Jackson v Jackson, 2023 SKCA 70

Court of Appeal for Saskatchewan Docket: CACV3450 Citation: Jackson v Jackson , 2023 SKCA 70 Date: 2023-06-14 Between: Michael Gordon Jackson Appellant (Petitioner) And Mariecar Latina Jackson Respondent (Respondent) Before: Richards C.J.S., Schwann and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Madam Justice Schwann The Honourable Mr. Justice Tholl On appeal from: 2019 SKQB 155 , Regina Appeal heard: October 1, 2021 Counsel: Michael Jackson appearing on his own behalf Debra Haid for the Respondent Richards C.J.S. I.

INTRODUCTION [ 1 ] Michael Jackson and Mariecar Jackson have one child. Their marriage broke down and a Court of Queen’s Bench trial was necessary to resolve issues relating to parenting responsibilities and child support. [ 2 ] The trial judge ordered that Mr. and Ms. Jackson would have joint custody of the child, with the child’s primary residence being with Ms. Jackson and with her having the final say in matters involving the child’s health, education and activities. The trial judge also prescribed the times when Mr. Jackson would parent the child.

In addition, he imputed both parties’ incomes and concluded that Mr. Jackson should pay child support: Jackson v Jackson , 2019 SKQB 155 [trial decision]. [ 3 ] Mr. Jackson appeals from the trial decision. He argues that the trial judge made a great many errors in concluding as he did. Although this appeal may well be moot in light of developments that have taken place since the trial decision was rendered, it is nonetheless appropriate to address the merits of Mr.

Jackson’s arguments. [ 4 ] As explained below, I conclude that the trial judge made no errors that would warrant this Court interfering with his decision. Accordingly, Mr. Jackson’s appeal must be dismissed. II. FACTUAL BACKGROUND [ 5 ] The essentials of the factual background giving rise to this appeal, as it emerged during the course of the trial, can be summarized as follows: (

a) Mr. Jackson is currently 54 years old. Ms. Jackson is 46 years old. (

b) Mr. Jackson worked in Fort McMurray, Alberta, and then moved to Carievale, Saskatchewan in 2012. At that time, he had a fifth-wheel trailer and $100,000 in cash. He worked from time to time as a self-employed carpenter but mostly spent his days building a large shop in Carievale. (

c) Ms. Jackson was born in the Philippines. She came to Canada on a work visa in 2013 and was employed in a restaurant in Carnduff, Saskatchewan. (

d) The Jacksons met in the restaurant where Ms. Jackson worked. Mr. Jackson testified that when they began to date, they had a conversation about his goals in life wherein he explained his morals, beliefs and views about how children should be raised. He believes the man in a marriage is responsible for his family and that the decisions on major issues should be the man’s to make. He said they also discussed schooling and his preference for home school. (

e) Ms. Jackson moved in with Mr. Jackson in July of 2013 and soon found out that she was pregnant. They were married in September of 2013 and the child was born in April of 2014. (

f) The marriage was not happy. Mr. Jackson said that Ms. Jackson blamed him for losing her job and threatened to go back to the Philippines. He said that both he and Ms. Jackson did the cooking, and that he changed diapers, although not the ones containing excrement. They struggled financially.

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g) For her part, Ms. Jackson described her life with Mr. Jackson as being difficult. She testified that he was negative and “complaining”. She said that he would say “just one call and they will deport you”. Ms. Jackson testified that Mr. Jackson made all of the decisions, put up security cameras and sometimes used them to monitor her movements, criticized her every day for things such as the way she talked, dressed, chewed and chose friends and, when she was working, kept all but $20 per week of her paycheque. Ms. Jackson said that she felt as if she was walking on eggshells so as to not provoke Mr. Jackson.

She testified that he would describe her, or refer to her, in vulgar and obnoxious terms. (

h) Ms. Jackson also testified that she did the cooking and cleaning and was primarily responsible for caring for the child. However, she acknowledged that Mr. Jackson was involved in childcare to some extent. She testified that Mr. Jackson was responsible for discipline. The Jacksons had a particularly challenging time managing the child’s eating habits. (

i) Between May of 2014 and Christmas of 2016, Ms. Jackson spoke to a counselling service about what she was experiencing. On December 28, 2016, she left Carievale with the child – presumably with the help of the counselling service – and ended up at a women’s shelter in Regina. (

j) Justice Keene dealt with the situation as it then stood by way of an interim order dated January 24, 2017. In substance, it provided as follows: (

i) Ms. Jackson was allowed to relocate to Regina. The child would primarily reside with her and she would have all day-to-day decision-making authority; (ii) Mr. Jackson would have parenting time every Wednesday from 11:00 a.m. to 4:00 p.m. utilizing the YWCA Supervised Exchange Program in Regina; and (iii) The child was not to be removed from the Province of Saskatchewan without court order or the express written permission of both parents. (

k) Mr. Jackson next saw the child in February of 2017 through the Supervised Exchange Program. For the next two months, he spent his parenting times with the child sitting in his truck in Regina. (

l) For her part, Ms. Jackson lived in a shelter in Regina for three-and-a-half months before securing a place of her own in that city. She also found employment, engaged in counselling, and obtained a driver’s licence and a vehicle. She attended church and developed a circle of friends. The child was registered in various activities and attended daycare as required. (

m) In March of 2017, Mr. Jackson was hospitalized in Regina for 30 days due to an eye problem. Ms. Jackson brought the child to the hospital for visits. There was a brief, but unsuccessful, attempt to resume the relationship. (

n) At a pre-trial conference in May of 2017, Mr. and Ms. Jackson agreed that, pending trial, Mr. Jackson would parent the child every second week from Monday at 10:00 a.m. to Wednesday at 6:00 p.m. and alternate Wednesdays from 10:00 a.m. to 6:00 p.m. The idea behind the Monday to Wednesday time period was that it was long enough for the child to be with Mr. Jackson in Carievale. There is approximately 290 kilometres between Carievale and Regina. Mr. Jackson was also to have Viber calls with the child on Monday, Wednesday and Friday at 7:00 p.m. when she was not in his care. (

o) Mr. Jackson testified that the child experienced car sickness with the result that, if she ate prior to travelling, there was a 50 per cent chance she would be sick to her stomach. He said that this restricted his travel time and his activities with the child on travel days. As such, he said the only unrestricted time he had with the child was on the Tuesdays. (

p) Following the pre-trial conference, there were several instances when Mr. Jackson did not return the child to Ms. Jackson at the end of his scheduled parenting time. On June 21, 2017, Ms. Jackson obtained an order, which included a police assist provision, requiring Mr. Jackson to return the child to her care. (

q) As noted, the order arising out of the pre-trial conference provided for Mr. Jackson to have Viber calls with the child at specified times when the child was not in his care. Ms. Jackson’s evidence was that Mr. Jackson would call daily and that, on one day, he had called 33 times. Mr. Jackson indicated that he did not remember making repeated calls of this kind but did testify that it was his right to call every day and that he had done that. (

r) In light of further incidents in the fall of 2017 and early 2018 when Ms. Jackson said that Mr. Jackson had not returned the child on time as required by court order, she brought an application to vary which sought to restrict Mr. Jackson’s parenting time to the city of Regina. A court order dated June 19, 2018, set Mr. Jackson’s parenting time as being every second week from Monday at 4:30 p.m. to Friday at 6:00 p.m. and Wednesday evenings from 4:30 p.m. to 8:00 p.m. in the off-week. The parenting time was not restricted to the city of Regina, but participation in the Supervised Exchange Program was mandated. (

s) In the following months, various other controversies took place that were rooted in Mr. Jackson’s failure, or inability due to vehicle problems and the like, to return the child to Ms. Jackson on time. Of the eight total incidents of this kind, Mr. Jackson said that he had deliberately overheld the child only twice. III. THE TRIAL DECISION [ 6 ] Mr. Jackson sought full custody and primary care of the child. He suggested that Ms. Jackson should have parenting time when requested and that they could meet halfway between Regina and Carievale to exchange the child.

