T. K. v C.E., 2021 SKCA 138

Court of Appeal for Saskatchewan Docket: CACV3814 Citation: T.K. v C.E., 2021 SKCA 138Date: 2021-10-27 Between:T.K.Appellant (Respondent)AndC.E.Respondent (Petitioner)Before: Jackson, Leurer and Kalmakoff JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Mr. Justice LeurerIn concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice KalmakoffOn appeal from: 2021 SKQB 108, ReginaAppeal heard: September 8, 2021Counsel: Leane Phillips for the Appellant Lindsay Hart for the Respondent Leurer J.A. I.

INTRODUCTION [1] This is an appeal from an interim parenting order made by a Court of Queen’s Bench judge: C.E. v T.K., 2021 SKQB 108[Interim Decision]. [2] After considering voluminous affidavit evidence and three days of oral testimony, the judge found that: (

a) C.E. and T.K. areparents of and are to have joint decision-making responsibility for a child, now aged 3; (

b) it was in the child’s best interests that, pendingtrial, she be placed in C.E.’s primary care; (

c) C.E. shall be able to take the child when she relocates to Ontario; and (

d) T.K. shall havespecified parenting opportunities, in part facilitated by financial contributions from C.E. [3] T.K. appeals from all aspects of the Interim Decision, except as it relates to joint decision-making and the parties’ status asparents of the child. [4] I see no basis to interfere with the Interim Decision. I would therefore dismiss T.K.’s appeal. My reasons follow. II. ISSUES [5] T.K. acknowledges that the standard of review applicable to appeals from interim parenting orders is “narrow in scope anddeferential in nature” (A.M.D. v M.R.M., 2021 SKCA 71 at para 30).

In M.H. v H.S., 2019 SKCA 122, Tholl J.A. synthesized a long lineof case law when he wrote the following: [8] This Court will not intervene in interim parenting orders unless the Chambers judge erred in principle, overlooked ormisapprehended relevant evidence or the decision is clearly wrong: Russell v Russell, 2018 SKCA 80 at para 12, 16 RFL (8th) 26[Russell]. The error must be of such a nature that it compels reversal of the order: Graham v Tomlinson, 2010 SKCA 101 at para 15, 324DLR (4th) 156. [6] There are several reasons for this approach.

These reasons were captured by Caldwell J.A. in Bolan v Bolan, 2013 SKCA 97,423 Sask R 151: [6] … An interim custody order is a temporary balance which a Queen’s Bench chambers judge must strike after weighing theobjectives and factors set out in the Divorce Act, 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 giveconsiderable deference to a chambers judge’s decision 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 in these terms at para. 23: “Simply put, that standard involves a considerable measure ofdeference to the decision-making of the Chambers judge.

This Court is not entitled to simply re-make a custody and access decision fromthe ground up along the lines that it might have preferred or thinks best. ” [7] Moreover, this Court has pointedly and repeatedly said that it does not welcome appeals from interim orders in family lawproceedings (other than in exceptional circumstances), primarily because the issues between the parties are best resolved by a pre-trialconference or a full hearing at the trial level held in short order. See: Jochems v. Jochems; Mantyka v. Dueck, 2012 SKCA 109, 399 Sask.R. 303; Hall v. Hall, 2011 SKCA 86, 337 D.L.R. (4th) 89; Graham v.

Tomlinson, 2010 SKCA 101, 324 D.L.R. (4th) 156; Lapoor v.Navidi, 2000 SKCA 95, 14 R.F.L. (5th) 125; Dauk v. Law, 2005 SKCA 145, 275 Sask. R. 158; Phillips v. Shergold, 2009 SKCA 131;Pawar v. Pawar, 2010 SKCA 134 (chambers), 366 Sask. R. 18; and Foss v. Foss (1991), (SK CA), 31 R.F.L. (3d) 367

(Sask. C.A.). As Jackson J.A. said in Hall at para. 1 : “[i]n most cases, the interests of the parties, and the children, are best served by proceeding quickly to the pre-trial settlement conference stage rather than expending time and scarce resources on an appeal from an interim order. ” [7] T.K.’s notice of appeal lists seven grounds and numerous sub-grounds. In my respectful view, the outcome of her appeal is dictated by the answer to four questions: (

a) Did the judge err in law by giving preference to a biological parent over a parent who is not a biological parent? (

b) Did the judge err in law by failing to impose the burden on C.E. to prove that a relocation was in the child’s best interests? (

c) Did the judge overlook or misapprehend material evidence in a way that compels this Court to intervene? (

d) Did the judge err by making an order without affording the parties an additional opportunity to make submissions? III. ANALYSIS A. Did the judge err in law by giving preference to a biological parent over a parent who is not a biological parent? [ 8 ] To understand this issue, it is important to know that C.E. gave birth to the child in 2018 after being artificially inseminated by sperm from a third-party donor. At the time, C.E. and T.K. had been in a committed relationship and were living together. Although the point was disputed by C.E., the judge agreed that T.K. is a parent of the child.

