QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 251 Date: 2006 05 26 Docket: F.L.D. No. 45/2004 Judicial Centre: Moose Jaw, Family Law Division BETWEEN: GREGORY MATHEW KUNTZ and CATHERINE LEE HOGAN and JEAN MARIE OSBORNE RESPONDENTS Counsel: Brock R. Craik for Gregory Mathew Kuntz Lyle O. Phillips for Catherine Lee Hogan Lynda D. Bordessa for Jean Marie Osborne JUDGMENT SANDOMIRSKY J. May 26, 2006 [1] Hayley is seven years old. In this action each of her father, mother and maternal grandmother compete for some form of custody over Hayley. The father petitions for sole custody of his daughter, while each of the mother and maternal grandmother independently seek joint custody with the father. Hayley’s mother seeks to be designated as her daughter’s primary caregiver. She resides in different city than Hayley’s father. Hayley’s maternal grandmother seeks to co-parent along with the father. The case becomes complicated inasmuch as, since the commencement of these proceedings, each of the parties and their extended families have chosen to relocate from the City of Moose Jaw. [2] For the purposes of this judgment shall refer to the petitioning father as “G. K.,” to the respondent mother as “C. H.,” and to the maternal grandmother as “J. O.” ABOUT THE PETITIONER [3] G. K. is 26 years old. He works as carpenter in house framing business which his father established in January 2006 at the City of Calgary. Both G. K.’s father and G. K. advise the Court that they will relocate their respective families to the City of Calgary. G. K. and his father testified that the business opportunities for them are unlimited in Calgary, whereas the same cannot be said about the opportunity to earn their livelihoods in Moose Jaw. This opportunity is borne out by the fact that G. K. estimates his annual income in 2006 will increase fivefold to about $60,000.00. He has previously earned $12,000.00 per annum or less. [4] G. K. has worked in Calgary since January 2006. He works three weeks straight and then returns to Moose Jaw for one week. He proposes to find home to rent in Calgary and thereafter relocate his family during the summer. G. K. spent four years of his own childhood residing in the Wildwood neighbourhood of south Calgary. It is here that he hopes to find home which he could afford to rent. G. K. testified that an average home would cost about $350,000.00 which is beyond his present financial ability. The Court has no other facts before it relating to the physical aspect of where Hayley might reside or go to school if she moves with her father to the City of Calgary. [5] G. K. met C. H. when he was 19 and she was 16 years of age. Hayley was conceived after they began to cohabit with one another and the birth was one year into their relationship (April 2, 1999). G. K. and C. H. lived together for approximately four and one-half years. During the latter stages of their cohabitation they argued with one another. After particular altercation in which each became physically combative with the other, C. H. left Moose Jaw and went with Hayley to reside in Nova Scotia. C. H.’s mother, J. O. resided in the Dartmouth region. One month after her move, C. H. telephoned G. K. to advise that she and Hayley would be remaining in Nova Scotia. [6] Thereafter, G. K. fathered second child. Little evidence was provided to the Court about this child. Only under cross-examination did this child’s existence become known to the Court. G. K. is under an order to pay $250.00 per month in child support. He has been habitually in default of payment. G. K. admitted to having paid some small amounts toward this obligation. In the months of April and May of this year the Maintenance Enforcement Office has effected collection. [7] G. K. testified that he married his present wife, Patricia, one and one-half years ago. They have child, Mathew, who was born March 9, 2005. G. K. and his wife are expecting second child on or about July of this year. It is their intention to have the baby born in Moose Jaw and to allow Hayley to complete school before effecting move to Calgary. When this child is born, the petitioner will have four children for whom is financially responsible. [8] G. K. advised the Court that one month after Hayley and her mother moved to Nova Scotia he was accustomed to receiving two telephone calls week. The frequency of those telephone calls soon diminished to once per week and then he lost contact with C. H. There was no evidence given that G. K. travelled to Nova Scotia at any time to see his daughter. [9] At Christmas of 2003, G. K. testified that he received telephone call from C. H. He also testified that his own mother had been advised by J. O. that she was contemplating move from Nova Scotia to Moose Jaw and further, that she had been raising Hayley for some time. [10] In March 2004, J. O. and Hayley came to reside in