L.P. v Z.M., 2021 SKCA 134

Court of Appeal for Saskatchewan Docket: CACV3885 Citation: L.P. v Z.M. , 2021 SKCA 134 Date: 2021-10-14 Between: L.P. Applicant/Appellant (Petitioner) And Z.M. Respondent/Respondent (Respondent) Before: Whitmore, Leurer and Tholl JJ.A. Disposition: Fresh evidence application denied, appeal allowed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Mr. Justice Whitmore The Honourable Mr. Justice Leurer On appeal from: FLD 280 of 2020 (QB), Regina Appeal heard: September 20, 2021 Counsel: Jill Drennan for the Applicant/Appellant Drew Filyk for the Respondent/Respondent Tholl J.A.

I. Introduction [ 1 ] Ms. L.P. and Mr. Z.M. are the parents of E.P., who was born in April of 2013. He lived solely with Ms. L.P. after his birth. Mr. Z.M. had no involvement with the child for approximately the first seven years of his life. Pursuant to a consent judgment issued in 2014, Ms. L.P. was granted sole custody of E.P. He remained in her sole care until he was apprehended by the Ministry of Social Services [Ministry] in October of 2019. The Ministry placed E.P. with Mr. Z.M. in August of 2020 for an extended visit and began planning to have E.P. live with him in Brooks, Alberta, on a permanent basis.

As a result, Ms. L.P. commenced a family law proceeding, seeking the return of E.P. and his placement in her care. Several more orders were granted over the subsequent year, with the issue of E.P.’s interim residence ultimately being decided in a contested Chambers application. [ 2 ] On August 30, 2021, a Court of Queen’s Bench Chambers judge granted an interim order determining that E.P. would reside with Mr. Z.M. in Brooks: L.P. v Z.M. (30 August 2021) Regina, FLD 280 of 2020 (Sask QB) [ Chambers Decision ]. Ms. L.P. appeals the Chambers Decision , asserting that the Chambers judge erred in relation to his

interpretation of the status quo, did not consider the factors relevant to E.P.’s best interests, penalized her for her socio-economic status, and failed to apply mobility principles. [ 3 ] For the reasons that follow, I would allow the appeal and grant an interim order requiring that E.P. reside primarily with Ms. L.P. in Regina. II. Background [ 4 ] Ms. L.P. and Mr. Z.M. were in an intermittent relationship from 2011 until early 2013. They have never resided together. E.P. was born in April of 2013, after the parties’ relationship had ended. Ms.

L.P. provided E.P.’s care without any assistance or involvement from Mr. Z.M. In July of 2016, Mr. Z.M. moved from Regina to Brooks, Alberta. [ 5 ] Ms. L.P. does not have a spouse and resides in Regina. She is a member of the Peter Ballantyne Cree Nation. [ 6 ] Mr. Z.M. has been in a common-law relationship with Ms. C.C. since 2009. She is a member of the Yellow Quill First Nation. They have two children together, aged 8 and 10. Ms. C.C. has two children from a previous relationship, aged 15 and 19. The four children reside full-time with Mr. Z.M. and Ms. C.C. in Brooks. Mr.

Z.M. has four additional children who live in Somalia. [ 7 ] In October of 2013, Ms. L.P. filed a petition seeking sole custody of E.P. Sole custody was granted to Ms. L.P. in 2014 in the form of a consent judgment: L.P. v Z.M. (12 July 2014) Regina, FLD 375 of 2013 (Sask QB) at para 2 [ Brown Judgment ]. Mr. Z.M. was ordered to pay child support of $200 per month. The Brown Judgment is silent with regard to any parenting time for Mr. Z.M. [ 8 ] Ms. L.P. had a second child, N.P., in November of 2016. She is not the subject of this appeal. N.P.’s father has not been involved in her life. Ms.

L.P. was the sole parent of N.P. and E.P. from their births until October of 2019. [ 9 ] Ms. L.P. has struggled with addictions, which lead to the apprehension of E.P. and N.P. by the Ministry on October 17, 2019. A consent order was granted by McCreary J. on January 9, 2020, committing E.P. and N.P. to the care of the Minister of Social Services for a period of three months, pursuant to s. 37(1) (

c) of The Child and Family Services Act , SS 1989-90, c C-7.2 : L.P. v Saskatchewan (Social Services) (9 January 2020) Regina, FSM 76 of 2019 (Sask QB). During the period of apprehension, and for the duration of the three-month order, the children resided with their maternal grandmother, Ms. A.P., in Regina.

