REDACTED VERSION QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 136 Date: 2016 04 22 Docket: FLD of 2016 Judicial Centre: Moose Jaw Counsel: W. Timothy Stodalka for the petitioner Estes B. Fonkalsrud for the respondent JUDGMENT BALL J. APRIL 22, 2016 [1] The parties have four children: T., born …, 2002; K., born …, 2004; and twins B. and M., born …, 2007. They first separated in July 2010. Since then they have had ongoing disputes about variety of matters including, but not limited to, the parenting of their children and the division of family property. There have been variety of applications to the court, court orders, and unsuccessful pre-trial settlement conferences. [2] This application raises, once again, the question of parenting plan for the children. History of Proceedings [3] Three days after the parties separated, the petitioner commenced these proceedings by way of Petition seeking orders under The Family Maintenance Act, 1997, SS 1997, F-6.2, The Children’s Law Act, 1997, SS 1997, C-8.2, and The Family Property Act, SS 1997, F-6.3. The Petition did not contain claim under the Divorce Act, RSC 1985, (2d Supp), and has never been amended to include such claim. Concurrently with the filing of the Petition, the petitioner applied for interim orders dealing with, inter alia, the parenting of the children, child and spousal support, exclusive possession of the family home, and division of family property. Order dated September 28, 2010 (Dawson J.) [4] On September 28, 2010, Dawson J. issued fiat addressing some of the issues in dispute. In doing so, she observed that “this file is an example of how quickly matters can escalate between two parties when cooler heads fail to prevail”. Her first order of business was to direct that an expedited pre-trial be set for October 29, 2010, stating that it was not to be adjourned without the consent of both parties or an order of the court. [5] Dawson J. then made an interim order as follows: 1. The petitioner and respondent shall have interim joint custody of the children of the marriage. 2. The children’s primary interim residence shall be with the petitioner. The respondent shall have interim access at reasonable times as may be arranged for through counsel, such access to be no less than every second weekend from Friday evening to Sunday evening and one evening every week from 5:00 o’clock p.m. until 7:30 p.m. 3. The petitioner shall have interim exclusive possession of the family home located at […] Moose Jaw, Saskatchewan and the household goods contained therein until further order. The respondent is prohibited from entering the said home until further order. The petitioner and respondent shall each immediately register in the Parenting After Separation Course and each shall immediately file Certificate of Registration with respect to the same. Thereafter each shall attend and complete the course and file Certificate of Completion. Immediately after that both the petitioner and respondent shall register in, attend and complete the High Conflict Parenting Course and file with the court Certificate of Completion. [6] Certificates of Completion at the Parenting After Separation and Divorce Program were filed by both the petitioner and the respondent on September 29, 2010. No Certificates of Completion with respect to the High Conflict Parenting course have ever been filed by either party. Pre-Trial Conference (October 29, 2010) [7] Pursuant to the order of Dawson J., an expedited pre-trial conference was convened by McIntyre J. on October 29, 2010. The result was the negotiation of 13 paragraph Memorandum of Understanding dated October 29, 2010. Twelve of the 13 paragraphs dealt with property matters. The only reference to the parenting of the children was found in paragraph 12, which stated: 12. Pending the reconvening of the December pretrial, the father will have the following parenting time: without prejudice: After school on Friday, November to 7:00 P.M. on Sunday, November 7, 2010 Wednesday November 3, 24 and December 1, 2010 from after school until 7:00 P.M. If the two oldest girls do not have to go to school on November 19, 2010 from November 18, 2010 after school (otherwise on November 19, 2010 from after school) to November 21, 2010 at 7:00 P.M. [8] No formal order was ever issued in respect of any provisions of the Memorandum of Understanding, including para. 12 as it related to the respondent’s parenting of the children on specified days in November 2010. [9] On November 9, 2010, McIntyre J. approved consent order granting the respondent exclusive possession of home located at Buffalo Pound Lake. Reconciliation of the Parties [10] Although the pre-trial conference held on October 29, 2010 was adjourned on the understanding that it would resume on December 3, 2010 to address unresolved issues related to the parenting of the children, that never happened. Instead, on November 10, 2010, the parties reconciled and the pre-trial conference scheduled for December 3, 2010 was cancelled. The parties resumed cohabitation for approximately two years. They separated again on October 11, 2012 with the respondent moving to the home at Buffalo Pound Lake. Order dated November 22, 2012 (Kraus J.) [11] On August 13, 2012 (i.e. two months before the parties separated), the petitioner filed an application for an order “enforcing the interim custody order of Dawson J. of September 28, 2010”. That application was then adjourned sine die to be brought back on seven days’ notice to the respondent. [12] Following their separation in October 2012, the petitioner’s application was brought back and heard by Kraus J., who issued the following fiat dated November 22, 2012: