E.Y. v B.A., 2023 SKCA 124

Court of Appeal for Saskatchewan Docket: CACV4151 Citation: E.Y. v B.A., 2023 SKCA 124Date: 2023-11-16 Between:E.Y.Appellant(Respondent)AndB.A.Respondent (Petitioner)Before: Jackson, Caldwell and Kalmakoff JJ.A.Disposition: Rule 59 application allowed; appeal dismissed Written reasons by: The Honourable Mr. Justice CaldwellIn concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice KalmakoffOn appeal from: FLD-SA-00179-2018 (Sask KB) SaskatoonAppeal heard: October 5, 2023Counsel: Ashala Naidu and Kasya Naidu for the Appellant Siobhan Morgan for the Respondent Caldwell J.A. I.

Overview [1] In this matter a mother has appealed from a January 6, 2023, order of a Court of King’s Bench Chambers judge in the parties’family law proceedings [Third Interim Order], which was issued following a second review of the interim supervised-parentingarrangements that govern her access to the parties’ son. The parenting arrangements in question were established pursuant to the order ofTurcotte J. made on October 3, 2022 [Interim Order]. [2] For the reasons that follow, I would dismiss the appeal from the Third Interim Order. II.

Rule 59 application [3] As a preliminary matter, the respondent father sought to adduce new evidence in this Court and, on the basis of that evidence,to argue that this Court should not grant the appeal from the Third Interim Order.

The new evidence is an order of Stahl J. issued onAugust 11, 2023, after the third review of the supervised-parenting arrangements in this case and the reasons she gave for making thatorder [Fourth Interim Order]). [4] Without determining whether it is properly seen as evidence, I am of the opinion that the criteria for admission of the FourthInterim Order and Stahl J.’s reasons have been satisfied (see R v Palmer, (SCC), [1980] 1 SCR 759; Barendregt vGrebliunas, 2022 SCC 22, 469 DLR (4th) 1). As a subsequently issued order, the Fourth Interim Order could not have been obtained priorto the second review hearing.

It bears upon a decisive issue in these proceedings, namely, the supervised-parenting arrangements, and, as itis a judicial decision, it is credible. I recognise that, from a chronological perspective, the Fourth Interim Order could not have affectedthe result under the Third Interim Order.

However, that fact, and the overlap between the Fourth and Third Interim Orders on materialissues, means that the new evidence is determinative on the issue of whether this Court should grant the mother’s appeal from the ThirdInterim Order and thereby depart from its established practice when hearing and deciding appeals from interim parenting orders. [5] I would therefore allow the father’s application to adduce the evidence proffered on appeal in this matter. I turn now toprovide the reasons why the admission of this evidence is, in my judgment, determinative of this appeal. III.

Background [6] To understand why the Rule 59 application must be allowed and, consequently, why the appeal must be dismissed, it ishelpful to begin with some knowledge of the background and proceedings that led to the Third Interim Order. Although there were earlierproceedings, the relevant history of this matter begins with a pre-trial conference held on March 24, 2021, where the parties agreed to acomprehensive settlement of all issues respecting the parenting of their son. Under the minutes of settlement, the parties agreed to jointdecision-making authority and shared parenting.

The minutes of settlement were incorporated into the consent judgment of Labach J.issued on December 8, 2021 [Final Order]. [7] On March 22, 2022, the mother applied to vary the Final Order, seeking primary residence and permission to relocate withthe child to Ottawa, Ontario. This application was heard by Turcotte J., who identified the sole issue as being whether the mother had

established a material change in circumstances within the meaning of s. 8(4) of The Children’s Law Act, 2020 , SS 2020, c 2 . Notably, Turcotte J. addressed the mother’s allegations of family violence when determining whether a material change in circumstances had occurred, finding that “The issue of family violence was in the contemplation of the parties at the time of the pre-trial settlement conference and continued at the time the [ Final Order ] was granted” (29 August 2022 at para 68 [ Relocation Fiat ]).

Justice Turcotte also observed that “there are no allegations that [the child] has been harmed in the care of either party” (at para 70).

