S.W.B.M. v C.S.M., 2021 SKCA 64

Court of Appeal for Saskatchewan Docket: CACV3509 Citation: S.W.B.M. v C.S.M. , 2021 SKCA 64 Date: 2021-04-16 Between: S.W.B.M. Appellant (Petitioner) And C.S.M. Respondent (Respondent) Before: Caldwell, Barrington-Foote and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Barrington-Foote On appeal from: DIV 698 of 2013 (QB), Saskatoon Appeal heard: February 4, 2021 Counsel: S.W.B.M. acting on her own behalf Deborah Giles and Peter Beug for the Respondent Tholl J.A. I.

Introduction [ 1 ] S.W.B.M. [Ms. S.B.] and C.S.M. [Mr. C.M.] have four children, currently aged 10 to 16. The parties separated in 2011 and the children remained residing primarily with Ms. S.B. The matter eventually came to trial, with judgment rendered in October of 2019. In the judgment, Mr. C.M. was given sole custody and residency of the children and Ms. S.B. was prohibited from having any contact with them for three months, after which she could apply to have her parenting time reviewed.

The judgment contained numerous other provisions related to the children, parenting, child support and counselling. [ 2 ] Ms. S.B. appealed the whole of the decision and seeks to have the children returned to her care along with sole decision- making authority. She seeks a variety of other relief, including requesting that numerous criminal charges be brought against Mr. C.M. and that she be awarded substantial financial compensation. As grounds of appeal, Ms.

S.B. alleges the trial judge was biased, erred by faulting her for complying with her duty to report abuse, misapprehended and ignored evidence, misapplied the principles related to the best interests of the children, erroneously found parental alienation was occurring, and imposed terms on her for counselling that are improper. She additionally asserts that she was forced to proceed with the trial when she was unprepared. Ms. S.B. has applied to file fresh evidence on the appeal. [ 3 ] For the reasons that follow, the appeal must be dismissed. II. Background [ 4 ] The parties began residing together in 2001.

Their oldest child was born in 2004, the next in 2007 and the twins in 2010. Ms. S.B. was the children’s primary caregiver, but Mr. C.M. provided a significant amount of their care. The children had a close bond with both parents. The relationship between the parents was not as good; but, despite their difficulties, they married in 2010. The marriage was short-lived and they separated in August of 2011. Mr. C.M. stayed in the family home on a farm and Ms. S.B. moved to Saskatoon with the children.

Saskatoon is approximately 125 kilometres from the family home. [ 5 ] There were numerous difficulties with the parenting arrangements post-separation. For the first period of time after the separation, the children, or some of them, spent the majority of their weekends with their father. However, starting in 2012 and continuing until 2014, the parties had disputes about money and the children. For example, in April of 2013, Ms. S.B. withheld the children for six weeks after Mr. C.M. started paying her child support rather than letting her have unfettered access to their joint bank account.

When his parenting time resumed, it was substantially reduced. [ 6 ] In 2013, Ms. S.B. filed a petition seeking remedies related to the children, family property and support. Mr. C.M. filed an answer and counter-petition. In April of 2014, Ms. S.B. withheld the children again for a lengthy period of time after an incident that had occurred during an exchange. This withholding only ended when the parties reached a parenting agreement in August of 2014, under which Mr. C.M. had the children every second weekend, half of holidays and two weeks in the summer.

This arrangement appeared to work for a period of time, although there were ongoing minor difficulties. [ 7 ] In the fall of 2014, Ms. S.B. and the children moved to a small town located about 100 kilometres from Saskatoon. This new residence was relatively close to the family home. In June of 2015, Ms. S.B. informed Mr. C.M. that she wished to resume living in the family home with the children. He understood she wanted to buy out his share of the farm. As a result, he moved to a rented farmhouse a short distance away, and Ms. S.B. and the four children moved back into the family home.

When there were no developments regarding

Ms. S.B. buying his share of the farm, Mr. C.M. applied for an order requiring it to be sold. The application was adjourned sine die and the matter was directed to a pre-trial conference. [ 8 ] By April of 2016, Mr. C.M. still had parenting time every second weekend, but Ms. S.B. had cut off all telephone contact between him and the children Around this time, Ms. S.B. registered with the maintenance enforcement office and asked them to collect child support she alleged was in arrears. After examining the matter, the maintenance enforcement office determined that Mr. C.M. did not owe any arrears.

Things immediately became more difficult between the parties. [ 9 ] On May 13, 2016, Ms. S.B. refused Mr. C.M. parenting time for his scheduled weekend. Ms. S.B. alleged that on May 12, 2016, one of the children had attempted to have one of his brothers perform oral sex on him. When Ms. S.B. became aware of this, she confronted the child and demanded that he tell her where he had learned about this behaviour. The child allegedly told her that Mr. C.M. had made him do it. Ms. S.B. contacted the RCMP who commenced an investigation.

The Ministry of Social Services apprehended the children but immediately returned them to Ms. S.B. with a written safety plan in which she agreed to not let Mr. C.M. have contact with the children during the investigation. Ms. S.B. complied and suspended Mr. C.M.’s parenting time. Mr. C.M. denied the allegations and, in July of 2016, the RCMP determined that there would be no criminal charges. [ 10 ] In July of 2016, the parties attended a pre-trial conference and settled all of their outstanding issues except for parenting arrangements. In the fall of 2016, Mr.

C.M. applied to have his regular parenting time reinstated. Supervised access was granted in December of 2016. This access was not without difficulties and Ms. S.B. would not encourage the children to go with their father, telling him and them that she did not have to force them to go. When the children did go with him, the time with their father was very positive. When his parenting was reviewed in February of 2017, the supervision of C.M.’s parenting time was left in place but the court ordered that Ms. S.B. not attend the exchanges. In addition, a custody and access assessment was ordered.

Despite the order that she not be at the exchanges, Ms. S.B. continued to attend some of them where she would berate Mr. C.M. in front of the children and cause problems. She also took other actions to undermine or thwart his parenting time. [ 11 ] In March of 2017, Mr. C.M. brought an application to require the farm to be sold as agreed to at the pre-trial conference. Although the application for the order for the sale did not proceed, the parenting arrangements were reviewed.

In an order granted July 12, 2017, the list of supervisors available for visits was expanded, generous and liberal telephone access was ordered, and the parties were directed to attend the Parenting after Separation and Divorce course and the High Conflict Parenting after Separation course. The application was adjourned for further review once the custody and access assessment was finished. That assessment was completed on August 31, 2017. [ 12 ] In July of 2017, Ms. S.B. left the family home and moved to Saskatoon with the children without telling Mr.

C.M. or seeking his permission to remove the children from the area. In September of 2017, Mr. C.M. discovered she had moved, and he applied to have the children move back to the district where the family home was located. The Court ordered the children be returned and terminated the requirement that Mr. C.M.’s parenting time be supervised. Ms. S.B. and the children returned to the family home. Difficulties continued during exchanges of the children and with Ms. S.B. asserting control over Mr. C.M.’s parenting time.

The child who was involved in the alleged sexual abuse did not spend any time with his father from January of 2017 until after the trial judgment was rendered in October of 2019. [ 13 ] The trial commenced in May of 2018, with the decision reserved. The trial was re-opened in September of 2019, so that the trial judge could hear further evidence. [ 14 ] The family home was conditionally sold, with a possession date of July 1, 2018, but Ms. S.B. had not secured accommodations within the area permitted by the existing order.

As a result, she and the children vacated the home and spent the summer camping in a pasture. In September of 2018, Ms. S.B. applied for permission to relocate to Saskatoon. Her request was denied, but the radius of the area where the children could reside was substantially increased in order to permit her to find accommodations. After this order, Mr. C.M.’s parenting time with the children continued to be limited by Ms. S.B. [ 15 ] On the weekend of November 16, 2018, Mr. C.M. had parenting time with the two youngest children and took them to visit his brother in the south-west of the province.

While there, he permitted the two boys to fire a pellet gun and a .22 calibre rifle under close and constant adult supervision. He posted photographs of the activity on Facebook. When it was time to drive the children back for the exchange with their mother, the weather had turned bad and the roads were slippery. Mr. C.M. emailed Ms. S.B. several hours in advance to tell her that he may be late because of the weather and updated her twice, with the last email indicating that he would be one hour late. Despite this communication, Ms.