Moose Jaw. This move contravened provision of consent order granted to J. O. and her husband, Ken, by the Supreme Court of Nova Scotia (Family Division) on November 27, 2002. The order prohibited the removal of Hayley from the Province of Nova Scotia without the written consent of C. H. or an order of court of competent jurisdiction. Following the March move no evidence was given that C. H. sought the assistance of the Nova Scotia courts. [11] G. K. testified that J. O. and Hayley initially stayed in his parents’ home. He further testified that he believed that J. O. would stay on in Moose Jaw to allow Hayley to adjust and eventually settle in with him. He believed that J. O. and her spouse would then move on and pursue their respective vocations as long-distance truck drivers. Three weeks after her arrival in Moose Jaw, J. O. obtained her own apartment. By then Hayley was being cared for by J. O. during the daytime when G. K. was working. In the evenings and at night, Hayley was in her father’s care. G. K. said that he received no contact nor word from C. H. during this time period. This arrangement for Hayley’s care worked for short while and then one day in June of 2004, G. K. received telephone call from Ken in which he advised “Don’t come and pick up Hayley.” [12] G. K.’s response was to first telephone the Moose Jaw Police Service. They advised that they could do nothing without court order. G. K. then approached the Department of Community Resources and Employment (“DCRE”) who in turn advised him to “go to court.” Despite this advice, G. K. and his father went to the apartment of J. O. to retrieve Hayley. The police and the DCRE official were soon summonsed to the premises. Hayley was turned over to G. K.’s care. These proceedings were commenced by G. K. at J. O.’s behest. J. O. believed that C. H. might come to Moose Jaw and take Hayley back. J. O. further believed that C. H. was involved with drugs, theft and was then living in slum area of Halifax. [13] This action was commenced July 5, 2004. G. K. testified that things have not been good since. [14] This Court granted an interim order on July 12, 2004, which provided for the “status quo in regard to Hayley which involves the child residing with G. K. and with J. O. having access to the child on Tuesday at 8:00 a.m. to Wednesday at 5:00 p.m. of each week, plus telephone access each Friday and Sunday at 6:00 p.m.” [15] second order issued from this Court on December 7, 2004, providing to J. O., access to Hayley at Christmas (December 26, 2004 to January 1, 2005). This permitted Hayley to be taken to Edmonton to see C. H. From this order it became apparent that C. H. had relocated from Nova Scotia to the City of Edmonton. [16] third order issued from this Court on February 14, 2005, with the consent of all parties. This order again continued the “status quo with Hayley residing with G. K. until further order of the Court.” The Court ordered that custody/access report be prepared and that the proceedings would be adjourned sine die returnable upon 14 days’ notice. [17] fourth order issued from this Court on August 8, 2005, with the consent of all parties. It permitted J. O. to again take Hayley to Edmonton or Cold Lake, Alberta between August and August 29, 2005 for the specified purpose of Hayley visiting with C. H. [18] The need for these orders is indicative of G. K.’s characterization of his relationship with J. O. and the virtually non-existent relationship he had with C. H. Indeed, the evidence at trial spoke of complaints made to DCRE and to the police. Upon preliminary investigation, each of those complaints was found to be baseless. Hayley found herself in the middle of the family’s conflicts and was told far too much about the Court proceedings and judges deciding her future. For example, J. O. advised Hayley that in so many weeks or days “you will be going to live with your mom.” In the month preceding this trial, Hayley’s anxiety and stress increased to the point where she would vomit and act out at school. Her ability to concentrate at school and interact with classmates was compromised. The Court observed the family members who testified exhibited varying degrees of understanding as to how aware and intuitive seven-year-old can be. There was little appreciation of the psychological burden that child like Hayley would bear when adults behave indiscriminately. [19] G. K. testified that the night before the trial Hayley called him “Greg” for the first time. When he protested to Hayley, she responded by saying, “I am going to go and live with mom anyhow.” [20] G. K. presented in Court as soft-spoken. He maintained mild manner and composure throughout his testimony. find G. K. has his limitations and has not yet fully matured. However, G. K. was quite emphatic that J. O. was demanding authority in Hayley’s upbringing and as such she was