In the result, Turcotte J. determined that the mother had not established a material change in circumstances such that it would be in the child’s best interests to vary the Final Order , and he dismissed her application . [ 8 ] On August 5, 2022, after the mother had been located and arrested in the United States of America following her disappearance from Canada with the child on July 24, 2022, Turcotte J. granted an interim without-notice order under The Children’s Law Act, 2020 varying the Final Order by suspending the mother’s parenting time and temporarily granting the father sole legal decision- making responsibility with respect to the parties’ child [ Temporary Order ].

He also granted the father the authority necessary to arrange for the child’s return to Canada. [ 9 ] On September 20, 2022, the mother filed an application for substantive interim relief, seeking joint decision-making authority, “interim supervised Facetime communication” and telephone communication supervised by her sister. She also sought interim supervised- parenting time with Aspire Too Counselling and Professional Services [Aspire Too] in Saskatoon, Saskatchewan, “or another similar program such as Family Justice Services”.

In her application, the mother advised the Court that her “bail report does not allow for her to have any communication with [the child] without an order of the Court of King’s Bench” (at para 7). [ 10 ] On October 3, 2022, in the fiat setting out his reasons for the Interim Order , Turcotte J. wrote: [10] The respondent [mother] has previously alleged a history of family violence inflicted upon her by the petitioner [father]. Her allegations in that regard predate the [ Final Order ] and have been denied by the petitioner.

In her affidavit sworn September 20, 2022, the respondent alleges that family violence, consisting of physical, sexual, emotional and financial abuse, occurred during their relationship from July 2014 to March 2018 and afterwards. Further, she alleges, “Most of this abuse was witnessed by [the child] (ages 1 to 7 years old)”. She seeks an assessment of [the child] for “Adverse Childhood Experiences”.

She alleges the petitioner exercises “strong control over [the child]” but provides very limited context to this or her other allegations. [ 11 ] Despite the release conditions she is under and in particular preventing her from having direct or indirect contact with the petitioner, except through a lawyer, the respondent seeks to continue to have joint legal decision-making authority over [the child] with sole decision-making authority with respect to [the child’s] Indigenous cultural heritage.

She wants supervised parenting time once per week and supervised telephone or Facetime visits with [the child] twice per week supervised by her sister, [redacted], who is her surety and in whose house she is required to reside. The respondent seeks to have [the child] continue to attend [the child’s school] as per the terms of the [ Final Order ]. [The child] had attend[ed] that school for kindergarten and Grade One. The respondent asserts that [the school’s] arts and Indigenous programming benefit [the child]. [ 12 ] The petitioner has vehemently denied the allegations of family violence made by the respondent.

He indicates he has [the child] in counselling with a counsellor through Aspire Too Counselling and Professional Services [Aspire Too] due to [the child] being worried about keeping their doors locked and people coming into their home since his return. The petitioner indicates [the child’s] concerns in this regard have abated.

The petitioner is prepared to continue to have [the child] in counselling to address other issues as may be identified. [11] Under the Interim Order , Turcotte J. confirmed his earlier and temporary award to the father of “interim primary care and sole decision-making responsibility” for the child (at para 1).

Justice Turcotte also confirmed the suspension of the mother’s parenting time but granted her weekly 1-hour supervised, in-person visits with her son at the offices of Aspire Too, as well as 30-minute supervised electronic visits on Mondays and Thursdays arranged through the offices of Brayden Supervision Services [Brayden Supervision]. In specific terms, Turcotte J. made the following orders: [25] Accordingly, there shall be an order that the [ Temporary Order ], shall be rescinded and in its place the following interim orders shall be in place until further order of the Court: a.

Pursuant to s. 8(4) of The Children’s Law Act, 2020 , the [ Final Order ], shall be varied on an interim basis such that: i. pending further order of this Court the petitioner, [father], shall have interim primary care and sole legal decision-making responsibility with respect to the child, [redacted], born [redacted]; ii. pending further order of this Court, the parenting time of the respondent, [mother], shall be suspended; iii. pending further order of this Court, the respondent is prohibited from removing [the child] from the care of the petitioner and from directing or instructing any third party from removing [the child] from the care of the petitioner; and iv. pending further order of this Court, the respondent is prohibited from removing [the child] from Saskatchewan and from directing or instructing any third party from removing [the child] from the care of the petitioner. b.

