J.B. v J.M., 2023 SKCA 24

Court of Appeal for Saskatchewan Docket: CACV4111 Citation: J.B. v J.M. , 2023 SKCA 24 Date: 2023-02-15 Between: J.B. Appellant (Petitioner) And J.M. Respondent (Respondent) And C.M. Respondent (Third Party) Before: Caldwell, Tholl and Kalmakoff JJ.A. Disposition: Fresh evidence application denied; Appeal allowed. Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Tholl On appeal from: FLD-BF-60 of 2022 (KB), Battleford Appeal heard: January 17, 2023 Counsel: Chelsea Campbell and Doc Crooks for the Appellant No one appearing for J.M. Samantha J. Neill for C.M. Kalmakoff J.A. I. INTRODUCTION [ 1 ] This appeal concerns the appropriate parenting arrangement for a 6-year-old child.

A Court of King’s Bench judge, sitting in Chambers, appointed the child’s maternal grandfather, C.M., as a person of sufficient interest [PSI] under s. 8(1) of The Children’s Law Act, 2020 , SS 2020, c 2 [ Act ], and ordered that, on an interim basis, the child reside primarily with C.M., instead of with her father, J.B. ( J.B. v J.M. (24 November 2022) Battleford, FLD-BF-00060-2022 (Sask KB) [ Decision ]). [ 2 ] J.B. appeals against the Decision. He contends that the Chambers judge made various errors in his treatment of the evidence and erred in the application of ss. 10(3) and 10(4) of the Act .

The result, argues J.B., is an interim parenting order that does not reflect the child’s best interests. [ 3 ] C.M. asserts that the Decision simply affirmed the parenting arrangement that had become the status quo, which was properly seen as serving the child’s best interests. He submits that the Chambers judge applied the law correctly, and that J.B.’s arguments are nothing more than disagreements with the Chambers judge’s factual findings and form no basis for this Court to interfere.

C.M. also seeks to introduce new evidence on the appeal. [ 4 ] For the reasons that follow, I would dismiss C.M.’s application to introduce new evidence and allow the appeal. II. BACKGROUND [ 5 ] The child, E.M., was born in October of 2016. J.B. is E.M.’s father. J.M. is her mother. C.M. is J.M.’s father, and E.M.’s grandfather. [ 6 ] J.B. and J.M. began their relationship in 2012 and were married in 2015. They separated in January of 2017, three months after E.M. was born. After they separated, J.B. and J.M. lived in different communities, more than an hour’s drive apart.

In October of 2017, J.B. relocated to Kamloops, British Columbia, for reasons related to his employment. He continues to reside in that province. [ 7 ] After J.B. moved to British Columbia, he and J.M. made a couple of attempts to reconcile, but those attempts were short-lived. Although neither of them has yet applied for divorce, they have not been together in a spousal relationship since late summer of 2018. [ 8 ] In the period after J.B. and J.M. separated, E.M. lived primarily with J.M.

For at least some of that time, J.M. lived with C.M. and S.M. (C.M.’s spouse and E.M.’s step-grandparent) at their home on the Moosomin First Nation in Saskatchewan. According to the evidence that was before the Chambers judge, the situation evolved to the point that E.M. was living primarily in the care of C.M. and S.M. This had much to do with J.M.’s personal struggles, which have included addiction, transience, and a dysfunctional and abusive relationship with her most recent partner.

The date at which C.M. and S.M. began to care primarily for E.M. is in dispute, as is precisely when J.B. became aware of that fact. [ 9 ] However, it is uncontroverted that, at some point early in 2022, J.B. and J.M. had discussions about E.M.’s place of residence. J.B. took the view that E.M. should be residing with him, rather than with J.M.’s parents. To that end, J.B. and J.M. negotiated a parenting

agreement, which they executed on September 17, 2022. It gave J.B. sole decision-making responsibility for E.M., and provided that she would reside primarily with him. [ 10 ] After the parenting agreement was executed, J.B. attempted to arrange to take E.M. into his care. C.M. and S.M. did not agree to this. According to J.B., they simply ignored his requests in that regard. C.M.’s version of what happened is somewhat different. He says that he did not become aware of J.B.’s requests to take E.M. into his care until several months after those requests were made.

This is because, according to C.M., the electronic messages that J.B. sent had been intercepted by a spam filter and did not come to his attention. In any event, when J.B. did not receive a timely response to his requests, he attempted, unsuccessfully, to get the RCMP involved to enforce the parenting agreement. [ 11 ] J.B. then hired counsel, who wrote an email to C.M., confirming J.B.’s requests to have E.M. returned to him, and warning of legal action if that did not occur.

In response, C.M. took the position that he and S.M. had been E.M.’s primary caregivers “for 5 of her 6 years in a de facto PSI arrangement” and that, given the limited role J.B. had played in her life to that point, it was inappropriate to send her off to British Columbia to live with him. [ 12 ] This led to J.B. filing a petition and an application without notice in the Court of King’s Bench on September 27, 2022.

He sought an order granting him interim sole decision-making authority for E.M., and an order requiring that E.M. be immediately returned to him, pending the hearing of an application he had filed that was returnable on October 20, 2022. [ 13 ] The without notice application was heard in Chambers, by Hildebrandt J., on September 30, 2022. At the hearing, J.B., J.M. and C.M., were all represented by counsel. J.B. and C.M. both filed affidavits in support of their respective positions. In brief

summary, J.B. took the position that he did not know that E.M. had been residing largely with her grandparents instead of with J.M. and, as soon as he became aware of that, he began to take steps to have E.M. reside with him. [ 14 ] C.M., on the other hand, took the position that E.M. should continue to reside in his home. He alleged that J.B. had acted violently towards J.M. in the past, and that some of that violent behaviour had occurred when E.M. and her siblings were present.