The interim order made September 28, 2010 granted joint custody to the parents of their four (4) children, age 10, and (the twins), with primary residence to the mother, access to the father at reasonable times, no less than every second weekend from Friday evening to Sunday evening, and one evening every week from 5:00 until 7:00 p.m. Following the interim order, the parents proceeded to pre-trial conference on October 29, 2010 where they entered into Memorandum of Understanding, confirming the father’s access on the weekend following the pre-trial conference but somewhat changing weekday access. Subsequent to the pre-trial conference, the parties reconciled and resumed cohabitation on November 10, 2010, staying together and working on their marriage until October 11, 2012 when they separated once again. Hopefully, the parents will reconcile once more. In any event, each parent is loving and capable of meeting all of the needs of the children and they are capable of working out long term parenting plan in the best interests of their children with assistance of counsel or at pre-trial conference. In the short term, on an interim basis only, to ensure stability in the lives of the children in their best interests, the interim parenting order of September 28, 2010, (as modified by the parents in their Memorandum of Understanding), shall remain in effect. [13] Although the Kraus J. order dated November 22, 2012 stated that the interim parenting order of September 28, 2010 had been modified by the parents in their Memorandum of Understanding, as we have seen that Memorandum of Understanding dealt only with specific dates in November 2010 and was entered into on the basis that further pre-trial conference would be held to revise the parenting plan on December 3, 2010. Instead, the parties had reconciled, thereby rendering the Memorandum of Understanding irrelevant to the ongoing parenting arrangements. Additional Pre-Trial Conferences (Schwann J.) [14] The parties continued to engage in their disputes related to the division of family property. After additional applications to the court, pre-trial conferences were convened by Schwann J. on December 20, 2013, February 21, 2014 and March 7, 2014. No settlement was achieved. The property issues remain unresolved and trial dates have not yet been set. [15] Before and after the pre-trial conferences, the parenting arrangements for the children changed substantially. Since December 2012 the petitioner and the respondent have had equal parenting time with all four children during holidays including Christmas, Easter and summer vacation. Commencing immediately after the pre-trial conference convened by Schwann J. in December 2013, the petitioner and the respondent began parenting the children based on two week rotation: in week one, the respondent parented all four children from Thursday after school until Monday morning (extended until Tuesday on long weekends); in week two, he parented all four children from Thursday after school overnight until Friday morning. All holidays continue to be shared equally. [16] T.’s primary residence has been with the respondent since mid-December 2014, period of one and one-half years. She spends every other weekend and, generally, from Friday evening to Monday morning, plus three Wednesday overnights each month, with the petitioner. T. was 12 when she went to reside with the respondent. She will turn 14 next month. [17] On December 14, 2015 K. began residing with the respondent. The event that resulted in that move is described in the petitioner’s affidavit as follows: 22. Our second daughter, [K.] is 11 years of age. 23. On Monday, December 14, 2015, the three youngest girls came home from school. 24. The twins were upset and they wanted to talk to me in private. The three of us went into my upstairs bedroom. They told me at some length about how [K.] and their older sister’s school friends were picking on them. The older girls were insulting and teasing the younger girls. 25. talked to the twins for about ten minutes. 26. After finished talking to them, walked out of the bedroom and discovered that [K.] was standing outside of the master bedroom door listening to my private conversation with her sisters. told [K.] “How dare you listen to our private conversation! You would be really upset if the twins overheard my private conversations with you.” She said nothing in response but her smirk confirmed that she did not care at all about the fact that she had been acting improperly. 28. intended to spank her bum but because of where she was standing, was unable to do this. As result, with an open hand, hit her right arm once. It was not hard hit in any sense of the word. It was designed for discipline purposes only. 29. [K.] did not cry or say anything to me after hit her arm. She was not bruised. [18] The respondent disputes those statements. His affidavit states that K. called him after the argument with the petitioner, that she was “crying and hysterical”, and that she had red bruise on her arm. [19] Whether or not K. was hysterical and/or injured, it is clear that since December 2015 she has primarily resided with the respondent while spending every other weekend with the petitioner from Friday after school to Monday mornings, (extended for school holidays) and overnight (most) Wednesdays. [20] All four children stayed with the petitioner during the Christmas school holiday from December 18 to December 28 and with the respondent for the remaining portion of the holiday (December 28 to January 4). In March 2016 the four children spent the first half of the Easter break with the respondent and the second half of the Easter break with the