The sole legal decision-making responsibility of the petitioner shall be subject to the following conditions: i . The petitioner shall consult with the respondent through her lawyer in respect of any significant decision respecting [the child’s] personal well-being, including decisions with respect to [the child’s] health, education, culture, language, religion , spirituality and significant extracurricular activities, except that the petitioner shall continue [the child’s] schooling through [the child’s school]; ii.

Pending further order of the Court the petitioner shall consult with the respondent through her lawyer in respect of opportunities through which he may continue to foster and promote [the child’s] Indigenous culture and heritage, including language, religion and spirituality; iii . The petitioner shall be entitled to make any urgent medical, dental or other healthcare decisions with respect to [the child]. He shall provide notice to the respondent through her lawyer of such decisions within 24 hours of making the same;

iv. The petitioner shall be entitled to make any minor decisions regarding the day-to-day care of [the child]; and v. In the event the respondent disagrees with any decision made by the petitioner with respect to [the child’s] personal well-being, she may bring an application to the Court on notice to the petitioner to challenge the same. c. The suspension of the respondent’s parenting time shall be subject to the following conditions: i.

The respondent shall be entitled to have supervised in-person visits with [the child] at the offices of Aspire Too Counselling and Professional Services in Saskatoon, Saskatchewan, on October 4, 2022, at 10:30 a.m.; October 18, 2022, at 10:30 a.m.; October 25, 2022, at 11:30 a.m.; October 26, 2022, at 11:30 a.m.; and November 2, 2022, at 11:30 a.m. During such visits, the respondent shall not discuss with [the child] any of these family law proceedings between the parties nor any of the circumstances surrounding the pending criminal charges against her.

For such visits, the respondent shall otherwise comply with the instructions and directions of the supervising counsellor with a focus on ensuring [the child’s] comfort during the visit. The respondent shall be responsible for payment of the cost of the supervised visits through Aspire Too Counselling and Professional Services. ii. Commencing Thursday, October 6, 2022, the respondent shall be entitled to a 30-minute supervised electronic visit with [the child] each Monday and Thursday between the hours of 5:00 p.m. and 7:30 p.m. Saskatchewan time.

Such visits shall be coordinated through Brayden Supervision Services, an Ontario organization. During such electronic visits, the respondent shall not discuss with [the child] any of these family law proceedings between the parties nor any of the circumstances surrounding the pending criminal charges against her. For such visits, the respondent shall otherwise comply with the instructions and directions of the supervising counsellor from Brayden Supervision Services with a focus on ensuring [the child’s] comfort during the electronic visit.

The respondent shall be responsible for payment of the cost of the electronic supervised visits with [the child]. d. The parties shall support and encourage [the child’s] relationship with the other parent. Neither party shall discuss this court proceeding or the criminal proceedings pending against the respondent with [the child] nor allow any such discussions to occur in his presence. The parties shall refrain from making any derogatory comments about the other parent, or the other parent’s extended family, to [the child] or allow any such comments to be made in [the child’s] presence.

The parties shall ensure that [the child] is not exposed to any conflict between them or between them and third parties. e. The respondent’s supervised in person and electronic visits with [the child] shall be reviewed on November 4, 2022, at 10:00 a.m. or so soon thereafter as the matter may be heard by the Court. The focus of the review shall be on the extent to which the respondent’s parenting time should be increased and the terms and conditions surrounding the same.

For the purposes of such review, each party may serve and file a supplemental affidavit updating the Court of the condition, means, needs and circumstances of themselves and of [the child] since the date of this fiat with respect to the issue of the respondent’s interim parenting time. f.

Turcotte J. is no longer seized with this matter. [12] It is central to the issue of whether this appeal should be dismissed that Turcotte J. granted leave to the parties to have the Court of King’s Bench review the supervised-parenting arrangements that he had ordered on a date that was a little more than one month after the Interim Order was made.

Also importantly, no appeal was taken from the Interim Order . [ 13 ] In furtherance of the Interim Order , following an application by the mother, the Chambers judge, who also heard the second review application that resulted in the Third Interim Order , granted an order on November 8, 2022, continuing her weekday, in-person visits on the terms of the Interim Order [ Second Interim Order ]. The Chambers judge also granted the mother additional 2-hour, in-person visits on weekends supervised through the offices of Family Justice Services in Saskatoon.