He also spoke of J.M.’s personal struggles with addiction and the dysfunctional and abusive nature of the relationship with her current partner, and how those factors had affected J.M.’s capacity to care for E.M. He disputed the validity of the parenting agreement for a number of reasons, including what he characterized as J.M.’s financial dependence on J.B. and the fact that J.B. had been, at most, an infrequent presence in E.M.’s life to that point.

In short, C.M. expressed the view that he and S.M. had been E.M.’s parents, for all intents and purposes, for the majority of her life. [ 15 ] At the conclusion of the Chambers hearing, Hildebrandt J. granted most of the relief that J.B. had sought.

Until the with-notice applications could be heard, and without prejudice to the positions of the parties in those applications, she ordered the following ( J.B. v J.M. (30 September 2022) Battleford, FLD-BF-60/2022 (Sask KB) [ Hildebrandt Order ]): • C.M. would deliver E.M. to J.B. on October 2, 2022; • J.B. would be permitted to relocate E.M. to British Columbia and, in order to facilitate such things as school enrolment, J.B. would have interim sole decision-making authority for E.M.; • C.M. and his other family members would prepare E.M. for this transition in a positive and encouraging manner, and not speak disparagingly of J.B.; • J.M. would continue to have “generous parenting time” with E.M.; and • J.B. would ensure that, in the ensuing period, C.M. and S.M. would be permitted to have opportunities to communicate with E.M., either by telephone or videoconference, at least three times per week. [ 16 ] In the written reasons she provided for making this order, Hildebrandt J. explained that, although the evidence was controverted on certain material points, there was “sufficient information available … to make a determination on this application, recognizing that the Chambers judge on October 20, 2022 will likely have more affidavit evidence available”.

As a result, she clarified that her order would be “without prejudice to the position of any of the parties in relation to that application” (at para 6). [ 17 ] This led to the two applications that were heard and determined by the Chambers judge, and which resulted in the Decision. The first was J.B.’s application for an order providing that E.M. reside primarily with him.

The second was C.M.’s application for orders naming him as a PSI, placing E.M. in his primary care, giving him all major decision-making authority, and limiting J.B. and J.M. to “reasonable parenting time with [E.M.] on reasonable notice”. [ 18 ] In support of his application, C.M. filed two affidavits and a reply affidavit that he had sworn, along with an affidavit sworn by J.M.’s older sister, T.M.

The general theme running through these affidavits was that the relationship between J.B. and J.M. had been turbulent and unstable, that J.B. had been emotionally and verbally abusive to J.M. and, on some occasions, had also been physically violent with her. Neither C.M. nor T.M. claimed to have personally witnessed any acts of violence by J.B.; their assertions in that regard were entirely based on hearsay. They each said J.M. had told them about J.B. having beaten her up, without reference to any specific occasion of that having occurred.

They also spoke of a picture that had apparently been drawn by one of J.M.’s older children (a son), some four to six years earlier, that the child had said was a depiction of an incident in which J.B. had threatened J.M. with a knife. [ 19 ] C.M. also deposed that E.M. had only been in J.B.’s primary care for two brief periods of her life. The first of those was from June to August of 2018, when J.M. had moved to British Columbia to live with J.B., in an attempt to reconcile.

The second was a period of approximately two weeks in August or September of 2019, when J.B. took E.M. with him to British Columbia for a holiday. Apart from that, C.M. said that he and S.M. had been E.M.’s primary caregivers since August of 2018. [ 20 ] J.B., for his part, deposed that he and J.M. lived together when E.M. was born, and that had remained the case until J.M. moved to a different city in early 2017. He said that, to his understanding, J.M. had not relinquished E.M. to the primary care of C.M. in 2018.

He acknowledged that J.M. had problems with alcohol and drug addiction and said that he had been trying to help her obtain treatment for

that. He categorically denied ever having acted violently toward J.M. or any of the children. [ 21 ] J.M. deposed that she supported J.B.’s application for primary residence and sole decision-making authority. She said that she stood by the parenting agreement, and that she believed it was in E.M.’s best interests to live with J.B. She also stated that she had been E.M.’s primary caregiver until the fall of 2021, at which time she asked her parents, C.M. and S.M., to care for E.M. while she was in the process of moving into a new home.

She said that this took approximately a week, after which they refused to return E.M. to her care. J.M. also categorically denied that J.B. had ever acted violently toward her. She described any allegations that he had physically or verbally assaulted her as “completely fabricated”. [ 22 ] Ultimately, the Chambers judge determined the applications in C.M.’s favour, holding that C.M. should be appointed as a PSI and that he had standing to apply to have E.M. reside primarily with him, and to oppose J.B.’s application.

The Chambers judge went on to find that C.M. and J.B. should have joint decision-making responsibility for E.M., but that she should reside primarily with, and be immediately returned to, C.M. [ 23 ] In reaching those conclusions, the Chambers judge observed that there was much conflict in the evidence about where E.M. had lived, with whom, and for how long.

He concluded, for the purpose of the Decision , that “[C.M.] provided care to [E.M.] since September of 2018 except for the two weeks that [J.B.] had parenting time in September of 2019 and the brief periods of parenting time that [J.M.] had from 2019 to 2021” (at para 18). [ 24 ] The Chambers judge also appears to have accepted C.M.’s evidence, which he described as not disputed, that during the time E.M. had been in the care of C.M. and S.M., they had provided E.M. with a positive and stable home environment, that they had done the things that would be expected of her primary caregivers, including supporting her financially, and that they have every intention of remaining in that role.

This led him to conclude that C.M. has had more than a mere grandparent relationship with E.M. and, as such, that he met the test set out in D.L.C. v G.E.S. , 2006 SKCA 79 , 270 DLR (4th) 597, to be appointed as a PSI (at paras 30–34). [ 25 ] The Chambers judge then turned his attention to the question of what parenting order should be made, which required the consideration of E.M.’s best interests. In that respect, he noted that the fact J.B. is E.M.’s biological father was but one factor to be considered in the best-interests analysis. He then dealt with s. 10 of the Act .