[ 10 ] Mr. Z.M. averred that he attempted to have some contact with E.P. over the years but asserts it was thwarted by Ms. L.P. or her mother. Ms. L.P. disputes those assertions. In any event, Mr. Z.M. had no contact of any kind with E.P. for the first seven years of his life. After the apprehension, Mr. Z.M. contacted the Ministry in December of 2019 and indicated a desire to provide care for E.P. On April 28, 2020, he and his spouse travelled to Regina to meet with the Ministry and discuss the situation. During that meeting, Mr.

Z.M. expressed interest in having visits with E.P. and gradually creating a relationship with him. E.P. met Mr. Z.M. for the first time on May 22, 2020, during a visit facilitated by the Ministry. He subsequently had extended visits at Mr. Z.M.’s home in Brooks in June and July of 2020. [ 11 ] From October of 2019 to June of 2020, Ms. L.P. continued to use drugs approximately three times per week. She frequently spent time with the children, supervised by family, although the visits were not without problems. [ 12 ] On July 14, 2020, a consent order of Tochor J., agreed to by the Ministry and Ms.

L.P. in advance of a pretrial conference, committed E.P. and N.P. to the care of the Minister of Social Services for a period of six months, pursuant to s. 37(1) (

c) of The Child and Family Services Act : Saskatchewan (Social Services) v L.P. (14 July 2020) Regina, FSM 76 of 2019 (Sask QB) [Tochor Order]. At that point, the children had been in Ms. A.P.’s care since October 17, 2019. On August 9, 2020, the Ministry placed E.P. in the care of Mr. Z.M. in Brooks, Alberta, for an extended visit that was scheduled to last until October 31, 2020. This visit continued into early November because of restrictions imposed by Alberta Health as a result of a member of Mr. Z.M.’s household having been exposed to COVID-19.

E.P. attended school in Brooks for September and October of 2020. [ 13 ] On August 11, 2020, less than one month after the Tochor Order was issued, the Ministry filed an application seeking to vary it and place E.P. with Mr. Z.M. permanently. This action was not in accordance with Ms. L.P.’s understanding when she consented to the Tochor Order. The evidence revealed that Ms. L.P. was taken completely off guard by this turn of events.

She averred that she had understood E.P. would remain in the care of his maternal grandmother for the duration of the order while the Ministry worked with her to have the children returned to her care. She says that this had been the basis for her consent. An affidavit from her former counsel supported this assertion. In addition, two of the conditions in the Tochor Order directly used the term reunification in relation to Ms. L.P. and the children. Until he was placed with Mr. Z.M., E.P. had spent his entire life in Regina in the care of Ms. L.P. or her mother. [ 14 ] By July of 2020, it appears that Ms.

L.P. had begun to make progress with regard to her addictions. She had long periods of sobriety, had numerous clean drug screens and successfully attended various programs to address the issue. However, she still had occasional relapses, which she voluntarily reported to her mother and the Ministry. She continued to attend addictions programming. [ 15 ] On October 15, 2020, Ms. L.P. filed a new petition with the Court of Queen’s Bench in which she sought custody of E.P. (FLD 280 of 2020).

She concurrently filed an application requesting an order requiring that E.P. be returned to Saskatchewan and a further order that she have custody and residency of the child. She additionally sought a determination that the Ministry was in contempt of the Tochor Order for not working on reunification and for placing E.P. with Mr. Z.M. On October 28, 2020, Mr. Z.M. filed an application seeking interim custody and primary residency of E.P. On October 28, 2020, Ms.

A.P. filed an application seeking to be designated as a person of sufficient interest in relation to E.P. and sought temporary placement with her while Ms. L.P. continued to progress in her struggles against addictions. In its material, the Ministry consented to returning E.P. to the care of Ms. A.P. in Regina. [ 16 ] Justice Megaw heard the outstanding applications in the FLD matters on October 30, 2020. He orally ordered the consolidation of FLD 375 of 2013 and FLD 280 of 2020, with the matter to be designated as FLD 280 of 2020. The remainder of his decision was reserved.

