Arcand v Atsu, 2021 SKCA 81

Court of Appeal for Saskatchewan Docket: CACV3742 Citation: Arcand v Atsu, 2021 SKCA 81Date: 2021-05-21 Between:Jessica ArcandAppellant(Respondent)AndRiel AtsuRespondent(Petitioner)Before: Caldwell, Leurer and Tholl JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Mr. Justice CaldwellIn concurrence: The Honourable Mr. Justice Leurer The Honourable Mr. Justice ThollOn appeal from: FLD 262 of 2020, ReginaAppeal heard: May 3, 2021Counsel: Emily R. Erhardt for the Appellant David A.

Couture for the Respondent Caldwell J.A. [1] Jessica Arcand appeals against interim custody, access and parenting orders [Interim Orders] made under a fiat datedNovember 26, 2020 [November Fiat], granting Riel Atsu’s application under The Children’s Law Act, 1997, SS 1997, c C–8.2, for jointcustody, primary residency and an order requiring Ms. Arcand to return the parties’ child to Regina, Saskatchewan, from Swift Current,Saskatchewan. In detailed terms, the Chambers judge ordered that: (

a) the parties shall have joint custody of their child; (

b) the child would reside primarily with Ms. Arcand, if Ms. Arcand relocated to Regina no later than February 1, 2021; (

c) the child would be re-enrolled in school in Regina no later than February 1, 2021; (

d) commencing February 1, 2021, Mr. Atsu would have parenting time every second weekend from Thursday after school untilSunday at 7:00 p.m. and every other Thursday after school to 7:30 p.m.; (

e) the then current parenting arrangement would remain in place until Ms. Arcand had relocated to Regina or until February 1,2021; (

f) parenting exchanges would take place in public venues; and (

g) if Ms. Arcand did not relocate to Regina by February 1, 2021, the child’s primary residence would be with Mr. Atsu inRegina, and Ms. Arcand would have the parenting time set out in paragraph (

d) above. The Chambers judge also set down the matters of the child’s “primary residence and its location” for resolution at an expedited pre-trialconference. These orders have been stayed since the filing of Ms. Arcand’s notice of appeal. [2] As she had also applied for joint custody, Ms. Arcand does not appeal against that order. She appeals against the orderrequiring the child to return to Regina and the related parenting orders on two principal grounds. First, she asserts that the Chambers judgemisapprehended the affidavit evidence when he found that Mr.

Atsu had not consented to the child’s relocation to Swift Current. Second,Ms. Arcand says the Chambers judge failed to address whether it would be in the child’s best interest to place her in Mr. Atsu’s primarycare, if Ms. Arcand were to decline to return to Regina along with the child. [3] I would dismiss the appeal under both grounds. [4] Applications of this nature are heavily fact dependent.

In Gordon v Goertz, (SCC), [1996] 2 SCR 27,McLachlin J. (as she then was) wrote that each mobility case “turns on its own unique circumstances” where “the only issue is the bestinterest of the child in the particular circumstances” (at para 49). The Chambers judge summarised the circumstances of this case asfollows: [6] The parties never married. They had separated prior to [the child’s] birth in November 2012. At that time, [Ms. Arcand] resided inLeduc, Alberta with [the child], while [Mr. Atsu] was living in Moose Jaw. [7] From [the child’s] birth to when [Ms.

Arcand] moved with [the child] to Regina in July 2016, [Ms. Arcand] was [the child’s] solecaregiver. While [Ms. Arcand] was living in Alberta, she obtained her Licensed Practical Nurse (LPN) designation. [8] [Ms. Arcand] moved to Regina so that [the child] would be closer, and have greater access, to [Mr. Atsu] and his extended family,including [the child’s] paternal grandparents. However, [Ms. Arcand] and [the child] resided in [Mr. Atsu’s] home for only a few months.She and [the child] moved from [Mr.

Atsu’s] residence to their own home where they resided until they moved to Swift Current,Saskatchewan in October 2020.

[9] [Ms. Arcand] transferred her LPN licensed from Alberta to Saskatchewan. She commenced employment as an LPN at College Park II sometime in August 2016. From the written testimonials from the children of residents at that care facility which were attached to [Ms. Arcand’s] affidavit, she was a caring and empathic caregiver, and much admired by the residents. She took a leave of absence from her employment at College Park II shortly before her move to Swift Current, and once her child is born, she will take parental leave in Swift Current. [10] The affidavit evidence is controverted respecting [Mr.