S.B. called the police at 3:15 p.m. because the children were supposed to be returned at 3:00 p.m. Mr. C.M. arrived at 4:15 p.m., and dropped the children off without incident. A few days later, Ms. S.B. saw the photographs on Facebook and immediately withheld further access. She applied to court to have Mr. C.M.’s parenting time supervised because he had been late returning the children, had them near the Alberta and United States border, where she believed he could have absconded with them, and had allowed them to handle a firearm which she asserted placed them in grave danger.

Her application was dismissed, but, as a result of Ms. S.B. withholding them while the application was pending, the children had no time with their father for a six-week interval, including Christmas of 2018. Thereafter, problems persisted with the facilitation of Mr. C.M.’s parenting time with the children, and Ms. S.B. continued to interfere for a variety of reasons. [ 16 ] Ms. S.B. rented a home in Saskatoon in May of 2019, where she and the children stayed on the weekends. Mr. C.M. found out about the house and suspected Ms.

S.B. had, once again, moved the children to Saskatoon, although that does not appear to have been the case at that point in time. He attended and took photographs of the home. [ 17 ] On August 23, 2019, Ms. S.B. sent a letter to the Court and to Mr. C.M. In the letter, she stated she would be enrolling the children in school in Saskatoon for the 2019–2020 school year. Mr. C.M. was opposed to this move. Ms. S.B. did not completely follow through on her stated intentions and registered the three youngest children in the school required under the existing court order.

However, she did register the oldest child in school in Saskatoon for fall of 2019 and he began attending there. This was in direct contravention of the existing court order. [ 18 ] Mr. C.M. had no parenting time with the children from June to September of 2019.

III. Trial judgment [19] The trial commenced on May 1, 2018, with evidence heard over four days. The writer of the custody and access report,Dr. Timothy Greenough, testified as an expert witness for the court. Ms. S.B. testified on her own behalf and called a former neighbour asher only other witness. Mr. C.M. testified and called his mother, Ms. S.B.’s brother-in-law and a friend as his witnesses. Final argumentswere made on May 29, 2018. The trial was reopened on September 6, 2019, and Ms. S.B. and Mr. C.M. each testified about events thathad occurred since May of 2018.

The trial judgment was released on October 2, 2019: S.B.M. v C.M. (2 October 2019) Saskatoon, DIV698 of 2013 (Sask QB) [Trial Decision]. [20] The trial was only about parenting. Ms. S.B. requested that she have sole custody with the children living primarily with her inSaskatoon and Mr. C.M. having supervised parenting time that did not include overnights. She indicated the structure of his parentingmight change over time but any such change must be gradual. However, she would have agreed to a shared parenting arrangement ifMr. C.M. would relocate to Saskatoon. Mr. C.M. contended Ms.

S.B. was alienating the children from him, and to address this problem,they should reside primarily with him for a 90-day period while the parties participated in counselling. He was not opposed to a weekon/week off schedule, if the counselling was successful and the children continued to live in the area where he resided. [21] The trial judge reviewed the evidence in great detail, setting out the background and detailing the problems experienced byMr. C.M. in having parenting time with his children. He described Dr. Greenough’s testimony and report and canvassed the testimony ofall of the witnesses.

He then reviewed the principles regarding the determination of children’s best interests from a child-centredperspective. This included references to s. 16 of the Divorce Act, RSC 1985, c 3 (2d Supp); s. 8 of The Children’s Law Act, 1997, SS 1997,c C-8.2; Dixon v Hinsley (2001), (ON CJ), 22 RFL (5th) 55; Young v Young, (SCC), [1993] 4 SCR 3;Gordon v Goertz, (SCC), [1996] 2 SCR 27; and A.O. v T.E., 2016 SKCA 148, 88 RFL (7th) 34. He noted that a failureto a promote a child’s contact with the other parent, even in the face of the child’s contrary wishes, is a breach of a parent’s duty to theirchildren.

He relied on Howe v Whiteway, 2015 SKCA 72, 460 Sask R 253, and M.L.S. v N.E.D., 2017 SKQB 183 [M.L.S.], for thisproposition. He further relied on M.L.S. for principles regarding parental alienation. [22] There were numerous findings of fact made by the trial judge with regard to controverted issues. I would summarize the mostimportant findings of fact as follows: (

a) Mr. C.M. did not sexually abuse his child. Despite the significant evidence to the contrary, Ms. S.B. continues to erroneouslyassert that he did. (

b) The children are generally healthy, normal children – although one has some vision issues – with each of them having theirown individual characteristics. Some of the children are academically weak and have self-esteem and social issues. There was no evidenceany of them had close friends or were involved in any organized activities. (

c) The children all attend counselling. Ms. S.B. unilaterally changed the children’s counsellor because the former counsellor hadinvited Mr. C.M. to participate in counselling sessions with the children. (

d) Ms. S.B. has frequently moved with the children and often has not had a proper residence for the children. She did not look fora home in the required area after the family home sold in 2018, instead choosing to attempt to move to Saskatoon in contravention of theexisting court order. Mr. C.M. has had a much more stable home environment. (

e) Ms. S.B., as primary caregiver, was not meeting the children’s physical or social needs, was only partially meeting theireducational needs and was not able to meet their economic needs. (

f) When the children are in Mr. C.M.’s care, they are relaxed and happy and enjoy spending time with him. They engage inactivities and spend quality time with extended family and other children. Mr. C.M. is able to meet their physical, social, educational andeconomic needs. (

g) The children and Ms. S.B. love each other. The children also love their father and he loves them. The quality of theirrelationship with Mr. C.M. has been affected by the seeds of discontent that have been sown by Ms. S.B. (

h) Ms. S.B. has engaged, and continues to engage, in a “concerted effort” to alienate the children from their father. Sheunjustifiably withheld the children from Mr. C.M. for long periods on numerous occasions, does not encourage the children to go for theirscheduled time with their father, has told the children they can choose to not go with him, frequently took steps to actively interfere withMr. C.M. spending time with the children, and withholds the children as a means of punishing him.

She often disparaged him in front ofthe children, has accused him of sexually assaulting the one child, and involves the children in the family law issues. Ms. S.B. unilaterallymakes decisions for the children and purposefully excludes Mr. C.M. from such decision-making. Ms. S.B.’s actions are calculated to getwhat she wants and she does not have the children’s best interests in mind. She is not meeting her parental obligations, is not able to meetthe children’s psychological needs, and her ability to parent the children is presently impaired. (

i) Mr. C.M. did not stalk or harass Ms. S.B. as she alleged. He does not have a drinking problem. While Ms. S.B. believes thechildren could be harmed or killed when they are in their father’s care, there is no basis for this belief and Mr. C.M. poses no risk to thechildren. [23] The trial judge reached the following final conclusion with regard to the children’s best interests: [196] Based on the totality of these factors, I have determined that it is in the best interests of the children that they be in the custody ofthe respondent [Mr. C.M.].

He has demonstrated a capacity to meet the needs of the children; the petitioner [Ms. S.B.] has not. She hasalready been cautioned in a court order about her obligation to facilitate a relationship between the children and the respondent and she hasignored that. Her behaviour has escalated. She is doing what she wants to do even if that means being in violation of the Court’s orders. Ifshe is allowed to move to Saskatoon with the children, that will just continue to erode the respondent’s relationship with them. In the long

term, that will not be good for any of the children. It is commonly accepted that unmerited rejection of a parent can lead to low self- esteem, depression, anxiety, difficulty resolving conflicts, personal and emotional deficiencies and addictions. [The children] are already showing signs of low self-esteem. If I left the children with the petitioner, the psychological and emotional harm she has inflicted on them will only continue and, in my view, get worse.

I am also convinced that I need to impose conditions and restrictions on the petitioner’s contact with the children, not as a punishment, but as a realistic framework for the possible reintegration of both parties back into the children’s lives. … [199] This is about [the children’s] best interests. It is about them feeling loved and supported. It is about them enjoying their child and teen years, not worrying about their parents’ conflicts. It is about them having both of the parties in their lives.

