Friesen v Friesen, 2023 SKCA 60

Court of Appeal for Saskatchewan Docket: CACV4007 Citation: Friesen v Friesen , 2023 SKCA 60 Date: 2023-05-19 Between: Alison Sarah Friesen Appellant (Petitioner) And Mitchell Courtney Friesen Respondent (Respondent) And Provincial Association of Transition Houses and Services of Saskatchewan Inc. Intervenor (Non-Party) And National Association of Women and the Law Intervenor (Non-Party) Before: Richards C.J.S., Tholl and Kalmakoff JJ.A. Disposition: Applications to admit fresh evidence dismissed; appeal dismissed Written reasons by: The Honourable Mr.

Justice Tholl In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Kalmakoff On appeal from: 2022 SKQB 83 , Saskatoon Appeal heard: February 15, 2023 Counsel: Tiffany Paulsen, K.C., and Kelsey Dixon for Alison Friesen Arran Ferguson and Kayla Doderai for Mitchell Friesen Sheila Gibb and Rhea Kamin for Provincial Association of Transition Houses and Services of Saskatchewan Inc. Suzanne Zaccour and Joanne Moser, K.C., for National Association of Women and the Law Tholl J.A. I.

INTRODUCTION [ 1 ] Alison Epp (formerly Alison Friesen) and Mitchell Friesen are the parents of a five-year-old daughter. Pursuant to an interspousal agreement and subsequent judgment, the child lived primarily with Ms. Epp while Mr. Friesen had limited parenting time. In 2020, Ms. Epp applied to relocate with the child to Alberta. The proposed move was opposed by Mr. Friesen. After a trial in the Court of Queen’s Bench, permission to relocate was refused and a shared parenting regime was ordered: Friesen v Friesen , 2022 SKQB 83 [ Trial Decision ]. [ 2 ] Ms.

Epp appeals from the Trial Decision , alleging errors in the way the trial judge assessed the child’s best interests, particularly, but not limited to, his examination of the effect of family violence. In this regard, she also asserts that the trial judge erred by failing to conduct a relocation analysis in the manner required by recent amendments to the Divorce Act , RSC 1985, c 3 (2d Supp). Ms. Epp further argues that the trial judge erred in his determination that a material change had occurred.

Lastly, she challenges the trial judge’s treatment of an interspousal agreement. [ 3 ] For the reasons that follow, I would dismiss the appeal. II. BACKGROUND [ 4 ] Ms. Epp was raised in Cochrane, Alberta, where her extended family continues to live. She moved to Saskatoon in 2010. The two communities are over 600 kilometres apart. Mr. Friesen was raised in Saskatoon and his extended family still resides in the area. Mr. Friesen and Ms. Epp met in 2010, were married in May of 2012 and the child was born in July of 2017. The parties separated in May of 2018, with the child remaining in the primary care of Ms. Epp.

On November 28, 2019, the parties entered into a comprehensive interspousal agreement that resolved parenting, child support, spousal support, property division, and all other outstanding issues [Agreement]. Some, but not all, of the terms of the Agreement were incorporated into a consent judgment [Divorce Judgment] and a consent child support order that were granted by Allbright J. on December 5, 2019. [ 5 ] Under the Agreement and the Divorce Judgment, and upon his completion of an anger management program, Mr. Friesen’s

parenting was based on a two-week rotation as follows: (

a) Week one – Tuesday and Thursday from 4:00 p.m. to 8:00 p.m. (

b) Week two – Tuesday from 4:00 p.m. to 8:00 p.m. and Friday from 4:00 p.m. to Saturday at 8:00 p.m. (

c) Such further and other access time as the parties can agree upon. [ 6 ] The parties agreed to move the pick-up and drop-off times up by 15 minutes to better accommodate the child’s sleep needs. With some very limited exceptions, Ms. Epp did not agree to any additional parenting time for Mr. Friesen after the Divorce Judgment was granted. [ 7 ] Subsequent to the parties entering into the Agreement, Mr. Friesen was charged with one count of assault against Ms. Epp, arising out of four separate incidents from September 9, 2018, to December 3, 2019.

A non-contact order was put in place, but was lifted within a few months with regard to the child. Mr. Friesen pleaded guilty to the charge in February of 2020. In the agreed statement of facts tendered in the that matter, Mr. Friesen admitted to the following: Accused and victim married with one child. On September 9, 2018, accused and victim were arguing. Accused threw his hat which hit the victim on the leg. Accused also grabbed her hand with his and hit himself in the head using her hand. On November 24, 2018, during another argument, the accused pushed victim against a wall.

Later that day, the accused grabbed the victim by the neck and pushed her into a closet. On April 23, 2019, the accused pushed the victim. On December 3, 2019, the accused and victim began fighting which escalated and the accused wanted to leave the home with the couples’ child, of whom they share joint custody. The victim objected and threatened to phone the police. The accused pushed the victim while she was holding their child into a wall and the child bumped her head on the wall. [ 8 ] Mr. Friesen’s criminal charge was dealt with in Domestic Violence Court.

He complied with the requirements of that process, and, on August 18, 2020, he received an absolute discharge for the assault charge. Mr. Friesen did not breach the non-contact order that was in place while the charges were outstanding. [ 9 ] On April 16, 2020, Ms. Epp applied to the Court of Queen’s Bench to vary the Divorce Judgment. In that application, she sought to relocate with the child to Cochrane. Mr. Friesen opposed the application. On May 1, 2020, Zerr J. declined to grant the application on an interim basis and referred the matter to a pretrial conference. On May 27, 2021, Ms.

Epp served a notice of relocation on Mr. Friesen in which she gave notice that she wished to move the child to Vernon, British Columbia. Ms. Epp’s parents have a summer home there. Vernon is approximately halfway between Ms. Epp’s family in Cochrane and her new husband’s family on the west coast. Mr. Friesen objected to the relocation. [ 10 ] A pretrial settlement conference was held on August 13, 2021, but it was not successful in resolving the matters raised by Ms. Epp’s application. On September 1, 2021, Ms. Epp served a second notice of relocation, where she changed her desired location back to Cochrane. Mr.

Friesen objected to the move. On September 8, 2021, Mr. Friesen filed a variation application, seeking shared parenting, with two proposed parenting schedules: (

a) Mr. Friesen parenting four days in week one and two days in week two; or (

b) equal parenting on a week-on/week-off basis. Both options contemplated an equal division of holidays. [ 11 ] That application was withdrawn on November 23, 2021. However, Mr. Friesen maintained his position that permission to relocate should be refused, and, if Ms. Epp did not move after being denied permission for the child to move, a shared parenting regime should be ordered. A trial took place from February 14 to 17, 2022, with the Trial Decision rendered on March 24, 2022. III. THE TRIAL DECISION [ 12 ] The trial judge began his judgment by setting out the mainly uncontroverted background to the matter.

In discussing the evidence, he noted that the facts were largely not in contention, and there were no issues of credibility. He began his assessment by indicating that he would utilize the manner of analysis set out in Prime v Prime , 2020 SKQB 326 [ Prime ]. Prime directed trial judges to first determine what parenting arrangements were in the best interests of the child and only once that determination had been made should a trial judge move on to examine whether permission should be granted for the child to move.

He further referenced the dissenting opinion from K.G.K. v L.T.K ., 2021 SKCA 12 , as support for undertaking this sequential method of analysis. [ 13 ] The trial judge addressed whether the Agreement should be used to govern, or even affect, the parenting plan to be put into place, using the guidance provided by Goebel J. in Lloyd v Lloyd , 2018 SKQB 116 [ Lloyd ]. He noted that the Agreement was entered into at a time, and in circumstances, where the concerns about Mr. Friesen’s parenting time were centered on his violence and anger. The trial judge observed that the Agreement was now two years old and that Mr.

