R.C.S. v R.D.L., 2022 SKCA 52

Court of Appeal for Saskatchewan Docket: CACV3886 Citation: R.C.S. v R.D.L. , 2022 SKCA 52 Date: 2022-05-03 Between: R.C.S. Appellant (Respondent) And R.D.L. Respondent (Petitioner) Before: Schwann, Tholl and Kalmakoff JJ.A. Disposition: Application to introduce new evidence denied; appeal dismissed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Madam Justice Schwann The Honourable Mr. Justice Tholl On appeal from: FLD 52 of 2021 (QB), Battleford Appeal heard: April 14, 2022 Counsel: Jaylyn E. Lawrence for the Appellant Arran J. Ferguson for the Respondent Kalmakoff J.A.

I. INTRODUCTION [ 1 ] The parties in this appeal are the parents of B.D.S., a 5-year-old girl. R.C.S. is the child’s father; R.D.L. is her mother. R.C.S. appeals an order of a Court of Queen’s Bench Chambers judge concerning the parenting of B.D.S. ( R.D.L. v R.C.S. (24 August 2021) Battleford, FLD 52 of 2021 (Sask QB) [ Interim Order ]). [ 2 ] R.C.S. had sought, among other things, an interim order for equal shared parenting time and an order that B.D.S. be required to attend a certain school.

In written reasons that gave rise to the Interim Order , the Chambers judge declined to grant those orders, holding that there was no compelling reason to change the parenting status quo on an interim basis, and that the matter of the child’s schooling would best be resolved at a pre-trial conference or trial ( R.D.L. v R.C.S. (29 July 2021) Saskatoon, FLD 186 of 2021 (Sask QB) [ Chambers Decision ]). [ 3 ] R.C.S. contends the Chambers judge erred in various ways.

He invites this Court to set aside the Interim Order , as supported by the reasons in the Chambers Decision , and make a determination that he have equal-time shared parenting on an interim basis, as well as the order regarding school attendance. In support of his position on appeal, he also applies to introduce new evidence before this Court. [ 4 ] For the reasons that follow, the application to introduce new evidence is denied, and the appeal is dismissed. II. BACKGROUND [ 5 ] R.C.S. and R.D.L. cohabited from the fall of 2016 until the spring of 2019. They were never married.

During their cohabitation, they lived on a farm outside the City of North Battleford. Their daughter, B.D.S., was born in September of 2016. [ 6 ] R.D.L. also has a son, M.C.R., from a previous relationship. M.C.R. resides primarily with R.D.L. but is parented by his father every second weekend. [ 7 ] After R.C.S. and R.D.L. separated in May of 2019, R.D.L. and the children moved into a house in the town of Battleford. R.C.S. continued to live on the farm. In the period immediately following separation, the parties did not have a formal or regimented parenting

schedule but, eventually it became the case that R.C.S. cared for B.D.S. every second weekend, from Thursday after school until Monday morning. [ 8 ] On May 31, 2021, R.D.L. issued a petition, seeking relief relating to the division of family property. R.C.S. responded with an answer and counter-petition in which he sought, among other things, shared parenting of B.D.S., and joint decision-making responsibility for her. [ 9 ] In late June of 2021, R.C.S. brought an application for substantive interim relief. In precise terms, he sought an order that would (

i) grant him equal-time shared parenting on a weekly rotating basis and equal parenting time during school holidays at Christmas, February, Easter and Summer; (ii) maximize the time the children would spend with each other; (iii) require B.D.S. to attend a specific French immersion school; and (iv) specify that B.D.S.’s residence remain in the Battlefords. [ 10 ] Prior to this application, no court order governing the parties’ parenting time of B.D.S. had ever been made. Nor had they entered any formal agreement in that respect.

R.C.S.’s application was based on his contention that he and R.D.L. had shared parenting time of, and decision-making responsibility for B.D.S., both while they had cohabited and for more than seventeen months after

separating. He contended that it was only since October of 2020 that R.D.L. had unilaterally imposed an arrangement that saw his parenting time limited to every second weekend. R.C.S. also wanted B.D.S. to attend a French immersion school, to foster her connection to her French Métis heritage. He sought an order ensuring that B.D.S.’s residence remain in the Battlefords. [ 11 ] R.C.S.’s application was initially made returnable for July 9, 2021. It did not proceed on that day.

