S.M. v A.P.R.C., 2021 SKCA 162

Court of Appeal for Saskatchewan Docket: CACV3931 Citation: S.M. v A.P.R.C. , 2021 SKCA 162 Date: 2021-12-10 Between: S.M. Respondent/Appellant (Other Interested Party) And A.P.R.C. Applicant/Respondent (Petitioner) And A.S. Non-Party/Non-Party (Respondent) Before: Leurer J.A. (in Chambers) Disposition: Application dismissed with conditions Written reasons by: The Honourable Mr. Justice Leurer On application from: 2021 SKQB 294 , Regina Application heard: December 6, 2021 Counsel: Chelsea Fielding for the Appellant Brenden Prokopchuk for the Respondent Leurer J.A. I.

Introduction [ 1 ] The sole issue in this application is whether the stay of an interim order should be lifted pending the hearing of this appeal. The interim order concerns the parenting of the 16-month-old child of A.S. [Alexandria] and A.P.R.C. [Andre]: A.P.R.C. v A.R.S. , 2021 SKQB 294 [ Chambers Decision ]. Pursuant to the interim order: (

a) S.M. [Shantel], who is a relative of Alexandria and who has stood in the position of the de facto mother to the child since his birth, is recognized as a person of sufficient interest for the child; (

b) Andre is recognized as the father of the child; (

c) Andre and Shantel “shall be joint legal decision-makers for the Child” but with each to “have authority to make to day to day decisions for the Child while he is in their [respective] care”; (

d) The child is to have primary residence with Shantel; (

e) Andre, who is resident in Nova Scotia, is to have “reasonable and generous parenting time with the Child” and, if the parties cannot agree, he is “authorized to take the Child with him to Nova Scotia for the month of December 2021, the month of March and the months of June and July, 2022, at which time parenting time shall be reviewed” by the court. Andre is to be responsible for the cost of the child’s travel to and from Nova Scotia; and (

f) The Local Registrar is directed to arrange an expedited pretrial conference. [ 2 ] The filing of the notice of appeal has imposed a stay of execution on those parts of the interim order that are the subject of Shantel’s appeal pursuant to Rule 15 of The Court of Appeal Rules [ Rules ] and a stay of proceedings. In this context, Andre has applied to lift the stay of execution. He has also asked for an order giving to him parenting time to make up for the loss of parenting time in December, which he would have enjoyed had not an appeal from the interim order have been granted.

Shantel opposes the grant of any of this relief. [ 3 ] Both parties agree that the stay of proceedings should be lifted to allow a pretrial conference to proceed in the Court of Queen’s Bench. [ 4 ] I have concluded that the child’s best interests are served by leaving in place the stay of execution of the interim order, subject to conditions that are set out in this decision. My reasons follow. II. Background A. The parties [ 5 ] Andre and Alexandria are not now, nor have they ever been, in a committed relationship. The child was born in Regina on

August 6, 2020. On that date, Alexandria messaged Andre to tell him that she had given birth to their child. [ 6 ] The record reflects that, since Andre first became aware of the child’s existence, he has made consistent efforts to be a presence in the child’s life, notwithstanding he was then (as he is today) resident in Nova Scotia. Up to this day, Andre has not met the child in person. Only recently has he been able to interact with the child by video conferencing.

The nature of these interactions has been limited, given the child’s young age and the barriers imposed by the media through which they have occurred. [ 7 ] Alexandria was not able or willing to care for the child. For this reason, and without consulting with Andre, Alexandria placed the child into Shantel’s care on August 8, 2020. Since that date, the child has been living with Shantel and her common law spouse and his children. [ 8 ] The Chambers judge has found that, while Shantel says she is willing to allow graduated access for Andre “the record indicates resistance to his involvement” (at para 18).

He also found that Shantel “confuses her desire to keep the Child with what is in the best interests of the Child” (at para 23). On this front, he also concluded that a relationship between Andre and the child “cannot be established and fostered in the absence of meaningful and regular contact, which [Shantel] has so far not provided” (at para 24). Later in the Chambers Decision , he also held that the “lack of contact is attributable to [Shantel’s] initial refusal to provide contact and more recent resistance to meaningful contact” (at para 47). B.

Andre’s application [ 9 ] Having grown frustrated with his inability to secure any parenting opportunities with the child, Andre issued a petition on June 1, 2021, naming Alexandria as a respondent and Shantel as an interested person. In it, he asks that the child be ordered to live with him and other relief. Shantel has filed an answer to this petition opposing the relief Andre is seeking.