Lastly, he ordered another review of the mother’s supervised access to occur on January 6, 2023, with the “focus of the review [being] the extent to which [her] parenting time should be increased and the terms and conditions surrounding same” (at para 2). [ 14 ] Although not directly relevant to the disposition of this appeal, on December 19, 2022, on a without-notice application by the mother but with the consent of the father, Crooks J. granted the mother supervised parenting with the parties’ child on Tuesday, December 20, 2022. [ 15 ] Pursuant to leave granted in the Second Interim Order , the mother applied to the Court of King’s Bench for another review of the supervised-parenting arrangements.

In that review, she sought to increase her parenting time and to alter the terms and conditions of the supervision that had been established under the Interim Order and which were continued under the Second Interim Order . The Chambers judge identified the two issues the mother had put before the Court in this way: [4] In this second review, [the mother] seeks to continue her parenting time as previously ordered but with additional time on Saturdays and Sundays. Going forward [the mother] proposes that her sister, [redacted], provide the necessary supervision of [the mother’s] visits with [her son].

The visits would occur in [the sister’s] home, where [the mother] now resides. [The sister] says she is designated as a surety with respect to [the mother’s] release from custody and therefore can be trusted to ensure [the mother] does not run afoul of her release conditions. [ 16 ] On January 6, 2023, the Chambers judge issued the Third Interim Order . Under it, he maintained the conditions of the mother’s ongoing supervised visits with her son and made slight alterations to the wording of the terms of those conditions.

That is, he rejected the mother’s renewed request to have her sister assume the supervision responsibilities carried out by Aspire Too and Brayden Supervision. He also declined to increase the mother’s access to her son. The Chambers judge explained his reasons for this result as follows: [5] The Court notes that [the mother’s sister] publicly voiced her approval of the steps [the mother] took to remove [her son] without [the father’s] consent.

Notwithstanding her status in the community and as surety for [the mother], I am not satisfied that [the sister] can or will ensure that [the mother] does not take the question of [her son’s] custody once more into her own hands. [6] [The mother] seeks increased time with [her son] on Saturdays or Sundays. I am informed that the organizations providing supervision of [the mother’s] visits do not currently have the capacity to offer more supervised time on Saturdays or Sundays.

Consequently, visitation with [the child] beyond two hours on Saturday or Sunday is not possible. [ 17 ] On the central issue of whether this appeal should be dismissed, I emphasise that the Chambers judge granted leave for the parenting arrangements to be brought back for a third review on the six-month anniversary of the Third Interim Order , again with the “focus of the review [being] the extent to which [the mother’s] parenting time should be increased and the terms and conditions surrounding same” (at para 2). [ 18 ] On February 6, 2023, the mother filed her notice of appeal against the Third Interim Order .

In it she alleged that the Chambers judge had erred by “upholding [the Interim Order ] regarding decision making of the child’s Indigenous culture, heritage, language and religion by the Respondent (Petitioner) father”. She also asserted that he erred in law and fact by failing “to consider cultural factors in his decision to order the supervised parenting time to continue through [Aspire Too] and [Brayden Supervision]” and by finding that it was in the child’s best interests to leave matters of supervision as they were under the Second Interim Order .

These arguments and others centred on the fact that the current supervisors of her visits with her son are not Indigenous persons or organisations of Indigenous persons or known to the child.

Other grounds of appeal call into question the adequacy of the Chambers judge’s reasons and allege a failure to consider family violence as a factor relevant to the child’s best interests. [ 19 ] An application by the father to have the mother perfect her appeal was withdrawn when she filed her factum and the appeal book on June 19, 2023. [ 20 ] On August 11, 2023, Stahl J. heard a third review of the mother’s parenting time and the terms and conditions surrounding same. In that hearing, the mother also sought joint legal decision-making authority with respect to the parties’ child.

When describing the issues the mother sought to place before the Court in the third review hearing, Stahl J. wrote: [2] By way of background, this application is the third review of an interim order granted by Justice Turcotte on October 3, 2022 [ Interim Order ] in which he suspended the mother’s parenting time. This history is well documented in the fiats on this file. As criminal charges have been laid against the mother, her release conditions include prohibited contact with [the child] unless allowed through this Court.