Friesen had taken steps to address the concerns with family violence. He further found that several of the terms of the Agreement had not been complied with by Ms. Epp, or had been interpreted restrictively by her, and that she had “essentially determined that as the primary parent she is entitled to parent the child virtually to the exclusion of the father” ( Trial Decision at para 42). The trial judge observed that the Agreement had been applied by Ms. Epp in a fashion that prevented Mr.

Friesen from having any additional parenting time, despite the presence of a term that required “Such further and other access time as the parties can agree upon”. As a result, he found that the Agreement should have little bearing on the parenting arrangements going forward. It carried no weight in the remainder of his analysis. [ 14 ] Turning to Ms. Epp’s application to vary the Divorce Judgment, the trial judge noted the parties “appeared to agree that the judgment could be varied” (at para 46). However, he found it necessary to determine whether he was satisfied that there had been a

material change of circumstances. In this regard, he set out s. 17 of the Divorce Act and referenced Gray v Wiegers, 2008 SKCA 7, 307Sask R 117 [Wiegers]. He found such a material change to have occurred through the aggregate of the following: (

a) Ms. Epp’s present intention to move to Cochrane; (

b) the aftermath of the family violence and Mr. Friesen’s steps to address the issue; (

c) the ability to now consider Ms. Epp’s safety and security concerns in the context of an appropriate parenting plan; (

d) the fact that the child had grown and matured and was in different circumstances than at the time of the Divorce Judgment;and (

e) the manner in which parenting time has been divided combined with Ms. Epp’s ongoing intransigent insistence on notallowing any additional parenting time for Mr. Friesen, contrary to what was expected at the time of the granting of the Divorce Judgment. [15] Having accepted that a material change in circumstances had occurred, the trial judge pivoted to assessing the child’s bestinterests. He framed his analysis by setting out the factors from s. 16 of the Divorce Act and quoting from A.O. v T.E., 2016 SKCA 148,88 RFL (7th) 34 [A.O.]. He began his examination of the factors by first considering family violence.

The trial judge analyzed familyviolence over the next 32 paragraphs of his decision. The details of this portion of his reasons will be discussed below. At this point, it issufficient to reproduce his ultimate conclusion on this issue: “As a result of all of the foregoing, the evidence satisfies me that the father isable to care for and meet the needs of the child having considered the family violence concerns.

It further satisfies the court thatappropriate controls can be put in place to ensure the mother’s concerns are addressed to the extent possible” (Trial Decision at para 88). [16] The trial judge then examined the remaining considerations from s. 16 of the Divorce Act at length and determined that it wasin the child’s best interests to expand Mr. Friesen’s parenting time to that of equal shared parenting. He set out a parenting plan thattransitioned to a week-on/week-off arrangement.

He ordered joint decision-making and prescribed how holidays were to be shared. [17] Once he had determined the best parenting arrangements, to the exclusion of mobility considerations, as per Prime, the trialjudge turned the analysis to an examination of whether he would grant permission for Ms. Epp to relocate the child to Cochrane. He setout s. 16.92 of the Divorce Act and referenced Gordon v Goertz, (SCC), [1996] 2 SCR 27 [Gordon], and Alansari vKreke, 2020 SKCA 122, 464 DLR (4th) 453, rev’d 2021 SCC 50, 464 DLR (4th) 450 (but not on this point), to guide his analysis.

Afteranalyzing the factors, which will be discussed in more detail below, the trial judge declined to authorize the relocation of the child awayfrom Saskatoon. [18] Lastly, the trial judge gave leave to return the issue of child support to him if the parties could not agree on this aspect of thematter and ordered no costs. [19] Ms. Epp filed her notice of appeal from the Trial Decision on April 13, 2022. On May 13, 2022, upon application byMr.

Friesen, Kalmakoff J.A. lifted the stay of proceedings and execution imposed by Rule 15 of The Court of Appeal Rules, with theexception that the parties would not move to equal shared parenting. The transition plan, identified by the trial judge at paragraph 128(a)and paragraph 128(

c) of the Trial Decision, currently governs the parenting arrangements over a two-week rotation. As a result, the childnow spends a four-day weekend with Mr. Friesen in the first week and Wednesday nights in the second week. Christmas break, Springbreak, Easter break, and the months of July and August are shared equally. IV. ISSUES [20] The following issues arise in this matter: (

a) Should fresh evidence be admitted? (

b) Did the trial judge err in determining that a material change of circumstances had occurred? (

c) Did the trial judge err by finding that the parenting provisions in the Agreement did not govern or have an impact on theparenting plan going forward? (

d) Did the trial judge err in his assessment of the child’s best interests, particularly with regard to his examination of the effect offamily violence and his approach to relocation? V. ANALYSIS A. Fresh evidence applications [21] Mr. Friesen has applied in two separate applications to adduce fresh evidence, pursuant to Rule 59(1) of The Court of AppealRules, in the form of two affidavits. Ms. Epp opposed the receipt of this evidence, but, if it is admitted, she has filed two affidavits inresponse – one from herself and one from the child’s maternal grandmother, Brenda Heavenor. Mr.

Friesen has filed an affidavit in replyto these two affidavits. [22] The evidence contained in Mr. Friesen’s first two affidavits can be encapsulated as follows: (

a) Ms. Epp and her current husband purchased a home in Saskatoon, with title transferring on June 2, 2022.

(

b) Mr. Friesen moved into a new rental home, with the affidavit describing its amenities. (

c) The child transitioned well to the change in parenting arrangements and frequently tells Mr. Friesen how she loves being athis home and with him. Their new routine and the child’s positive reaction to it is described. (

d) The activities, events, and milestones in the child’s life are described in a positive manner. The child likes kindergarten andhas made many new friends. She attends Sunday school and enjoys the children’s programs. The child contracted COVID-19, andMr. Friesen provided her care. The extra parenting time has permitted the child to spend time with her paternal extended family and shehas become close to one of her cousins. (

e) Exchanges have been smooth, although the child is occasionally upset and sometimes cries when her time with Mr. Friesenends. (

f) There has been no violence or threatening, intimidating, or abusive behaviour of any kind since December of 2019. The childdoes not display any anxiety, fear, or discomfort in Mr. Friesen’s care. Mr. Friesen has not noticed any anxiety on the child’s part and hasadvised Ms. Epp that he did not think that a psychological evaluation is necessary. He agrees with the child continuing counselling withher psychologist, Adam Lorenz. (

g) Overall, Mr. Friesen has no concerns about the child and his parenting time with her has gone well since the order ofKalmakoff J.A. [23] In

summary, Ms. Epp averred to the following: (

a) The child’s anxiety has dramatically increased since the order of Kalmakoff J.A. She has regressed and becomehyperemotional, to the point that Mr. Lorenz and the child’s family doctor have recommended that a psychological assessment becompleted, but Mr. Friesen will not consent. Several specific instances and details of the behaviour are set out. For example, the child isextremely clingy when she returns from time with Mr. Friesen and does not relax for two days, she has nightmares, she has regressed inself-care, she often asks questions about why the police came to their home, and she has become more fearful, quieter, and more hesitantaround other people. (

b) She disputes Mr. Friesen’s assertion that there has not been any violence or threatening, intimidating, or abusive behavioursince December of 2019. In this regard, she averred that Mr. Friesen engages in the following: (

i) refuses to leave the drop-off locationduring exchanges and, instead, watches and stares at her while she leaves; (ii) emails her incessantly; (iii) has asked that the exchangestake place at her home or his home instead of a neutral location; (iv) monitors the child’s FaceTime calls with her and controls theconversation; and (