Alexandria was noted in default on August 13, 2021, and has not participated in the proceedings. [ 10 ] In late September 2021, Andre and Shantel fulfilled their obligations to participate in family dispute resolution in accordance with s. 44.01(3) of The Queen’s Bench Act, 1998 , SS 1998, c Q-1.01 . Because the parties were not able to reach agreement at mediation, Andre made application pursuant to The Children’s Law Act¸ 1997 , SS 1997, c C-8.2 , for relief that included orders that: (

a) the child is to be relocated to Nova Scotia to reside primarily with him; (

b) Shantel and Alexandria are to have reasonable access to the child upon reasonable notice; and (

c) Andre is to have sole-decision making powers on all major decisions relating to the child. [ 11 ] Shantel opposed this relief. She stated her unwillingness to see the child travel, arguing that any separation from her care will harm the child by causing separation anxiety, which will impair the child’s long-term development. She proposed that Andre be allowed to meet the child in Saskatchewan and later have visits increasing in duration in Saskatchewan. C.

The Chambers Decision [ 12 ] The Chambers judge noted that while no application had been made seeking this relief, it was “appropriate to consider whether to formally recognize [Shantel] as a person of sufficient interest” pursuant to the Children’s Law Act (at para 10).

He concluded that because Shantel “is related to the Child and has been the primary caregiver since soon after birth with the consent of the Mother”, he was “satisfied she qualifies as a person of sufficient interest” (at para 11). [ 13 ] The Chambers judge then reviewed the evidence in the context of the applicable provisions of the Children’s Law Act . Having done this, he found that “the proposed relocation is reasonable and one way for [Andre] to develop a meaningful relationship with his Child” (at para 52).

However, he concluded that “ granting [Andre’s] full application as interim relief is inappropriate, given the option of granting the alternate relief of parenting time with [Andre] in Nova Scotia and the preference of the court to limit interim relief to what is necessary” (at para 55). He concluded that the court was “ likely to be better informed at pre-trial or trial. For example, the parties could obtain a Parenting Assessment which could then be considered at a pre-trial conference”.

Finally, he found that by allowing Andre “the opportunity to have parenting time in Nova Scotia, there will be an opportunity both to build that important relationship and to evaluate the experience” and that it “may also be that [Alexandria] will decide to re-engage with her Child” (at para 56). D. The appeal [ 14 ] Shantel has appealed the parts of the interim order designating Andre a joint decision-maker of the child and the grant to him of parenting time in Nova Scotia. In her notice of appeal, she requests, in the place of these orders, that: (

a) she “be provided interim final decision-making authority with the requirement to inform and consult [Andre] on major decisions affecting the Child”; and (

b) Andre be provided with “reasonable parenting time on reasonable notice to occur in Saskatchewan until further Order or by agreement by the parties”. [ 15 ] The notice of appeal lists multiple grounds. However, its core is captured by the assertion that “[p]rimarily, [the Chambers judge] made an error in law in determining that it would be in the best interests of a 15-month-old child to be separated from his primary caregiver and placed him in the care of a party who had never met him in another province over 4,000 km away for periods of 30 days as opposed to an Order for gradual introduction to the Child”.

III. Analysis [ 16 ] The sole issue is whether the stay of the interim order should be lifted. Andre’s application for this relief is grounded in Rule 15(1), which provides as follows: Stay

15(1) Unless otherwise ordered by the judge appealed from or by a judge, the service and filing of a notice of appeal does not stay theexecution of a judgment or an order awarding mandamus, an injunction, alimony, or maintenance for a spouse, child or dependant adult.Unless otherwise ordered by a judge, the service and filing of a notice of appeal stays the execution of any other judgment or orderpending the disposition of the appeal. … [17] The general objective behind Rule 15 was explained by Lane J.A. in Ochapowace First Nation v Araya (1994), (SK CA), 123 Sask R 311 (CA): [11] ...

The purpose [of lifting a stay] is to minimize prejudice pending the appeal and to balance the competing interests of therespondent who has been successful against those of an appellant who ought not to be prejudiced simply by appealing. ... [18] Both parties accept that my decision as to whether to lift the stay of execution is to be guided solely by consideration of thechild’s best interests. This idea is made clear from numerous decisions of this Court.

In Wiegers v Gray, 2007 SKCA 30 at para 1,Cameron J.A. framed the “the central question [to be] how the child is apt to be affected, should the stay be lifted or allowed to remain inplace pending the determination of the appeal, having regard for such considerations as the potential for harmful disruption in the life ofthe child should the appeal succeed”.

