Chapman v Somerville, 2022 SKCA 88

Court of Appeal for Saskatchewan Docket: CACV3860 Citation: Chapman v Somerville , 2022 SKCA 88 Date: 2022-08-04 Between: Anne Kristen Marie Chapman Appellant (Respondent) And Dylan Raymond Gordon Somerville Respondent (Petitioner) Before: Richards C.J.S., Tholl and McCreary JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice McCreary On appeal from: 2021 SKQB 178 , Swift Current Appeal heard: June 15, 2022 Counsel: Doc Crooks for the Appellant Lindsay Gates for the Respondent Tholl J.A. I.

INTRODUCTION [ 1 ] Anne Chapman and Dylan Somerville are the parents of a four-year-old daughter. They separated in 2019 and, after some initial difficulties, shared parenting on an equal basis pursuant to an interim order. However, Ms. Chapman wanted to move to Alberta with the child, whereas Mr. Somerville wished to remain in Saskatchewan. After a trial was held to resolve this dispute, the trial judge found that it was in the child’s best interests for her to reside primarily with Mr. Somerville in Saskatchewan. [ 2 ] Ms.

Chapman asserts that the trial judge erred in relation to her handling of the “double bind” issue that arose in this matter. She further contends that the trial judge erred by analyzing the parties’ parenting plans and the child’s best interests using an improper method, by placing too much weight on the fact that Mr. Somerville would become an access parent , if the move were to be allowed, and by improperly assessing her financial situation. Ms. Chapman raises several other grounds of appeal that are subsumed under these main arguments.

Lastly, if she is unsuccessful on these grounds of appeal, she submits that the trial judge erred by not ordering shared parenting to continue until the child commences grade one. [ 3 ] For the reasons that follow, the appeal is dismissed. II. BACKGROUND [ 4 ] Ms. Chapman grew up in Drayton Valley, Alberta. Her parents, extended family, and friends reside there. She met Mr. Somerville when he was living and working in Drayton Valley. He grew up in a smaller town in Saskatchewan, Eatonia, which is located 550 kilometres away from Drayton Valley. Mr.

Somerville moved back to his hometown in 2015 and has resided there since. His parents, extended family, and friends live there. [ 5 ] The parties began residing together in Eatonia in September of 2016 and their daughter was born in September of 2017. She is their only child. They separated on June 25, 2019, when Ms. Chapman took their daughter and moved back to Drayton Valley. Mr. Somerville immediately opposed the move and applied for an order requiring the child be returned to Eatonia.

An interim order was granted that, inter alia , ordered the return of the child to Eatonia and provided for parenting on an equal shared basis, commencing August 23, 2019: Somerville v Chapman (20 August 2019) Regina, FLD 196 of 2019 (Sask QB). Ms. Chapman returned to Eatonia and the child remained in her and Mr. Somerville’s equal parenting care at the time that the trial commenced on April 19, 2021. At trial, she maintained her position that it was in the child’s best interests to move with her to Drayton Valley, whereas Mr. Somerville believed the child’s best interests were served by remaining in Eatonia.

III. TRIAL DECISION [ 6 ] The trial judge rendered her decision on June 15, 2021: Somerville v Chapman , 2021 SKQB 178 [ Trial Decision ]. Following a brief introduction, the trial judge noted that neither party questioned the other parent’s ability to meet the child’s needs or the presence of a strong and healthy relationship between each parent and their daughter. She then defined the issues, which consisted of determining the parental decision-making authority, the parenting arrangements, the relocation issue, child support, and costs.

All other financial and property issues had been resolved in advance of the trial. [ 7 ] After setting out the background in detail, which appears to have been largely uncontested, the trial judge moved on to the

legislative and jurisprudential framework. She excerpted s. 10, s. 15, and s. 16 of The Children’s Law Act, 2020, SS 2020, c 2 [CLA 2020],and referred to T.B.S. v S.J.B., 2020 SKCA 93, 45 RFL (8th) 148, Gordon v Goertz, (SCC), [1996] 2 SCR 27 [Gordon],and Spencer v Spencer, 2005 ABCA 262, 257 DLR (4th) 115 [Spencer], to inform her assessment of the child’s best interests, therelocation issues, the potential double bind problem, and onus.

After doing so, the trial judge stated the following regarding the plannedstructure of her analysis: [20] As noted by Megaw J. in Prime v Prime, 2020 SKQB 326 at para 49, “Before addressing the issue of the children’s mobility, I mustfirst determine what the appropriate parenting regime would be in the absence of a mobility consideration”. A good starting point in theanalysis of [a child’s] best interests is the enumerated factors in the CLA 2020. [8] The trial judge then addressed each of the enumerated grounds from s. 10(3) of the CLA 2020 in a detailed manner.

Sheconcluded as follows regarding the child’s best interests: [36] Having regard to the enumerated factors, the evidence demonstrates [the child’s] current life is a good one. She was an infant whenher parents separated and has never known a life other than having two parents in separate homes. Both of her parents are devoted andloving and involved in her care. They both provide her with different but beneficial views of the world.