v) actively withholds information from her regarding the child’s health and doctor’s visits. [24] Ms. Heavenor’s averments can be condensed as follows: (

a) She lives in Cochrane and spends a few days with Ms. Epp in Saskatoon every two to three weeks. She has a close relationshipwith the child. (

b) Over the summer of 2022, the child became increasingly clingy to Ms. Epp and was unusually anxious about any deviationsto her routine. She has changed from going out of her way to play with new children and to talk with new people to insisting on sitting onMs. Epp’s lap or having her arms around her leg. The child presents as nervous and scared and seeks help with tasks that she is capable ofdoing, such as getting dressed. Her sleep has been disrupted, particularly after she returns from parenting time with Mr. Friesen. (

c) The child now wants to play a game involving mommy, baby, and big sister running away from the bad guys. (

d) The child told her that Mr. Friesen told her that he did not fight with Ms. Epp and that it was only an argument. Thisconversation upset and confused the child. [25] The reply affidavit from Mr. Friesen denies the content of the affidavits of Ms. Epp and Ms. Heavenor. In addition, he assertsthe following: (

a) He has not witnessed any of the child’s alleged worrisome behaviour in his home. (

b) He does not monitor the child’s FaceTime calls. Mr. Friesen stated, with detailed explanations, that he has never refused toleave an exchange, does not email incessantly, and has never withheld information about the child. (

c) He exhibits the child’s term one kindergarten report card, which contains only positive comments about her behaviour andprogress. He also appended several emails from Mr. Lorenz. In one of the emails, Mr. Lorenz states that he does not do assessments ordiagnose. In others, he describes the child as a positive and happy child. [26] The well-known test from R v Palmer, (SCC), [1980] 1 SCR 759 [Palmer], for the admission of fresh evidencewas aptly summarized by Kalmakoff J.A. in M.H. v A.B., 2019 SKCA 135, 36 RFL (8th) 261, leave to appeal to SCC refused,: [16] … Fresh evidence will only be admitted if: (

a) it could not, even with the exercise of due diligence, have been adduced at trial; (

b) it is relevant in the sense that it bears upon a decisive, or potentially decisive, issue in the action; (

c) it is credible, in the sense that it is reasonably capable of belief; and (

d) it is of such a nature that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have

affected the result. [27] The Supreme Court in Barendregt v Grebliunas, 2022 SCC 22, 136 DLR (4th) 1 [Barendregt], has recently affirmed that thePalmer test continues to govern applications for the tendering of additional evidence in the appeal of family law matters. JusticeKarakatsanis described the application of the test in the following terms: [3] In my view, the test in Palmer v.

The Queen, (SCC), [1980] 1 S.C.R. 759, applies whenever a party seeks to adduceadditional evidence on appeal for the purpose of reviewing the decision below, regardless of whether the evidence relates to facts thatoccurred before or after trial. Appellate courts must apply the Palmer criteria to determine whether finality and order in the administrationof justice must yield in service of a just outcome.

The overarching consideration is the interests of justice, regardless of when the evidence,or fact, came into existence. [4] In cases where the best interests of the child are the primary concern, the Palmer test is sufficiently flexible to recognize that it may bein the interests of justice for a court to have more context before rendering decisions that could profoundly alter the course of a child’s life.At the same time, finality and order are critically important in family proceedings, and factual developments that occur subsequent to trialare usually better addressed through variation procedures. [28] In the matter at hand, the events, for the most part, occurred after the Trial Decision was rendered.

As such, this specificevidence was not available with due diligence. However, substantial evidence of this same nature was called at the trial. In my view, thereis nothing in the proposed fresh evidence that bears upon a decisive, or potentially decisive, issue in the action or is of such a nature that itcould have affected the result. As a result, the applications to admit fresh evidence are dismissed, with costs to Ms. Epp in the amount of$1,000. B.

Social science evidence [29] In prior, unreported fiats, justices of this Court granted leave for two organizations to intervene in this matter, namely, theProvincial Association of Transition Houses and Services of Saskatchewan Inc. [PATHS] and the National Association of Women and theLaw [NAWL]. Included in their books of authorities, and particularly that of PATHS, are articles and studies which draw on evidencefrom the realm of social science.

For the purposes of example only, I note that PATHS provided Nancy Glass et al, “Non-FatalStrangulation Is an Important Risk Factor for Homicide of Women” (2008) 35.3 J Emer Med 329–335, and NAWL referenced Kendra L.Nixon, H.L. Radtke & Leslie M. Tutty, “‘Every Day It Takes a Piece of You Away’: Experiences of Grief and Loss Among AbusedMothers Involved with Child Protective Services” (2013) 7 J Public Child Welfare 172–193. [30] One of Mr.

Friesen’s objections to the participation of the intervenors was rooted in his worry that they were seeking tointroduce evidence that was not before the trial judge and which was not presented through an expert who would have been subject tocross-examination.

In my view, this is a concern only if the Court loses sight of the use to which such material can be put. [31] In general, new evidence cannot be introduced on appeal through the device of simply including it in a book of authorities:Ishaq v Canada (Citizenship and Immigration), 2015 FCA 151 at paras 18–21, 484 NR 268, and Langan v Watson, 2007 ABCA 94 atpara 5, 404 AR 98. However, social fact or legislative fact evidence can be taken account of, in certain circumstances, even if it was notintroduced into evidence in the first instance. It can be considered on appeal if (

a) it meets the test for judicial notice, or (

b) there is asuccessful application by one of the parties to adduce fresh evidence. Here, we are dealing only with judicial notice. [32] In R v Spence, 2005 SCC 71 at para 57, [2005] 3 SCR 458 [Spence], Binnie J. defined social fact evidence as “social scienceresearch that is used to construct a frame of reference or background context for deciding factual issues crucial to the resolution of aparticular case”, citing Claire L’Heureux-Dubé, “Re-Examining the Doctrine of Judicial Notice in the Family Law Context” (1994) 26Ottawa L Rev 551 at 556.

As further noted in that same paragraph, Binnie J stated that social fact evidence is general and not specific tothe circumstances of a particular case but can help to explain aspects of the evidence or broad policy considerations.

Social fact evidenceis akin to legislative fact evidence, which is used to establish the purpose and background for legislation, including the social, economic,and cultural context in which a law was enacted: see Spence at paras 56–60, and Ontario (Director, Disability Support Program) vTranchemontagne, 2010 ONCA 593 at para 144, 102 OR (3d) 97. [33] Care must be taken to distinguish social and legislative fact evidence from adjudicative fact evidence.

This latter type isevidence that is specific to the parties to the litigation and concerns the immediate parties and their circumstances: Danson v Ontario(Attorney General), (SCC), [1990] 2 SCR 1086 at 1099. It is a given that “cases must be decided on the evidencepresented by the parties in open court” (David M. Paciocco, Palma Paciocco and Lee Stuesser, The Law of Evidence, 8th ed (Toronto:Irwin Law, 2020) at 573). Great care, then, must be taken when intervenors attempt to supplement the record with new adjudicative factevidence at the appellate level.

This was recently reiterated by Brown and Rowe JJ. in R v Sharma, 2022 SCC 39, 420 CCC (3d) 1: [75] We note here, in passing, our serious concern with interveners supplementing the record at the appellate level. As stated in R. v.Morgentaler, (SCC), [1993] 1 S.C.R. 462, “[t]he purpose of an intervention is to present the court with submissionswhich are useful and different from the perspective of a non-party who has a special interest or particular expertise in the subject matter ofthe appeal” (p. 463, cited in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 52–53).

