A.M.D. v M.R.M., 2021 SKCA 71

Court of Appeal for Saskatchewan Docket: CACV3737 Citation: A.M.D. v M.R.M. , 2021 SKCA 71 Date: 2021-05-03 Between: A.M.D. Appellant (Petitioner) And M.R.M. Respondent (Respondent) Before: Richards C.J.S., Schwann and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice Schwann On appeal from: FLD 282 of 2020, Saskatoon Appeal heard: April 20, 2021 Counsel: Ammy Murray for the Appellant Alana Wakula for the Respondent Kalmakoff J.A. I.

INTRODUCTION [ 1 ] A.M.D. appeals from a decision in which a of Court of Queen’s Bench judge made interim determinations respecting issues of custody, parenting, child support and possession of a family home ( A.M.D. v M.R.M. (19 November 2020), Saskatoon, FLD 282 of 2020 (Sask QB) [ Chambers Decision ]). [ 2 ] In broad strokes, A.M.D. contends that the Chambers judge erred by: (

i) misapprehending or failing to consider evidence that was relevant to the best interests of the child who was the subject of the application; (ii) ordering a parenting arrangement that was not in the best interests of that child; and (iii) failing to properly consider and apply the relevant provisions of The Victims of Interpersonal Violence Act , SS 1994, c V-6.02 [ VIVA ] . [ 3 ] A.M.D. also applies to introduce fresh evidence in support of her appeal. [ 4 ] For the reasons that follow, I would dismiss the applications to introduce fresh evidence. I would also dismiss A.M.D.’s appeal. II.

BACKGROUND [ 5 ] A.M.D. and the respondent, M.R.M., cohabited as spouses from the summer of 2016 until August 17, 2020. They were never married. During their period of cohabitation, they had a blended family unit. A.M.D.’s two children from a previous relationship lived with them full time. M.R.M. had a son from a previous relationship, and shared parenting with his son’s mother on an equal-time basis. M.R.M. also had parental responsibility for another child, half of the time, as a “person of sufficient interest”. [ 6 ] After the parties’ separation, A.M.D.’s children continued to live with her.

M.R.M.’s children remained in his care half-time on the same basis as had previously been the case. [ 7 ] A.M.D. and M.R.M. have one child together, Q.M., who is now nearly four years old. The Chambers Decision relates to Q.M. [ 8 ] On October 6, 2020, A.M.D. filed a petition to commence family law proceedings. She also brought an application for various forms of interim relief. Of relevance to this appeal, A.M.D. sought: (

a) sole custody of Q.M.; (

b) an order that M.R.M. only have parenting time with Q.M. under the supervision of the Family Justice Supervised Access Program; (

c) child support determined on the basis of that parenting arrangement; (

d) an order for the exclusive possession of the family home; and (

e) an order that M.R.M. be restrained from communicating with her, her two children, and Q.M., and from attending her place of work or Q.M’s daycare. [ 9 ] A.M.D.’s application was based on her assertion that M.R.M. had an ongoing problem with drug addiction and a “significant and documented history” of violence towards her and the children. She took the position that, as a result of M.R.M.’s alleged addiction

issues and violent behaviour, Q.M. would not be safe if left in his unsupervised care. She also contended that M.R.M.’s history of violent behaviour towards her and the children provided a basis for her to be granted exclusive interim possession of the family home and for M.R.M. to be restrained from contacting her or the children, in accordance with s. 7 of VIVA . [ 10 ] In support of her application, A.M.D. filed an affidavit, dated October 6, 2020. In it, she described the chronology of her relationship with M.R.M.

While A.M.D. spent a portion of the affidavit outlining M.R.M.’s drug abuse and conduct related to that, the bulk of the affidavit was devoted to what she described as “incidents of domestic violence”.

A.M.D. recounted several incidents where she alleged that M.R.M. had been physically or verbally abusive to her and/or the children, or in which he had intentionally destroyed property. [ 11 ] Attached as exhibits to her affidavit were, among other things, photographs and audio-video recordings that she said confirmed her account of the events, and a “Safety Plan” that had been prepared by a child protection worker from the Ministry of Social Services [Safety Plan] following an incident that occurred on August 17, 2020, the date of their separation. [ 12 ] A.M.D. also filed affidavits that had been sworn by her sister and her mother.

Some of what they said corroborated A.M.D.’s account of certain incidents, but much of their evidence also consisted of hearsay repetition of things A.M.D. had told them. [ 13 ] M.R.M. filed an affidavit in response, dated November 6, 2020. In it, he admitted to having previously struggled with addiction to cocaine. However, he also deposed that he had undergone counselling and, although he had relapsed on two occasions in the previous four years, those relapses had each been single instances of use and had occurred outside the family home and away from the children.

