T.C. v A.E., 2021 SKCA 79

Court of Appeal for Saskatchewan Dockets: CACV3648 and CACV3691 Citation: T.C. v A.E. , 2021 SKCA 79 Date: 2021-05-20 Docket CACV3648 Between: T.C. Appellant (Respondent) And A.E. Respondent (Petitioner) Docket CACV3691 Between: A.E. Appellant (Petitioner) And T.C. Respondent (Respondent) Before: Jackson, Barrington-Foote and Tholl JJ.A. Disposition: Appeals dismissed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Madam Justice Jackson In partial dissent: The Honourable Mr.

Justice Barrington-Foote On appeal from: FLD 106 of 2020 (QB), Regina Appeal heard: December 2, 2020 Counsel: E.F. Anthony Merchant, QC, for T.C. Reginald Sauer and Joanne Moser, Q.C., for A.E. Tholl J.A. I. Introduction [ 1 ] Mr. T.C. and Ms. A.E. are the parents of five-year-old H.E. On May 28, 2020, an interim order was granted by a judge of the Court of Queen’s Bench placing H.E. in Ms. A.E.’s primary care: A.E. v T.C. (28 May 2020) Regina, FLD 106 of 2020 (Sask QB) [First Order]. Mr. T.C. appealed that decision.

On August 14, 2020, a second interim order was granted by a different judge of the Court of Queen’s Bench under which shared parenting and the payment of child support were ordered: A.E. v T.C. (14 August 2020) Regina, FLD 106 of 2020 (Sask QB) [Second Order]. Ms. A.E. appealed that decision. The two appeals were heard together. [ 2 ] For the reasons that follow, it is my view that both appeals must be dismissed. II. Background to the First order [ 3 ] H.E. was born in 2015. Ms. A.E. is his biological mother. His biological father is not involved in the child’s life. Ms. A.E. and Mr.

T.C. began a relationship at some point in the period of November of 2016 to March of 2018, became engaged in the spring of 2018, and began residing together in either March or May of 2018. Mr. T.C. adopted H.E., with the order of adoption being granted on March 12, 2020. [ 4 ] Ms. A.E. averred the relationship ended in August of 2019, when she rented a separate residence, while Mr. T.C. claimed it ended at approximately the end of April or beginning of May of 2020. In any event, by early May of 2020, the parties were no longer residing together and each was having parenting time with H.E.

On May 8, 2020, after a five-day period of having the child in his care, or in the care of grandparents, Mr. T.C. refused to return him to Ms. A.E. In his affidavit, Mr. T.C. admitted he would not return H.E., but stated he did so because of Ms. A.E.’s alleged drug and alcohol use and associated irrational behaviour. Ms. A.E. was able to spend a few minutes with H.E. on May 11, 2020, but Mr. T.C. continued to refuse to return him to her care. She denied the allegations of problematic substance use. [ 5 ] On May 15, 2020, Ms.

A.E. filed a petition in which she sought joint custody and primary residency of H.E., reasonable access for Mr. T.C. and child support. Concurrent with the petition, she filed an application seeking an order placing H.E. in her primary care, an order that Mr. T.C. deliver H.E. to her care forthwith and police assistance in the enforcement of the return order. At the argument of the application, each party contended they were the primary parent.

[ 6 ] On May 28, 2020, in the First Order, a Court of Queen’s Bench Chambers judge [First Chambers Judge] issued his reasons and granted an interim order, which I summarize as follows: (

a) Mr. T.C. shall return H.E. to Ms. A.E. no later than 4:00 p.m. on May 29, 2020; (

b) H.E. shall reside primarily with Ms. A.E.; (

c) Mr. T.C. shall have reasonable parenting time as agreed between the parties or otherwise ordered by the court; and (

d) neither party shall consume alcohol or non-prescription drugs for 24 hours prior to H.E. being in their care or at any time he is in their care. [ 7 ] In his reasons for granting the First Order, the First Chambers Judge found the following: [2] [Ms. A.E.] is the biological mother of [H.E.] and she and [Mr. T.C.] were in a common-law relationship in 2018–2019. [Mr. T.C.] is the adoptive father of [H.E.]. [3] After their common law relationship ended both parties spent time with [H.E.], but they dispute who plays a larger role in [H.E.’s] life.

After reviewing the evidence, however, I am satisfied that after separation the primary residency of [H.E.] was with [Ms. A.E.]. … [6] After considering all of the evidence, I appreciate there are flags which have been raised about certain behaviours of [Ms. A.E.], but I am not persuaded that these flags, at this particular point in time, justify an abrupt and dramatic change to the parenting of [H.E.]. I am not satisfied these flags warrant an order changing the primary residency of [H.E.] from [Ms. A.E.’s] residence to that of [Mr. T.C.]. [ 8 ] Mr. T.C. returned H.E. to Ms.

A.E.’s care on May 29, 2020, as ordered. [ 9 ] Mr. T.C. sought leave to appeal the First Order, but Kalmakoff J.A. dismissed the application because leave was not required under s. 8(2) (a)(ii) of The Court of Appeal Act, 2000 , SS 2000, c C-42.1 : T.C. v A.E. (16 July 2020) Regina, CACV3648 (Sask CA). Mr. T.C. filed a notice of appeal on June 12, 2020, in which he appealed the entirety of the First Order.

The filing of this notice – through the operation of Rule 15 of The Court of Appeal Rules – automatically imposed a stay of execution of the First Order and a stay of any further proceedings in the Court of Queen’s Bench. Ms. A.E. immediately filed an application seeking to lift the stay of execution. Orally, on June 17, 2020, Jackson J.A. lifted the stay of execution and the stay of proceedings, with written reasons following on June 25, 2020. III.

Background to the second order [ 10 ] After the First Order was granted, the situation between the parties further deteriorated as did the nature of the allegations that each party levelled against the other. Ms. A.E. filed an application with the Court of Queen’s Bench, returnable August 12, 2020, seeking an interim order requiring Mr. T.C. to pay child support, specifying his parenting time as every second weekend and restraining him from contacting her or attending her residence except during exchanges of H.E. Mr. T.C. filed his own application shortly thereafter, returnable on August 5, 2020.

He sought an interim order granting him extended summer parenting time in August of 2020, providing for shared equal parenting on a week-on/week-off basis thereafter, setting other details regarding parenting time and specifying the location where H.E. would attend kindergarten. In his material, Mr. T.C. alleged facts that he relied on to support his allegation that Ms. A.E. was attempting to alienate his son from him. Ms. A.E. did not file any material in response. She successfully applied to have Mr. T.C.’s application adjourned to August 12, 2020.

The applications were heard together on that date. [ 11 ] The Second Chambers Judge granted the Second Order, which I summarize as follows: (

a) the parties were granted joint custody of H.E.; (

b) Mr. T.C. was to have summer parenting time from August 1 7 to Augu st 28, 2020, and thereafter the parties would have shared parenting on a week-on/week-off basis; (

c) the time, place and method for exchanges was specified; (

d) daily telephone access was provided to each parent during their off week; (

e) H.E.’s kindergarten was specified at a location approximately halfway between the parties’ residences; (

f) the method for equal sharing of Christmas, Easter, other holidays and special days was set out; (

g) Ms. A.E.’s income was set at $36,786.98 and Mr. T.C.’s income was set at $69,295.00 for the purposes of child support; and (

h) Mr. T.C. was ordered to pay Ms. A.E. a set-off amount of $290.16 per month for child support and the parties were ordered to share expenses under s. 7 of the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ], proportionately to their income. [ 12 ] In her reasons, the Second Chambers Judge reviewed the evidence and facts in detail and found that the evidence was overwhelming that the parties separated at the start of May of 2020, although Ms. A.E. had also maintained a residence elsewhere since August of 2019. She found that the relationship ended in very early May of 2020 with Ms.

A.E. and H.E. continuing to live with Mr. T.C. for the majority of the time leading up to the separation. The Second Chambers Judge further found the evidence to be overwhelming that Mr. T.C. had been an active, involved and loving parent to H.E., who parented him half of the time up to early May of 2020. She found that there was no custody arrangement or parenting schedule, legal or de facto, in place prior to the First Order. The Second Chambers Judge noted that the First Chambers Judge had found primary residence of H.E. with Ms. A.E. was the status quo, but she did not attempt

to reconcile her factual findings with that finding by the First Chambers Judge or his finding that the parties’ common law relationship hadended in 2019. She took note that primary residency means one parent has the child in their care at least 60% of the time. [13] With regard to Ms. A.E.’s allegations of Mr. T.C.’s reprehensible conduct, the Second Chambers Judge found those allegationsto be untenable in the face of the adoption order being granted in March of 2020 and the allegations not having been raised untilMs. A.E.’s third affidavit. She found that Mr.

