Barth v Barth, 2021 SKCA 147

Court of Appeal for Saskatchewan Citation: Barth v Barth , 2021 SKCA 147 Date: 2021-11-22 Dockets: CACV3556, CACV3606, CACV3628, CACV3668, CACV3690, CACV3767, and CACV3823 Between: Timothy Aaron Barth Appellant (Petitioner) And Leah Faye Barth Respondent (Respondent) And The Minister of Social Services for the Province of Saskatchewan Respondent/Third party (Non-party) And The Minister of Education for the Province of Saskatchewan Respondent/Third party (Non-party) Before: Richards C.J.S., Caldwell and Barrington-Foote JJ.A.

Disposition: CACV3628 – Leave to appeal granted; appeal dismissed CACV3556, CACV3606, CACV3690, CACV3767, CACV3823 – Appeals dismissed CACV3668 – Appeal allowed in part Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Barrington-Foote On appeal from: FLD 307 of 2018, Saskatoon Appeal heard: September 14, 2021 Counsel: Timothy Barth appearing on his own behalf Anna Singer for Leah Barth Robert Feist for the Minister of Social Services Michael Morris, Q.C., for the Minister of Education Richards C.J.S. I.

INTRODUCTION [ 1 ] Timothy Barth and Leah Barth have a young child. They are involved in a long-running and highly litigious contest relating primarily to parenting issues. [ 2 ] Mr. Barth launched numerous appeals to this Court from decisions of the Court of Queen’s Bench. By way of a judgment issued on March 19, 2021, this Court found Mr. Barth to be a vexatious litigant pursuant to Rule 46.2(1) of The Court of Appeal Rules and ordered that six of his appeals be heard together. See: Barth v Saskatchewan (Social Services) , 2021 SKCA 41 .

A subsequent Chambers ruling ordered that an additional appeal be added to the roster. See: Barth v Barth (18 May 2021) Regina, CACV3823 (Sask CA). This decision flows from a consolidated proceeding where all seven appeals were argued. The appeals in issue are: (

a) Appeal CACV3556 – concerning Mr. Barth’s attempt to have Ms. Barth found in contempt of court. (

b) Appeal CACV3606 – concerning the propriety of a parenting order. (

c) Appeal CACV3628 – concerning Mr. Barth’s attempt to gain access to third party records. (

d) Appeal CACV3668 – concerning child and spousal support. (

e) Appeal CACV3690 – concerning an allegation that the law firm where Ms. Barth’s lawyer practices is in a conflict of interest. (

f) Appeal CACV3767 – concerning the validity of the divorce order. (

g) Appeal CACV3823 – concerning an application to vary parenting arrangements. [ 3 ] I will first set out something of the factual and procedural background that lies behind these appeals. I will then deal with each of them in turn. As explained below, with one exception, all of the appeals must be dismissed. The exception concerns Appeal CACV3668 where Ms. Barth concedes that the Chambers judge erred in terminating her obligation to pay spousal support to Mr. Barth.

II. BACKGROUND [ 4 ] Mr. and Ms. Barth were married in April of 2010. Their child was born in 2016. [ 5 ] Some of the key milestones in the saga underpinning these appeals are summarized below: (

a) July of 2017 – Ms. Barth alleged that Mr. Barth gave her a black eye and choked her. Mr. Barth agreed to a medical examination and was diagnosed as suffering from anxiety. He was prescribed medication. Mr. and Ms. Barth separated and Mr. Barth moved to a village 90 minutes away from the family home. Ms. Barth remained in the family home. (

b) August 21, 2017 – Ms. Barth reported the July 15, 2017, assault to the RCMP. (

c) September 14, 2017 – Mr. Barth initiated family law proceedings by way of petition. He sought an equal division of property, joint custody, shared parenting and spousal maintenance. (

d) October 16, 2017 – a psychological parenting assessment recommended unsupervised access for Mr. Barth and 50 percent parenting time. (

e) October 19, 2017 – Justice Meschishnick made an interim order for joint custody and shared parenting, one week on and one week off. (

f) December 14, 2017 – Justice Wilson made an interim award of child support in the amount of $435 a month and of spousal support in the amount of $500 a month, both to be paid by Ms. Barth to Mr. Barth. (

g) October 2, 2018 – Mr. and Ms. Barth consented to a date for a pre-trial settlement conference in February of 2019. (

h) November 8, 2018 – the child displayed some bruising and Mr. Barth made a complaint to the Ministry of Social Services [Ministry] that Ms. Barth was abusing the child. (

i) November 10, 2018 – Mr. Barth took the child to the emergency department at Royal University Hospital and made complaints of abuse by Ms. Barth. A doctor noted a small bruise on the child’s face and made a referral to Mobile Crisis. (

j) November 13, 2018 – Mr. Barth took the child to Dr. Raj Venkiteswaran who observed no bruises and said the child looked cheerful. In response to questions, the child said that his mommy hit him. (

k) November 14, 2018 – an RCMP child forensic investigator spoke to the child. The child made no disclosures and no bruising was visible. (

l) November 16, 2018 – the Ministry officials contacted Ms. Barth and imposed supervision conditions on her. (

m) November 19, 2018 – Ms. Barth admitted to Ministry workers that, on one occasion, she had slapped the child in the face when she had been unable to deal with his behaviour. The Ministry confirmed that, with supports in place, Ms. Barth could continue to care for the child. (

n) December 3, 2018 – Ministry officials closed their file on Ms. Barth. (

o) December 9, 2018 – Dr. Venkiteswaran observed that the child looked well and that his physical examination was “unremarkable”. (

p) December 10, 2018 – Mr. Barth registered complaints against various RCMP officers on the basis that they had failed to investigate his concerns and address conflicts of interest that he believed to exist. (