major problem for himself and indirectly for Hayley. G. K. testified that Hayley was disruptive and often disobedient after her weekend visits with J. O. He testified that Hayley told him that grandma smokes her “special medicine” and that he believes J. O. uses marihuana on regular basis. In her own testimony J. O. did not deny using marihuana daily, but only after Hayley was asleep and never in sight. G. K. says he has no effective communications with either of the respondents, J. O. or C. H., and information is generally passed through his wife Patricia or through his own mother and on to himself. G. K. stated that he cannot think of any reason why J. O. and C. H. would not communicate with him directly. [21] G. K. testified that he and his wife have agreed that she would be the homemaker for the foreseeable future. It is his hope to have his family move to Calgary this summer such that Hayley could commence school in the same locale as he attended. G. K. repeatedly stated that C. H. can exercise access on weekends and take Hayley to Edmonton. He stated that he has never objected to Hayley visiting her mother and court orders to that effect bear out his consent. [22] G. K. emphasized to the Court that he has had Hayley under his care since March of 2004, now period in excess of two years. [23] G. K. is presently residing in an apartment with his father in the City of Calgary. His own mother lives in Moose Jaw and is presently taking upgrading classes at SIAST. G. K. has two brothers and one sister living at home with their mother and attending school. He has another brother who is age 24. This makes G. K. the eldest of the five children at age 26. G. K.’s mother and father each testified on behalf of their son. Their intentions are to relocate the entire family to Calgary next year when the children have finished highschool. In the meantime, G. K.’s father will seek out the prospects of new family home in that city. [24] G. K. described Hayley as healthy seven-year-old with no learning disabilities. He believes they share good relationship. Hayley plays well with her friends. He further believes that he is the more stable of Hayley’s parents and that his wife Patricia has similar stable qualities. For these reasons G. K. believes that his daughter should be in his custody. [25] It is clear that since January 2006, the principal responsibility for parenting Hayley has been met by G. K. and his wife Patricia. G. K. is only home one of every four weeks. If one allows two days for travel, in reality he is with Hayley about five of each 28 days. Next to Patricia, J. O. is the most constant adult in Hayley’s life. Hayley resides two days of each week with J. O. being Tuesday and Wednesday when J. O. is not working. If G. K. succeeds in relocating his young family to Calgary, the major responsibility for the three children will be Patricia’s. [26] G. K. proposes that, if he is successful in being awarded custody, J. O. should exercise access in conjunction with the times that Hayley would be with her own mother, C. H. He opposes the Court awarding J. O. independent access. At present, C. H. is residing in Cold Lake, Alberta, with her own father—an Air Force mechanic. Inasmuch as J. O. and her husband Ken propose to move to Edmonton next month (June 2006), G. K. says that both J. O. and C. H. are sufficiently proximate, one to the other, that they can share Hayley’s time when they are together. G. K. is adamant that J. O. assume more traditional and secondary role in Hayley’s life. [27] G. K. described to the Court an incident where, after purchasing new bicycle for his daughter, she disobeyed his rules and ventured to local gas station. He therefore punished or grounded Hayley by sending her to her room. He also took away some of her toys during this period. Hayley may have exaggerated or perhaps misled J. O. when she described this incident to her grandmother. Her report alarmed J. O. leading her to withhold Hayley’s return. G. K. testified that he and J. O. have had mutual dislike for each other ever since that event occurred in June of 2004. [28] James Kuntz, G. K.’s father, testified that J. O. called Moose Jaw in the spring of 2004 and advised he and his wife that she, J. O., was struggling financially with Hayley in her full-time care. The Kuntz’s supported the prospect of Hayley and J. O. moving to Moose Jaw. When this move occurred, Mr. Kuntz says that Hayley went to G. K.’s home immediately. He recalls J. O.’s plan was to go trucking with her husband Ken. He further testified that J. O. smoked marihuana in his garage and that he disapproved of that fact. [29] Mr. Kuntz further described his granddaughter as wonderful, normal seven-year-old who seems happy. He said Patricia was careful not to confuse Hayley as to her role as stepmother. However, he stated that Patricia acts very much like mother