Atsu’s] involvement with [the child]. [Mr. Atsu] contends that he was a very involved parent, and saw [the child] regularly. [Ms. Arcand] avers that [the child] spends most of her time with [Ms. Arcand], and [Mr. Atsu’s] parenting time is sporadic. [11] [Ms. Arcand] met her current partner, Martin Cooling [Martin] in February 2019. Martin lives in Swift Current where he is employed as a horticulturalist with the City of Swift Current. Typically, he would live in Swift Current during the week, and spend most weekends in Regina with [Ms. Arcand] and [the child]. [12] On April 29, 2020, [Ms.

Arcand] and Martin learned they were expecting a child. [Ms. Arcand] avers that upon learning this news she began planning a move to Swift Current to be with Martin. [13] [Ms. Arcand] avers that on May 10, 2020 she advised [Mr. Atsu] that she and [the child] would be relocating to Swift Current in the fall. She further avers that [Mr. Atsu] accepted this which she understood was his consenting to such a move with [the child]. [14] In August 2020, [Ms. Arcand] and Martin purchased a home together in Swift Current. [Ms.

Arcand] avers that this home is close to Ecole Centennial School in Swift Current, a school which offers French immersion, and which [Mr. Atsu] helped to select. [15] [Ms. Arcand] further avers that on September 18, 2020 [Mr. Atsu] withdrew his consent to the move. According to [Ms. Arcand], he verbally informed her that he had changed his mind, and would not allow her to take [the child] to Swift Current. [Ms. Arcand] avers, as well, that [Mr. Atsu] told her he would take her to court if she did not allow [the child] to remain in Regina with him. [16] For his part, [Mr. Atsu] completely disputes [Ms.

Arcand’s] version of events. He avers that he has always been opposed to [the child] leaving Regina. [Mr. Atsu] further avers that he told [Ms. Arcand] on July 15, 2020 that he was not in agreement with her move to Swift Current with [the child]. [17] [Ms. Arcand] did move with [the child] to Swift Current in October 2020. [The child] commenced classes at Ecole Centennial School on October 19, 2020. [ 5 ] Under the first ground of appeal, Ms. Arcand asserts that the Chambers judge materially misapprehended the evidence when he found that “if [Mr.

Atsu] did initially consent to the move, it was equivocal at best” and there was “no evidence of clear acquiescence on [Mr. Atsu’s] part to [Ms. Arcand’s] move” (at para 37). In concluding his findings on the issue of consent, the Chambers judge wrote: [38] As well, from my review of the entirety of the affidavit evidence submitted in this matter, the parties did not communicate well. It was most imprudent on [Ms.

Arcand’s] part, taking into account the difficulties the parties had in their personal interactions with each other, for her to move to Swift Current based on a series of vague and equivocal text messages. This was especially so in the absence of any court order respecting [the child’s] custody or authorizing the move. [39] Based on the evidence before me, I conclude that [Ms. Arcand’s] move was a unilateral relocation without the consent of [Mr.

Atsu] who is [the child’s] father. [ 6 ] In short, to decide the interim applications that were before him, the Chambers judge inferred from the evidence that this was a unilateral relocation. We may only disturb that finding if it is palpably in error and the error overrides the result.

In Benhaim v St- Germain , 2016 SCC 48 at para 38 , [2016] 2 SCR 352, Wagner J. (as he then was) adopted the figurative description of a palpable and overriding error from R v South Yukon Forest Corporation , 2012 FCA 165 at para 46 , 4 BLR (5th) 31, where Stratas J.A. wrote: Palpable and overriding error is a highly deferential standard of review. ...“Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing.

The entire tree must fall. [ 7 ] The standard of review for findings and inferences of fact is one reason why it is said that appellate courts owe a considerable measure of deference to the decision-making that leads to family law orders. Under the standard, even if we have a different view of the evidence, we cannot remake findings or redraw inferences of fact unless they are clearly wrong and have affected the result ( H.L. v Canada (Attorney General) , 2005 SCC 25 at paras 52-55 , [2005] 1 SCR 401). [ 8 ] In this case, there is no evidence of express consent to the move on Mr.