q) December 21, 2018 – Mr. Barth was concerned that the child had bruises on his buttocks and took him for a medical appointment on December 22. (

r) December 24, 2018 – Mr. Barth called the Ministry to make a second complaint that Ms. Barth was abusing the child. (

s) December 26, 2018 – Mr. Barth made another complaint about child abuse to the RCMP. (

t) January 10, 2019 – Dr. Venkiteswaran observed the child and said that he looked well and was not in distress. (

u) January of 2019 – Mr. Barth launched unfounded and untrue accusations that Ms. Barth had lost her job and was running a daycare centre. (

v) January 30, 2019 – the Ministry again closed its file on Ms. Barth on the basis that there were no substantiated concerns. (

w) February 7, 2019 – Justice Goebel ordered a custody and access assessment and ordered Mr. Barth and Ms. Barth to take the high conflict parenting program. (

x) March 25, 2019 – the RCMP Civilian Review and Complaints Commission advised Mr. Barth that his complaint would not be processed. (

y) June 26, 2019 – the continuation of the pre-trial settlement conference was adjourned by consent because protection proceedings under The Child and Family Services Act , SS 1989-90, c C-7.2 , had been commenced. Mr. Barth was served with a “child in need of protection” notice indicating that he had 30 days to participate in programming, failing which the Ministry would apply to remove

the child from his care. (

z) July 11, 2019 – Mr. Barth acknowledged to Ministry workers that he was taking naked photographs of the child during visitations to document his concerns about Ms. Barth’s purported child abuse. He was warned that this practice could be emotionally harmful to the child. (aa) August 3, 2019 – Mr. Barth took the child to the Royal University Hospital emergency department saying that the child had disclosed that his mother hits him.

The attending doctor observed a faint one-centimeter bruise on the child. (bb) August 6, 2019 – the custody and access assessment was placed on hold due to the Ministry’s intervention. (cc) August 26, 2019 – Ms. Barth contacted the Ministry and indicated that the child had made further disclosures, allegedly stating that Mr. Barth hits him and had pushed him up against a wall and yelled at him. (dd) September 3, 2019 – the Ministry was advised by the RCMP that Mr. Barth had made a further allegation of abuse of the child by Ms.

Barth. (ee) September 4, 2019 – the child was interviewed by the RCMP and stated that “dad hits me” because “I poop my pants” and because “I want to live with my mom”. The child made no disclosures against Ms. Barth. (ff) September 17, 2019 – Judge Dyck of the Provincial Court issued a protective intervention order against Mr. Barth in the child protection proceedings. In his “Evidence for court on Sept 17th, 2019” statement, Mr. Barth acknowledged that he had been taking naked photographs of the child on every visit, before returning him to Ms. Barth. His stated reason for doing so was so that Ms.

Barth could not blame him for abusing the child. (gg) November 12, 2019 – Judge Dyck consolidated the child protection proceeding and the family law proceeding and ordered both matters to be heard in the Court of Queen’s Bench on November 29, 2019. (hh) November 13, 2019 – a custody and access assessment prepared by Marla Rauser was filed with the Court of Queen’s Bench. She outlined concerns that Mr. Barth was hitting the child because of toilet accidents and was persistently taking naked photographs of him to document his injuries or lack thereof. III. ANALYSIS A.

Appeal CACV3556: contempt of court [ 6 ] In a fiat dated January 3, 2020, Scherman J. dealt with a number of applications that Mr. Barth had filed in the Court of Queen’s Bench and, in doing so, ruled very largely against Mr. Barth. Mr. Barth then appealed the whole of Scherman J.’s order to this Court. By way of a decision issued on February 21, 2020, the Court quashed almost the whole of Mr. Barth’s appeal on the basis that it was manifestly without merit. The only part of the appeal that was left standing concerned Scherman J.’s dismissal of Mr. Barth’s application to have Ms.

Barth found in contempt of court for failing to abide by custody and access orders. Justice Scherman had made that part of his decision on the basis that the Court of Queen’s Bench had already dismissed the same application. [ 7 ] When the motion to quash Mr. Barth’s appeal was argued in this Court, counsel for Ms. Barth and the Minister of Social Services advised that, in fact, the contempt application had not been previously dismissed as Scherman J. had indicated, and, therefore, that Scherman J. appeared to have erred. This was the basis on which Mr.

Barth was allowed to carry on with his appeal on the contempt of court point. However, counsel for Ms. Barth now indicates that her earlier position involved a misreading of the record in the Court of Queen’s Bench. I agree. [ 8 ] The Queen’s Bench file indicates that Mr. Barth filed an application without notice dated October 30, 2019, claiming relief described as “Enforce my Queen’s Bench Court orders, find in contempt of court if applicable”. By way of an order dated October 31, 2019, Mills J. directed that Mr. Barth was to proceed by way of notice of application. Mr.

Barth then filed a notice of application dated November 8, 2019, wherein he sought relief set out as “To stop Ex wife from withholding [the child]…Ex wife is going against Queen’s Bench Court order”. This application came before Smith J. on November 22, 2019. He obviously dealt with it as an application to have Ms. Barth found in contempt because he made an order stating, “The application for contempt is dismissed”. Mr. Barth then filed a notice of application dated December 4, 2019, wherein, under the heading “Remedy sought”, he wrote, “To stop Ex wife from withholding [the child]… .

Find ex wife Leah Barth in contempt of court”. This was the application that Scherman J. denied by saying it had been dismissed previously. [ 9 ] In light of the relevant procedural history, I see no error in the decision of Scherman J. This is a situation that is clearly governed by the doctrine of res judicata – the concept that, when a matter has already been decided by a court or judge, it should not be decided again. Mr. Barth unsuccessfully argued before Smith J. that Ms. Barth should be held in contempt for failing to respect court orders.