Both of her parents have designedtheir lives around care for [the child] and she is clearly first and foremost in their lives. [The child] also has the benefit of extended familyin the area with whom she is close and who can provide support to [Mr. Somerville] and also to [Ms. Chapman] should she so desire. [Thechild’s] cousins are as close as siblings. [The child] has friends and through her family is involved in her community. Despite the distancebetween Eatonia and Drayton Valley, [Ms.

Chapman] has ensured that [the child] remains close to her maternal side of the family as wellthrough FaceTime and frequent visits. Both [Mr. Somerville] and [Ms. Chapman’s] family are loving and supportive and [the child] findsherself at the center of two families that all want the best for her. [The child] is fortunate.

Given the evidence respecting her young life todate, a continued shared parenting arrangement with longer periods between exchanges to permit longer visits to see family in DraytonValley would be in [the child’s] best interests and would ensure her physical, psychological and emotional safety, security and well-being. [37] However, such an arrangement is not possible as [Ms. Chapman] wishes to relocate to Drayton Valley with [the child].[Ms. Chapman] was of the view that a move to Eatonia was only ever to be temporary. Temporary or not, the move to Eatonia involved aforever after with [Mr.

Somerville] and that is no longer possible. Although Eatonia may be home to [Mr. Somerville] and the generationsof his relatives who live there, it is not home for [Ms. Chapman] and she wants to leave. [9] Having determined what parenting arrangement was in the child’s best interest, but also having concluded it was not anavailable option, the trial judge moved on to consider whether Ms.

Chapman should be authorized to relocate the child to Drayton Valley.For this portion of the analysis, she thoroughly canvassed the additional enumerated grounds found in s. 15(1) of the CLA 2020 and thesomewhat overlapping list of mobility factors set out in Alansari v Kreke, 2020 SKCA 122 at paras 16–20, 464 DLR (4th) 453, rev’d 2021SCC 50. Based on her analysis, the trial judge decided that remaining in Mr. Somerville’s primary care in Eatonia, as compared to movingto Drayton Valley with Ms. Chapman, was in the child’s best interests. The trial judge then set out a transitional parenting schedule,specified Ms.

Chapman’s parenting time, provided for joint decision-making authority, set child support, made allowance in the childsupport order for a credit for Ms. Chapman for the costs of travel, and reserved the issue of costs. IV. ISSUES [10] The following issues arise in this matter: (

a) Did the trial judge err in her application of the double bind factor? (

b) Did the trial judge err in placing inordinate weight on Mr. Somerville’s limited parenting time, if the move were to beallowed? (

c) Did the trial judge err by improperly assessing Ms. Chapman’s financial situation? (

d) Did the trial judge err in the manner in which she analyzed the parties’ parenting plans and applied the best interests test? (

e) If Ms. Chapman is not otherwise successful in her appeal, did the trial judge err by not ordering shared parenting to continueuntil the child commences the first grade? V. ANALYSIS A. Standard of review [11] The determination of parenting arrangements is an exercise in judicial discretion and, as such, the scope of appellate review isnarrow and deferential. However, errors of law, including a failure to correctly identify the criteria that govern the exercise of the trialjudge’s discretion, are reviewed on the standard of correctness.

Alleged erroneous factual findings are reviewed on the standard ofpalpable and overriding error: see S.A.R. v A.K.L., 2021 SKCA 124 at para 14 [S.A.R.]; Van de Perre v Edwards, 2001 SCC 60 atparas 13–15, [2001] 2 SCR 1014; Peterson v Peterson, 2019 SKCA 76 at para 20, 30 RFL (8th) 341; and S.T. v J.T., 2019 SKCA 116 atpara 44, 33 RFL (8th) 253. B. Double bind [12] When a parent wishes to relocate, a dilemma arises when it comes to expressing their position at trial.

If the parent testifies thatthey would move regardless of whether the child is permitted to go with them, an adverse inference might be drawn about their

commitment to their self interest, as opposed to their dedication to the child’s best interests. If they say they will not move unless the childcan also go with them, the weight given to the benefits of their relocation plan could be diminished and the court may view preservationof the status quo as a relatively more attractive option.

This lose–lose situation is known as the classic double bind: Barendregt vGrebliunas, 2022 SCC 22 at paras 137–140, 469 DLR (4th) 1 [Barendregt]; Bourke v Davis, 2021 ONCA 97 at para 46, 53 RFL (8th) 70[Bourke]; Olfert v Olfert, 2012 SKQB 301 at para 178, 402 Sask R 71, aff’d 2013 SKCA 89; Hejzlar v Mitchell-Hejzlar, 2011 BCCA 230at para 27, 334 DLR (4th) 49; and Spencer at para 18.

I note that the non-moving parent could also be subject to related negativeinferences. [13] The Saskatchewan Court of Queen’s Bench has long recognized that, in determining the best interests of a child on a mobilityapplication, caution must be exercised as a result of the double bind problem that can arise: see, for example, Thurston v Maystrowich,2010 SKQB 154 at paras 52–59, [2010] 10 WWR 682, aff’d 2010 SKCA 113, and Kuntz v Allen, 2010 SKQB 276 at paras 55–56, 358Sask R 207.