petitioner. The Current Application [21] On March 28, 2016 the petitioner applied for and received an order abridging the time for the hearing OF this application, which seeks the following order: 1. An order pursuant to s. 23(1)(a) and (e) of The Children’s Law Act and/or the order of Kraus J. of November 22, 20112 [sic] that during the school year the following children, namely:[T. S.] DOB May 30, 2002[K. S.] DOB September 24, 2004[B. S.] DOB January 12, 2007[M. S.] DOB January 12, 2007shall continue to have their interim primary residence with the Petitioner. The Respondent’s specified interim parenting time will be on Wednesdays from 3:20 until 7:00 PM and then alternating weekends starting on Friday April 15, 2016 at 12:20 PM as school ends at 12 noon until Sunday at 7:00 PM. [22] In addition to the order requested in para. of the application, the petitioner has also applied for the following: 2. An order prohibiting the Respondent or any one on his behalf from picking up the children at […] School, […]., Moose Jaw, Saskatchewan, except on his parenting time particularized in paragraph of this Notice of Application; 3. An order determining that the Petitioner shall have the sole interim decision making authority with respect to the said children’s education, including without limiting the generality of the foregoing when they are entitled to go on the […] School and/or […] School Division School Bus; 4. An order allowing the Petitioner interim telephone access while the children are with the Respondent; 5. An order requiring the Respondent to post $5,000 bond in order to insure his compliance with the interim custody order; 6. An order authorizing the Moose Jaw City Police and/or the RCMP to locate and apprehend and deliver the said children to the Petitioner for the purpose of giving the Petitioner interim custody and insuring compliance with the Court Order; 7. An order amending the Style of Cause by changing the Petitioner’s surname from “[S.]” to “[H.]”; 8. An order requiring the Respondent to attend the Parenting After Separation Course and/or High Conflict Parenting Course; and 9. Costs of this application on solicitor/client basis. [23] The petitioner’s application is made on the following grounds: 10. As detailed in the Petitioner’s affidavit of March 27, 2016, the children have had their primary residence with the Petitioner since the separation and/or the said court orders. However, the Respondent has engaged in parental alienation. He is actively encouraging the children to refuse to comply with the court order and follow the Petitioner’s lawful parenting instructions. The […] School has requested directions from the parents as to who has the right to make busing decisions with respect to the children; 12. To the best of her knowledge, the Respondent has never taken the Parenting After Separation Course. The Petitioner has taken both the Parenting After Separation Course and the High Conflict Parenting Course; and 13. The Respondent is currently $8,100 in arrears of child support. [24] The petitioner’s application discloses little about the parenting arrangements in place for the children over the past approximately three and one-half years. It remains unclear why it was filed when it was or why the petitioner applied to have it heard on an urgent basis. However, some explanation may be found in the petitioner’s affidavit supporting evidence, which expresses her belief that the respondent was attempting to influence the twins, B. and M., (now years old) to reside with him. Her affidavit states that the respondent went to pick up the twins after school on Monday, March 21 (it was not his parenting time) and that the twins then refused to go with the petitioner. That same day, the respondent sent her text message which stated, in part: In regards to your previous text about Easter Break, that should work out just fine. The twins have also requested that they want week on, week off going forward with parenting as you had mentioned to them. That’s the best and what would be fair for the girls. So let’s go ahead and do that for the twins following the Easter Break. Therefore, seeing as will have them for the last half of the Easter Break, let me know if you want the first week or the second week after. Monday to Monday, This is the best for the twins. If you don’t reply, will go ahead and plan to have them for the first week after the break. [25] second text was sent by the respondent to the petitioner on March 24, 2016, which stated: The kids wanted to come with us for the first half instead of the second half of the holidays. So as mentioned earlier without response from you to talk about it, you can pick them up Tuesday at supper time at the lake. [26] The respondent’s reply affidavit asserts that the twins do not wish to reside with the petitioner because of her overly aggressive approach to discipline. His affidavit states in part: 30. [B.], [M.] and [K.] have all indicated that their Mother has used physical discipline by striking them. Attached and marked as Exhibit “A” is photo showing what appears to be hand print on [B.]’s upper thigh. [T.] took the picture and sent copy to me. have attempted to address with the Petitioner the fact that the children are concerned about her outbursts of anger and it appears to be why they are wanting to spend more time at my residence. [27] In reply to that, the petitioner’s affidavit states: [30] do not recall bruising [M.]’s thigh. However, will admit that the twins are sometimes exceedingly difficult to parent and/or discipline. On occasion, you have to ask them five times to do simple things like brush their teeth, pick up their clothes and get their bags ready for school. When have used physical discipline on the girls, have never attempted to hurt them but rather was forced to do this in order to get their attention. 