He then made the same argument before Scherman J. based on the same set of facts. His application was therefore properly dismissed on the ground that the question in issue had already been decided. [ 10 ] This appeal must be dismissed. B. Appeal CACV3606: parenting order [ 11 ] Mr. Barth’s principal concerns relate to this appeal. It arises from a fiat dated March 9, 2020, wherein Wilkinson J. varied an interim order that, up to that point, had said the child would spend 50 percent of his time with Mr. Barth. She gave Ms. Barth sole interim custody of the child and provided Mr. Barth with supervised access only.

[12] Justice Wilkinson began her decision by laying out a detailed account of the complicated procedural history of the contestbetween Mr. Barth and Ms. Barth. She then adverted to Dorval v Dorval, 2006 SKCA 21, 264 DLR (4th) 512, and the concept that aninterim parenting order may be varied if a sufficiently important change of circumstance has been made out. Next, she surveyed what hadbeen transpiring in terms of Mr. Barth’s relationship with Ms. Barth and with the child.

Her key findings and observations were as follows: (a) “One cannot lose sight of the fact that at the root of all the father’s consternation is a few incidents of minor bruisingexperienced by the child in late 2018” (at 7). (b) “The father, in his campaign to see the mother prosecuted for child abuse, has seized on these incidents [of minor bruising] tostrip the child naked during every visitation, photograph him in the nude, and disseminate the photos to others” (at 7). (c) “The father has refused to exercise supervised access to the child because he disagrees with the order.

As a result, he has notseen [the child] for 6 months…The father has been so utterly consumed by his campaign to discredit the mother that he has lost sight ofthe basic responsibilities of parenting” (at 7). (d) “There is considerable evidence before the court to suggest the father has become intractable and dogmatic in his position,and that rather than proceeding to trial where a full and fair exploration of the evidence can be undertaken, he prefers the slow drip-drip ofcomplaint after complaint, application after application, appeal after appeal” (at 8). (e) “Here, the father has stubbornly refused to avail himself of supervised access arrangements presently in place. …Hereaffirmed before me that he is absolutely unwilling to consider any form of supervised access as he says it might prejudice his positionand lend the appearance he is conceding the validity of existing orders” (at 8). (f) “The evidence before me is that the child is thriving in his mother’s sole care.

The Ministry has conducted its investigationand concluded the child is, at present, safe and secure in the mother’s home” (at 8). (g) “The father was asked in the course of argument before me whether bruises on the child are a present concern of any kind orwhether he was relying solely on the concern he raised late in 2018.

The father was unable to point me to any evidence of ongoingconcerns, but says he expects to come up with some if given the opportunity” (at 8). [13] Justice Wilkinson summarized her analysis by writing as follows at page 9 of her fiat: I am satisfied the mother has made out a prima facie case with respect to a change of circumstance. The change is of sufficient import towarrant intervention by the court. There are sufficient concerns that the father poses a present risk to the child.

There are other compellingcircumstances, including the father’s 6-month absence from the child’s life, his refusal to exercise supervised access, his unwaveringbelief that it is appropriate and acceptable to photograph his child naked during every visitation, and his demonstrably false beliefs thatstate actors are conspiring with the mother to undermine him. [14] Mr. Barth takes issue with Wilkinson J.’s decision, not on the basis that she erred in law or in principle, but on the basis that shemisapprehended the evidence and made factual errors in relation to a number of points.

This is significant because this Court is not atliberty to simply undertake its own assessment of the evidence and remake the decision under appeal. The basis on which it can interveneon the strength of alleged errors concerning the facts or the evidence is limited. Justice Caldwell recently explained all of this as follows inK.G.K. v L.T.K., 2021 SKCA 12: [4] … In plain terms, this Court is simply not entitled to remake the Interim Order from the bottom up, taking a different view of theevidence and rebalancing the relevant factors, so as to refashion the custody and parenting arrangements as we might prefer it.

Rather, asBastarache J. wrote in Van de Perre v Edwards, 2001 SCC 60, [2001] 2 SCR 1014: [15] As indicated in both Gordon and Hickey, the approach to appellate review requires an indication of a material error. If there is anindication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of thefactors. In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judge ignored or misdirectedhimself with respect to relevant evidence.

This being said, I repeat that omissions in the reasons will not necessarily mean that theappellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian ad Litem of) v. Ashmore (1999),1999 BCCA 6 , 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused [2000] 1 S.C.R. vi, an omission is only a material errorif it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affectedhis conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence.

See also: Merrifield v Merrifield, 2021 SKCA 85 at paras 27–28, 58 RFL (8th) 31. [15] I would note, as well, that this Court has repeatedly explained why appeals from interim orders of the sort in issue here areoften problematic. For example, in Mantyka v Dueck, 2012 SKCA 109, 399 Sask R 303, the Court said this: [47] Before concluding, I wish to make a final point. This Court has repeatedly discouraged appeals from interim orders in family lawproceedings. See, for example: Foss v. Foss (1991), (SK CA), 31 R.F.L. (3d) 367; Graham v. Tomlinson, 2010 SKCA101, 324 D.L.R. (4th) 156 at para. 15; Dauk v.

Law, 2005 SKCA 145, 275 Sask. R. 158 at para. 6; Hall v. Hall, 2011 SKCA 86, 337D.L.R. (4th) 89 at para. 1. It has taken this approach in an effort to help litigants avoid both the delays that such appeals necessarilyinvolve and, as well, to avoid the cost of such proceedings. As Jackson J.A. said in Hall “[i]n most cases, the interests of the parties, andthe children, are best served by proceeding quickly to the pre-trial settlement conference stage rather than expending time and scarceresources on an appeal from an interim order”.