T.C. is a fit parent. [14] In analyzing the applications regarding the parenting arrangements, the Second Chambers Judge treated Mr. T.C.’s applicationas an application to vary the First Order. She noted that there must be “compelling evidence of a material change in circumstances thataffects [H.E.’s] best interest so as to necessitate a change from primary residence with the mother to a shared parenting regime prior totrial” (at para 4).

She set out the well-know principle from Guenther v Guenther (1999), (SK KB), 181 Sask R 83[Guenther], and Gebert v Wilson, 2015 SKCA 139, [2016] 5 WWR 656 [Gebert], regarding variation of the existing status quo. Afterreviewing the evidence, the Second Chambers Judge found that Ms. A.E. was attempting to alienate H.E. from his father and he was atrisk of becoming alienated from him. She noted that the evidence of alienation was uncontroverted and had not been before the FirstChambers Judge.

She concluded that it was in H.E.’s best interests to vary the First Order to an interim order of equal, shared parenting. [15] As part of her examination of whether parental alienation was occurring, the Second Chambers Judge set out a list of 17behaviours that can constitute this conduct as found in Huckerby v Paquet, 2014 CarswellSask 899 (WL) (Sask QB). She then found as afact that the following uncontroverted evidence demonstrated that Ms. A.E. was alienating H.E. from his father (at para 27): 1. [Ms.

A.E.] has only agreed to four weekends of parenting time for [H.E.] and his father between May 28, 2020 and August 12, 2020; 2. [H.E.] is displaying new, nervous behaviour around his father. For example, after the court’s May 28, 2020 order, [Mr. T.C.’s] firstparenting time with [H.E.] was on June 21, 2020. At that time, [H.E.] reported to [Mr. T.C.] that he was “scared” to go to [Mr. T.C.’s]home. He had never said he was scared before. [H.E.] also volunteered that he “did not miss Grandma [C.]”, [Mr. T.C.’s] mother, withwhom he has previously been close; 3. On a June 21, 2020 visit to [H.E.’s] grandparents, [Mr.

T.C.’s] parents, [H.E.] advised his grandmother he was not going to hug her,stood with his arms crossed, and told her he did not like her cooking and was not going to eat anything. He is usually effusive with hisgrandmother and loves her cooking; 4. On [H.E.’s] July 17, 2020 parenting time with his father he referred to his father, [Mr. T.C.], as a “monster” and initially acted scared ofhim. [H.E.] also reported to his father that “Mommy says bad things about Daddy”; 5. [Ms. A.E.] refused to facilitate conversations between [H.E.] and his father, advising [Mr.

T.C.] that she would only allow [H.E.] tospeak with him once or twice a week; 6. In a telephone conversation between [H.E.] and his father in July 2020, [H.E.] referred to [Mr. T.C.] as [his first name] rather than“Daddy”, which he had never done before; 7. In a further telephone conversation in July 2020, [H.E.] insisted to [Mr. T.C.] that [Mr. T.C.] “was not his dad”, which he had neversaid before; 8. [H.E.] is now reluctant to tell [Mr. T.C.] that he loves him, when previously he was very effusive; 9. On July 13, 2020, [Ms. A.E.] texted [Mr. T.C.] stating that [H.E.] is “not your son”; 10.

On July 13, 2020, via text message, [Ms. A.E.] asked [Mr. T.C.] to renounce his parental rights to [H.E.], asking him to “sign over theadoption”. [Mr. T.C.] suggests that “signing over the adoption” means allowing [Ms. A.E.’s] new fiancé, [M.], to adopt [H.E.] in[Mr. T.C.’s] place. [16] The Second Chambers Judge then concluded as follows regarding parental alienation and the parenting arrangements: [28] [Ms. A.E.] did not file any evidence to challenge or explain the evidence I have noted.

As a result, the evidence is uncontroverted. [29] The evidence demonstrates that [H.E.] is feeling uncertain, anxious and/or scared about his connection with [Mr. T.C.]. Given that[Ms. A.E.] has told [Mr. T.C.] that [H.E.] is not his son and has asked [Mr. T.C.] to renounce his parental rights, it is not a stretch toconclude that [Ms. A.E.] is motivating [H.E.] to feel anxious or uncertain about his father and is destabilizing that parent–childrelationship. Clearly this is not in [H.E.’s] best interest. [30] It is also significant that on July 10, 2020, [Ms.

A.E.] announced her engagement to [M.] on social media, indicating a plan to marryin late October. [H.E.] has also reported to his grandmother, [C.], that [Ms. A.E.] is pregnant. This evidence was not challenged by[Ms. A.E.] in reply. [Ms. A.E.’s] marriage to a new partner, along with a new sibling for [H.E.], are significant changes which affect[H.E.’s] life, particularly when they occur so close in time to [H.E.’s] parents’ separation.

In my view, stability and support from both hisparents at a time of such great change is very important for [H.E.]. [31] I therefore find that it is in [H.E.’s] best interest to vary the parenting arrangement from primary residence of [H.E.] with his motherto shared parenting with each of his parents. [32] Maximum contact with both parents is generally considered to be in the best interests of the child: s. 6(5) of The Children’s Law Act,1997, SS 1997, c. C-8.2; B.B. v E.B., 2020 SKQB 56 at para 43; Olfert v Olfert, 2012 SKQB 301 at para 184, 402 Sask R 71. There is nopresumption of shared parenting.

Rather, what “maximum contact” is appropriate depends on the best interests of the child involved:Matsalla v Matsalla, 2017 SKQB 77 at para 8. Children are entitled to the best possible parenting arrangement taking into account all thecircumstances: Young v Young, (SCC), [1993] 4 SCR 3.

[33] A parent also has a legal duty to facilitate contact with the other parent and to facilitate the other parent’s parent–child relationship: M.L.S. v N.E.D. , 2017 SKQB 183 at para 166 [ M.L.S ]. Undermining the child’s relationship with the other parent, either directly or indirectly, is behaviour which has been characterized as emotional abuse: M.L.S . at para 166 . [34] In Huckerby , this Court held: 236.

Excluding an otherwise capable parent from a relationship with their children and exploiting emotionally vulnerable children for selfish or improper purposes is a corruption of parental authority and a violation of the trust obligations inherent in familial relationships. It is behaviour that falls well below the minimal standard of parental care that will be tolerated by our society. [35] I am satisfied that it is in [H.E.’s] best interest to have maximum contact with each of his parents.

I am satisfied that equal parenting time with each parent is in [H.E.’s] best interest given the alienation that has been occurring. Shared parenting is a solution to the alienation that will provide a stable routine for [H.E.] with each of his parents. It provides an equal opportunity to connect with each parent. It also answers the question of how to provide meaningful and frequent contact between [H.E.] and each of his parents now that [Ms. A.E.] has moved an hour away.

Under a shared parenting regime, each of [H.E.’s] parents will be able to take him to school, be with him during the school week, and be with him on weekends. Each parent will have the opportunity to participate in education, extra- curricular activities, day-to-day school routine and weekend fun. This shared opportunity to parent equally should assist to support a stable and loving relationship with each parent and to negate the effects of the alienating conduct which has begun to destabilize [H.E.’s] relationship with his father. In my view, such stability is necessary in the circumstances of what has occurred.

It is also necessary because [Ms. A.E.] is marrying a new partner and having another child very shortly after [H.E.’s] recent move away from [Mr. T.C.]. [36] I remind the parties that it is their legal duty as parents to promote [H.E.’s] positive relationship with the other parent.

I note also for the benefit of the parties that in situations where parental alienation continues, it can be grounds to change a custodial relationship from joint custody to sole custody with the parent who has been alienated from the child: A.F. v J W. , 2013 ONSC 4272 . [ 17 ] The parties were ordered to enroll H.E. in kindergarten in a town that was halfway between their residences. [ 18 ] With regard to child support, the Second Chambers Judge used a three-year average of each party’s incomes to determine their current incomes for the purposes of child support. Ms.