10. have no criminal record. The suggestion that engage in repeated physical abuse of the four girls is absolutely wrong. do not have an anger management problem. [28] As noted, this application was filed on March 28, 2016. As result of the order abridging the time for hearing, it was heard in chambers on April 4, 2016. [29] At the time of the hearing, the primary residence of B. and M. remained with the petitioner, and the respondent’s parenting time has remained as it has been since December 2012. Through counsel, the respondent assured the court he does not intend to unilaterally attempt to change that parenting schedule. Positions of the parties [30] Counsel for the petitioner submits that the court should confine the respondent’s parenting of the children to the times set out in the application because the four siblings should remain together. He asks the court to infer from the affidavit evidence that the respondent has been attempting to “alienate” the children, and that the court should therefore make an order specifying that his parenting times with them are to be the times set out in the petitioner’s application. He did not explain why the current parenting plan had not been clearly disclosed in the petitioner’s application or her initial supporting affidavit. Although T. is now almost 14, counsel for the petitioner opposes an order that her wishes be ascertained by way of Voices of the Child Report. [31] Counsel for the respondent takes the position that the parenting arrangements in place for the children represent the status quo, and that they are the result of an agreement reached between the parties. He acknowledges that the petitioner’s application was apparently brought because of her concerns that the respondent is attempting to “alienate” the twins, but states that there is no evidence to support her belief. He notes that the twins’ primary residence remains, and will continue to remain, with the petitioner. Analysis [32] On its face, the petitioner’s application seeks orders “pursuant to ss. 23(1)(a) and (e) of The Children’s Law Act and/or the order of Kraus J. of November 22, 20112 [sic]”. Subsections 23(1)(a) and (e) of The Children’s Law Act, 1997 state: Order restraining harassment 23(1) On application pursuant to this subsection, court may make an interim or final order restraining person from: (a) molesting the applicant or child in the lawful care or custody of the applicant; (e) otherwise interfering with the applicant or child in the lawful care or custody of the applicant. [33] Paragraph of the petitioner’s application asks the court to enforce an order “…that during the school year [all four children] shall continue to have their interim primary residence with the Petitioner. The Respondent’s specified interim parenting time will be on Wednesdays from 3:20 until 7:00 PM and then alternating weekends starting on Friday April 15, 2016 at 12:20 PM as school ends at 12 noon until Sunday at 7:00 PM.” [34] Paragraph 10 of the application states: 10. As detailed in the Petitioner’s affidavit of March 27, 2016, the children have had their primary residence with the Petitioner since the separation and/or the said court orders. However, the Respondent has engaged in parental alienation. [35] To obtain the order she seeks, the petitioner must demonstrate that the primary residence of all four children is with her and that they are in her lawful custody or care except as set out in para. of her application, i.e. except for Wednesdays from 3:20 p.m. to 7:00 p.m.; and alternating weekends from Friday at 12:20 p.m. until Sunday at 7:00 p.m. [36] It is apparent from the petitioner’s own evidence that this has not been the reality for the last three and one-half years with respect to equal parenting time during major holidays; for the past two and one-half years with respect to alternating weekends and weekday overnights; for the past one and one-half years with respect to the primary residence of T., and the past four months with respect to the primary residence of K. Only the primary residence of B. and M. has remained with the petitioner since 2010 subject to the respondent’s parenting time as outlined above. [37] What the petitioner is actually seeking is an order that the children should be in her lawful custody or care except for the times set out in her application. This means that the purpose and intent of her application is to obtain an order eliminating the parenting arrangements that have evolved for the children in manner that would change the primary residency of T. and K., and severely restrict the respondent’s parenting time with all four children. [38] In his order dated November 22, 2012, Kraus J. found that “each parent is loving and capable of making all of the needs of the children”. He stated his belief that both parents were capable of working out long term parenting plan in the interests of the children. Based on that belief, he made it clear his order was intended to be applicable “in the short term, on an interim basis only, to ensure stability in the lives of the children”. His expectation was that the petitioner and the respondent would adjust their parenting responsibilities in an appropriate manner. The evidence is clear that over time they have done exactly that. [39] If any of the current arrangements were unacceptable to the petitioner (or “imposed” upon her, as she claims), she had ample time and opportunity to oppose them. review of the pleadings and proceedings demonstrates that her practice has been to