Interveners must, however, accept therecord as defined by the parties in first instance (Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69,[2005] 3 S.C.R. 388; R. v. Marshall, (SCC), [1999] 3 S.C.R. 533, at para. 9; R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R.584, at para. 59). Interveners creating a new evidentiary record at the appellate level undermines the trial process.

That is not how oursystem of justice, including constitutional adjudication, is designed to work. (Emphasis in original) [34] On the other hand, the Supreme Court has permitted social context evidence to be used to interpret legislation in the family lawsphere: see, for example, Moge v Moge, (SCC), [1992] 3 SCR 813, and Symes v Canada, (SCC), [1993] 4SCR 695. Recently, in Barendregt, the Supreme Court accepted social science research indicating “that children who are exposed to

family violence are at risk of emotional and behavioural problems throughout their lives” (at para 143). [35] By way of further example, a court may choose to interpret legislation with or without resort to extrinsic materials. In Willick vWillick, (SCC), [1994] 3 SCR 670, Sopinka J., writing for the majority, interpreted s. 17(4) of the Divorce Act withouthaving to “resolve the thorny question of the use of extraneous materials such as studies, opinions and reports and whether it is appropriateto take judicial notice of them” (at 679).

Justice L’Heureux-Dubé concurred in the result with Sopinka J. but interpreted the legislationwith reference to the “indisputable social realities in which the Act operates” (at 707).

Specifically, L’Heureux-Dubé J. took judicial noticeof “the significant level of poverty amongst children in single parent families and the failure of courts to contemplate hidden costs in theircalculation of child support awards” (at 704). [36] With all this as a backdrop, I note that the proper approach to take regarding judicial notice of social science evidence is thatwhich is described by Binnie J. in Spence: 53 Still less can it be said that such favouritism satisfies the more stringent test of judicial notice adopted by this Court in Find, [2001 SCC32] at para. 48, per McLachlin C.J.: Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute.

Facts judiciallynoticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice isstrict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject ofdebate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources ofindisputable accuracy. 54 This stricter formulation adopted in Find was originally put forward by Professor E.M. Morgan in “Judicial Notice” (1943–1944), 57Harv. L. Rev. 269.

Morgan, in common with other critics, took the view that the Thayer formulation of judicial notice was too broad. Itallowed the courts to make too much use of out-of-court information, and did not sufficiently recognize the limitations on a judge imposedby the adversarial process and fair trial considerations. … 55 Unlike Professor Thayer, for whom judicial notice created a rebuttable presumption of accuracy, Professor Morgan (at p. 273)necessarily concluded that if certain facts were properly made subject to judicial notice, they were, by definition, not open to rebuttal.

Inthis, he was supported by Professor C.T. McCormick, who wrote that “a ruling that a fact will be judicially noticed precludes contradictoryevidence”: see “Judicial Notice” (1951–1952), 5 Vand. L. Rev. 296, at p. 322 [McCormick]. In R. v. Zundel (1987), (ONCA), 31 C.C.C. (3d) 97 (Ont. C.A.) the court said that “[t]he generally accepted modern view … is that where the court takes judicialnotice of a matter, the judicial notice is final” (p. 150). … … 60 … the permissible scope of judicial notice should vary according to the nature of the issue under consideration.

For example, morestringent proof may be called for of facts that are close to the center of the controversy between the parties (whether social, legislative oradjudicative) as distinguished from background facts at or near the periphery. 61 To put it another way, the closer the fact approaches the dispositive issue, the more the court ought to insist on compliance with thestricter Morgan criteria … .

While some learned commentators seek to limit the Morgan criteria to adjudicative fact (see, e.g., Pacioccoand Stuesser, [2nd ed] at p. 286; McCormick, at p. 316), I believe the Court’s decision in Find takes a firmer line. I believe a review of ourjurisprudence suggests that the Court will start with the Morgan criteria, whatever may be the type of “fact” that is sought to be judiciallynoticed.

The Morgan criteria represent the gold standard and, if satisfied, the “fact” will be judicially noticed, and that is the end of thematter. 62 If the Morgan criteria are not satisfied, and the fact is “adjudicative” in nature, the fact will not be judicially recognized, and that too isthe end of the matter. 63 It is when dealing with social facts and legislative facts that the Morgan criteria, while relevant, are not necessarily conclusive. Thereare levels of notoriety and indisputability. Some legislative “facts” are necessarily laced with supposition, prediction, presumption,perception and wishful thinking.

Outside the realm of adjudicative fact, the limits of judicial notice are inevitably somewhat elastic. Still,the Morgan criteria will have great weight when the legislative fact or social fact approaches the dispositive issue. (Emphasis in original) [37] Based on this approach, I am prepared to take the following general propositions from the articles provided by PATHS, whichare relevant to the matter at hand: (

a) family violence need not cause physical injury to have a significant impact; the effects of family violence are insidious and arenot usually visibly manifested; (

b) a child, including a very young child, will be affected by family violence, even if they are not the direct victim of the violenceor present to see or hear the violence; (

c) perpetration of family violence can be harmful to a child’s physical, emotional, and psychological well-being anddevelopment, and it can have a myriad of negative short-term and long-term impacts on the child; and (

d) the effects of family violence can continue to be experienced by victimized parents and children long after the parentsseparate. [38] A subset of these statements could be said to have been judicially noticed by Karakatsanis J. in Barendregt: [143] The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s

parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behaviouralproblems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context ofSeparation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, byobserving the incident, experiencing its aftermath, or hearing about it: S.

Artz et al., “A Comprehensive Review of the Literature on theImpact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497. [39] Regarding NAWL’s material, and applying the Spence approach, judicial notice can be taken that most applications forrelocation are made by women and, therefore, gendered consequences arise from the court’s

interpretation of the Divorce Act amendmentswith respect to relocation. C. Standards of review [40] The

interpretation of a statutory provision involves a question of law and attracts review on the standard of correctness: ReginaBypass Design Builders v Supreme Steel LP, 2021 SKCA 82 at para 22. The standards of review relevant to the remainder of the issues inthis matter are captured by the following excerpt from Chapman v Somerville, 2022 SKCA 88, [2022] 11 WWR 242 [Chapman]: [11] The determination of parenting arrangements is an exercise in judicial discretion and, as such, the scope of appellate review is narrowand deferential.

However, errors of law, including a failure to correctly identify the criteria that govern the exercise of the trial judge’sdiscretion, are reviewed on the standard of correctness.

Alleged erroneous factual findings are reviewed on the standard of palpable andoverriding error: see S.A.R. v A.K.L., 2021 SKCA 124 at para 14 [S.A.R.]; Van de Perre v Edwards, 2001 SCC 60 at paras 13–15, [2001] 2SCR 1014; Peterson v Peterson, 2019 SKCA 76 at para 20, 30 RFL (8th) 341; and S.T. v J.T., 2019 SKCA 116 at para 44, 33 RFL (8th)253. [41] In Barendregt, Karakatsanis J. emphasized the need for courts of appeal to be vigilant regarding the application of the standardsof review: [101] The trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial: R. v.

G.F., 2021 SCC 20, atpara. 81. After hearing from the parties directly, weighing the evidence, and making factual determinations, the trial court is bestpositioned to determine the best parenting arrangement. [102] An appellate court’s role, as noted, is instead generally one of error correction; it is not to retry a case. Permitting appellate courts tobecome venues for dissatisfied parties to relitigate issues already resolved at trial erodes the public’s confidence in the judicial process andthe rule of law.

