SCHERMAN QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 59 Date: 2013 02 21 Docket: Div. No. 412 of 2011 Judicial Centre: Saskatoon BETWEEN: JULIE ELIZABETH KLINGER, and BERNHARD KLINGER, Counsel: Jeremy A. Caissie for the petitioner Jillyne M. Drennan for the respondent FIAT DANYLIUK J. February 21, 2013 I. INTRODUCTION [1] This is high-conflict family law matter. The mother wants to change her residence (and that of the two young children) presently, which amounts to an application to change residence on an interim basis. The father has a significant history of criminal behaviour, is presently incarcerated and will be for at least the balance of this calendar year. He opposes the move, and in any event wants access. The parties have come to this court to determine what should happen on an interim basis. [2] The parties married October 11, 2008, and separated in April 2011. It was the first marriage for each. Two sons were born of their marriage: Adam, on March 31, 2007 and Quinn, on August 3, 2009. [3] There is little utility in reviewing the events within the marriage in exhaustive detail. Suffice it to say that from the outset, the marriage was tempestuous. Within months of the marriage the father was charged criminally and served time in jail. When this action was commenced in spring 2011, the mother had to obtain an ex parte order returning the boys to her care. The father has issues with substance abuse and anger management. In the course of these proceedings, non-contact order was made against him as regards the petitioner. [4] In January 2012 the court ordered custody/access report to be prepared through Family Justice Services, with particular focus on issues of domestic abuse, child abuse, drug addiction, alcohol abuse, criminal activity, and the willingness of each parent to facilitate relationship between the children and the other parent. Unfortunately, for variety of reasons this report was not completed until February 2013. While some of the material and references relied upon by the author are now somewhat dated, there is still material that is of assistance to the court. [5] As well, by January 2012 the mother had unilaterally moved with the children from Nokomis to Kenaston, notwithstanding an existing order of this court. That move was reversed in January 2012. The mother made an application to allow the proposed move and that issue was adjourned from time to time pending the receipt of the custody/access report. She has formed new relationship, and she is pregnant. The father maintains that she has, in actuality, already moved and her request is but formality. [6] The father was charged with number of criminal matters in the fall of 2012. He was sentenced in October. His latest affidavit is not entirely clear on how long he will be in jail, but states that he is eligible for early release in December 2013. We thus know he will be in jail for at least the rest of this calendar year, and perhaps beyond. ISSUES [7] The issues raised by this application are: (a) Should the mother’s move with the children be allowed on an interim basis? (b) In any event, should the children have access with their father while he is incarcerated? ANALYSIS Should the mother’s move with the children be allowed? [8] The mother’s unilateral move was unfortunate. While she claims that she reversed this move and went back to Nokomis, the father harbours suspicions that she and the children actually remained in Kenaston. While the mother’s counsel stridently echoes her protests to the contrary there is some evidence that her return to Nokomis was, perhaps, nominal. For example, the custody/access evaluator interviewed the older child’s kindergarten teacher, who was identified as teaching at Kenaston School. There was no satisfactory explanation as to why this child was attending school in Kenaston. General principles [9] Nevertheless, the interim application to change residences is before the court and must be dealt with. There are some general principles apposite. [10] The foundational decision in this area is Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27, 134 D.L.R. (4th) 321. McLachlin J. (as she then was) summarized the applicable considerations in seven points, at para. 49, which has been cited so often it is now trite law. [11] When an application to move is made on an interim basis, further significant caution is warranted. There are two primary reasons. First, an interim change of locale may create new status quo and sometimes can effectively decide the outcome of the trial. Second, the interim application is most likely based on affidavits, which frequently conflict with each other, and/or are incomplete or limited in scope. Essentially, there is now rebuttable presumption against allowing such moves until trial is held. As result, interim relocations by custodial parent are generally allowed only in compelling circumstances. See Nieman v. Bull, 1999 SKQB 204 (CanLII), [1999] S.J. No. 778 (QL), at para. 7; Shiplack v. Shiplack, 2008 SKQB 254 (CanLII), 317 Sask.R. 223, at para. 19; Ofukany v. Ofukany, 2009 SKQB 234 (CanLII), 338 Sask.R. 196, at para. 12; and Mantyka v. Dueck, 2012 SKCA 109 (CanLII), 399 Sask.R. 303, at paras. 31 to 33. [12] Is this an exceptional case warranting allowing the move to occur on an interim basis? In my view, it is. Applying the Gordon v. Goertz principles [13] The Gordon v. Goertz criteria are met in this case. There has been a material change of circumstances affecting the children. Their mother’s new relationship and her pregnancy means a new sibling will be introduced into their lives. Should they be deprived of the benefits of growing up with their new brother or sister, who is presently en ventre sa mere? It is difficult to see an argument favouring such an arrangement. If the mother is forced to live in Nokomis, then it would appear the new child (once born) would be deprived of the benefits of living together in one household with both its parents. This defies common sense. [14] This being so, even on an interim basis the court must embark upon fresh inquiry as to what is in these children’s best interests. This is not “balancing act”; rather, it is fresh consideration of all relevant circumstances relating to the needs of the children, and the ability of each parent to satisfy those needs. These cases are fact-intensive, and there is no presumption