J. F.L.D. A.D. 1999 No. 24 J.C.S. IN THE QUEEN‘S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: SARAH LOUISE BARNES GUENTHER and PAUL TIMOTHY GUENTHER RESPONDENT N.J. Sim, Q.C. for the applicant, Sarah Louise Barnes Guenther D.J. Fisher for the respondent, Paul Timothy Guenther FIAT LAING J. March 5, 1999 [1] The applicant applies for interim custody of the one child of the marriage, Jacob, born May 9, 1993. This application prompted a counter-application for interim custody by the respondent, Mr. Guenther. [2] By an agreement dated November 17, 1997, the parties agreed that Mr. Guenther should have interim custody of Jacob. The relevant clause in the agreement states: The Parties agree that the Husband shall have interim sole custody of the child of the marriage and the Wife shall have access to the child of the marriage upon reasonable notice to the Husband. [3] The applicant indicates in her affidavit that on or about July, 1996, she was diagnosed as suffering from unipolar/clinical depression. She states that on or about October 30, 1997, she felt she was beginning to suffer an emotional breakdown and voluntarily admitted herself into the Royal University Hospital for psychiatric treatment, from which she was discharged on November 14, 1997. With respect to the agreement, she states in para. 15 of her affidavit: 15. THAT on November 17, 1997, the Respondent presented me with an Interim Custody and Access Agreement, which signed; however, at that time did not have solicitor and, therefore, did not have any legal advice with respect to my rights. In addition, had just recently been discharged from hospital after having undergone treatment for depression. At that time, the Respondent and sat down and discussed our family situation. The Respondent was crying and told me that he did not want to be divorced or separated because he still loved me. Attached hereto and marked as Exhibit “D” to this my Affidavit is copy of the said agreement [the relevant paragraph of which is quoted above]. [4] The applicant‘s basis for seeking the change in interim custody that can discern from the affidavit material is that the applicant states she was the parent mainly responsible for the care and upbringing of Jacob prior to her hospitalization as the respondent was employed as long-distance truck driver at the time. After the agreement was entered into, the respondent changed jobs and now works day job in Saskatoon. The applicant points out that the respondent‘s sister babysits the child during the week while he is at work, and the applicant states as she is not working it would be better if the child spent this day time with her rather than her sister-in-law. Jacob attends kindergarten each morning of the week and is with Mr. Guenther‘s sister each afternoon. Finally, the applicant is of the opinion she is the more loving and caring parent. There is no allegation the child is in any way at risk in the present arrangement. [5] What this application ignores and there have been others recently, is the consistent case law which states the courts should not vary interim custody arrangements whether legal or de facto in the absence of evidence that the child or children are in some way at risk, or other compelling reason. In Harden v. Harden (1987), 1987 CanLII 4876 (SK CA), 54 Sask. R. 155 (C.A.), Sherstobitoff J.A. on behalf of the Court adopted the statement of Kerans J.A. of the Alberta Court of Appeal in R. v. R. (1983), 1983 ABCA 156 (CanLII), 34 R.F.L. (2d) 277 at p. 284 wherein Kerans J.A. stated: it is at the time of an interim disposition that one should not lightly disturb de facto arrangements: see Cropper v. Cropper (1974), 16 R.F.L. 113 (Ont. C.A.). We should remind ourselves that interim custody is just that: makeshift solution until the correct answer can be discovered. If judge could tell what is best at the outset, there is no need for an interim order. Interim orders are designed to minimize conflict between parents and cause the least harm to the child and determination of the cause. [6] In Prost v. Prost (1990), 1990 CanLII 907 (BC CA), 30 R.F.L. (3d) 80, Hollinrake J.A. in Chambers stated at p. 81: have concluded that there was an error in the Court below in principle. wish it clear that anything say in this judgment should play no part whatever on the issue of custody when the decision is made at trial. The point of error that see in this case is that the governing principle is, on the authorities, that the status quo should be maintained in the absence of any evidence that the children are in some way at risk. There is no evidence before me, nor, as understood counsel, is there any suggestion on their part that the children here are at risk if they stay with their mother. do not think that the Judge below followed this principle in reaching the decision that he did. Hollinrake J.A. at p. 82 referred to the earlier British Columbia Court of Appeal decision Eaton v. Eaton (1987), 1987 CanLII 2950 (BC CA), 11 R.F.L. (3d) 92 in which Mr. Justice Seaton stated at p. 94: There is significantly different question on an interim custody application than on trial itself. Where there is no reason to change an existing situation that situation should normally prevail until trial. [7] More recently in M.