A.E.’s income was found to be $36,786.98 and Mr. T.C.’s income was found to be $69,295.00. Applying a direct set-off under s. 9 of the Guidelines , she ordered Mr. T.C. to pay Ms. A.E. $290.16 per month in child support and required them to share H.E.’s s. 7 special or extraordinary expenses in proportion to their incomes, noting that no such expenses currently existed. [ 19 ] The Second Chambers Judge declined to grant Ms. A.E.’s requests for a restraining order, an order regarding Mr. T.C.’s storage of firearms or an order regarding Mr. T.C.’s prescribed medications. Costs were not addressed. [ 20 ] Ms.

A.E. appealed the portions of the Second Order that varied the parenting arrangements set out in the First Order. She did not appeal the portions related to child support, but argues that child support should be calculated and payable to her under s. 3 of the Guidelines if her appeal is allowed and H.E. returns to her primary care. The filing of the notice of appeal automatically invoked a stay of the parenting portions of the Second Order.

On September 21, 2020, Leurer J.A. lifted the stay of execution and the stay of proceedings and, amongst other things, restored the order for shared parenting and put conditions in place to ensure the prompt prosecution of the two appeals. [ 21 ] Ms. A.E. has applied to admit fresh evidence on her appeal from the Second Order. Mr. T.C. has provided affidavits in reply to that application. IV. Issues [ 22 ] The following issues arise with regard to the appeal of the First Order: (

a) Did the First Chambers Judge err by making findings of fact on controverted affidavit evidence instead of directing the matter to a viva voce hearing or to an expedited pre-trial conference and trial? (

b) Did the First Chambers Judge err in determining H.E.’s best interests by changing from the status quo of primary residency with Mr. T.C. to that of primary residency with Ms. A.E.? (

c) Did the First Chambers Judge err by misapprehending and ignoring the evidence regarding Ms. A.E.’s past conduct, including alleged substance abuse and her introduction of a new father figure? (

d) Did the First Chambers Judge err by drawing a negative inference against Mr. T.C. for not applying to Court before he withheld H.E. from Ms. A.E.? (

e) Did the First Chambers Judge err by relying on mobility principles? (

f) Did the First Chambers Judge err by preferring a biological parent over an adoptive parent? [ 23 ] The following issues arise with regard to appeal of the Second Order: (

a) Did the Second Chambers Judge err by failing to obtain reply evidence from Ms. A.E., resulting in a procedurally unfair hearing? (

b) Should fresh evidence be admitted on this appeal? (

c) Did the Second Chambers Judge err by varying the First Order?

V. Standard of Review [24] Mr. T.C. submits the standard of review set out in previous cases has no application to these appeals because the only standardapplicable is the best interests of the child. He argues this Court is free to reweigh the affidavit evidence, make its own findings of factand substitute its view for that of a Chambers judge on any issue if it is in the best interests of a child. In his appellant factum, Mr. T.C.contends that in matters involving children, a court of appeal is “converted from a court of error to a court of ‘best interests’”.

As such, hesubmits that a standard of correctness applies to every issue raised in this appeal. I disagree. [25] While every decision regarding a child must be rendered with only the best interests of the child in mind, that does not translateinto the standard of review that is proposed by Mr. T.C.

The standards of review that have developed in the area of interim parentingorders have taken into account the necessity to ensure that decisions are reviewable in a meaningful way while assisting the parties topromptly move their matters forward to resolution – through agreement or trial – because of the significant benefit that accrues to childrenfrom having the stability and certainty that final parenting arrangements achieve.

Discouraging appeals from interim orders, other than inexceptional circumstances, permits the best interests of children to be served by encouraging the parties to more quickly reach that finalstage rather than expending precious time and scarce resources on appeals from interim orders: Hall v Hall, 2011 SKCA 86 at para 1, 337DLR (4th) 89.

At the same time, the availability of appellate review ensures that interim orders are overturned where appropriate. [26] The standard of review that applies to the matters at hand is aptly described in Bolan v Bolan, 2013 SKCA 97, 423 Sask R 151[Bolan]: [6] The standard of appellate review in matters of interim custody presents a difficult hurdle for the mother to clear. An interim custodyorder is a temporary balance which a Queen’s Bench Chambers judge must strike after weighing the objectives and factors set out in theDivorce 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 affidavitevidence. It is, therefore, fact-based and discretionary in nature; and, as such, an appellate court will give considerable deference to aChambers judge’s decision as to interim custody and parenting (See: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, andHickey v. Hickey, (SCC), [1999] 2 S.C.R. 518). In Jochems v. Jochems, 2013 SKCA 81, Richards C.J.S. recentlydescribed the standard in these terms at para. 23: “Simply put, that standard involves a considerable measure of deference to the decision-making of the Chambers judge.

This Court is not entitled to simply re-make a custody and access decision from the ground up along thelines that it might have preferred or thinks best”. [27] More recently, in K.G.K. v L.T.K., 2021 SKCA 12 [K.G.K.], Caldwell J.A. stated the following regarding the standard of reviewthat is applied to appeals from interim parenting orders: [4] Custody and access applications are heavily fact-dependent. As a consequence, the orders made, and the custody and parentingarrangements established thereunder, result from the exercise of judicial discretion.

Accordingly, the scope of appellate review isdelimited and narrow, calling for the appellate court to afford a considerable measure of deference to the decision-making that led to theorder in question.

In plain terms, this Court is simply not entitled to remake the Interim Order from the bottom up, taking a different viewof the evidence and rebalancing the relevant factors, so as to refashion the custody and parenting arrangements as we might prefer it.Rather, as Bastarache J. wrote in Van de Perre v Edwards, 2001 SCC 60, [2001] 2 SCR 1014: [15] As indicated in both Gordon [ (SCC), [1996] 2 SCR 27] and Hickey [[1996] 2 SCR 27], the approach to appellatereview requires an indication of a material error.

If there is an indication that the trial judge did not consider relevant factors or evidence,this might indicate that he did not properly weigh all of the factors. In such a case, an appellate court may review the evidence proffered attrial to determine if the trial judge ignored or misdirected himself with respect to relevant evidence. This being said, I repeat thatomissions in the reasons will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. As statedin Van Mol (Guardian ad Litem of) v.

Ashmore (1999), 1999 BCCA 6 , 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused[2000] 1 S.C.R. vi, an omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten,ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate court cannotreconsider the evidence. [28] As can be seen from these excerpts, the scope of appellate review for interim parenting orders is narrow and deferential.

ThisCourt is not permitted to simply re-examine the evidence from the ground up and change the order to one that, in its view, is correct. [29] This case presents a particular challenge to the application of the standard of review with respect to interim orders. This is sobecause the Court has before it not only an interim order determining primary residence, but it is also considering at the same time asecond interim order varying the first.

A further complicating factor is that the First Order left to the agreement of the parties or furtherorder of the court the task of determining what reasonable access would mean for Mr. T.C. The combination of these two factors requiresthe Court to provide greater detail and analysis in relation to the First Order in order to place and consider the Second Order in theappropriate context. VI. Analysis of the first Order A. Making an order in the face of controverted affidavit evidence [30] The facts in this matter were highly controverted. In the Court of Queen’s Bench, Ms.

A.E. filed an affidavit with herapplication. Mr. T.C. filed a lengthy affidavit in response, along with affidavits from his mother, and two friends. Ms. A.E. filed anaffidavit in reply. The evidence regarding the main issues of the date of the parties’ separation, the nature, quality and amount of eachparties’ parenting, and Ms. A.E.’s alleged substance abuse and mental health issues was all contradictory. Mr. T.C. submits the FirstChambers Judge erred by granting an interim order in the face of conflicting evidence on these fundamental issues.

He argues theapplication should have be referred to a viva voce hearing or an expedited pre-trial conference and trial.

[ 31 ] The presence of conflicting affidavit evidence is virtually universal in contested interim applications regarding parenting arrangements. In the face of controverted evidence on material points, a Chambers judge will generally not make a final order, although it may be done in certain circumstances: Greyeyes v Greyeyes , 2021 SKQB 14 at paras 20–21 .