Recently, this prudence was statutorily enshrined – as a prohibition against considering whether the moving parent wouldrelocate without the child – through a 2019 amendment to the Divorce Act, RSC 1985, c 3 (2d Supp), which added s. 16.92(2), and withthe passage of the CLA 2020. The relevant

section of the CLA 2020, is as follows: Best interests of child — additional factors to be considered for relocation 15(2) In deciding whether to authorize a relocation of the child, the court shall not consider whether the person who intends to relocate thechild would relocate without the child if the child’s relocation was prohibited. [14] Turning back to the matter at hand, Mr. Somerville testified during his examination-in-chief as follows: Q If both you and Ms. Chapman stay in the Eatonia area, what do you think the parenting arrangement should begoing forward?A I think it should still be 50/50.

We’re both very important to our daughter, and I don’t know, I -- I think there’sa little too much for exchanges as of right now, but it’s -- it worked well in the past. But now that [the child] isgetting a little bit older, I think that, you know, one week on, one week off with the occasional, you know, mid-week, maybe a Wednesday night, you know stop over at the other person’s house or stay overnight, somethinglike that, is kind of what I would think. But I think she’s ready for more days. But I mean, she hasn’t reallygone a whole lot of time without -- without seeing myself or her mom.

So -- with the exception of the 26 daysthat she was gone from me. I mean , yeah, I -- she doesn’t like to be away from her parents too much, and thereis nothing wrong with that. [15] Ms. Chapman asserts that, despite the absence of an objection on her part at trial, the trial judge erred by permittingquestioning of Mr. Somerville in this manner because his testimony inferentially raised the double bind issue. In her written material,Ms. Chapman argues that Mr. Somerville “ought not be able to get through the backdoor what he could not get through the front”.Ms.

Chapman submits that this Court should adopt a broad approach to examining whether this evidence raised the double bind problem,thereby improperly influencing the trial judge in her deliberations. She urges us to widen the double bind prohibition and forbid the ideaof a third parenting plan, i.e., the maintenance of the status quo, from being considered by a trial judge. [16] Mr. Somerville contends that the double bind prohibition is now part of the statutory scheme that governs matters of this natureand is clear in its effect. He submits that the trial judge explicitly reminded herself to not consider Ms.

Chapman’s intentions in this regardand properly did not do so. [17] In my view, this ground of appeal must be rejected. A violation of s. 15(2) of the CLA 2020 does not result simply because oneparty or the other provides testimony on the double bind issue. The

section prohibits a trial judge from considering the relocating parent’sintentions regarding whether they would move without the child, not from hearing the testimony. It places constraints on the judge’sdeliberations, not on the evidence, although it would likely ground a valid objection to that line of questioning on the basis of relevancy. [18] Notwithstanding everyone’s best efforts, witnesses regularly offer, and therefore judges hear, inadmissible evidence at trial.

Itis not the hearing of the evidence by a judge that creates an issue; it is what is done with that evidence in the judge’s deliberations thatmust be examined. In any event, Ms. Chapman did not testify about the double bind issue, and, despite the

interpretation of s. 15(2) of theCLA 2020 urged on appeal, it is my view that it cannot be stretched to bring Mr. Somerville’s testimony within its scope. However, this isbeside the point, because the effect of s. 15(2) is clear. It prohibits the consideration of such evidence. [19] The trial judge was acutely aware of this restriction. She set out the text of s. 15(2) of the CLA 2020, and then, as seen in thefollowing excerpts from her decision, specifically took note of her obligations in this regard: [17] The CLA 2020 specifies additional considerations when a relocation of a child is requested.

Of note, is that the reasons for therelocation are to be considered whereas previously, Gordon v Goertz, (SCC), [1996] 2 SCR 27 [Goertz] provided thereason for the move was only to be considered “in the exceptional case where it is relevant to that parent’s ability to meet the needs of thechild” (para. 49). The legislation also clarifies the inappropriateness of the “double bind”.

In Spencer v Spencer, 2005 ABCA 262, 15 RFL(6th) 237 Paperny J.A., speaking for the Alberta Court of Appeal, stated at para. 18: [18] In conducting this inquiry, it is problematic to rely on representations by the custodial parent that he or she will not move without thechildren should the application to relocate be denied. The effect of such an inquiry places the parent seeking to relocate in a classic doublebind.

If the answer is that the parent is not willing to remain behind with the children, he or she raises the prospect of being regarded asself interested and discounting the children’s best interests in favour of his or her own. On the other hand, advising the court that theparent is prepared to forgo the requested move if unsuccessful, undermines the submissions in favour of relocation by suggesting that sucha move is not critical to the parent’s well-being or to that of the children.

If a judge mistakenly relies on a parent’s willingness to staybehind “for the sake of the children”, the status quo becomes an attractive option for a judge to favour because it avoids the difficultdecision the application presents. [18] The CLA 2020 removes the possibility of the double bind as “the court shall not consider whether the person who intends to relocate

the child would relocate without the child if the child’s relocation was prohibited” (s. 15(2)). [ 20 ] Nowhere in the Trial Decision did the trial judge consider whether Ms. Chapman would relocate without the child. To the contrary, she unambiguously stated that she must not take into account this aspect of the matter. She then followed her self-instruction and did not engage in the prohibited reasoning in any manner. Her reasons as a whole, and particularly at paragraphs 37, 38, 39, 52, and 54 of the Trial Decision , reinforce my view that she did not err in this regard.