He specifically denied A.M.D.’s assertions that he had purchased drugs while the children were with him, denied her assertions that he had paid the children to lie and cover up his drug use, and denied her assertion that he had used cocaine as recently as May or June of 2020. M.R.M. also denied A.M.D.’s general assertions about his poor performance as a parent. He deposed to having always been a loving, active and involved father. [ 14 ] M.R.M. also responded to A.M.D.’s allegations that he had been violent to her and the children and that he had intentionally destroyed her or their property.

He disputed her version of the events with respect to each and every incident of domestic violence she had described in her October 6 affidavit. He flatly denied that some of the events alleged by A.M.D. had occurred.

In other instances, he admitted there had been a conflict but provided an account that was substantially different from hers. [ 15 ] For example, with respect to the August 17, 2020 incident, where A.M.D. alleged that M.R.M. had been physically violent towards her and the children, M.R.M. agreed that there had been a conflict between himself and A.M.D., but he described her as having been the aggressor.

He acknowledged that workers from the Ministry of Social Services had been called to his house to respond to this incident but, he says, the workers were concerned about the children witnessing the conflict between him and A.M.D., not about him personally posing any risk to the children. [ 16 ] In short, M.R.M. disputed or denied every significant allegation in A.M.D.’s affidavits. He also filed affidavits from his father, his mother, his sister-in-law, and his brother, all of whom said they had spent considerable time with him when he was with Q.M. and the other children.

In general terms, they all painted a picture of M.R.M. as a good and loving father. M.R.M.’s father also supported his version of the August 17, 2020 incident. III. THE CHAMBERS DECISION [ 17 ] The Chambers judge began by addressing the issues of parenting. He referred to the evidence the parties had filed in support of their positions.

He expressed concern that the bulk of the affidavit material focused on the conflict between A.M.D. and M.R.M. and their distaste for each other, rather than on the interests of Q.M. [ 18 ] The Chambers judge also commented that he was not favourably impressed by some of the evidence A.M.D. had filed.

In particular, he referred to surreptitious recordings that A.M.D. had attached as exhibits to her affidavit, observing that the filing of such evidence is generally discouraged in family law proceedings because “[s]eldom is the probative value greater than either the prejudicial effect or the deleterious impacts upon the litigation generally” (at para 28).

Citing a number of authorities, including D.(W.L.) v D.(R.C.) , 1999 SKQB 178 , the Chambers judge went on to explain why, even though he was not prepared to strike the recordings entirely, he attached little weight to them and encouraged the parties to refrain from the use of such tactics in the future. [ 19 ] In the end, the Chambers judge ordered joint custody, with the parties to share parenting of Q.M. on a week-on, week-off basis. M.R.M.’s parenting time with Q.M. was to coincide with the weeks that he also had his other two children.

The Chambers judge made this order because he was not persuaded, based on the evidence, that a parenting arrangement other than joint custody with shared parenting was warranted on an interim basis. In that respect, he said: [37] So, what to do about [Q.M.]? The evidence is not of a nature to move me beyond interim joint custody. The order proposed by the mother would relegate the father to being something akin to a bystander, a visitor, in [Q.M.]’s young life.

The material does not justify such a move, certainly not on an interim basis. [38] The material also does not satisfy me that the father is a danger to [Q.M.]. There is no basis for me to order supervised access. Frankly, neither party is without flaws. That is true of parents generally, and it is certainly true in two-parent households. Separation does not transform the standard for parenting to one of perfection. The evidentiary base to support a supervised access order is lacking. [39] There is conflict between the parties and a dispute on virtually every “fact”, all reflected in their material.

Still, the parties should behave as adults and set aside any personal animosity to ensure what is best for [Q.M.]. The mother’s plan, which is essentially to sideline the father as a parent, would have the additional or collateral effect of interfering with [Q.M.]’s sibling relationships. Clearly, the mother has not thought this through from the perspective of what is best for [Q.M.]. [40] Having regard to the factors set out in s. 8 of The Children’s Law Act , 1997 (and struggling with the fact that neither party seemed to

wish to adduce evidence bearing upon those factors) I am convinced that at least on an interim basis joint custody is the appropriate parenting disposition, and I so order. Further, I direct that [Q.M.] spend time with each parent on a week on, week off basis. The weeks with her father shall coincide with the weeks on which he has care of his other children. I am also directing a review after a period of time, which will not be in the nature of a variation but rather a review of how things have gone to that date. That review will come back before me.

The details are set out at the end of this fiat. [ 20 ] The Chambers judge also determined that the interim parenting order would be subject to review upon the application of either party at any time after the end of February 2021, and that he would remain seized with the matter until May 15, 2021. [ 21 ] The Chambers judge then addressed the issue of child support. He determined the parties’ respective annual incomes and calculated their corresponding child support obligations under s. 3 of the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ].