He had what the trial judge called “a vague plan about working around [the child]’s schedule” (at para 39). He hoped to homeschool the child. [ 7 ] Ms. Jackson asked for sole custody of the child and to be designated her primary caregiver. She wanted to continue to use the

Supervised Exchange Program, at least until the child started school. She asked that the Viber calls be once a week and that, when the child began kindergarten, Mr. Jackson’s parenting time be one weekend per month, that being a long weekend when possible. She proposed that Christmas and summer holidays be divided equally. [ 8 ] The trial judge began his 25-page decision by reviewing the testimony of Mr. Jackson and Ms. Jackson and some relevant case law. The core of his determination with respect to the best interests of the child was expressed as follows: [51] I am satisfied [Mr.

Jackson] has an authoritarian style of parenting. On major issues he views the decision as his to make. On more than one occasion his evidence was to the effect – “if only she had listened”. Spanking is an acceptable form of discipline for [Mr. Jackson]. [Ms. Jackson] has a different parenting style. She has made a point of providing [the child] with the opportunity to socialize with other children. [The child] has been involved in various organized activities. They attend church on a regular basis. [The child] will be enrolled in kindergarten this fall. [52] While [Mr.

Jackson] played a role in parenting [the child], I am of the view that [Ms. Jackson] is the psychological parent. Not only would [Mr. Jackson] be critical of [Ms. Jackson], he was also verbally abusive. As has been observed, a child learns what he or she lives. I am satisfied that [Ms. Jackson] would have been [the child]’s psychological parent. She would be [the child]’s “safe place”. [53] Going forward, I am of the view that it is in [the child]’s best interests that her mother be the primary care giver. While she needs her father to continue to play a meaningful role in her life, it is necessary that [Ms.

Jackson] should be in a position to make the decisions which will be needed to shape [the child]’s development going forward. [54] While [Mr. Jackson] is entitled to his “beliefs”, [the child] must be provided with the opportunity to grow and develop without the negative, critical and abusive nature which [Mr. Jackson] displays. As an adult, [the child] is entitled to adopt whatever beliefs she may choose but in her formative years she needs the balance which her mother can provide.

By developing a perspective different from that which her father would promote, [the child] will be in a position to make informed choices as an adult. [ 9 ] The trial judge then went on to provide for joint custody and for primary residence with Ms. Jackson: [58] [Mr. Jackson] and [Ms. Jackson] shall have joint legal custody of [the child], whose primary residence shall be with [Ms. Jackson]. [Ms. Jackson] shall keep [Mr. Jackson] informed of all matters involving the health, education and welfare of [the child]. [Ms. Jackson] shall consult with [Mr.

Jackson] on all major decisions affecting [the child], but [Ms. Jackson]’s decision is final. [ 10 ] The trial judge also mapped out parenting arrangements to the following effect: (

a) The then-existing parenting regime would remain in place until the end of June, 2019. (

b) Mr. Jackson would parent the child for two two-week blocks during July and August of 2019, using the Supervised Exchange Program. (

c) In the fall of 2019, with the start of kindergarten, Mr. Jackson would parent the child from 4:30 p.m. on the child’s last day of kindergarten preceding a Friday (in most, if not all cases, this was expected to be a Wednesday) to 6:00 p.m. on the day before the child next had kindergarten. Exchanges were to occur using the Supervised Exchange Program. For the Christmas school break for 2019, the Jacksons were to each have the child for half of the break. Mr. Jackson was to parent the child during the spring and Easter breaks. (

d) For the summer break in July and August of 2020 and each year thereafter, the parties were each to designate two two-week blocks in which they would parent the child. Provision was also made for parenting during the long weekends. Christmas breaks were to be divided between the parties and Mr. Jackson was to parent during the spring break and Easter break of each year. Mr. Jackson was to have a Viber call with the child at 7:00 p.m. on the Wednesday of any week in which the child was not in his care. The trial judge also provided that, due to the distance involved in driving between Regina and Carievale, Mr.

Jackson’s parenting time was to take precedence over the child’s scheduled activities, unless he and Ms. Jackson could work out an acceptable alternative arrangement. IV. PROCEDURAL BACKGROUND [ 11 ] There has been a great deal of activity in what is now the Court of King’s Bench, and in this Court, that is related to, or ties into, this appeal. The most relevant aspects of that activity, but by no means all of it, are outlined below: (

a) February 17, 2017 – Mr. Jackson filed an appeal [CACV3032] from Keene J.’s January 24, 2017, interim order providing that the primary residence of the child be with Ms. Jackson, that Ms. Jackson have responsibility for the day-to-day decision-making regarding the child, and that Mr. Jackson would have parenting time on Wednesdays. (

b) June 14, 2018 – In a show cause hearing with respect to the appeal from Keene J.’s order, i.e., a hearing on the question of why Mr. Jackson’s appeal should not be taken to have been abandoned, a panel of this Court set deadlines for Mr. Jackson to file his materials. (

c) October 11, 2018 – Mr. Jackson’s appeal from Keene J.’s order was dismissed by a panel of this Court. (

d) July 23, 2019 – Mr. Jackson filed his notice of appeal in the present appeal. (

e) August 27, 2019 – Justice Caldwell granted Ms. Jackson’s application to lift the stay of execution resulting from the filing of this appeal. (

f) December 11, 2019 – Justice Leurer heard Ms. Jackson’s application to dismiss this appeal for want of prosecution. Mr. Jackson was ordered to file his materials opposing the application by December 16, 2019.

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g) December 19, 2019 – Justice Leurer ordered Mr. Jackson to perfect this appeal on or before January 10, 2020. Ms. Jacksonwas granted leave to apply on five days’ notice to have the matter dismissed for want of prosecution in the event that Mr. Jackson failed tomeet that deadline. (

h) February 19, 2020 – A panel of this Court granted Mr. Jackson’s application to vary Leurer J.A.’s December 19, 2019, order.Mr. Jackson was given an additional 60 days to order the trial transcript. He was directed to file his appeal book and factum/writtenargument within 45 days after receiving the transcript. Ms. Jackson was granted leave to apply to the Court on five days’ notice to have theappeal dismissed for want of prosecution in the event Mr. Jackson failed to perfect it within the time allowed. (

i) April 6, 2020 – Justice Jackson heard an application of Ms. Jackson, brought under the umbrella of CACV3450, this appeal,to have Mr. Jackson ordered to deliver physical possession of the child to her in light of his alleged failure to respect the terms of the trialdecision in this matter. The following day, Jackson J.A. issued a fiat that directed that Ms. Jackson’s application be remitted to the Courtof Queen’s Bench for a hearing. (

j) April 15, 2020 – Justice McCreary of the Court of Queen’s Bench (as she then was) made an order suspending Mr. Jackson’sparenting time until May 4, 2020. Justice McCreary also imposed a

schedule for parenting time that could be enforced with policeassistance. (

k) April 17, 2020 – Mr. Jackson filed an appeal [CACV3626] from McCreary J.’s April 15, 2020, order. (

l) May 1, 2020 – Justice Ottenbreit granted Ms. Jackson’s application to lift the stay of execution of McCreary J.’s decision. (

m) May 13, 2020 – A panel of this Court heard Ms. Jackson’s application to strike the present appeal in accordance with theCourt’s February 19, 2020, order requiring Mr. Jackson to perfect it. Mr. Jackson was granted an extension of time to order the transcriptto May 22, 2020. All other terms of the February 19, 2020, order were to remain in effect. (

n) May 14, 2020 – A panel of this Court dismissed Mr. Jackson’s application to discharge or vary Ottenbreit J.A.’s order liftingthe stay in CACV3626. (

o) November 10, 2020 – A panel of this Court heard Ms. Jackson’s application to dismiss the current appeal for want ofprosecution given that Mr. Jackson had failed to abide by the terms of the Court’s May 13, 2020, order. The panel ordered that Mr.Jackson be permitted to file the appeal book and his factum. Ms. Jackson was ordered to file her factum by December 11, 2020, or by adate fixed by a single judge. The matter was set for hearing. (

p) January 19, 2021 – A panel of this Court granted Mr. Jackson’s application for the production of transcripts of theproceedings in this Court concerning or related to this appeal. A fresh evidence application brought by Mr. Jackson was dismissed. (