In any event, there was no such evidence of which to take account and use in her deliberations. While Ms. Chapman urges this Court to find that Mr. Somerville’s testimony subtly influenced the trial judge to consider the double bind issue, the Trial Decision does not disclose any reasoning to which such a determination could be anchored. Ms. Chapman’s references to portions of the Trial Decision where the trial judge discussed (

a) Mr. Somerville as an access parent, (

b) the required travel, (

c) Mr. Somerville’s desire for continued shared parenting, and (

d) the relatively less-detailed parenting plan put forward by Mr. Somerville, do not support this contention. [ 21 ] This ground of appeal cannot be sustained. To the extent that the double bind concept further informs the ground of appeal regarding the method used to assess the child’s best interests, I will address those arguments in that

section of my analysis below. C. Weight placed on Mr. Somerville becoming an access parent [ 22 ] Ms. Chapman contends that the trial judge focused on Mr. Somerville becoming an access parent if the child moved to Drayton Valley but failed to give corresponding weight to the fact that she would face the same situation if the child remained in Eatonia. Attached to this submission is an assertion that the trial judge also did not sufficiently consider the child’s relationship with Ms.

Chapman’s extended maternal family. [ 23 ] The argument regarding the unequal consideration of the access parent issue arises out of the following portions of the Trial Decision : [26] Both D.S. and K.C. acknowledge that [the child] loves the other parent and each pays lip service to the notion that [the child] needs the other parent in her life and claim that relationship is to be encouraged. Nonetheless their actions belie their words. D.S. has been dismissive of K.C. and disrespectful in [the child’s] presence which are not actions of someone wanting to support the child’s relationship with the other parent.

K.C. also speaks of [the child’s] need to have her dad in her life but for 26 days after her departure from Eatonia she cut off all contact without regard for the need for [the child] and her father to have contact. K.C.’s current parenting plan would have D.S. relegated to the role of an access parent regardless of whether they resided in the same community and she would have him ousted as a joint decision-maker. Her plan shows little willingness to support the development and maintenance of D.S.’s relationship with [the child].

D.S. speaks of the need to have K.C. in [the child’s] life but struggled with the notion of having to travel to facilitate parenting time. … [34] Neither K.C., nor D.S. have done particularly well in their attempts to communicate. The problem began while they remained together and there has been no improvement since separation. K.C. argues D.S. does not communicate or discuss but rather “it is his way or the highway”.

K.C. was unable to provide examples of where D.S. has imposed his will in such a way other than an incident while together when he would not agree to her traveling with their infant daughter to Arizona. K.C. has also argued that she has been disrespected during their communications and D.S. has spoken unkindly to her. Certainly, D.S. could improve on the way he speaks to K.C. He has undoubtedly been angry by K.C.’s efforts to relegate him to an access parent and her criticisms of his care for [the child]. Nonetheless, although this may explain his ill-chosen words, they do not excuse them.

Again, the parties both pay lip service to their willingness to communicate on matters affecting [the child] but their actions have shown otherwise. It is hoped, however, that with a stable and final parenting plan, the parties will be less defensive with one another and will attempt to speak to one another more respectfully. … [50] K.C.’s proposal entails relocating [the child] to Drayton Valley.

D.S. would have parenting time three weekends per month and her proposal has the two of them meeting halfway for exchanges on Fridays with a return on Sundays. [The child] would, in effect spend the bulk of her weekends in a vehicle completing the five hour plus trip between the communities. K.C. suggested that she have decision- making authority though she would keep D.S. informed. When asked what her parenting plan would be if D.S. relocated to Drayton Valley, the response was that it would remain the same though he could have mid-week visits though [the child] would return to K.C.’s to sleep.

When questioned about the costs of travel given her limited means, K.C. was of the view that she would manage by working more and with family help. Relegating D.S. to a weekend access parent and disenfranchising him, given his extensive involvement with [the child’s] care to date is not reasonable. [ 24 ] I cannot give effect to this ground of appeal. Paragraphs 26 and 34 of the Trial Decision speak critically of negative factors for each parent in relation to their communication and willingness to support the child’s ongoing relationship with the other parent. I note that Ms. Chapman had testified that Mr.

Somerville should be limited to weekend parenting, even if he moved to Drayton Valley. Mr. Somerville did not seek to impose such restrictions on Ms. Chapman’s parenting time. [ 25 ] While the paragraphs cited above only refer to Mr. Somerville as an access parent, reading the judgment as a whole reveals that the trial judge was highly aware of the ramifications of deciding that the child would remain in Eatonia. She recognized that the child would “lose a parent to distance”, no matter what decision was made (at para 60).