It is also about them developing self-esteem, being free of anxiety and depression, having their own healthy relationships with people and being able to manage conflict in a productive way. [200] To achieve these short- and long-term goals, my judgment in this case is as follows: (

a) the respondent shall have sole custody of [all four children] and the children shall live with him; (

b) the transition of the children’s care from the petitioner to the respondent shall occur on Friday, October 4, 2019 at 5:00 p.m. at the petitioner’s mother’s residence … and the petitioner shall have all of the children at her mother’s residence prior to 5:00 p.m.; (

c) the petitioner shall provide the respondent the children’s passports, birth certificates, health cards, any other personal documentation and all of the children’s personal belongings by leaving these items at her mother’s residence … prior to 5:00 p.m. on Friday, October 4, 2019 to be picked up by the respondent when he picks up the children; (

d) the petitioner shall not be present at her mother’s residence … when the respondent attends to pick up the children and their belongings on Friday, October 4, 2019; (

e) the petitioner shall have no parenting time with [the four children]; (

f) the petitioner shall have no contact, direct or indirect, with [the four children]; (

g) the respondent’s obligation to pay child support to the petitioner is terminated as of October 1, 2019; (

h) the petitioner shall forthwith take counselling to address her parenting deficiencies and alienating behaviours; (

i) the petitioner shall provide a copy of my judgment to the person counselling her at the outset of the counselling engagement; (

j) the petitioner shall be responsible for the cost of her counselling and any reports prepared by her counsellor; (

k) the petitioner may apply for a review of her parenting time and the no-contact provision no earlier than three months from the date of this judgment, on 14 days’ notice to the respondent, providing she files with the court a report from her counsellor confirming that there is no risk to the children in restoring contact with them; (

l) the respondent shall arrange counselling for the children and himself with a counsellor who specializes in family conflict for the purposes of repairing his relationship with the children; (

m) the respondent shall be responsible for the cost of the counselling for himself and the children; (

n) once per month the respondent shall send an email to the petitioner providing her with information respecting the children, including any information pertinent to their health, education or activities; (

o) the respondent shall send an email to the petitioner keeping her apprised of any emergencies regarding the children as soon as reasonably possible after the emergency arises; (

p) if the petitioner does not comply with the transition provisions in this judgment then any sheriff, peace officer or RCMP officer is authorized to locate, apprehend and deliver the children to the respondent for the purpose of giving effect to his right of sole custody, and to that end, may enter and search any place where they have reasonable grounds to believe the children may be; (q) [the trial judge] shall remain seized with the review of the petitioner’s parenting time and the non-contact provision; and (

r) compliance with Rule 10-4 of The Queen’s Bench Rules is waived. [ 24 ] The parenting order accords with the recommendations made by Dr. Greenough. [ 25 ] Ms. S.B. appeals the entirety of the trial judgment. IV. Issues [ 26 ] The issues in this matter are as follows: (

a) Should the fresh evidence be admitted? (

b) Was there a reasonable apprehension of bias in relation to the trial judge?

(

c) Did the trial judge err by requiring the trial to commence as scheduled? (

d) Did the trial judge err by faulting Ms. S.B. for complying with her duty to report abuse? (

e) Did the trial judge misapprehend or ignore evidence? (

f) Did the trial judge err in his application of the principles related to the best interests of the children, including in hisexamination of parental alienation? (

g) Did the trial judge err in imposing terms related to Ms. S.B.’s counselling? V. Analysis A. Fresh evidence [27] Ms. S.B. applied to adduce fresh evidence in this matter. That evidence consists of the following: (

a) an affidavit of Ms. S.B., sworn November 19, 2020; (

b) an order of Caldwell J.A., dated November 25, 2020; (

c) emails sent by Ms. S.B. to the Ministry of Social Services on November 14, 2019, and July 8, 2020; (

d) an affidavit of Ms. S.B., sworn July 30, 2020; (

e) a letter from Ms. S.B.’s former counsel dated November 11, 2019; (

f) a letter from Ms. S.B.’s domestic violence counsellor dated January 8, 2020; (

g) Ms. S.B.’s written trial argument from May 29, 2018; (

h) emails between Ms. S.B. and the University of Saskatchewan, dated February 24, 2020, and March 2, 2020; (

i) an email from Ms. S.B. to the Ministry of Social Services dated January 4, 2021; (

j) a letter from the counsel for the Ministry of Social Services to Ms. S.B.’s counsel at the time dated December 16, 2016; and (

k) an affidavit of Ms. S.B. filed on November 8, 2019, in response to Mr. C.M.’s application to lift the stay imposed by Rule 15of The Court of Appeal Rules. [28] The test for the admission of fresh evidence was recently set out by Kalmakoff J.A. in M.H. v A.B., 2019 SKCA 135, 36 RFL(8th) 261, leave to appeal to SCC refused, , where he summarized the four criteria from R v Palmer, (SCC), [1980] 1 SCR 759: [16] … Fresh evidence will only be admitted if: (

a) it could not, even with the exercise of due diligence, have been adduced at trial; (

b) it is relevant in the sense that it bears upon a decisive, or potentially decisive, issue in the action; (

c) it is credible, in the sense that it is reasonably capable of belief; and (

d) it is of such a nature that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. [29] When the best interests of a child are at stake, this test is applied in a somewhat more flexible manner. This approach wassummarized by Barrington-Foote J.A. in S.T. v J.T., 2019 SKCA 116, [2020] 6 WWR 55 [S.T.]: [94] … Although fresh evidence is not permitted as a matter of course, the law on this point reflects this Court’s constant attention to thebest interests of the child.

In B.L. v Saskatchewan (Social Services), 2012 SKCA 38, [2012] 12 WWR 468 [B.L.], Ottenbreit J.A.summarized the Court’s approach: [69] This Court has released two decisions which reflect the flexible approach to admission of further evidence enunciated in C.M. [ (SCC), [1994] 2 SCR 165] See Redshaw v. Redshaw (1985), (SK CA), 41 Sask.

R. 141 (C.A.) and J.L.L.(Re), 2002 SKCA 78, 27 R.F.L. (5th) 337. [70] Given the foregoing, C.M. is the controlling authority in Saskatchewan on CFSA [The Child and Family Services Act, SS 1989-90,c C-7.2] matters respecting the threshold for admissibility of further evidence. [71] The test in C.M. may be summarized as follows: Further evidence adduced pursuant to s. 63(4) of the CFSA may be admitted if: (

a) The evidence could not have been adduced before;

(

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

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

d) The evidence is credible.

The overarching principle, however, is that a court has all the necessary authority to receive further evidence in the best interests of the child. [95] Although B.L. was a child protection case, this “somewhat more flexible approach to the introduction of fresh evidence has also been applied in cases involving the best interests of a child in the context of custody and access proceedings”: Băcić v Ivakić , 2017 SKCA 23 at para 24 , (2017), 409 DLR (4th) 571. [ 30 ] An application to admit fresh evidence is not an opportunity to rehash evidence that was already tendered at trial, fill gaps with evidence that could have been or should have been tendered at trial, or present arguments or inadmissible hearsay opinions under the guise of evidence.

The purpose of such an application is to provide the Court with highly probative evidence that was not available at the time of trial. [ 31 ] I will address each of the proposed items of evidence individually, but have considered them in the context of the entirety of the fresh evidence. While this portion of my reasons for judgment comes first, I have considered all of the fresh evidence within the entire circumstances of the appeal and the issues to which it could relate. I observe that Ms.

S.B. did not seek to tender any evidence regarding the current circumstances of the children or any counselling directly related to the issues identified by the trial judge. Despite her submission that psychologists and counsellors are all mortified by the requirement that she attend counselling in relation to parenting, she provided no evidence regarding this issue. [ 32 ] The affidavit of Ms. S.B., sworn November 19, 2020, addresses only procedural matters in this Court related to the perfection of the appeal.

This no longer has any relevance and cannot be admitted on the appeal. [ 33 ] The court order dated November 25, 2020, along with Ms. S.B.’s written trial argument already form part of the record of this matter and do not need to be tendered as fresh evidence. [ 34 ] The emails sent by Ms. S.B. to the Ministry of Social Services on November 14, 2019, and July 8, 2020, were sent after the conclusion of the trial, but mainly reference issues that pre-date it. All of the actual information referenced in the emails, with the exception of Ms.

S.B.’s complaints about the findings of the trial judge, was available to Ms. S.B. in advance of the trial and some of it was the subject of testimony at the trial. This is not fresh evidence and will not be admitted. [ 35 ] The body of Ms. S.B.’s July 30, 2020, affidavit consists of argument not facts. Argument cannot be admitted as fresh evidence. Additionally, there are several documents appended to this affidavit. However, all of these documents were available to Ms. S.B. in advance of the commencement of the trial.