No appeal is taken by C.E. from this finding. [ 9 ] T.K.’s argument under this head is that, notwithstanding that the judge recognized her as a parent of the child, the judge erred in law by giving preference to C.E. because C.E. alone is the biological parent. T.K.’s argument is based on the following paragraphs from the Interim Decision : [88] Although both T.K. and C.E. have shared parenting of [the child] to date, the status quo is not determinative of the matter and is but one factor to be considered. C.E. is [the child’s] biological parent and [the child] has an extensive biological family in Ontario.

Again, biological connection is but a factor to be considered. Unlike a situation with an older child, [the child’s] routines are only disrupted insofar as they relate to the other parent. She does not attend school and is not in activities and connections to her community at this time are minimal. … [91] [The child’s] physical, psychological and emotional safety, security and well-being is, to the greatest extent possible, protected by allowing C.E. to take [the child] with her to Ontario.

I cannot assume C.E. will remain behind if [the child] is not allowed to relocate and, as Jackson J.A. pointed out in her dissent [in K.G.K. v L. T.K. , 2021 SKCA 12 ], consideration must be given to whether it would be in [the child’s] best interests to be in T.K.’s primary care. The parties filed a number of emails and text messages which were exchanged between them during the relationship. Of note in those exchanges is C.E.’s continued reference to the concern for [the child] and [the child’s] needs. T.K., on the other hand, makes repeated reference to her own needs.

Although T.K. now voices recognition of the importance of [the child] having connection with C.E.’s family, that was certainly not the case while the parties were together and, in fact, she became very angry when C.E. sent her brother photos of [the child] or communicated with her family. T.K. displayed controlling behavior during the relationship, and I cannot be satisfied that she would promote [the child’s] relationship with C.E. or her biological family if [the child] was to remain in T.K.’s primary care.

It is in [the child’s] best interests that there be an interim order placing her in C.E.’s interim primary care and that C.E. be able to take [the child] with her when she relocates to Ontario. (Emphasis added) [ 10 ] Consideration of T.K.’s argument invites an examination of the Interim Decision in the context of The Children’s Law Act, 2020 , SS 2020, c 2 [ CLA 2020 ]. One of the changes introduced by the CLA 2020 was to clarify issues of parental status when children are conceived through assisted reproduction or insemination by a sperm donor.

In this regard, s. 60 of the CLA 2020 states as follows: Birth parent’s spouse, if assisted reproduction or insemination by sperm donor 60

(1) If the birth parent of a child conceived through assisted reproduction had a spouse at the time of the child’s conception, the spouse is, and shall be recognized in law to be, a parent of the child.

(2) If the birth parent of a child conceived through insemination by a sperm donor had a spouse at the time of the child’s conception, the spouse is, and shall be recognized in law to be, a parent of the child.

(3) This

section does not apply if, before the child’s conception: (

a) the spouse did not consent to be a parent of the child; or (

b) the spouse consented to be a parent of the child but withdrew the consent.

(4) This

section does not apply if: (

a) the birth parent is a surrogate; or (

b) the child is conceived after the death of a person declared pursuant to

section 63 to be the child’s parent.

[11] In the circumstances of this case, as the judge identified, prior to the CLA 2020, “C.E. was presumed to have sole custody as[the child] had only one ‘parent’ as defined by the previous legislation” (Interim Decision at para 12).

However, the judge recognized that,because of s. 60 of the CLA 2020, “both T.K. and C.E. are parents” of the child (at para 17). [12] The conclusion that both T.K. and C.E. are parents of the child makes relevant s. 11 of the CLA 2020, which provides asfollows: No presumption of preferred parent 11 In making, varying or rescinding a parenting order, the court shall make no presumption and draw no inference as between parents thatone parent should be preferred over the other parent. [13] Based on all of this, I would agree that T.K. was entitled to have issues relating to the parenting of the child resolved withoutbeing treated differently than C.E. simply because C.E. is the biological parent of the child.

However, I do not interpret the InterimDecision as suggesting that the judge treated T.K. differently than C.E. based on the fact that C.E. is the child’s biological parent. [14] T.K.’s argument that the judge gave preference to C.E. is grounded in the sentences found in paragraphs 88 and 91 of theInterim Decision that I have emphasized earlier. However, the judge’s comments must be placed in their proper context. Prior to theseparagraphs, the judge introduced a new part to her judgment that began after paragraph 67 with the heading “No presumption of preferredparent”. She then quoted s. 11 of the CLA 2020.

Following this, the judge referred to T.B.S. v S.J.B., 2020 SKCA 93, 45 RFL (8th) 148[T.B.S.], and observed, as her heading signalled, that T.K. was not to be treated differently than C.E. simply because C.E. is the biologicalmother of the child: [68] Much was made by C.E.’s counsel of the fact that C.E. is [the child’s] biological parent. In T.B.S., the Court of Appeal concludedthere was no presumption in favour of a biological parent over a person of sufficient interest. T.K., however, is more than a person ofsufficient interest. By virtue of the CLA 2020, she is a parent.

