . (28 September 2020) Saskatoon, FLD 87 of 2020 (Sask QB), aff’d K.G.K. (at para 37 ) – “residence with the children within a 20-mile radius of the petitioner’s farm” (at para 51); (

b) Jochems v Jochems , 2013 SKQB 94 , 415 Sask R 312, aff’d 2013 SKCA 81 at para 39 , [2013] 10 WWR 80 – at “the former family home” or “within a radius of 40 kilometres from Moosomin” (at para 46); (

c) McKerracher v Morgan , 2013 SKQB 207 – “relocate back to the La Ronge District” (at para 9); (

d) Rink v Rempel , 2011 SKQB 472 , 388 Sask R 104, aff’d 2015 SKCA 62 at para 3 , 460 Sask R 172 – “does not move from Prince Albert” (at para 71); (

e) Benson v Benson , 2011 SKQB 457 , 388 Sask R 89 – “returns to live in the Kindersley/Coleville/Smiley district” (at para 28); (

f) Bevan v Lesage , 2011 SKQB 311 – “If the mother moves to Moose Jaw, the father will become the primary resident parent” (at para 21); (

g) Fairley v Fairley , 2010 SKQB 298 – “in or around the hamlet of Baldwinton” (at para 12); (

h) Ofukany v Ofukany , 2009 SKQB 234 , 338 Sask R 196 – “relocates to Regina” (at para 12); (

i) Dupont v Leclair , 2009 SKQB 453 – “returns to the jurisdiction of [Rocanville, Saskatchewan and area]” (at para 13); and (

j) Gilbert v Wildman , 2006 SKQB 291 – “relocate to a community within the radius of Eatonia, Eston, Kindersley or Dodsland” (at para 17). [ 58 ] It is not surprising that none of these cases expansively set out a test to determine the appropriate radius or a general rule for the imposition of a geographical limitation, because a determination of such a matter is fact driven, context dependent and heavily reliant on the circumstances of the child and the parents.

As always, the best interests of the child is paramount in the analysis. [ 59 ] In this matter, S.G. had submitted in her Chambers brief that she would relocate to northern Saskatchewan if K.G. was ordered to return to Saskatchewan. She gave examples of places where she might reside, some of which were hundreds of kilometres from the family home. This provided an indication to the Chambers judge that a geographical limitation of some kind was required in order to ensure that the child was not travelling significant amounts of time every single week. However, it does not appear that the Chambers

judge turned her mind to the appropriateness of the narrow geographical limitation that she ultimately imposed in this case. There is no mention in her written reasons of the distances, employment prospects or the presence of appropriate accommodations.

Additionally, her description of the circumstances, combined with the evidence on which she did not comment, does not reveal any reason why such a restrictive condition was required in relation to this pre-school-aged child. [ 60 ] It is my view that the Chambers judge erred by failing to turn her mind to the scope of the geographical restriction in her written reasons. As a result, this portion of the interim order should be amended to reflect K.G.’s best interests. Those best interests include the reasonable availability of appropriate accommodation and employment for his mother.

Given that K.G. is not yet attending school, is not in any organized activities tied to the community, and has been away from the Indian Head district for alternating two week periods for the past several months – combined with the circumstances where housing and employment are not readily available in a small rural area – the interim order should be amended to permit a larger geographical area in which S.G. may reside and still have shared parenting. I find that an appropriate radius would be 100 kilometres of K.B.’s current residence.

This enlarged area would include the city of Regina and many other communities, alleviating S.G.’s accommodation and employment concerns, without creating a long drive for K.G. every week or eliminating the possibility of mid-week parenting time for special occasions. As such, paragraphs 4, 5 and 7 of the interim order shall be amended to substitute “100 kilometre” for “20 kilometer”. VI.

CONCLUSION [ 61 ] The appeal is dismissed, except for the modification to the terms in the interim order that specified the geographical area in which S.G. must reside, and the date by which she must return K.G. to Saskatchewan, in order to have equal, shared parenting. Because K.B. has been largely successful on this appeal, he is entitled to costs from S.G., which are fixed in the amount of $1,000. “Tholl J.A.” Tholl J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Schwann J.A.” Schwann J.A.