The entirety of her analysis culminating in her ordering a transition plan and the parenting regime reflected this reality. [ 26 ] The excerpt from paragraph 50 represents part of the trial judge’s analysis of s. 15(1)(

f) of the CLA 2020 , which required her to examine “the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility or parenting time, taking into consideration, among other things, the location of the new place of residence and the travel expenses”. This paragraph provides a portion of her assessment of that statutory factor. It was necessarily focussed on Ms. Chapman’s plan, as the relocating parent, because she was the one who was proposing that the child move. [ 27 ] With regard to the child’s extended maternal family, the trial judge referred to them as “loving, kind and nurturing” (at para 60)

and noted that the child “remains close to her maternal side of the family” (at para 36) and was “bonded and well-attached” to them (atpara 42). The trial judge clearly considered these facts in her analysis: also see paragraphs 24 and 25, in addition to paragraphs 36, 42 and60. She did not ignore the benefit that would accrue to the child from residing close to her extended maternal family in Drayton Valley. [28] At their core, Ms. Chapman’s submissions invite this Court to engage in a re-weighing of the evidence and factors related to thechild’s best interests. That is something we cannot do.

This ground of appeal must fail. D. Ms. Chapman’s financial situation [29] This ground of appeal can be dealt with summarily. Ms. Chapman argues that the trial judge erred in finding that she may notbe financially stable in Drayton Valley. An important component in this finding, in Ms. Chapman’s submission, is the failure of the trialjudge to mention that Mr. Somerville would be paying her $784 per month in child support if the child moved to Drayton Valley. [30] The trial judge made findings of fact about the parties’ financial positions. With regard to Ms.

Chapman, the trial judge foundthat she would be earning less money upon relocation compared to the job she had resigned from in Eatonia. The trial judge furtherdetermined that relocation was not “particularly financially rewarding” and that Ms. Chapman may be worse off financially and havedifficulty with travel expenses (at para 58). This is well-supported by the evidence. Such a consideration is relevant to a parent’s ability tomeet a child’s needs and to the viability of the planned move: s. 10(3)(

h) and s. 15(1)(

f) of the CLA 2020 and S.A.R. at para 53. [31] The trial judge was not attempting to provide any precise calculation with regard to Ms. Chapman’s potential income at thispoint in her analysis. She was examining the benefits of a move to Drayton Valley and the financial ramifications associated with it. Theparties’ respective incomes were quantified elsewhere in the Trial Decision and the amount of child support payable by each party wasdetermined and set off while shared parenting remained in place. The trial judge also provided Ms.

Chapman with a credit against herchild support to assist in paying for travel once she moved to Drayton Valley. As such, it cannot be said that the trial judge was unawareof the potential for child support to affect Ms. Chapman’s ability to provide financially for the child. [32] This ground of appeal, again, invites a re-weighing of the evidence and factors related to the child’s best interests. There is nomerit to these assertions. E. Method of analyzing parenting plans and best interests [33] In undertaking her analysis of the child’s best interests, the trial judge engaged in a two-step sequential process.

First, followingthe direction from Prime v Prime, 2020 SKQB 326, she looked for the parenting arrangement that would be in the child’s best interests inthe absence of mobility considerations. The trial judge took the guidance from Prime to mean that she should first determine whatparenting arrangement would be best for the child if a move to Drayton Valley was not being contemplated. Second, once she decided thatthe continuation of a shared parenting arrangement in Eatonia was in the child’s best interests – but was not an option – she moved on toconsider whether being in Mr.

Somerville’s primary care in Eatonia or in Ms. Chapman’s primary care in Drayton Valley was the betteralternative for the child. [34] Ms. Chapman asserts that the trial judge erred in her best interests analysis by following the roadmap set out in Prime. Sheargues that the trial judge should have simply compared the two parenting plans – the plan for the child to reside with her mother inDrayton Valley and the plan for the child to remain with her father in Eatonia – and not considered what was in the child’s best interestsabsent the mobility issue. Ms.

Chapman contends that the method by which the trial judge analyzed the child’s best interests influencedher decision in favour of the status quo. She says that this sequential analysis resulted in subtle distortions in the reasoning process. [35] Mr. Somerville submits that the trial judge undertook a comprehensive examination of all of the factors affecting the child’sbest interests and determined that primary residency with him in Eatonia was the best parenting arrangement.

He asserts that the trialjudge committed no errors in doing so, and her decision cannot be interfered with. [36] In my view, it was an error for the trial judge to approach her analysis in two stages in the manner set out in Prime.Ms. Chapman wanted to move to Drayton Valley and take the child with her. If Ms. Chapman moved to Drayton Valley, Mr. Somervillewanted the child to live with him in Eatonia. Those were the two available parenting arrangements. There was no third alternative of bothparents remaining in Eatonia and continuing a shared parenting regime.

As such, the separate consideration of a hypothetical, unavailableoption did not advance the analysis. However, I do not find that this approach resulted in an error in the trial judge’s final determinationsregarding the child’s best interests. I will explain why this is so. [37] In Prime, Megaw J. presided over a trial in which the mother sought to move to Alberta with her two youngest children. Thechildren were being parented on an interim shared parenting basis in Saskatchewan. The mother testified that, if she were not permitted tomove with the children, she would not relocate.