See also the decisions cited in K.G.K. v L.T.K. at para 5. [16] With that by way of background, I turn now to what I understand to be the main particulars of Mr. Barth’s argument. First, hesubmits that Wilkinson J. erred when she said that his concerns about the child were grounded in “a few incidents of minor bruisingexperienced by the child in late 2018” (at 7). Mr. Barth says the bruises were not minor and that his concerns about bruising extended well

into 2019. In this regard, I note that Leslie Malo, a Ministry supervisor, stated at paragraph 7 of her affidavit of September 17, 2019, that, on November 15, 2018, Mr. Barth had shown photographs of the child to Jenna Straub, a Ministry employee, and that the photographs showed “substantial bruising on [the child’s] face”. It appears, therefore, that not all of the bruising in issue was properly described as being “minor”. As for the timeframe during which Mr. Barth was concerned about bruising, Mr. Barth took the child to Royal University Hospital on August 3, 2019. At that time, Dr.

Vicki Cattell made a record of a “faint looking bruise approximately 1 cm on left pre- auricular area”. In other words, it does appear that Mr. Barth had concerns about bruising as late as August of 2019. [ 17 ] I accept, as a result, that Wilkinson J. may not have been entirely accurate in her assessment of some aspects of the evidence. But, any oversight on this front was not consequential. The central reality was that, by the time of the hearing before her in March of 2020, the child was thriving in Ms. Barth’s sole care, Ministry workers had concluded that the child was safe with Ms. Barth and Mr.

Barth was unable to point to any evidence of ongoing or current concerns. In light of all of that, the characterization of bruising suffered by the child in 2018 as having been “minor” as opposed to “substantial”, and the failure to note a hospital visit in August of 2019 were simply not material to her conclusion that, as of the date of the proceedings before her, there had been a material change of circumstances warranting a variation of the interim order. As a result, these are not grounds for overturning Wilkinson J.’s decision.

She was obliged to deal with the situation as it existed in March of 2020 and she did just that. [ 18 ] Second, Mr. Barth takes exception to Wilkinson J.’s statement that he had “disseminated” nude photographs of the child to others. He stresses that he took the photographs of the child only for the purpose of being able to defend himself against allegations of abuse. I see no merit in this line of argument. To begin, there has never been a suggestion by anyone – including Wilkinson J. – that Mr. Barth photographed the child for any pornographic or sexual-type purpose. That was not the point.

The point was that the act of stripping the child and taking photographs on every visit was harmful in and of itself. As for the idea that Mr. Barth disseminated the photographs, the record is not altogether clear. In her affidavit of September 17, 2019, Ms. Malo avers that Mr. Barth gave photographs to the Spiritwood RCMP but, for his part, Mr. Barth says in an undated affidavit filed in reply to Ms. Malo’s affidavit that he advised the RCMP that he had photographs but that the RCMP never asked for them. Thus, overall, whether Mr.

Barth can be said to have “disseminated” photographs of the child may be open to debate but, again, any mischaracterization in this regard was in no way material to Wilkinson J.’s bottom-line decision. To repeat, the real concern was that Mr. Barth was removing the child’s clothing and taking naked photographs of him on every visit, not that he was showing the photographs to others. [ 19 ] Third, Mr. Barth points to what he says was a misunderstanding by Wilkinson J. about why he had not seen the child in the six months leading up to the hearing before her. Mr.

Barth says that he was under an order made pursuant to s. 810 of the Criminal Code that forbade him from being in contact with the child. The record before the Court on this issue is not wholly clear and it appears that there may be some confusion on Mr. Barth’s part as between the proceedings taken under The Child and Family Services Act and those taken pursuant to s. 810 of the Criminal Code . Let me explain. [ 20 ] On September 17, 2019, Dyck P.C.J. made an order under The Child and Family Services Act but that order did not preclude Mr. Barth from seeing the child.

It said only that he was to have no contact with the child except at such times as the Ministry offered him supervised access. Further, it was open to Mr. Barth, at any time, to seek an amendment of the order. He took no initiative in that regard. [ 21 ] What then of s. 810 of the Criminal Code ? It allows a person who fears personal injury to lay an information and seek an order requiring the defendant to enter a recognizance to keep the peace and be of good behaviour. Mr.

Barth did not direct the Court to a recognizance during the course of his submissions and the court file does not appear to include a copy of any recognizance entered into by him pursuant to s. 810 . Counsel for Ms. Barth advises that Ms. Barth did seek a recognizance under s. 810 relating to her, not the child, but says that the proceedings in this regard were adjourned multiple times and that no order was ever made. This view of the matter seems to be largely consistent with the statement in Mr. Barth’s factum at page 82 that the “8-10” was “dropped” because “the Crown had no evidence to prosecute”.

However, somewhat confusingly, on that same page of his factum, Mr. Barth says that the six months he did not see the child “was in regards to [Judge] Lorna Dyck not giving Tim Barth disclosure”. [ 22 ] In light of the foregoing, I am unable to conclude that Mr. Barth did not see the child in the six months prior to the hearing before Wilkinson J. because he was precluded from doing so by a court order made pursuant to s. 810 of the Criminal Code or otherwise. That conclusion is reinforced by what Mr.

Barth told Wilkinson J. during the course of the hearing before her, i.e., when asked by Wilkinson J. about not seeing the child, he did not suggest that a court order had precluded him from so doing. Rather, Mr. Barth explained his actions by saying that he did not want to acknowledge the validity of court orders mandating supervised access. Justice Wilkinson laid this out as follows at page 8 of her fiat: …He has not seen the child in 6 months.

He reaffirmed before me that he is absolutely unwilling to consider any form of supervised access as he says it might prejudice his position and lend the appearance he is conceding the validity of existing orders. He offers no alternative approach to re-establishing the relationship in a child-sensitive manner. [ 23 ] Mr. Barth raises other concerns about some aspects of Wilkinson J.’s treatment of the evidence. None of those concerns are of consequence. I find it unnecessary to say more about them. [ 24 ] In the end, Mr. Barth’s arguments about Wilkinson J.’s decision cannot succeed.