q) May 26, 2021 – Justice Kalmakoff heard Mr. Jackson’s application to have the Registrar provide audio recordings of allproceedings in this Court that involved him. Mr. Jackson also sought to have the Registrar found in contempt for failing to follow theJanuary 19, 2021, order of the Court. Justice Kalmakoff refused to grant Mr. Jackson’s requested relief on the basis that the Registrar hadnot failed to follow the order in question, it having concerned the production of transcripts and not audio recordings. He also noted that asingle judge in Chambers could not overturn a decision of a three-judge panel. (

r) June 17, 2021 – A panel of this Court allowed, in part, Mr. Jackson’s application to review Kalmakoff J.A.’s May 26, 2021,order. The Registrar was directed to provide Mr. Jackson with audio recordings of proceedings in this Court that had involved him. (

s) October 1, 2021 – This appeal was argued. As explained below, the appeal was soon overtaken by events that put matterssomewhat into limbo and raised a question about whether it was even necessary to decide the appeal. Hence the delay in rendering thisdecision. V. MOOTNESS [12] As detailed in Jackson v Jackson, 2022 SKKB 207, on November 10, 2021, Mr. Jackson refused to return the child to Ms.Jackson as had been previously arranged. On November 26, 2021, Layh J. directed the return of the child to Ms. Jackson and provided thatthe police assist in enforcing his order. Mr.

Jackson immediately appealed Layh J.’s order to this Court, but Leurer J.A. lifted the stay ofthe order [CACV3935]. On January 5, 2022, McCreary J. granted an order varying the trial decision. It provided sole custody anddecision-making authority to Ms. Jackson on an interim basis. Mr. Jackson then continued to refuse to return the child and ceasedcommunications with Ms. Jackson. At some point during this series of events, Mr. Jackson fled Saskatchewan with the child and wasultimately located in British Columbia on February 24, 2022. In light of this, Megaw J. found Mr.

Jackson in contempt of court andimposed on him a 60-day period of incarceration. [13] Further, as indicated in R v Jackson (29 December 2022) Regina, CRM-RG-0221-2022 (Sask KB), Mr. Jackson was chargedwith violating s. 282(1) of the Criminal Code by taking the child, contrary to a court order, with the intention of depriving Ms. Jackson ofthe possession of the child. The King’s Bench record indicates that Mr. Jackson was held in custody until February 13, 2023. At thatpoint, he was released on the conditions that he live in Carievale, have no contact with Ms.

Jackson except through a member of the LawSociety, and have no contact with the child, unless such contact is expressly permitted by an order of “a Family Law Court inSaskatchewan”. There is no such order on the court file. [14] All of this – representing, as it does, a dramatic change in circumstances that demands a reconsideration of the terms of the trialdecision – has put the practical significance of a decision in this appeal in grave doubt. This raises an obvious question about whether ithas become moot. See: Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342 at 353.

Nonetheless, in orderto make things as clear as possible for Mr. Jackson, it seems appropriate, at this time, to address the merits of his appeal.

VI. ANALYSIS [15] Mr. Jackson advanced a significant number of issues in his “Written Argument in Support of Appeal”. His oral argument wasmore focused, being organized around what I took to be six issues. In the circumstances, however, I will attempt to address all of thepoints – or at least all of the parts that seem potentially consequential – raised in either Mr. Jackson’s written argument or in his oralsubmissions. [16] Those points or lines of argument are as follows: (

a) Gordon v Goertz, (SCC), [1996] 2 SCR 27, should bestruck down; (

b) the trial judge engaged in an undue scrutiny of Mr. Jackson’s evidence; (

c) the trial judge interfered with Mr. Jackson’spresentation of his case; (

d) the trial judge misapprehended some of the evidence; (

e) the trial judge gave no consideration to the child’sbest interests; (

f) the trial judge discriminated on the basis of religion; (

g) the trial judge failed to appreciate that witnesses had perjuredthemselves; (

h) the trial judge erred in quashing a subpoena issued to a Ministry of Social Services employee; (

i) the trial judge erred inordering child support; (

j) orders made by the Court of Queen’s Bench were illegal; (

k) Justice Keene’s interim order of January 24, 2017,was wrong; and (

l) various judges of this Court discriminated against Mr. Jackson. [17] Before turning to the particulars of these arguments, it must be underlined that trial decisions are presumed to be correct andlegally sound. An appellate court does not retry the case and substitute its own views and conclusions for those of the trial judge.Speaking broadly, trial decisions may be overturned or varied on appeal only if the appellant can establish that the trial judge made anerror of law that affected the judge’s decision or made a palpable and overriding error of fact or of mixed fact and law. A. Gordon v Goertz [18] Mr.

Jackson begins his submissions by arguing that Gordon v Goertz, the leading case in the realm of parental relocation, is ill-founded and should be struck down. He says the approach reflected in that case has done massive harm to families because children needtwo parents in their day-to-day lives. This argument must be rejected. The Court of Appeal for Saskatchewan is required to follow theprecedents established by the Supreme Court of Canada.

The recent amendments to the Divorce Act, RSC 1985, c 3 (2d Supp), regardingrelocation and their impact on the Gordon v Goertz principles are not implicated in this appeal because they came into effect after the trialdecision was rendered. B. Undue scrutiny of evidence [19] Mr. Jackson contends that the trial judge erred in proceeding on the basis of what he describes as “undue scrutiny” of hisevidence. In this regard, I take Mr. Jackson to suggest that the trial judge both improperly steered him away from presenting some kindsof evidence and allowed Ms.

Jackson’s counsel to pursue lines of questioning with him that were not appropriate. Mr. Jackson cites anumber of examples of what he sees as problematic conduct of this sort on the part of the trial judge: Mr. Jackson’s testimony-in-chief (

a) At pages T65–T67 of the transcript: Mr. Jackson recounted a circumstance where he was seeing the child for the first time intwo months. This happened pursuant to the Supervised Exchange Program. Mr. Jackson described, in detail, the fact that the child wasvery distraught and did not want to go with him, repeating over and over “I want to see my mommy”. He had a video of the incident that hewanted to show. In referring to it, Mr. Jackson said to the trial judge that “if you don’t want me to, that’s fine”. Mr.

Jackson explained thathe wished to play the video to demonstrate what happens in situations like the one that the child found herself in. He saw this as part ofmaking a point that, if Ms. Jackson had been prepared to “simply cooperate or, you know, sacrifice a little bit”, the situation would havebeen much easier on the child. The trial judge asked Ms. Jackson’s counsel for her position with respect to the video. She replied that sheopposed it being played, saying that she was not going to suggest that Mr.

Jackson had inaccurately described the child’s behaviour butrather, that she opposed the idea that the behaviour was somehow linked to the child’s treatment by Ms. Jackson. The trial judge then saidthis: THE COURT: I think -- I mean, what I have is -- I mean, Ihave your description of the events, and it seems to me that you’reable to describe it in some detail. Unless there is some evidencethat Ms. Haid was going to call to try and suggest otherwise, Idon’t see the necessity of seeing the tape. I’ve got your description. A Okay. THE COURT: So if -- we’ll leave it at that for now.

If atsome point in time there is some other evidence or reason that --that, you know, that comes up that might suggest we should play it,then we’ll revisit the issue. In taking this approach, the trial judge was simply attempting to move matters along and to keep the trial on track. Ms. Jackson’s counselhad conceded the accuracy of Mr. Jackson’s detailed description of his interaction with the child. Therefore, even accepting for thepurposes of argument that Mr.

Jackson should have been allowed to show the video, he suffered no demonstrable prejudice by way of thetrial judge’s decision to proceed without having it played at that point. (

b) At page T122 of the transcript: Mr. Jackson described the expenses he had incurred in driving back and forth betweenCarievale and Regina. He had receipts to show repair work done to a vehicle after he had hit a deer and statements showing that SGI hadwritten off two of his vehicles. He asked the trial judge if these documents were important. The trial judge replied, “Well, I don’t knowthat it’s all that critical, but it’s up to you” and then proceeded to have the documents marked as exhibit P-10. Mr.