The proper functioning of our judicial system requires each level of court to remain moored to its respective role in theadministration of justice. [103] Therefore, an appellate court may only intervene where there is a material error, a serious misapprehension of the evidence, or anerror in law: Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, at para. 12; Van de Perre, at para. 11. [104] Absent an error of law or a palpable and overriding error of fact, deference is vital: Housen, [2002 SCC 33] at paras. 8, 10, 36 and39.

Appellate courts must review a trial judge’s reasons generously and as a whole, bearing in mind the presumption that trial judges knowthe law: G.F., at para. 79. As I have explained, an appeal is not a litigant’s opportunity for a “second kick at the can”, especially inparenting cases where finality is of paramount importance: Van de Perre, at para. 13. D. Material change in circumstances [42] As her first ground of appeal, Ms. Epp asserts that the trial judge erred in finding that a material change in circumstances hadoccurred.

She argues that he failed to apply the three-part test mandated by Gordon when he assessed this issue. On appeal, she urges us tofind that there was no material change in circumstances. In my observation, this is a problematic position for Ms. Epp to take. She appliedto vary the Divorce Judgment. At no point in her submissions at trial did Ms. Epp question whether there had been a material change incircumstances. She structured her argument to address the best interests of the child in a manner that presumed a material change hadoccurred and did not reply to or question Mr.

Friesen’s assertion in his written argument at trial that there had been a material change incircumstances. The trial judge recognized the parties’ mutual assumption that this threshold had been crossed and commented specificallyon it at paragraph 46 of the Trial Decision. [43] It is difficult to reconcile Ms. Epp’s current argument that there had been no material change in circumstances with hersubmission that the Divorce Judgment should have been varied to permit her to move.

As set out in s. 17(5) of the Divorce Act, herrequested variation of the judgment could only have been granted if a material change of circumstances had occurred.

Section 17(5) ands. 17(5.2) of the Divorce Act are as follows: Factors for parenting order or contact order 17(5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there hasbeen a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or ofan order made under subsection 16.5(9). … Relocation — change in circumstances

(5.2) The relocation of a child is deemed to constitute a change in the circumstances of the child for the purposes of subsection (5). [44] Additionally, as can be seen from s. 17(5.2), a relocation in and of itself is deemed to constitute a material change incircumstances. When the fact of the proposed move is combined with the four other factors found by the trial judge to support the

existence of a material change of circumstances, it is my view that there is no room for this Court to interfere with his determination onthis issue. The trial judge was cognizant of the well-known requirements that needed to be established to find a material change incircumstances, as articulated in the leading Saskatchewan case of Wiegers. He then applied the test and, in a detailed analysis, determinedthat, based on the facts of this case, the aggregate of the effect of all five factors on the circumstances of the child was sufficient to satisfythis threshold requirement.

No error is revealed in the trial judge’s analysis or conclusion on this issue. This ground of appeal has no merit. [45] Lastly, for the sake of completeness, I would note that the Divorce Judgment contained a review clause that permitted theparenting arrangements to be reviewed upon the child reaching the age of five without the need for the establishment of a material change.As of the date of the Trial Decision, she was four years and eight months old. E.

Interspousal contract (the Agreement) [46] The trial judge determined that the Agreement entered into by the parties carried no weight with regard to parentingarrangements and should not govern or have an impact on the parenting plan going forward. [47] Neither of the parties take issue with the legal principles that apply when a court is determining how much weight to give tothe parenting provisions found in an interspousal agreement. These principles were summarized in Lloyd: [13] … the terms of a parenting agreement are not binding on the court.

They are simply one factor the court will consider whendetermining what parenting arrangement is in the best interests of the child: Gordon v Goertz, (SCC), [1996] 2 SCR 27at para 69; S.K. v R.K., 2015 SKQB 235, 479 Sask R 94; J.L.P. v J.R., 2014 SKQB 366 at para 6, 461 Sask R 139; and Watch v Watch(1999), (SK KB), 182 Sask R 237 (QB) at paras 6 to 8.

The weight to be afforded to the agreement will depend on anumber of factors including the circumstances surrounding the negotiation and execution of the agreement, the date of the agreement, anychanges since the agreement was reached, the formality of the agreement, and whether, in fact, the terms of the agreement wereimplemented, followed and appear to be in the best interests of the child at this time. [48] Ms. Epp submits that the trial judge erred in finding that the Agreement should have little bearing on his final determination ofparenting.

She concedes that he identified the correct criteria to guide his consideration of this issue – that set out in Lloyd – but assertsthat he failed to meaningfully apply the criteria to his analysis. Ms. Epp argues that the trial judge ought to have considered the fact thatthe Agreement was a formal written agreement, was signed by both parties, and that each party had independent legal counsel to advisethem on its meaning and effect. [49] Mr. Friesen contends that the trial judge properly applied the Lloyd criteria and gave the Agreement the appropriate weight.

Heargues that the trial judge fully examined the timing of the Agreement, the circumstances under which it was entered into, and Ms. Epp’sfailure to follow its terms unless it benefitted her and found that it was not in the child’s best interests to apply it. [50] While the trial judge did not comment specifically on the formality of the Agreement when he analyzed its effect, he hadearlier described it and excerpted specific portions of it.

Reading the judgment as a whole, there is no doubt that he was aware of thenature and formality of the Agreement, the date it was entered into, and the circumstances surrounding it coming into existence. The trialjudge was more concerned with the fact that the parenting portions of the Agreement were entered into at a time when Mr. Friesen’sviolence and anger were the dominant factors that had led to the provisions that significantly limited his parenting time. In the trial judge’sview, with two years having passed and Mr.

Friesen having taken appropriate steps to confront and deal with his anger and perpetration offamily violence, the restrictive parenting provisions should have little bearing going forward. He determined that this was a significantchange, as discussed in Lloyd. [51] Additionally, the trial judge was also heavily influenced in his determination about the effect of the Agreement by Ms. Epp’sinterpretation and use of it over the preceding two years. He noted that its terms were strictly applied by Ms. Epp as against Mr. Friesen,but not applied when it came to her own obligations.

The testimony of the parties revealed numerous such occurrences. As an example, thetrial judge commented specifically on Ms. Epp’s

interpretation of the provision that called for equal shared parenting on all major holidaysto only include half of the actual holiday day, not the weekend accompanying it. He was particularly dissatisfied with Ms. Epp’s failure toagree to any additional parenting time for Mr. Friesen over a period of two years, despite the Agreement providing for “[s]uch further andother access time as the Parties can agree upon”. Overall, the trial judge determined that significant portions of the Agreement were notimplemented and followed by Ms.

Epp. [52] Utilizing the test from Lloyd, the trial judge found that it was not in the child’s best interests to give any effect to the restrictiveparenting arrangements set out in the Agreement. His conclusion and analysis on this point must be read in conjunction with his lateranalysis regarding the child’s best interests. [53] There is no room for appellate interference in the trial judge’s decision to give no effect to the Agreement. The trial judgeidentified the correct test, applied the criteria from Lloyd, and then made a decision regarding the weight that should be accorded to theAgreement.

This was an exercise of his discretion. Keeping in mind the deferential standard of review that applies to such discretionarydeterminations – as described in Barendregt and Kot v Kot, 2021 SKCA 4 at para 20, 63 ETR (4th) 161 – I find that this ground of appealhas no merit. F. Best interests of the child 1. Legislative changes to the Divorce Act a. Best interests and family violence [54] Prior to the amendments to the Divorce Act that came into force in 2020, there was a very limited definition of best interests ofthe child in the Act and family violence was not mentioned in it at all.