This affidavit, and its attachments, will not be received as fresh evidence. [ 36 ] The letter from Ms. S.B.’s former counsel dated November 11, 2019, addresses a property issue and her unpaid account with his office. The emails between Ms. S.B. and the University of Saskatchewan constitute Ms. S.B.’s application to the university for a retroactive withdrawal from certain classes. The email from Ms. S.B. to the Ministry of Social Services, dated January 4, 2021, consists of her request to adjust her income assistance because of her financial circumstances.

None of these documents have any relevance to the appeal and will not be received as fresh evidence. [ 37 ] The letter from Ms. S.B.’s counsellor indicates she had attended one-on-one intimate partner violence counselling at Family Service Saskatoon. The number of times she has attended or the dates of such attendance is not provided. There is no indication in the letter that Ms. S.B. has taken any counselling that directly relates to the parenting issues that concerned the trial judge.

This limited information, on its own or in combination with the other fresh evidence, is not potentially decisive in this matter and will not be admitted. [ 38 ] Ms. S.B. seeks to have a December 16, 2016, letter from counsel for the Ministry of Social Services to her former counsel accepted as fresh evidence. It described some of the Ministry and RCMP involvement in the matter and set out the Ministry’s position with regard to court proceedings as of the date of the letter. This information was available to Ms. S.B. 1.5 years before the trial commenced. In addition, Ms.

S.B. attempted to tender it at trial and it was rejected on the basis of double hearsay and, in this appeal, she has not alleged this was in error. It cannot be admitted at this point. [ 39 ] None of the emails or letters referred to above were appended to an affidavit. As such, those documents also fail the credibility portion of the test.

A party cannot simply file documents with the Court, without any witness attesting to them, and expect to have them accepted for the truth of their contents. [ 40 ] The only document that contains any evidence of events that are alleged to have occurred after the evidence portion of the re- opened trial concluded in September of 2019 is Ms. S.B.’s affidavit filed on November 8, 2019, in response to Mr. C.M.’s application to lift the stay imposed by Rule 15 of The Court of Appeal Rules .

However, the vast majority of the information in this affidavit relates to events that predate the close of the trial, is argument, or is hearsay opinion evidence. Those portions of the affidavit cannot be admitted. With regard to evidence of facts in the affidavit that post-date the trial, Ms. S.B. averred to the following events: (

a) She has continued to reside in Saskatoon. (

b) Mr. C.M. discontinued vision therapy for one of the children in October of 2019 and she was notified of this discontinuance by an email from the clinic on November 5, 2019. However, on November 7, 2019, the clinic confirmed that the child has been placed back on the waiting list for the therapy at her request. Mr. C.M. informed Ms. S.B., on November 5, 2019, that the same child has had asthma attacks since beginning to reside primarily with him. (

c) Mr. C.M. was angry about receiving sole custody in the trial judgment and yelled at her on the phone.

(

d) Mr. C.M. refused to let the children have contact with her even once the stay was in place. (

e) Ms. S.B. spoke to the three youngest children at their school on November 6, 2019, where they expressed a desire to residewith her in Saskatoon and asked her to pick them up and take them there. (

f) She continued her domestic violence counselling on November 1, 2019, and consulted with a psychologist who has counselledher since 2017 with regard to Mr. C.M.’s alleged stalking and harassment. (

g) Ms. S.B. contacted the Humboldt RCMP on November 4, 2019, and provided an update on the proceedings and events. [41] It is my view that none of this fresh evidence is potentially decisive with regard to the best interests of the children. It does notsupplement the evidence from trial in a manner that could lead to a different outcome. As such, I am not prepared to admit it. [42] The application to admit fresh evidence is dismissed. B. Bias [43] Ms.

S.B. alleges the trial judge was unethical, in a conflict of interest, not impartial, unprofessional, demonstrated a preferencefor fathers over mothers, and was biased against her. She contends the trial judge stepped into the role of Mr. C.M.’s counsel rather thanacting as an impartial arbiter of the dispute. Ms. S.B. argues that the ultimate outcome of the trial demonstrates this contention, assertingthat no logical person of sound and reasonable mind could have reached the Trial Decision. Ms. S.B. also points to specific portions of thetranscript and decision that she says illustrate this point.

All of these allegations can be addressed under the framework of bias. [44] It is a fundamental principle of our system of justice that every litigant is entitled to an impartial adjudication of their case. Notonly must justice be done, it must be seen to be done.

This essential feature was described in Wewaykum Indian Band v Canada, 2003SCC 45, [2003] 2 SCR 259 [Wewaykum], where the Supreme Court stated, “Simply put, public confidence in our legal system is rooted inthe fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so” (atpara 57). [45] Appellants are not required to establish the existence of actual bias. Instead, they must demonstrate the existence of areasonable apprehension of bias.

The test to be applied in evaluating such an allegation was set out by de Grandpré J. in Committee forJustice & Liberty v Canada (National Energy Board), (SCC), [1978] 1 SCR 369 (at 394): The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotationabove, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to thequestion and obtaining thereon the required information.

In the words of the Court of Appeal, that test is “what would an informed person,viewing the matter realistically and practically – and having thought the matter through – conclude.

Would he think that it is more likelythan not that [the decision-maker], whether consciously or unconsciously, would not decide fairly. [46] This test has been consistently applied by the Supreme Court and by this Court: R v S.(R.D.), (SCC), [1997] 3SCR 484 at para 31; Wewaykum at para 60; Aalbers v Aalbers, 2013 SKCA 64 at paras 74–75, 387 DLR (4th) 473; Yukon FrancophoneSchool Board, Education Area No. 23 v Yukon Territory (Attorney General), 2015 SCC 25 at para 20, [2015] 2 SCR 282; R v T.F., 2019SKCA 82 at para 30 [T.F.]; and Jans v Jans Estate, 2020 SKCA 61 at para 128, 59 ETR (4th) 53 [Jans]. [47] When examining such allegations, the Court applies a strong presumption of integrity for the trial judge and places the burdenof proof squarely on the party asserting that a reasonable apprehension of bias exists.

This is a serious allegation and cannot be establishedthrough mere assertions. It must be demonstrated with cogent evidence: T.F. at paras 31–32 and Jans at para 129. Dissatisfaction with theoutcome of litigation is not a basis for a finding of a reasonable apprehension of bias. [48] Most of Ms. S.B.’s allegations arise out her view that the trial judge failed to consider the evidence, ignored the evidence anderroneously found in favour of Mr. C.M. While potentially relevant to the issue of bias, I find no support in the record for her allegationsthat the instances demonstrate bias in this case. Ms.

S.B.’s assertions that the trial judge ignored or failed to consider evidence are moreproperly addressed under several of her other grounds of appeal, and I have accordingly analyzed those allegations of error in more detaillater in this judgment. [49] I would, however, address a general point on the trial judge’s assessment of the evidence. The trial judge preferred Mr. C.M.’sevidence to Ms. S.B.’s evidence in virtually every aspect where their testimony differed. However, we are not left wondering why hecame to this determination because the trial judge fully explained his reasons for doing so.

The following portion of the Trial Decisionprovides a good illustration of the reasons why he accepted Mr. C.M.’s testimony on controverted issues and rejected Ms. S.B.’s evidenceon those same issues: [5] Both the petitioner and the respondent testified at trial. Where their versions conflicted, I have for the most part, preferred therespondent’s evidence. I have done so because I found the petitioner prone to exaggeration at times, and at other times, her testimonymade no sense.

There were occasions she would say one thing in examination-in-chief and in cross-examination it was pointed out she hadpreviously said something else. There were other occasions where she was caught in an untruth. By way of examples, she testified that shemoved to [the family home] in June 2015, that she felt it would only be temporary and she did not want to move there. But in cross-examination she admitted swearing an affidavit in November 2015 wherein she stated that the family farm … was the greatest place in theworld and further that she told Dr.

Greenough that she wanted to purchase the respondent’s share of the family farm and continue residingthere. On another occasion, the petitioner said that she consented to an application the respondent had made to terminate his supervisedaccess. But this was not the case. Not only did she file an affidavit disputing the respondent’s application but the court record is clear thatit was a contested application. At other times, she accused the respondent of child endangerment because the two youngest children weretarget shooting under the supervision of both the respondent and his brother.