As was noted at the outset of the discussion about this appeal, this Court cannot simply remake her decision by taking its own view of the evidence. Mr. Barth has not established any error in Wilkinson J.’s treatment of the evidence or in her fact finding that is significant enough to impeach the bottom line of her decision. [ 25 ] This appeal must be dismissed. C. Appeal CACV3628: third party records [ 26 ] On February 21, 2020, Mr. Barth filed a notice of application seeking a remedy he described as “to get documents from ECLL with regards to Jodi Spence’s Investigation into [the child’s] abuse.

Phone call also related evidence”. The ground for seeking these records is described in the notice of application simply as “Need for court”. Ms. Spence is an employee of the Ministry of Education who works in that Ministry’s Early Years Branch, the unit responsible for licensing daycares. In response to the application, the Minister of

Education filed the relevant documents in a sealed envelope as per Courchaine v Saskatchewan Government Insurance , 2007 SKCA 106 at paras 31–32 , 286 DLR (4th) 755. It took the position that the documents should not be produced. [ 27 ] Mr. Barth’s application was heard by Bardai J. He, of course, had access to the contents of the sealed envelope and, at paragraph 21 of his fiat, described the documents in issue as falling into four categories: 1. Phone calls with or messages from Mr.

Barth dated November 16, 2018, November 19, 2018 (x2), November 20, 2018, December 14, 2018, December 24, 2018 and January 10, 2019; 2. Phone calls or messages with Tasha Stephenson [Ms. Stephenson] (daycare supervisor) dated November 19, 2018, January 3, 2019 and January 10, 2019; 3. Phone call with RCMP dated February 8, 2019; and 4. Communications with or respecting Marla Rauser [Ms. Rauser], care counsellor, dated June 4, 2019, June 5, 2019, June 17, 2019 and June 18, 2019. Ms.

Rauser prepared the custody and access report and these emails pertain to what Education is allowed to communicate in instances such as this, as opposed to specific findings concerning [the child]. [ 28 ] Justice Bardai then dealt with Mr. Barth’s application by treating it as having been made pursuant to Rule 5-15 of The Queen’s Bench Rules . Rule 5-15 reads as follows: 5-15(1) On application, and after notice of the application is personally served on the person affected by it, the Court may order the production of a document from a person who is not a party at a date, time and specified place if: (

a) the document is in the possession, custody or control of that person; (

b) there is reason to believe that the document is relevant to any matter in issue; and (

c) the person who has possession, custody or control of the document might be required to produce it at trial.

(2) In addition to an order pursuant to subrule (1), the Court may give directions respecting the preparation of a certified copy of a document that may be used for all purposes instead of the original, saving all just exceptions.

(3) The person producing a document pursuant to this rule is entitled to receive the same conduct money that the person would be entitled to receive if he or she were questioned pursuant to Subdivision 3.

(4) Subject to subrule (5), the costs of an application must be borne by the party making the application.

(5) If the Court is satisfied that, by reason of the production of the document, there has been a saving of expenses, the Court may award the whole or part of those costs to the party making the application. [ 29 ] After discussing the general principles that govern the application of Rule 5-15, Bardai J. considered each category of document in turn. As for the first category – documents concerning various phone calls with, or messages from, Mr. Barth – he observed that Mr. Barth was asking for documents relating to calls that he himself had made (and had recorded in one instance).

In light of this, Bardai J. concluded that Mr. Barth knew what had transpired during the calls and that, therefore, he was not entitled to the documents in issue. [ 30 ] Dealing with the second category of documents – those involving calls to, or messages left with, Tasha Stephenson – Bardai J. concluded that Mr. Barth already had access to that information because it had been recounted in Ms. Malo’s affidavit of September 17, 2019. He denied Mr.

Barth’s request for the production of those records on this basis. [ 31 ] As for the third category of documents – notes of a phone call with the RCMP – Bardai J. excluded the document from production on the basis of public interest privilege. [ 32 ] Finally, Bardai J. dealt with the fourth category of documents – communications with or respecting Ms. Rauser. He found that these documents, being communications about what Ministry of Education officials could disclose, rather than about the abuse or alleged abuse of the child, were not “proportionally relevant” and therefore did not have to be provided to Mr.

Barth. [ 33 ] Justice Bardai also found that Mr. Barth’s application should be denied because it was an abuse of process. In this regard, he relied on Rule 1-3(3)(

c) of The Queen’s Bench Rules . It provides that parties shall “refrain from filing applications or taking proceedings that do not further the purpose and intention of these rules”. He said that Mr. Barth’s purpose in bringing his application was to undermine or relitigate judicial decisions that had already been made and that the application was oppressive, delayed matters and amounted to a fishing expedition. [ 34 ] Mr. Barth takes issue with the whole of Bardai J.’s decision.

He contends that the child’s daycare, the RCMP and government officials failed to protect the child and that the documents will show why the daycare and the RCMP should be prosecuted for failing to discharge their reporting obligations. For his part, the Minister of Education submits that Bardai J.’s analysis was correct at every turn and that Mr. Barth’s appeal should be dismissed. Ms. Barth takes no position on this appeal. [ 35 ] The Minister of Education raises a preliminary question about the status of this appeal.