He began this discussion by stating that the first factor he needed to address was family violence and its effect on E.M.’s safety. He reviewed the affidavit evidence relating the allegations of violent conduct on J.B.’s part, noting that both J.B. and J.M. categorically denied the occurrence of any incidents of violence. [ 26 ] Ultimately, the Chambers judge determined that J.M.’s affidavit evidence was not reliable. Part of his reason for reaching this conclusion was that she had signed the parenting agreement only days after her parents had told her she was not welcome at their house.

The Chambers judge found that J.M.’s “evidence suggests she is fairly transient” and that her “actions are consistent with an addiction and looking for a source of funds” and “are also consistent with the actions of a person who is vengeful and will use access and the parenting of her children to carry out a personal objective or to secure a source of funds” (at para 49).

He concluded that, even though the making of more definite factual findings would require a trial, he could not “place much reliance on [J.M.]’s evidence and particularly her evidence that she has not been physically or verbally assaulted by [J.B.]” (at para 50) when deciding what interim order to make. After stating that, he summed up his conclusion with respect to the effect of family violence on E.M.’s best interests by saying: [53] I cannot determine the truth of the contradictory evidence before me.

I must accept that there is some evidence, which may be credible, that [J.B.] is capable of family violence and that [E.M.]’s safety may be threatened. … [ 27 ] After noting that the allegations that had been made against J.B. fell within the definition of “family violence” under the Act , the Chambers judge said: [56] This leads to a consideration of s. 10(3) (

j) and s. 10(4) of the Act . In my view this conduct suggests that [J.B.] is incapable and unwilling to meet the needs of [E.M.]. The conduct is serious. It occurred over a three-month time span. It shows a pattern of cohesive ( sic ) and controlling behaviour in relation to family members. In some instances, children including [E.M.] were involved. [E.M.] would have been exposed to all of the conduct. It is capable of exposing [E.M.] to emotional harm and the risk of harm.

It would compromise her safety and could cause a child to fear for its safety. [57] I have concerns about whether a further relocation of [E.M.] is in her best interests. It is part way through a school term. Thankfully everyone describes [E.M.] as a bright child capable of adjusting quickly. That said returning her to the care of [C.M.], [S.M.] and a location where she will see her siblings, cousins and pets will not be a great adjustment.

Moreover, the concerns for her being exposed to family violence override any of these concerns. [ 28 ] In the end, the Chambers judge ordered that: • E.M. be immediately returned to C.M.’s care; • On an interim basis, E.M. would reside primarily with C.M.; • J.B. and J.M. would be entitled to exercise in-person parenting time with E.M. between certain specified hours, on 48 hours notice, with a condition that they not be under the influence of alcohol or drugs when they do so; • Neither J.B. nor J.M. were to take E.M. outside the province of Saskatchewan without C.M.’s written permission; • The parties must communicate with one another in a respectful and courteous manner, and not make negative comments about each other in E.M.’s presence; and • The matters arising from the applications shall be scheduled for an expedited pre-trial. [ 29 ] J.B. filed his notice of appeal the day after the Decision was rendered, invoking the automatic stay of the Chambers judge’s order, under what was then Rule 15 of The Court of Appeal Rules , and thereby reviving the Hildebrandt Order .

[30] C.M. applied to lift the stay. In the material filed in support of that application, C.M. accused J.B. of deliberately thwarting orinterfering with his exercise of telephone access with E.M. J.B. responded by asserting that, when C.M. and S.M. exercised telephoneaccess with E.M., they had discussed inappropriate matters with her. Justice Drennan heard C.M.’s application to lift the stay onDecember 9, 2022.

Four days later, she issued a fiat, in which she denied C.M.’s request to lift the stay but specified certain parenting timefor the parties over the holiday season and ordered that the appeal be heard on an expedited basis (J.B. v J.M. (13 December 2022) Regina,CACV4111 (Sask CA) [Drennan Order]). III. ISSUES [31] In my view, the issues in this appeal can be distilled to the following: (

a) Should the new evidence that C.M. seeks to adduce be admitted? (

b) Did the Chambers judge make a reviewable error in determining what parenting order should be made? (

c) If the Chambers judge made such an error, what parenting arrangement is in E.M.’s best interests? IV. ANALYSIS A. Should the new evidence be admitted? [32] C.M. has applied to introduce new evidence on this appeal, in the form of an affidavit he swore on January 12, 2023. [33] In that affidavit, C.M. accuses J.B. of either refusing to facilitate, or interfering with, the telephone and videoconference accessthat C.M. was meant to have with E.M. under the Hildebrandt Order. He also states that he is “very concerned that [E.M.] is confused andscared, living with people she did not know before October 2022”.

The affidavit attaches, as exhibits, the printouts of several text messageexchanges between C.M. and J.B., and a video recording of events that took place when C.M. delivered E.M. to J.B. on December 24,2022, under the terms of the Drennan Order. C.M. suggests that the text messages demonstrate J.B.’s efforts to thwart his access to E.M.,and that the video shows that E.M. was upset about having to return to J.B.’s care, and that she was particularly troubled by the presenceof J.B.’s current partner, R.G., at the exchange.

All of this, asserts C.M., is evidence that helps to establish that E.M.’s best interests arenot served by living primarily in J.B.’s care. [34] Where a party applies under Rule 59(1) of The Court of Appeal Rules to adduce evidence on appeal that was not before thecourt appealed from, the admissibility of that evidence is assessed under the well-known test from R v Palmer, (SCC),[1980] 1 SCR 759 at 775 [Palmer], regardless of whether the evidence is fresh evidence or new evidence (Barendregt v Grebliunas, 2022SCC 22 at paras 2–3 and 34, 469 DLR (4th) 1; see also, Merchant Law Group LLP v Slusar, 2022 SKCA 75 at para 16).