She maintained he was a flight risk with the children becausehe took them to his brother’s farm in southwest Saskatchewan. And she withheld the children from the respondent because his phone callsto the school inquiring about whether the children were present and still registered there put the children at risk to be hurt or killed.

[6] A rather egregious example occurred during the resumption of the trial. The petitioner was asked if she had registered the children in the Saskatoon school division for the 2019/2020 school year. She said no, she had not. But when asked a few more questions on this point, she admitted that she had registered one of the children at [a high school] in Saskatoon and that he was attending there. These are just some of the examples that cause me to look at the petitioner’s testimony with a considerable degree of suspect. There are others which I will point to throughout. [ 50 ] This preference for Mr.

C.M.’s testimony over Ms. S.B.’s testimony is grounded in the evidence and fits fully within the trial judge’s role in determining credibility. This does not mean the trial judge favoured Mr. C.M. or was predisposed to his side of the matter, as Ms. S.B. alleges. A preference for one witness’s testimony over another witness’s testimony simply means that, when that evidence conflicts, a judge believes one party and not the other. Of necessity, a judge must often accept one party’s testimony on certain issues and reject the other party’s conflicting evidence. The fact that the trial judge did not believe Ms.

S.B. does not provide her with a basis for a finding of a reasonable apprehension of bias. She must demonstrate something more. [ 51 ] With regard to the reasons for judgment, Ms. S.B. points to paragraph 184 of the trial judgment as illustrative of bias: [184] The results of Dr. Greenough’s psychological testing of the petitioner pointed to her being intelligent, articulate, angry, mistrustful, tending to blame others for her difficulties and becoming easily angry with individuals. Her profile was consistent with people who are domineering and over-controlling.

These test results appear accurate as these traits are evident in her dealings with the respondent. They provide an explanation for why she professes to be acting in the best interests of the children but is really doing what she wants to do. She will not be bound by the wishes of the respondent or the orders of the court. Nowhere was this more evident than when she was testifying about what she wanted in this case. She said that, in her view, it was in the children’s best interests that they live primarily with her and that the respondent have access to them.

But then she continued to say that although it was not in the children’s best interests, if the respondent agreed to move to Saskatoon, she would agree to a shared parenting arrangement. [ 52 ] Ms. S.B. argues that this treatment of Dr. Greenough’s assessment demonstrates bias because the trial judge speaks about the negative aspects of the report regarding her but does not then address the negative aspects of the report for Mr. C.M. This complaint is also based on her disagreement with Dr. Greenough’s observations that were recounted in the excerpt set out above and her general assertion that he was also biased.

There are several problems with these assertions. First, this excerpt highlighted significant relevant results from Dr. Greenough’s testing and were properly emphasised. Second, Dr. Greenough did not find Mr. C.M. had these same traits. Third, the trial judge did discuss Dr. Greenough’s opinions regarding Mr. C.M. elsewhere in his judgment. Last, reliance on an expert witness’s opinion and the making of further findings of fact based on that evidence and ample other supporting evidence cannot, absent something more, be the basis for a finding of reasonable apprehension of bias. [ 53 ] Ms.

S.B. also raises specific concerns with the trial judge’s conduct of the trial where she indicates bias was demonstrated. At the hearing, she was asked to provide the most egregious examples of such behaviour on the part of the trial judge. The first example refers to the trial judge’s interjection during her cross-examination of Mr. C.M. The impugned conduct is set out in the transcript as follows: Q So after consulting with your lawyer, you decided to drive by and stalk the premises and take photographs, which you gave as Exhibit ‘D’ in your signed affidavit; is that correct? A No. I did not stalk.

I went and took photographs on the advice of my lawyer because we needed solid evidence that you had moved to Saskatoon in violation of court orders. Q [Mr. C.M.], when is the last time you have been allowed on a residence that I have lived -- lived on? A There has never been any kind of legal court order or any kind of written agreement between us that I am not to attend any residence that you’re on. Q Ever? The divorce settlement property, were you not given a restriction of 48 hours that you couldn’t enter property without having me get written notice so I wasn’t there?

A Yeah, when you -- when you were living -- THE COURT: Hang -- hang on, just a minute, please. So [Ms. S.B.], you might have a different definition of the word “stalk” than he does. He is not denying that he went to the residence that you were renting or that you made arrangements to let in Saskatoon, and took pictures of it from the outside and went up to the window and took a picture of the front porch area where those coats were hanging. He accepts that. He has said he did that. Okay.

And you know, whether you want to refer to it as stalking or he wants to refer to it as taking pictures, it doesn’t really matter. He acknowledges that he did. Okay. So you don’t have to go back in time about whether there was this order or that order. Again, I really care about what’s happened since the trial. I heard an awful lot of evidence between the two of you about what happened up to the trial, and now I’m just concerned about what’s happened since, you know, May of -- of that time frame. And -- [MS.

S.B.]: Absolutely, but he -- THE COURT: -- you know, these pictures were taken, I think in -- I want to say sometime this summer of 2019, okay, so -- [MS. S.B.]: It’s not normal behaviour. He has a long history of -- THE COURT: Well, you can argue -- [MS. S.B.]: -- stalking. The police -- THE COURT: -- and you can argue about that. [MS. S.B.]: -- have a report. THE COURT: You can argue about that -- [MS. S.B.]: M-hm. THE COURT: -- in closing argument, so … [MS. S.B.]: A long history. Okay, I will move forward [ 54 ] Ms.

S.B. characterizes this interruption by the trial judge as interference in her cross-examination when Mr. C.M. was about to admit that some protective measures had been put into place. She asserts this goes hand-in-hand with her allegation that the trial judge overlooked the behaviour she labels as harassment and stalking. I do not find anything concerning in this interjection by the trial judge. Mr. C.M. had admitted the action that Ms. S.B. believed constituted stalking but would not agree he was stalking her. The disagreement

was about the definition of the word and nothing could have been accomplished by allowing the parties to spend time debating it. The trial judge clearly told Ms. S.B. that she could argue that the behaviour constituted stalking in her final submissions. With regard to the interruption of her question, the provisions of the court order she was referring to were already in front of the trial judge so there was no need for that line of questioning to be pursued.

The trial judge was controlling the proceeding and avoiding the wasting of time by not permitting argument during cross-examination or questions on the uncontroverted issue of what terms were present in a court order. [ 55 ] For her second example, Ms. S.B. asserts the trial judge demonstrated bias by not receiving evidence regarding an incident that had occurred at the children’s school. The following excerpts from the transcript contain the testimony that this allegation arises from: A [MS. S.B.] Okay. So this is going on daily. I am called back up at the -- to the school again on June 6th.

I received a phone call after dinner. It was about 1:30, roughly. I was on e-mail, and the gym teacher had said … THE COURT: Well, again, you’ve got to -- A Yeah. Oh, sorry, sorry, sorry. Okay. THE COURT: -- you can’t tell us what -- A I -- I dealt with a school issue with one of the children. The phone rang. I seen it was the principal’s number again. I picked up. This was about 1:30, and I thought perhaps it had to do with the e-mail I just received from the gym teacher. And I guess I can’t say what he said, but he -- but I was commended for my ability to deal with [Mr.

C.M.]. [The principal] had to call the Division Board at that point. THE COURT: Well, again, you can’t testify to that. A Okay, I -- THE COURT: Sorry, yes, you can’t -- just, you can only testify to things that you know yourself. You can’t testify to what other people told you. And you might say, well, … if they told it to me then I know it, but the problem is, is that [Mr. C.M.’s counsel] doesn’t have the ability to ask them questions about it, about what they said to you because they are not here. Okay? A M-hm. THE COURT: Similarly -- and the rules are the same for [Mr. C.M.].

Like, he couldn’t say, well, the principal told me this about you -- A M-hm. THE COURT: -- okay, because the principal is not here for you to ask questions about that, to confirm or deny that that’s exactly what was said. A Okay. THE COURT: Okay? A Right. THE COURT: So the rules work both ways. A Yes. THE COURT: It’s just you happen to be on the stand right now, so you just -- again, and I don’t mean to keep interrupting you, but you just need to remind yourself to try and limit your testimony to your own personal knowledge about things. A Okay. THE COURT: Okay? A All right.