On November 10, 2020, he rendered his decision, L.P. v Z.M. , 2020 SKQB 295 [ Megaw Decision ], in which he ordered the following: (

a) Ms. A.P. was declared to be a person of sufficient interest in relation to E.P. in FLD 280 of 2020; (

b) the application to consolidate FSM 76 of 2019 with FLD 280 of 2020 was dismissed; (

c) Mr. Z.M.’s application to vary the Brown Judgment on an interim basis was dismissed; (

d) E.P. would reside with Ms. A.P., pending further order; and (

e) the Ministry’s actions with regard to the placement of E.P. with Mr. Z.M. were wrong and violated the Tochor Order, but contempt was not found because the Ministry had taken steps to return E.P. to Saskatchewan, place him in the care of Ms. A.P. and comply with the Tochor Order. [ 17 ] E.P. returned to Regina on November 14, 2020, and resided with Ms. A.P. Over the next two months, Mr. Z.M. had some weekend parenting time and Ms. L.P. visited multiple times per week. Additionally, E.P. spent two weeks in Brooks with Mr. Z.M. around Christmas of 2020. [ 18 ] The Ministry apprehended both children from Ms.

A.P.’s care in late January of 2021. In her affidavit, Alisha Van Den Biggelaar, a child protection worker with the Ministry, averred that there had been an altercation among Ms. L.P., her brother and her mother where they were intoxicated and fighting. N.P. was temporarily placed with her maternal great-grandparents. E.P. was visiting with Mr. Z.M. at the time of the incident and temporarily resided with his maternal great-grandparents when he returned from the visit. Ms. L.P. admitted that she had been drinking on that weekend and that she had used fentanyl in the days immediately after the apprehension of N.P.

She then attended an 11-day detoxification program, which she completed on February 18, 2021. Both children were placed in foster care and the Ministry applied for a further temporary order. [ 19 ] On March 9, 2021, a consent order of Baldwin J. committed E.P. to the care of the Minister of Social Services for three months, pursuant to s. 37(1) (

c) of The Child and Family Services Act [ Baldwin Order ]. The Baldwin Order placed E.P. with Mr. Z.M. in Brooks for an extended visit for the duration of the order. The order permitted numerous visits by Ms. L.P. and imposed conditions on her. After initial COVID-19-related difficulties, which affected her parenting time with E.P., she had two weekend visits in Brooks in May of 2021. She had many telephone and FaceTime visits with him during the currency of the Baldwin Order . [ 20 ] Ms.

L.P. averred that she continued to work with the Ministry on her case plan in the months subsequent to the Baldwin Order, was successful in her efforts and continues to attend addictions programming. There is no evidence that Ms. L.P. has used any substances

since early February of 2021. She provided numerous clean drug screens. In an affidavit dated June 9, 2021, Ms. Van Den Biggelaardeposed that Ms. L.P. was doing well with her sobriety, the Ministry had no further child protection concerns with regard to Ms. L.P. andit had no concerns about either parent’s ability to provide care for E.P. She indicated that the Ministry had no plans to bring anotherprotection application and that E.P. and N.P. could be returned to Ms. L.P.’s care. The Ministry’s involvement in this matter ended uponthe expiry of the Baldwin Order on June 9, 2021. N.P. has been in Ms.

L.P.’s sole care since early June of 2021. [21] On June 2, 2021, Mr. Z.M. applied for interim custody and primary residency of E.P. The parties came to an agreement thatresulted in an interim consent order granted by Schatz J. on June 9, 2021 [Schatz Order]. The Schatz Order provided that the parents wereto have interim joint custody and joint decision-making authority, E.P. would remain in Mr. Z.M.’s care until the end of the school year onJune 26, 2021, and that parenting time during the summer of 2021 was to be shared on a two weeks on–two weeks off rotating basis.

Thematter was directed to an expedited pretrial conference. Because the first available pretrial conference date was December 7, 2021,Ms. L.P. filed a further application seeking a determination of the interim parenting arrangements for E.P. commencing in the fall of 2021.That application was heard on August 27, 2021, and the Chambers Decision, which is the subject of this appeal, was rendered on August30, 2021. In the Chambers Decision, E.P. was ordered to reside with Mr. Z.M. in Brooks. III.

Chambers decision [22] The Chambers judge noted that the application to determine E.P.’s primary residence was contemplated by the Schatz Order, inthe event that a pretrial conference could not be held prior to the end of August of 2021.