There are fourcomponents that need to be examined: (

i) the diligence of the party seeking to introduce the evidence; (ii) the relevance of the evidence;(iii) the credibility of the evidence; and (iv) the capacity of the evidence to have affected the result of the case under appeal. [35] Proceeding directly to the bottom line, I am not persuaded that the evidence C.M. seeks to introduce in this appeal meets thePalmer test for admission. This is because it is neither relevant to E.M.’s best interests, nor capable of having affected the result.

Theaffidavit and the attached text messages, in my view, establish nothing more than that there is an atmosphere of disagreement and mistrustbetween C.M. and J.B., at least insofar as the question of who should be primarily responsible for E.M.’s care is concerned. As the textmessages amply demonstrate, this leads them to squabble over many things. None of this, however, has any bearing on the determinationof whether E.M.’s best interests are served by living primarily with one or the other of them. [36] I reach the same conclusion with respect to the video recording.

It shows a tense exchange between C.M. and J.B., which C.M.instigates by accusing J.B. of various shortcomings in his care of E.M. Not surprisingly, this causes J.B. to become somewhat defensive.An argument follows, during which they both raise their voices. The argument continues for several minutes and, while it does, T.M., whois also present, records it all on video, and E.M. is left standing outside in the cold with nobody comforting her. It is particularly troublingthat the person who was video recording the events found it more important to attempt to create evidence than to soothe E.M.

After E.M.is finally put into J.B.’s car, C.M. starts in on J.B. again, raising his voice and hurling insults and accusations at him. Against thatbackdrop, it is hardly surprising that E.M. was upset. However, from what is depicted in the video, there is no basis to conclude she wasupset because of the prospect of being returned to J.B.’s care, or because of the presence of R.G., as opposed to the fact that the adultsaround her were not getting along.

In the end, none of this evidence is relevant to the determination of E.M.’s best interests, and none of itis capable of bearing on the result. [37] Accordingly, the application to introduce new evidence must be denied. B. Did the Chambers judge make a reviewable error in determining whatparenting order should be made? 1. Standard of review [38] The order from which J.B. appeals is an interim determination relating to the parenting of a child.

Under the standard ofappellate review that applies to a discretionary order of that kind, we may not intervene unless it is established that the judge failed tocorrectly identify or misapplied the legal criteria that governed the exercise of their discretion, including by failing to give any or sufficientweight to a relevant consideration, or the judge made a palpable and overriding error in their assessment of the facts, including as a resultof misapprehending or failing to consider material evidence. This Court cannot, however, overturn such an order simply because we would

have made a different decision or would have balanced the relevant factors in a different way than the judge who exercised their discretion at first instance (see: Gebert v Wilson , 2015 SKCA 139 at para 8 , 467 Sask R 315 [ Gebert ]; Bolan v Bolan , 2013 SKCA 97 at paras 6–7 , 423 Sask R 151; L.P. v Z.M. , 2021 SKCA 134 at para 31 [ L.P. ]; Seidel v Seidel , 2021 SKCA 92 at para 1 ; K.G.K. v L.T.K. , 2021 SKCA 12 at para 4 ; A.M.D. v M.R.M. , 2021 SKCA 71 at paras 30–32 [ A.M.D. ]; T.C. v A.E. , 2021 SKCA 79 at paras 25–27 ; and Kot v Kot , 2021 SKCA 4 at para 20 , 63 ETR (4th) 161). [ 39 ] Despite the obstacle that this standard of review presents, there will be cases in which this Court will intervene and set aside an interim parenting order.

Where that occurs, this Court will typically conduct its own analysis and fashion an order that is in the child’s best interests. 2. Application of the standard of review [ 40 ] While J.B. recognizes the hurdle presented by the standard of review, he argues that the Chambers judge made material errors that provide a basis for this Court to set aside the Decision. I would organize these allegations of error into three categories: (

a) making an interim parenting order even though the parties had not completed mandatory mediation; (

b) misapprehending the evidence, failing to consider relevant evidence, or making findings of fact that the evidence did not support; and (

c) failing to determine E.M.’s best interests in accordance with s. 10 of the Act . [ 41 ] As I will discuss, it is only necessary to address the last of these categories. In my respectful view, the Chambers judge erred in principle in determining what parenting order would be in E.M.’s best interests under s. 10 of the Act . The nature of this error is such that it requires this Court to intervene, set aside the Decision and conduct the best-interests analysis afresh. [ 42 ] The Chambers judge determined that C.M. is a PSI, as that term is used in the Act .

That aspect of the Decision is not in issue in this appeal.

Given that ruling on the PSI question, and the fact that E.M.’s mother, J.M., did not seek any relief in favour of herself under s. 8 of the Act , the question confronting the Chambers judge was whether, in the interim period until matters could be resolved in a final way at a pre-trial or trial, it would be more appropriate for E.M. to live primarily with her father in British Columbia or with her maternal grandfather in Saskatchewan. [ 43 ] The Chambers judge began his analysis of that question by recognizing that s. 10 of the Act directed him to focus only on E.M.’s best interests.

He cited the full text of that

section and then stated that there was one particular consideration he was required to address before any others, namely, the “allegations of family violence and in turn [E.M.]’s safety” (at para 38). Over the next 14 paragraphs, the Chambers judge reviewed the evidence pertaining to those allegations, including the denials by J.B. and J.M. that anything of that sort had occurred. [ 44 ] Once he had done that, the Chambers judge concluded that he was unable to “determine the truth” of the family violence allegations based on the contradictory evidence before him.

However, he accepted that there was “some evidence, which may be credible” that J.B. was “capable of family violence” and that, as a result, E.M.’s safety “may be threatened” (at para 53). Notwithstanding that the evidence left him unable to find that J.B. had ever actually engaged in family violence, the Chambers judge concluded that the mere allegations of such conduct fell within the definition of family violence in s. 2(1) of the Act (at para 55) and they suggested that J.B. was “incapable and unwilling to meet the needs of [E.M.]”.