in favour of the present custodial parent. The court’s only issue is to determine the children’s best interests, and the focus is certainly not on the rights or interests of either parent. [15] In reviewing this matter, it appears beyond dispute that the mother has always been the primary caregiver to these children. There is nothing suggesting the two boys have anything other than close and loving relationship with her. [16] The existing access arrangement is thornier issue. The father has been in jail since September 2012, first on remand, then as serving prisoner. He has not been seeing the children on regular basis. This court’s order of January 27, 2012 provided that the father not be present for access exchanges of the children. This court’s previous order (September 7, 2011) named the mother as the primary caregiver, with the father to have the children with him every second week, Wednesday to Sunday. Both orders contained non-contact clause with respect to the father. [17] Due partly to his incarceration and partly to other factors, the father has not seen the children since May 2012. He will remain in jail until at least December 2013. Paragraph 49(7)(b) of Gordon v. Goertz emphasizes consideration of the existing access arrangement and the relationship between the children and access parent. Presumably, the disruption any prospective move would cause to this relationship should also be considered. But here, there has been no access for some nine months, and access for the next ten months will be (at best) very limited. While preserving an access relationship and maximizing contact between the children and both parents are to be fostered in the ordinary course, this situation is anything but ordinary. The acts of the father are what has jeopardized his parental relationship with the children, not the proposed move. [18] One of the main reasons the father is in jail is his assault on the mother. His submissions against disturbing his relationship with the children are somewhat disingenuous not unlike the apocryphal story of the man who murders his parents, then pleads for clemency from the court on the grounds he is an orphan. [19] These are young boys (6 and 3‑½) thus their wishes are neither determinative nor substantially influential on the court’s decision. [20] On the facts presently before the court, there would be little or no disruption to the children. Kenaston is about 90 kilometres due west of Nokomis, about 80 minutes one-way. While the mother returned to Nokomis after her precipitous move, her latest affidavit reveals she has been commuting daily. This corresponds with the older child’s attendance in kindergarten in Kenaston, and corresponds with the father’s notion that she did not really take to heart the court’s directive to return to Nokomis. Nevertheless, in reality the move would mean nothing to the children in terms of their frequency of contact with their father, or with any increased difficulties in exercising access. The father is in the Saskatoon Correctional Centre. Kenaston is 50-minute drive on divided highway. Nokomis is 1‑3/4 hours away (about 160 kilometres) on some roads which are less than ideal. At present, the capacity for access is likely enhanced by the proposed geographical change. [21] There is also no tangible evidence that the children will be disrupted on moving from Nokomis, in terms of removal from family, schools and the community they have known. [22] In his affidavit, the father says he would consent to the move but only if the mother will agree (or, presumably, the court will order) access to occur while he is in jail. This is, at best, “balance of convenience” argument specifically disapproved of by our Court of Appeal in Mantyka, supra. It is not proper analysis of the children’s best interests. Those interests are not to be held hostage to promote the father’s self-interest. [23] This leads to an analysis of the mother’s reason for moving. Generally such a reason is only considered in an exceptional case, and then where the reason is relevant to the parent’s ability to meet the children’s needs. This is such a case. Here, not only has the mother formed new relationship with man from Kenaston, she is pregnant. Her ability to act as parent to her two existing children will necessarily be impacted by the arrival of third. She cannot reasonably be expected not to feel the impact of the move being prevented if her new life partner is not living with her, and providing support (financial, physical, emotional) for the new child. This will transfer over to the two older children. [24] The move is not for job, nor for any other sort of economic opportunity. But are such economic benefits considered to outweigh the considerations of the formation of new family? Surely the collective interests of the three children in this case should be as important as enhanced career prospects have been in other cases. [25] As well, these are circumstances where the court does not have alternatives. Very often, parent is told he or she is free to move but not with the children. If the move proceeds, there can be shift in custody to the other parent. Here, the mother is the only available parent for the foreseeable future. When the father is eligible to get out of jail, he will not have had close ties to the children for period approaching two years. There is no reasonable basis to have matters resolved in the father’s favour. While he asks that pre-trial conference be set, he asks that it be delayed until his release. That is not tenable position. Life moves on. Most importantly, the lives of these children cannot remain “on hold” while the father awaits release from prison for, inter alia, beating the mother of the children. [26] It is clear to the court that by adopting this position, the father has not truly considered the best interests of the children. He does not presently (nor in the near future) present viable parenting alternative. In all likelihood the mother’s position would prevail at trial. [27] This is one of handful of cases where an interim decision on mobility is appropriate. Upon careful consideration of the evidence and application of the principles in the cases set out above, the court is of the view that the children’s best interests are best served by the mother remaining the primary parent, and that this be done in Kenaston. Should the children have