He observed that there was urgency to the matter.The Chambers judge referred to s. 10 of The Children’s Law Act, 2020, SS 2020, c 2, to identify the factors he must consider whendetermining E.P.’s best interests, and then set out the following analysis: [6] After reviewing the evidence filed and hearing the submissions of counsel, and after considering each of the factor in s. 10, I amsatisfied – at this time – that it is in [E.P.’s] best interests to reside with his father, [Mr.

Z.M.] in Brooks, Alberta. [7] Since [E.P.] was apprehended by the Ministry of Social Services in mid-October of 2019 while in the care of his mother, [Ms. L.P.],[E.P.] has had little stability in his life. [8] While in the care of the Ministry, [E.P.] spent time in the care of his maternal grandmother (until he was again apprehended from hercare in January of 2021), time in foster care, and time in the care of his father. [E.P.] only recently returned to [Ms.

L.P.’s] care after theconsent order of Schatz J. dated June 9, 2021, which specified parenting time over the summer. [9] [E.P.] completed part of the 2020–2021 school year while in his father’s care in Brooks, including the last several months of the schoolyear. In these circumstances, I am satisfied that beginning the new school year in the same environment will provide some measure ofcontinuity and stability for him. [10] [E.P.] has not had an established primary residence with either parent for most of the past two years.

This situation is distinguishablefrom one where there is an established status quo, which would engage the principles applicable to the variation of established interimcustody arrangements discussed in Guenther v Guenther (1989), (SK KB), 181 Sask R 83 (QB) and Gebert v Wilson,2015 SKCA 139, 467 Sask R 315. [11] While [Ms. L.P.] appears to have made commendable recent progress addressing her addiction issues and has addressed the concernspreviously held by the Ministry, she is presently on social assistance and has taken advantage of community resources to provide food forher household from time to time.

While her resourcefulness is also commendable, I conclude that it is in [E.P.’s] best interests for hisprimary residence to be with [Z.M.] on an interim basis. [23] The Chambers judge granted an interim order under which, inter alia, E.P. is to reside primarily with Mr. Z.M. Pursuant to theorder, Ms. L.P. is to have parenting time for one weekend per month and for the majority of time during school breaks and the summer. [24] Ms. L.P. filed a notice of appeal on August 30, 2021, which had the effect of staying the Chambers Decision pursuant to Rule15 of The Court of Appeal Rules. Mr.

Z.M. applied to have the stay lifted. On September 7, 2021, Caldwell J.A. declined to lift the stayand, instead, arranged for the appeal to be heard on September 20, 2021. Justice Caldwell ordered that E.P. remain in Ms. L.P.’s care inthe interim and be re-enrolled in an elementary school in Regina. When the decision in this appeal was reserved, this Court ordered thatthe same residency and schooling arrangements continue until the release of this judgment. IV. Issues [25] The following issues arise in this matter: (

a) Should the fresh evidence be admitted? (

b) Did the Chambers judge err in relation to his

interpretation of the status quo? (

c) Did the Chambers judge err by not considering the factors related to E.P.’s best interests? (

d) Did the Chambers judge err by penalizing Ms. L.P. for her socio-economic status? (

e) Did the Chambers judge err by failing to apply mobility principles? [26] All of the substantive issues are interwoven and will be analyzed together.

V. Analysis A. Fresh evidence application [27] Ms. L.P. filed an application pursuant to Rule 59 of The Court of Appeal Rules, seeking to introduce fresh evidence in the formof a short affidavit. In her affidavit, Ms. L.P. averred that E.P. has remained in her care and is enrolled in grade 3. She stated that E.P.received a warm reception from friends and teachers when he returned to this school, noting that he has known many of his classmatessince kindergarten. N.P. attends the same school. She further set out the supports available to E.P. at the school. He has been registered inswimming lessons and karate.

Lastly, she attached drug screens from the past three weeks that confirm she has not consumed any illicitsubstances. Mr. Z.M. opposes the introduction of this evidence. [28] The test for the admission of new evidence on appeal is set out in A.M.D. v M.R.M., 2021 SKCA 71: [34] On a number of occasions, this Court has confirmed that the test for the admission of fresh evidence is somewhat flexible when thebest 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. [29] Most of the proposed evidence could not have been adduced before the Chambers application was heard because it speaks toevents that occurred after the hearing date. It is also credible. However, it is my view that the evidence is not highly relevant or potentiallydecisive as to E.P.’s best interests. Given the short amount of time that has passed since the Chambers Decision was rendered, it merelysupplements, in a minor way, or confirms the ample evidence that already exists regarding E.P.’s family, school and friends situation andMs.