to Hayley. [30] Mr. Kuntz further recalls that in June of 2004, when J. O. withheld Hayley from his son, that J. O. advised that they would see Hayley when it suited her purposes and that if they did not like that, that was tough. Consequently, Mr. Kuntz and his son attended J. O.’s apartment to take Hayley back by force. He described change in the attitude of J. O. from that point on as though she became “two different people.” Mr. Kuntz said that J. O. told him she was facing custody battle in Nova Scotia with her daughter C. H. and therefore thought that it was wiser to get out of the province to avoid those proceedings. Mr. Kuntz was also candid in advising the Court that he observed Hayley to share real love with her grandmother, J. O. [31] Patricia Kuntz testified on G. K.’s behalf. She described their apartment as being two and one-half blocks from Hayley’s school. Hayley now attends Grade 1. Patricia testified that Hayley is rambunctious and talkative child. Hayley has normal appetite and does well in school with reading level of two. She stated that there is room for Hayley to improve upon her social skills. [32] Patricia has sister in Moose Jaw but no family in Alberta. She confirmed that Hayley does not listen after spending weekends with J. O. and that it is hard for Hayley to listen. She described to the Court Hayley’s episodes of vomiting in the last couple of weeks. Patricia states that Hayley will now call her “Mom” on an on and off basis. She advised that last summer Hayley was told by both C. H. and J. O. that she was not to refer to nor call Patricia, “Mom.” Patricia says that Hayley misses her father when he is away working and becomes excited when she knows that he is returning home. [33] Patricia advised the Court that Hayley talks about these court proceedings. Patricia tries to avoid such discussions but says that after each weekend when Hayley is with J. O., she is reminded of the fact of these proceedings and that it “bugs her.” Hayley quotes J. O. telling her of talks that she has with the lawyer. [34] Patricia further testified that Hayley plays well with Mathew and is patient with him. She stated that the Kuntz family are very helpful and supportive. [35] Patricia Kuntz is 23 years old and highschool graduate. After working at Sears for four years she then applied for student loan and hoped to return to school. However, her pregnancy with Mathew put her academic plans on hold. [36] Under cross-examination Patricia acknowledged that in the five years that she has known G. K. they did separate for period of 10 months to one year. In that time frame Patricia acknowledges that the petitioner, G. K., fathered another child. Patricia also acknowledged that the school asked G. K. and herself to remove Hayley from their lunch program as Hayley was not listening to the teachers who supervised. They felt Hayley lived close enough to the school that she could take her lunches at home. [37] observed Patricia as mild-mannered person and somewhat submissive in her present role. This may be an asset given the responsibility placed upon her and with the birth of child pending. Patricia advised the Court that she and J. O. try to be “overly polite” to one another and that they are able to converse reasonably well. [38] Geraldine Kuntz, the petitioner’s mother, testified that she intends to move to Calgary next year once her own daughter graduates from highschool. Mrs. Kuntz describes Hayley as sweetheart but “a little mixed-up lately.” She attributes this to unnecessary information being given to the child about this court case. She quotes Hayley as saying that J. O. tells her she does not have to listen to Patricia and that her dad is liar. In the past two years Mrs. Kuntz observed that Hayley has become more manipulative and definitely is having some social problems. She says Hayley thinks her dad disciplines her too much. [39] Mrs. Kuntz opined that neither of Hayley’s parents have had chance to parent Hayley without interference from J. O. She also feels that Hayley has been hard on Patricia. She believes Patricia “doesn’t have wicked bone in her body” and that Patricia “does not like conflict.” Therefore, Mrs. Kuntz is of the opinion that all of this has been tough on Patricia. [40] Under cross-examination Mrs. Kuntz expressed the opinion that C. H. is “loving mom—though little mixed-up at times.” She further opined that for young kids her son and C. H. did fine parenting. She still considers C. H. as daughter. ABOUT HAYLEY’S MOTHER [41] C. H. is 24 years old. She resides with her father at Cold Lake, Alberta. Her father is employed with the Canadian Forces as an aircraft mechanic. C. H. advised that her father may be posted to the Air Force Base at Moose Jaw, Saskatchewan or be reassigned to Cold Lake, Alberta. This posting may occur at any time. C. H. says that her father has multiple