Again, despite having concluded that he could not determine whether the allegations of family violence were true , he made positive findings that the conduct was “serious”, that it had “occurred over a three- month time span”, and that it showed a “patter[n] of [coercive] and controlling behaviour in relation to family members”, which would “compromise [E.M.]’s safety” (at para 56).

Ultimately, the Chambers judge concluded that “the concerns for [E.M.] being exposed to family violence” overrode any other relevant considerations in the best-interests analysis (at para 57). [ 45 ] With respect, I am satisfied that the Chambers judge’s reasoning on this point demonstrates error. Let me explain. [ 46 ] It is beyond question that the occurrence of family violence is an important consideration in making a parenting order under the Act . The impact of family violence is specifically enumerated in s. 10(3) (

j) as a mandatory consideration in the best-interests analysis and s. 10(4) gives further guidance as to how the effects of family violence are to be taken into account in determining a child’s best interests. Those provisions read, in relevant part, as follows: 10(3) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, including: … (

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; … …

(4) In considering the impact of any family violence pursuant to clause (3)(j), the court shall take the following into account: (

a) the nature, seriousness and frequency of the family violence and when it occurred; (

b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (

c) whether the family violence is directed towards the child or whether the child is directly or indirectly exposed to the family violence; (

d) the physical, psychological and emotional harm or risk of harm to the child;

(

e) any compromise to the safety of the child or other family member; (

f) whether the family violence causes the child or other family member to fear for one’s safety or for the safety of another person; (

g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and to improve the person’s ability to care for and meet the needs of the child; (

h) any other factor that the court considers relevant. [ 47 ] As this Court observed in A.M.D. , “Violence in the home cannot be condoned, and judges must treat allegations of violent conduct involving intimate partners and children with care when making parenting orders” (at para 60).

When a court considers the effect of family violence in the context of a parenting order, it is not necessary that the party alleging the occurrence of family violence specifically prove precise incidents of it, but a Chambers judge must be able to conclude, based on the totality of the evidence, that family violence has in fact occurred or, at the very least, that such allegations are sufficiently credible to give rise to a level of risk to the child’s safety that it bears upon their best interests (see, generally, C.L.B. v J.A.B. , 2016 SKCA 101 at paras 44–46 , 82 RFL (7th) 269; Watts v Laframboise , 2021 SKQB 279 at para 38 ).

This requires the court to “assess the totality of the evidence with care and objectivity to determine whether the allegations should be accepted as reliable, true, or probably so, or whether they are based on speculation, conjecture, suspicion or unreliable evidence such that they should be rejected” ( Shoman v Mais , 2022 SKQB 106 at para 48 ).

A Chambers judge may properly decline to consider the effect of family violence as a factor in making an interim parenting order where the evidence pertaining to it is highly controverted and of such a nature that it does not permit the necessary findings of fact to be made ( A.M.D. at paras 59–60 ; S.G. v K.B. , 2021 SKCA 133 at para 47 [ S.G. ]). [ 48 ] In this case, the evidence pertaining to the occurrence of family violence was highly controverted. On one hand, there were the affidavits of C.M. and T.M.

Their accounts of family violence having occurred were entirely based on hearsay, and key aspects of what they alleged were premised on accounts given by young children about events that had purportedly occurred at some unspecified time in the past. None of this was supported by any first-hand accounts or any relevant documentation. On the other hand, in their affidavits, J.B. and J.M. explicitly denied that any such events had occurred.

Even assuming, for the sake of argument, that the hearsay evidence contained in C.M. and T.M.’s affidavits was properly admissible under Rule 15-46(3) of The Queen’s Bench Rules , the nature and quality of that evidence called for the Chambers judge to address the conflicts in the evidence and make a determination about whether it was sufficiently probable that J.B. had actually committed acts that fall into the definition of family violence before weighing it as a consideration under s. 10(3) (

j) of the Act . In my respectful view, the Chambers judge failed to do this. [ 49 ] Importantly, the Chambers judge did not explicitly reject J.B.’s denial, and he made no clear finding in relation to whether family violence had, actually or even probably, occurred. He simply accepted that there was “some evidence, which may be credible” that J.B. was “capable of family violence”.

Given the equivocal and tentative nature of that finding, it was an error in principle to leap, as the Chambers judge did, to a conclusion that the concern for family violence was such that it overrode all other relevant considerations in the best-interests analysis. [ 50 ] In saying this, I recognize that it is not the role of an appellate court to second-guess the weight that a first-hand trier of fact assigns to various items of evidence.

Interference in such an assessment of the evidence is justified only if there is a palpable and overriding error ( Housen v Nikolaisen , 2002 SCC 33 at para 23 [2002] 2SCR 235; see also S.G. at para 33 ). However, this Court has also stated that it is improper for Chambers judges to make interim findings of fact on the basis of hearsay evidence that is contradicted by direct evidence (see, for example, Tindall v Craig , 2006 SKCA 76 at para 20 , 27 RFL (6th) 39).

To the extent that the Chambers judge made such a finding of fact, he erred. [ 51 ] In my view, given the prominence that the Chambers judge placed on the effect of family violence in the best-interests analysis, no matter how the error on this point is characterized, it is one that compels this Court to intervene and to conduct a fresh analysis of what parenting order is in E.M.’s best interests. [ 52 ] Before moving on to conduct that analysis, I pause to note that this conclusion makes it unnecessary to address J.B.’s argument that the Chambers judge lacked jurisdiction to make the parenting order contained in the Decision . [ 53 ] J.B.’s argument on that point is rooted in s. 44.01(3) of The Queen’s Bench Act, 1998 , SS 1998, c Q-1.01 , which requires parties to an application in family law proceedings such as this one to participate in family dispute resolution.

Section 44.01(4) prohibits parties who fail to participate in that process from taking any further steps in the proceedings and from filing further applications for relief unless they are specifically exempted from that requirement under s. 44.01(6) .