I received a phone call from the principal about 1:30, June 6th. I immediately went up to the school. When -- when there are events at the school that cause harm or cause -- of concern for potential harm of fellow students, there is certain protocol that must be followed by the school. The principal followed that proper protocol. The principal would have to call the Division Board. The Division Board then advises the principal on how to handle the situation when there is risk.

The principal prepared for both the father and I a letter of confirmation that the children were enrolled in [a specific school], and that I and the children resided in … order to -- you’ve got to remember this is day 4 -- in order to -- as is protocol by Division Board and the school to secure the school from having someone do something in the school. THE COURT: Your point is that the kids -- the children -- pardon me -- A Were at risk. THE COURT: -- were registered at the school, despite what [Mr. C.M.] -- A But -- THE COURT: -- had been accusing you of earlier? A -- they were at risk.

The Division Board contacted the RCMP. When the Division Board contacts the RCMP, the individual who is causing concern is not allowed to walk on school premise, so is not allowed to enter the building because there are safety concerns. So this is the letter e-mailed to [Mr. C.M.’s counsel] again letting her know what was going on at the school, and the principal provided this letter here of confirmation because he was being called every day for four days as advised by Division Board and by Division Board standards and procedures.

THE COURT: Well, so the principal sends a letter confirming that the children were registered -- A Yes. THE COURT: -- at the school? A Yes. [ 56 ] The excerpt consists of the trial judge explaining the hearsay rule to Ms. S.B. and refusing to admit the hearsay evidence she was attempting to tender. The correct application of a rule of evidence, with a reminder that both parties are subject to the same rule, cannot be the basis for a finding of a reasonable apprehension of bias. [ 57 ] The third example relates to an exchange with the trial judge regarding Ms.

S.B.’s testimony about information she had received from the RCMP. Her testimony was as follows: A Okay. Your Honour, … I would like to submit this as evidence. THE COURT: So this is a June 8th, 2019 e-mail from [Ms. S.B.] to your client.

MS. SINGER: In this case this really feels like oath helping, My Lord. She has testified that she observed him. The fact that then she says she sent an e-mail saying she observed him, there is no probative value to that. A There is because the RCMP advised me to do so in order to retain for my records. There was -- he was warned that if he drove by -- THE COURT: Well, it’s not -- but -- A -- one more time he would be charged. THE COURT: -- but hang on -- hang on -- it’s not what the RCMP told you. It’s what was occurring and what you did as a result of it. Okay.

So what you did as a result of that is you documented things by e-mail? A Yes. THE COURT: Okay. So you know, I’m going to allow it in for the narrative of what was taking place -- [ 58 ] In her submissions, Ms. S.B. describes this exchange as the trial judge contradicting her and telling her that she had not been told the things by the RCMP that she testified she was told. She characterizes the phrase, “it’s not what the RCMP told you” as the trial judge rejecting her version of events as she testified. This is a misreading of the transcript.

When the entire passage is read, it is obvious that the trial judge was attempting to separate the hearsay evidence from Ms. S.B.’s own recollections. The briefness of the trial judge’s explanation must be examined in the context of the detailed explanation regarding hearsay – set out above – that had been provided to Ms. S.B. only minutes earlier. He had also provided such an explanation numerous other times during the trial. The reference to “it’s not what the RCMP told you” was not a rejection by the trial judge that such words were said by an RCMP officer.

This simply represents the trial judge saying that Ms. S.B. cannot testify as to what the RCMP told her because it was inadmissible hearsay. It is nothing more than that. [ 59 ] In another example, Ms. S.B. alleges the trial judge falsely accused her of letting the oldest child drink, smoke marijuana and stay out all night partying. Again, this is a mischaracterization of the actual exchange as set out in the transcript: Q [By the trial judge] And in the meantime there is an order from the Court as to what is supposed to occur.

And what I don’t understand, and what I’m asking you, I’m giving you every opportunity to answer this question, is why is [the child] attending [a high school in Saskatoon] in violation of Justice Smith’s court order? A Because -- because he is 15 years old, and the -- if the father wants to pull him out of football and get him away from his friends and isolate him again, and the Court deems that fit, I don’t agree with that part. Q So you -- you say that he is there because he wants to be there? A He has absolutely no friends. We’ve gone through this through the full trial.

Q No, are you saying that he wants to be at [the high school in Saskatoon]? A Absolutely. Q Sorry, that he is there because that’s what he wants? A It has -- he’s a -- he’s an honour roll student. Q No, I didn’t ask you that, Ma’am. A Because he’s not -- Q Is he there -- A -- because of only -- Q -- because that’s where he wants to be? A -- what he -- he wants to be there, and it’s the best opportunity for him. Q And he’s -- and he’s 15? A Yes. Q Okay. So if he said to you, I want to drink alcohol, would you let him do that? A Absolutely not.

Q If he said to you, I want to smoke marihuana, would you let him do that? A Absolutely not. Q If he said to you, I want to stay out all night and party with my friends, would you let him do that? A Absolutely not. Q Then why would you let him -- A I’ve been the responsible parent. Q -- so then why would you let him be in violation of a court order? A Because it’s the best opportunity for him. Q In whose view? A In my view because there’s no extracurricular -- Q But what about -- A -- activities out there. There is no -- Q -- but did you discuss that with -- A -- friends.

There is nothing for those boys out there. [ 60 ] The trial judge was asking clarifying questions in an attempt to understand why Ms. S.B. registered the child in school in Saskatoon in violation of the existing order. He asked her if she would allow him to do other things he wished to do if they were detrimental to his best interests. It was obvious that Ms. S.B. would not allow the child to drink, smoke marijuana or stay out all night and the trial judge knew that. He wanted to know why she would not permit certain behaviour but would allow other behaviour and he received the answer.

This does not demonstrate any bias. [ 61 ] In a written submission provided after the argument of the appeal, filed with the leave of the Court, Ms. S.B. set out other examples of conduct that she asserts represent a reasonable apprehension of bias. None of the examples from above, or the other examples detailed in her written submissions, provide support for a finding of a reasonable apprehension of bias.

The examples consist of the trial judge rejecting the tendering of evidence that had no proper foundation, interrupting for the purposes of clarification or to provide directions, separating argument from evidence and properly managing the conduct of the trial. This fits well within the accepted and expected role of a trial judge. [ 62 ] While I have addressed the allegations of bias individually, it is the cumulative effect of all of these factors that I must examine to determine whether there is a reasonable apprehension of bias. In my view, there is not. An informed, objective person, viewing the

matter realistically and practically – and having thought the matter through – could not conclude that the trial judge was biased. He was not in a conflict of interest, unethical or unprofessional and did not favour one party over the other. The trial judge managed a difficult trial and interjected as necessary to ensure there was a fair trial for both parties. This ground of appeal cannot succeed. C. Adjournment of the trial [ 63 ] Ms. S.B. asserts that she did not have adequate time to prepare for the trial and, as a result, vital witnesses were not called. The record does not support this assertion.

The issue of the parenting arrangements had been outstanding for years. The fiat of Smith J. dated September 27, 2017, ordered that the matter be set down for trial. Trial dates were scheduled for January of 2018, but it was adjourned at Ms. S.B.’s request. It was then set for trial commencing May 1, 2018. At the beginning of the trial, there was a discussion among the trial judge, Mr. C.M.’s counsel and Ms. S.B. regarding Ms. S.B.’s ability and willingness to start the trial: THE COURT: All right. All right, [Ms. S.B.], are you ready to proceed today? [MS. S.B.] : I would have liked more -- a little more time.

I was waiting for a lawyer. I had classes, and the university classes didn’t get done. I did approach [Ms. G.] regarding maybe letting me -- giving me until at least June to proceed, and if the house is not an issue or cannot be heard, with that aspect of living arrangements that way. I would prefer a little more time to make sure that I’m completely prepared. THE COURT: Well, this matter was supposed to proceed in January. [MS. S.B.]: I understand. THE COURT: And you got an adjournment then. [MS.