See also: Ebenal v Ebenal, 2003 SKCA 130 at para 19, Hayden v Dahl, 2008 SKCA 30 at paras 3–5, 307 Sask R 274; McCarthy v McCarthy, 2009 SKCA 103 at para 5, 337 Sask R 180, Bolan v Bolan, 2013 SKCA 84 at para 3, 417 SaskR 265, T.B. v L.B., 2020 SKCA 46, 39 RFL (8th) 1 [T.B.] and Jochems v Jochems, 2013 SKCA 53, 414 Sask R 201 [Jochems], amongmany other authorities. [19] Andre’s argument for lifting the stay rests heavily on the determinations made by the Chambers judge and the standard ofreview applicable to the Chambers Decision.

He notes that the Chambers judge has made a finding as to where the child’s best interestslie. He refers to “the child’s need for stability”. He says that, given the applicable standard of review, it is likely that the ChambersDecision will be upheld and a “child’s need for stability suggests that, absent an overarching reason not to, the automatic stay of executionon an interim parenting order should be lifted”. Andre also emphasizes that it is in the child’s best interests that a relationship beestablished, and established soon, between father and son.

He recognizes Shantel’s argument that the order made by the Chambers judgewill disrupt the child’s life, and that this works against the order. However, he says that this was recognized and addressed in theChambers Decision, when the Chambers judge wrote as follows: [44] Relocation will have some detrimental effect on the Child. The question is whether the impact is short-term or long-term andwhether the detrimental effect is lessened or worsened by delay. [20] For her part, Shantel acknowledges the applicable standard of review and the findings of the Chambers judge.

She argues thatthe Chambers judge’s best interests analysis “did not fully consider the best interests of the child, his development, importance ofmaintaining his primary attachments, and the effect that a long term separation can have on [such a young] baby”. One of Shantel’sspecific concerns is that the child faces the risk of suffering permanent and long-term separation anxiety if he is taken, without transition,by a person who is a stranger to him, away from the persons with whom he has bonded.

Additionally, she says that the relief granted bythe Chambers judge significantly changes the status quo for the child and this status quo should be maintained until the appeal isconcluded. [21] I enter my consideration of the parties’ competing position by accepting Andre’s submission that the starting point inapplications of this nature is to respect the interim determination made in the Court of Queen’s Bench as to what is in a child’s bestinterests and to discourage appeals from interim orders.

In T.B., Jackson J.A. spoke of the relevance of this Court’s longstandingreluctance to interfere with interim orders made by the Court of Queen’s Bench to the decision to lift or maintain the stay: [14] It also must be noted that the father’s appeal is from an interim order. While the order of Wilkinson J. is a variation of an interimorder, it is still an interim order (see L.Q.L. v C.H. (1997), (SK CA), 152 Sask R 216 (CA)). As such, it is appropriateto refer to that line of authority that discourages appeals from interim orders in family law matters.

While this principle originally emergedin relation to interim maintenance orders in Foss v Foss (1991), (SK CA), 31 RFL (3d) 367 (Sask CA), it was laterextended to interim custody and access orders in Dauk v Law, 2005 SKCA 145, 275 Sask R 158. [15] The Court’s practice of discouraging appeals from interim orders in custody and access matters is often expressed in terms of astringent standard of review as in Graham v Tomlinson, 2010 SKCA 101, 359 Sask R 251: [15] On such matters, and for good reason based on the best interests of the children, this Court has stated repeatedly that it does notwelcome appeals from interim custody orders, except in exceptional circumstances (see: M.V.D. v.

C.K.L., 2005 SKCA 145, 275 Sask. R.158 and Phillips v. Shergold, 2009 SKCA 131). On an appeal from an interim custody order, the error must be of such a nature that itcompels reversal to warrant an appeal. … See also Mantyka v Dueck, 2012 SKCA 109 at para 47, 399 Sask R 303; Jochems v Jochems, 2013 SKCA 81 at para 24, 417 Sask R 232;Bolan v Bolan, 2013 SKCA 84 at para 9, 417 Sask R 265; Gebert v Wilson, 2015 SKCA 139 at para 8, 467 Sask R 315; M.H. v H.S., 2019SKCA 122 at para 7.

Indeed, in most jurisdictions in Canada, as a matter of practice, an appellant seeking to appeal an interim order madeunder s. 21 of the Divorce Act must obtain leave (see Elgner v Elgner, 2011 ONCA 483, 105 OR (3d) 721, leave to appeal dismissed, (SCC)). [22] Justice Jackson further noted that the “fact that there is a narrow window for the success of an appeal from interim orders in afamily law matter points in favour of lifting the automatic stay of such orders” (T.B. at para 16).