The father testified that he would not move to Alberta. The matter was determined underthe prior version of the Divorce Act, with reference to The Children’s Law Act, 1997, neither of which contained provisions that directlyaddressed the double bind issue. In the circumstances before him, Megaw J. set out the following framework for the structure of hisanalysis of the children’s best interests: [49] Before addressing the issue of the children’s mobility, I must first determine what the appropriate parenting regime would be in theabsence of a mobility consideration.

In Gilles v Gilles, 2006 SKQB 363, Wright J. cited the comments in Terris v Marcoux (2003), (ON SC), 41 RFL (5th) 433 (Ont Sup Ct) [Terris]: 43 Subsequent to Bjornson [(2002), (ON CA), 166 OAC 44 (CA)], in Terris v Marcoux (2003), (ON SC), 41 RFL (5th) 433 (Ont SC), MacKinnon J., also commented on the application of the Gordon principles to original custodyapplication at paras. 12 through 14: 12.

In my view, these observations make it clear that neither the Supreme Court of Canada nor the Ontario Court of Appeal are directingthat custody on an initial application be determined without taking into account all aspects of each parent’s plan for the children, including

where they propose to live. Rather, the issue of custody is to be determined having regard to all relevant factors, including place ofresidence. Once legal custody has been determined, the court will specifically address the relocation issue in accordance with theprinciples in Gordon v. Goertz, supra, including its direction to accord great respect and the most serious consideration to the views of acustodial parent, and to always be governed by the child’s best interests. 13.

In some cases of first instance, there will be considerable overlap between the factual context of the custody determination and that ofthe relocation determination. Nonetheless, the determination of one issue is not necessarily determinative of the other. In Woodhouse vWoodhouse (1996), (ON CA), 20 RFL (4th) 337 (Ont CA), the Ontario Court of Appeal considered the Supreme Courtruling in Gordon v Goertz, and made it clear that a determination of the custody disposition that is in the child’s best interests is not thesame thing as determining whether a relocation will be permitted.

In para. 19, the Court of Appeal states: On the basis of this paragraph, it could be argued that McLachlin J. is laying down a principle of law that where there has been a materialchange of circumstances the court must consider the best interests of the child afresh, but that after doing this, if the court is of the opinionthat the existing custody order is still in the best interests of the child, the custodial parent should always be allowed to move with thechild. I do not read the reasons of McLachlin J. in this manner.

To read the paragraph in this manner would be to reintroduce apresumption in favour of the custodial parent’s views after the determination of custody has been made. This is clearly not what wasintended. The option of allowing the child to remain with the custodial parent but refusing to vary access to permit the child to move,which McLachlin J. recognized at the beginning of the paragraph, would not otherwise exist. In Bjornson, the fact that the custody determination seemed rather obvious to the court results in an almost imperceptible transition intothe Gordon v. Goertz, supra analysis.

In cases of first instance where the determination of custody is not so clear cut and obvious, thegeneral directions of the Supreme Court of Canada and of the Ontario Court of Appeal to consider all factors bearing on the child’s bestinterest in coming to a conclusion on custody, will require full and sensitive inquiry as to which proposed plan is in the child’s bestinterests. [50] As recognized by Mackinnon J. in Terris, there will be overlap between the original parenting determination and the decisionregarding the children’s mobility.

This is necessarily so because the best interests of the children are being considered in eachdetermination. Initially, categorizing the two decisions appears potentially artificial. However, recognizing the need for individualdeterminations allows for a conceptual understanding of the difference between the two issues.

While some of the same topics arediscussed, it occurs against different backdrops regarding these children. [51] The first consideration is then to determine what parenting looks like for this family as a result of the parents’ decision to separateand thereby create two separate places for the family. Once that is in place, the court can then consider what this family would look likewith the parents potentially residing in different locations. [38] I reiterate that, in Prime, the parties had testified regarding their intentions if the children were permitted to move or not.

Thispredated the legislative amendments on the double bind issue but, nonetheless, that issue was not relied upon in the analysis in Prime.Even so, Megaw J. still commented that structuring the analysis in two stages “appears potentially artificial” (at para 50). This perceivedartificiality is substantially increased in the face of the new double bind prohibition in the CLA 2020, and, in this case, the unavailability ofa continued shared parenting arrangement in Eatonia.

As such, there was nothing to be gained in the analysis here by notionally, iftemporarily, first disregarding the mobility issue and then moving on to consider it after a preliminary best interests analysis had beenperformed. [39] An examination of the Trial Decision illustrates the difficulty in separating the analysis into two compartments: one thatignores the potential move and one that considers it.

In the portions of the Trial Decision where the trial judge considered the bestinterests of the child in the absence of the mobility considerations, I observe that the evidence and her findings regarding a move toDrayton Valley inevitability crept into her assessment. For example, when discussing the factors under s. 10(3)(

c) of the CLA 2020 –“each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent” – and s. 10(3)(g)– “any plans for the child’s care” – the assessment involved a discussion of the parenting situation if the child were to reside in DraytonValley. It is difficult to envision how the consideration of these issues could have been done otherwise.