Again, there is no presumption in favour of a biological parent as noted bythe Court of Appeal at para. 55: [55] Recent jurisprudence from other provinces supports the contention that there is no presumption in favour of a biological parentwhen a court is determining the parenting arrangements that are in the best interests of a child in the context of a custody dispute: Khan vKong (2007), (ON SC), 50 RFL (6th) 31 (Ont Sup Ct

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

While case law from Nova Scotia does not completely support this proposition, the differing legislation inthat jurisdiction accounts for the difference: see, for example, O’Brien v Thomson, 2004 NSCA 34 at para 28, 221 NSR (2d) 297;MacLeod v Theriault, 2008 NSCA 16 at paras 15–16, 262 NSR (2d) 184; and Starratt v Starratt, 2013 NSFC 23 at para 19, 336 NSR (2d)1. [15] Based on all of this, I am satisfied the judge was aware that she was not to give preference to C.E. over T.K. simply becauseC.E. is the biological mother of the child.

I also see nothing in the Interim Decision that suggests that the judge ignored this legalrequirement. Instead, what the judgment reflects is that she took into account that the biological connections that the child may have toother persons are relevant considerations to take into account when carrying out the best interests analysis.

The judge did not err inconsidering what parenting arrangement would best enhance these other relationships when making the parenting order. [16] Human experience is that, both as children and mature adults, people often find meaning in, or derive a sense of identity from,their connections with others. Depending on all the circumstances, this may include biological relationships. The point was made by ThollJ.A. in T.B.S., with reference to the biological connection between parent and child: [58] In my view, biological parental ties are a unique and important factor in the evaluation of a child’s best interests.

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

It may carry great weight in some situationsand substantially less weight in others, but the importance of this factor must always be analyzed through the lens of the best interests ofthe specific child whose parenting arrangements are being determined. [17] However, T.B.S. was a case decided under The Children’s Law Act, 1997, SS 1997, c C-8.2, which was replaced by the CLA2020. The contest in T.B.S. was not between two parents, but instead was between a person of sufficient interest and a parent.

Justice Thollconducted an extensive review of the jurisprudence and identified that a biological relationship with a child can have relevance whenconducting a best interests analysis: [56] Based on the above survey of jurisprudence from Saskatchewan and across Canada, examined within the context of a child-centred assessment of a child’s best interests, I conclude there is no presumption in favour of a biological parent versus a person ofsufficient interest when determining the appropriate parenting arrangements for a child.

It is a factor that is subsumed within the bestinterests framework and must be considered in conjunction with all of the other factors. [18] One of the reforms instituted by the CLA 2020 was to remove the distinction between parents based on who has a biologicalconnection to a child. The CLA 2020 now demands that, in a contest between parents, the biological connection to a child that one parenthas, but that the other does not, is not to be considered. In this regard, the legislation is intended to overcome preconceived notions orprejudices regarding biological choice.

However, the CLA 2020 does not require that all connections a child may have must bedisregarded. T.K. conceded in oral argument that this may include those associated with biological relationship. It is all, of course, verycontext specific. [19] As I would interpret paragraphs 88 and 91 of the Interim Decision, the judge was doing nothing more than weighing, as one of

many factors that went into her best interests analysis, the impact of different possible parenting orders on the relationships that the child might have or might develop with members of her extended family. Again, I see no error in her doing so. [ 20 ] For these reasons, I would reject T.K.’s argument that the judge erred in law by giving preference to a biological parent over a parent who is not a biological parent. In short, she did not make this error. B.

Did the judge err in law by failing to impose the burden on C.E. to prove that a relocation was in the child’s best interests? [ 21 ] C.E. and T.K. met online in 2014. At the time, C.E. was employed as a naturopathic doctor in Sault Ste. Marie, Ontario. T.K. was living on an acreage located in the Regina area. After a time, C.E. agreed to relocate to Saskatchewan to live with T.K. on her acreage. Together, they established a naturopathic clinic in a nearby community. The parties separated on September 14, 2020. After this, C.E. moved from the acreage.

As the judge described, on separation, “T.K. kept [the child] and refused C.E. parenting time other than on strict and limited terms” ( Interim Decision at para 37). [ 22 ] Proceedings were commenced by C.E. in which she sought various orders, including orders “confirming” that she had sole custody of the child and that she be “permitted to relocate with the Child from Regina, Saskatchewan to Sault Ste. Marie, Ontario”. As grounds, C.E. asserted that it would be in the “best interests of the Child that [she] be permitted to relocate to Ontario where all her family, friends and support network reside”.

C.E. also claimed that her naturopathic practice in Saskatchewan was failing and that the parties had accumulated substantial debt associated with the clinic. She claimed that relocation would enable her to service the debt and provide for the child financially. T.K. brought her own application seeking, among other relief, an order that the child’s primary residence be with her and that C.E. have limited specified parenting time. [ 23 ] Both parties filed an extensive affidavit record containing highly contradictory evidence. The matter came before Elson J.