L.P.’s successful commitment to sobriety since February of 2021. As such, it will not be admitted. There shall be no costs for theapplication. B. Analysis of the substantive issues [30] A highly deferential standard of review is applied when reviewing a Chambers judge’s determinations regarding interimparenting arrangements for children.

That standard of review was recently discussed by the majority of this Court in T.C. v A.E., 2021SKCA 79: [25] … The standards of review that have developed in the area of interim parenting orders have taken into account the necessity to ensurethat decisions are reviewable in a meaningful way while assisting the parties to promptly move their matters forward to resolution –through agreement or trial – because of the significant benefit that accrues to children from having the stability and certainty that finalparenting arrangements achieve.

Discouraging appeals from interim orders, other than in exceptional circumstances, permits the bestinterests of children to be served by encouraging the parties to more quickly reach that final stage rather than expending precious time andscarce resources on appeals from interim orders: Hall v Hall, 2011 SKCA 86 at para 1, 337 DLR (4th) 89.

At the same time, theavailability 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.Rather, as Bastarache J. wrote in Van de Perre v Edwards, 2001 SCC 60, [2001] 2 SCR 1014: [15] As indicated in both Gordon [ (SCC), [1996] 2 SCR 27] and Hickey, the approach to appellate review requires anindication of a material error.

If there is an indication that the trial judge did not consider relevant factors or evidence, this might indicatethat he did not properly weigh all of the factors. In such a case, an appellate court may review the evidence proffered at trial to determineif the trial judge ignored or misdirected himself with respect to relevant evidence. This being said, I repeat that omissions in the reasons

will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian adLitem of) v. Ashmore (1999), 1999 BCCA 6 , 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused [2000] 1 S.C.R. vi, anomission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived theevidence in a way that affected his conclusion.

Without this reasoned belief, the appellate court cannot reconsider the evidence. [31] The Chambers judge in the matter at hand made a discretionary decision that is to be accorded significant deference on appeal.That discretion may be interfered with if the Chambers judge has erred in principle, disregarded a material matter of fact, seriouslymisapprehended the evidence, failed to act judicially or the result is so clearly wrong as to amount to an injustice: Rimmer v Adshead,2002 SKCA 12, [2002] 4 WWR 119; Van de Perre v Edwards, 2001 SCC 60, [2001] 2 SCR 1014; M.H. v A.B., 2019 SKCA 135, 36 RFL(8th) 261; and Hickey v Hickey, (SCC), [1999] 2 SCR 518.

Also see Kot v Kot, 2021 SKCA 4 at para 20, 63 ETR (4th)161. [32] Despite the high hurdle required by this standard of review, cases arise where this Court will intervene and set aside an interimparenting order. This is one of those cases. It is my view that the Chambers judge erred in several material aspects of his decision. [33] First, the Chambers judge erred by determining that there was no status quo in this matter. In my view, there is always a statusquo. It may be non-traditional or difficult to define, and may not always fit within a neat box, but it will exist.

In this matter, the status quowas not as straightforward as the majority of situations that the Court encounters; but, nonetheless, there was one. The Chambers judgeerred by relying on some recent instability in residency as a basis for finding that no status quo existed. [34] As noted by Ryan-Froslie J.A. in Gebert v Wilson, 2015 SKCA 139 at para 14, 467 Sask R 315 [Gebert], the status quo is notone of short duration or one that arises out of recent circumstances. While E.P.’s residential situation had been fluid, that does not meanthat there was no status quo.

E.P. had resided in Regina with his mother or grandmother for the vast majority of his life. Up until Octoberof 2019, E.P. was in the sole care of his mother. Subsequent to the involvement of the Ministry, he lived with his grandmother and spentconsiderable time with his mother. Mr. Z.M. had not even met his son prior to May 22, 2020.

With the exception of two, three-monthperiods from August to November of 2020 and March to June of 2021, E.P. resided in Regina where he had lived with his sister since herbirth, spent his time with his mother and extended maternal family, and attended school. [35] The first of the three-month periods that E.P. spent with his father was under protest from Ms. L.P. and was determined byMegaw J. to have been wrongfully implemented by the Ministry: “what the Ministry did here was wrong and violated the terms of theexisting order” (Megaw Decision at para 15).