Then, having regard to the determination he had made with respect to parenting, i.e., each parent having Q.M. roughly 50% of the time, he concluded that it was appropriate to calculate child support by offsetting the two amounts. He also ordered that each party be responsible for their income-proportionate share of s. 7 expenses. [ 22 ] Next, the Chambers judge dealt with A.M.D.’s application for exclusive possession of the family home.

After canvasing the governing legal principles and analysing various factors in light of them, he determined that “[o]n balance, it makes the most sense to allow the father interim exclusive possession of the family home and contents” (at para 59). He explained his reasoning for that conclusion, in part, as follows: [58] I have carefully considered ss. 4 to 7 of The Family Property Act as well as the case authorities on point. This consideration has been conducted in the context of the evidence placed before me. The following facts are influential in this case: (

a) The parties are “warring”. I cannot definitively find there has been interpersonal or intimate partner violence but there may have been . What is certain is that the relationship between these parties is now totally dysfunctional. Clearly these parties cannot share the home. (

b) This was a relationship of comparatively short duration having begun at the end of February 2016, with cohabitation apparently commencing around August 2016 and terminating in August 2020. (

c) The family home was owned jointly by the father and his mother prior to the parties commencing cohabitation. The father used the home for parenting the other children whom he cares for prior to his relationship with the mother. Not only the father, but the other children in his care, have a greater “history” with the home. (

d) The only child directly in issue before me on this application is [Q.M.]; still, I cannot ignore the other children and their needs. Every child involved in this matter needs a home. (

e) The spouses have not conducted themselves in an appropriate manner toward one another. Both parties have personal issues. Both have said and done things they should regret. Neither has behaved in a stellar fashion toward the other party. (

f) However, based on the material before me I conclude that both parties love [Q.M.] and love the other children in their care. I cannot conclude that either has behaved exceedingly poorly toward the children. Specifically, on this evidence I cannot conclude the father has been physically abusive to the children. That is a matter for trial. … (Emphasis added) [ 23 ] Finally, the Chambers judge addressed A.M.D.’s application for a restraining order. He determined that the full scope of relief she sought would not be appropriate in light of the parenting order he had made.

Of key importance to that conclusion was his assessment of the quality of the evidence before him. In that respect, he said: [60] Both parties allege violence and other bad behaviour on the part of the other. Neither has conducted himself or herself in an admirable fashion. Both need to set aside these disputes, some of them quite petty, and act in a mature adult fashion for the benefit of the children involved.

It is my hope for these parties that with time the clouds of hurt and fury will part, and reason will once more shine through. [61] I do find it troubling that there are allegations the children are afraid of the father. But once again, I am only dealing with [Q.M.] on this application and any evidence that she may be scared of her father is equivocal.

I understand the mother has her view of it but I am not about to make such findings at an interim stage on the type of evidence that is now before me. [ 24 ] In the end, the Chambers judge ordered that neither A.M.D. nor M.R.M. attend at the residence or workplace of the other except as necessary for parenting exchanges of Q.M. and also that they refrain from “harass[ing], annoy[ing] or belittle[ing]” each other, especially in front of the children (para 69(7)). IV.

THE GROUNDS OF APPEAL [ 25 ] In her factum and oral submissions, A.M.D. advances three grounds of appeal. [ 26 ] First, she contends that the Chambers judge misapprehended or failed to consider evidence relevant to the determination of Q.M.’s best interests. Here, A.M.D.’s complaint is that the Chambers judge ignored evidence she says overwhelmingly supported her contention that M.R.M. was a danger to Q.M. because of his history of drug abuse and violence in the home.

While A.M.D. acknowledges the constraints on a Chambers judge’s ability to determine contested factual matters on the basis of affidavit evidence, she contends that the case she presented was so compelling that the Chambers judge could not have reached the conclusion that he did unless he ignored or

misunderstood key pieces of evidence. [27] Second, she asserts that the Chambers judge erred in law by ordering a parenting arrangement that was not in Q.M.’s bestinterests. Her complaint in this regard is that, in addition to ignoring what she says was clear evidence that Q.M. is not safe in M.R.M.’scare, the Chambers judge also failed to properly take into account the parenting arrangement that had existed prior to the parties’separation, namely that she had always been the “primary” parent.

As such, she argues, the shared parenting arrangement ordered by theChambers judge amounts to a significant change that is not in Q.M.’s best interests. [28] Third, A.M.D. says the Chambers judge erred by failing to properly consider and apply relevant provisions of VIVA. Althoughshe no longer seeks an order for exclusive possession of the family home, A.M.D. continues to assert that the Chambers judge’s failure toconsider whether she was entitled to relief on the basis of s. 7(1)(

a) of VIVA demonstrates that he failed to properly consider the evidenceof domestic violence in determining Q.M.’s best interests. [29] A.M.D. submits that, as a result of these errors, this Court should set aside the parenting order made by the Chambers judgeand replace it with an order that gives her sole custody and decision-making authority for Q.M. and provides that M.R.M. have onlysupervised parenting time. She also asserts that a corresponding adjustment to the child support order would be required to reflect thechange in the parenting arrangement. V. ANALYSIS A.