He concluded that a viva voce hearing would be required to sort out the mass of conflicting evidence. In the context of Elson J.’s case management, the parties eventually agreed to an interim parenting arrangement, the terms of which were embodied in a consent order made on October 30, 2020 [Consent Order].

The Consent Order stated that, “[p]ending the outcome of the viva voce hearing, on a without prejudice basis to either Party’s position and without presupposition of the determination following the viva voce hearing, interim parenting for the child … shall be shared on a 2-2-3 rotation”. [ 24 ] T.K.’s contention before the judge was that, because of the Consent Order, C.E. bore the onus of proving that her relocation with the child to Ontario was in the child’s best interests and that she (T.K.) herself bore no onus in the matter at all.

T.K.’s argument was based on s. 16 of the CLA 2020 , which provides as follows: Burden of proof for relocation 16

(1) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child spends the vast majority of time in the care of the party who intends to relocate the child , the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child .

(4) The court may decide not to apply subsections (1) and (2) if the order mentioned in those subsections is an interim order. [ 25 ] The judge found that, because of the Consent Order, s. 16(1) had potential application. However, the judge also found that she had the discretion under s. 16(4), which she exercised, not to apply that onus. The judge reasoned in this regard as follows: [33] The CLA 2020 also specifies who bears the burden of establishing a move, or not, is in a child’s best interests.

Pursuant to s. 16(1) of the CLA 2020 , as the child spends equal time in the care of each parent pursuant to an order, the burden lay with C.E. As this is an interim order, however, pursuant to s. 16(4), I need not apply this section. As Elson J’s. interim order was only intended as a stop-gap measure until the parties could proceed to a viva voce hearing, it is not appropriate to apply s. 16(1) and therefore, “the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child” (s. 16(3)). [ 26 ] T.K. argues that the judge erred.

She says that while the Consent Order was an interim order, and therefore, because of s. 16(4), it was open to the judge not to apply the burden described in s. 16(1), paragraph 33 provides no reasons for the exercise of that discretion. The absence of reasons, so T.K.’s argument goes, is a basis for this Court to consider the matter afresh.

Finally, T.K. submits that when the matter is looked at afresh, this Court should find that there was no reasonable basis to relieve C.E. of the burden imposed by operation of s. 16(1). [ 27 ] My consideration of T.K.’s argument on this point again begins with a review of the CLA 2020 .

Section 16 assigns a burden in two sets of circumstances, which are described in subsections (1) and (2). Section 16(1) is applicable where the parties to the proceeding “substantially comply with an order, arbitral award or agreement that provides that a child spend substantially equal time in the care of each party”. When s. 16(1) applies, “ the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child” (emphasis added).

Section 16(2) is applicable where the “parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child spends the vast majority of time in the care of the party who intends to relocate the child”. When s. 16(2) applies, “ the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child” (emphasis added). [ 28 ] What unites s. 16(1) and s. 16(2) is that an onus is only assigned when the parties substantially comply with an “order, arbitral

award or agreement”. Court orders and arbitral awards are most often forged in the crucible of litigious dispute. The CLA 2020 defines the term “agreement” to mean “a written agreement signed by the parties” (s. 2(1)). Considering these sets of circumstances together, as I see it, s. 16 reflects that where there is a strong foundation to assume that a parenting arrangement is in the child’s best interests, that arrangement should generally be respected.

This justifies placing an onus on the party seeking a change to it. [ 29 ] However, s. 16(4) recognizes that the assumption that underpins the assignment of an onus under s. 16(1) and s. 16(2) may not exist when a parenting arrangement has been put in place via an interim order. One reason for this is that the foundation for interim orders is sometimes different than that for final orders. In some cases, interim orders are the product of quick court processes where the parties are not able to put forward a complete evidentiary record. In most cases, the evidence is introduced by way of affidavits.

The evidence is often contradictory or difficult to sort out. Most often there is no cross-examination on the affidavits. Sometimes interim orders become, in effect, final in nature. Every case is, of course, unique. However, recognizing the limitations that may – but do not always – exist in the process leading to interim decisions or in their character, s. 16(4) grants to the court the ability to dispense with the application of the onus that would otherwise be engaged by s. 16(1) or s. 16(2). [ 30 ] Neither party referred this Court to any appellate-level decisions interpreting s. 16.

However, s. 16 of the CLA 2020 is modelled on ss. 16.93 and 16.94 of the Divorce Act , RSC 1985, c 3 (2d Supp). These provisions were considered in J.Y.L. v T.L.L , 2021 ABQB 680 . In that case, Angotti J. approached the

interpretation of ss. 16.93 and 16.94 of the Divorce Act from the opposite direction – by considering why an onus may be shared by both parties, when either there was no order, award or agreement in place, or when the court exercises its discretion not to apply the specific burden where the current order is an interim order. Justice Angotti then offered the following explanation as to why the Divorce Act places the onus on both parties in such circumstances: [18] The lack of a particular burden of proof makes sense in these two scenarios.

