L.W. ZUK REDACTED VERSION QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 167 Date: 2017 06 09 Docket: DIV 154 of 2010 Judicial Centre: Regina (Family Law Division) Appearing: X.M. self-represented Ronald J. Miller for the respondent JUDGMENT BROWN J. JUNE 9, 2017 BACKGROUND [1] This matter arises following a trial in 2012 wherein Justice Kraus found that shared parenting regarding V.M., born March 8, 2005, [V.] should occur on a one week rotation basis (2012 SKQB 130 (CanLII), 395 Sask R 165). Formal issuance of an order slipped through the cracks and thus no judgment was ever taken out. [2] The application now brought by R.M. [R.] is to have formal judgment issued and to vary that decision in favour of her havingprimary residence. In the absence of an order varying the shared parenting order, she seeks a Voices of the Children, (here a Voice of the Child as V. is the only person in issue), report be undertaken in order to ascertain V.’s wishes and thereby gain clarity on his best interests. [3] X.M. [X.] opposes all relief sought by R. [4] For the reasons that follow, I find that it is appropriate to order a Voice of the Child report be prepared regarding V. [5] This variation application is based on an alleged change of circumstances which includes V. expressing desire to live full time with R. If variation is not to be ordered at this time absent the report, R. desires Voice of the Child report be prepared regarding V. Her desire is to enlighten the court regarding his views and his experiences. [6] X. disagrees with R. in all respects, thus the affidavits are conflicting in nature, to put it mildly. It is appropriate to ascertain whether the appropriate order at this time is the commissioning of Voice of the Child report. If so, it ought to then be undertaken prior to ruling on the variation application. The variation is dependent on the report. Voice of the Child Report [7] In R.’s affidavit of April 13, 2017 she states that V. has indicated for some time now (two years) that he would like to reside full time with her and he does not want to continue the week on/week off shared parenting regime. She also attests to V. having seizures and telling her that on one such occasion he was required by X. to continue skiing notwithstanding having seizure. [8] She further says that V. overheard X. telling his roommate he was going to stab R. with needles. She also says V. is not happy taking care of X.’s other boy of six years old when X. has V. in his care. She says V. has heard X. call her “crazy” on more than one occasion. She describes V.’s fear of telling X. he would like not to be in Ukrainian dancing any longer and his preference not to have X. attend his medical appointments, particularly when addressing his seizures. [9] R. desires Voice of the Child report be prepared to independently delve into the issue of V.’s desires and motivations. [10] X. disputes all such allegations and explains each of the events differently as misinterpretations of what was really going on. For example, the “needles” comment was with respect to the possible need, in X.’s opinion, of the hospital staff sedating R. given her screaming and disruptive behaviour. He describes her version of being called “crazy” as being described by him as “unreasonable” but not crazy. [11] X. opposes the securing of Voice of the Child report as he fears it is case of V. calling the shots and that it could negatively affect the shared parenting arrangement currently in place. He relies on D.M. R.W. 2016 SKQB 113 (CanLII) [D.M.] where Justice Megaw declined to order Voices of the Children report based on merely the statement by the father that the children had told him they wanted to live with him. [12] D.M. is distinguishable from this matter. There has not already been one report commissioned for another child in the family here; there has not been pre-trial where the issue was considered and not ordered despite the request; and there are significantly more issues at play here than bald statement by R. that V. has requested he “live full time with her”. As indicated, she avers to: V. saying he had been required by X. to continue skiing notwithstanding seizure; V. overhearing X. telling his roommate he was going to stab R. with needles; V. not being happy taking care of X.’s other boy of six years old when X. has V. in his care; V. hearing X. say R. was “crazy” on more than one occasion; V.’s fear of telling X. he would like not to be in Ukrainian dancing any longer; and, V.’s preference not to have X. at his medical appointments. [13] It is important to note that none of these items in R.’s affidavit are proven. They are simply allegations at this point. However, the allegations are far more extensive than the evidence before Justice Megaw in D.M. [14] As indicated at paras 48 and 49 of G.M. T.M., 2016 SKQB 51 (CanLII): [48] These troubling matters should not be left unaddressed. While T.N. has most appropriately been seeing counsellor, it is also appropriate that her voice be heard by an impartial and professionally trained individual who can advise the court in that regard. [49] T.N. is, by all reports, quite perceptive. In conversation