However, an interim order is frequently sought, and made, on such a basis so that arrangements can be put into place allowing the parties to move the matter on to pre-trial conference and, if necessary, trial, where the conflicts in the evidence can be resolved.

An interim order is, by definition, a temporary solution that provides a short bridge to get the parties from the current time to the point when the matter can be resolved by agreement or trial: Bolan at para 6 ; Potzus v Potzus , 2017 SKCA 15 at para 37 , [2017] 7 WWR 296; Sylvestre v Sylvestre , 2018 SKQB 105 at para 38 ; and I.S. v A.I.S. , 2019 SKQB 1 at paras 51–53 . A Chambers judge has the authority to make an interim order on the basis of controverted affidavit evidence alone: K.G.K. at para 24 and Koback v Koback , 2013 SKCA 91 at paras 14–15 , [2013] 10 WWR 491.

Of necessity, these types of orders are regularly made on the basis of highly controverted evidence. [ 32 ] This was not a situation where the First Chambers Judge could have declined to make an interim order and referred the matter to an expedited pre-trial conference. The parties were in need of an immediate, short-term solution pending resolution at pre-trial conference, or, ultimately, trial. The only two options that were practically available were a determination on the affidavit evidence or a referral to a viva voce hearing. There is no indication in the material that Mr.

T.C. asked for a viva voce hearing. The reasons of the First Chambers Judge make no mention of such a request. Of course, that determination remains an option for a Chambers judge without a request from either party, but it is obviously not required every time there is controversy about material facts or it would be ordered in almost every case. [ 33 ] I see nothing in the nature of the evidence in the matter at hand that required a referral to a viva voce hearing.

The First Chambers Judge implicitly determined that he could make an appropriate interim order on the basis of the affidavit evidence without the need for oral evidence. That was a discretionary determination. In my view, the controversies in the evidence were not out of the ordinary and do not rise to the level where this Court could find the First Chambers Judge erred in his exercise of discretion to make an interim order in the face of controverted evidence. I cannot give effect to this ground of appeal. B. Best interests, status quo and treatment of evidence of past conduct [ 34 ] Mr.

T.C. submits the First Chambers Judge erred in determining that primary residence with Ms. A.E. was in H.E.’s best interests. He argues the de facto status quo consisted of H.E. residing primarily with him at the family home and this was impermissibly disturbed. He further contends the First Chambers Judge ignored or misapprehended evidence of Ms. A.E.’s past conduct that affects her ability to parent H.E. and places the child at risk.

Specifically, he refers to the evidence regarding her alleged substance abuse problems, mental health and willingness to quickly move the child to a new home with a new romantic partner. He contends the judge overlooked or misapprehended the evidence in relation to these issues. [ 35 ] Ms. A.E. responds by asserting the facts as found by the First Chambers Judge fully support the First Order being in H.E.’s best interests. She asserts the evidence she provided established that she was the primary parent for the entirety of H.E.’s life and, specifically, after they separated in August of 2019.

She points out that her evidence denied the issues regarding substance abuse and described the method through which she was properly managing her depression. Ms. A.E. submits the First Chambers Judge made proper findings of fact and did not ignore or misapprehend the evidence. [ 36 ] The main controverted issues that informed the determination of H.E.’s best interests were the date of the parties’ separation, the nature, quality and amount of each parties’ parenting pre- and post-separation, and Ms. A.E.’s alleged substance abuse and mental health issues.

The evidence regarding these issues was highly contradictory, but there was evidence that supported all of the significant findings of fact made by the First Chambers Judge. [ 37 ] The First Chambers Judge found the parties “were in a common law relationship in 2018–2019” (at para 2). This finding implicitly accepted Ms. A.E.’s evidence that they separated in August of 2019, when she moved to another residence, and rejected Mr. T.C.’s claim that the parties resided together up to the end of April 2020. He further found that H.E.’s primary residence was with Ms. A.E. after the parties separated. Many of Mr.

T.C.’s arguments are premised on his evidence and contention that H.E. lived with him for the two years immediately up to the point when he withheld the child from Ms. A.E. in May of 2020. He argues that the First Order removed H.E. from the home environment and routine he had known for the past two years. However, the First Chambers Judge did not accept his evidence and submissions on that point. He found H.E. had lived primarily with his mother after the parties separated in 2019 and the status quo was that of Ms. A.E. as the primary parent. This finding negates Mr.

T.C.’s submissions regarding status quo and the role each parent took in the period leading up to May of 2020. [ 38 ] In this appeal, Mr. T.C. continues to assert that the issues regarding Ms. A.E.’s substance abuse and mental health require H.E. to live with him in order to address these risks. This forms the bulk of the past conduct he alleges should have caused the First Chambers Judge to grant him primary residence of H.E. Past conduct may only be taken into consideration if it is relevant to the ability of a person to act as a parent to the child in question: s. 8 (

b) of The Children’s Law Act, 1997 , SS 1997, c C-8.2 (as repealed by The Children’s Law Act, 2020 , SS 2020, c 2 ), and s. 10(5) of The Children’s Law Act, 2020 . [ 39 ] The First Chambers Judge considered the evidence regarding Ms. A.E.’s substance use and mental health issues, including suicidal ideations, and observed that the allegations all related to 2019 and that she had provided evidence that she was being treated for depression through her physician. He considered these to be flags regarding Ms.

A.E.’s behaviour but stated he was not satisfied they were sufficient to justify an order that would change H.E.’s primary residency. He determined it was in the child’s best interests to reside primarily with his mother and have reasonable parenting time with his father. The potential risk to H.E. from substance use was further addressed through the abstinence clause in the First Order and the order of reasonable parenting time for Mr. T.C., who could monitor the ongoing well-being of the child. [ 40 ] Mr. T.C. is correct that the First Chambers Judge did not mention the effect of Ms.

A.E. residing with a new partner and introducing a new father figure into H.E.’s life. In his reasons, the First Chambers Judge stated he had reviewed all of the evidence but did not comment on this issue. It is not necessary for a judge to mention every single factor that they have considered when making a decision. Further, this factor is certainly less important than the other issues, which the First Chambers Judge did comment on. I do not see this issue

as sufficient grounds to overturn the First Order. [ 41 ] Based on the findings of fact made by the First Chambers Judge, it was well within his discretion to find that H.E.’s best interests were met through the terms of the First Order. In my view, there is no indication that he lost sight of the best interests analysis he was required to perform or ignored or misapprehended the evidence. The standard of review does not permit this Court to step into the shoes of the First Chambers Judge, consider the matter afresh, take a different view of the evidence and make an order that we see as correct.

The findings of fact and the determinations made by the First Chambers judge find support in the evidence and the law and, given the deferential standard of review, cannot be overturned on appeal. C. Negative inference and mobility principles [ 42 ] Mr. T.C. asserts the First Chambers Judge penalized him for unilaterally withholding H.E. in May of 2020 instead of applying to the court for an order permitting him to do so. He argues that he was following the advice of the Ministry of Social Services and the RCMP while ensuring the child’s safety. Mr.

T.C. further submits the COVID-19 protocol in place for the Court of Queen’s Bench only permitted urgent applications; and, because he had ensured H.E.’s safety by not returning him to Ms. A.E., there was no urgent application that could be made. [ 43 ] The analysis of this issue is also an appropriate place to discuss Mr. T.C.’s further argument that the First Chambers Judge erroneously relied on mobility principles instead of focussing on H.E.’s best interests. [ 44 ] The First Chambers Judge addressed the issue of overholding and mobility as follows: [7] It is also noteworthy [Mr.

T.C.] did not seek an order of the court before making an unilateral decision to withhold [H.E.] from [Ms. A.E.]. Further, he did not seek such an order immediately after his decision was made and executed. Instead, he waited until [Ms. A.E.] sought the assistance of the court by filing her application before raising his concerns. By contrast, [Ms. A.E.] swore an affidavit in support of a without notice application on May 15, 2020, six days after [Mr.

T.C.] refused to return [H.E.] to her care. [8] In Mantyka v Dueck 2012 SKCA 109 at paras. 34–35 , in relation to a mobility case, the court expressed its concern with a unilateral decision being made by one parent, holding: [35] … a family law culture of “move first and ask questions later” is self-evidently not something that can be approved or encouraged.