Atsu’s part and the Chambers judge was not persuaded that he had even tacitly consented to the move. Ms. Arcand submits that the Chambers judge should have inferred from the evidence that Mr. Atsu had, in fact, consented. While I agree that it would have been open to the Chambers judge to have drawn that inference from the evidence, the inference he did draw is also supported by the evidence.

Where a judge has inferred as fact something that is supported by the evidence, appellate courts are hard pressed to find a palpable and overriding error because a review for an error of that nature would involve assessing the weight assigned by the judge to the various pieces of evidence. It is not the role of an appellate court to second-guess the weighing of evidence by a judge ( Housen v Nikolaisen , 2002 SCC 33 at paras 22–23 , [2002] 2 SCR 235).

That is, the question in this appeal is not whether the Chambers judge could have or should have drawn a different inference from the evidence; the question is whether the inference he drew was clearly wrong or palpably in error. And, on the evidence in this case, I cannot say that it was. [ 9 ] Moreover, even if it was palpably in error—and Mr. Atsu had consented to the relocation—the error would not have overridden the result in this case. The question of consent was certainly relevant to the Chambers judge’s inquiry into the best interests of the child because it is probative of Mr.

Atsu’s understanding of that issue. But, even if Mr. Atsu had been found to have consented, he had undoubtedly retracted his consent by the time the Chambers judge heard these applications. Therefore, notwithstanding the issue of

consent, the Chambers judge had to evaluate whether relocation to Swift Current was in the child’s best interest, where retracted consentwould have been just one of the many relevant factors. [10] In sum, because the error alleged by Ms. Arcand is not palpable and, even if it had been made out, would not have overriddenthe result in this case, there is no basis to interfere with the Interim Orders under the first ground of appeal. [11] This brings me to the second ground of appeal, where Ms. Arcand argues that the Chambers judge failed to address whether itwould be in the child’s best interests to live in Mr.

Atsu’s primary care, if she were to decline to return with the child to Regina. Shesubmits the fact that the child had spent all her early years exclusively, and the majority of the time more recently, in her care meant thatthe Chambers judge had to assess whether placing the child in Mr. Atsu’s primary care was in her best interests. That is, Ms. Arcandalleges the Chambers judge erred in principle by failing to consider a relevant factor in the determination of what would be in the child’sbest interests. [12] While it may be said that the evidence established that Ms.

Arcand is the child’s primary parent, that fact is not dispositive ofwhether she should be permitted to relocate the child to Swift Current. In Russell v Russell, 2018 SKCA 80, 16 RFL (8th) 26, Ryan-FroslieJ.A. explained: [26] The Chambers judge recognized Ms. Russell had been the children’s primary parent, but that fact is not dispositive of who shouldhave interim custody of the children. The primary parent is but one factor to be considered in determining what parenting arrangement is inthe best interests of a child.

The importance of a primary parent’s role is impacted by things such as the age of the child, the child’s bondwith the other parent and others of significant importance in the child’s life, the personality, character and emotional needs of the child,the child’s physical, psychological, social and economic needs, the willingness of each parent to foster a relationship with the other parent,the need for stability and the existence of other supports in a child’s life such as extended family, childcare providers, friends, schools andactivities, as well as each parent’s ability to meet the child’s needs. … [13] Although he wrote in broad, conclusory terms, the Chambers judge canvassed the relevant factors and concluded there wereinsufficient grounds to “uproot [the child] from her well-established life in Regina” on an interim basis (at para 48).

While it is true thatthe Chambers judge did not deconstruct the evidence of Mr. Atsu’s relationship with the child or of his ability to meet the child’s needs,Mr. Atsu is the child’s father and there was, frankly, little suggestion that he was ill-suited for his role in the child’s life and no suggestionthat the child would be put in harms way while in his care. [14] One of the reasons the Chambers judge gave for denying Ms. Arcand’s relocation application was that “this move will curtail,and, perhaps, significantly, [Mr. Atsu’s] parenting time with his daughter. It will impede maximum contact between [Mr.