That situation significantly changed when the following

amendments were made pursuant to

An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act , SC 2019, c 16: Best interests of child 16(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order. Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. Factors to be considered

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

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

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

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

d) the history of care of the child; (

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

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

g) any plans for the child’s care; (

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

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

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

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

k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (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 toward the child or whether the child is directly or indirectly exposed to the family violence; (

d) the physical, emotional and psychological 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 their own safety or for that of another person; (

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

h) any other relevant factor. Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order. Maximum parenting time [this

section heading is Parenting time consistent with best interests of child in the Divorce Act ]

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

b. Best interests and relocation [ 55 ] At the same time the previously noted amendments were made, the following sections, inter alia , regarding relocation were added to the Divorce Act : Notice 16.9(1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention. … Relocation authorized 16.91(1) A person who has given notice under

section 16.9 and who intends to relocate a child may do so as of the date referred to in the notice if (

a) the relocation is authorized by a court; or (

b) the following conditions are satisfied: (

i) the person with parenting time or decision-making responsibility in respect of the child who has received a notice under subsection 16.9(1) does not object to the relocation within 30 days after the day on which the notice is received, by setting out their objection … . … Best interests of child — additional factors to be considered 16.92(1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in

section 16 , (

a) the reasons for the relocation; (

b) the impact of the relocation on the child; (

c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons; (

d) whether the person who intends to relocate the child complied with any applicable notice requirement under

section 16.9, provincial family law legislation, an order, arbitral award, or agreement; (

e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside; (

f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision- making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and (

g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance. Factor not to be considered

(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate. Burden of proof — person who intends to relocate child 16.93(1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child. Burden of proof — person who objects to relocation

(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child. Burden of proof — other cases

(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child. [ 56 ] Similar amendments regarding family violence and relocation were made to The Children’s Law Act, 2020 , SS 2020, c 2 [ CLA 2020 ], concurrent with the changes to the Divorce Act .

2. Family violence [ 57 ] Ms. Epp submits that the trial judge adopted a dismissive tone to the family violence aspect of this case from the very outset of the Trial Decision and repeated the theme of reducing the impact of the violence throughout the judgment. She argues that this represents an error of law that materially affected the outcome of the decision and warrants intervention by this Court. Mr.

Friesen contends that the trial judge extensively and fully addressed the family violence in his assessment of the child’s best interests and appropriately took this factor into account. [ 58 ] PATHS, as intervenor, submits that the recent legislative amendments require a judge to identify and set out in detail the specific incidents of family violence and the patterns of family violence in their analysis of s. 16(3) (

j) and s. 16(4) of the Divorce Act . It argues that if a judge does not do so, they will not be able to properly conduct the required analysis of the impact of family violence on the child and on parenting. It further asserts that considerations around family violence must trump other issues. a. Evidence at trial regarding family violence and its effect [ 59 ] In order to fully examine the arguments raised by the parties and PATHS, and to consider the trial judge’s analysis of this issue, it is necessary to set out the evidence that was called at the trial regarding family violence and its effect. [ 60 ] Ms.

Epp testified that, in addition to the facts admitted to in the criminal process, Mr. Friesen had engaged in other acts of family violence before separation , such as displaying anger, yelling at her so close that she would feel his spit on her face, grabbing her arms, holding onto her, throwing a pencil at her that hit her in the arm and driving recklessly while banging the steering wheel. In his testimony, Mr. Friesen acknowledged the arguments but denied that any physical acts of violence occurred prior to their separation. [ 61 ] In her testimony, Ms.

Epp also described the four incidents referenced in the admissions Mr. Friesen made in the criminal process and added details from those and other incidents that occurred post-separation : (

a) September 9, 2018 – Mr. Friesen admitted that they were arguing and that he threw his hat which hit Ms. Epp on the leg and that he grabbed her hand with his and hit himself in the head using her hand. In addition, Ms. Epp testified to the following: (

i) When the hat struck her, it left a welt on her leg. A photograph of the welt was tendered. (ii) Mr. Friesen punched a hole in the wall. She tendered a photograph of the hole. (

b) November 24, 2018 – Mr. Friesen admitted that, during an argument, he pushed Ms. Epp against a wall. Later that day, he grabbed her by the neck and pushed her into a closet. In addition, Ms. Epp testified as follows: (

i) Mr. Friesen was yelling in her face. (ii) She was holding the child while Mr. Friesen pinned her against the wall and strangled her to the point of leaving bruises. (iii) The child was scared and cried. (

c) April 23, 2019 – Mr. Friesen admitted that he pushed Ms. Epp. Ms. Epp testified that, in a separate incident in April of 2019, Mr. Friesen spit on her. She further testified that he broke a window at a marriage retreat that same month by banging his head into it. (

d) September of 2019 – Mr. Friesen threw a water bottle and yelled outside the house while the child watched from inside. (

e) December 3, 2019 – Mr. Friesen admitted to the following: he and Ms. Epp were fighting; he wanted to leave the home with the child; Ms. Epp objected and threatened to phone the police; he pushed Ms. Epp into a wall while she was holding the child; and the child bumped her head on the wall. In addition, Ms. Epp testified as follows: the child was crying in her arms; she dialed 911, but Mr. Friesen hung up her phone and threw it; Mr. Friesen pushed her into the wall and put his hands around her neck; and when the 911 operator called back, Mr. Friesen left and slammed the door, breaking the doorframe.

In his testimony, Mr. Friesen denied hanging up the 911 call or handling Ms. Epp’s phone in any manner. (

f) During her testimony, Ms. Epp exhibited photographs of a dent in a wall caused by Mr. Friesen throwing of a remote control and photographs of a door that was broken by Mr. Friesen punching it. No date estimates were provided for those events. [ 62 ] Police reports containing statements made by Ms. Epp to a police officer were tendered as business records at trial. They contained some additional peripheral details of the allegations regarding the incidents but were not commented on further by Ms. Epp in her testimony. [ 63 ] Mr.

Friesen admitted that physical violence had occurred, but that it happened only in the period between their separation in 2018 and divorce in 2019 and just to the extent described in the agreed statement of facts from the criminal matter. However, in his testimony, Mr. Friesen also admitted to raising his voice, yelling, using a scary tone of voice, punching a hole in a wall, and punching a door numerous times, causing it significant damage over time. [ 64 ] Ms. Epp testified to related conduct on her own part.

She admitted that she smashed a framed photograph, raised her own voice during arguments, and would push away or be reactive in a self-defensive manner to Mr. Friesen’s anger. Ms. Epp admitted that she initiated a physical incident on one occasion, in March of 2019, where she confronted Mr. Friesen and his girlfriend on the street and, unprovoked, punched each of them in the head multiple times and yelled at them while the child waited in her car. This portion of the March of 2019 event was captured on video and exhibited at trial. In addition, Mr. Friesen testified that, at the conclusion of the altercation, Ms.

Epp pulled the child out of the back seat of the car, held her up in front of him, and asked him if he was choosing his girlfriend over the child. The videographer confirmed that Ms. Epp took the child out of the car and was holding her after the recording stopped.

[ 65 ] Mr. Friesen testified that Ms. Epp punched him multiple times during other arguments, threw things, smashed a picture in a frame with a glass cover, banged the couch, banged pillows, screamed and yelled at him, and told him that she was going to “cut [his] balls off”. He was not challenged on these assertions in cross-examination. However, other than with respect to the picture and his account of the raising of her voice during arguments, Ms. Epp was not specifically asked about these allegations during her testimony and was not recalled to address them. [ 66 ] In her testimony, Ms.

Epp agreed that there have been no incidents of physical violence by Mr. Friesen against her or the child since December 3, 2019. However, Ms. Epp testified that Mr. Friesen continues to engage in conduct that she considers to be family violence, consisting of sending an inordinate amount of emails to her, not leaving the exchanges once he has dropped the child off, insisting on wanting to talk to her at one of the exchanges in January of 2021, and acting inappropriately during that exchange. [ 67 ] In his testimony, Mr. Friesen agreed that he stays at the exchanges until Ms.