Jackson complainsbecause he says the documents were relevant to the credibility of his testimony that he had good reasons for not returning the child to Ms.Jackson on all but two of the eight times when this became an issue. He says that the trial judge tried to discourage him from filing those

documents. I see no error here on the part of the trial judge. As Mr. Jackson himself acknowledges, the documents were accepted into evidence and marked as an exhibit. Cross-examination of Mr. Jackson (

c) Mr. Jackson says that, during her cross-examination of him, Ms. Jackson’s counsel did not ask a single question about his ability to parent the child. Rather, he says counsel attempted to build a narrative that he was psychologically abusive of Ms. Jackson. Mr. Jackson implies that the trial judge should have somehow intervened on this front. I note here, first of all, that counsel did, to at least some extent, cross-examine Mr. Jackson about his ability to parent.

For example, he was asked at page T186 of the transcript about his position with respect to home schooling; at page T204 about his views on corporal punishment and about the fact that he spanked the child; at pages T205–T206, he was asked what he did with the child when he parented her in Regina; at page T222, he was asked about returning the child to Ms. Jackson but forgetting the child’s ski pants; and at page T231, he was asked questions about potty training. Second, and in any event, I am unable to see how Ms.

Jackson’s counsel’s decisions about what to emphasize in her cross-examination translate into a reviewable error on the part of the trial judge in his conduct of the trial. (

d) At pages T188–T190 of the transcript: Mr. Jackson notes that Ms. Jackson’s counsel asked him questions about the supply of hot water in the fifth-wheel trailer, about whether there was a dryer, and about whether, as an infant, the child had slept in a closet. Mr. Jackson objects because the trial judge did not intervene to forestall what he calls “this line of attack”. Again, I am unable to see anything improper here. Counsel was, as I read the transcript, simply drawing out some basic information about the living situation at Mr.

Jackson’s place of residence in Carievale and/or how the child had lived before the separation. The trial judge was of the same view when, at page T189, he described these questions as being about “the living conditions with respect to [the child]”. [ 20 ] In the end, I am not persuaded that Mr. Jackson’s concerns about “undue scrutiny” of the evidence can lead to a conclusion to overturn the trial decision. C. Interference [ 21 ] Mr. Jackson argues that the trial judge improperly interfered with his efforts to present his case by interrupting him “all the time”.

Relatedly, he submits that the trial judge acted at various points of the trial in ways that he, Mr. Jackson, says were intimidating or designed to intimidate. [ 22 ] Mr. Jackson refers to a number of exchanges or incidents during the course of the trial to make his point. They are as follows: Mr. Jackson’s cross-examination of Deborah Daze (

a) At page T265 of the transcript: Mr. Jackson asked for a 15-minute adjournment to prepare for the cross-examination of Deborah Daze, a friend of Ms. Jackson’s, and a witness he had not been expecting to testify. The trial judge allowed the adjournment but said: All right. But believe me, you know, we’re not going to be continually taking 15 minute adjournments, just for you to sort of think about things, okay? All right? So, we will this time. All right? (

b) At page T268 of the transcript: Mr. Jackson was cross-examining Ms. Daze about whether she knew why Ms. Jackson had been investigated by Social Services. Obviously anticipating that Ms. Daze was going to offer hearsay evidence in reply to that question, the trial judge intervened by saying that this was the same road that he had barred Ms. Jackson’s counsel from going down. The trial judge told Mr. Jackson to “[m]ove on to the next question”. (

c) At page T274 of the transcript: Mr. Jackson asked Ms. Daze to provide the particulars of a time when he had appeared at the child’s dance class and Ms. Daze had apparently suggested to him that he could just stay there and visit on the couch with the child. Mr. Jackson then asked Ms. Daze what put her in a position to tell him how to visit with his child. At this point, the trial judge intervened and said, “What kind of a question is that?”, advised Mr. Jackson that he was “not interested” in the point, and told him that “[i]f you have a question to ask her about what occurred, fine” but that, if he did not have such a question, he should “move on”. (

d) At pages T277–T279 of the transcript: Mr. Jackson played a video of the dance class incident. Ms. Daze confirmed that it was an accurate portrayal of what had happened. Mr. Jackson then asked Ms. Daze whether, in watching the video, she had seen room for him to sit on the couch. Ms. Daze replied, “People were all leaving, and the couch was empty. But you’re right, it was very -- very crowded”. Mr. Jackson then asked Ms. Daze if he should play the video again and the trial judge interjected to say “No”. Ms. Jackson’s examination-in-chief (

e) At pages T411–T414 of the transcript: Ms. Jackson’s counsel asked Ms. Jackson what she considered to be family property and how she wanted it divided. Mr. Jackson then intervened to say that property issues were not part of the trial. The trial judge replied by saying that he was going to let counsel ask the question “and we’ll see where it goes. Okay. Sit down”. After a discussion between the trial judge and Ms. Jackson’s counsel, the issue was sorted out in Mr. Jackson’s favour. The trial judge allowed Ms. Jackson’s counsel to file Ms.

Jackson’s property statement as an exhibit but made an order severing property matters from the trial and adjourning them sine die . Mr. Jackson’s cross-examination of Ms. Jackson (

f) At page T418 of the transcript: Mr. Jackson asked Ms. Jackson about her life prior to her arrival in Canada. Ms. Jackson had worked in Macau immediately before coming to this country and Mr. Jackson said, “tell me about Macau, what it is and what goes on there? I’m not familiar with that area”. The trial judge then interjected to question the utility or relevance of that line of questioning: THE COURT: Is there some reason why we’re going back to this, Mr. Jackson?

MR. JACKSON: Yeah. Yeah, there -- there is. THE COURT: So tell me about it so I can decide whether or not you can continue. MR. JACKSON: Well, I’m -- I’m -- what I’m trying to do, Your Honour, is I’m trying to get a picture of Ms. Mariecar’s (sic) life before we met. THE COURT: So? MR. JACKSON: Just like she got a picture of my life before we (INDISCERNIBLE) -- THE COURT: So? MR. JACKSON: -- 25 years ago. THE COURT: Well, where is going to assist me in -- in deciding what is best for [the child]? MR. JACKSON: It’s going to issue in credibility. Just -- I’m almost -- THE COURT: Well, make -- make it brief, please, because you’re basically wasting my time. (

g) At page T429 of the transcript: Mr. Jackson asked Ms. Jackson about a part of her evidence where she had described an incident when, according to her, Mr. Jackson had pulled down her pants and had had rough, non-consensual sex with her. Mr. Jackson asked Ms. Jackson what the meaning of “rape” is and pressed her about whether her testimony meant that he had raped her while she was pregnant. He then asked her why she had not called the police. Ms. Jackson replied that she had been scared and probably ashamed. Mr.

Jackson asked, “You were ashamed, you said?” At this point, the trial judge stepped in by saying, “Mr. Jackson, would you please move on?” and by asking what his question had to do with the child’s best interests. Mr. Jackson said that he wanted to answer an accusation of rape. The trial judge said, “That’s not what this trial is about, Mr. Jackson” and again told him to “move on”. (

h) At pages T444–T445 of the transcript: Mr. Jackson was pursuing the question of why he had been unable to be Ms. Jackson’s immigration sponsor. Ms. Jackson had suggested it was because of three things: his tax arrears, criminal record and unpaid child support in a different matter. Mr. Jackson had printed a document purportedly from the Canadian Immigration website which suggested that the only issue would have been unpaid child support. He wanted to enter this document as an exhibit. The trial judge responded by saying, “Well, we’ll mark it for identification with a note that it’s a December of 2018 print-out.

I don’t know” and observing “I’m not sure how this all fits in. You can’t -- I keep coming back to the fact that there’s one person here that really matters, and that’s [the child] and her best interests”. (

i) At pages T454–T455 of the transcript: Mr. Jackson noted his difficulties in driving between Carievale and Regina to see the child and then asked Ms. Jackson if she thought that was in the child’s best interests. Ms. Jackson responded by saying, “It was a Judge decision”. When Mr. Jackson persisted, the trial judge said, “Mr. Jackson, she didn’t make the decision. That’s not a fair question”. (

j) At pages T460–T461 of the transcript: Mr. Jackson suggested that, when Ms. Jackson had left Carievale, she had only the change in her pocket. Against that background, he asked her how she had been able to take care of the child’s needs on her own. Ms. Jackson responded by explaining that the shelter where she stayed had provided food, bus passes, clothing and more. Mr. Jackson then said, “I’ll rephrase that because I think you misunderstood me. I meant like before when --”. There then followed this exchange between the trial judge and Mr. Jackson: THE COURT: No, she didn’t -- she didn’t misunderstand you.