In my view, it was neither feasiblenor desirable to attempt to unnaturally separate the analysis into two parts in the circumstances at hand. [40] The trial judge was not required to conduct the analysis in the sequential manner in which she did. However, I would go furtherand say that it was not the proper way to examine the issues in this matter and that it should be avoided in the future. Such a method relieson an

interpretation of Gordon and its progeny that does not fit here. Gordon discussed the need to have respect for the custodial parent’sviews, but it did not dictate a two-step artificial analysis for making a final determination when, in a shared parenting situation, one parentis going to relocate in any event.

Gordon did not consider the double-bind issue and, obviously, did not engage with the current legislativeregime that pertains to that issue. [41] I note that this type of sequential analysis, with an intermediary determination of best interests after step one, has generally notbeen utilized in other jurisdictions in Canada – or has been outright rejected – when adjudicating on a final decision regarding parentingarrangements.

In other provinces, although not without exception, the trial courts tend to conduct one overall, cohesive analysis of all thefactors before making a final determination of a child’s best interests.

This is particularly true for cases decided after the introduction ofthe legislative prohibitions on considering the double bind: see, for example, Murray v Harrison, 2022 BCSC 423; A.J.L. v J.G.L, 2021BCSC 2429; Joseph v Washington, 2021 BCSC 2014; LMS v CES, 2021 ABQB 708; Ting v Ting, 2022 ABQB 229; JYL v TLL, 2021ABQB 680; Rinetti v Kent, 2022 ABQB 1, 66 RFL (8th) 209; Credland v Cymbalisty, 2022 ONSC 433, 68 RFL (8th) 74; A.E. v A.B., 2021ONSC 7302; Springstead v Springstead, 2022 ONSC 1906; Droit de la famille – 211795, 2021 QCCS 3938; J.D. v R.D., 2021 NBQB 186;Waite v Waite, 2021 PESC 12, 55 RFL (8th) 332; J.B. v E.D., 2018 NSFC 8; Williams v Power, 2022 NSSC 156; A.C. v G.B., 2019 NSSC133, 24 RFL (8th) 359; and Bourke. [42] In Duggan v White, 2019 BCCA 200, 25 RFL (8th) 44, the British Columbia Court of Appeal determined that a “blendedanalysis [was] required” and the “relocation issue should not have been decided independently from the overall question of the parentingarrangements” (at para 22 and para 53).

This decision relied on K.W. v L.H., 2018 BCCA 204, 9 RFL (8th) 23, where, speaking for thatCourt, Goepel J.A. stated the following:

[108] In Falvai [2008 BCCA 503], this Court held that initial custody applications involving a mobility issue required a “blended” analysis that includes a consideration of the mobility issue as part of — not separate from — the determination of the custody issue. The Court rejected the proposition that mobility and custody be decided separately. Madam Justice Smith reasoned: [25] This analysis [in para. 28 of Nunweiler [2000 BCCA 300]] does not create a “two-step” analysis as was undertaken by the trial judge.

Nor does it change the conventional approach to determining custody on an initial application, which requires a balancing of all relevant factors, including a parent’s proposed move with the child to a new community, in deciding what is in the child’s best interests.

Rather, in the context of an initial application, Nunweiler applied a “blended” analysis considering some of the factors identified in Gordon . [109] In Falvai the trial judge was found to be in error in conducting a two-step analysis in which he first decided the custody issue in favour of the mother, and thereafter determined the mobility issue. [110] In my opinion, a similar blended analysis is required under the [ Family Law Act , SBC 2011, c 25 ] when an initial application to determine parenting arrangements is combined with a plan to relocate the child within the meaning s. 46(1) (c).

On such applications the court must balance in the round all relevant factors, including the proposed move to a new community, in deciding what parenting arrangements are in the child’s best interests. [111] In this case the trial judge committed an error similar to that made in Falvai . Where in Falvai the trial judge decided the custody application in advance of the relocation application, in this case the trial judge did the opposite. He decided the relocation application in advance of determining the appropriate parenting arrangements.

He was led into this error because of his decision to decide the mobility issues under Division 6 instead of Division 2. What was required in determining parenting arrangements in the child’s best interests was a blended, in the round analysis that balanced all relevant factors, including the Mother’s proposed move with the child to a new community … . [ 43 ] I agree with the British Columbia Court of Appeal that a blended analysis is required. [ 44 ] The Supreme Court has recently addressed the issue of mobility in Barendregt .

The following portions of that case have some relevance to the matter at hand: [119] The parent who cares for the child on a daily basis is in a unique position to assess what is in their best interests: Gordon , at para. 48 . This logic applies to both parents in a shared parenting arrangement, and accordingly, both of their views are entitled to great respect in an assessment of the child’s best interests. This makes sense: a court always pays careful attention to the views of the parents.

In my view, it adds little value to this analysis to label it a separate principle of “great respect”. … [128] Indeed, isolating the custodial parent’s reasons for the move from the broad, individualized inquiry of the child’s best interests has frequently proven impractical. There will often be a connection between the expected benefits of the move for the child and the relocating parent’s reasons for proposing the move in the first place. Relocation for financial reasons, for instance, will clearly carry implications for a child’s material welfare.

Considering the parent’s reasons for moving can be relevant, and even necessary, to assess the merits of a relocation application. … [132] Concerns about parenting time with the child will inevitably be engaged in relocation cases: the crux of the dispute is whether it is in the child’s best interests to move notwithstanding the impact on their relationship with the other parent.