Where an order, award or agreement does not exist between the parties, the best interests of the children have likely not been the subject of a thoughtful consideration by the parties together or by the Court. The parenting arrangement in place is often arrived at as a temporary or short-term situation, pending a more in-depth consideration.

Similarly, the purpose of an interim order is to establish a temporary parenting arrangement until the parties are able to come to an agreement as to the best interests of the child or the Court has a fulsome opportunity to determine the best interests of the child upon the hearing of oral evidence: Hartley v Del Poro , 2010 ABCA 182 at para 9 and 13 . [ 31 ] Paragraph 33 of the Interim Decision is properly read against the legislative scheme I have described.

The judge’s reasons for deciding not to apply the s. 16(1) onus are found in the sentence where she stated that, “[a]s Elson J.’s interim order was only intended as a stop-gap measure until the parties could proceed to a viva voce hearing, it is not appropriate to apply s. 16(1) and therefore, ‘the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child’ (s. 16(3))” (at para 33). These reasons reflect that the judge was attuned to why the onuses described in s. 16(1) and s. 16(2) exist in first instance and when it may be appropriate to set them aside.

In this regard, the Consent Order did not make any determination as to what parenting arrangements were in the child’s best interests other than for the short period between the making of that order and that to be made following the viva voce hearing. The Consent Order is expressly stated to be “on a without prejudice basis to either Party’s position and without presupposition of the determination following the viva voce hearing”. Simply put, there was no basis to presume that the parties had agreed to a long-term parenting arrangement that was in the child’s best interests.

To the contrary, the entire premise of the Consent Order was that no such agreement existed. In these circumstances, the judge appropriately concluded that there was no reason why s. 16(1) should be applied. [ 32 ] Because the judge determined not to apply s. 16(1), according to s. 16(3), “[i]n any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child” (emphasis added).

In effect, by assigning the burden to both parties, the proponent of any specific arrangement carries the onus to show that the arrangement that is proposed is in the child’s best interests. This is how the judge approached her task of making a parenting order in this case. [ 33 ] I would make one last point about all of this.

Section 16 is directed to assigning onuses. In this case, the judge reached a determination as to what interim parenting order was in the child’s best interests by considering the evidence offered on behalf of both T.K. and C.E.

In this context, I see nothing in the Interim Decision that would suggest that the judge’s determination as to what order was in the child’s best interests was affected by the placement of the initial onus. [ 34 ] For these reasons, I would dismiss T.K.’s argument that the judge erred in law by invoking s. 16(4) and determining not to apply the burden described in s. 16(1) of the CLA 2020 . C.

Did the judge overlook or misapprehend material evidence in a way that compels this Court to intervene? [ 35 ] T.K. argues that the judge overlooked or misapprehended material evidence in way that compels this Court to intervene . Her position invites an examination of the judge’s reasons and then her specific submissions. 1. The Interim Decision [ 36 ] It is clear throughout the Interim Decision that the judge approached her analysis on the basis that the sole question was the best interests of the child.

After stating her conclusion that both T.K. and C.E. are parents of the child, she identified the remaining question to be “what interim parenting arrangement is in [the child’s] best interests” and stated that “[i]ncluded in that analysis is whether C.E. should be able to relocate with [the child] to Ontario” (at para 17). [ 37 ] Notwithstanding that viva voce evidence was heard, the judge proceeded on the basis that she had before her an application for an interim order and emphasized the “need for caution when determining interim mobility cases” (at para 18).

She then oriented herself with reference to this Court’s decisions in J.P. v J.P. , 2016 SKCA 168 , 89 RFL (7th) 92; Thievin v Thievin , 2019 SKCA 128 , 30 RFL (8th) 257; Russell v Russell , 2018 SKCA 80 , 16 RFL (8th) 26; K.G.K v L.T.K. , 2021 SKCA 12 [ K.G.K. ]; and T.B.S . During this review, she reiterated that “[i]nterim parenting and interim mobility require a careful analysis of best interests” (at para 25). In this context, she quoted from paragraph 41 of J.P. , wherein it is noted that her function “is to determine the appropriate interim parenting arrangement, rather than

assessing the relocation question in isolation” (at para 25). [38] The judge also reviewed ss. 10, 15 and 16 of the CLA 2020. She observed that the legislation did alter in some respects the bestinterests analysis. In this regard, she noted that the “new legislation requires consideration be given for the reasons for the move”.

Shealso noted that “Jackson J.A.’s cautionary approach to consideration of the best interests of the child when faced with allegations of verbaland domestic abuse [as set out in K.G.K.] is now mandated by the CLA 2020” and she observed that the CLA 2020 “provides a broad andextensive definition of family violence” (at para 24). The judge also took stock of s. 15, noting as follows: [31] In addition, the CLA 2020 specifies additional considerations when a relocation of the child is requested.