She answered the question. MR. JACKSON: No, she said after she entered the shelter they gave her all that stuff. THE COURT: Yes, and she -- MR. JACKSON: And I asked before -- before she left, was she in a position when she left the house, to be able to provide for [the child]? THE COURT: She had change in her pocket. The answer to that is quite self-evident, is it not? What her plan was, she was going to the shelter where she would be provided with food, clothing and the rest of it. (

k) At page T477 of the transcript: Mr. Jackson was apparently trying to make a point about ways in which he had assisted the child by buying various items after the separation. The trial judge intervened as follows: THE COURT: Well, as you know, Mr. Jackson -- MR. JACKSON: Sorry. THE COURT: -- what the system expects is that you do that through paying your child support -- MR. JACKSON: Yeah. THE COURT: -- which you are not doing. MR. JACKSON: Yeah. THE COURT: Okay, so… MR. JACKSON: Yeah. (

l) At page T480 of the transcript: Mr. Jackson asked Ms. Jackson how supervised exchanges helped the child. Ms. Jackson responded by saying that the child got to have parental time with him and that the benefit of the program was that exchanges were monitored, and everything was in black and white. Mr. Jackson again asked her how supervised exchanges helped the child. Ms. Jackson said, “I just answered you --”. The trial judge then intervened to say, “She answered the question” and to say, “Because she said because

the two of you can’t get along, and that’s why we do it often. Okay, and that’s why it’s in the best interests of [the child]”. The following exchange then occurred: MR. JACKSON: There’s one of us who can’t get along, not two. THE COURT: Well, that’s your version. MR. JACKSON: Yeah. THE COURT: Okay. I’ll have my version at the end of the day. MR. JACKSON: I’m just trying to see if there is -- if there is any benefit to [the child] through that. That’s all I’m trying to see. I don’t see a benefit THE COURT: She -- she has explained it to you. (

m) At pages T490–T491 of the transcript: Mr. Jackson had Ms. Jackson read part of a text message in which she had appeared to refuse his offer of groceries. Ms. Jackson’s counsel asked Ms. Jackson to read the balance of it. The trial judge then said, “That will be an exhibit” and it was marked as exhibit P-16. Mr. Jackson took no exception to the message being marked as an exhibit but now complains that the trial judge entered it into evidence on his own initiative. (

n) At pages T494–T495 of the transcript: Mr. Jackson showed Ms. Jackson a card in which she had written “Thank you very much for building a life for us. I love you”. He then pressed her as to whether she believed that, when they had been together, everything he had done was to build a future for their family and whether she had spoken the truth in writing the message in the card. Mr. Jackson says that, at this point, although it is not revealed in the transcript, the trial judge threw his pen in anger or frustration. Mr.

Jackson, as per the transcript, then said that all he was doing was trying to show that he was “really, really, really putting the effort in to build a home and a family”. There then followed this exchange: THE COURT: Yes, I’m -- I’m sure you were. That’s not the issue. MR. JACKSON: Okay. Well, I guess the reason I’m trying to say that is that I want to show that if [the child] is put into my custody the kind of effort that I put out. THE COURT: I don’t think that’s the question. All right. At least, I -- you know, it doesn’t seem to me that’s -- that’s not the issue. The issue is other things. MR. JACKSON: Okay.

THE COURT: So anyway. After that, Mr. Jackson had Ms. Jackson read into the record additional messages that she had written to him in other cards. Discussion regarding closing arguments (

o) At page T499 of the transcript: The trial judge was discussing closing arguments with Mr. Jackson and Ms. Jackson’s counsel. Mr. Jackson asked if the trial judge could provide him with any direction about such arguments. The trial judge responded as follows: Yes. Well, I mean, you had your outline, for example, in your opening statement where you identified certain things that you thought you wanted to -- to raise, and I suppose you could, sort of, follow that. I mean, I think -- I think the -- you know, the primary focus -- and I think I’ve been saying this repeatedly.

For reasons which aren’t terribly important unless they act upon [the child]’s interests, you two are no longer a couple, so there has to be some form of parenting arrangement decided. So what ought that parenting arrangement be and for what reasons, and you know, how should sort of the mechanics, if you will, of implementing a parenting arrangement, how ought those mechanics to work, and what -- what pieces of evidence should assist me in determining what that appropriate parenting arrangement is? What -- what is -- what is in [the child]’s best interests? So we need to focus on that.

We don’t need to focus upon things that went on in the relationship again unless they can -- unless you can demonstrate that they -- they speak to [the child]’s best interests. I’m not here at the end of the day to determine who was right and who was wrong in that relationship and -- or why it went south. It doesn’t particularly interest me. (Emphasis added) [ 23 ] I am unable to see anything in these various aspects of the trial, either individually or collectively, that would warrant this Court overturning the trial decision.

The trial judge was dealing with a self-represented litigant, in an emotionally charged situation, and attempting to keep the proceedings focused on matters that were significant to the determination of what would be in the child’s best interests. The trial judge’s conduct of the proceedings might not have been perfect in all respects and he might even, as Mr. Jackson suggests, have been impatient or arguably unpleasant from time to time. None of that, however, establishes that the trial was unfair or that its result should not be allowed to stand. D.

Misapprehension of the evidence [ 24 ] Before turning to the particulars of Mr. Jackson’s arguments about how the trial judge misapprehended the evidence, it is important to note, again, that not every fact-finding error made by a trial judge leads to a conclusion that the result of the trial should be overturned. That happens only if an error of fact is “palpable and overriding”. A palpable error is one that is obvious. An overriding error is one that affects the outcome of the case. See, for example: Benhaim v St-Germain , 2016 SCC 48 at para 38 , [2016] 2 SCR 352. [ 25 ] Mr.

Jackson submits that the trial judge misapprehended the evidence in several ways. Let me consider each of the points he raises in this regard:

(

a) At paragraph 3 of his decision, the trial judge wrote that Mr. Jackson had once pled guilty to “harassing his son and his son’s mother [Mr. Jackson’s former wife]” and received a discharge. Mr. Jackson points out that he acknowledged in cross-examination that he had pled guilty to criminally harassing his former wife only, not the child. The transcript bears this out. Again, however, it is not in any way clear how this misapprehension on the part of the trial judge – an apprehension with respect to an incident that apparently happened some 25 years ago – had any impact on his decision. (

b) At paragraph 4 of his decision, the trial judge recounted that Mr. Jackson had moved from Alberta to Carievale and built a “shop in which his fifth wheel trailer is parked. He lives in the trailer”. Mr. Jackson says this is an error because he lives in an apartment that is part of his shop, not in the trailer. A close reading of the transcript confirms that Mr. Jackson is correct in saying that the trial judge misunderstood the evidence in this regard. That said, his choice of words is perhaps understandable because it is clear that, when Ms.

Jackson and the child were in Carievale, the family did live in the trailer. At page T187 of the transcript, Mr. Jackson replied “yes” to the question “you lived in a fifth-wheel trailer inside that shop?” and replied affirmatively when then asked if that was where Ms. Jackson had moved in with him. It seems likely that Mr. Jackson had gone on to occupy the apartment at some point after Ms. Jackson left for Regina. In any event, I do not see how an error on this front could have affected the bottom line of the trial judge’s decision. (

c) At paragraph 10 of his decision, in dealing with Ms. Jackson’s immigration status, the trial judge wrote that: [10] The sponsorship that her employment provided and the path it represented to becoming a permanent resident was important to her. [Mr. Jackson] wanted her to quit her employment and said he would sponsor her as his spouse. He hired an immigration consultant for this purpose. As they got into the process, they discovered that because he had not filed income tax returns, was in arrears of child support and had pled guilty to a criminal charge, he would not be able to sponsor [Ms. Jackson]. Mr.