Instead, the parties agreed to adjourn the hearing of the application to July 23, 2021, and to an interim order that R.C.S. would parent B.D.S. on a “without prejudice” basis for the week of July 14, 2021, to July 21, 2021. The application was argued in Chambers on July 23, 2021, and, as set out above, the Chambers judge declined to grant much of the relief R.C.S. had sought.

R.C.S.’s request to transfer the action from the judicial centre of Saskatoon to the judicial centre of Battleford was granted ( Chambers Decision at para 6), as was his request for an order that the parties have joint decision-making responsibility for B.D.S. (at para 7). However, the Chambers judge declined to make any of the other parenting orders that R.C.S. had sought. He found that the status quo that existed with respect to parenting was that B.D.S. had lived primarily with R.D.L., and that R.C.S. had exercised parenting time “at least every second weekend” from Thursday to Monday.

Proceeding from that footing, and citing Gebert v Wilson , 2015 SKCA 139 , 467 Sask R 315 [ Gebert ], and Seidel v Seidel , 2021 SKCA 92 [ Seidel ], the Chambers judge determined that changing that status quo in the interim would not be appropriate. In that regard, he said: [3] The parties began living together in the fall of 2016. The exact date of when that started is disputed between the two of them. However, that particular fact is of no moment to the matters to be decided now. They separated in May, 2019.

They have been parenting the child, it appears, with her being primarily resident with [R.D.L.]. [R.C.S.] has then been exercising regular parenting time at least every second weekend. This appears to have morphed into every second weekend from Thursday until Monday. … [10] In the case before me, there is nothing in the evidence to suggest this child is at risk. Similarly, the evidence does not suggest a compelling reason for changing the status quo that has been in existence for a lengthy period of time. What this application boils down to is [R.C.S.] seeks to have additional parenting time with the child.

He thinks his parenting time is being unfairly restricted by [R.D.L.]. While she denies that is the case, she does seek to have the parties continue to live under the arrangement they put in place. [11] The status quo continues to be effective for this child. A fundamental change now based solely on affidavit materials is not in her best interests. Rather, the parties should proceed on to a pre-trial conference, and if necessary, a trial to allow the fulness of evidence to assist in determining what might be in this child’s best interests on a final basis.

Interim orders are not to be tinkered with because one party or the other seeks to have a change. The guidance of Gebert , as reinforced by Seidel , does not permit that to happen. [ 12 ] The Chambers judge also declined to make the order R.C.S. had sought with respect to B.D.S.’s school registration, holding that a dispute of that nature would be better resolved at a pre-trial conference or trial, and not through an interim order. He further determined that there was no evidentiary basis on which to make an order requiring that B.D.S.’s residence remain in the Battlefords. III.

THE GROUNDS OF APPEAL [ 13 ] On this appeal, R.C.S. does not take issue with the aspect of the Interim Order that dismissed his application for an order requiring that B.D.S.’s residence remain in the Battlefords. He challenges only the parenting time and school enrolment components of the Interim Order .

In that regard, the arguments he advances can be organized into four grounds of appeal. [ 14 ] First, R.C.S. contends the Chambers judge erred by making findings of fact that were inconsistent with the uncontroverted evidence. [ 15 ] Second, he asserts that the Chambers judge failed to provide adequate reasons and, as a result, rendered an ambiguous order. [ 16 ] Third, he argues that the Chambers judge erred by failing to fully consider the factors that The Children’s Law Act, 2020 , SS 2020, c 2 [ CLA 2020 ] required him to consider in making a parenting order. [ 17 ] Fourth, he says the Chambers judge erred by declining to make an order regarding B.D.S.’s school enrolment. [ 18 ] R.C.S. submits that, because of these errors, this Court should set aside the Interim Order and make an order of the nature that he had sought before the Chambers judge.

IV. STANDARD OF REVIEW [ 19 ] The standard of review applicable to appeals from interim parenting orders is narrow in scope and deferential in nature. This Court will only intervene in such orders where the Chambers judge has erred in principle or misapprehended relevant evidence, or where the decision is clearly wrong. The error that prompts intervention must be of such a nature as to compel reversal of the order ( M.H. v H.S. , 2019 SKCA 122 at para 8 [ M.H. ]; A.M.D. v M.R.M. , 2021 SKCA 71 at para 30 [ A.M.D. ]; T.K. v C.E. , 2021 SKCA 138 at para 5 , 63 RFL (8th) 1).