Atsu] and [thechild]” (at para 46). The Chambers judge could not have reached that conclusion if he had held any reservations about the child’s safetywhen in her father’s care or about her relationship with her father and his ability to meet her needs. Indeed, there was evidence that Ms.Arcand had herself placed the child in Mr. Atsu’s care more frequently and for longer durations in the time leading up to her relocation toSwift Current.

That is, while the effect of a change in the primary residence of a child is always a factor for consideration in these types ofmatters, there was little in the evidence that weighed in favour of the finding that Ms. Arcand says the Chambers judge failed to make. [15] As important as it may be in determining the best interests of the child, Ms. Arcand’s role as primary parent had to be weighedalongside other factors, including the age of the child, the child’s bond with Mr.

Atsu and other persons of importance in her life, thepersonality, character and emotional needs of the child, the child’s physical, psychological, social and economic needs, the willingness ofeach parent to foster a relationship with the other parent, the need for stability, and the existence of other supports in the child’s life suchas extended family, childcare providers, friends, school and teachers, and extracurricular activities, as well as each parent’s ability to meether needs.

The law recognises that it is generally in a child’s best interest to avoid as much disruption to the child’s life as is possible on aninterim basis. The relocation of a child inevitably entails an element of parental separation or a reduction in contact with the non-custodialparent, as well as a disruptive departure from previously known circumstances involving extended family, childcare providers, friends,school and teachers, and extracurricular activities. [16] Neither the jurisprudence nor The Children’s Law Act, 1997 establish a presumption against interim relocation (Russell vRussell at para 17).

However, as Richards J.A. (as he then was) said in Mantyka v Dueck, 2012 SKCA 109 at para 32, 399 Sask R 303, itis “difficult and unwise” for a chambers judge to make what may become a final decision about a relocation where the evidence is inaffidavit form and is contradictory, inconsistent, incomplete or limited in scope.

Interim orders are designed to give parents an opportunityto work out a more permanent solution to their custody and parenting arrangements or, failing that, to fill the gap until the court can makea final determination on what is in a child’s best interests based on all the evidence adduced at a trial.

This means that interim orders aresubject to being reversed after a trial on all the evidence, and, if that occurs, it gives rise to further disruption in a child’s life, which thelaw seeks to avoid. [17] These and other considerations led Richards J.A. to conclude that “interim relocations by a custodial parent are allowed only incompelling circumstances” (Mantyka v Dueck at para 33; emphasis added).

These same considerations underpin the Court’s reluctance tointerfere with interim orders of the sort made in this case (see: Foss v Foss (1991), (SK CA), 31 RFL (3d) 367; Dauk vLaw, 2005 SKCA 145 at para 6, 275 Sask R 158; Graham v Tomlinson, 2010 SKCA 101 at para 15, 324 DLR (4th) 156; Hall v Hall, 2011SKCA 86 at para 1, 337 DLR (4th) 89; Mantyka v Dueck at para 47; Bolan v Bolan, 2013 SKCA 97 at paras 6–7, 423 Sask R 151;Jochems v Jochems, 2013 SKCA 81 at para 24, 417 Sask R 232; J.P. v J.P., 2016 SKCA 168 at paras 34–38, 89 RFL (7th) 92; C.L.B. vJ.A.B., 2016 SKCA 101 at paras 13–14, 484 Sask R 228; Potzus v Potzus, 2017 SKCA 15 at paras 28–29, [2017] 7 WWR 296; Russell vRussell at para 12; and Wyatt v Reindl, 2020 SKCA 36, 36 RFL (8th) 253)). [18] I would dismiss the appeal.

I would order that Mr. Atsu have his costs in this appeal, which I would fix at $1,000. Given thetime that has elapsed, I would order that all references in the November Fiat to “February 21, 2021” shall be deemed to be references to“July 5, 2021”, and the Interim Orders shall be amended accordingly. [19] The interests of the parties and the child are best served by proceeding quickly to the expedited pre-trial settlement conferencethat the Chambers judge had ordered and, failing resolution thereat, to a trial, where—in each case—the matter of the child’s relocation toSwift Current will be at issue.

“Caldwell J.A.” Caldwell J.A. I concur. “Leurer J.A.” Leurer J.A. I concur. “Tholl J.A.” Tholl J.A.