While I recognize that, in some cases, King’s Bench judges have declined to render an interim decision in family law proceedings where the parties have not participated in family dispute resolution (see, for example, Cabiles v Erbach , 2021 SKQB 129 at para 39 ; and Lisitza v Herle , 2022 SKQB 71 at para 18 ), there is nothing in the text of s. 44.01 that suggests a failure by a party to participate in family dispute resolution strips the Court of King’s Bench of its parens patriae jurisdiction to grant relief.

There are also King’s Bench decisions that have held that judges may properly make orders in a family law proceeding, even where the parties have not complied with s. 44.01(3) , where the circumstances call for temporary measures to address a child’s best interests (see, for example, Anaquod v McLean , 2022 SKQB 134 at para 29 ).

Moreover, in the circumstances of this case, there is a live question as to whether C.M. was truly a “party” to the proceeding, such that he and J.B. would fall within the ambit of s. 44.01(3), prior to the Chambers judge determining that C.M. was a PSI. [ 54 ] All of that said, this jurisdictional point was not addressed in the Decision and the argument pertaining to it was not particularly well-developed on appeal. As it will ultimately have no bearing on the outcome of this appeal, it is a question best left for another day. C.

What parenting order is in E.M.’s best interests? [ 55 ] I return now to the determination of what interim parenting order should be made. [ 56 ]

Section 10 of the Act provides that the only consideration in making a parenting order is the best interests of the child. In that respect, s. 10(2) states that the order must protect “to the greatest extent possible, the child’s physical, psychological and emotional safety,

security and well-being”.

In B.J.T. v J.D. , 2022 SCC 24 , 469 DLR (4th) 183 [ B.J.T. ], the Supreme Court described this process as a “highly contextual and fact driven exercise” that requires a “consideration of the unique circumstances” of the child, with an eye to not only their physical and economic well-being but also to their “emotional, psychological, intellectual and moral well-being” (at para 53). [ 57 ] In Saskatchewan, proceedings under the Act require the Court to consider “all factors related to the circumstances of the child”, including those specifically enumerated in s. 10(3) . [ 58 ] Before turning to consider those enumerated factors, it is important to note two significant matters that relate to E.M.’s circumstances.

The first is that, even though one of the parties to the dispute in this case is a grandparent, and not a biological parent, that does not change the nature of the analysis required in determining E.M.’s best interests. In light of the PSI determination that has been made, C.M.’s status under the Act to seek a parenting order is equal to J.B.’s status as a parent. Moreover, the fact that J.B. is E.M.’s biological father does not automatically tilt the balance in his favour when it comes to making a parenting order.

The closeness of the biological connection between the child and the person seeking a parenting order is a factor that can be relevant in the best interests analysis in some circumstances (see, for example, T.K. v C.E. , 2021 SKCA 138 at para 16 , 63 RFL (8th) 1; and T.B.S. v S.J.B. , 2020 SKCA 93 at para 58 , 45 RFL (8th) 148), but there is no legal presumption in favour of a biological parent. As the Supreme Court observed in B.J.T. , “a child can be equally attached to persons who are not their biological parents and those persons can be equally capable of meeting the child’s needs” (at para 104).

The Court in B.J.T. also recognized the special role that grandparents may play in caring for their grandchildren, even where biological parents are still in the picture, and cautioned against the notion of using the closer biological connection of the parent as a tiebreaker. In that regard, Martin J., writing for the Court, said: [108] Finally, as in this case, courts should be cautious in preferring one biological tie over another absent evidence that one is more beneficial than another.

This Court has moved away from stereotyped and formulaic solutions like the “tender years” doctrine ( Young , at p. 43; A.C. , at para. 92 ). Unsupported generalizations about, as in this case, the caregiving capacity of a biological father versus a grandmother, or vice versa, are similarly inappropriate. Comparing the closeness or degree of biological connection is a tricky, reductionist and unreliable predictor of who may best care for a child.

It fails to take into account how often other family members assume care for children whose biological parents cannot act as caregivers as a result of addictions, mental health issues, criminal behavior, or other challenges.

It also overlooks that a custody dispute that is superficially between two biological parents may frequently draw in several family members, as a parent’s extended family may also assist in care and feel invested in seeing a custody claim succeed. … [109] For these reasons, I disagree with the majority of the Court of Appeal that biology must be a tie-breaker when two parties are otherwise equal under this legislation. A court is not obliged to turn to biology and engage in a fraught determination of who may be a closer blood relative.

While biological ties may be relevant in a given case, they will generally carry minimal weight in the assessment of a child’s best interests. [ 59 ] The second important matter to consider in this case is the notion of the status quo. While the touchstone of a parenting order is always the best interests of the specific child or children in question, this Court has repeatedly held that it is generally – but not always – in a child’s best interests to maintain the status quo under an interim order, absent risk or some other compelling reason for a change ( L.P. at para 49 ; see also Seidel at paras 21–22 ).

That said, judges must not feel compelled to maintain a status quo that is not in the child’s best interests ( Schedlosky v Weber , 2016 SKCA 158 ; J.P. v J.P. , 2016 SKCA 168 at para 47 , 89 RFL (7th) 92). [ 60 ] The status quo to which this principle applies is not one of short duration, or that which was created in the immediate aftermath of a separation. The status quo is also not something that, once established, remains carved in stone. It may change due to the effluxion of time or the intervention of other events or circumstances.

In short, what constitutes the status quo is a factual determination that takes into account many variables, including the length of time that has passed since separation, the reason for any delay on the part of the party bringing the application, and how the existing parenting arrangement was established – i.e., by agreement, necessity, or otherwise ( Gebert at para 14 ).

It is also important to recognize that, where the existing parenting arrangement has come about through the unilateral actions of one party, without the agreement or acquiescence of the other, the principle of deference to the status quo will not apply ( Wyatt v Reindl , 2020 SKCA 36 at para 15 , 36 RFL (8th) 253; L.P. at para 35 ). [ 61 ] In this case, the evidence relevant to what the status quo is or was prior to the Decision , how it came about, and how long it was in place is controverted.