Overall, the approach to appellate review of an interim parenting order is “delimited and narrow, calling for the appellate court to afford a considerable measure of deference to the decision-making that led to the order in question” ( K.G.K. v L. T.K ., 2021 SKCA 12 at para 4 ). [ 20 ] This approach to appellate review of interim parenting orders presents what has variously been described as a “difficult task” ( M.H. at para 7 ), a “high hurdle” ( Wyatt v Reindl , 2020 SKCA 36 at para 11 , 36 RFL (8th) 253), and a “significant hurdle for an appellant to clear” ( Gebert at para 8 ).

In Bolan v Bolan , 2013 SKCA 97 , 423 Sask R 151, Caldwell J.A. explained the rationale behind the deferential approach to appeals from interim parenting orders, with reference to the context of the proceedings in which they arise: [6] … An interim custody order is a temporary balance which a Queen’s Bench chambers judge must strike after weighing the objectives and factors set out in the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp .) (or in The Children’s Law Act, 1997 , S.S. 1997, c. C-8.2 )

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

This Court is not entitled to simply re-make a custody and access decision fromthe ground up along the lines that it might have preferred or thinks best”. V. New EVIDENCE [21] R.C.S. applies to introduce new evidence on this appeal, in the form of two affidavits, one sworn on November 15, 2021, andthe other on April 4, 2022.

Those affidavits describe events, relating to his exercise of parenting time, that R.C.S. says have occurred sincethe Chambers Decision and Interim Order were rendered. [22] Applications to adduce evidence in civil appeals are governed by Rule 59 of The Court of Appeal Rules and require an exerciseof discretion by the Court.

The principles applicable to the exercise of that discretion vary depending on whether the evidence existedbefore the decision from which the appeal is taken or arose thereafter (Maitland v Drozda (1983), (SK CA), 22 Sask R1 (CA) [Maitland]; Turbo Resources Ltd. v Gibson, (SK CA), [1987] 60 Sask R 221 (CA); Mental Health andAddictions Services v S.B., 2021 SKCA 18 at para 8, 456 DLR (4th) 587 [S.B.]; Cannon v Saskatchewan (Court of Queen’s Bench), 2021SKCA 77at para 46 [Cannon]). [23] Where the evidence sought to be introduced on appeal existed at the time of the hearing that led to the decision under appeal,this Court has consistently employed the test set out in cases such as Maitland and R v Palmer, (SCC), [1980] 1 SCR 759[Palmer] to guide its discretion.

In the context of proceedings that engage the best interests of children, the Maitland/Palmer test is appliedin a somewhat more flexible fashion, with new evidence being admissible on appeal where the following prerequisites are met: (

a) the evidence could not have been adduced in the trial or hearing that led to the decision under appeal; (

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

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

d) the evidence is credible. See, for example: Riel v Riel, 2017 SKCA 74at para 15, 99 RFL (7th) 367 [Riel]; C.L.B. v J.A.B., 2016 SKCA 101at para 22, 484 Sask R228; M.H. at para 10; Babich v Babich, 2020 SKCA 25at para 29; and A.M.D. at para 34.

The overarching principle is that this Court isempowered to receive further evidence that is in the best interests of the child (B.L. v Saskatchewan (Ministry of Social Services), 2012SKCA 38, [2012] 12 WWR 468; S.T. v J.T., 2019 SKCA 116at para 94, [2020] 6 WWR 55 [S.T.]). [24] Where the evidence a party seeks to introduce on appeal arises after the hearing, the test is slightly different, as observedin Cannon: [49] Evidence that arises after the hearing need not meet the Palmer test, but the Palmer factors are still relevant to the question ofwhether such evidence should be admitted (C.H. v S.F., 2021 SKCA 24at para 18 [C.H.]).

The evidence must be admissible and relevantto an issue under appeal “in the sense that it bears upon a decisive, or potentially decisive, issue in the proceeding”; it must be credible;and if believed, it must reasonably have the potential, when taken with the other evidence adduced, to have affected the result (C.H. atpara 18).