S.B.]: I was waiting for Legal Aid, and they passed it to Legal Aid in Prince Albert who said, Well, your jurisdiction -- you are going to Saskatoon. I’m driving back and forth to Saskatoon every day … . They said, So we’re going to pass it back to … -- or I mean, Saskatoon. And then I got a hold of [Mr. K], and how it ended it up, it was, okay, I’m without a lawyer. MS. GILES: My Lord, we did receive a letter from Legal Aid advising that [Ms. S.B.] had instructed them not to represent her in the matter. THE COURT: M-hm. MS. GILES: I believe that letter is on the file. THE COURT: Yes.

I thought I saw something that [Ms. S.B.] had signed saying she was going to represent herself. MS. GILES: That is correct. [MS. S.B.]: Yes, I was instructed to. THE COURT: All right. Well, I’m not inclined to adjourn this matter again. I think that the children need some resolution of this outstanding issue of what’s the appropriate parenting arrangement, not to mention that you and the Respondent [Mr. C.M.] also need some end to this, so I -- we are going to proceed with the matter today. [ 64 ] This discussion did not reveal any significant issues that justified another adjournment of the trial. Ms.

S.B. has not sought to file fresh evidence regarding which additional witnesses she would have called, why the timelines prevented her from presenting her evidence, or the details of how she was prejudiced by the trial going ahead in May of 2018. Her bare assertion that she required more time, and would have called more witnesses had she been afforded the time to do so, is insufficient for this Court to conclude the trial was unfair or to interfere with the trial judge’s discretionary decision where he determined the granting of another adjournment was not in the children’s best interests.

This ground of appeal has no merit. D. Duty to report abuse [ 65 ]

Section 12 of The Child and Family Services Act , SS 1989-90, c C-7.2 , imposes a duty on every person to report child abuse if they have reasonable grounds to suspect it is occurring. Ms. S.B. says she was penalized by the trial judge for reporting the alleged sexual abuse in relation to her child. [ 66 ] Nowhere in the trial decision does the trial judge make any negative comment about Ms. S.B.’s initial report to the RCMP after her child allegedly told her that Mr. C.M. had sexually abused him. The only place the trial judge referred to this initial reporting is in his

summary of facts, where he stated, “The petitioner immediately phoned the RCMP”. The trial judge was concerned that Ms. S.B. continues to assert Mr. C.M. sexually abused the child, despite the investigation by the RCMP and the Ministry of Social Services and a thorough examination of the issue by Dr. Greenough, all of which found no support for this allegation. Her steadfast refusal to even consider that the sexual abuse had not occurred had some influence on the trial judge’s determinations. He refers to her ongoing belief as “not reasonable” and “misguided”.

However, at no point did he fault her for, or make any improper use of, her initial report to the RCMP. There is no merit in this ground of appeal. E. Misapprehending or ignoring evidence [ 67 ] Ms. S.B. submits the trial judge misapprehended or ignored evidence regarding critical events. She did not identify any specific evidence and, instead, relied on categories of fact finding. This includes evidence of physical and sexual abuse of the children, pornography, domestic violence, exposure to firearms that put the children’s lives at risk, concerns about alcohol consumption, and

Mr. C.M.’s violation of a court order. She further argues that the trial judge accepted expert opinion evidence from a witness not qualified as an expert. I will address Ms. S.B.’s assertions that the trial judge ignored the overall effect of the evidence regarding the children’s best interests at a later point in this judgment. [ 68 ] As a global theme, Ms. S.B. submits that the trial judge ought not to have believed Mr. C.M.’s evidence over her evidence from “various credible sources” .

She refers to the RCMP, the Ministry of Social Services, health professionals, counsellors, the Children’s Advocate, and other named and unnamed individuals as the sources of this evidence. Ms. S.B. further criticizes the trial judge for preferring Mr. C.M.’s testimony over “all of my documented evidence”. The fundamental problem with these submissions is that Ms. S.B. only called one witness in addition to herself and tendered very few documents. Her witness was a former neighbour who described her interactions with Ms. S.B. and her observations of her parenting, but did not testify about anything related to Mr.

C.M. Ms. S.B.’s oral and written submissions, her beliefs of what other people had said or concluded, and her numerous unsuccessful attempts to tender hearsay evidence did not create evidence upon which the trial judge could make findings of fact. As a result, there was no evidence to consider from her “other credible sources” because she did not tender it at trial. [ 69 ] While Ms. S.B. submits the trial judge would not allow her to call witnesses, an examination of the transcript reveals she did not attempt to call any other witnesses when she presented her case in May of 2018.

To the contrary, early on the first day, the trial judge stated, “if you want to call them as a witness you can”, when Ms. S.B. tried to tender hearsay evidence in the form of a letter from a professional. At the end of her testimony, the trial judge asked Ms. S.B. twice if she had any other witnesses to call and she answered that she did not and agreed she was closing her case. She did not ask for time to call other witnesses or indicate that she wished to do so. After the close of Mr. C.M.’s case, the trial judge explained the purpose of rebuttal evidence and Ms. S.B. declined to call any such evidence.

She was not prevented from calling evidence. [ 70 ] In her oral and written submissions to this Court, Ms. S.B. references affidavits, along with further facts, that were not presented in evidence at trial. This is also not evidence that forms part of the record of this matter. The trial judge could only evaluate the evidence that was before him, not other evidence that might exist but was never tendered. Here, that consisted of the testimony from the seven witnesses and the documents that were accepted as full exhibits at the trial. The analysis of Ms.

S.B.’s assertion that the trial judge ignored and misapprehended evidence must be restricted to an examination of that evidence. [ 71 ] Turning first to the allegations of sexual abuse of the children, Ms. S.B. refuses to accept the evidence that demonstrates Mr. C.M. did not sexually abuse his son. If anything, her beliefs have become stronger and the nature of the language she uses in her material filed with this Court has escalated. However, decisions are based on affirmed or sworn evidence not on submissions. A close reading of the transcript reveals that Ms.

S.B. did not testify, or lead any other evidence, regarding what had occurred or what any of the children had said to her with regard to sexual abuse. She testified about peripheral issues, stated that the children were in counselling related to the allegations of sexual abuse and asserted that the one child was taken for testing for hepatitis and syphilis. She also explained what she did on May 13, 2016, with regard to reporting the alleged abuse and the subsequent investigation, but never described what she alleged had occurred or what the child had told her. Ms.

S.B. testified that the RCMP, who were in contact with the Ministry of Social Services, did a full investigation. No charges were laid. [ 72 ] Mr. C.M. testified that he was never informed of the substance of the sexual abuse allegations by the RCMP. In his testimony, Mr. C.M. denied that any sexual abuse had occurred and was not cross-examined on the alleged events, except for questions about his interaction with the RCMP and his retention of a lawyer. He testified he would tickle the children while playing, which Ms. S.B. now submits constituted grooming behaviour. She did not cross-examine Mr.

C.M. about this allegation of grooming. [ 73 ] The only evidence regarding actual allegations of sexual abuse came from Dr. Greenough’s custody and access assessment report. Dr. Greenough references the allegations at pages 13, 14, 28, 29, 30 and 38 of his report. In general, Ms. S.B. alleged to Dr. Greenough that one of the children had acted sexually inappropriately with one of the others and, when she confronted him and demanded to know where he had learned such a thing and who had done the same thing to him, the child said Mr. C.M. had done it. Dr. Greenough interviewed Ms. S.B., Mr.

C.M. and the child about the allegations. He also reviewed the affidavit of a social worker who had viewed the DVD of the RCMP interview of the child. Dr. Greenough also performed psychological testing on Mr. C.M. In his report and in his testimony, Dr. Greenough opined it was unlikely that Mr. C.M. had sexually abused the child. It was his view that the child had accessed pornography on the Internet and then acted sexually inappropriately. When the child was confronted by Ms.

S.B., who forcefully demanded to know who he had learned the behaviour from, he alleged it was his father because his mother was already angry with Mr. C.M. and this was an effective way for the child to divert the blame. [ 74 ] The trial judge accepted Dr. Greenough’s explanation of how the allegations arose and found that Mr. C.M. did not sexually assault the child. This finding is well grounded in the evidence. The explanation provided by Dr. Greenough was rational. The evidence at the trial regarding sexual abuse was, at best, sparse. Ms.

S.B. did not even testify about the events or what the child had allegedly told her. The trial judge did not misapprehend or ignore any of the evidence in this regard and his finding cannot be disturbed on appeal. [ 75 ] With regard to access to pornography, Ms. S.B. submits the trial judge ignored evidence where Mr. C.M. testified that it was normal and acceptable for children as young as five-years-old to view pornography on the Internet. This is a selective misreading of Mr. C.M.’s testimony.