Epp leaves with the child but said that he does this so that he can see the child and perhaps blow her a kiss if she looks at him, so as to not give her the impression that he is just dropping her off and running. He testified that, the vast majority of the time, this lasts for one or two minutes, and, if the period that Ms. Epp remains at the scene is extended beyond that few minutes, he will leave. Mr. Friesen admitted that he tried to talk to Ms. Epp during an exchange in January of 2021. Mr.

Friesen acknowledged that he acted inappropriately at that exchange by going to the vehicle window and insisting on directly giving Ms. Epp a toque and mitts that belonged to the child instead of handing them to her husband as requested. Other than Mr. Friesen’s lingering, there were no other problems alleged during the exchanges, which, for regular parenting time, occurred four times every week in the year leading up to the trial. [ 68 ] Ms. Epp testified that she feels anxious and her heart starts to race when she receives an email from Mr. Friesen.

She said that she feels attacked by emails sent by him regarding parenting post-divorce, and, while she does not believe the emails contained threats, she feels she is being blamed and controlled. She specifically referred to an email from October 16, 2020, and an additional email chain from January 5–12, 2021. Mr. Friesen admitted to sending numerous emails but stated that he was trying to be flexible and cooperative and was just attempting, unsuccessfully, to arrange to spend as much time as possible with the child. [ 69 ] Email was the exclusive method of communication on which Ms.

Epp had insisted and to which Mr. Friesen had agreed. An examination of the voluminous emails filed at trial reveals that they were, as found by the trial judge, generally respectful in nature, dealt with parenting, and contained no overt threats or anything that could be construed as intimidation. Overall, even in the face of consistent denials of his many requests for additional parenting time – usually with little or no discussion or explanation by Ms. Epp – the trial judge found that the emails reflected Mr. Friesen communicating appropriately.

Of course, the frequency and wording of the emails must also be seen in light of the overall context of the parties’ relationship and the family violence. [ 70 ] Ms. Epp attends counselling to deal with the effects of the family violence and continues to have anxiety. She stated that her sense of fear has never gone away. [ 71 ] Regarding the effect on the child from the family violence, Ms. Epp and her mother testified that the child recalls the incidents and talks about “old Daddy who fight, fight, fights; new Daddy who is safe”. Ms.

Epp further described the family violence as causing her to regress and be clingy. She testified that the child has nightmares and states that she is scared. If Ms. Epp and her new husband are having a disagreement about anything, the child quickly intervenes on Ms. Epp’s behalf. [ 72 ] The child’s psychologist, Mr. Lorenz, had seen her on 11 occasions from October 4, 2021, to February 17, 2022. He testified that she has never expressed any concerns about being fearful or feeling unsafe with either parent. Based on his sessions with the child, Mr. Lorenz had no safety concerns about her spending time with Mr.

Friesen. [ 73 ] There have been no incidents that have involved the child’s safety since December 3, 2019. b. Analysis of the trial judge’s treatment of family violence [ 74 ] It bears repeating at the outset that the best interests of a child remains the only consideration in determining appropriate parenting arrangements: s. 16(1) of the Divorce Act . Section 16(2) requires the courts, when considering the best interests factors, to give primary consideration to the child’s physical, emotional and psychological safety, security, and well-being.

This refers not only to the bare necessities of life but also to a child’s right to be raised in a healthy home environment. Family violence can rob a child of this basic need. [ 75 ] It is undisputed that family violence can have a profound negative impact on the best interests of a child, not only through its direct effects but also through its indirect consequences. The violence does not need to be personally inflicted upon the child, nor do they need to be present during the abuse of one parent by the other, for it to have a significant impact.

Spousal violence is not just a spousal issue; it is a family issue. Indirect exposure to such actions perpetrated by a parent can be significantly detrimental to a child’s well-being and development. These emotional and psychological consequences for a child can persist long after the wrongful conduct has ceased. The recent amendments to the Divorce Act and the CLA 2020 , with their broad

definitions of family violence and the requirement that it must be taken into account, recognize that the present and potential future effect of family violence is a critical component of a best interests analysis: Barendregt at para 146 and R.R. v M.K. , 2022 SKQB 33 at paras 63–66 . There is nothing unclear or ambiguous about the family violence provisions that would require the use of extrinsic aids to interpret these new sections of the Divorce Act for the purposes of this case.

They clearly and broadly define family violence and explicitly direct that judges consider it as part of their overall assessment of a child’s best interests. As discussed below, it is my view that the trial judge recognized his obligation to comprehensively examine this issue and that he fulfilled it. [ 76 ] The trial judge began his best interests analysis by setting out s. 16 of the Divorce Act and referencing A.O. After doing so, the first factor he considered under s. 16 was family violence and its effect.

His stated reasons for addressing this issue first were as follows: [59] I determine to consider this issue first because it occupied much of the evidence at trial and because it is central to how the parties have interacted to parent the child to this point in time. It will, no doubt, continue to play a significant role going forward and the issue then becomes how to properly consider and manage that issue in the best interests of the child while also recognizing the mother’s concerns for both her safety and that of the child. I start with the specific directions in s. 16(4) of the Divorce Act .

[77] After setting this priority, the trial judge referenced the four incidents of violence admitted to by Mr. Friesen. In addition to hisdiscussion of family violence in the background

section at paragraphs 8 to 16 of the Trial Decision, the trial judge also described theseevents and their effect in the following terms: [60] There were four incidents of specific violence raised against the father. These incidents were not insignificant and while they did notresult in any serious personal injury to the mother, they did result in emotional harm to her, as well as physical damage to a wall, awindow, and a door. There may be no doubt that the violence was real, concerning, and frightening, for the mother.

And there may be nodoubt that the concern over the threat of the outbreak of violence, really throughout the relationship, was something which appears to havebeen of continual concern to the mother. [61] The last incident of violence occurred almost two and one-half years ago. While the mother’s concerns continue, both due to thatincident and as a result of her lived experience, there is no suggestion in the evidence that there has been any violence or threat of violenceby the father over that two and one-half year period.

Beyond the violence, there is no evidence of any pattern of coercive or controllingbehaviour by the father towards the mother, or for that matter, towards anyone else in the family or otherwise over that same period oftime. [62] The family violence that did occur was not directed towards the child. The last incident occurred while the child was being held bythe mother and according to the mother’s report, resulted in the child bumping her head on the wall. There is no evidence of any physicalinjury to the child.

There is similarly no evidence that the child was otherwise exposed to the physical violence that occurred prior to thislast incident. [63] The mother, and the maternal grandmother, provided some evidence suggestive of the child speaking about her memories of theviolent incident in which she banged her head. While I do not engage in a questioning of their recounting of what the child may haverecounted, I am unable to place any weight on any such recounting given the totality of the evidence presented.

There is no evidencesuggesting the child is afraid or anxious either while in the father’s care or when about to enter into his care. In fact, the evidence is quiteto the contrary and she seems, as a well-balanced child, to look forward to her parenting times with the father. As a result, based on theevidence, I am unable to conclude there has been any physical, emotional, or psychological harm to the child. [64] The family violence that did occur continues to affect the mother. I accept, without reservation, her ongoing worries, fears, andconcerns, in this regard.

She was the victim of domestic violence and therefore she is entitled to her emotions, and she is entitled to havethose emotions recognized. There may be no timetable on those emotions to suggest that she should move beyond her concerns at somespecific point in the future. These are her emotions. They are to be respected. It then becomes the function of the court to allow for suchrecognition and respect in the terms of the judgment ultimately rendered.