Further, as stated in S.B. at paragraph 8, “it must not violate the principle of public policy that favours finality to litigation”. [25] In this case, the new evidence that R.C.S. seeks to introduce pertains to matters that have occurred since the ChambersDecision and Interim Order were rendered. In a nutshell, the proposed new evidence provides examples of situations where R.C.S. allegesthat R.D.L. has refused to be flexible regarding the parenting

schedule or has otherwise thwarted his right to participate in meaningfulparenting decisions, thus demonstrating that she is not apt to facilitate or encourage B.D.S.’s relationship with him. R.C.S. submits thatthis is evidence relevant to the consideration of B.D.S.’s best interests. In my view, in the context of this appeal, and in light of thegoverning jurisprudence, this evidence is relevant only if we determine that it is appropriate to interfere with the Interim Order and make anew parenting order going forward.

That being so, I will further address the application to introduce new evidence after I have addressedR.C.S.’s grounds of appeal. VI. ANALYSIS A. Did the Chambers judge make findings of fact that were inconsistent withthe uncontroverted evidence? [26] R.C.S.’s first line of argument is that the Chambers judge erred by making the finding that he did regarding the status quoparenting arrangement. He says the Chambers judge reasoned as though the parenting arrangement he found to exist was one that theparties had implemented by mutual agreement.

R.C.S. asserts that such reasoning was contrary to the uncontroverted evidence, which hesays established that R.D.L. had unilaterally created the parenting arrangement and left him no choice but to acquiesce, and that she haddone so as a means of serving her own interest in exerting control over the situation, rather than to benefit B.D.S. He says the Chambersjudge’s error in fact-finding led him to effectively treat the de facto parenting arrangement as being the equivalent of a formal agreementor court order and, thus, apply the wrong test when considering whether to depart from it.

[ 27 ] R.D.L., on the other hand, contends the Chambers judge made no such error. She says that, on the evidence before him, the Chambers judge was entitled to find, as he did, that B.D.S. had lived primarily with her, that R.C.S. had exercised parenting time every second week from Thursday to Monday, and that this arrangement had been in place long enough to become the status quo.

She takes the position that, for the purpose of making an interim order, it mattered not so much how the status quo had come about, but rather whether B.D.S.’s best interests required a change in the interim, either to prevent her from being placed in danger or for some other compelling reason. R.D.L. submits the Chambers judge was entitled to conclude that no change was called for on that basis; and, in reaching that conclusion, he neither erred in his assessment of the evidence nor in the application of the law. [ 28 ] I would not give effect to this aspect of R.C.S.’s argument.

The evidence regarding the past and existing parenting arrangements was not uncontroverted on the points that R.C.S. says it was. I also do not read the Chambers judge’s findings of fact as being contrary to the uncontradicted material portions of the evidence. [ 29 ] The evidence concerning the precise nature of the parenting arrangement that existed both pre- and post-separation was controverted.

But that did not mean the Chambers judge was not entitled to make the findings of fact necessary to assess B.D.S.’s best interests and make a parenting order, as Tholl J.A. explained in T.C. v A.E. , 2021 SKCA 79 : [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. (Emphasis in original) [ 30 ] Here, there was evidence from which the Chambers judge could properly conclude that, both before the parties separated and in the initial period post-separation, B.D.S. had spent considerably more time in R.D.L.’s care than she had spent in the care of R.C.S.

There was evidence that the parenting situation had been dynamic and fluid, with the parties accommodating each other’s work schedules, before the routine of R.C.S. having parenting time every second Thursday to Monday became the norm.

Moreover, there was evidence from which the Chambers judge could properly conclude that, regardless of how the situation came about, R.D.L. had, for a considerable period prior to the application, been the parent of primary residence and had B.D.S. in her care the bulk of the time. [ 31 ] As a bottom-line proposition, the Chambers judge’s finding regarding the status quo, in my view, is one that was sufficiently grounded in the evidence and, accordingly, is entitled to deference. B.

Did the Chambers judge err by failing to provide adequate reasons, thereby rendering an ambiguous order? [ 32 ] The second line of R.C.S.’s argument is that the Chambers judge failed to provide adequate reasons detailing how he resolved the conflicts in the affidavit evidence and made the findings of fact that he did. R.C.S. asserts that there were significant discrepancies between his account and R.D.L.’s account of the parties’ respective roles in B.D.S.’s parenting that needed to be reconciled for a parenting order to properly be made.

He contends that the Chambers judge erred by failing to explain how he reconciled those discrepancies. He also submits that the lack of detail in the Chambers judge’s reasons left the parties with a parenting order that is ambiguous and unenforceable. [ 33 ] I also reject this argument. [ 34 ] Where it is argued on appeal that a Chambers judge has failed to provide adequate reasons, that argument must be considered in the context of the record before the Court.