For his part, C.M. asserts that he and S.M. have been involved in E.M.’s care for most of her life, and that they have been her primary caregivers since either the summer of 2018, or the spring of 2019. He says the situation arose from J.M.’s personal struggles with homelessness and addictions and the fact that J.B. had moved to British Columbia. C.M. says that, since E.M. was approximately one year of age, J.M. has tended to drift in and out of her life and that, even when J.M. was more involved as a parent, E.M. spent significant periods living with J.M. at his residence.

When that occurred, says C.M., he and S.M. had substantial involvement in E.M.’s care. C.M. refutes J.B.’s claims of having maintained a regular and frequent virtual presence in E.M.’s life, and he calls J.M.’s assertion that she was E.M.’s primary caregiver until recently a complete fabrication. [ 62 ] T.M.’s evidence supports C.M.’s version of events.

She also states that, even before J.B. and J.M. were separated, they did not live together, and that J.M. would spend much of her time living with C.M. and S.M. [ 63 ] J.B., on the other hand, says he has always believed that, after he and J.M. separated, J.M. was E.M.’s primary caregiver.

He attributes his lack of in-person contact with E.M. over the past three years to travel restrictions imposed due to Covid-19 and says that, although he was aware that E.M. had stayed with C.M. on occasion, he had no reason to believe that she was in the primary care of anyone other than J.M. until J.M. began to accuse her parents of “stealing” E.M. in February of 2022.

J.B. says he did not agree to E.M. residing primarily with C.M. and S.M. [ 64 ] J.M. deposed that she had been E.M.’s primary caregiver from the time E.M. was born until September of 2021, when she asked C.M. and S.M. to look after E.M. while she moved, and that they thereafter refused to return her. She acknowledged that her other two children had, by her agreement, lived with their aunt, T.M., since June of 2019.

J.M. stated that J.B. had always tried to have as much contact as he could with E.M. [ 65 ] It is not possible to make a determination about many of the important aspects of the status quo on the basis of the affidavit

evidence in this case. However, it is clear that, prior to the Hildebrandt Order , E.M. had always lived in Saskatchewan, in close proximity to her half-siblings and J.M.’s extended family. The extent to which and duration that J.M. was her primary caregiver is uncertain, but it is uncontroverted that C.M. has been a consistent presence in E.M.’s life. Because of the fact that J.B. has lived in British Columbia for most of E.M.’s life, he has been less involved in her care than J.M. And, by virtue of that distance, he has also been less involved than C.M.

Even though it is fair to conclude that J.B. has always been aware that C.M. plays a role in E.M.’s life, nothing in the evidence contradicts his assertion that he was unaware, prior to the spring of 2022, that C.M. was acting as E.M.’s primary caregiver. [ 66 ] While it can be readily determined from the evidence that, in the year preceding the Decision , C.M. had been E.M.’s primary caregiver, I am unable to conclude that this arrangement had developed with J.B.’s agreement or acquiescence—or even that of J.M. The evidence as a whole, including the parenting agreement, does not support such a finding.

Accordingly, in conducting the best-interests analysis and in crafting an interim parenting order, I see no compelling reason to be bound by the notion of deference to what might loosely be described as the status quo in this case. E.M.’s best interests must be determined with reference to the factors enumerated in s. 10(3) of the Act . [ 67 ] Section 10(3)(

a) requires consideration of “the child’s needs, given the child’s age and stage of development, such as the child’s need for stability”, and s. 10(3)(

h) says that a court must consider the “ability and willingness of each person … to whom the parenting order would apply to care for and meet the needs of the child”. In this respect, there is nothing in the evidence to suggest that either J.B. or C.M. are significantly better positioned than the other to meet E.M.’s needs. From the evidence, both have adequate housing, are sufficiently financially stable, and have the wherewithal to provide the care necessary for a 6-year-old.

I also accept that they are both committed to meeting E.M.’s needs. [ 68 ] However, in my view, E.M.’s “need for stability” is a particularly important consideration in this case. There is evidence, in that respect, that weighs in favour of C.M.’s position, including that ordering that E.M. reside primarily with him would place her in proximity to her half-siblings and a community she knows. However, there is also evidence that points in the opposite direction.

In particular, E.M. has been residing with J.B., his spouse and his stepchildren in British Columbia since the Hildebrandt Order was made, more than four months ago. E.M. is enrolled in and has been attending school in that province and is attending speech therapy there. Nothing in the evidence suggests that she is experiencing any difficulty in this setting. Returning her to reside in Saskatchewan on an interim basis would result in another disruption of her living situation and her school year.

In short, I cannot see how returning her to C.M.’s interim primary care at this point, with the possibility of reversal once the matter is resolved at pre-trial or after a trial would serve the goal of stability.

On balance, this factor weighs strongly in favour of ordering that she continue to reside primarily with J.B. on an interim basis. [ 69 ] As to the consideration identified in s. 10(3) (b), I find that the nature and strength of E.M.’s relationships with her parents, grandparents, and others who play important roles in her life weigh slightly in favour of ordering that she reside on an interim basis with C.M. It is clear from the evidence that E.M. has spent much more time in C.M.’s care than she has in J.B.’s care.