Standard of review [30] This Court has repeatedly held that the standard of review applicable to appeals from interim parenting orders is narrow inscope and deferential in nature. In M.H. v H.S., 2019 SKCA 122 [M.H.], Tholl J.A. wrote that, in such appeals: [8] This Court will not intervene in interim parenting orders unless the Chambers judge erred in principle, overlooked ormisapprehended relevant evidence or the decision is clearly wrong: Russell v Russell, 2018 SKCA 80at para 12, 16 RFL (8th)26 [Russell].

The error must be of such a nature that it compels reversal of the order: Graham v Tomlinson, 2010 SKCA 101 atpara 15, 324 DLR (4th) 156. [31] This standard of review presents what has variously been described as a “difficult task” (M.H. at para 7), a “high hurdle” (Wyattv Reindl, 2020 SKCA 36 at para 11, 36 RFL (8th) 253), and a “significant hurdle for an appellant to clear” (Gebert v Wilson, 2015 SKCA139 at para 8, 467 Sask R 315 [Gebert], citing Bolan v Bolan, 2013 SKCA 84 at para 9, 417 Sask R 265).

In Bolan v Bolan, 2013 SKCA97, 423 Sask R 151, Caldwell J.A. explained the rationale behind the deferential approach to appeals from interim parenting orders, withreference to the context of the proceedings in which they arise: [6] … An interim custody order is a temporary balance which a Queen’s Bench chambers judge must strike after weighing theobjectives and factors set out in the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (or in The Children’s Law Act, 1997, S.S. 1997, c. C-8.2)on the basis of limited affidavit evidence.

It is, therefore, fact-based and discretionary in nature; and, as such, an appellate court will giveconsiderable deference to a chambers judge’s decision as to interim custody and parenting (See: Van de Perre v. Edwards, 2001 SCC60, [2001] 2 S.C.R. 1014, and Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518). In Jochems v. Jochems, 2013 SKCA 81,Richards C.J.S. recently described the standard in these terms at para. 23: “Simply put, that standard involves a considerable measure ofdeference to the decision-making of the Chambers judge.

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

Tomlinson, 2010 SKCA 101, 324 D.L.R. (4th) 156; Lapoor v.Navidi, 2000 SKCA 95, 14 R.F.L. (5th) 125; Dauk v. Law, 2005 SKCA 145, 275 Sask. R. 158; Phillips v. Shergold, 2009 SKCA131; Pawar v. Pawar, 2010 SKCA 134 (chambers), 366 Sask. R. 18; and Foss v. Foss (1991), (SK CA), 31 R.F.L. (3d)367 (Sask. C.A.).

As Jackson J.A. said in Hall at para. 1: “[i]n most cases, the interests of the parties, and the children, are best served byproceeding quickly to the pre-trial settlement conference stage rather than expending time and scarce resources on an appeal from aninterim order.” [32] In short, the approach to appellate review of an interim custody is “delimited and narrow, calling for the appellate court toafford a considerable measure of deference to the decision-making that led to the order in question” (K.G.K. v L.T.K., 2021 SKCA 12 atpara 4). B.

The fresh evidence applications [33] A.M.D. applies to introduce two affidavits – one sworn on January 15, 2021, the other on April 19, 2021 – as fresh evidence onthe appeal. In both, she alleges that, since the Chambers Decision was rendered, Q.M. has suffered suspicious and unexplained injurieswhile in M.R.M.’s care. This evidence, she says, is credible, relevant, and potentially dispositive of the question of whether the parentingarrangement imposed by the Chambers judge is in Q.M.’s best interests.

M.R.M. opposes the admission of this evidence; he says it is noneof those things. [34] On a number of occasions, this Court has confirmed that the test for the admission of fresh evidence is somewhat flexible whenthe best interests of a child are at stake. Such evidence will be admitted on an appeal that engages the best interests of a child where: (

a) the evidence could not have been adduced before;

(

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

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

d) the evidence is credible. See, for example: M.H. at para 10 ; Riel v Riel , 2017 SKCA 74 at para 15 , 99 RFL (7th) 367; C.L.B. v J.A.B. , 2016 SKCA 101 at para 22 , 484 Sask R 228 [ C.L.B. ]; and Babich v Babich , 2020 SKCA 25 at para 29 . [ 35 ] In my view, even applying the more flexible approach required in the circumstances, neither of the affidavits A.M.D. seeks to tender are properly admissible as fresh evidence. Let me explain. [ 36 ] The January 15, 2021 affidavit makes reference to three events. The first involved A.M.D. observing a bruise on Q.M.’s forehead.