On that note, the Interim Order permits the mother limited and supervised parenting time in a controlled setting. As noted in the January 6, 2023 decision of [the Chambers judge], “These steps are taken to ensure [the child] remains safe from any further attempt to remove him from the jurisdiction and, given his potential as a witness, to prevent his mind and recollection from being influenced by [the mother] or her supporters.” [3] In this third review, the mother seeks to have [the child] in a one-week on, one-week off shared parenting rotation for three weekends a month with a review at the end of August 2023.

The mother also seeks joint legal decision-making. She further proposes her sister, [redacted] as a supervisor for her parenting time. She also proposes her friend, [redacted] as a supervisor for the electronic parenting time. (On that note, the father agrees to [the family friend] as a supervisor of the electronic parenting time if the calls are recorded and disclosed to him). The mother confirms the criminal matter is set for trial in Saskatchewan Provincial Court from November 2023-January 2024.

The mother further confirms she will neither be calling [the child] as a witness, nor cross-examining him at her criminal trial. The mother submits the notes from the supervisors who have supervised both the in-person parenting times and the electronic parenting times indicate the visits are going extremely well and there are no concerns with the same. My review of the supervisor notes indicates a happy, healthy and loving relationship between mother and son; one filled with laughter, teasing, hugging, and activities such as beading and reading.

It is clear that [the child] misses his mom. [ 21 ] In her reasons for issuing the Fourth Interim Order , Stahl J. summarily rejected the idea that she had the jurisdiction to address decision-making authority: [5] The father says the application for joint legal authority should be dismissed as it is not properly before the Court. I agree.

In my view, the review before the Court is solely on the issue of supervised parenting time. [ 22 ] With regard to varying the extant parenting arrangements, Stahl J. wrote: [8] In terms of offering [the mother’s sister] as a supervisor, I echo the comments made by [the Chambers judge], in paragraph 5 of [the Third Interim Order ].

On that note, I do not see anything different about the second review and this third review in regard to the mother seeking [her sister] as a supervisor. [9] In regard to [the family friend] being a supervisor of the electronic parenting time, I am of the view that it is not appropriate for the sessions to be recorded and disclosed to the father, even with his consent.

In my view, disclosing the recorded parenting sessions to the father is too far of a microscope into the mother-child relationship that is already monitored. [10] The Court recognizes that supervised parenting orders are rare and are only made in extreme circumstances. This is one of them. To date, and as noted previously, there has been no explanation offered to this Court to explain why the mother went to the United States with [the child] with no notice to the father (or anyone), and no explanation as to how she did so.

There is also the unanswered question if [the child] will be a Crown witness at the upcoming trial. These outstanding issues cannot be taken lightly. [11] In my view, stability and consistency is what is in [the child’s] best interest and, for now, that includes supervised parenting, given the historical and temporal factual matrix of this unique situation, but with an expansion of that supervised parenting time.

As noted, I have been advised by counsel for the mother that neither Aspire Too nor Family Justice Services can offer more supervised periods, but that Brayden Supervision Services can accommodate additional supervised parenting time. For this reason, I am prepared to increase the mother’s parenting time with [the child] through Brayden Supervision Services. [12] The question of whether [the child] will be a witness at the criminal trial is a salient issue relative to the mother’s parenting time with the child.

On that note, if either party can confirm the Crown is not calling [the child] as a witness in the criminal trial, including before the criminal trial is set to commence, leave is granted for a review to be brought back before this Court to once again revisit the issue of super vised parenting time. [ 23 ] When setting out the terms of the Fourth Interim Order , Stahl J. added that the parties were “entitled to bring this matter back

before the Court for a review in three months’ time” (written reasons at para 13(f)). [24] On August 17, 2023, the Registrar of the Court of Appeal set the mother’s appeal from the Third Interim Order for a hearingon October 4, 2023. IV.

Appeals from interim Family law orders [25] Given the nature of the Third Interim Order, it is appropriate to provide some background information on how this Courtapproaches appeals from interim family law orders. [26] As a matter of legal principle, there is no right of appeal except as provided for by Parliament or a legislature and, where sogranted, the scope of a right of appeal entirely depends on the wording of the conferring enactment (Kourtessis v M.N.R., (SCC), [1993] 2 SCR 53 at 69–70). As was done in this case, notices of appeal in matters such as this typically cite s. 7(2)(

a) of The Courtof Appeal Act, 2000, SS 2000, c C-42.1, as conferring the right to appeal from an interim family law order. This Court’s appellatejurisdiction under The Court of Appeal Act, 2000 connotes our authority to entertain a properly constituted appeal from a decision ofanother court or tribunal and to review it for error.