file applications quickly, and (as again on this application) to seek orders abridging the time to have them heard on short notice. [40] Given the length of time that both parents have had equal parenting time with the children during holidays and that the primary residency of T. and K. has been with the respondent, I find it mostprobable that the current status quo evolved – not because of “parental alienation” on the part of the respondent, but by the agreement of the parties. [41] These findings of fact are based on the affidavit evidence. Some facts (especially those relating to the petitioner’s approach to disciplining the children) are contentious. make no findings of fact on those matters but simply refer to the information to provide context to the issues. Conflicts can be resolved at trial. [42] That said, K.’s situation requires special consideration. She has primarily resided with the respondent for only four months. She is only 11 years old, not old enough to be making decisions that would have her moving her primary residency back and forth from one parent to the other whenever she chooses or problems arise, as they inevitably will. My determination that her primary residency is with the respondent is not in any way intended to fetter different conclusion based on evidence that may be available at trial. [43] The question is what, if anything, should be done now to further the best interests of the children? Certainly, it will not be to grant an order of the kind sought by the petitioner. The respondent has not brought formal application to change the previous interim order indeed, given the short notice, he had little opportunity to do so. One option would be to adjourn the petitioner’s application to enable that to be done. There is no reason to believe that the children would be at any risk in the meantime. [44] However, in my view, an adjournment at this point would simply add to the time and cost of dealing with the problem to no particular end: it would add nothing to the court’s understanding of the circumstances, and it would leave the children in continuing state of uncertainty. It would also be inconsistent with the purpose and intention of the foundational Queen’s Bench Rules, the first of which are set out in Rule 1-3, which states: 1-3(1) The purpose of these rules is to provide means by which claims can be justly resolved in or by court process in timely and cost effective way. (2) In particular, these rules are intended to be used: (a) to identify the real issues in dispute; (b) to facilitate the quickest means of resolving claim at the least expense; [45] The other alternative will be for the court to respond to the purpose, intent and substance, rather than to the form, of the petitioner’s application. As have found, although the application, on its surface, is cast as request for restraining order under s. 23 of The Children’s Law Act, 1997, it is, in reality, an application for an order substituting completely different parenting regime for the children than the one that has evolved and is in place by agreement. will respond to it for what, in substance, it is. [46] In Guenther Guenther (1999), 1999 CanLII 12554 (SK QB), 181 Sask 83 (QB), case dealing with competing applications for interim custody of five year old child, Laing J. stated: 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. [47] After citing additional authorities to the same effect, Laing J. stated: It appears from the foregoing case law, it constitutes an error in principle, and 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. [Emphasis added] [48] court order recognizes the status quo. Following court order, status quo may be changed by agreement of the parties and if the new arrangement serves the best interests of the children, it will be recognized by the court. In Gebert Wilson, 2015 SKCA 139 (CanLII), 467 Sask 315, Ryan-Froslie J.A. stated: 11 First, the principle expressed in Guenther does not displace the legislative requirement enunciated in both the Divorce Act, RSC 1985, and The Children's Law Act, 1997, SS 1997, C-8.2 that in making decisions with respect to parenting arrangements, the paramount consideration is the best interests of the child. In our view, the principle itself is rooted in that paramount consideration. It recognizes that changes in custody and primary residence have profound effect on children altering their day to day home environment, their routine, their contact with important people in their lives including caregivers, siblings, extended family and friends and may result in change of school and activities and thus, generally should not occur on an interim or temporary basis as final resolution may result in such change being reversed with all of the same attendant disruptions to the child. 12 Second, the principle applies generally to changes in custody and primary residence, as opposed to changes in access. In Guenther, while Laing J. refused to change the child's custody on an interim basis in the face of the parent's written agreement, he did increase the mother's parenting time with the child. Usually, changes in access will not have the same profound effect on child as changes in custody or primary residence. 13 Third, the principle recognizes that the status quo may be changed on an interim basis if there is compelling reason to do so, or if the child is at risk. That is how this Court interpreted Guenther in the recent case of Napper-Whiting Whiting, 2014 SKCA 33 (CanLII), 433 Sask 235. That case involved the appeal of an interim order which changed primary residence of child from the mother to the father. Herauf J.A. speaking for this Court quoted with approval para. of Guenther, and then stated the following in reference to that paragraph: [4] We wish to reiterate that this is the appropriate test for applications of this nature. In this particular appeal we find that the Chambers judge failed to find that the child was "in some way at risk, or other compelling reason..." [Emphasis in original] In short, risk to the child is not the only reason for varying the status quo on an interim basis. 