More particularly, it asks whether the appeal is being taken from an interlocutory decision and hence whether, as per s. 8(1) of The Court of Appeal Act, 2000 , SS 2000, c C- 42.1 , Mr. Barth requires leave to appeal. [ 36 ] This issue is easily resolved. In Rekken v Saskatchewan (Health Region #1) , 2012 SKCA 86 , 399 Sask R 241, an appeal dealing with the predecessor of Rule 5-15, this Court held that an order denying an application for the production of third party documents is

interlocutory in nature. As a result, leave to appeal is required before the party that has lost such an application can appeal from the orderin issue. This means that Mr. Barth was required to obtain leave to appeal if he wanted to take issue with Bardai J.’s decision. That said,the Minister of Education has not applied to strike Mr. Barth’s appeal because he did not obtain leave and the Minister suggests that, ifleave is required, it should be granted nunc pro tunc, i.e., retroactively. In these circumstances, and in order to bring the disclosure issuesraised here to a head, I would grant leave to appeal.

That done, I will now go on to consider the merits of Mr. Barth’s arguments withrespect to the substance of the appeal. [37] For present purposes, it is sufficient to note that there are a number of Queen’s Bench decisions indicating, as per the text ofRule 5-15 itself, that a party seeking disclosure of documents from a third party must satisfy three criteria: (

a) the document is in thepossession, custody or control of the third party; (

b) there is reason to believe that the document is relevant to any matter in issue; and (c)the person who has possession, custody or control of the document might be required to produce it at trial. See, for example: SupynukEstate v Hagen, 2015 SKQB 145 at para 16, 455 Sask R 106; S.T. v J.T., 2015 SKQB 249 at para 8, 66 RFL (7th) 90. A furtherconsideration noted in the case law is whether the documents being sought can be obtained by other means or whether they are already inthe possession of one or more parties to the litigation.

See: Supynuk Estate at para 17; Ceapro Inc. v Saskatchewan, 2004 SKQB 406 atpara 16, 268 Sask R 117; Krislock v Krislock (1998), (SK KB), 173 Sask R 255 (QB) at para 13. [38] In this appeal, Mr. Barth’s interest in the actions of the child’s daycare, the Ministry of Education and the RCMP is grounded inhis concern that they did not properly discharge their obligations to protect the child. In the case of the daycare in particular, he argues thatit failed to report the abuse of the child, which he says is required by s. 12 of The Child and Family Services Act. Mr.

Barth indicated inoral argument that he wants the “incident report”, which he apparently believes to be part of the documents in question, because, in hisview, it can then be used to prosecute the daycare and the RCMP. This expression of the purpose of the application is consistent withMr. Barth’s factum where he says: (a) “Tim Barth request’s [sic] these documents as it is in regards to abuse on [the child] from [Ms.

Barth] and would be evidencethat he could use in court to bring charges or file a complaint against Love and Laughter Daycare” (at 83). (b) “Without being able to require such documents from the daycare you have taken away the accountability of the daycare andthe Publics [sic] ability to hold the daycare accountable” (at 84). (c) “[T]he information that is given to the RCMP is requested because in this very case the RCMP did not protect the ‘Child’… .The information is asked so that the father can look into why the child was not protected as he should have been. … In this case JusticeBardai I believe is creating an abuse of process by ruling as he has as he has nullified the accountability of the RCMP and those that are inthe position to protect the public to merely be-able [sic] to make their decision and have no accountability” (at 87). [39] In light of these explanations as to why he is seeking production of the documents in issue, it is apparent that Mr.

Barth’sapplication does not involve a proper use of Rule 5-15. More specifically, Mr. Barth does not seek production of the documents to advancethe litigation with Ms. Barth concerning parenting arrangements for the child or any other live issue in their family proceedings. Rather, heplans to use the documents to pursue an agenda involving the conduct and liability of the child’s daycare, the RCMP and possibly theMinistry of Education. In this regard, Bardai J. was quite correct in observing that Mr. Barth “is really looking to start a public inquiry” (atpara 32). All of this means that Mr.

Barth’s application for third party documents is an improper attempt to use Rule 5-15 as a tool forunearthing evidence for a purpose disconnected from the proceedings in which the application for production was made. It follows thatBardai J. made no bottom-line error in dismissing Mr. Barth’s application and that Mr. Barth’s appeal must be dismissed. [40] Nonetheless, and given the sometimes less than clear nature of Mr.

Barth’s submissions, I appreciate that there might perhapsbe a way of looking at his Rule 5-15 application as being aimed, at least in some part, at obtaining information that would assist him toprove his allegations that Ms. Barth was abusing the child and to thereby advance his position at trial. Accordingly, let me look briefly ateach category of the documents through this lens. [41] As for the first category – documents concerning calls or messages between Mr. Barth and Ms. Spence – these are notes oftelephone conversations.

The focus of the conversations is not the cause or extent of the child’s bruising but, rather, it is very much theissue of whether the daycare had reported the bruising to the Ministry of Education. In light of that, I am hard-pressed to see that thesedocuments are relevant to the live issues in the proceedings in which Mr. Barth and Ms. Barth are involved. Further, to the extent that thedocuments do make brief reference to the bruising itself, or to when it was observed relative to the child being dropped off or picked up atthe daycare, Mr.

Barth has not explained how any of that would help him to move his case forward given that the basic points involvedare not, as I understand it, ones that are contested by Ms. Barth, i.e., Ms. Barth does not dispute the fact of the bruising or when ithappened relative to the child being left at the daycare. The issue, if there is one, concerns how the bruising occurred. [42] Turning to the second category of documents – calls or messages with Ms. Stephenson – these too are notes of telephoneconversations. Two of these documents are in no way relevant to the matters in issue between Mr. Barth and Ms.

Barth because they speakto the fact of calls being made, not to the substance of anything that was said. The other two documents make some reference to thebruising that is of concern to Mr. Barth. However, neither document does so in a way that would assist him to advance his contention thatthe bruising was the product of abuse at the hands of Ms. Barth. As a result, these documents are not relevant and would not properly bethe subject of a production order. [43] As for the third category – notes of a call with the RCMP – these are also notes of a telephone conversation.