As Ryan-Froslie J.A. explained in Scobie v Thiessen , 2021 SKCA 47 at para 31 , 54 RFL (8th) 256 [ Scobie ], “[t] his is so because the record may support the Court’s decision even though no reasons are provided, or the reasons are inadequate”.

Determining whether reasons are adequate requires the application of a “functional test – one that takes into consideration the context giving rise to the decision , the record and the purpose of providing reasons, which includes giving an explanation to the unsuccessful party, allowing for meaningful appellate review and enabling the public to satisfy itself that justice has been done” ( Scobie at para 33 , citing R v Sheppard , 2002 SCC 26 at para 24 , [2002] 1 SCR 869).

Reasons are particularly important where a judge is called upon to address troublesome issues of unsettled law or to resolve contradictory evidence on a key issue ( Hill v Hamilton-Wentworth (Regional Municipality) Regional Police Services Board , 2007 SCC 41 at paras 100–102 , [2007] 3 SCR 129; Gebert at para 19 ). [ 35 ] While the Chambers judge’s reasons in this case are relatively brief, they are clear and intelligible and, in my view, permit appellate review. He made a clear finding about what he determined to be the parenting status quo and provided an explanation as to how he reached that conclusion.

His reasons included reference to the factual underpinning and the legal principles that he applied in determining that it was not appropriate to depart from the status quo on an interim order basis.

Even though the Chambers judge was imprecise in his choice of language—for example, referring to R.C.S.’s application as a “request to vary the current parenting arrangements” at paragraph 8 of the Chambers Decision , and noting that “[i]nterim orders are not to be tinkered with because one party … seeks to have a change” (at para 11)—this imprecision does not detract from the fact that he was clearly alive to what this Court said in Gebert , and applied it to the circumstances before him.

That is to say, the Chambers judge’s reasons demonstrate that he approached the problem by focusing on what parenting arrangement would serve B.D.S.’s best interests in the interim, until a more permanent solution could be worked out at a pre-trial conference or trial. He concluded that the existing parenting arrangement continued to be effective for B.D.S. and that “a fundamental change now based solely on affidavit material” was not in her best interests (at para 11).

[ 36 ] In that vein, when the Chambers Decision is read in light of the full record, the status quo to which the Chambers judge was referring was one in which R.C.S. exercised parenting time with B.D.S. at least every second week from Thursday until Monday, and equally shared parenting time during holidays. The Chambers judge made an explicit finding with respect to the first aspect of that status quo, and R.D.L. had conceded the second aspect in her submissions, i.e., that equal sharing of parenting time during holidays was appropriate.

Considering all of that, while it is fair to say that the Chambers judge could have made a more detailed parenting order, his ultimate conclusion is one that is supportable on the record. [ 37 ] As an aside, it is also important to note that there was nothing in the material before the Chambers judge that suggested R.D.L. was entitled to exercise a veto power by which she could unilaterally decide, at her whim, that R.C.S. could be deprived of his regular parenting time.

I do not read the Chambers judge as having interpreted the parties’ existing parenting arrangement in that way, and nor do I interpret it in that way. Furthermore, there is nothing in the record to suggest that the parties should be precluded from being flexible about altering this

schedule to allow R.C.S. to have additional parenting time with B.D.S. where appropriate. C.

Did the Chambers judge fail to fully examine the factors that the CLA 2020 required him to consider in making a parenting order? [ 38 ] R.C.S.’s third line of argument is that the Chambers judge failed to adequately consider the factors that the CLA 2020 requires a judge to contemplate when making a parenting order. [ 39 ] Section 10(1) of the CLA 2020 provides that, in “making, varying or rescinding a parenting order, the court shall take into consideration only the bests interests of the child.” Subsection 10(3) sets out a non-exhaustive list of factors that are to be considered in the “best interests” analysis: 10

(3) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, including: (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (

c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; (

d) the history of care of the child; (

e) the child’s views and preferences, by giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (

g) any plans for the child’s care; (

h) the ability and willingness of each person with respect to whom the parenting order would apply to care for and meet the needs of the child; (

i) the ability and willingness of each person with respect to whom the parenting order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (

j) any family violence and its impact on, among other things: (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child; and (ii) the appropriateness of making a parenting order that would require persons with respect to whom the parenting order would apply to cooperate on issues affecting the child; and (

k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. [ 40 ]

Section 11 of the CLA 2020 also precludes judges from presuming that one parent should be preferred over the other when making, varying, or rescinding a parenting order. [ 41 ] R.C.S. submits that the Chambers judge effectively relied on the status quo as being determinative of B.D.S.’s best interests and, by doing so, failed to consider and analyse the full menu of factors enumerated in s. 10(3). He says that, prior to R.D.L. unilaterally imposing the parenting arrangement that the Chambers judge found to be their status quo, the parties had engaged in a fluid form of shared parenting.