She deposes that, when she noticed this bruise, she questioned M.R.M. about it, and he told her that Q.M. had bumped into his son when they were playing at his house. She said that his son had given her a different account of how the bruise occurred, and that Q.M. had told her she did not know how it happened. The second incident involved A.M.D. seeing a bruise on Q.M.’s ear after she had been in M.R.M.’s care on a different occasion.

She deposed that Q.M. told her she did not know where the bruise had come from and that M.R.M. offered no explanation for the bruise and, in fact, claimed not to have noticed it. [ 37 ] With regard to the third incident described in this affidavit, A.M.D. deposes that a worker at Q.M.’s daycare had told her that he had been informed that a colleague of his had smelled alcohol on M.R.M.’s breath when M.R.M. came to pick Q.M. up from daycare on December 30, 2020. [ 38 ] This affidavit fails the test for admission as fresh evidence for at least two reasons.

First, although the evidence that A.M.D. observed injuries to Q.M. is credible, it is not potentially decisive as to Q.M.’s best interests. There is no direct evidence that either of the injuries described in this affidavit were anything other than accidental in nature or if they were in any way connected to M.R.M. Nor do the circumstances convincingly suggest a different conclusion.

As Tholl J.A. observed, in commenting on this affidavit when it was before him in Chambers ( M.R.M. v A.M.D. (18 January 2021) Regina, CACV3737 [ CA Chambers Fiat ]): [35] The further incidents described by [A.M.D.] do not change the situation. They present additional examples of the same type of controverted evidence that was in front of the Chambers judge. The bruise on [Q.M.]’s forehead was not blamed on [M.R.M.] by [Q.M.], despite repeated questioning by [A.M.D.]. [M.R.M.] provided a plausible explanation for the injury.

The six-year-old child’s subsequent failure to take responsibility for the incident cannot be given any weight. The second bruise, while more concerning, is the subject of highly contradictory evidence. The parties both say the bruise did not occur while in their care and there is no way to resolve that issue in this application …. [ 39 ] Second, the proposed evidence relating to the incident involving the daycare worker is double hearsay. The worker’s account is contained in a written recording that A.M.D. has attached as an exhibit to the affidavit.

It does not meet the criteria for admission as a business record and, moreover, it is not even a record of the worker’s own observation, but rather an account of what another person had told him about her own observations. Moreover, the daycare worker’s account, as Tholl J.A. noted in the CA Chambers Fiat, does not suggest that M.R.M. was intoxicated or describe any behaviour on his part associated with impairment (at para 35).

Even if this were admissible as evidence in first instance (which is doubtful), it is difficult to see how it would be potentially decisive with respect to the question of Q.M.’s best interests. [ 40 ] In her April 19, 2021 affidavit, A.M.D. describes several more incidents in which she says she observed suspicious bruising or other minor injuries on Q.M. after she had been in M.R.M.’s care. On each occasion, A.M.D. deposes that when she asked Q.M. about how the injuries had occurred, Q.M. said she had fallen off the couch.

A.M.D. also deposes that when she confronted M.R.M. about the injuries, he either denied knowledge of how they had occurred or simply refused to engage in the discussion. The text exchanges that A.M.D. attached as exhibits to this affidavit also show that M.R.M. assured her that the children were safe with him and requested that she stop harassing him with “unfounded allegations”.

A.M.D. also deposes that, on March 4, 2021, she reported the matter to Child Protection Services, but does not know what became of her complaint to them. [ 41 ] In my view, the April 19, 2021 affidavit also fails to meet the test for admission as fresh evidence. As is the case with the January 15, 2021 affidavit, it is evidence that, while potentially relevant, is not particularly compelling. It does not persuasively support the inference that Q.M. is in danger in M.R.M.’s care and, therefore, is not it potentially dispositive of the question of Q.M.’s best interests.

As such, the affidavit is not properly admissible on appeal. [ 42 ] In the result, A.M.D.’s application to introduce fresh evidence must be dismissed. C. The alleged errors in the Chambers Decision 1. Misapprehending or failing to consider relevant evidence [ 43 ] The Chambers judge concluded that the evidence was not sufficient to satisfy him that M.R.M. was a danger to Q.M., such that an order restricting him to supervised parenting time was necessary. A.M.D. takes the position that this conclusion was the product of material error on the part of the Chambers judge.

She argues that he misapprehended or ignored relevant and cogent evidence related to the danger that M.R.M. posed to Q.M.’s safety and, as a result, rendered a decision that was clearly wrong. While A.M.D. takes issue with the Chambers judge’s assessment of the evidence as a whole, she focuses on three particular aspects of it that she says the Chambers judge failed to consider (

i) the audio-video recordings she filed as exhibits to her affidavit; (ii) the Safety Plan; and (iii) the affidavits filed by her sister and her mother. [ 44 ] As I will explain, I am not persuaded that the Chambers judge erred as A.M.D. alleges.