Jackson says this is incorrect because, according to a document that he referred to at trial, it was only the fact that he was in arrears with respect to child support (for the child of his previous marriage) that was the problem. Again, if this was a misunderstanding on the part of the trial judge, it was a misunderstanding of no consequence. Whether Mr. Jackson had a problem with sponsoring Ms. Jackson because of his child support arrears or because of his criminal record was neither here nor there in terms of the trial judge’s ultimate decision and the reasoning that led him to it. (

d) At paragraph 18 of his decision, the trial judge wrote that “eventually, [Mr. Jackson] bought [Ms. Jackson] a dog”. Mr. Jackson points out that the dog was purchased for the child, not for Ms. Jackson. This is confirmed by the transcripts. Again, however, this is an error without consequence. It had no impact on the trial judge’s decision. (

e) At paragraph 22 of his decision, the trial judge described Mr. Jackson’s first visit with the child under the Supervised Exchange Program. He wrote that “[s]he did not want to see him. She was crying when he took her to his truck”. Although Mr. Jackson includes this passage of the trial decision under the “misapprehension of evidence” part of his argument, he does not, in fact, suggest that it is in any way erroneous. He says only that he had not seen the child for over two months and that her reaction to him was therefore understandable. I see no error in how the trial judge dealt with this part of the evidence. (

f) At paragraphs 32 and 33 of his decision, the trial judge recounted the fact that, on various occasions, Mr. Jackson did not return the child at the end of his parenting time. Mr. Jackson says that the trial judge erred in this regard because, on all but two of the eight times that he failed to return the child, he either had vehicle problems that precluded the return or Ms. Jackson had agreed to extend his parenting time but then changed her mind. There is no error in what the trial judge wrote in the paragraphs in question.

He was doing no more than summarizing the evidence that he had heard on this front from the parties. His narrative actually tracks Mr. Jackson’s view of the events in issue: [32] While [Ms. Jackson] provided evidence of various occasions when [Mr. Jackson] did not return [the child] in compliance with the terms of the court order, [Mr. Jackson]’s evidence was that “many times” [Ms. Jackson] would agree to him keeping [the child] for a couple of days and then the next day she would change her mind and get an order without notice.

No dates or specifics were provided. [33] There were incidents in December 2017, January and February 2018, when [Mr. Jackson]’s truck broke down and [Ms. Jackson] had to drive out to Carievale to get [the child]. In September 2018, [Mr. Jackson] hit a deer and [Ms. Jackson] had to drive out to Carievale. (

g) At paragraph 39 of his decision, the trial judge wrote that Mr. Jackson had a “vague plan” about working around the child’s schedule. Mr. Jackson challenges this characterization of his evidence, suggesting that his plans are, in fact, very specific and were laid out in his closing argument. However, in that argument, he said only this: … I said I wanted to purchase a farm so that we had some land so that we could be a little bit self-supportive, as in a few animals and a house with some nature around it. I never said that I was going to be a farmer. I have worked on farms in the past.

I grew up on a farm in Alberta, in Edson, Alberta, with my grandparents as a child, but I had no intention of starting a crop farm. It was a hobby farm which -- yeah. How would I pay for it? Well I have a shop and when -- hopefully when things improve in the market, then I could replace what I’ve lost in the last two years and sell the property and buy another property. That’s how. Earlier, during his testimony, Mr. Jackson had not been any more specific: … But my goal is simply that I want to get to a point, especially, now with [the child], where I’m on a small farm.

And, you know, once I make a little bit -- now -- and because I’ve lost everything in the past years, it’s probably going to take me two or three years to get back to where I was again. But once I do, you know, I would like to sell my building and buy a farm somewhere, a small farm, and raise [the child]. Not, you know, in the middle of nowhere, but outside a community. Somewhere nice with trees and things like that. I don’t even know if in the province of

Saskatchewan. I would prefer Alberta or B.C. because that’s, kind of, what I like. And raise her in an environment where we have animals that are natural that she can grow up raising, eating. We have some sort of a family-run business that she can be involved in. That’s my -- my goals I hope to have. Basically, build -- build my house, teach her -- you know, be able to have a garden and be self-sustaining to a point where -- the way the world is today, you never know one day from the next what’s going to happen. It’s [ sic ] not some bug-out kind of person or prepper or crazy, you know, thinking of the end.

But times are getting tougher and I want to have my family prepared for that. I want to live in a place where, you know, our door’s not going to get kicked down for a loaf of bread. I want to have a safe environment to raise her in. I see no error, palpable and overriding or otherwise, in the trial judge’s characterization of this plan as being “vague”. (

h) At paragraph 51 of his decision, the trial judge said “I am satisfied [Mr. Jackson] has an authoritarian style of parenting. On major issues he views the decision as his to make. On more than one occasion his evidence was to the effect – ‘if only she had listened’”. Mr. Jackson argues that the trial judge was confused in this regard because the point about “if only she had listened” was, in fact, a reference to the family dog, not to Ms. Jackson. However, in explaining himself on this front, Mr. Jackson indicates that Ms.

Jackson would not follow his instructions about how to train the dog with the result that it had behavioural problems. In other words, Mr. Jackson was, in fact, referring to Ms. Jackson because his point was that, if she had listened to his instructions, the dog would have behaved properly. (

i) At paragraph 56 of his decision, the trial judge observed that, in R.E.G. v T.W.J.G. , 2011 SKQB 269 , 376 Sask R 1, the Court concluded that the extent of domestic abuse in that case made joint custody inappropriate. In reaction to that point, Mr. Jackson asks “where is the evidence [here] that domestic abuse took place?” It is not clear what Mr. Jackson’s complaint is in this regard given that, in the trial decision and unlike in R.E.G. , the trial judge did award joint custody. In any event, there was evidence of family violence before the trial judge. This included Ms. Jackson’s testimony referring to Mr.

Jackson’s controlling behaviour, his ongoing criticism of her that caused her to “walk on eggshells”, his saying things to her such as “fuck, fuck, fuck, you are stupid” when she was learning to drive, and his habit of watching pornography “everywhere” and wanting her to do what the women in the pornographic videos were doing. The trial judge also had Ms. Daze’s testimony that, in the course of exchanging the child, Mr. Jackson had called Ms. Jackson a “piece of shit”. (

j) At paragraph 69 of his decision, the trial judge wrote as follows: [69] While [Mr. Jackson] provided cursory evidence as to jobs he did while living in Carievale, there was no evidence as to what he actually earned. While he said, on the one hand, he could earn $75,000 - $80,000 per year as a carpenter, he also said due to his detached retina he is not capable of working as a carpenter at this time. Mr. Jackson says he testified to the fact that, in the boom times prevailing in Carievale when he first arrived there, he could earn $70 to $80 per hour.

He stresses that he never said that he could earn $75,000 to $80,000 per year. All of that is correct. Once again, however, it is not apparent how any of this is of consequence. When it came time in his decision to impute an income for Mr. Jackson, the trial judge went with an annual income of only $31,300. Thus, Mr. Jackson’s criticism of what the trial judge wrote at paragraph 69 about him being able to earn $75,000 to $80,000 per year comes to effectively nothing. [ 26 ] In

summary, although the trial judge did misapprehend evidence in some respects, none of those missteps can be seen as being of any legal consequence. There were no errors that were both palpable and overriding. E. No consideration of the child’s best interests [ 27 ] Mr. Jackson contends that the trial judge gave no consideration to the child’s best interests in the course of coming to his decision. There is no merit to this argument. The trial judge was obviously focused on the best interests issue and reminded Mr. Jackson of that point several times during the course of the trial.

He also expressly touched on this issue at critical junctures in his decision by saying, for example, “[g]oing forward, I am of the view that it is in [the child]’s best interests that her mother be the primary care giver” (at para 53), and “[i]n the present circumstance before the court, I have concluded it remains in [the child]’s best interests that her parents have joint legal custody” (at para 57). [ 28 ] In substance, Mr. Jackson’s submission on this point boils down to the idea that the trial judge assessed the child’s best interests differently than does he. Mr.

Jackson believes that the child would be better off spending more time with him. That, however, is not a basis for allowing this appeal. F. Religious discrimination [ 29 ] Mr. Jackson contends that the trial judge showed “religious discrimination” when he wrote as follows in his decision: [54] While [Mr. Jackson] is entitled to his “beliefs”, [the child] must be provided with the opportunity to grow and develop without the negative, critical and abusive nature which [Mr. Jackson] displays.