If error is found in the decision under review, we have the authority to address it inaccordance with the Court’s appellate powers. [27] This Court has observed on many occasions that an interim parenting order is a temporary measure intended to providestructure and a degree of certainty to the parenting of a child or children until their parents’ issues can be finally resolved at a pre-trialconference or a full hearing at the trial level.

While interim parenting orders sometimes remain in effect for long periods, such ordersusually begin as a provisional balance that the Court of King’s Bench strikes after weighing the factors relevant to the best interests of thechild or children in question based on untested affidavit evidence that often paints an incomplete, inconsistent or contradictory picture. [28] Given the time and resources involved in prosecuting an appeal to its resolution, this Court has also previously remarked that,other than in exceptional circumstances, the issues arising in appeals against interim parenting orders are more efficaciously addressed bythe parents at a pre-trial conference or in a trial (see, most recently, R.C.S. v R.D.L., 2022 SKCA 52 at para 20; Wyatt v Reindl, 2020SKCA 36 at para 11; and see, e.g., Gebert v Wilson, 2015 SKCA 139 at para 8, [2016] 5 WWR 656; Bolan v Bolan, 2013 SKCA 97 atparas 6–7, 423 Sask R 151; Graham v Tomlinson, 2010 SKCA 101 at para 15, 324 DLR (4th) 156; and Foss v Foss (1991), (SK CA), 31 RFL (3d) 367 (Sask CA)).

As Jackson J.A. put it in Hall v Hall, 2011 SKCA 86, 337 DLR (4th) 89: “In most cases, theinterests of the parties, and the children, are best served by proceeding quickly to the pre-trial settlement conference stage rather thanexpending time and scarce resources on an appeal from an interim order” (at para 1). [29] I observe that this Court’s remarks in Hall v Hall are even more apt now because Rule 15 of The Court of Appeal Rules nolonger imposes an automatic stay of execution or an automatic stay of proceedings in the Court of King’s Bench once a notice of appealfrom an interim parenting order has been filed.

I say this because an interim parenting order now continues with full force and effectpending an appeal being heard unless the appellant has successfully applied for a stay of its execution. This means that, in most cases, bythe time an appeal is heard the evidence is no longer current and, insofar as the parties continue to have difficulties, other trial-level ordersmay have been made.

In short, the whole substratum of evidence and the orders on which an appeal from an interim parenting order waspredicated may no longer be relevant or may have been overtaken by subsequent orders or events at the Court of King’s Bench. [30] The concern expressed in cases like Hall v Hall is enhanced in this appeal because here, although not the usual case, bothTurcotte J. and the Chambers judge granted leave to have the parenting arrangements under their respective orders reviewed in relativelyshort order by a judge of the Court of King’s Bench.

Further, Stahl J. also granted leave for the parties to have the parenting arrangementsunder the Fourth Interim Order reviewed yet again by a judge of her Court three months after its making. V.

The Third Interim order has been overtaken [31] The foremost question in this matter is whether this Court should take on the issues this appeal seeks to raise notwithstandingthe record and the nature and status of the Third Interim Order and decide the appeal based on the resolution of those issues. [32] I start the analysis by expressing agreement with the mother that, as outlined under the relevant legislation, in the jurisprudence,and across legal traditions, the overarching consideration in relation to parenting arrangements and parental decision-making with respectto a child is the best interests of the child.

I agree that the relevant best-interest factors, including those enumerated in the legislation, mustalways be considered in the context of the specific child or children in question.

I also agree that, in this case, that context includes the factthat the parties’ child has Indigenous heritage through the mother. [33] Where I disagree with the mother is on the scope of the issues that she had put before the Chambers judge for determination inthe second review of the parenting arrangements, on the nature of the orders the Chambers judge made and, therefore, on the permittedreach of an appeal from the Third Interim Order. In my judgment, the only matters the Chambers judge had the authority to determinewere those that had been properly put before him, i.e.: (

a) whether to extend the mother’s access to her son as she had requested; and (b)whether to allow the mother’s sister to supervise the mother’s visits with her son. As noted, the Chambers judge declined to alter the termsof the court-ordered parenting arrangements with respect to either of these matters. Crucial to the resolution of this appeal, he made noaffirmative, upholding or modificatory orders. [34] As to the mother’s arguments, I acknowledge that family violence is disproportionately experienced by Indigenous women andgirls.