It was his testimony that it was normal for children to know how to use the Internet to access things they should not access because they know how to use electronics. He testified it was normal for them to be able to figure out how to do so. He did not say that it was normal or acceptable for young children to view pornography. It was simply a comment on children’s ingenuity in relation to modern technology. [ 76 ] In her factum, Ms. S.B. stated Mr. C.M. “has an extensive history of harassment, stalking and abuse” and “a long history of substance, child and domestic violence abuse”.

She repeatedly referred to the trial judge ignoring the issue of domestic violence and referenced several academic studies and articles regarding such violence in her factum. While Ms. S.B. frequently used the words abuse , stalking , harassment and domestic violence in her testimony and submissions in a conclusory fashion, there is very little evidence of any actual occurrences. [ 77 ] During her testimony, the trial judge warned Ms. S.B. to not speak in generalities when she mentioned domestic violence, but she still did not provide descriptions of any incidents of violence.

I have scoured the transcript of the testimony looking for evidence of

actual incidents of verbal, physical or emotional abuse that the trial judge may have ignored or misapprehended. Aside from the description of the allegation of sexual abuse set out above, the only testimony regarding actual events is the following: (

a) At page T107 of the trial transcript, Ms. S.B. testified about Mr. C.M. threatening suicide in 2005 while holding a loaded firearm. She did not testify that he threatened any violence towards her or their child during the incident. In his testimony, Mr. C.M. admitted this incident had occurred. (

b) At page T137, Ms. S.B. described an incident during an exchange of some of the children where Mr. C.M. called her a psychotic bitch, told her she needed a psychological evaluation and said that Dr. Greenough thought she was screwed in the head. At page T219, Mr. C.M. admitted calling Ms. S.B. that derogatory name but described a two-sided argument where each party used insulting words. At page T214, Mr. C.M. described Ms. S.B. yelling at him during exchanges and calling him a sorry excuse for a father. At page T290, Mr. C.M. admitted he yells back at Ms. S.B. when she yells at him. (

c) At page T138, Ms. S.B. stated that one specific child had been beaten with a belt, without providing any details of the circumstances of this allegation. At page T197, Mr. C.M. denied ever physically abusing Ms. S.B. or the children. He specifically denied ever using a belt to strike one of the children. (

d) At page T196, Mr. C.M. testified Ms. S.B. hated his parents and had alienated him and the children from his family. (

e) At page T197, Mr. C.M. stated Ms. S.B. would frequently threaten to end the relationship any time they disagreed on something. (

f) At page T197, Mr. C.M. testified he has never been charged for domestic violence or assault on Ms. S.B. but admitted he attended an anger management program for abusive men in 2008 or 2009. He stated he did not require the program but attended it voluntarily to appease Ms. S.B. At page T223, Mr. C.M. testified he has never been contacted by the police about any allegations of stalking or harassment of Ms. S.B. (

g) At page T197, Mr. C.M. testified Ms. S.B. has hit him multiple times; and, at page T293, he gave specific details of two separate incidents where he alleged she had hit him in the face as hard as she could. (

h) At page T198, Mr. C.M. stated that, since the separation, he has called the police a couple of times to have Ms. S.B. removed from his home after she came to his place uninvited, started a fight and refused to leave. (

i) At page T503, Ms. S.B. testified Mr. C.M. and his father continually drove past her residence on June 8, 2019. She testified that she withheld access that weekend because she believed the children were in danger of being killed. (

j) At page T504, Ms. S.B. testified that Mr. C.M.’s truck had periodically parked at the end of her friend’s driveway, where Ms. S.B. resided, in 2018 and 2019. (

k) At page T547, Ms. S.B. identified some photographs taken of her house in Saskatoon by Mr. C.M. in June of 2019. Mr. C.M. admitted he had used the Find My feature on one of the children’s iPhone to locate him in Saskatoon and took photographs of the home. He testified he did so because he wanted proof that Ms. S.B. had moved to Saskatoon again. [ 78 ] At several points during her cross-examination of Mr. C.M., Ms. S.B. described events to him and he flatly denied that he engaged in the alleged conduct. A proposition put to a witness in a question that is denied does not create evidence of the alleged event.

The trial judge made this clear to Ms. S.B. during the cross-examination. [ 79 ] Dr. Greenough assessed Mr. C.M. as not being a risk to physically abuse children. [ 80 ] In light of this evidence, it is unsurprising that the trial judge did not find that there had been verbal, physical or emotional abuse or harassment or stalking by Mr. C.M. He did find that Mr. C.M. had called Ms. S.B. a derogatory name during an exchange at Easter of 2018 and that he had observed her home in Saskatoon from the outside in June of 2019, but that was the extent of Mr. C.M.’s conduct in this regard. There is nothing that Ms.

S.B. could point to that was ignored or misapprehended by the trial judge. To the contrary, her broad assertions of abuse, harassment and stalking find no support in the evidence that was tendered at trial. [ 81 ] In her submissions on appeal, Ms. S.B. argues the trial judge ignored Mr. C.M.’s alleged drinking problem. She also makes conclusory statements in her argument about the severity and nature of his drinking. However, as seen in the record, she provided no testimony about this issue. The only actual evidence of alcohol use is Mr.

C.M.’s repeated denial of a drinking problem during cross- examination and Dr. Greenough’s conclusion that no such issue exists. The trial judge did not misapprehend or ignore this uncontradicted evidence. [ 82 ] Ms. S.B. asserts the trial judge ignored evidence regarding Mr. C.M. placing the then eight-year-old twins in grave danger by allowing them to shoot a pellet gun and a rifle. She discovered this by viewing Mr. C.M.’s Facebook page where photographs of the activity were posted.

The photographs depict the children sitting while shooting a rifle that is mounted to a tripod resting on the ground while adults stand immediately behind them. Mr. C.M. testified he allowed the children to shoot a .22 calibre rifle at a target under the close supervision of himself and the children’s uncle. He described the firearm as low calibre and low recoil. Mr. C.M. stated he and the other adult got the unloaded gun ready, had the child sit down behind it and let him get comfortable with it. Only then, would Mr.

C.M.’s brother load the rifle with a bullet and, once the rifle was aimed at the target, he would step away to let the child shoot while the adults stood over his shoulder. [ 83 ] In her evidence and submissions, Ms. S.B. characterizes this activity as “shooting high-powered rifles”, which “put them in jeopardy” or “in harm’s way”, and as “child endangerment”. She testified that she withheld access and applied to court to reinstate supervised access relying in the main on this event, which she asserted had caused the children to be in severe danger. The trial judge found as follows:

[50] On November 16 to 18, 2018, the respondent [Mr. C.M.] took [two of the children] to visit his brother and sister-in-law during hisparenting time. … While there, both boys shot targets using a pellet gun, and a .22 calibre rifle. The children used these guns under thedirect supervision of both the respondent and his brother. They were not allowed to handle the guns or load the ammunition. Once theguns were set up and ready to fire, [the children] pulled the trigger.

The children enjoyed shooting targets and later the respondent postedsome photos of them shooting on his Facebook page. … [167] After the November 2018 weekend that the respondent took [two of the children] to his brother’s farm, the petitioner [Ms. S.B.]cancelled the respondent’s parenting time. Two weeks later she brought an application to vary the respondent’s access with [the twochildren] such that it now be supervised. She alleged that allowing eight-year olds to shoot guns was child endangerment.

She said takingthe children to the … district, which was close to both the Alberta and United States borders, showed that the respondent was a flight riskwith the children. She made these arguments despite the fact that [the children] did not handle or load either the pellet gun or .22 rifle theywere using, that all the children did was sight on a target and pull the trigger, that they did this under the supervision of the respondent andhis brother and that they never went across any border nor had any intention of doing so. Not surprisingly, this application was dismissedas well.

However, from December until the application was heard in January, the petitioner withheld the children from the respondent. [84] This finding, along with an absence of any finding that this activity had placed the children in danger, is completely consistentwith all of the evidence. [85] Ms. S.B. submits the trial judge erred by accepting the expert opinion evidence of one of Mr. C.M.’s friends, M.P., who was aformer child protection worker. This is incorrect. While the trial judge did ask her several questions about her professional backgroundand

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