All of the evidence indicates that she has a strong relationship with her grandparents, half-siblings, and the other extended family members who live close to them. However, all of that must be balanced against the fact that the evidence also suggests that E.M. has a good relationship with J.B., his spouse and her stepsiblings in British Columbia. I accept that J.B. is anxious to have a meaningful presence in her life, and the importance of that cannot be ignored. [ 70 ] Sections 10(3)(

c) and (

i) require consideration of each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent and the ability and willingness of the parents to communicate and cooperate on matters affecting the child. In considering these factors, I have read “parent” under ss. 10(3) (

c) and (

i) as including C.M. as a PSI with respect to E.M. In that regard, there are concerns on both sides when it comes to these factors. As the available evidence suggests, no matter what order is made respecting E.M.’s parenting, friction between J.B. and C.M. will continue. One can only hope that they will each come understand that, in the longer term, E.M.’s interests are best served by their visible cooperation and by effective and respectful communication between them, and that making unfounded accusations and impeding E.M.’s access to the other will not help their own position. That said, consideration of these factors does not tilt the balance one way or the other. [ 71 ] Section 10(3)(

d) focuses on the history of care of the child. This factor, somewhat self-evidently, although not entirely, weighs in favour of C.M.’s position. There is clear evidence that C.M. has always been a meaningful presence in E.M.’s life, and that she has spent a considerable amount of time in his care, whether he was acting as her primary caregiver or a secondary caregiver. There is some question, however, as to whether that circumstance had simply evolved over time, was by agreement between C.M. and J.M., or was unilaterally imposed by C.M.

It is less controversial that J.B. was unaware of the circumstance until early in 2022. Nonetheless, although largely because he has lived in British Columbia since E.M. was very young, J.B. has not had a similar presence in her life. Prior to the Hildebrandt Order , he had only had E.M. in his care for a matter of a couple of months over the course of nearly 6 years. Again, due to its equivocal and inexact nature, it is difficult to place determinative weight on the evidence of the history of E.M.’s care. [ 72 ] Section 10(3)(

f) calls for consideration of the child’s cultural, linguistic, religious and spiritual upbringing and heritage. This is an important factor in this case, but one that I do not find tilts the balance in one direction or the other. Both C.M. and J.B. are Indigenous, albeit they are from different communities and traditions. Both credibly profess to being committed to ensuring that E.M. receives an upbringing that recognizes and celebrates her heritage and to teaching her about Indigenous traditions. C.M., however, asserts that J.B. is not truly Indigenous.

Nonetheless, I conclude from the evidence that E.M.’s cultural and linguistic upbringing would be served regardless of who her primary caregiver is. This factor is neutral. [ 73 ] Section 10(3)(

g) requires a court to take into account “any plans for the child’s care”. In addressing this factor, I consider a number of J.B.’s actions to be significant indicators that he has a solid plan for E.M.’s care going forward. These include the fact that he has taken steps to draft and execute a parenting agreement, to implement that agreement, and to make sure that E.M. is enrolled in school and speech therapy. He also took steps to ensure that she had the most stable situation possible upon her arrival in British Columbia.

On the other side of that coin, I recognize that C.M.’s evidence also speaks of a parenting plan going forward for E.M., one which would see her immersed in her extended family, and their community and culture. In short, E.M.’s interests will be served in this respect regardless of where she lives on an interim basis. [ 74 ] Section 10(3)(

j) requires consideration of any family violence and its impact on the ability and willingness of the person who

engaged in it to care for and meet the needs of the child. As set out above, there is no direct evidence suggesting that J.B. has engaged in family violence. C.M.’s allegation that J.B. has done so is highly speculative, dates back to 2017 or 2018, and is supported only by equivocal, double-hearsay evidence that leaves far too much to the imagination of the interpreter of another child’s drawing. Moreover, the allegation of family violence between J.B. and J.M. is entirely denied by each of them.

There is no proper basis to make a finding, on the evidence filed in this case, that family violence has occurred or even that it has probably occurred. The matter is entirely speculative. Accordingly, this factor does not bear on the determination of what is in E.M.’s best interests. [ 75 ] The factors enumerated in ss. 10(3) (

e) and (

k) of the Act do not apply in the present circumstances. I will say no more about them. [ 76 ] In the end, while it is difficult to determine what is in E.M.’s best interests at this interim stage, I am satisfied that she must remain with J.B. I conclude that both C.M. and J.B. care deeply for E.M. It is apparent that they both want the best for her, and that they are both capable of providing a loving and stable home environment for her.

Frankly, on the evidence currently before the Court, I find that many of the relevant considerations under the Act weigh rather equally in the assessment of whether it would be in E.M.’s best interests at this point in her life to stay in British Columbia with her father or to return to her grandfather in Saskatchewan. For this reason, I conclude that stability in E.M.’s life has meaningful importance in the determination of what is in her best interests.

In that regard, I am satisfied that maintaining E.M.’s primary residence with J.B. in British Columbia, and thereby avoiding another major disruption in her living arrangements and her schooling, is in her best interests at this interim stage. [ 77 ] However, I recognise that the parties may negotiate a different solution at a pre-trial conference or, if the matter proceeds to trial, a judge may ultimately reach a different conclusion about E.M.’s best interests in the long-term. V.

CONCLUSION [ 78 ] Accordingly, I would allow J.B.’s appeal, set aside the parenting order made by the Chambers judge, and substitute an interim parenting order with the following terms: (

a) C.M. and J.B. shall have joint decision-making responsibility for E.M., but if they cannot agree, J.B. shall make the decision in question. (

b) E.M. shall reside primarily with J.B. (

c) C.M. shall have parenting time with E.M. one weekend per month, from Friday until Sunday. If the parties are unable to agree as to which weekend, or on pick-up or drop-off details, they may apply to the Court of King’s Bench for direction in that respect. (

d) C.M. shall also have parenting time with E.M. for half of each school holiday (i.e., February break, Easter, summer holidays and Christmas). If the parties are unable to agree as to the exchange dates or pick-up and drop-off details, they may apply to the Court of King’s Bench for direction in that respect. (

e) When he is not exercising in-person parenting time, C.M. shall have generous but reasonable telephone and videoconference access to E.M. (

f) The parties shall communicate with one another in a respectful and courteous manner and no party shall make negative comments about the other in E.M.’s presence. [ 79 ] I would direct that the matter be scheduled for an expedited pre-trial conference in the Court of King’s Bench. [ 80 ] To be clear about the status of the Decision , I would not interfere with the Chambers judge’s order designating C.M. as a PSI with respect to E.M. [ 81 ] Finally, in the circumstances, I would make no order as to costs. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Tholl J.A.” Tholl J.A.