A valid status quo must be by agreement or acquiescence and cannot be imposed on aparent: Wyatt v Reindel, 2020 SKCA 36 at para 15, 36 RFL (8th) 253. [36] The second period where E.P. resided with his father arose out of the Baldwin Order, which put conditions on Ms. L.P. to assisther in working on her shortcomings as they related to parenting. While the word reunification does not appear in that order, the conditionsimposed on Ms. L.P. were obviously put in place to help achieve that goal. Given that Ms.

L.P. was the only parent with a right to custodyof E.P. at that point in time, reunification had to be the outcome that order was seeking. [37] As of June 9, 2021, the Ministry was satisfied that it no longer had any protection concerns related to Ms. L.P. and was contentto have the children unconditionally returned to her care. The two periods when E.P. resided with his father were not enough to displacethe long-standing status quo. The first period was wrongfully foisted upon Ms. L.P. The second one was short in duration and for thepurpose of continued efforts at reunification. While Mr.

Z.M. submitted that grandparents have been providing E.P.’s care for the pastfour years, the evidence does not bear that out. The uncontroverted evidence indicated the children were in Ms. L.P.’s primary care untilOctober of 2019. She had assistance from her mother and grandparents, much like many single parents do, but she was the primarycaregiver until October 17, 2019. It was only at that point that E.P. began to reside with his grandmother.

The lengthy legal and de factostatus quo consisted of E.P. residing in Regina in the primary care of his mother and grandmother with the complete absence ofinvolvement by Mr. Z.M. [38] This is not a case where a judge identified a new status quo that had been in place for a relatively short period and that findingis being challenged as a palpable and overriding error of fact. Here, the Chambers judge found there was no status quo.

The failure toidentify the status quo represents an error in principle and a serious misapprehension of the evidence. [39] Next, the Chambers judge did not adequately address the factors that determined E.P.’s best interests. After making theconclusory statement that it was in E.P.’s best interests to reside with his father in Brooks, he then proceeded to analyze the factors he hadconsidered. In his reasons, those factors consisted of only the following: (

a) E.P. has had little residential stability since being apprehended in 2019; (

b) E.P. completed part of the 2020–2021 school year in Brooks, including the last several months of the recent school year, andcontinuing that schooling would provide a measure of continuity and stability; (

c) Ms. L.P. has made commendable recent progress with her addictions and has addressed the Ministry’s concerns; and (

d) Ms. L.P. is on social assistance and uses a community-based food program. [40] With respect, consideration of these factors embeds several errors. [41] First, this analysis did not address most of the factors related to E.P.’s best interests. It is instructive to look at theconsiderations examined by Megaw J. in his November 10, 2020, decision in which he refused to grant interim residency of E.P. toMr. Z.M. Portions of that decision were highly relevant to the application before the Chambers judge.

The following excerpts illustratethis point (Megaw Decision): [38] The father submits he should be granted an interim order because the mother continues to experience her drug problem, and becausehis home is a stable and loving environment for the child. The mother submits no such order should be made, and rather she should beentitled to continue to work on her personal issues, with the aid of the Ministry, to regain custody of both of her children.

[39] I have determined, on this interim basis, it is not appropriate to vary the current judgment based on the affidavit material that has been filed. Rather, I determine this matter should be set down for a pretrial conference, and a trial if required. It is necessary to hear the fullness of viva voce evidence to deal with all of the facts in this matter. I say this for the following reasons. [40] Counsel for the grandmother advanced a submission which resonated with the court. While there are many other concerns which will be dealt with below, this one summarizes the situation.

She submitted, in the absence of the mother’s current addictions concerns, the father would not have been considered as a resource for this child. That is so because he has not been involved in the child’s life, apparently at all, until August of this year. He has had no contact and was unknown to the child before now. He has not been providing financial support for the child. He has not been a figure in this child’s life, really, for the child’s whole life.

It might fairly be concluded, on the basis of the evidence on this application, the father had previously determined to abandon his interest in this child and he was a stranger to the child. [41] That lack of involvement is not adequately explained by the affidavit material.

While the father suggests the mother may have originally withheld the child from him, the evidence does not bear out that he made much, if any, effort to engage with the child and take on a parenting role. [ 42 ] As a result, it is necessary to allow the parties to present more fulsome evidence indicating why, or why not, the father should now be entitled to take a leading custodial role in E.P.’s life. This is so given the mother’s historical parental role.