Neither parents nor their counsel should see relocations of children as a means of obtaining tactical advantages in custody or access disputes. [9] As well, again in the context of mobility cases, the case law recognizes a presumption, albeit a rebuttable one, that children ought to remain in the location of the status quo until the matter can be resolved at trial. This presumption is acknowledged in cases such as Ofukany v Ofukany 2009 SKQB 338 , Lycan v Winterton 2016 SKQB 342 and Lloyd v Lloyd 2018 SKQB 116 .

I conclude the presumption articulated in these cases is applicable to the circumstances surrounding this application. [10] After reviewing the evidence in light of the applicable case authorities, and hearing the submissions of counsel in Chambers, I conclude [H.E.] shall be returned to the petitioner [Ms. A.E.]. [ 45 ] In my view, the First Chambers Judge’s comments regarding Mr. T.C.’s failure to apply to the court, and his discussion of the mobility principles, have no bearing on this appeal.

That part of his reasons reflects the First Chambers Judge’s determination of whether H.E. should be immediately returned to his mother’s care. The child was immediately returned to Ms. A.E.’s care so that portion of the order is now spent and any appeal related to that provision of the First Order is moot. [ 46 ] In any event, I see no error in this portion of the reasons. The matter was promptly heard in the Court of Queen’s Bench, so the subject matter of the application obviously fell within the scope of matters being heard under the COVID-19 protocol. I further note that Mr.

T.C. did not aver that he was prevented from making an application because of the protocol. To the contrary, he averred he had instructed his counsel to bring a court application for supervised parenting for Ms. A.E. – and was in the process of preparing his affidavits – but had not yet filed that application when he was served with her application on May 22, 2020. By that date, he had been withholding H.E. for two weeks. It was this unilateral self-help that the First Chambers Judge was properly criticizing when he referred to the cases and principles related to mobility.

There is no indication that the First Chambers Judge’s displeasure , as it is referred to by Mr. T.C., had any effect on the determination that H.E. should be placed in Ms. A.E.’s primary care. D. Preference for a biological parent over an adoptive parent [ 47 ] Mr. T.C. submits the First Chambers Judge erred by preferring Ms. A.E. on the basis that she is a biological parent as opposed to him, an adoptive father. He argues that this is implicit in the result. [ 48 ] An order for adoption of H.E. by Mr. T.C. was granted on March 12, 2020.

Once an order of adoption is granted, the person who adopts the child becomes their parent for all purposes – and the child becomes their child for all purposes – as if the child had been born to that parent: s. 2 and s. 29.1 of The Adoption Act, 1998 , SS 1998, c A-5.2 . Additionally, the definition of parent under s. 2 of The Children’s Law Act, 1997 , included a mother or father by adoption. The definition of parent under s. 2 of The Children’s Law Act, 2020 , which came into force after the First Order was made, includes a parent of a child by adoption. Mr.

T.C. is H.E.’s father. [ 49 ] The only place that the First Chambers Judge referred to the fact that Mr. T.C. is H.E.’s adoptive father is found in paragraph 2 of his reasons, repeated here for ease of reference: “[Ms. A.E.] is the biological mother of [H.E.] and she and [Mr. T.C.] were in a common-law relationship in 2018–2019. [Mr. T.C.] is the adoptive father of [H.E.]”. [ 50 ] At no point in his reasons does the First Chambers Judge provide any indication he was exhibiting any preference or placing any weight on the fact that one parent is a biological parent and the other is an adoptive parent.

The only place he mentions it is in his

recitation of the basic facts set out immediately above. Reading the reasons line by line, and as a whole, does not reveal any hint that the First Chambers Judge made the distinction alleged by Mr. T.C. or that this factor influenced his decision. This ground of appeal has no merit. E. Conclusion on the first appeal [ 51 ] The appeal from the First Order is dismissed. VII. Analysis of the Second Order A. Procedural fairness [ 52 ] Ms. A.E. submits she was denied procedural fairness by being deprived of the opportunity to file evidence in response to Mr. T.C.’s allegations of parental alienation.

She contends the Second Chambers Judge should have refused to proceed with the application in the face of the unanswered, serious allegations of parental alienation and required her to file material in response to Mr. T.C.’s application or held a hearing to obtain that evidence from her. She provides no case authority where such a proposition has been accepted. Ms. A.E. contends this defect can be cured by this Court accepting her fresh evidence on appeal and then, of necessity, given that the evidence was not in front of the judge at first instance, considering the matter afresh.

Additionally, she asserts her former counsel was on vacation for a portion of the period between the date Mr. T.C. filed his application and the date the application was argued, causing further issues with regard to her ability to file reply material. In response, Mr. T.C. submits Ms. A.E. was represented by senior counsel, chose to rely on the material she had filed, regretted that decision only once the outcome was unfavourable for her and wants a second chance to present her case now that she knows her initial litigation strategy has failed. [ 53 ] For the applications that resulted in the Second Order, Ms.

A.E. relied on her two affidavits filed in connection with the First Order and filed a third affidavit of her own. Her new affidavit provided more allegations regarding Mr. T.C.’s prior conduct and described some of what had occurred between May 29, 2020, and July 10, 2020, the date she swore the affidavit. With regard to events subsequent to May 29, 2020, she averred to Mr. T.C. missing an exchange on June 19, 2020, the fact that she was residing with and working for a new romantic partner whom H.E. loved, a description of her new partner and his home that was 45 minutes away from Mr.

T.C.’s home, and her plans for the child to attend kindergarten. She acknowledged there is “disrespect” and “miscommunication” between the parties and submitted Mr. T.C. should have parenting time every second weekend. Ms. A.E. averred that she wanted a restraining order because “[Mr. T.C.] has been harassing me, disrespecting me, swearing at me and repeatedly texting me at all hours”. She did not provide any details of these allegations. [ 54 ] In response to Ms. A.E.’s application, Mr. T.C. filed an affidavit from himself and one from his mother. Mr.

T.C. also filed his own application, returnable August 5, 2020, along with an affidavit from himself and affidavits from his mother, two friends and his employee. In the grounds for claim

section of his application, Mr. T.C. raised parental alienation. With regard to events that occurred after the First Order, his affidavits stated that he was required to sign an undertaking to see H.E., noted he had parenting time for three weekends between May 29, 2020, and July 22, 2020, along with limited telephone access, described events regarding H.E. acting out of character and saying things he would not normally say, included a text message in which Ms. A.E. asked him to renounce his parental rights so that her new fiancé could adopt H.E., and noted that Ms.

A.E. is pregnant. [ 55 ] An ex parte order was granted, upon Ms. A.E.’s application without notice, adjourning Mr. T.C.’s application to August 12, 2020, to be heard concurrently with Ms. A.E.’s application. [ 56 ] Ms. A.E. did not file any additional material in response to Mr. T.C.’s application and did not file a reply affidavit to his response affidavit on her application. She was represented by counsel on both applications. On July 28, 2020, her counsel sent a letter to the local Registrar at the Court of Queen’s Bench, copied to Mr. T.C.’s counsel, stating that Ms.

A.E. intended to rely on her three affidavits that had been previously filed as her response to Mr. T.C.’s application. Subsequently, Ms. A.E. filed a two paragraph affidavit from her former employer, sworn August 11, 2020, but this affidavit was objected to by Mr. T.C. and was struck out as an improper reply. She did not request a further adjournment in order to provide reply material. [ 57 ] The decision granting the Second Order was released on August 14, 2020. Ms. A.E. changed counsel on August 26, 2020. In the affidavit filed on her fresh evidence application, Ms.

A.E. averred that her former counsel provided her with copies of one of Mr. T.C.’s affidavits and one of his mother’s affidavits, but that she did not receive a copy of the notice of application, the affidavit from the two friends, the affidavit from the employee or the later affidavits from Mr. T.C. and his mother, until after the Second Order was granted. She further averred that she wanted to respond to the affidavits but was not given an opportunity to do so. Ms. A.E. did not provide an affidavit from her former counsel with regard to these allegations.

She also chose not to include any information in her affidavit about communications she had with her former counsel regarding a potential reply to the material she admits she did receive. [ 58 ] Ms. A.E. was represented by senior, experienced counsel who unambiguously communicated to the Second Chambers Judge that Ms. A.E. did not wish to file any additional material and was content to rely on the material already filed. In my view, it was not up to the Second Chambers Judge to review the material, find Ms.