Therefore, in considering whether thebest interests of the daughter are served by leaving the stay in place or setting it aside, I attach weight to the fact that the Chambers judgehas determined that the child’s best interests are served by allowing Andre to have regular unsupervised parenting time, even if thisrequires that this occur in Nova Scotia. [23] However, this does not end the inquiry. I must still determine whether it is in the child’s best interests to enforce the ChambersDecision pending the appeal. In this regard, I would return to the risks and benefits of lifting or maintaining the stay.

The submissionsmade by the parties are framed against two risks. Andre focuses on risk to the long-term relationship between himself and the child if the

stay is not lifted and, conversely, the benefit to the child of establishing this relationship on the earliest possible date. Shantel emphasizesthe risk of psychological harm to the child if he is suddenly and for a long period taken and put into the care of a person who, to him, is astranger. [24] I must say that there was little actual evidence filed by either party in relation to theses risks and benefits. Andre largely refers tocase reports that refer to expert evidence. The underlying evidence that was led in those cases was not tendered to the Chambers judge andis also not before me.

For her part, Shantel also refers to case authority that has recognized, in a general way, the points she is making.However, these cases are not evidence. Having noted the limits to the evidence, I accept that both the desirability of establishing ameaningful relationship between Andre and the child as soon as possible, and the risk of separation anxiety that Shantel fears, aregrounded in everyday experience.

On other occasions and in other contexts, evidence may be required in relation to these matters, but forthe moment, it is not only appropriate, but essential, to account for these concerns in assessing this child’s best interests. As I read theChambers Decision, these are the same interests that the Chambers judge attempted to weigh in his assessment of the child’s bestinterests. [25] However, I am also mindful that the issue that I am confronting is somewhat different than the issue the Chambers judgedecided.

My sole focus in this application is whether the child’s best interests are served by either enforcing the interim order or stayingthat order in the short period between now and the hearing of Shantel’s appeal. I emphasize this temporal point because it influences theperspective to be taken in relation to the risks and benefits to the child of any specific course of action. In this regard, the child’s bestinterests look different when viewed across this short period of time.

The reasons for this are multiple, but I will give several examples,both of which relate to the weighing of benefits and risks associated various courses of action. [26] Andre is understandably concerned that his ability to bond with the child will be affected by any delay in having meaningfulparenting time. Again, I understand and accept this. However, I see nothing in the record that supports the contention that a delay ofseveral months will have a material impact on the development of this important relationship.

Put into the sterile language sometimes usedin the cases that discuss stays of proceeding, I see little actual risk of irreparable harm to the relationship between Andre and the child ifthere is a delay in Andre taking the child to Nova Scotia for the extended periods that are required if the interim order is enforced. This isparticularly the case if there are other viable ways to mitigate any risk that is associated with the delay in the development of thisrelationship.

In short, I do not see a material risk that the child will be harmed if the stay is left in place, even if Andre eventually prevailsin the appeal and the interim order is upheld in its entirety. [27] On the other hand, if Shantel’s position were to be substantially accepted by this Court, the child will have been found to havebeen inappropriately removed from the only caregivers he has known and exposed to what both parties identify as a real risk of separationanxiety and, with it, long term harm.

The other way to express the same point I have just made is to recognize that the interim order madeby the Chambers judge alters the status quo. If the result of the appeal is to set aside the interim order, but the Child has been removed toNova Scotia for one month, there will be no way to undo whatever harm may have been caused to the child by this action. For this reason,I do not find persuasive Andre’s argument that is grounded in what he has referred to as “the child’s need for stability”.

In my respectfulview, this interest works in favour of Shantel’s position. [28] Based on these considerations, it is my conclusion that the child’s best interests are served if the child is not taken to NovaScotia pending the hearing. I would add only one last comment about this general conclusion. Andre noted that the stay was lifted inJochems to allow a father to relocate with a very young child to another province.

However, among several facts that distinguish that casefrom the present situation was that the father had an existing relationship with the child. [29] I have, therefore, concluded that it is not in the child’s best interests to be taken to Nova Scotia while this appeal is prosecuted.However, this does not end my consideration of how to serve the child’s best interests. [30] To this point in my analysis, I have presented the choice as being an all or nothing situation. However, it is not necessary toapproach the decision to grant or refuse a stay on the basis that it is winner take all.

