nan GAVELIN V. PATEMAN QB08179 Date of Judgment: April 30, 2008 Number of Pages: QUEEN'S BENCH FOR SASKATCHEWAN Date: 2008 04 30 Citation: 2008 SKQB 192 Docket: F.L.D. No. 330 of 2005 Judicial Centre: Saskatoon, Family Law Division BETWEEN: EVAN GAVELIN and NEVADA PATEMAN Counsel: N. Turcotte for the petitioner T. Hackl for the respondent FIAT DUFOUR J. April 30, 2008 1) The parties, who were never married, have two children: Kayden Marie Gavelin, born February 28, 2003 and Nolan Evan Gavelin, born December 28, 2004. The respondent is now married and the petitioner is engaged to be married on May 31, 2008. 2) The petitioner seeks an order that would enable him to exerciseincreased access to the two young children born of his relationship with therespondent. 3) This is the second time access issues have come before the Court. On February 1, 2007 Ryan-Froslie J. issued fiat that specified custody and access. At that time, the petitioner was employed by drilling company, working every day for two weeks followed by one week off. The respondent worked as hotel supervisor Tuesdays through Saturdays from 4:45 p.m. to 11:30 p.m. 4) The petitioner and respondent were awarded joint custody, with primary residence to be with the respondent. 5) Madam Justice Ryan-Froslie also detailed very specific accessprovisions, setting out the exact dates and times for the petitioner's access fromFebruary 2, 2007 to April 10, 2007. For the period subsequent to April 10, she ordered that the petitioner have access: (xiv) Commencing Saturday, April 28, 2007, every third Saturday from 10:00 a.m., overnight to Tuesday at 4:00 p.m.; (xv) During July and August, 2007, the petitioner shall be entitled to take the children for up to two non-consecutive periods consisting of no more than five overnights each; 6) The fiat did not address access for the Christmas, 2007 period or the 2008 summer holiday period. With good reason. The fiat was meant only to cover the gap between the application and pre-trial or trial, which certainly ought to have occurred before Christmas, 2007. Ryan-Froslie J. wrote: [6].. The purpose of interim orders is to establish temporary parenting arrangement pending trial or final resolution of the matter. In making such orders, Courts try to disrupt the lives of the children as little as possible and, for that purpose, often adopt the "status quo" subject always to that arrangement being in the best interests of the children. The status quo in this case is represented by the verbal agreement which the parties entered into following their separation, that is, that Mr. Gavelin would have the children during his week off from Saturday to Tuesday. Given the age and circumstances of the children, this appears reasonable on an interim basis. The verbal agreement, however, did not address the fact that Mr. Gavelin would be laid off for two months in the spring. It is reasonable that, during this period, his contact with the children should be increased. 7) Unfortunately, more than a year has passed and the matter has noteven been set down for pre-trial. This Application 8) The petitioner seeks the following: (a) Interim access every weekend from Friday at 4:00 p.m. to Sunday at 4:00 p.m. and every third weekend from Friday at 4:00 p.m. to Tuesday at 10:00 a.m.; (b) Access to the Children during the period of May 28, 2008 to June 4, 2008; (c) Access to the Children from 12:00 noon on July 11, 2008 to 12:00 noon on July 17, 2008; (d) Access to the Children from 12:00 noon on July 24, 2008 to 12:00 noon on July 31, 2008; (e) Access to the Children from 12:00 noon on August 2, 2008 to 12:00 noon on August 8, 2008; (f) Access to the Children during the period of August 15-20, 2008; (g) Access to the Children from 12:00 noon on August 21, 2008 to 12:00 noon on August 28, 2008; (h) Access to the Children from 12:00 noon on December 24, 2008 to 12:00 noon on December 27, 2008; (i) Such further access as this Honourable Court deems appropriate for extended parenting times during Spring (February) Break, Easter and the Summer Holidays. 9) There are two natures of relief sought. The first is in the nature of anapplication to vary the regular access from every third weekend to everyweekend. The second is more in the nature of an application, not to vary, but toaddress holiday periods not contemplated or addressed in the February 1, 2007fiat. Variation of regular access 10) The respondent resists any order that would increase or supplementthe petitioner's regular access. 11) Section 6(3) of The Children's Law Act, 1997, S.S. 1997, c. C-8.2 gives this Court authority to vary an order relating to access where there has been material change in circumstance since the date of the order. The order in issue here is an interim one. 12) I find no evidence of any material change in circumstances thatwould warrant a change in the petitioner's regular access schedule. 13) The petitioner's work schedule has not changed. He still works two weeks of 12 hour days (8:00 a.m. 8:00 p.m.) followed by week off. 14) Further, because the petitioner works 12-hour days, the increasedaccess he seeks during the weeks that he works are unlikely to result in anymeaningful time with the children either before he goes to work in the morning orafter his return from work in the evening. The children are five and four years old. Although there is no evidence of their bedtimes, it is most likely that the petitioner would be at work for virtually all of the children's waking hours. Contact with the father would be increased only marginally, if at all, during these periods and contact with the respondent would be significantly reduced. 15) True, the respondent's employment schedule has changed. She no longer works evenings Tuesdays through Saturdays. She works out of her home, five days week. This change does not mitigate in favour of varying the petitioner's regular access. 