This will be dealt with when considering the impact of thefamily violence on the best interests of the child. [65] The father testified to the steps he has taken to confront his history of domestic violence. He also testified as to his own feelings onthat which he had done to the mother and to their relationship together. The first thing he did was, the importance of which should not beunderstated in the context of these family law proceedings (as opposed to any criminal proceedings), he entered a guilty plea and enteredinto an agreed statement of facts, at what appears to have been the earliest opportunity.

This, combined with his other actions, and histestimony, indicates to the court his acceptance of fault for his actions and behaviour, and further indicates his intentions to deal with thatwhich he has done and that which he is on an ongoing basis. [66] The mother suggests the father is minimizing the violence he perpetrated against her through his testimony. I do not see the evidencein that light. In its entirety, the father has recognized and admitted to the violence. He did not attempt to minimize his role or imply themother’s fears were unwarranted.

While he did not recount the incidents in any detail, I conclude he is neither disputing nor minimizingthem. His actions after the December 2019 incident speak to this as does his testimony in this trial. [78] This discussion of the facts regarding family violence continued for 11 further paragraphs. That narration addressed some, butnot all, of the conflicts in the evidence. The trial judge found Mr. Friesen to be the instigator of the family violence and describedMs. Epp’s own conduct as being reactive to the circumstances and not equivalent to the actions of Mr. Friesen.

Earlier in the TrialDecision, the trial judge had indicated that the incident regarding Ms. Epp’s interaction with Mr. Friesen and his girlfriend was an isolatedand uncharacteristic occurrence that would receive no weight in his deliberations. He examined the post-divorce allegations and foundnothing of concern in the one exchange that involved the child’s winter wear but recognized why Ms. Epp would find it concerning. Thetrial judge further determined that Mr. Friesen’s post-divorce emails were neither relentless nor inappropriate as alleged by Ms.

Epp.Overall, he concluded that there was no repetition of the sort of violent conduct that Mr. Friesen had perpetrated prior to the divorce. [79] While the trial judge did not engage in a lengthy recitation of all the allegations or resolve every conflict in the evidenceregarding family violence, it was not necessary that he do so.

The fact that family violence is now explicitly set out in the Divorce Act doesnot, contrary to PATHS’s submission, mandate that every judgment must contain a detailed factual analysis of each specific allegation offamily violence and make definitive and detailed findings regarding each incident. A trial judge is generally not required to do so inrelation to evidence on any particular issue and the legislative amendments do not change this principle of law.

This proposition is well-summarized by the majority in Hilmoe v Hilmoe, 2018 SKCA 92, [2019] 1 WWR 118, leave to appeal to SCC refused, : [35] We also find it helpful to restate certain basic principles of appellate review where errors of fact are said to ground an error of law.First, a trial judge is not required to revisit each and every piece of evidence in his or her reasons, and an appellate court must presume thetrial judge has reviewed all of the evidence unless an omission gives rise to a “reasoned belief” the trial judge has forgotten, ignored ormisconceived the evidence in a way that affected the trial judge’s conclusion (Van de Perre v Edwards, 2001 SCC 60 at para 15, [2001] 2SCR 1014; Housen v Nikolaisen at para 72).

Second, it is open to a trial judge to prefer the evidence of certain witnesses over the evidenceof other witnesses and to place more weight on some parts of the evidence over other evidence (Toneguzzo-Norvell (Guardian ad litem of)v Burnaby Hospital, (SCC), [1994] 1 SCR 114 at 122–123; Housen v Nikolaisen at para 72).

Third, the mere fact a trialjudge has not discussed certain evidence in depth is not on its own a sufficient basis for appellate intervention (Van de Perre v Edwards atpara 15; Housen v Nikolaisen at para 72; see also, Northrock Resources v ExxonMobil Canada Energy, 2017 SKCA 60, [2017] 12 WWR369 [Northrock]).

See also K.K. v M.M ., 2022 ONCA 72 at para 23 , 466 DLR (4th) 559. [ 80 ] In some cases, particularly when the evidence is highly controverted and the existence or extent of family violence is denied, a more detailed analysis may be required. As noted in Peter G. Jaffe, Claire V. Crooks and Nicholas Bala, “A Framework for Addressing Allegations of Domestic Violence in Child Custody Disputes” (2009) 6 J Child Custody 169 at 175, family violence is generally notoriously difficult to prove.

Denials and highly contradictory evidence on material points would require an analysis of credibility and reliability and definitive factual findings. But here, where four separate incidents of family violence were admitted by Mr. Friesen, and the remainder of his alleged actions was not minimized nor disputed, the trial judge was able to effectively address the impact of this pattern of conduct. The trial judge’s description and analysis of Mr.

Friesen’s actions, and their effect on the child, demonstrated that he appropriately took this factor into account in determining her best interests. [ 81 ] The trial judge did not ignore the evidence regarding family violence. To the contrary, it formed a large part of his analysis, and he gave it precedence in his consideration of all of the best interests factors. He found that family violence of the nature and severity alleged by Ms. Epp had occurred. In addition, there were three crucial sets of factual findings made in his examination of the impact of the family violence: (

a) Ms. Epp genuinely continues to experience trauma, worry, fear, and concern as a result of the family violence. (

b) Mr. Friesen has admitted and accepted responsibility for the family violence, has recognized the wrongfulness of his actions, has taken all the programming that the court would reasonably expect of him, and has been successful in ensuring conduct of such a nature has not been repeated for over two years. (

c) Mr. Friesen does not pose a threat to the child and she is not “afraid or anxious either while in [his] care or when about to enter into his care. In fact, the evidence is quite to the contrary and she seems, as a well-balanced child, to look forward to her parenting times with [him]”; as a result, the trial judge was “unable to conclude there has been any physical, emotional, or psychological harm to the child” ( Trial Decision at para 63). [ 82 ] While Ms. Epp asserts that the steps taken by Mr. Friesen to address and prevent future family violence were minimal and insufficient, the trial judge found the opposite. As required by s. 16(4) (

g) of the Divorce Act , the trial judge considered the actions taken by Mr. Friesen to prevent further family violence from occurring and to improve his ability to care for and meet the needs of the child. After doing so, he concluded that Mr. Friesen had appropriately addressed this significant challenge. This is a finding of fact which, because there is no palpable and overriding error, cannot be disturbed on appeal. [ 83 ] Ms. Epp also takes issue with the trial judge’s determinations regarding the impact of family violence on the child.

She asserts that the trial judge ignored the fact that because the abuse continues to affect her, it also continues to affect the child. Ms. Epp further argues that he did not grapple with the physical, emotional, and psychological harm that accrued, and will continue to accrue, to the child. I agree that the trial judge’s explanation of his analysis of these specific factors could have been deeper, but after a full reading of the entire judgment, I am unable to conclude that he did not consider these factors or that he committed an error of law in his deliberations on this issue.

After setting out his determination of the facts, the trial judge correctly noted that the goals of the family violence provisions in the Divorce Act are to recognize and account for the effect that such conduct has on the best interests of a child. With regard to this specific child, he then found as follows: [82] Each case must therefore be examined on its own merits. There will be cases where the nature of the violence does, indeed, cause the perpetrator to forfeit his or her ability to be an ongoing parental presence in the child’s or children’s lives for a period of time or, potentially, forever.

At the extreme, this might include cases where the violence was extreme, where the child was the target of violence, if the violence in the family is ongoing, or the perpetrator has taken no steps to recognize or deal with that which has occurred. These are given only as examples and are not intended to be exhaustive of that which may be placed in evidence and to be considered by a court. [83] Th

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