[ 45 ] It is useful to begin this portion of the analysis by observing that, when making an interim custody order, a Chambers judge has the authority to limit a parent to supervised access when it is in the best interests of the child to do so. But it is not an authority that should be exercised lightly. Supervised access should only be required where, based on the totality of the evidence, there is a real risk of abuse or danger to a child if access is unsupervised.

While the Court must exercise a degree of caution when making parenting orders in the face of allegations of abuse, this does not equate to a requirement that the alleged risk be alleviated by ordering supervised parenting as a default, without critically evaluating the evidence ( C.L.B. at paras 44–48 ). [ 46 ] Responding directly to A.M.D.’s arguments under this ground of appeal, I am not persuaded that the Chambers judge misapprehended or failed to consider the specific parts of the evidence she mentions. [ 47 ] While it is beyond dispute that a judge is required to consider all of the evidence in making a decision, this does not mean a judge is obligated, in the process of giving reasons for judgment, to refer to every item of evidence, detail the way in which it was assessed, or prove that he or she was alive to and considered all of the evidence (see: A.M. v Ministry of Social Services , 2020 SKCA 114 at para 81 ).

The failure to address each and every aspect of the evidence in written reasons does not automatically open the door to appellate intervention ( Coward v Kramer Ltd. , 2018 SKCA 63 at para 85 ). Appellate courts begin from the presumption that the judge hearing the matter in first instance has considered and reviewed all the evidence ( Northrock Resources v ExxonMobil Canada Energy , 2017 SKCA 60 at para 10 , [2017] 12 WWR 369 ) . [ 48 ] In this case, the Chambers judge clearly explained, in paragraphs 5 to 13 of the Chambers Decision , that he had read all the material filed by the parties.

He catalogued what that material was. The Chambers judge also referred to various portions of the affidavits throughout his decision.

Granted, he did not parse out or specifically mention all of the things A.M.D. had said in her affidavit (or the exhibits to which she referred), but this alone does not compel the conclusion that he ignored any material portion of her evidence. [ 49 ] As for the audio-video recordings, A.M.D. contends that they were clear evidence of violent and assaultive behaviour by M.R.M., and says the fact that the Chambers judge did not explicitly address the recordings in his reasons means he either misapprehended or ignored them. I do not accept this argument.

The Chambers judge addressed the recordings explicitly in his reasons . He explained why, in his view, the practice of one party surreptitiously recording the other in family law proceedings should be discouraged.

Part of that reasoning was, as he stated in paragraph 31, that the recordings A.M.D. sought to tender as evidence did not appear to meet the requirements for admission, namely that they be shown to be authentic, unaltered, relevant and probative. [ 50 ] While the Chambers judge did not “strike” the recordings from the evidentiary record, it is apparent that, because of these shortcomings, he chose to give them little weight. Having examined the recordings, I am not persuaded that there is any basis to interfere with his decision in that respect.

The recordings contain no video depiction of any relevant conduct by M.R.M. The audio portions captured only have evidentiary value to the extent they are interpreted or explained through the narrative provided by the parties. A.M.D. provided one version of the narrative in her affidavit; M.R.M. provided a conflicting version in his. It is therefore unsurprising that the Chambers judge did not see this evidence as being sufficiently probative to enable him to resolve that conflict.

While the Chambers judge could have addressed the substance of this evidence more directly in his reasons, a fair reading of those reasons illustrates that he did not find the recordings helpful in resolving the conflicts in the affidavit evidence at large. I see no basis to find that he reached that conclusion by ignoring or misapprehending the recordings themselves. [ 51 ] The same can be said for the Safety Plan. This document was apparently prepared by a worker from the Ministry of Social Services who attended the parties’ residence following the incident of August 17, 2020.

It appears to record the social worker’s accounting that, after the worker had spoken to A.M.D. and the children, she was concerned that M.R.M.’s actions were putting the children at risk, and that a safety plan was necessary. The Chambers judge did not directly address this piece of evidence in his reasons. However, also in evidence, as an attachment to M.R.M.’s affidavit, was a letter dated September 16, 2020, from a child protection worker who stated that, after a full investigation into the matter, the Ministry of Social Services had closed its file and determined that no more services were required.

In effect, the letter suggested that the concerns underlying the Safety Plan had been resolved. In light of this, it is understandable that the Chambers Judge did not see the Safety Plan as tilting the balance in the direction A.M.D. suggests it should have.

Even though the Chambers judge did not directly address the evidence of the Safety Plan in his reasons, I am not persuaded that there is a basis to conclude that he disregarded or misapprehended it in his analysis. [ 52 ] As for the affidavits of A.M.D.’s sister and mother, the Chambers judge’s reasons demonstrate that he did not ignore this evidence; he addressed their affidavits directly in paragraph 33 of the Chambers Decision.