A.E.’s material wanting, disregard her counsel’s clear representation, second guess that counsel – who, unlike the Second Chambers Judge, would have been aware of the information that could potentially have been provided – and demand further evidence. That is not how the adversarial system works. Each party is expected to put the information in front of the court that they wish the decision to be made upon.

With limited exceptions – for example, in certain child protection matters, or where a judge chooses to order a custody and access report on their own motion – judges then decide on the evidence the parties have chosen to place before them. It is not up to judges to take over the case from counsel and determine what evidence each party should muster. [ 59 ] The decision in Imperial Oil v Jacques , 2014 SCC 66 , [2014] 3 SCR 287, was made by the Supreme Court in a very different context, but the following excerpt applies to the matter at hand: “Although the power of judges to intervene in the conduct of civil

proceedings has become increasingly broad, judges generally do not play an active

part in the search for truth … . In an accusatory andadversarial system, the delicate task of bringing the truth to light falls first and foremost to the parties …” (at para 25). [60] This clear distinction between the roles of the parties and the judge in an adversarial system was further described in DesjardinsFinancial Services Firm Inc. v Asselin, 2020 SCC 30, 451 DLR (4th) 1: “The fundamental principle of our adversarial system is that it isthe parties who conduct the case.

Courts must decide cases on the basis of the record before them and may not reframe the litigation ontheir own initiative” (at para 216). [61] As set out in Saskatchewan v Racette, 2020 SKCA 2, [2020] 8 WWR 84, “a trial judge, as the impartial arbiter, must generallyrefrain from interfering in the conduct of the litigation itself and be very cautious about interfering with trial counsel’s tactical decisions”(at para 40). This approach applies equally to matters conducted in Chambers. [62] It is also relevant that Ms. A.E. would not have been taken by surprise by Mr.

T.C. alleging parental alienation in hisapplication to the Second Chambers Judge. He had already raised and extensively discussed that issue in his memorandum filed with thisCourt in June of 2020 for the application to lift the stay of the First Order. At that time, Mr. T.C. sought to have the Chambers judge in thisCourt fix and increase his parenting to fifty percent as a result. By that point, Ms. A.E. had been alerted to the allegations of parentalalienation. [63] I am not prepared to permit Ms.

A.E., an unsuccessful litigant, to have the applications relitigated afresh in this Court on theassertion that she saw some but not all of Mr. T.C.’s material and now asserts that she would have filed additional material had she seen itall. Ms. A.E.’s counsel communicated unambiguously to the Court of Queen’s Bench, six days after T.C.’s application was served on him,that Ms. A.E. was content to rely on her three affidavits. Additionally, she filed an application without notice that successfully hadMr. T.C.’s application, originally returnable on August 5, 2020, adjourned to August 12, 2020.

Her former counsel was in a position toknow whether his vacation had interfered with his ability to provide a proper reply to the application and did not seek a furtheradjournment to file any additional material. I see nothing in these circumstances that justifies this Court receiving affidavit material fromMs. A.E. at this point. This does not mean that there may not be exceptional cases where fairness would dictate that a party should bepermitted to file evidence after not having filed it in the court below. However, this is not one of those exceptional cases. [64] This ground of appeal has no merit. B.

Fresh evidence application [65] Each of the parties filed fresh evidence on the appeal of the Second Order. Pursuant to Rule 59 of The Court of Appeal Rules,Ms. A.E. applied to introduce her affidavit and the affidavit of a former daycare provider, both dated November 19, 2020. Her affidavitincorporates her earlier affidavit sworn on September 4, 2020. Mr. T.C. is opposed to Ms. A.E.’s application. In the event her applicationis allowed, he has provided his own affidavit and an affidavit from his mother, both dated November 30, 2020. His affidavit fromSeptember 2, 2020 is incorporated into his current affidavit.

Mr. T.C. did not file his own application to adduce fresh evidence, and agreesthat his evidence can only be admitted as reply evidence if Ms. A.E.’s evidence is admitted. [66] Much of Ms.

A.E.’s argument for the introduction of her fresh evidence, describing events predating the Second Order, hingeson her procedural fairness argument that has already been dismissed. [67] The introduction of fresh evidence on appeal is governed by the application of the principles from R v Palmer, (SCC), [1980] 1 SCR 759, as restated by Kalmakoff J.A. in M.H. v A.B., 2019 SKCA 135, 36 RFL (8th) 261: [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. [68] In a case that involves the best interests of a child, 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. [69] The vast majority of Ms. A.E.’s evidence falters at the first stage of the test.

Her November 19, 2020, affidavit consists of 50 paragraphs. The first paragraph is introduction and the second paragraph incorporates an earlier affidavit into her current affidavit. The averments from paragraphs 3 to 20 discuss the adoption and consist of information that was available to Ms. A.E., or could have been discovered with due diligence, in advance of the hearing that resulted in the Second Order. Paragraphs 21 to 37 provide a response to the affidavits that Mr. T.C. had filed in advance of the Second Order and consist entirely of information available prior to that application.

Much of the evidence in paragraphs 3 to 37 is related to the time period that predates the First Order. [70] Ms. A.E.’s September 4, 2020, affidavit consists of 30 paragraphs. Paragraphs 1 and 30 are standard introductory and conclusory paragraphs. Paragraphs 2 to 26 do not contain any information that was not available to Ms. A.E. prior to the Second Order, with the exception of her description of the material she alleges she did not receive in relation to the application.

Only paragraphs 27 to 29, as described below, reference events that post-date that order. [71] The November 19, 2020, affidavit from the former daycare provider exclusively contains information that predates March 3, 2020. This information would have been available for both of the applications had Ms. A.E. chosen to provide it. [ 72 ] Only paragraphs 38 to 50 of Ms. A.E.’s November 19, 2020, affidavit and paragraphs 27 to 29 of her September 4, 2020, affidavit address events that have occurred after the Second Order was granted. In those paragraphs from the November affidavit, Ms.

A.E. avers that shared parenting on an alternating weekly basis began after the stay was lifted on September 21, 2020, and she has been able to speak to H.E. every night when he is in Mr. T.C.’s care. She states that H.E. asks her when he will be coming home and she often hears Mr. T.C.’s mother in the background during these calls to Mr. T.C.’s home. Ms.

A.E. also describes events that she labels as concerning incidents, including H.E. not wearing shoes on one occasion, H.E. being upset at going to his father’s home, H.E. punching her and telling her she was not his mom, having to wait for two hours to drop the child off because Mr. T.C. was late arriving home, H.E. telling her that he was going to walk to her place, and H.E. often telling her he does not want to go to Mr. T.C.’s. She avers H.E. does not want to talk to Mr.

T.C. on the phone when he is in her care, experiences separation anxiety when she drops him off at school or his father’s home, will not sleep on the first night he returns to her home and hits himself if she tries to talk to him about misbehaving. Ms. A.E. indicates it takes H.E. three days to get back to his usual routine when he returns to her care. [ 73 ] In her September 4, 2020, affidavit, Ms. A.E. avers H.E. asked her on August 15, 2020, at Mr. T.C.’s whispered prompting during a phone conversation, if she was sad and was coming back to Dad’s house.

She further states H.E. has been acting strange and distant when he returns from Mr. T.C.’s house. She has registered the child in the kindergarten required by the Second Order. [ 74 ] The fresh evidence affidavits filed by Mr. T.C. and his mother also devote significant space to events that occurred before the Second Order was granted. With regard to events that occurred after the Second Order was granted, in his September 2, 2020, affidavit, Mr. T.C. avers Ms. A.E. repeatedly refers to him by his first name rather than “Daddy” when she speaks to H.E. about him.

He states that H.E. has told him that he is not his dad and that Ms. A.E.’s new fiancé is his dad and appeared confused and upset when he stated this. In his November 30, 2020 affidavit, Mr. T.C. describes the same anxious reactions from H.E. to leaving his home or being dropped off at school by him as Ms. A.E. describes when the child leaves her home or is dropped off at school by her. He avers that he “continue[s] to experience problems with [Ms. A.E.] and parental alienation”. Mr. T.C. describes Ms.