It is also important given the grandmother’s current status as a person of sufficient interest. [ 43 ] There are other reasons for refraining from making an interim order based on incomplete evidence. Those reasons include the fact the mother identifies as being a member of the Peter Ballantyne First Nation. The appropriate parenting arrangement, in light of this child’s Indigenous standing, must be considered with the background of all of the available evidence. That can be done only with the fullness of viva voce evidence. It is not canvassed at all in the material that has been filed.

It does not appear to have been considered in any respect by the Ministry. [ 44 ] As well, the effect of a placement of this child, to the exclusion of his sister, who was similarly apprehended by the Ministry, must also be considered. Generally, it is considered best to keep siblings together and connected. There has been no explanation offered here, especially given the ages of the children, and their apparent closeness, why it is appropriate to now, suddenly, separate them from one another. This is so particularly given the evidence that there may be other parenting alternatives through the grandmother.

The emergence of the father does not justify an interim order given the long-standing status quo between these children. Again, this is not a factor which appears to have been considered by the Ministry. [ 45 ] As indicated, the position of the grandmother, now a person of sufficient interest, on the parenting arrangement will need to be considered. While it is clear she has been a presence in these children’s lives, whether she should be a parenting option must be canvassed. The effect of both the father’s and the mother’s biological standing will be considered in this issue.

That standing does not take automatic precedence over a non-parent. See, T.B.S. v S.J.B. , 2020 SKCA 93 . This is another factor which does not appear to have been considered by the Ministry in its decision to place the child with the father. [ 46 ] Finally, the issue of mobility is a factor to be considered here. Those alternatives set forth in Alansari v Kreke , 2020 SKCA 122 , have not been canvassed in the evidence. Viva voce evidence will be required to determine which of the possible parental relocation scenarios is appropriate in this situation.

This has not been considered in the Ministry’s involvement. [ 47 ] All of these factors, and others presented by the parties, will now be considered through the family law division proceeding. These issues are not automatically avoided simply because of the Ministry’s involvement. [ 48 ] For all of these reasons, it is not appropriate to make an interim decision granting custody to the father. He relies heavily upon the mother’s obvious, and admitted, inability to care for this child given her present addiction concerns. He is correct in identifying these shortcomings.

However, the evidence before the court now is that the mother is attempting to overcome her difficulties. And, she has received the assurances of the Ministry that it will provide resources and assistance to give to her, to the fullest extent possible, the tools to deal with her substance abuse issues. In light of this, the time between now and the trial will provide the mother with an opportunity to deal with her issues.

That may then be considered by the court, together with all of the other evidence presented. [42] It is my view that the Chambers judge erred in a material way by ignoring the factors discussed by Megaw J. in this excerpt. The issues set out by Megaw J. remained highly relevant to this matter and represented significant considerations regarding E.P.’s best interests that militated against a change in the status quo. [43] The second error in principle is the failure by the Chambers judge to consider what had changed from E.P.’s perspective since Megaw J. rendered his decision.

While E.P. was apprehended from his grandmother’s care, and spent three additional months with his father, his mother’s situation had improved dramatically to the point that N.P. has returned to her sole care and the Ministry had no further child protection concerns. E.P. has also recently spent significant time in the sole care of his mother in Regina and continues to do so. [44] Despite the recent time spent in school in Brooks, E.P. had attended the same school in Regina for kindergarten, grade 1 and parts of grade 2.

His school in Regina also represented stability. [45] The third error in principle is the apparent consideration given by the Chambers judge to the fact that Ms. L.P. was in receipt of social assistance and, to some degree at least, had relied on a community food program. While the willingness and ability to provide for a child’s basic needs is a relevant factor under s. 10(3) (

h) of The Children’s Law Act, 2020 , the evidence revealed that Ms. L.P. was appropriately doing so by accessing suitable community support programs when required. There was no evidence that her ability to provide the basic necessities required by E.P. was impaired or that she was unwilling or unable to meet his needs. The evidence was to the contrary. The Chambers judge’s reliance on these facts to the detriment of Ms.