He contends the Chambers judge failed to consider, for example, what that said about his ability to care for and meet B.D.S.’s needs, and the nature and strength of her relationship with him. He also asserts that the Chambers judge failed to adequately consider the evidence of R.D.L.’s efforts to manipulate the parenting

schedule in her favour and her unwillingness to be flexible regarding his parenting time. R.C.S. says this evidence demonstrated a lack of willingness on her part to facilitate or maintain his relationship with B.D.S., and that the Chambers judge failed to have due regard for that in his analysis. [ 42 ] I also see no error in this aspect of the Chambers Decision that would allow for appellate intervention.

While s. 10(3) of the CLA 2020 imposes an obligation to consider “all factors related to the circumstances of the child” when determining the child’s best interests – including those specifically enumerated – that does not translate to a requirement that a judge’s reasons must contain explicit reference to, or documented analysis of, all of the factors listed in that section. There will be, for example, cases in which one or more of the factors listed in s. 10(3) have no relevance or application to the factual circumstances that exist.

A judge cannot be said to have erred by failing to consider or specifically refer to a factor that is inapplicable to the circumstances at hand.

[43] Moreover, judges are presumed to know the law and to apply it correctly (see, for example, R v Adebogun, 2021 SKCA 136 atpara 30, [2022] 1 WWR 187; Gebert at para 20) and of particular relevance in the present circumstances, that the best interests of the childis the “only consideration” that the court may have in mind when making a parenting order (s. 10(1) of the CLA 2020). In this case, whilethe Chambers judge did not exhaustively canvas each factor set out in s. 10(3) of the CLA 2020, he did cite and refer to paragraphs 11 to14 from the decision in Gebert.

That portion of Gebert contains explicit discussion (albeit in the context of The Children’s Law Act, 1997,SS 1997, c C-8.2 [CLA 1997] and not the CLA 2020) of the principle that the paramount consideration when making a parenting order isthe best interests of the child.

In that discussion, Gebert recognizes that the best interests analysis requires a judge to take into account,among other things, the child’s relationships with both parents and the impact that any parenting order may have on the child’s day-to-dayhome environment, their relationships with other caregivers, siblings, extended family and friends, and their schooling and activities.

Evenbearing in mind the differences between the CLA 1997 and the CLA 2020, the Chambers judge’s reasons clearly demonstrate that heunderstood he was required to determine what interim parenting arrangement would serve B.D.S.’s best interests, and that he approachedthe task from a standpoint that considered all of the factors that were, in the circumstances before him, relevant to that determination forB.D.S.

In that respect, the present case differs from S.M.B. v K.R.B., 2022 SKCA 51, where this Court set aside an interim parenting orderbecause it found that the Chambers judge had erred by taking into account only one factor pertaining to the best interests of the child. TheChambers judge did not make an error of that sort here.

Appellate interference is not warranted, in my view, simply because he did notrefer to certain evidence or explicitly cite or refer to relevant statutory provisions in lock-step progression. [44] It must also be remembered that this was an application for an interim parenting order, made in Chambers. Interim orders areby their very nature meant to be temporary, acting as a bridge until a more permanent solution can be reached at a pre-trial conference ortrial. They are frequently based on affidavit evidence that is incomplete, contradictory, and untested by cross-examination.

Applicationsfor interim orders often carry with them some temporal urgency, meaning that the parties are seeking a decision that is carefully, butquickly, made. In those circumstances, it is not unusual for a Chambers judge to provide reasons for interim orders that do not thoroughlydescribe how they have analysed the evidence or applied the relevant statutory provisions. Lengthy decisions in Chambers matters areoften neither practical nor warranted (Gebert at para 20; see also: Willick v Willick, (SCC), [1994] 3 SCR 670 at 746; andSawatsky v Isfeld, 2021 SKCA 141 at para 67).