While he did not go into the details of those affidavits, I read his reasons as indicating that he simply did not find them helpful in resolving the conflicts on the important factual matters in play.

Perhaps he could have provided a clearer explanation than he did for reaching that conclusion, but I see no error in his treatment of this evidence that warrants intervention. [ 53 ] Reading the Chambers judge’s reasons as a whole, it is apparent he found that the “evidentiary base to support a supervised access order [was] lacking” in large measure because he determined that there was “conflict between the parties and a dispute on virtually every ‘fact’” described in their affidavit material and the quality of the evidence did not permit him to resolve that conflict ( Chambers Decision at paras 38–39).

As a result, he found himself unable to conclude that there had been any interpersonal or intimate partner violence (para 58(a)), or that M.R.M. had been physically abusive to the children (para 58(f)). He also found, notwithstanding the evidence of M.R.M.’s past drug use, that there were “barely any references to the children or the effects of any drug use on the children, notably [Q.M.]” (para 24). I am not persuaded that any of these findings were the result of the Chambers judge misapprehending or failing consider relevant evidence.

Nor, for that matter, do I find any palpable error in the way the Chambers judge dealt with the evidence as a whole. This ground of appeal cannot succeed. 2. Ordering a parenting arrangement that was not in Q.M.’s best interests [ 54 ] The paramount consideration for a judge, when making any type of parenting order, is the best interests of the child or children involved. [ 55 ] When the Chambers Decision in this matter was rendered, the “best interests” requirement was contained in ss. 8 and 9 of The Children’s Law Act, 1997 , SS 1997, c C-8.2 [ CLA 1997 ], which provided, in relevant part, as follows:

8. In making, varying or rescinding an order for custody of a child, the court shall: (

a) have regard only for the best interests of the child and for that purpose shall take into account: (

i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have a close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (

v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; (

b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child; and (

c) make no presumption and draw no inference as between parents that one parent should be preferred over the other on the basis of the person’s status as a father or mother. 9(1) In making, varying or rescinding an order for access to a child, the court shall: (

a) have regard only for the best interests of the child and for that purpose shall take into account: (

i) the quality of the relationship that the child has with the person who is seeking access; (ii) the personality, character and emotional needs of the child; (iii) the capacity of the person who is seeking access to care for the child during the times that the child is in his or her care; and (iv) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; and (

b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to care for the child during the times that the child is in his or her care. [ 56 ] A.M.D. asserts that the Chambers judge made two crucial errors in resolving the parenting issue, resulting in an order that was not in Q.M.’s best interests. First, she says, he failed to give proper effect to the evidence of M.R.M.’s violent conduct in the home, especially in light of the provisions of The Children’s Law Act, 2020 , SS 2020, c 2 [ CLA 2020 ].

Second, she contends that he failed to give adequate consideration to the parenting arrangement that had existed before the parties separated. As I will explain, I would not give effect to either of these arguments. [ 57 ] Family violence is undoubtedly a relevant consideration in determining a child’s best interests for the purposes of a parenting order (see: Ackerman v Ackerman, 2014 SKCA 86 at para 41 , [2014] 10 WWR 429).

A.M.D. contends that the Chambers judge failed to properly consider the impact of M.R.M.’s violent behaviour in the home when assessing Q.M.’s best interests and that, by doing so, he failed to follow the express direction contained in s. 10 of the CLA 2020 . The point of A.M.D.’s submission here is that s. 10(3)(

j) and s. 10(4) of the CLA 2020 explicitly require a judge to consider family violence and its impact on the best interests of the child when making a parenting order. No such explicit instruction existed in the CLA 1997. It is arguable that this change in the legislation crystallizes the obligation of a judge, when making a parenting order, to consider the impact of domestic violence in a more thorough fashion than had previously been the case. A.M.D. says the Chambers judge failed to meet that obligation. [ 58 ] There are two key problems with A.M.D.’s submission on this front.

The first is that the CLA 2020 did not come into force until March 1, 2021, well after the Chambers Decision had been rendered. A failure to give effect to legislation that was not yet in force does not constitute error. [ 59 ] The second, and more fundamental, problem with A.M.D.’s submission is that it overlooks the Chambers judge’s conclusion that he could not make a finding of fact on the basis of the controverted evidence before him, that there had been interpersonal or intimate partner violence on M.R.M.’s part. Nor was he able to conclude that M.R.M. had been physically abusive to any of the children.

As I set out earlier, there is no basis to interfere with the Chambers judge’s factual determinations on that front. [ 60 ] In light of that, I am not persuaded that the Chambers judge failed to give proper consideration to family violence and M.R.M.’s role in it when determining Q.M.’s best interests for the purposes of making a parenting order. Violence in the home cannot be condoned, and judges must treat allegations of violent conduct involving intimate partners or children with care when making parenting orders.