health problems which require her to live with him. Therefore, C. H. is uncertain where she and her father may be residing in the immediate future. No evidence was provided by C. H. as to how she would care for Hayley if she is to be the custodial parent other than the fact that she and her father reside in four-bedroom duplex located about one mile from the nearest school. [42] C. H. is bartender at local steak house in Cold Lake and her hours of work are from 2:00 p.m. until 10:00 p.m. as certainty. She may work later until the establishment closes. No evidence was provided to the Court about daycare, babysitting, her father’s hours of work, or how C. H. proposes to provide for Hayley’s care around her own work schedule. [43] C. H. told the Court that she met G. K. about October or November of 1997. She would have been 15 years old at that time. She testified that she and G. K. were couple for four and one-half years. They had their first separation in the summer of 2000. C. H. stated that G. K. was seeing someone and this brought about that separation. Therefore, C. H. went to Halifax with Hayley when the child was one year old. C. H. and G. K. did reconcile for 11 months before their final separation in late 2001. Again, C. H. blames G. K.’s infidelity as the cause of this final separation. She told the Court that she sold her household goods and once again took her child to Halifax where she could reside with her mother. She found employment at sandwich shop. [44] C. H. advised the Court that she and her mother have always had complicated relationship, especially when her mother cohabited with Ken, her present stepfather. By April of 2002, C. H. found herself in dire straights. She testified that she had been working at service station, had significant financial problems, became depressed and fell into the company of “bad crowd.” These circumstances culminated in C. H. being charged with possession for the purpose of trafficking and fraud. Realizing that she had bottomed out, C. H. turned to her mother in April of 2002 and asked her to take care of Hayley. “I wasn’t going to take Hayley for rough ride” are C. H.’s words. J. O. accepted Hayley in the circumstances. J. O. and her husband Ken formalized their status as Hayley’s custodians by receiving an order of the Nova Scotia Court on November 27, 2002. [45] C. H. received conditional sentence which expired uneventfully last year. She found better employment and income. She moved to better area of the City of Halifax. Then she consulted counsel in her quest to have Hayley returned to her own care and custody. By this point in time Hayley had been in J. O.’s care for the better part of two years. C. H. then testified that on or about March 2004, she telephoned her mother to advise that she was pregnant with second child. In this telephone call she was to find out that J. O. and Hayley had recently left Halifax despite the existing court order which prohibited Hayley’s removal from that province without consent or court order. C. H. did not know the whereabouts of Hayley until June 2004. She spoke with her daughter in the following month of July and for the first time with J. O. in September. [46] C. H. was advised that the baby she was carrying had congenital heart problems. In order to receive specialized treatment for the baby, C. H. was required to move to Edmonton, Alberta. This move occurred October 16, 2004. C. H. told the Court that at this point in time her relationship with J. O. was becoming more civil. On November 8, 2004, C. H. delivered daughter, Sarah. Tragically, this infant was to spend her short lifetime in hospital and experienced surgery and stroke before succumbing in January 2006. C. H. remained with her baby throughout the child’s 14‑month life. J. O. and Hayley were to visit C. H. and the baby at the Edmonton hospital with the consent of G. K. C. H. also saw Hayley at Easter of 2005, at the time of the pre-trial conference in these proceedings and for period of three to four weeks in the summer of 2005. [47] C. H. testified that she moved to Cold Lake, Alberta, in February 2006 where she and her father share four-bedroom duplex located on the Air Force Base. C. H. filed financial statement with the Court during the trial in which she disclosed her expectation of earning $10,000.00 plus gratuities in this current year. C. H. presently works seven days week. [48] C. H. described Hayley as bright but mixed-up child. She notices big differences in her daughter and opined that Hayley’s social development is slower. She says that Hayley rushes through her homework and therefore experiences problems. She stated that Hayley may not pass her school this year and that her behaviour has become disruptive in the classroom. She further testified, candidly thought, that the conflict between the parties of this past two years is major