A.E. yelling and swearing at him in front of H.E. on November 2, 2020, stating that he was “not [H.E.’s] dad”, “did not care about him because I was not [H.E.’s] dad” and “you don’t give a shit about him because he is not yours”. He avers H.E. tells him that Ms. A.E. continues to say bad things about him to H.E., including that he is “dangerous” and a “bad parent”. Mr. T.C. describes H.E. being distracted during telephone calls with Ms. A.E. but he tries to encourage him to talk to her. He avers his own telephone time with H.E. is infrequent and H.E. is sometimes angry on the calls. Mr.

T.C. describes other things he alleges H.E. said to him regarding Ms. A.E. discussing her attempt to have H.E. live only with her and Ms. A.E. repeatedly telling H.E. that Mr. T.C. is “not his Daddy” and that he is “trying to take him away from his Mommy”. [ 75 ] In the November 2, 2020, affidavit sworn by Mr. T.C.’s mother, she avers that she has frequently heard Ms. A.E. call Mr. T.C. by his first name in telephone calls to H.E. and heard her have him count out the number of remaining days that he has to stay with his father.

She confirms that H.E. has difficulty separating from his father at the end of his parenting time or when going to school. [ 76 ] Each affiant describes other peripheral issues as well. [ 77 ] In my view, the fresh evidence application must be dismissed. Most of the proposed evidence filed by Ms. A.E. was available or could have been available with due diligence on her part when the Chambers applications were argued. Having regard for the test set out in S.T. , Ms. A.E.’s lack of diligence would not on its own prevent her evidence from being admitted.

However, in this case, the only critical issue was whether there had been a change in circumstances between May 28, 2020 – the date of the First Order – and August 12, 2020 – the date of the Second Order. Ms. A.E. chose not to respond to the allegations of parental alienation, notwithstanding the fact that these same allegations were being made in June of 2020, at the time of the application for the lifting of the stay in relation to the First Order.

Instead, she chose to remain steadfast in her position that every second weekend was all that was necessary in order for H.E. to maintain meaningful contact with his father. The evidence that related to facts arising after the Second Order was granted is of little relevance with regard to H.E.’s best interests, particularly when read in conjunction with the proposed reply affidavits filed by Mr. T.C.

Even with the application of a flexible approach to the entirety of the proposed evidence, it is my view that none of the evidence meets thetest for admission on this appeal. C. Variation 1. Parental alienation as a material change in circumstances [78] A material change in circumstances is required to vary an interim parenting order.

The nature of such a change has recentlybeen described by Kalmakoff J.A. in A.M. v Ministry of Social Services, 2020 SKCA 114: [133] As the Supreme Court of Canada stated in Gordon [ (SCC), [1996] 2 SCR 27], change alone is not enough tosatisfy the applicant’s burden with respect to this first step. The change in circumstances must be material. It “must have altered the child’sneeds or the ability of the parents to meet those needs in a fundamental way” and represent “a distinct departure from what the court couldreasonably have anticipated in making the previous order” (Gordon at para 12).

Justice McLachlin (as she then was), writing for themajority in Gordon, went on to say: [13] It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. [134] In short, the change must be something of sufficient magnitude to compel the conclusion that the previous order might have beendifferent had the circumstances that now exist prevailed at the time the original order was made. [79] In order for a subsequent interim order to change the legal status quo established by an existing interim order, a judge must findthat the child is at risk or that there is some other compelling reason to vary the order: Guenther at para 5, Napper-Whiting v Whiting,2014 SKCA 33 at paras 3–4, 433 Sask R 235, and Gebert at para 13.

Absent such circumstances, interim orders should remain in placepending resolution through agreement or trial. [80] A threshold consideration for this appeal is the determination of whether parental alienation, or, as stated by the SecondChambers Judge, a “risk of becoming alienated” (at para 25), can be a material change in circumstances that constitutes a sufficientlycompelling reason to permit a variation of an interim order. Ms. A.E. argues that a risk of alienation or an anticipated alienation is aninsufficient basis to ground a finding of a material change of circumstances. Mr.

T.C. submits that alienating behaviour such as thatengaged in by Ms. A.E., with its consequent effect on the child, is sufficient to find such a change and presents compelling circumstancesthat permits a variation application to be granted.

He argues that it would be bizarre to only permit a judge to find a material change andcompelling circumstances once parental alienation had succeeded. [81] While this Court has not previously addressed this precise issue, several cases from the Saskatchewan Court of Queen’s Benchhave considered it: see, for example, K.J.B.S. v S.G.S., 2018 SKQB 194; J.J.B. v S.J.B., 2019 SKQB 172, 27 RFL (8th) 129; Planchot vPlanchot, 2009 SKQB 396; Mathieson v Mathieson, 2005 SKQB 441, 272 Sask R 66; and Smith v Smith (1997), (SKKB), 160 Sask R 161 [Smith].

Although the applicants in these cases were often not successful in establishing that the required change hadoccurred, all of them proceeded on the premise that alienating parental behaviour could form the basis for finding a material change incircumstances sufficient to permit a variation of an existing order or judgment. [82] Similarly, in other provinces, alienating parental behaviour has been held to be the basis for finding a material change incircumstances: see, for example, Lopez v Dotzko, 2011 ONSC 6778; J.D. v Y.P., 2011 BCSC 1237; Lower v Stasiuk, 2010 BCSC 1081,aff’d 2013 BCCA 389, leave to appeal to SCC refused, [2014] 2 SCR viii; Caparelli v Caparelli (2009), 80 RFL (6th) 446; T.S. v.

A.V.T.,2008 ABQB 185, 10 Alta LR (6th) 387; and Zinck v Fraser, 2006 NSCA 14, 22 RFL (6th) 334. [83] Given the significant impact on a child’s best interests from having strong, active, positive relationships with each of theirparents, behaviour by one parent that seeks to minimize, undermine or destroy that relationship can represent a material change in relationto the condition, needs or circumstances of the child and the ability of the parents to meet the needs of the child. It can be a compellingreason to vary an existing interim order.

As with many issues that require determination regarding parenting, a finding that alienatingbehaviour is sufficient to establish the required change is heavily dependent on the situation being examined. Such a determination cannotbe lightly made when considering a variation application in Chambers. However, it is my view that, in appropriate circumstances,alienating behaviour can be sufficient to constitute a material change in circumstances and a compelling reason to grant a variation of anexisting interim order. 2. Analysis of the Second Order [84] Ms.

A.E. argues that there was no change at all in this matter between the date of the First Order and the Second Order, letalone compelling circumstances that would have permitted a variation of the First Order. She submits the Second Chambers Judge erred inlaw by ignoring the stringent test that must be applied to the variation of interim orders and making a drastic change to the parentingarrangements in the absence of the necessary factual underpinning. Mr. T.C. counters this argument by submitting the Second Chambersjudge properly relied on compelling evidence that Ms.

A.E. had embarked on a deliberate and insidious campaign designed to undermineand damage the relationship between father and son. He further contends Ms. A.E.’s conduct required decisive action in response in orderto protect the child, prevent the intensification of her efforts and ensure H.E.’s best interests. Mr. T.C. says the Second Order does justthat. [85] The Second Chambers Judge was well aware that she had to find a material change in circumstances before she could vary the

First Order. She was also aware that, to change the legal status quo from the First Order, she had to find compelling evidence requiring avariation. She described her task as follows: [4] Given that this Court has ordered that primary residency of [H.E.] is to be with [Ms. A.E.], [Mr. T.C.] is asking the court to vary aninterim custody order prior to trial. The following issues arise: 1. Is there compelling evidence of a material change in circumstances that affects [H.E.’s] best interest so as to necessitate a changefrom primary residence with the mother to a shared parenting regime prior to trial? 2. What parenting

schedule is in [H.E.’s] best interest? [86] Mr. T.C. bore the onus of establishing that a material change of circumstances had occurred: Thieven v Thieven, 2019 SKCA128 at para 27, 30 RFL (8th) 257. The Second Chambers Judge concluded that Mr. T.C. had satisfied that onus by finding that Ms.

A.E.was “attempting to alienate [H.E.] from his father” (at para 5), which, in her view, represented a material change in circumstances that hadarisen after the First Order was granted and presented a compelling reason to vary it. [87] For the purposes of this appeal, there is no need to attempt to reconcile the inconsistent findings of fact between the FirstChambers Judge and the Second Chambers Judge regarding the date of the parties’ separation and the role of Ms. A.E. as primary parent.Those determinations will fall to the trial judge if this matter proceeds to trial.