access with their father while he is incarcerated? [28] The father’s affidavit provides information to show that access to the children while he is incarcerated is possible. Personal visits would occur with these two boys, aged and ½, speaking to their father via telephone through plexiglass partition. [29] The custody/access evaluator does not speak to such access being of benefit to the children, and further recommends that after the father is released his access be supervised for six months. [30] The issue is whether access while the father is in jail confers any benefit upon these children. Father’s counsel presented well-reasoned argument, supported by case law, in favour of his position. [31] The key case appears to be Anderson v. Daley, 2006 SKQB 309 (CanLII), [2006] S.J. No. 447 (QL). There, the parties had two children. The father received life sentence as result of murdering the mother. Not surprisingly, the children’s paternal and maternal families had highly hostile relationship. maternal aunt received custody through court order. The father sought access, and this court ordered that some telephone and personal visits occur. [32] The issue with Anderson and the case at bar is one of applicability. In the view of the court, several factual distinctions exist. In Anderson, the children were bit older (8 and 5). It was “abundantly clear” from the evidence that these children wished to see their father, consistently holding and expressing such wishes for over year. We have no such evidence here. In that case the custody/access evaluator favoured contact with the father during his prison term. As well, the mother had been totally removed from the picture by her murder, leaving only one parent available, even if he was in prison. Even in that case, the personal access ordered was strictly limited. The access was subject to future review. [33] In subsequent case, access to father in jail was ordered: B. (R.S.) v. P.(M.), 2007 BCPC 402 (CanLII), [2007] B.C.J. No. 2790 (QL). But there, the father was on remand and had not yet been convicted of any of the charges, including murdering the mother. As well, this was decision made after trial, rather than on affidavits. The custody/access evaluator provided strong evidence (para. 109) as to the benefits of such access, and it was ordered. Finally, if convicted the father’s incarceration would be lengthy, as in Anderson, as opposed to limited, as here. [34] We do not have the benefit of such evidence here. The father has not adduced any material (other than from himself) to suggest there is anything in this for the children. He does speak of benefits to him, which are largely self-evident. [35] While personal access to an incarcerated parent may be beneficial to children in some instances in this case the court has insufficient evidence to conclude, on a balance of probabilities, that these two young children visiting their father in jail would benefit. [36] There should, however, be some connection maintained. That can be done through telephone access. As well, the parties should explore with corrections authorities the prospect of communication through Skype, FaceTime, or one of the other means of electronic audio/visual communication. While the authorities will undoubtedly not allow the father unfettered access to computer with an internet connection, some form of monitoring might be possible. [37] am therefore prepared to order that the children have telephone access to their father every three weeks, as may be arranged, until the father is released from custody. If the further types of communication mentioned above are possible, the telephone access shall be converted accordingly. [38] hasten to note that the mother has legal duty to promote and foster this access. She should be aware that it is this court’s expectation that she will do all in her power to ensure the children have this access and that it is meaningful. This matter has not gone to trial and is far from concluded. Her willingness (or lack of same) to ensure connection between the children and their father may well be significant factor in her remaining the primary parent. [39] Accordingly, make the following order: 1. The mother shall remain the interim primary parent for the two children, and shall be allowed to move on an interim basis from Nokomis to Kenaston, Saskatchewan. 2. The children shall have regular telephone access to their father every three weeks, as may be arranged, until the father is released from custody. If the further types of communication mentioned above are possible, the telephone access shall be converted accordingly. 3. No order as to costs. J. R.W. DANYLIUK
The petitioner mother has entered into a new relationship and is pregnant. She wants to move with the parties' two children to live with her new spouse. The respondent father is currently in jail and will be incarcerated for the balance of the calendar year. The respondent opposes the move and wants access to his children at the jail. The mother had unilaterally moved with the children prior to making this application in the face of an existing court order. One of the reasons that respondent is in jail is because he assaulted the petitioner. HELD: The Court was of the view that this was an exceptional case that warranted permitting the move on an interim basis. The petitioner's new relationship and the impending birth of a new sibling for the children is a material change in circumstances. The move is justified because the petitioner is the only parent available to the children and it would defy common sense to deprive the children of a relationship with their new sibling, particularly when the respondent is unavailable as a parent and there is no reasonable basis to conclude that matters can be resolved in the father's favour. The respondent asked to have the issue of custody and access delayed until his release. This is not a realistic option. It was clear that the father had not truly considered the best interests of his children in opposing this application and that the mother's position would likely prevail at trial. With respect to access with the father in jail, there was no evidence that visiting the respondent in jail would be beneficial to these young children. The respondent was granted telephone access and, if it was possible to arrange with corrections officials, access via Skype or Face Time.