causal factor of Hayley’s problems. She further opined that Hayley was “thrust into G. K.’s house after an absence from him of four years.” She also feels that Hayley, being shuttled between G. K. and J. O.’s homes together with information overload about the Court and her future, has impacted negatively upon Hayley. Hayley hears conflicting stories about her future and C. H. feels that this creates stress for her daughter and makes her sick to her stomach. C. H. opined that the blame must be shared by all the parties to this action and concluded this opinion by saying to the Court “maybe we tried to do the best for her but it’s not working.” C. H. sees Hayley as acting out and stressed. She feels that Hayley is bit of hypochondriac, which may just be her way of getting attention. C. H. feels that Hayley is having more bad moments than better. However, the Court is cognizant that C. H. has had very limited opportunity to observe Hayley in the past two years and therefore finds that some of C. H.’s opinions are speculation. [49] C. H. admitted to her dope problem when she resided in Nova Scotia. She advised the Court that she never did hard drugs, just dope, and sold dope. She described that period of her life as “having two different lives, one with Hayley and the other with bad people.” C. H. completed her 18-month conditional sentence with drug screens. She has been clean since her arrest in 2003. [50] If awarded custody, C. H. would permit J. O. and G. K. regular access in Calgary or Edmonton. She stated at this point in her evidence that she too might move to Calgary or Edmonton. The Court must assume, given that her father has five years to his retirement and with C. H.’s testimony that she will live and watch over her father, that any plans for C. H. to move to Calgary or Edmonton are long-term and of no consequence to these proceedings. [51] C. H. admitted in cross-examination that based upon comments which Hayley made to her about G. K.’s discipline, that it was she who made three complaints to DCRE alleging concerns of possible child abuse. These were found to be baseless as have mentioned earlier. ABOUT THE MATERNAL GRANDMOTHER, J. O. [52] J. O. filed counter-petition in which she seeks joint custody consistent with the plan she formulated in March 2004 contemplating her return to Saskatchewan with Hayley. J. O. seeks to co-parent Hayley given the fact that she has been custodial caregiver of the child between April 2002 and April 2004. Further, she has had Hayley in her care for two days week from April 2004 to the present. However, during her testimony and upon hearing J. O.’s counsel in argument/summation, it is now J. O.’s position that she does not seek joint custody standing. J. O. now seeks an order of this Court granting her specified access. She seeks this relief to ensure continuity in her relationship as grandparent to Hayley in these unique circumstances. J. O. is not content to have access determined at the whim or caprice of her daughter or G. K. [53] J. O. is 45 years old and has been married to Ken for 15 years. Ken has just changed vocations. He was long-distance truck driver until earlier this year. However, he has now taken safety course to work on the oil rigs. He is employed at such rig near Medicine Hat. [54] J. O. is licenced to drive semi-tractor and trailer unit. However, since her residency in Moose Jaw, her most recent employment has been as bartender at private club. She is presently unemployed and advised the Court that she and Ken plan to move to Edmonton at the end of June 2006. [55] J. O. described the events of 2001 in which Hayley moved to Nova Scotia and eventually came into her care. She described in some detail the difficulties that she had with C. H. as child and more particularly in the year 2001. She testified that she felt compelled to order C. H. out of her home in September of 2001. She delivered her daughter and granddaughter to homeless shelter in Halifax. J. O. continued to care for Hayley after her work was completed each day. She described to the Court that in April 2002, C. H. presented J. O. with an ultimatum—take Hayley or have the child placed in foster care. She opted for the former and quit her job to become Hayley’s full‑time caregiver. Daycare was too expensive an option for J. O. at that time. It is clear that J. O. became Hayley’s surrogate mother and that C. H. had marginal involvement in the child’s life as she succumbed to her dark period, 2002-2003. J. O. had no contact with G. K. though she testified she may have called Mr. and Mrs. Kuntz from time to time. J. O. is insistent that neither G. K. nor his parents provided any form of assistance for Hayley during that two-year period. Thus it came to November 2003 when the Osbornes found themselves in serious financial difficulties. J. O. decided to telephone Mr. and Mrs. Kuntz to