There is nothing inthis document that would assist Mr. Barth to establish that Ms. Barth had caused the bruising observed on the child or to prove that he didnot cause it. Accordingly, I conclude that it is simply not relevant and hence would not fall within the reach of Rule 5-15. [44] I turn now to the fourth category of documents – communications with Ms. Rauser. Like the other documents in issue, these arenotes of telephone conversations. In my view, they are not relevant to Mr. Barth’s case. That is because they concern only the preliminary-type issue of what, if any, information that Ms.

Spence might be allowed to share with Ms. Rauser. There is nothing in the documentsabout the child himself or about the injuries he did or did not receive at the hands of Mr. Barth or Ms. Barth. [45] Thus, even if the most positive gloss is put on Mr. Barth’s submissions about the disclosure of the documents in issue here, it is

still not possible to find that Bardai J. erred in dismissing Mr. Barth’s Rule 5-15 application. I reach that conclusion without having to deal with the question of whether the documents in categories two and three – the documents concerning conversations with Ms. Stephenson and the notes of a conversation with the RCMP – were properly excluded from production on the basis of public interest privilege. [ 46 ] All of that said, I wish to make two additional comments before concluding my analysis of this appeal.

First, I would not want this decision to be taken as having endorsed the notion that, because an individual was involved in telephone conversations with a third party, and therefore knows what was said in those conversations, the individual is by this fact alone disentitled from getting production of the third party’s notes about the conversations. There may well be situations where such documents would be of importance in confirming the applicant’s version of what was said in the conversations or in establishing, for example, that the third party said one thing and recorded another.

Somewhat similarly, I would not want to be seen as endorsing the notion that, because the content of a document in the possession of a third party has been summarized or recounted in an affidavit on the court file, it cannot be successfully made the subject of an application under Rule 5-15.

Any such approach is too categorical. [ 47 ] Second, I would not want to be taken, by virtue of this decision, as having accepted that there is a direct connection between actions that are inconsistent with the foundational rules such as Rule 1-3(3)(c) – which refers to refraining from filing applications or taking proceedings that do not further the purpose and intention of the Rules , and abuse of process. In other words, an application that offends Rule 1-3(3)(

c) will not ipso facto be an abuse of process. This rule might provide context or a reference point for some abuse of process inquiries, but it does not, in and of itself, provide the answer to such inquiries. Any examination of whether a step taken in the course of litigation is an abuse of process must be pursued with reference to the entire context in which that step occurred. [ 48 ] As noted, and by way of a bottom line here, this appeal must be dismissed. D.

Appeal CACV3668: child and spousal support [ 49 ] By way of a fiat dated June 23, 2020, Dovell J. made an order with respect to interim child support and ordered that Ms. Barth’s obligation to pay interim spousal support to Mr. Barth was terminated effective April 1, 2020. [ 50 ] Mr. Barth advises that he is not pursuing any arguments with respect to the child support aspect of this decision. For her part, Ms. Barth concedes that the order terminating Mr. Barth’s spousal support should be vacated. [ 51 ] Accordingly, Mr.

Barth’s appeal is allowed to the extent of setting aside the part of Dovell J.’s order that provides his spousal support was terminated as of April 1, 2020. E. Appeal CACV3690: conflict of interest [ 52 ] In his decision of January 3, 2020, noted above, Scherman J. dismissed an application by Mr. Barth for a determination that, because of a conflict of interest, the Scharfstein Gibbings Walen Fisher law firm could not represent Ms. Barth. The background central to the application was that (

a) in June of 2018, Ms. Barth had retained Samantha Neill of Scharfstein Gibbings , (

b) in November of 2018, Mr. Barth had retained Valerie Watson, then of The W Law Group LLP, and (

c) in January of 2019, Ms. Watson had joined Scharfstein Gibbings and withdrawn from representing Mr. Barth. In light of her move, Mr. Barth was concerned that Ms. Watson would share confidential information with Ms. Neill or other counsel at Scharfstein Gibbings acting for Ms. Barth. Justice Scherman dismissed Mr. Barth’s application to disqualify Scharfstein Gibbings after finding that the firm’s conflict of interest policy met the requirements of the Law Society with respect to this sort of situation. He found that there was no breach of confidentiality. [ 53 ] On July 22, 2020, Mr.

Barth filed another application seeking the disqualification of Scharfstein Gibbings. It came before Crooks J. Mr. Barth relied on three developments that had taken place since Scherman J.’s decision as justifying an order taking Scharfstein Gibbings off the file. The first development was that, in a recorded July 13, 2020, telephone conversation with a deputy local registrar of the Court of Queen’s Bench, the deputy local registrar had said that Ms. Watson was listed as counsel in the Court’s database.

In relation to this issue, Crooks J. found that the documentation on the physical court file did not indicate that Ms. Watson was counsel. She noted that the Queen’s Bench “event report” recorded that a notice of withdrawal of lawyer dated December 13, 2018, had been filed by Ms. Watson with the Court. This was observed to correspond with the notice of withdrawal of lawyer bearing the same date that was on the file. Justice Crooks observed there was no evidence that Ms. Watson had been involved in the file since her notice of withdrawal.

As a result, Crooks J. was not prepared to accept that the comment made by the deputy local registrar established that Ms. Watson had somehow remained as counsel. Justice Crooks’s assessment of this issue is clear and self-evidently correct. Mr. Barth’s concerns on this front offer no basis for concluding that Scharfstein Gibbings cannot act for Ms. Barth. [ 54 ] The second issue raised by Mr. Barth deals with the involvement of certain counsel in an appeal concerning the assessment of accounts and a contention that this involvement should preclude Scharfstein Gibbings from acting for Ms. Barth.