As an adult, [the child] is entitled to adopt whatever beliefs she may chose but in her formative years she needs the balance which her mother can provide. By developing a perspective different from that which her father would promote, [the child] will be in a position to make informed choices as an adult. [ 30 ] I see no merit in this argument. In his testimony, Mr. Jackson described himself as being a born-again Christian. He testified that, early on in his relationship with Ms.

Jackson, he had sat down with her and explained his morals, beliefs and views about how children should be raised, including his views about educational matters. It was not clear from his testimony whether, or to what extent, these various views were rooted in, or were a function of, his religious beliefs as opposed to being a general reflection of what he believed to be right, wrong and important. In any event, the trial judge specifically indicated that Mr. Jackson had a right to his own “beliefs”. His concern was the well-being and best interests of the child.

I can see no error in his observation that the child was entitled to grow and develop “without the negative, critical and abusive nature which [Mr. Jackson] displays” (at para 54). This does not mean, as Mr. Jackson seemed to suggest in his oral argument, that either he or Ms. Jackson is somehow precluded from instilling Christian, or any other,

religious beliefs in the child. That was not the trial judge’s point. [ 31 ] On this same front, Mr. Jackson also indicates that, when Ms. Jackson was being cross-examined, the trial judge interrupted to ask for clarification as to the meaning of being a “born-again” Christian. In Mr. Jackson’s view, the way this was done seemed derogatory and he took the trial judge to have been somehow offended by the idea of born-again beliefs. The passage in the transcript that is in issue here reads as follows: Q Are you born again? THE COURT: What is “born again” out of curiosity? MR.

JACKSON: Well, a lot of people, Your Honour, can say they believe in God. When you said that you’re -- and you know, Catholic, Muslim, there’s many different things, but us, since we’ve both talked about church and the way we raised our daughter, “born again” is -- is a relationship you have with God. It’s a -- it’s a totally different thing. “Born again” means that you believe that Jesus died on the cross for your sins, and that you live your life a certain way, and that you -​- you follow the Bible, you go to church, and that you raise your children to follow. It’s -- it’s pretty important.

It’s in my belief system and it’s -- she is stating it’s in hers, so -- THE COURT: That was the story of my upbringing in the United Church. I mean, I understand people like to use this label “born again”, but anyway, continue -- continue on, please. MR. JACKSON: People like me, you said? You said “people like me”? THE COURT: No. I said, I understand that people like to use the label like -- MR. JACKSON: Oh, okay. THE COURT: -- “born again”. MR. JACKSON: Yeah. THE COURT: I’m not quite sure why because I’m not sure if it differs from -- MR. JACKSON: It -- it basically -- THE COURT: -- other religions.

I mean -- MR. JACKSON: -- means Jesus died on the cross for your sins. THE COURT: Yes. MR. JACKSON: That’s what it means. THE COURT: So -- so the United Church tells you, too. MR. JACKSON: Yeah, a lot of churches say it. [ 32 ] The trial judge’s intervention on this issue might not have been particularly elegant, but I am unable to see anything here that would operate as a basis for this Court to overturn the trial decision. G. Perjury [ 33 ] Ms. Daze was called as a witness by Ms. Jackson. As noted, she is a Regina friend of Ms. Jackson’s and testified as to her observations about Ms.

Jackson’s parenting ability. She also recounted three occasions when she had met Mr. Jackson. Her descriptions of his conduct were not flattering, in that she described him as having been aggressive and confrontational and, on one occasion, as having used foul language. The only reference that the trial judge made to Ms. Daze in his decision was during his

summary of the evidence. In that regard, he said this: [35] Debbie Daze was a friend of [Ms. Jackson]. They met through the church. Ms. Daze describes [the child] as bubbly, fun and energetic. She loves to interact with other children. Ms. Daze assisted [Ms. Jackson] with exchanges on three occasions. On one occasion, when she walked [the child] out to [Mr. Jackson]’s vehicle from [Ms. Jackson]’s residence, he called her a “piece of s**t”. He pointed to [Ms. Jackson]’s door and asked “why would she be helping s**t like that”. [ 34 ] It is apparent that Mr. Jackson does not agree with Ms.

Daze’s account of what happened during her interactions with him. However, this affords no basis for a conclusion that the trial judge somehow erred by overlooking her “perjury”. By recounting Ms. Daze’s testimony as he did, the trial judge appears to have accepted her version of events. This was an assessment of the situation that, on the evidence, was open to him to have made. [ 35 ] Mr. Jackson also submits that the trial judge erred by failing to address the fact that, or to appreciate that, Ms. Jackson perjured herself “hundreds of times” during the course of her testimony.

He cites as examples of this alleged perjury such things as Ms. Jackson’s account of the reason why she left her employment, her evidence as to the reasons why Mr. Jackson could not be her immigration sponsor and her recollection of the date when she found out that she was pregnant. I am unable to see any of this as being a basis for interfering with the trial judge’s bottom-line ruling. First, a good deal of the testimony Mr. Jackson impugns was not material to the decision that the trial judge had to make. Second, Mr.

Jackson fails to appreciate that it is entirely common at a trial for two witnesses to have different recollections of how something unfolded. The trial judge hears those two accounts and makes a decision as to which version to accept. The fact that the judge endorses version A does not mean, without more, that the witness that offered version B perjured themselves or was otherwise somehow actively trying to deceive the court. H. The subpoena [ 36 ] Mr. Jackson does not approve of daycare as a concept. He believes that children should be cared for by their parents.

This view came through during the course of the trial where he expressed concern that, when with Ms. Jackson, the child had been spending too

much time in daycare. [ 37 ] Prior to the trial, Mr. Jackson filed an application in which he sought an order that Ms. Jackson sign a consent form giving him access to daycare records held by the Ministry of Social Services. The trial judge dismissed that application but, in so doing, suggested to Mr. Jackson that it might be easier to subpoena the records in issue. Mr. Jackson did just that by subpoenaing Susan McMillan, a Ministry employee. The Ministry responded with an application to quash the subpoena. [ 38 ] The trial judge concluded that the subpoena had to be quashed in light of s. 18 of The Social Services Administration Act , RSS 1978, c S-52.01 , which reads as follows: Secrecy 18

(1) Repealed.

(2) Neither the minister nor any person serving on a board or committee appointed by the minister pursuant to this Act or any other Act administered by the ministry, nor any member of the staff of the ministry shall be; (

a) compellable to give evidence with respect to: (

i) written or oral statements made to the minister or the person in the performance of his or her duties; or (ii) knowledge or information acquired by the minister or the person in the performance of his or her duties; (

b) required to produce any written statement mentioned in subclause (

i) of clause (

a) at a trial, hearing or other proceeding. [ 39 ] Upon rendering this decision, the trial judge said that, if Mr. Jackson could satisfy him that the records in question were relevant to an issue in the proceedings, he would consider giving him the means to obtain them by allowing him to subpoena individual daycare providers. The trial judge also suggested to Ms. Jackson’s counsel that she consider seeing whether Ms. Jackson could obtain the records from the Ministry. In what might have been a response to this suggestion, when Ms.

Jackson testified in-chief, documents entitled “Daycare Subsidy Sheets” were put into evidence as exhibit R-13. They contain at least some information about Ms. Jackson’s utilization of daycare services, although just what they reveal is not clearly stated or explained. [ 40 ] Mr. Jackson takes issue with the trial judge’s decision to quash Ms. McMillan’s subpoena, seemingly on the basis that, if it was the trial judge’s idea to proceed by way of the subpoena, he should have let it stand. There is obviously no merit in that argument.

When faced with the application to quash, the trial judge had to deal with it and render a decision on the merits. That is what he did. Mr. Jackson makes no submission as to what might be called the technical legal propriety of the trial judge’s

interpretation of the application of s. 18. As a result, I make no comment, one way or the other, on that issue. [ 41 ] Significantly, Mr. Jackson does not argue that his case was in some way prejudiced by his inability to call Ms. McMillan as a witness. In this regard, I note that he did call Rhea Stobbs to the stand. She provided daycare services for the child in 2018. Mr. Jackson also cross-examined Ms. Jackson about daycare services, including the issue of how much time Ms. Jackson actually spent with the child outside of daycare.