14 Finally, we feel it is necessary to comment on what constitutes the status quo for the purpose of applying the principle. All of this must be considered against the backdrop of what is in the best interest of the child, including the relationship that the child enjoyed with both parents prior to the separation. [49] Counsel for the petitioner argues that the current status quo should be altered because siblings should have their primary residence with the same parent. On the facts of this case, where the primary residency of two children is with each parent, that argument is as favourable to the respondent as it is to the petitioner. In any event, the judicial authorities are clear: keeping siblings together is an important but not determining factor in custody applications. Where there is successful de facto situation and the children have stable homes, it may be appropriate to separate them. Conclusion [50] Applying the above principles to the situation before me, I have decided that the status quo should continue and that the parenting issues should proceed to trial as quickly as possible. [51] Accordingly, it is hereby ordered: 1. The petitioner and the respondent shall continue to have interim joint custody of the children of the marriage; 2. The primary residence of B. and M. shall be with the petitioner, while the primary residence of T. and K. shall be with the respondent; 3. The respondent shall have parenting time with B. and M. as follows: a) On the alternating weekends when he is parenting T. and K. from Thursday after school until Monday morning, to be extended to Tuesday when Mondays are school holiday; b) Every other week from Thursday after school until Friday morning; c) For one-half of all Christmas, Easter and summer holidays. 4. The petitioner shall have parenting time with T.: a) on alternating weekends from Friday after school until Monday morning, to be extended until Tuesday morning when Monday is school holiday; b) three overnights each calendar month from Wednesday after school until Thursday morning; and c) for one-half of all Christmas, Easter and summer holidays. 5. The petitioner shall have parenting time with K.: a) on alternating weekends from Friday after school until Monday morning, to be extended until Tuesday morning when Monday is school holiday; b) one overnight every week from Wednesday after school until Thursday morning; and c) for one-half of all Christmas, Easter and summer holidays. 6. Each party shall be entitled to pick up and drop off the children at school at the beginning and end of their respective parenting times; 7. By consent, the style of cause in these proceedings shall be amended by changing the petitioner’s surname from “S.” to “H.”; 8. The petitioner and the respondent shall each immediately register in and complete the High Conflict Parenting Course and file with the court Certificate of Attendance within 60 days; 9. Pursuant to Rule 4-4 of The Queen’s Bench Rules, the parties are directed to attend pre-trial management conference with the court for the purpose of expediting trial of the parenting issues between the parties, if necessary by severing them from the unresolved family property issues. [52] There will be no order as to costs.
Family Law – Custody and Access – InterimThe petitioner and the respondent had four children during the course of their marriage. They separated in 2010 and the petitioner applied for interim orders, including arrangements for the parenting of the children. The court made an interim order that the parties would have joint custody with the primary residence of the children to be with the petitioner. The respondent would have access at reasonable times and on every other weekend. The parties reconciled for two years but then separated again. In 2012 the petitioner applied for an order enforcing the 2010 interim custody order. At that application, the court found that both parents were capable of parenting, but in the short term it confirmed terms of the 2010 order. A number of pre-trial conferences were held without resolving matters, and during that time, the parenting arrangements changed substantially. The oldest child began residing with the respondent in December 2014. In December 2015, the second oldest child began residing with the respondent. They stayed with the petitioner on alternate weekends. The applicant then brought this application for an order pursuant to ss. 23(1)(a) and (e) of The Children’s Law Act and pursuant to the 2012 court order, confirming the original interim order that the four children of the marriage have their interim primary residence with her and that the respondent have specified parenting time on one day each week and alternating weekends. The petitioner alleged that the respondent was attempting to influence the two youngest children to reside with him. HELD: The court ordered that the status quo parenting arrangement should remain in place until trial. In this case, the status quo was not the arrangements as they had been in 2010 and in 2012. The court found that the arrangements had evolved since the 2010 order by agreement of the parties and the changes had not occurred because the respondent was attempting to alienate the children from the petitioner.