express her concern that she could not shoulder the financial burden of Hayley on her own. She proposed that it was time for G. K. to assume some responsibility for the care of Hayley. To that end, she advised she would consider moving to Moose Jaw with Hayley to integrate the child into her father’s life and to accommodate the process. J. O. says she consulted with the Department of Social Services in Nova Scotia in January 2004 with respect to her move. They recommended court application to approve Hayley’s relocation. J. O. opted to move without notice to C. H. though she claims that she did advise the local police that she would be moving. The move was effected in March 2004 with the understanding that J. O. and G. K. would co-parent Hayley for approximately one year. Following this integration G. K. would assume full responsibility for Hayley. At that point J. O. and her husband planned to go trucking together on full-time basis. To help Hayley familiarize herself with G. K., J. O. played videotape which was prepared by G. K. and his parents. She played the tape on numerous occasions prior to her move. She then said that after few days in Moose Jaw, Hayley began spending increasing amounts of time with G. K.—particularly when he was not at work. J. O. would care for Hayley while her father was at work. This arrangement persisted until on or about June 15 of 2004. On that date J. O. says that Hayley reported to her that G. K. had thrown her onto bed after he got mad at her. She took Hayley to doctor and then to social services. She refused to return Hayley to G. K. until the matter was investigated. However, that evening J. O. described that G. K. and his father came to her apartment. She stated they hollered “call the cops” and asked Hayley “who do you want to live with?” The scene intensified with the attendance of the police and social services worker. J. O. advised that the police and social services worker decided that since J. O. was in breach of the Nova Scotia Court order that Hayley should go to her biological father until matters were formally resolved. J. O. says she did not lodge further complaints with DCRE. The evidence reveals that those further complaints were made at the instance of C. H. who herself was in contact with J. O. J. O. made one visit to seek the assistance of the Moose Jaw Police Service at the end of June 2004 for the purpose of finding out if Hayley was alright. [56] The Court then granted J. O. specified access from 8:00 a.m. Tuesday to 5:00 p.m. Wednesday, days when J. O. was not working. J. O. also received an order for telephone access with her granddaughter. Hayley began kindergarten in the fall of 2004. J. O. would drive her to school on her access days. Then access days were switched to Saturday at 8:00 a.m. concluding Sunday at 5:00 p.m. with telephone calls between J. O. and Hayley on Tuesday and Thursday evenings. [57] J. O. acknowledged that she told Hayley that judge would decide where Hayley would live. J. O. believes that Hayley is mature for her age and that it is wrong to lie to the child. She felt Hayley should know some things. She also observed change in Hayley’s behaviour and shares the same opinion as C. H. that, Hayley, being an only child, now competes for attention at school and at home. [58] J. O. acknowledged her regular use of marihuana. She says that she has smoked dope for years but never in Hayley’s presence. She advised the Court that her spouse Ken has big problem with Hayley calling Patricia “Mom.” She does not share this problem, as long as Hayley appreciates that C. H. is her real mother. [59] J. O. testified that she is now proud of C. H. She says that her daughter has matured and does an “awesome job” with Hayley. Accordingly, J. O. wants to enjoy grandmother-granddaughter relationship but with specified access because she believes that, with the history of raising Hayley, she is not typical grandmother. She wishes to see Hayley once or twice month and advised that she would accommodate such access by driving to and from Calgary. J. O. seeks couple of days of access during the Christmas break, excluding Christmas Day or Boxing Day. She also stated in her testimony her desire to have Hayley visit for one or two weeks in the summer as well as having regular telephone access. J. O. justifies her request to the Court as allowing Hayley to know that her grandparents “are still there for her.” [60] J. O. acknowledged under cross-examination that she does not discuss anything directly with G. K. All of her conversations are with Patricia. J. O. also advised that she does not propose to work after she moves to Edmonton this summer. She says that she is on stress leave and will be for some time. J. O. has been prescribed an antidepressant by her physician and will rely upon employment insurance until she is capable of working. J. O. admitted