In other words, this concern is folded into the central inquiry before the court. … [152] The crucial question is whether relocation is in the best interests of the child, having regard to the child’s physical, emotional and psychological safety, security and well-being. This inquiry is highly fact-specific and discretionary. [ 45 ] While none of these excerpts directly address the issue in this appeal, they illuminate the difficulty in separating issues related to mobility from a child’s overall best interests.

Indeed, given the singular focus of the Divorce Act and the CLA 2020 on the best interests of the child, there is no justification for conducting a two-part sequential analysis on the facts of this matter. In my view, in considering a child’s best interests when a final determination is sought – in circumstances where an interim shared parenting regime exists and one of the parents will be relocating – the factors under s. 10 of the CLA 2020 and the additional factors under s. 15 should be considered in one seamless, cohesive analysis.

When circumstances are going to change to the extent that it is clear that the current shared parenting regime cannot and will not continue, there is nothing to be gained by analyzing whether hypothetical arrangements are in a child’s best interests. There is no point in potentially finding that a situation that is known to not be in existence in the future would be in the best interests of a child. However, my determination that the structure of the trial judge’s analysis was erroneous in this manner does not translate into a finding that she erred in her bottom-line decision regarding parenting and relocation.

The sequential analysis method utilized by the trial judge represents only a minor error in the circumstances of this matter, and it is one that had no material effect on the judgment. [ 46 ] The trial judge engaged in a comprehensive examination of the factors from s. 10 of the CLA 2020 . She followed that assessment by considering the additional factors regarding relocation found in s. 15 of the CLA 2020 and in the common law.

Only once she had completed the entirety of that analysis, did the trial judge make a final determination that the best interests of the child – within the constraints of the available alternatives – were best served by remaining in Eatonia and residing primarily with Mr. Somerville. Contrary to Ms. Chapman’s submissions, the Trial Decision does not reveal any subtle influences or bias towards the status quo caused by the structure of the analysis or otherwise. The trial judge did not, as asserted by Ms.

Chapman, compare an unattainable ideal situation with the available options and use such a comparison as a basis to decide that a move to Drayton Valley was not in the child’s best interests. She also did not import prohibited double bind considerations into her final decision. While the trial judge made an intermediate best interests determination after stage one of her analysis, that alternative was immediately abandoned because it was unavailable on the facts of the case. She then, in a sophisticated analysis, crafted a parenting arrangement that did not accept all the components of either

parties’ plan, but fit within the circumstances faced by the child and her parents. [47] In reading the Trial Decision as a whole, it is obvious that the trial judge carefully examined all the relevant circumstances and,once that exercise was complete, made her determinations regarding the child’s best interests. The trial judge assessed all the factorsrelated to the child residing with Ms. Chapman in Drayton Valley and all the factors related to her remaining in Eatonia inMr. Somerville’s primary care. She did, in the end, conduct a blended analysis of the two available options.

Her factual findings andassessment of the situation warrant deference. Those determinations are grounded in the evidence and are the result of a thorough andcomplete analysis of all of the aspects of the situation that affected the life and well-being of this specific child. Given the applicablestandard of review, there is no room to interfere with the trial judge’s decision regarding the parenting arrangements. F. Extending shared parenting [48] In the event this Court does not allow the appeal on her main grounds, as it has not, Ms.

Chapman submits that the transitionplan should be modified to permit shared parenting to continue until the child starts grade one. The child is scheduled to commencekindergarten in September of 2022. Ms. Chapman submits that kindergarten is optional in Saskatchewan, so the trial judge erred by notconsidering whether shared parenting could continue until the child begins grade one in September of 2023. Mr. Somerville is opposed tothis modification to the judgment. [49] The primary flaw in Ms. Chapman’s submission is that this issue was not raised at the trial.

As a result, there is a lack ofevidence regarding the optional nature of kindergarten and the steps the parties could and would take to substitute for the developmentaland educational benefits provided through kindergarten attendance. [50]

Section 156 of The Education Act, SS 1995, c E-0.2, addresses attendance at school for children of compulsory school age,which is defined as ages 6 to 16 in s. 2 of that Act.

Neither party referenced this statute, or its effect on the issue of kindergartenattendance, in this Court or in the Court of Queen’s Bench. [51] This Court generally, though not unyieldingly, will not entertain new arguments on appeal, particularly when the evidencerequired to properly examine the issue was not led at trial: Saskatchewan Crop Insurance Corporation v McVeigh, 2018 SKCA 76 atpara 131, 428 DLR (4th) 122, leave to appeal to SCC refused, , and A.M. v Ministry of Social Services, 2020 SKCA114 at para 183.

Here, the evidence necessary to determine whether the extension of shared parenting, at the expense of kindergartenattendance, is in the child’s best interests is absent. This makes the consideration of this issue inappropriate. This ground of appeal cannotsucceed. VI. CONCLUSION [52] The appeal is dismissed with costs to Mr. Somerville calculated in the usual manner. “Tholl J.A.” Tholl J.A.I concur. “Richards C.J.S.” Richards C.J.S.I concur. “McCreary J.A.” McCreary J.A.