From the standpoint of the facts that existed prior to thegranting of the First Order, it is sufficient to observe that the Second Chambers Judge found Mr. T.C. had been an active, loving andinvolved parent to H.E. from May of 2018 onward. This is not inconsistent with any findings by the First Chambers Judge. It is the eventsthat occurred after the First Order was granted that are relevant to this appeal. To be clear, it was not open to the Second Chambers Judgeto sit on appeal of the First Order.

Insofar as the Second Chambers Judge made findings of fact that differ from the facts found by the FirstChambers Judge, she was in error. However, the point to be made and stressed is that the resolution of this appeal turns on the evidence ofparental alienation that arose after the First Order. [88] As set out above, the Second Chambers Judge made extensive findings of fact regarding Ms. A.E.’s behaviours after the FirstOrder was granted, and their associated effect on H.E., which she determined constituted attempts to alienate him from his father.

Shefound there was “compelling evidence that [H.E.] is at risk of becoming alienated from [Mr. T.C.] … who has played a significant andactive role in his life as a loving parent” (at para 25). The ten significant categories of facts, which she found in paragraph 27 of herdecision to constitute evidence that Ms. A.E. was alienating H.E. from his father after May 28, 2020, are set out earlier in this judgmentand need not be repeated here. It appears that she found it to be particularly problematic that Ms. A.E. had told H.E. that Mr.

T.C. was nothis father and was seeking to have him renounce his parental rights so that he could be replaced by her new partner, which she concludedwas causing the child to be anxious, uncertain and scared about his father. The Second Chambers Judge found Ms. A.E. was “destabilizingthat parent–child relationship” (at para 29). She further determined that Ms. A.E.’s move to begin a new relationship and the imminentarrival of a new sibling were part of the changes that were affecting H.E.’s stability.

While the reasons provided by the Second ChambersJudge do not strictly keep the analysis of a material change in circumstances separate from the second stage where she considered H.E.’sbest interests afresh, it is obvious that she found that the alienating behaviour of Ms. A.E., in the situation that H.E. faced, was sufficient toconstitute a material change in circumstances and further found this combination of events presented the requisite compelling reason tovary the First Order. [89] The Second Chambers Judge’s findings of fact regarding the conduct engaged in by Ms.

A.E., and its effect on H.E., areunassailable because they were based on uncontroverted evidence. Likewise, her further finding that the actions of Ms. A.E. wereresulting in H.E. becoming alienated from his father cannot be disturbed on an appeal from this interim order. Expert evidence is notrequired to establish parental alienation: S.T. at paras 78–82. The alienating behaviour came at the same time as many other changesaffecting H.E.’s stability. All of these findings of facts are well grounded in the evidence and must stand for interim purposes.

The issue iswhether the Second Chambers Judge erred in determining that those facts supported her ultimate discretionary decision that a materialchange in circumstances had occurred and presented a compelling reason to vary the existing legal status quo. [90] While the behaviour exhibited by Ms. A.E., and its associated effect on the parent–child relationship between H.E. andMr. T.C. is highly concerning and clearly detrimental to H.E.’s best interests, I do have some hesitation as to whether it was sufficient toground a material change in circumstances.

However, in applying the deferential standard of review applicable to this discretionary interimdetermination, I cannot say that the Second Chambers Judge erred in principle, was under a significant misapprehension with regard to anyof the evidence, failed to consider any of the evidence or committed an error of law. She did not reach a decision that is so clearly wrongthat it would result in an injustice.

I can find no error that would permit interference by this Court in her determinations on this issue. [91] Having found a material change and the existence of compelling circumstances, the Second Chambers Judge was then requiredto move on to the second stage of the analysis and make a parenting order that she found to be in H.E.’s best interests: Talbot v Henry(1990), (SK CA), 84 Sask R 170 at para 25, and Wiegers v Gray, 2008 SKCA 7 at para 13, 291 DLR (4th) 176. Shefound both parents to be loving, capable and involved parents and that H.E. would benefit from spending significant time in each of theircare.

A shared parenting regime was determined to be the best arrangement to meet this child’s needs, including providing a solution tocounter the detrimental effects of Ms. A.E.’s alienating behaviour. While other parenting arrangements, such as generous and frequentparenting time for Mr. T.C. short of shared parenting, may have been sufficient to counteract the effects of Ms. A.E.’s alienating behaviourand the change that had occurred, the order that was made was well within the discretion of the Second Chambers Judge to make for thischild in these circumstances.

There is no basis upon which this Court could interfere in her determination that the Second Order metH.E.’s best interests. [92] I cannot give effect to this ground of appeal. D. Conclusion on the second appeal [93] The appeal from the Second Order is dismissed.

VIII. Conclusion [94] Both of the appeals are dismissed. Given the mixed success, I would order that there be no costs awarded with respect to eitherappeal. There will be no order of costs in relation to the second stay application. There shall be no costs for the preparation of the commonappeal book. However, there will be an order requiring Ms. A.E. to pay costs for the fresh evidence application in CACV3691. The costsof the other applications in this Court have already been dealt with by the Chambers judges who heard those applications. “Tholl J.A.” Tholl J.A.I concur. “Jackson J.A.” Jackson J.A.

Barrington-Foote J.A. (dissenting in part) I. Introduction [95] For the reasons provided by my brother Tholl J.A., I too would dismiss the appeal from A.E. v T.C. (28 May 2020) Regina,FLD 106 of 2020 (Sask QB) [First Order]. Neither the reasons nor the remedy, when considered together with the record, disclose an errorof law or a palpable and overriding error of fact by the Court of Queen’s Bench Chambers judge [First Chambers Judge].

Given thestandard of review that applies on the appeal of interim parenting orders, there is no basis to interfere with his decision. [96] However, I do not agree that the appeal from A.E. v T.C. (14 August 2020) Regina, FLD 106 of 2020 (Sask QB) [SecondOrder] should be dismissed. With respect, it is my view that the Court of Queen’s Bench Chambers judge [Second Chambers Judge] erredin principle. II. Analysis [97] I would first note that Mr. T.C. was entitled to apply for the Second Order.

However, as Tholl J.A. points out, the SecondChambers Judge was not entitled to vary the First Order unless she was satisfied there was a material change in circumstances. Further, thestatus quo should only be changed on an interim basis if there is a compelling reason to do so, or the child is at risk: Gebert v Wilson, 2015SKCA 139 at para 13, [2016] 5 WWR 656 [Gebert].

The First Chambers Judge had decided that since the parties separated in August of2019, H.E. had resided primarily with A.E., and that this should continue to avoid an “abrupt and dramatic change to the parenting of[H.E.]” (at para 6). [98] The Second Chambers Judge correctly identified the decision she had to make; that is, was there compelling evidence of amaterial change in circumstances that affected the child’s best interest “so as to necessitate a change from primary residence with themother to a shared parenting regime prior to trial” (at para 4)?

Justice Caldwell recently reiterated this principle in Thieven v Thieven, 2019SKCA 128, 30 RFL (8th) 257 [Thieven]: [24] … an applicant seeking to vary an existing custody order under s. 17(5) of the Divorce Act must, as a threshold to the court’sconsideration of the merits of that application, establish to the court’s satisfaction that a material change in the condition, means, needs orother circumstances of a child of the marriage has occurred since the court granted the custody order then in effect.

If the threshold is met,only then may the court embark on an inquiry into the merits of the variation application. [99] The Second Chambers Judge also identified the law as to what constitutes a material change in this context.

Justice Laing (as hethen was) put the matter as follows in his oft-cited decision in Guenther v Guenther (1999), (SK KB), 181 Sask R 83(QB) [Guenther]: [5] What this application ignores and there have been others recently, is the consistent case law which states the courts should not varyinterim custody arrangements whether legal or de facto in the absence of evidence that the child or children are in some way at risk, orother compelling reason. … … [8] It appears from the foregoing case law, it constitutes an error in principle, and a reversible error in law to vary interim custodyarrangements pending trial in the absence of evidence of risk to the child.

The foregoing case law indicates that once an interim custodyarrangement has been in place for some time, whether de facto, by court order, or by agreement of the parties, the non-primary care parentshould not apply on an interim basis to vary the arrangement (except where risk to the child exists), but proc

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