Of note, is that thereasons for the relocation are to be considered whereas previously, Gordon v Goertz, (SCC), [1996] 2 SCR 27 providedthe reason for the move was only to be considered “in the exceptional case where it is relevant to that parent’s ability to meet the needs ofthe child.” (para. 49).

The legislation also clarifies the inappropriateness of the “double bind”. … [32] The CLA 2020 removes the possibility of the double bind as “the court shall not consider whether the person who intends torelocate the child would relocate without the child if the child’s relocation was prohibited.” (s. 15(2)). [39] Finally, in paragraph 33 of the Interim Decision, which I have reproduced earlier, the judge considered s. 16 of the CLA 2020. [40] Following this review of the law, the judge turned to the evidence.

She began by stating that the “non-exhaustive list set out in[s. 10 of] the CLA 2020 provides a starting point for that analysis” (at para 34). The judge carefully walked through each part of s. 10,commenting on the evidence and making several findings of fact. Following all of this, the judge noted that, because C.E. wished torelocate, s. 15 of the CLA 2020 “mandates consideration be given to additional factors over and above the enumerated factors in s. 10” (atpara 71). Finally, the judge then reviewed each part of s. 15 and again made several findings of fact.

The judge then brought together heranalysis and expressed her conclusions. [41] The judge noted that T.K. had argued that “the status quo must be maintained in the interim and the parties should continuetheir shared parenting arrangement”. However, the judge observed that this argument “assumes C.E. will remain in the area” (at para 85).She stated that she did not have the jurisdiction to order a parent to move or restrain a parent from moving, but instead observed that shecould only order that the child cannot be relocated.

The judge concluded that she could not assume that C.E. would remain inSaskatchewan, as her “reasons for moving are legitimate and justified” and the “only question is whether she should be taking [the child]with her”. In making this determination, the judge agreed that the “parties’ business has been failing since the onset of Covid-19 and[C.E.] is feeling overwhelmed” (at para 86). [42] Next, the judge accepted that C.E. and T.K. had shared parenting, saying that “the status quo is not determinative of the matterand is but one factor to be considered”.

On the other side of the ledger, she noted that the child “has an extensive biological family inOntario”, but immediately cautioned herself that “biological connection is but a factor to be considered”. The judge noted that because thechild is an infant, she “does not attend school and is not in activities and connections to her community at this time are minimal”.Accordingly, the child’s “routines are only disrupted [by a change from shared custody] insofar as they relate to the other parent” (atpara 88). [43] The judge reminded herself that she was dealing with an interim application.

She said, however, that the “normal cautionsrespecting affidavit evidence are alleviated by the fact that the matter has proceeded by viva voce hearing and the parties and theirwitnesses [were] subjected to cross-examination”. Therefore, while the affidavits were “highly controversial”, “[a]fter hearing theevidence”, she was “satisfied that there was family violence as defined by the CLA 2020, in particular, a pattern of coercive and controllingbehaviour on T.K.’s part towards C.E.” (at para 89).

As I read the Interim Decision, it is this finding that compelled the judge to concludethat the child’s best interests were served by placing her in the care of C.E., even though C.E. intended to relocate to Ontario. In thisregard, the judge continued with her analysis as follows: [89] … The impact of T.K.’s conduct was primarily on C.E. though [the child] was affected insofar as she was being denied anyopportunity to know and be loved by her extended biological family.

Although T.K. now claims to recognize the importance of [the child]knowing her biological and extended family, she certainly went out of her way to prevent any contact prior to separation, even going so faras to be outraged by C.E. sending [the child’s] photograph to C.E.’s brother. [90] Ultimately, in assessing what parenting arrangement is in [the child’s] best interests, the CLA 2020 cautions us to consider whatparenting arrangement is not in a child’s best interests: 10(2) A parenting order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical,psychological and emotional safety, security and well-being. [91] [The child’s] physical, psychological and emotional safety, security and well-being is, to the greatest extent possible, protected byallowing C.E. to take [the child] with her to Ontario.

I cannot assume C.E. will remain behind if [the child] is not allowed to relocate and,as Jackson J.A. pointed out in her dissent [in K.G.K.], consideration must be given to whether it would be in [the child’s] best interests tobe in T.K.’s primary care. The parties filed a number of emails and text messages which were exchanged between them during therelationship. Of note in those exchanges is C.E.’s continued reference to the concern for [the child] and [the child’s] needs. T.K., on theother hand, makes repeated reference to her own needs.

Although T.K. now voices recognition of the importance of [the child] havingconnection with C.E.’s family, that was certainly not the case while the parties were together and, in fact, she became very angry whenC.E. sent her brother photos of [the child] or communicated with her family. T.K. displayed controlling behavior during the relationship,and I cannot be satisfied that she would promote [the child’s] relationship with C.E. or her biological family if [the child] was to remain inT.K.’s primary care.