The background in relation to this issue is that, in 2017, Mr. Barth retained Iffat Ritter of Cuelenaere LLP to represent him in his family law proceedings. Ms. Ritter stopped acting for Mr. Barth in November of 2018. In January of 2019, Mr. Barth applied to have Ms. Ritter’s accounts assessed. She then retained Brent Barilla, Q.C., of Scharfstein Gibbings to act for her on the assessment. This led Mr. Barth to apply to have Mr. Barilla disqualified from acting for Ms. Ritter on the basis of an apparent concern that Ms. Ritter would pass confidential information concerning his family law proceedings to Mr.

Barilla who would then share it with counsel at Scharfstein Gibbings who were acting for Ms. Barth. Mr. Barth was also concerned that Ms. Watson, his former counsel, worked at Scharfstein Gibbings. That application was dismissed in the Court of Queen’s Bench and Mr. Barth’s appeal to this Court on that point was also dismissed. However, all of this was essentially water under the bridge because, by the time Mr. Barth’s application came before Crooks J., Cuelenaere LLP, not Scharfstein Gibbings, was representing Ms. Ritter in the assessment proceedings.

As a result, I see no basis on which Crooks J.’s handling of this aspect of the matter before her can be impugned. [ 55 ] The third concern raised by Mr. Barth about Scharfstein Gibbings’s ongoing representation of Ms. Barth was based on the fact that Ms. Barth’s current counsel, Anna Singer of Scharfstein Gibbings, volunteered that she had contacted Cuelenaere LLP in an effort to determine who was acting for Ms. Ritter on Mr. Barth’s appeal to this Court from the Queen’s Bench assessment decision.

Justice Crooks was entirely correct in concluding that there was nothing in any of that to suggest Scharfstein Gibbings should not be able to continue

acting for Ms. Barth. Ms. Singer did nothing more than try to get to the bottom of a misunderstanding by Mr. Barth about who was acting for Ms. Barth. No confidences were shared. No conflicts of interest were created. [ 56 ] This appeal must be dismissed. F. Appeal CACV3767: divorce [ 57 ] On December 18, 2020, Scherman J. issued a judgment granting Ms. Barth’s petition for divorce. Mr. Barth appeals from that judgment, arguing that Ms. Barth has lied about various issues and has tried to deceive the courts.

He suggests this is a sufficient ground to deny her request for a divorce and to have this Court set aside the divorce judgment. [ 58 ] This argument cannot succeed. Ms. Barth’s petition for divorce was based solely on the ground that she and Mr. Barth had lived separate and apart for more than a year. Mr. Barth does not contest that fact. Nor does he suggest that there were no reasonable arrangements in place for the support of the child as required by s. 11(1) (

b) of the Divorce Act , RSC 1985, c 3 (2d Supp), or that there has been collusion, condonation or connivance on the part of Ms. Barth as per ss. 11(1) (

a) and (

c) of the Divorce Act . In short, Mr. Barth’s concerns about Ms. Barth’s veracity in relation to custody and access issues cannot stand as a ground for overturning the divorce judgment. [ 59 ] This appeal must be dismissed. G. Appeal CACV3823: parenting arrangements [ 60 ] In April of 2021, Mr. Barth brought an application to vary the interim access order so as to allow him unsupervised time with the child, at his home, every weekend and every Monday that the child does not have school. Mr.

Barth filed an affidavit indicating that the child wants to be with him more often and that the child exhibits no behavioural problems when with him. Mr. Barth’s parents tendered affidavits about the child’s behaviour that were to the same effect. [ 61 ] For her part, Ms. Barth filed an affidavit wherein she averred that the child’s behaviour had deteriorated since he had recommenced spending time with Mr. Barth and that, after being with Mr. Barth, the child makes inappropriate comments and that he has started grabbing her crotch.

The director of the child’s daycare filed an affidavit indicating that the child’s behaviour had improved by the fall of 2019 but that he had started behaving aggressively and defiantly in January of 2021. Both she and the educational assistant at the daycare, in her own affidavit, observed aggressive and defiant behaviour by the child after he had spent a weekend with Mr. Barth. [ 62 ] In light of all of this, Rothery J. concluded that the child was having some difficulty as a result of the time he was spending with Mr. Barth.

However, she found herself unable to discern the cause of the deterioration in the child’s behaviour. As a result, she concluded that it would not be appropriate to allow Mr. Barth either unsupervised or increased parenting time. She made a minor adjustment to allow the exchange of the child between Mr. Barth and Ms. Barth to take place at a more convenient location but otherwise declined to amend the interim order. [ 63 ] I see no problem with any of this. The affidavits filed by Mr. Barth and Ms. Barth do not reconcile. Justice Rothery’s decision is entitled to deference.

See: Bolan v Bolan , 2013 SKCA 97 at para 6 , 423 Sask R 151. She made no reviewable error in taking the position that the resolution of the cause of the child’s problems should be left to a trial judge and that, in the interim, access arrangements should be left as is. [ 64 ] This appeal must be dismissed. IV. CONCLUSION [ 65 ] As explained above, Mr. Barth is granted leave to appeal in Appeal CACV3628. That appeal and Appeals CACV3556, CACV3606, CACV3690, CACV3767, and CACV3823 must be dismissed. Mr.

Barth’s appeal in CACV3668 is allowed to the extent of setting aside the part of the order that terminated his entitlement to spousal support. [ 66 ] Mr. Barth has achieved some success with respect to Appeal CACV3668 but, overall, he has failed to obtain the relief he sought. As a result, I would make a global award of costs in favour of Ms. Barth in the amount of $8,000. The Minister of Social Services does not seek costs. I would decline to award costs in favour of the Minister of Education. “Richards C.J.S.” Richards C.J.S. I concur. “Caldwell J.A.” Caldwell J.A.

I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.