16) Under these circumstances, am unable to find that there has been material change in circumstances or that altering the existing regular access schedule would be in the best interests of the children. The regular accessschedule as detailed by Ryan-Froslie J. shall remain unchanged. Spring access 17) At the time the February 1, 2007 fiat was issued there was evidence that there would be road ban in effect during the spring thaw, making it likely that the petitioner would be temporarily laid off for the months of April and May, 2007. In paragraph [9](xvii), Ryan-Froslie J. ordered: Should Mr. Gavelin not work for the months of April and May, 2007, he shall have additional parenting time with the children every week (other than the weekend he exercises regular access), from Thursday at 4:00 p.m., overnight to Saturday at 10:00 a.m. 18) The petitioner's request that this access provision apply to this yearis not so much in the nature of a variation as an extrapolation of the previousorder. 19) The petitioner does not indicate that he will be laid off this spring, although, given that his employment has not changed, this will likely be the case. The respondent avers that the petitioner may be laid off for "3 to weeks in May 20) As April is now behind us, order that the access provisions in paragraph [9](xvii) of the February 1, 2007 fiat be followed in May, 2008, but only for the weeks that the petitioner is not working at all. Summer, 2008 21) The request to specify access this summer is also in the nature of an extrapolation of the previous order. 22) For the summer of 2007, the petitioner was granted access for up to two non-consecutive periods consisting of no more than five overnights each during July and August. He seeks to increase summer access to two non- consecutive seven-day access periods in each of July and August. 23) The children are now one year older and some increase in summer access is reasonable, but not to the extent requested by the petitioner. When coupled with his regular access, the increase the petitioner seeks would result in his having the children for 21 of 31 days in July and 27 of 31 days in August. 24) The respondent has booked holidays from July 25 to August 10, which complicates the scheduling of the petitioner's summer access. Making the best of difficult situation, order that the access the petitioner shall have with the children in July and August, 2008, shall be as follows: July July 11; July 18 July 23; August 11 August 17; and August 24 August 30. For clarity, the petitioner shall not have the regularly scheduled access with the children during July and August. The only access he shall have with the children in those two months is as set out immediately above. Access for the petitioner's wedding 25) The petitioner is to be married on May 31, 2008. He seeks access to the children for the period of May 28, 2008 to June 4, 2008. He, very understandably, wants his children in attendance at his wedding. The respondent's stepbrother is getting married that same day and she wants the children to attend. 26) There will be disappointment no matter how rule. Although the wedding of the respondent's stepbrother is no doubt significant event for the children, consider the petitioner's wedding to be of greater importance. Further, the petitioner and his fiancTe planned their wedding to coincide with one of the petitioner's scheduled access periods. 27) The petitioner shall have access with the children from May 28, 2008 to June 4, 2008. Request that access be enforced by peace officer 28) The petitioner requests an order that provides that access be enforced by the RCMP or other peace officer. He deposes that the respondent and her husband threaten to withhold the children from him and swear and yell at him when the children are picked up and dropped off. The respondent disputes this and says that she is fully aware of the orders that are in place. 29) will not grant the order that the petitioner requests. In the event there are problems with access, the petitioner is granted leave to bring the matter before the Court on three days' notice. Christmas 2008 and holiday periods beyond 30) will not specify access for the 2008 Christmas period or for any of the holiday periods subsequent to that, as requested by the petitioner. The affidavits filed show significant amount of animosity between the parties. It appears unlikely that they will be able to agree on much, if anything. Granting specific access for holiday periods in the distant future acts as disincentive for the parties to resolve matters within reasonable time period of time. 31) Applications to alter interim access orders are not the answer. Moving the matter quickly to pre-trial and/or trial is. 32) Costs of this application shall be in the cause. J. G. D. Dufour
FIAT: A previous interim order detailed specific access in the period leading up to pre-trial or trial, however more than a year has passed and the matter has not even been set down for pre-trial. The petitioner seeks to increase access to the two children of the relationship and an order to address holiday periods not covered in the previous order. HELD: There shall be no change in the previously ordered access schedule.  The Court found no change in the material circumstances that would warrant a change in the petitioner's regular access schedule. Because of the petitioner's work schedule, the increased access is unlikely to result in any meaningful time with the children. The holiday access requested was in the nature of an extrapolation of the previous order and the Court ordered holiday access in such a fashion as to continue that order.