L.P.’s position represents an error in principle. [46] Lastly, while this is not a true mobility case in the classic sense – given that the parents had long resided in their current locations when the litigation commenced – it has the flavour of such a matter. Mr. Z.M. seeks to move E.P. a long distance from his other parent, his sister, his extended maternal family and the community where he has resided for the vast majority of his life. In my view, the

Chambers judge erred in principle by failing to consider the impact on E.P. that could result from being uprooted and moved from hishome community and the only family he had until recently. [47] These errors require this Court to intervene, overturn the Chambers Decision and substitute an order that is in E.P.’s bestinterests. [48] E.P. has been in the care of his mother or grandmother in Regina for the vast majority of his life. Ms. L.P., E.P.’s sister and hismaternal grandparents have been a constant presence, whereas Mr. Z.M. was absent for the first seven years.

The only issue that causedany concern at any point with regard to Ms. L.P.’s parenting of E.P. was her struggle with addictions. The Chambers judge found as a factthat she had made commendable recent progress in this area. Given the evidence that the Ministry has no further child-protection concernswith Ms. L.P., and has returned N.P. to her sole care without conditions, combined with an examination of the evidence regarding E.P.’ssituation and Ms.

L.P.’s ability and willingness to provide appropriate care, I do not see sufficient risk or other compelling circumstancesthat would permit a change to the status quo: see Guenther v Guenther (1989), (SK KB), 181 Sask R 83 (QB), andNapper-Whiting v Whiting, 2014 SKCA 33 at paras 3–4, 433 Sask R 235. [49] While the test always remains the best interests of the specific child, the interim maintenance of the status quo – absent risk orother compelling reason – is generally in the best interests of a child.

The rationale for this determination is well summarized in Gebert: [11] First, the principle expressed in Guenther does not displace the legislative requirement enunciated in both the Divorce Act, RSC 1985,c 3 and The Children’s Law Act, 1997, SS 1997, c C-8.2, that in making decisions with respect to parenting arrangements, the paramountconsideration is the best interests of the child. In our view, the principle itself is rooted in that paramount consideration.

It recognizes thatchanges in custody and primary residence have a profound effect on children – altering their day to day home environment, their routine,their contact with important people in their lives including caregivers, siblings, extended family and friends and may result in a change ofschool and activities – and thus, generally should not occur on an interim or temporary basis as a final resolution may result in such achange being reversed with all of the same attendant disruptions to the child. [50] E.P. has already had some temporary disruption to his life.

Ignoring the long-standing status quo, and placing him withMr. Z.M. in Brooks, would add to that uncertainty and have a negative impact on his best interests. He has a strong bond with his mother,sister and maternal grandparents. E.P. is connected to his school, his friends and his home community of Regina. He is a member, oreligible to be a member, of the Peter Ballantyne Cree Nation. It is my view that his best interests require him to reside primarily withMs. L.P. in Regina on an interim basis. [51] E.P. has established a positive, albeit relatively new, connection with his father and paternal family.

That relationship should benurtured through parenting time with Mr. Z.M. VI. Conclusion [52] The appeal is allowed and the interim order is set aside. In its place, the following order shall issue: (

a) E.P. shall reside with Ms. L.P. in Regina, Saskatchewan, until further order or agreement of the parties; (

b) Mr. Z.M. shall have parenting time with E.P. as follows: (

i) one weekend per month, to fall on a long weekend when available; (ii) 50% of the days during the Christmas school holidays, with each parent’s parenting days in that period to be consecutive; (iii) 75% of the days in each of the Spring and Easter school holidays, with each parent’s parenting days in those period to beconsecutive; (iv) five weeks during the summer school holidays, consisting of two, two-week blocks and one, one-week block; and (

v) any additional parenting time agreed upon by the parties; (

c) Mr. Z.M.’s parenting time with E.P. may be changed with the consent of the parties on a one-time or permanent basis; (

d) Mr. Z.M. shall be responsible for all of the transportation of E.P. to exercise his parenting time; (

e) each parent is entitled to telephone- or video-parenting time twice per week, for a maximum duration of 30 minutes peroccurrence, during the times that E.P. is in the other parent’s care for a period of one week or more; and (

f) each parent shall have the right to request and receive information regarding E.P.’s schooling, activities and medicalcircumstances directly from teachers, school officials, counsellors, extracurricular activity organizations, coaches and health careproviders. [53] There shall be no costs for this appeal. The Court thanks the parties and their counsel for facilitating the prompt hearing of thistime-sensitive appeal in this important matter. “Tholl J.A.” Tholl J.A.I concur. “Whitmore J.A.” Whitmore J.A.I concur. “Leurer J.A.” Leurer J.A.