It is in [the child’s] best interests that there be an interim order placing her in C.E.’s interim primary care and thatC.E. be able to take [the child] with her when she relocates to Ontario. 2. Analysis [44] I would begin by observing that other than arguing that the judge erred by giving preference to C.E. as the biological parent and

by misapplying s. 16 of the CLA 2020 – points which I have already considered and rejected – T.K. does not take issue with any part of the judge’s legal analysis. Her remaining arguments in her notice of appeal are therefore reduced to the contention that the judge overlooked or misapprehended material evidence. I will address this contention by examining several of the arguments that T.K. most emphasized in her submissions. [ 45 ] T.K. says that the judge “failed to consider the relevant evidence of what had occurred with parenting following the [Consent Order] which provided for shared parenting”.

As I understand it, the point T.K. is making is that, although T.K. had limited C.E.’s parenting time after September 14, 2020, she had offered parenting time and the arrangements under the Consent Order had worked reasonably well. I am not able to accept T.K.’s argument that this evidence was overlooked by the judge. Not only did the judge not ignore the evidence to which T.K. points, the judge made findings adverse to the position she now stakes. In this regard, the judge concluded: [37] … On separation, T.K. kept [the child] and refused C.E. parenting time other than on strict and limited terms.

Although she argued C.E. had no residence, it really was not up to her to decide when, where and how C.E. would parent [the child]. T.K. now suggests shared parenting and indicates a willingness to work with C.E. C.E. is no longer as supportive of the relationship between T.K. and [the child] as she was when they were together. … [ 46 ] T.K. also complains that, while the judge referred to C.E.’s religious and ethnic background, no similar reference was made “to the fact of the heritage of [T.K.] who testified she was Danish, and that this was the rationale [T.K.] had for using the name ‘mama’ with [the child]”.

However, this argument overstates the significance that the judge attached to this factor. After referencing C.E.’s ethnic and religious background, the judge noted that “ this does not appear to have been a large part of [the child’s] upbringing to date” and it was “expected, however, that with C.E. reuniting with her family, this may become more important in the future” (at para 41). This argument also overstates T.K.’s evidence on this point.

T.K. offered no evidence that suggested that any feature of her heritage bore on the child’s best interests. [ 47 ] T.K. further suggests that the judge “did not address or make any findings with respect to the violence by [C.E.] having occurred in front of [the child] specifically with respect to her threats of suicide”. In considering this argument, it is appropriate to note that there was conflicting evidence as to whether C.E. had threatened to commit suicide.

The judge identified that this was raised by T.K. not as an aspect of violence, but as an example of C.E.’s allegedly “manipulative behaviour” (at para 45). I also accept that the judge did not make any findings as to whether these threats were made.

Nonetheless, I am not able to accept that this evidence was overlooked by the judge. [ 48 ] The Interim Decision makes clear that the judge made findings relating to the parties’ respective behaviour towards the other and towards the child, and considered T.K.’s assertion that C.E. herself had exhibited violent behaviour: [62] T.K.’s counsel has argued the allegations of violence have no merit and are not supported by the evidence. I disagree. Clearly, C.E. and T.K. had an unhealthy relationship. The evidence supports C.E.’s allegation of controlling behavior on T.K.’s part.

C.E.’s reactions to T.K. were also often of concern but the level of control T.K. exercised on C.E.’s life falls within the definition of family violence. [63] Neither party suggests the other has ever intentionally physically harmed [the child]. [The child] has been exposed to her parents’ drama and was accidently knocked over during an argument which is worrisome. C.E. suggests T.K. has psychologically abused [the child] by her disciplinary methods.

Both parties described an incident during a trip to the beach when T.K. pulled the car over and removed [the child] from the vehicle to discipline her for interrupting T.K. and C.E. while they conversed in the vehicle. C.E. described how T.K. yelled at [the child] to apologize and stopped the car and set [the child] outside the vehicle on her lawn chair demanding she apologize.

T.K. does not deny the incident but denies yelling and claimed she removed her from the vehicle to discuss her behavior and offer her a choice to correct her behavior and apologize or go home. [64] During cross-examination, C.E. was questioned further on this incident and advised that [the child] was gasping so hard while crying that she could not catch her breath. C.E. was commanded not to console her.

C.E. claimed [the child] was about 15 months of age at the time though in cross-examination it was clarified this age does not correspond with the time of year when they went to the beach. [The child] may have been as young as one and perhaps as old as two years of age when this incident occurred.

In either case, any form of discipline that results in a toddler sobbing to the point of having trouble catching breath is ill conceived. [ 49 ] Based on all of this, I am satisfied that the judge considered the evidence and submissions made by T.K. relating to C.E.’s alleged violent behaviour when she conducted her best interests analysis. T.K.’s complaint therefore reduces to an invitation to this Court to reweigh the evidence.

This is not a basis for us to intervene in this matter. [ 50 ] T.K. takes issue with the evidence the judge used to reach the conclusion that C.E.’s reasons for wanting to relocate to Ontario were compelling. T.K. suggests that C.E. had reasonable job prospects in Saskatchewan and, also, that C.E. overstated the financial opportunity presented by the job she had accepted in Ontario.