Perhaps as a result, he did not take up the trial judge’s suggestion in relation to subpoenaing additional individual daycare providers. I also note that, in his closing argument at trial, Mr. Jackson did not make any direct reference to daycare issues and certainly did not suggest that there was evidence on this front that he wanted to put before the court but had been unable to do so. [ 42 ] In light of all of this, I am not persuaded that this is an issue which can or should lead to the trial decision somehow being overturned or varied. I. Child support [ 43 ] As noted earlier, the trial judge imputed to Mr.

Jackson an income of $31,300 per year and imputed to Ms. Jackson an income of $15,000 per year. This led him to order that Mr. Jackson pay $250 per month in child support. He also ordered Mr. Jackson to pay $166 per month for s. 7 expenses. [ 44 ] Mr. Jackson argues that this part of the trial judge’s decision should be set aside. In this Court, he explains that he has had ongoing problems with the health of an eye and that he is now absolutely broke, having sold everything, including his tools, and is in a position where he has abandoned his medications because he cannot afford them. Mr.

Jackson says that he must find a way to pay $690 per month in tax arrears or that he will lose his shop in Carievale. He underlines that the cost of driving between Carievale and Regina imposed a major economic burden on him. [ 45 ] In assessing the child support issue, it is important to focus on the situation as revealed by the evidence that was before the trial judge, rather than on Mr. Jackson’s circumstances as of the date when the appeal was argued. At the trial, Mr.

Jackson did explain that he had become blind in one eye and that this meant going back to work as a journeyman carpenter, making $75–80 per hour, as he once did, was not an option. This was so because of what Mr. Jackson described as difficulties that the blindness presented for depth perception and fine focus. Nonetheless, Mr. Jackson did not suggest that he was unable to work, full stop. He said, for example, that he was in active discussions with a door company based in Winkler, Manitoba, to become a dealer-installer in the southeast corner of Saskatchewan. Even in this Court, Mr.

Jackson indicated that, at the time of the trial, he had assumed that he would soon be healthy and back at work. [ 46 ] It is significant that the trial judge did not conclude that Mr. Jackson could work as a journeyman carpenter and impute an income accordingly. Rather, as noted, he imputed an annual income of only $31,300. This is a determination that is entitled to deference by this Court. In the circumstances, I see no reviewable error in the trial judge’s decision on this front. [ 47 ] This does not mean that Mr.

Jackson was barred from seeking relief if his health situation, and hence his income-earning capacity, had changed or declined since the trial. If that was the case, it was open to him to put the new circumstances before a King’s

Bench Chambers judge, argue that they amounted to a material change in circumstances and ask that the trial decision be variedaccordingly. [48] Mr. Jackson also submits that the amount he has had to spend on travel to and from Regina to exercise his parenting time withthe child has been oppressive and has caused him significant financial hardship.

Section 10 of the Federal Child Support Guidelines,SOR/97-175, is relevant here. It provides, in relevant part, as follows: Undue hardship 10

(1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined underany of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, wouldotherwise suffer undue hardship. Circumstances that may cause undue hardship

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following: … (

b) the spouse has unusually high expenses in relation to exercising parenting time with a child; … Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if itis of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support underany of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse. … [49] Mr. Jackson did not expressly attempt to invoke s. 10 in the course of his submissions to the trial judge, but the cost oftravelling between Carievale and Regina was certainly a recurring point raised during the trial.

It seems likely that the trial judgeconsidered the issue but decided not to act on it. [50] It is important to note here that Mr. Jackson was not entitled to have the trial judge lower his support payments simply becausehe, Mr. Jackson, found travel costs to be burdensome. First, s. 10(3) provides that, even in the face of undue hardship, an application for asupport order less than the table amount must be denied if the household of the spouse who claims undue hardship would end up with ahigher standard of living than the household of the other spouse. Given the relative circumstances of Mr. Jackson and Ms.

Jackson, thatprescription looms very large here. Second, undue hardship is much more difficult to establish than Mr. Jackson appears to believe.Justice Kalmakoff in Lonsdale v Evans, 2020 SKCA 30 at para 70, 37 RFL (8th) 251, made this point as follows: [70] The threshold for establishing undue hardship is not easily met: see, for example, Pelletier v Kakakaway, 2002 SKCA 94 at paras10–11 and 26, 223 Sask R 305; and Locke v Goulding, 2012 NLCA 8 at paras 36–40, 29 RFL (7th) 115.

The basic tables set out in theGuidelines establish a presumptive rule regarding the amount of child support payable by a person with a given income.

While unduehardship is a circumstance that justifies a departure from the presumptive rule, establishing mere hardship is not enough to reduce orexcuse a payor parent’s obligation; the hardship must be “undue”, that is, “exceptional”, “excessive” or “disproportionate” in all of thecircumstances: Hanmore v Hanmore, 2000 ABCA 57 at para 14, 4 RFL (5th) 348; Van Gool v Van Gool (1998), (BCCA), 166 DLR (4th) 528 (BCCA); Reid v Faubert, 2019 NSCA 42 at paras 45–48, 434 DLR (4th) 287. [51] In the end, I am not prepared to find that the trial judge made a reviewable error in relation to this issue. J.

Orders illegal because of stay [52] Mr. Jackson’s next argument is based on the “automatic stay” imposed by virtue of the operation of Rule 15 of The Court ofAppeal Rules. At the relevant time, Rule 15(4) provided that, where the execution of an order was stayed pending an appeal, “all furtherproceedings in the action” were stayed. As I understand it, Mr.

Jackson contends that a stay came into operation when he filed his noticeof appeal with respect to Keene J.’s January 24, 2017, interim order and that, as a result, all Queen’s Bench proceedings after that datewere illegal and involved what he refers to as “knowing fraud” on the part of that court. Mr. Jackson was right to be concerned about thefailure to respect the stay in the Court of Queen’s Bench. However, an examination of the relevant dates readily confirms that this line ofargument cannot assist Mr. Jackson in his efforts to overturn the trial decision.

The notice of appeal with respect to Keene J.’s order wasfiled by Mr. Jackson on February 17, 2017. That appeal was dismissed by this Court on October 11, 2018. The trial in issue here tookplace after that, on December 11–14, 2018. Accordingly, the stay of proceedings that would have gone into effect by virtue of the appealof Keene J.’s decision had self-evidently ended before the beginning of the trial in issue here. K. Justice Keene’s order [53] Mr. Jackson submits that Keene J.’s interim order issued on January 24, 2017, was a “complete and utter error”, at least insofaras it authorized Ms.

Jackson to relocate to Regina with the child. The problem here for Mr. Jackson is that his appeal from Keene J.’sorder was heard by this Court and dismissed on October 11, 2018. He is not entitled to relitigate that ruling by way of this appeal. L. Discrimination by Court of Appeal judges

[ 54 ] Mr. Jackson also argues that judges of this Court have discriminated against him by lifting stays that came into effect by virtue of his various appeals. This, presumably, is a challenge to Caldwell J.A.’s order of August 27, 2019, lifting the stay in this appeal, Ottenbreit J.A.’s order of May 1, 2020, lifting the stay in appeal CACV3626, and Leurer J.A.’s order of December 8, 2021, lifting the stay in appeal CACV3935. Mr. Jackson suggests these decisions had the effect of creating a new parenting status quo. [ 55 ] This line of argument has no merit. Mr.

Jackson was entitled to ask the Court to discharge or vary any or all of these decisions pursuant to s. 20(3) of The Court of Appeal Act, 2000 , SS 2000, c C-42.1 . Other than by way of his unsuccessful application regarding the May 1, 2020, order of Ottenbreit J.A., he did not do so. Mr. Jackson is not entitled to attack those decisions now, long after the fact, through the mechanism of this appeal. VII. CONCLUSION [ 56 ] As explained above, Mr. Jackson has not established a basis for overturning or varying the trial judge’s decision. His appeal must be dismissed. Ms.

Jackson is entitled to costs in the usual way. “Richards C.J.S.” Richards C.J.S. I concur. “Schwann J.A.” Schwann J.A. I concur. “Tholl J.A.” Tholl J.A.