The difficulty for A.M.D. in this case was that the evidence about such matters was disputed and the Chambers judge found that he was not in a position to make credibility findings or findings of fact about her assertions.

The applicable standard of review affords a considerable measure of deference to the decision-making of the Chambers judge in that respect and, in the circumstances, does not permit this Court to interfere with his conclusion. [ 61 ] A.M.D.’s second line of argument under this ground of appeal is that the Chambers judge failed to give adequate consideration to the parenting arrangement that had existed before the parties separated.

She asserts that she had been Q.M.’s “primary parent” prior to separation and that the Chambers judge erred by imposing a parenting arrangement that improperly departed from this status quo .

[ 62 ] There is no question that the quality of a child’s relationships with his or her parents must be considered when evaluating the best interests of the child ( CLA 1997 , ss. 8(a)(

i) and 9(1)(a)(i)).

Where a relationship of “primary parent” is found to exist, it is an error of law to fail to consider that factor and to give it the emphasis it requires but “it remains one factor amongst many and should not be elevated to the point of creating a presumption or a priority status over the other parent” ( T.B.S. v S.J.B. , 2020 SKCA 93 at para 38 , 45 RFL (8th) 148). [ 63 ] It is also fair to say that while interim parenting orders often strive to maintain the status quo in terms of parenting arrangements, the governing consideration is always the best interests of the child ( Gebert at paras 11–13 ; Schedlosky v Weber , 2016 SKCA 158 at para 6 ).

Status quo is but one factor in that equation ( K.R. v J.K., 2018 SKCA 35 at para 69 ). Of course, determinations about the nature of the status quo and who, if anyone, is the primary parent, must be based on evidence.

Where both parents are available and involved, there is no presumption in favour or against either in that regard ( CLA 1997 , s. 8(c)). [ 64 ] In this case, contrary to what A.M.D. asserts, the affidavit evidence regarding the specific parenting arrangements that existed before the parties separated was relatively limited and did not provide a clear basis upon which to conclude that she had been the primary parent to Q.M. As I read that evidence, it is capable of supporting a conclusion that both A.M.D. and M.R.M. were actively involved in parenting Q.M. prior to separation.

Bearing in mind the discretionary nature of the decision under appeal and the deferential standard of review it attracts, I am not persuaded that the Chambers judge’s decision to order shared parenting reveals an error that would permit this Court to intervene. [ 65 ] Accordingly, I would reject this ground of appeal. 3. Failing to properly consider and apply the relevant provisions of VIVA [ 66 ] A.M.D.’s final ground of appeal is that the Chambers judge failed to properly consider and apply relevant provisions of VIVA .

Specifically, she points to s. 7(1) , which reads, in relevant part: 7(1) If, on application, the court determines that interpersonal violence has occurred, the court may make a victim’s assistance order containing any or all of the following provisions: (

a) a provision granting the victim and other family members exclusive occupation of the residence, regardless of ownership; (

b) a provision restraining the respondent from attending at or near or entering any specified place that is attended regularly by the victim or other family members, including the residence, property, business, school or place of employment of the victim or other family members; … [ 67 ] While A.M.D. no longer seeks exclusive possession of the family home, she maintains her position that the Chambers judge erred by failing to take s. 7 of VIVA into account in making the orders that he did. This argument must also be rejected.

As the wording of s. 7(1) clearly states, the door to making an order under that provision is only opened if “the court determines that interpersonal violence has occurred”. The Chambers judge found that he was unable to make that determination on the basis of the evidence before him. I have determined that there is no basis to disturb that finding in the context of this appeal. Absent that factual underpinning, the fact that the Chambers judge did not give effect to, or engage in further analysis of, the provisions of VIVA does not constitute error. [ 68 ] Accordingly, this ground of appeal fails as well. VI.

CONCLUSION [ 69 ] For the foregoing reasons, A.M.D.’s appeal must be dismissed. M.R.M. was successful on the appeal, successful in opposing the application for fresh evidence, and successful on the application to lift the stay. He is entitled to costs with respect to each.

Bearing in mind the evidence respecting the parties’ incomes, I fix those costs at $1,000, broken down as follows: $500 on the appeal, and $250 for each of the applications. [ 70 ] Like the Chambers judge, I am of the view that the interests of the parties and Q.M. would be well-served by having a final determination made in this matter in a timely way. In that vein, I encourage the parties to move this matter on to pre-trial conference as quickly as possible.

I would also note that, as set out in paragraphs 40 and 69(3) of the Chambers Decision , the interim parenting arrangements ordered by the Chambers judge are subject to review on the application of either party. This is not to suggest that either party should do anything other than proceed expeditiously to pre-trial, but it does provide a possible method for addressing concerns that may arise in the meantime. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Schwann J.A.” Schwann J.A.