with either of her parents, she will no doubt understand the answer each parent hopes for, even if she is not told this directly. T.N. needs to meet with someone who is not desirous of particular answer to speak to about her own thoughts and wishes regarding the time she would like to spend with each of her parents. [15] Justice Ball put it this way in Knudsen Knudsen, 2013 SKQB 216 (CanLII): 8. The conflicting affidavit evidence filed by mother and father make it clear that Julie’s views are not being reliably communicated to the court. am satisfied that an independent assessment of her wishes with respect to her mother’s proposed move back to Assiniboia and there resumption of shared parenting arrangement will assist the court in deciding this application. [16] also rely on Justice Smith’s decision in Kittelson-Schurr Schurr, 2005 SKQB 90 (CanLII) [Schurr]. [17] X. indicated in argument that V. is an intelligent boy and he does well in school. I find V. is of an appropriate age, being over 12 years old, that he is able to communicate effectively and that a Voice of the Child report would meaningfully assist the court in determining a custody and access plan that is in the best interests of V. [18] X. should take comfort in the fact that the report is prepared by an unbiased and independent professional and also by the fact that, as indicated in Schurr at paras 10 and 11, citing Johns Hinkson (1996), 1996 CanLII 6863 (SK QB), 151 Sask 168 (QB), Voice of the Child report is not determinative of the application. The best interests of V. are still paramount and the wishes of V. are not independently determinative. [19] The report and V.’s views will be assessed for the appropriate weight to accord them given V.’s maturity, experience and age. It will be one piece of evidence that will assist the court in ascertaining what custody and parenting arrangement is in V.’s best interests. In this regard, see also Burka Burka, 2003 SKQB 407 (CanLII), 239 Sask 107 and Thogersen Thogersen, 2010 SKQB 287 (CanLII), 358 Sask 244. [20] therefore order that Voice of the Child report be prepared and submitted to the parties and to the court. [21] The parents are both significantly strapped financially at this time and as such decline to make an order allocating the costs of the report to them. It is to be borne through resources provided to the program aside from the parents. [22] R. and X. are prohibited from discussing the Voice of the Child report process with V. and shall not influence, coach, sway or prompt V. towards any particular views or statements for the purposes of the Voice of the Child report. V. must be left to say what he feels is important, unimpeded by the desires of either parent. [23] This application is therefore to be adjourned sine die returnable not sooner than 14 days after the Voice of the Child report has been received by all parties. ISSUANCE OF THE JUDGMENT [24] The parties have agreed on many of the terms that ought to form the judgment that is formally issued, that matter having not occurred to date. I attach the copy of the judgment with notations that is appropriately issued at this time and I direct its issuance in that form. [25] Costs of these matters will be determined after the Voice of the Child report is made available and the variation matter determined. None will be ordered at this time.
Family Law – Custody and Access – VariationFamily Law – Custody and Access – Voices of the Children Report In 2012, after a trial, it was determined that the child should be parented on a shared basis with a one-week rotation between parents. An order was never issued and therefore, no judgment was taken out. The applicant now applied to have a formal judgment issued, and to vary the decision in favour of her having primary residence. Alternatively, she sought a Voices of the Child report. The applicant indicated that the child expressed a desire to live with her full-time. The parties’ affidavits conflicted as to their behaviour. The applicant indicated that the child told her he was required to continue skiing with the respondent even though he was having a seizure. She also indicated that the child told her that the respondent told his roommate he was going to stab the applicant and he called her crazy. HELD: The court found it appropriate to order a Voices of the Child report. It was determined that the variation application decision was dependent on the report. There were more issues at play than a bald statement by the applicant that the child requested to live with her full-time. The child was an appropriate age for the report, being over 12 years old. He was able to communicate effectively and the report would be meaningful to the court. The order was to be paid for through resources provided to the program. The parties were prohibited from discussing the report process with the child and they were ordered not to influence, coach, sway, or prompt the child towards particular views or statements for the purposes of the report. The application was adjourned sine die returnable not sooner than 14 days after the report was received by all parties. The judgment was directed to be issued.