It has long been accepted that a judge called toconsider a request to lift a stay of proceedings may impose conditions on the continuation of the stay: Tekarra Properties Ltd. v SaskatoonDrug and Stationery Co. (1985), (SK CA), 37 Sask R 286 (CA) at paras 5–7 and Turtle v Valvoline CanadianFranchising Corp., 2021 SKCA 46 at paras 54–55. [31] The Chambers judge has recognized that the child’s best interests are served if he is given an opportunity to develop arelationship with his father.

This can be done if, as a condition to maintaining the stay of execution, Shantel is ordered to provide specifiedparenting opportunities to Andre. This is appropriate. I will spell these out later in these reasons. [32] In the affidavit that he has filed with this Court to support his request to lift the stay, Andre explained that his financialresources are limited. He says that he “can only afford to make a couple visits [to Regina] a year”. He also gave evidence as to his workand other commitments that will affect his ability to spend very long periods of time in Regina.

He suggested in argument that if Shantelcontributed to his travel costs, it might be possible to make smaller but more frequent visits. [33] I accept the very real barriers that Andre faces if he is to parent the child in Regina. These include financial restraints, workcommitments and other constraints. However, they are not absolute, as his own evidence discloses. In one of his affidavits filed in theCourt of Queen’s Bench, Andre had stated that he was prepared to spend a week in Regina prior to bringing his son back to Nova Scotiawith him.

Andre also appropriately recognized that this would allow the child to become familiar with him, and his hope was that his sonwould feel comfortable with him. All of this suggests to me that Andre has the time and financial capacity to come to Regina to spend timewith his son in the period leading up to the appeal.

Moreover, I would note that, were the interim order to be enforced in accordance withits terms, Andre would be required to fly between Nova Scotia and Regina twice in December, twice in March and then again twice insummer of 2022. [34] I have no expectation that Andre will be able to take advantage of all the opportunities I will give him to parent the child inRegina. The conditions that I will attach are intended to give him flexibility to do this, so far as his resources and other commitmentsallow.

I am not, however, prepared to order that Shantel contribute to the costs that Andre may incur in exercising his parental time withthe child.

[ 35 ] Finally, Andre should have some assurance that Shantel’s appeal is prosecuted in a timely fashion. As a condition for the continuation of the stay, I am directing that Shantel perfect her appeal no later than December 29, 2021, and giving other ancillary directions. IV. Conclusion [ 36 ] I dismiss Andre’s application to lift the stay of execution. However, I make the following orders: (

a) As a condition to the continuation of the stay of execution: (

i) Shantel shall serve and file the appeal book and her factum as soon as possible and, in any event, no later than 4:00 p.m. on December 29, 2021; (ii) Shantel shall allow Andre to have up to 15 opportunities for unsupervised parenting times with the child in Regina, Saskatchewan, in each calendar month, commencing in December, 2021, in accordance with the following principles:

(1) Andre shall give not less than 72 hours’ notice of his intention to exercise his parenting opportunities. Subject only to this notice requirement, and the other conditions herein specified, the dates and times for the parenting opportunities shall be as Andre may request in accordance with his availability and ability to be in Regina;

(2) The first three parenting opportunities shall not exceed three hours each, unless a longer period is consented to by Shantel;

(3) The fourth to seventh parenting opportunities shall not exceed eight hours each, unless a longer period is consented to by Shantel;

(4) After the seventh parenting opportunity, Andre may parent for consecutive times up to 36 hours, including overnights. Andre may not parent the child on two consecutive nights unless consented to by Shantel; (iii) If any of these conditions are not met, this matter may be returned to me for reconsideration of all issues relating to the stay of execution. (

b) The stay of proceedings is lifted; and (

c) The costs of this application are reserved to the panel that hears Shantel’s appeal. [ 37 ] In consultation with the Registrar, I have been advised that, as of the moment, this appeal may be scheduled for hearing on one of several available dates in February. To secure a date, counsel for the parties are instructed to jointly contact the Registrar as soon as possible and, in any event, no later than December 21, 2021, as to their availability on the following days: February 1, 2, 3, 4, 7, 8 and 9, 2022. The Registrar will endeavour to

schedule the hearing of this appeal on one of those dates, subject to the further condition that Andre will undertake to serve and file his respondent’s factum no later than 4:00 p.m. on January 14, 2022. Notwithstanding these directions, the scheduling of this appeal remains in the discretion of the Registrar. “Leurer J.A.” Leurer J.A.