The importance and effect of this fact is not, however, for this Court to address in the context of this matter. The evidentiary recordin these proceedings simply does not support consideration of the family violence that the mother says was directed toward her as arelevant factor in an appeal from the Third Interim Order. While the mother’s counsel emphasised that there had been “repeatedallegations” of family violence in general terms, it bears mentioning that she acknowledged that the allegations all pre-date the InterimOrder.

From the record, I observe that Turcotte J. addressed family violence under the Relocation Fiat and the Temporary Order and in

his reasons for the Interim Order , but none of the King’s Bench judges who heard proceedings subsequent to the Final Order in this matter were called upon to make findings about family violence in one way or the other. [ 35 ] At this juncture, I must remark that it is crucial that courts address the broader concerns that the mother seeks to raise in her appeal, but it is most critical that courts do so when the issues of systemic or societal inequality of women and of Indigenous women and girls or colonial- and gender-based violence and discrimination are directly engaged by the record and—as in this case—by what is in the best interests of a specific child.

In my assessment, the two issues the mother properly placed before the Chambers judge in the second review hearing do not engage principally or directly with the best-interest factors she seeks to raise under her notice of appeal from the Third Interim Order . [ 36 ] It is plain that the analysis of the best-interest factors relevant to the parties’ child occurred under the Final Order and in the three Court of King’s Bench proceedings before Turcotte J., which resulted in the Relocation Fiat , the Temporary Order and the Interim Order .

No appeals were taken from those orders, and the Chambers judge, as a puisne judge of the Court of King’s Bench, could not sit in appeal of the Interim Order , and he did not purport to do so. [ 37 ] By reason of the terms of the Interim Order , the Chambers judge had—in the first review—the authority to consider only “the extent to which [the mother’s] parenting time should be increased and the terms and conditions surrounding same” (at para 7). He had the same limited authority in the second review by reason of the leave he himself had granted under the Second Interim Order.

In neither proceeding did the Chambers judge have the authority to second guess the best-interests decision Turcotte J. had made under the Interim Order . Speaking directly to the notice of appeal in this case, the Chambers judge plainly did not “uphold” the Interim Order or otherwise address decision-making regarding the parties’ child, which last occurred under the Interim Order . [ 38 ] Therefore, the sole issue properly put before this Court in the mother’s appeal is whether the Chambers judge erred when he decided: (

a) not to vary the extent of her visits with her son; and (

b) not to vary the terms of supervision imposed with respect to those visits. With the permitted reach of her appeal understood in this way, it is evident that its subject matter has been wholly overtaken by subsequent orders and events at the Court of King’s Bench, most starkly by the Fourth Interim Order . [ 39 ] In oral argument, when counsel for the mother was asked about the effect of the Fourth Interim Order , she invited this Court to convert her client’s appeal from the Third Interim Order into an appeal from the Fourth Interim Order .

She cited no authority for this highly irregular proposition and, indeed, there is simply no basis in law for this Court to assume such jurisdiction. [ 40 ] To encapsulate my reasoning, the appeal relates to the second review of the parenting arrangements first imposed under the Interim Order as varied by the Second Interim Order . We are told, through the father’s application under Rule 59, that a third review of those arrangements occurred in August of this year and that a fourth review at the Court of King’s Bench is imminent.

While the Third Interim Order did not change the terms of the mother’s supervised access to her son, the Fourth Interim Order did vary those terms, albeit not to the degree the mother had sought. Moreover, no appeal has been taken from the Fourth Interim Order . In my respectful view, the developments at the Court of King’s Bench, and in the parenting regime itself, make it inappropriate to consider the now more theoretical issues raised in the mother’s appeal from the Third Interim Order . VI.

Resolution [ 41 ] I would dismiss the appeal, with costs in the appeal and on the Rule 59 application to the father in the total, fixed amount of $1,500. “Caldwell J.A.” Caldwell J.A. I concur “Jackson J.A.” Jackson J.A. I concur “Kalmakoff J.A.” Kalmakoff J.A.