It is sufficient to state that the evidentiary record allowed the judge to reach her conclusions and I see nothing that would suggest the judge ignored evidence that weighed against her conclusions. [ 51 ] T.K. argues that the judge “failed to consider the impact on [the child] that the proposed change in parenting would have with [T.K.] as well as [the child’s] other relationships in Saskatchewan”. I cannot agree. The judge referred to the child’s relationships with T.K.’s close friends, including those whom the child refers to as her “Nana” and “Papa”.

Most importantly, the judge specifically identified the impact that a relocation would have on the child’s relationship with T.K. However, the judge was not satisfied that this outweighed her conclusion that the child’s “physical, psychological and emotional safety, security and well-being is, to the greatest extent possible, protected by allowing C.E. to take [the child] with her to Ontario” (at para 91).

Nonetheless, the judge recognized the need to ameliorate the impact that the separation from T.K. would have on the child by making an order that provided T.K. with parenting opportunities that were consistent with the physical separation that would follow from C.E.’s relocation with the child to Ontario. [ 52 ] T.K. submits that the judge erred “in principle” in determining that she would not encourage a relationship between the child and her extended family. She refers to her own evidence on this issue. Part of T.K.’s submission on this point devolves to a challenge to the

interpretation the judge attached to a social media message sent by T.K. to C.E. in relation to a photo C.E. had shared with her brother,

as referred to in paragraph 91 of the Interim Decision (quoted earlier). I will say simply that I see no basis to conclude that the judge overlooked material evidence in the course of her analysis. [ 53 ] I see no need to go into any greater detail with respect to the remaining arguments made by T.K. under this head. I am mindful, as was the judge, that this remains an interim order. I cannot assume that there will not be a trial. If a trial is held, the evidence may be different. It must be open to the trial judge to make different findings of fact than were made by the judge who made the Interim Decision .

Keeping in mind the applicable standard of review in this appeal, I would not want the decision by this Court to uphold the Interim Decision to be seen as impacting the right of the judge who presides at any final hearing to determine the facts based on the evidence that is presented at that hearing. For these reasons, I conclude by stating simply that I am satisfied that the judge did not overlook or misapprehend material evidence in making the Interim Decision . D.

Did the judge err by making an order without affording the parties an additional opportunity to make submissions? [ 54 ] As I have mentioned, the judge attached importance to the child maintaining as close a relationship as possible with T.K. after her relocation to Ontario. The judge concluded that part of the Interim Decision dealing with parenting arrangements by stating as follows: [92] T.K. has been a big part of [the child’s] life and clearly that relationship should be maintained and encouraged. It may be that a parallel move may be an option at which time further parenting time may be considered.

However, for the time being, T.K. should have Facetime or other virtual contact with [the child] every second day and should have no less than four days parenting time every six weeks, alternating between Saskatchewan and Ontario. C.E. will be responsible for getting [the child] to Saskatchewan and paying T.K.’s reasonable travel expenses to Ontario.

The parties will share the Christmas, Easter and summer vacations, with T.K. to have four weeks in the summer with a maximum of two weeks consecutive. [ 55 ] The order that C.E. be responsible for getting the child to Saskatchewan and for paying T.K.’s reasonable travel costs picked up on the suggestion that C.E. made in her evidence and submissions as a basis for making her parenting proposal more attractive to the judge. In this appeal, T.K. expresses concern with this parenting arrangement.

She states that she does not fly due to a PTSD condition and indicates that travel to Ontario would only be possible by driving. She says that the order should be set aside and the issue of parenting visits, including the location, should be remitted to the judge for redetermination. In her factum, she states that she “seeks to provide evidence and submissions on the parenting arrangements including location of parenting and travel arrangements”. [ 56 ] T.K.’s submission requires an examination of the evidence before the judge and consideration of the process she followed in making the Interim Decision .

The hearing before the judge proceeded in the normal course: evidence was presented; submissions were made by the parties – including as to what parenting order was in the child’s best interests; the judge reserved her decision; and, several weeks later, the Interim Decision was made. Importantly, no evidence was presented that T.K. was not able to fly and nothing on the record discloses that a bifurcated hearing was contemplated. [ 57 ] Based on the record, I see no merit to T.K.’s argument on this point.

Court decisions are not reopened simply to allow a litigant to buttress their case. [ 58 ] Although I see no basis to set aside the Interim Decision , I would not want these reasons to be understood by C.E. as a reason for her to ignore the concerns expressed by T.K. in relation to the parenting arrangements put into place by the Interim Decision . The judge has determined that the child’s best interests are served by having regular, frequent contact with T.K.

Both parties will need to be mindful of this as they navigate around the practical realities that, at least until a final determination is made, the child will be in the primary care of C.E. in Ontario. IV. CONCLUSION [ 59 ] For the reasons I have given, I would dismiss T.K.’s appeal. C.E. is entitled to the costs of this appeal and for the applications that preceded it. I would fix these costs at $2,000. “Leurer J.A.” Leurer J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.