(S.R.) v. M.(J.K.) (1997), 1996 CanLII 18251 (MB CA), 24 R.F.L. (4th) 286 (Man. C.A.), Helper J.A. stated at p. 286: The principle has been stated repeatedly: Interim custody orders ought not to be varied in the absence of compelling evidence which calls out for change in the short term. To ignore this principle is to cause needless disruption for the children who are the subjects of those orders. Helper J.A. went on to state at p. 288: It might very well be that the order under appeal foreshadows final order. trial judge, hearing all the evidence and having the opportunity to assess the parties giving their evidence and being cross-examined, might grant the husband permanent custody. But that observation is merely possibility. Custody may very well remain with the wife in the long term. Until that final decision is made, an unwarranted change for the children is not in their best interests. By varying the interim order, the motions judge ignored the best interests of the children in the broad sense. [8] It appears from the foregoing case law, it constitutes an error in principle, and a reversible error in law to vary interim custody arrangements pending trial in the absence of evidence of risk to the child. The foregoing case law indicates that once an interim custody arrangement has been in place for some time, whether de facto, by court order, or by agreement of the parties, the non-primary care parent should not apply on an interim basis to vary the arrangement (except where risk to the child exists), but proceed to final order. In this province, that means obtaining pre-trial date for pre-trial conference, and if the matter is not resolved at that stage, proceed to trial where the Court will determine what is in the best interests of the child. [9] For the foregoing reasons, Mrs. Guenther‘s application for interim custody and the counter-application by Mr. Guenther are dismissed. [10] The applicant also sought in the alternative variation in the access she has to Jacob at this point in time. Jacob is presently enrolled in kindergarten which occupies his mornings. The applicant has access every Tuesday and Thursday from 1:00 p.m. until 7:30 p.m., and alternate Sundays from 10:00 a.m. until 7:30 p.m. The respondent resisted the applicant‘s request for overnight access on the basis that in his opinion the applicant‘s emotional health makes it difficult for her to cope with Jacob over extended periods of time. [11] On this application the applicant has filed a number of medical letters indicating her emotional health is stable at this point in time and supporting her view that she can care for the child over extended periods of time. On the basis of this evidence, I am satisfied Jacob will not be at risk if the applicant is granted overnight access, and it is ordered the applicant have access to Jacob as follows:(1) Every second weekend from after kindergarten on Fridays to 7:00 p.m. Sunday night commencing Friday, March 12, 1999.(2) Every Tuesday from 1:30 p.m. to 7:30 p.m.(3) Every Thursday from 1:30 p.m. to 7:00 p.m. in the weeks the applicant does not have access that weekend. [12] Order accordingly.
FIAT. The applicant applied for interim custody of the one child of the marriage,and in the alternative a variation in access. The father counter applied for interim custody. The parties agreed in 1997 that the father should have interim custody. The mother argued that she was the parent mainly responsible for the care and upbringing of the child prior to her hospitalization for unipolar/clinical depression. The father had been employed as a long distance trucker but now worked days in the city. HELD: The applications for custody were dismissed. Overnight access was granted to the mother. 1)The application ignored the consistent law which states the courts should not vary interim custody arrangements whether legal or de facto in the absence of evidence that the child(ren) are in some way at risk, or other compelling reason. It constitutes an error in principle, and a reversible error in law to vary interim custody pending trial in the absence of evidence of risk to the child. The non-primary care parent should proceed to final order which in this provicne means obtaining a pre-trial date for a pre-trial conference and proceed to trial if custody is not resolved at that stage. 2)The court was satisfied on the basis of a number of medical letters indicating her emotional health was stable that the child was not at risk if the mother were granted overnight access.