Appellate review of a Chambers judge’s decision must bear this in mind. In the finalanalysis, even though the Chambers judge’s reasons here were relatively brief, they demonstrate that he was alive to the issue that had tobe determined, cognizant of the circumstances and the imperfect evidence before him, and aware of the requirement to keep his focussquarely on B.D.S.’s best interests when deciding what parenting order should be made on an interim basis. I see no proper footing tointervene here. D.

Did the Chambers judge err by declining to make an order regardingB.D.S.’s school enrolment? [45] Before the Chambers judge, R.C.S. had sought an order directing that B.D.S. attend a specific French immersion school whenshe began kindergarten in the fall of 2021. R.C.S. took the position that such an order would be appropriate because he has French Métisheritage and, given that B.D.S. is intelligent and linguistically proficient, attending that school would benefit her from both an educationaland cultural perspective.

R.D.L. took the position that it would be in B.D.S.’s best interests to attend the same school as her olderstepbrother, which is not a French immersion school. [46] In the affidavit material that he filed with his application, R.C.S. deposed that R.D.L. unilaterally made the decision to registerB.D.S. in a non-French immersion school, despite the fact that they had previously discussed his preference for French immersion.

R.D.L.,on the other hand, deposed that, even though they had discussed the possibility of French immersion enrolment approximately one yearprior to the application, shortly after they had separated, she believed they had ultimately agreed that it would be best for B.D.S. to attendthe same school as her stepbrother, and that she had made the kindergarten registration decision on that basis.

There was clearly adisagreement of substance on this point. [47] The Chambers judge declined to change the school registration, saying that “[t]he parties should proceed with this issue to apre-trial conference to allow for some substantive discussion on what educational course might be best for this child” (Chambers Decisionat para 12). I see no error here. A Chambers judge is not required to definitively resolve every issue raised in an application for interimrelief. What was at issue in this aspect of the application was the school placement that would serve B.D.S.’s best interests.

The onlyreasonable reading of the Chambers Decision is that the Chambers judge concluded that the evidence did not support a finding that aninterim order of the nature R.C.S. had sought was in the child’s best interests and, as such, it was best left for determination at a pre-trialor trial. That conclusion is reasonable, well-supported by the record, and discloses no error in principle. Accordingly, it is entitled todeference. E.

Should the new evidence be admitted? [48] As I mentioned earlier, the new evidence that R.C.S. seeks to introduce on the appeal would be relevant only if this Courtdetermined that his appeal should be allowed and that a new parenting order should be made, in that it would have a bearing on the type ofparenting order that would be in B.D.S.’s best interests. However, given that I would dismiss R.C.S.’s appeal, it follows that the proposednew evidence is not relevant and, thus, not admissible. [49] The application to introduce new evidence is, accordingly, denied. VII.

CONCLUSION [50] For the foregoing reasons, I would dismiss R.C.S.’s appeal and affirm the Chambers judge’s determination that the status quowith respect to parenting shall remain in place on an interim basis. For the sake of clarity and enforceability of the interim order, however,I am of the view that it is appropriate to set out, in more explicit terms than the Chambers judge did, what that status quo entails withrespect to the parties’ respective parenting times. To that end:

(

a) R.C.S. shall have parenting time with B.D.S. every second week, from Thursday until Monday. If the parties cannot agree on the timing and location of the exchanges, they may apply to the Court of Queen’s Bench for further direction; (

b) R.C.S. shall have additional parenting time with B.D.S. as may be agreed upon by the parties; and (

c) R.C.S. and R.D.L. shall equally share parenting time of B.D.S. during school holidays at Christmas, Easter, February break, and summer break. If the parties are unable to agree on a

schedule for equal sharing, they may apply to the Court of Queen’s Bench for further direction. [ 51 ] During the appeal hearing, both parties agreed that B.D.S.’s best interests would be served by reaching a more permanent resolution of the issues related to parenting. With that in mind, in addition to providing the foregoing clarification to the parenting order, I would direct that the matter proceed to a pre-trial conference, on an expedited basis, with respect to issues related to parenting. [ 52 ] R.D.L. was successful on both the appeal and the applications to introduce new evidence.

She is, therefore, entitled to costs. I would fix the costs of the appeal at $1,000, and the costs of the new evidence applications at $750, all payable forthwith. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Tholl J.A.” Tholl J.A.