to the Court that she has suffered from chronic depression since 1992. Her prescribed medication is to continue until the end of this current year. It does not interfere with her ability to drive. ABOUT THE CUSTODY/ACCESS REPORT [61] Upon this Court’s order of February 14, 2005, custody/access report was prepared and filed with the Court October 31, 2005. The report states that: This assessment was not completed in full due to circumstances involving Cathie Hogan’s youngest daughter, Sarah, which will be outlined later in this report. Instead, preliminary interviews were conducted and interim recommendations will be made. [62] Hayley was not interviewed nor seen by the assessor. [63] Sarah died two and one-half months after the interim report was filed with the Court. There has been no followup. The assessor further states at p. 10 of the report: As have not yet observed or interviewed Hayley, cannot assess her level of attachment to any of the parties involved in this assessment.... agree with Greg and Cathie that Jean’s role should be that of grandmother, and do not believe that there is need for grandparent to have custodial responsibility in this situation. .... believe it is very important for these parents to begin communicating with each other, and that with some effort and good will there is the potential for cooperative parenting relationship between them. [64] The recommendations made by the assessor were predicated in large measure upon the fragile and taxing situation which Sarah posed to C. H. in the final months of the infant’s life. As matters then stood, Hayley was to remain in the primary care of her father with specified access for C. H. The assessor urged direct communication between G. K. and C. H. to avoid misunderstanding and mistrust. She recommended that J. O. have the option of overnight access to Hayley once in every two weeks. Finally, the assessor stated that the matter should be reviewed in the summer of 2006 and the Court provided with such an update. [65] This trial came on before review could be conducted. THE EVIDENCE [66] In almost all material respects the evidence which emerged at trial detailing Hayley’s short life and relationship with her parents, grandmother and extended family is not contradictory nor conflicting evidence. have made allowances for some of the opinions and certainly hearsay which was not necessary and particularly reliable. accept that the custody/access report has little probative value and is of limited assistance to the Court. As stated to the parties at the conclusion of the trial—this case is uniquely complicated by virtue of the fact that both parents, both sets of grandparents and their extended families are in state of flux moving to new residences in Calgary, Edmonton and for C. H.’s part pending upon her father’s new posting. Little evidence has been adduced by any of the parties setting out their respective proposals for Hayley’s immediate future and upbringing given these pending relocations. However, what is constant are the family members with whom Hayley must relate. THE APPLICABLE LAW [67] In the case of Hayley, whose parents lived in spousal relationship for the first two years of the child’s life, the relevant law is found in The Children’s Law Act, 1997, S.S. 1997, c. C-8.2. The relevant sections of that Act are: 3(1) Unless otherwise ordered by the court and subject to subsection (2) and an agreement pursuant to subsection (3), the parents of child are joint legal custodians of the child with equal rights, powers and duties. (2) Where the parents of child have never cohabited after the birth of the child, the parent with whom the child resides is sole legal custodian of the child. (3) The parents of child may enter into an agreement that may: (a) vary their status as joint legal custodians of the child; (b) specify the rights, powers and duties of each parent with respect to the child; (c) provide for access to the child by either parent or any other person; (d) authorize one of the parents to appoint, by written instrument, one or more other persons as legal custodian of the child and guardian of the property of the child for: (i) any time specified in the instrument during the child’s minority; or (ii) the duration of the child’s minority; and (e) provide for the custody of the child and guardianship of the property of the child after the death of either parent. 6(1) Notwithstanding sections to 5, on the application of parent or other person having, in the opinion of the court, sufficient interest, the court may, by order: (a) grant custody of or access to child to one or more persons; (b) determine any aspect of the incidents of the right to custody or access; and (c) make any additional order that the court considers necessary and proper in the circumstances. (2) Where the court grants custody of child to parent pursuant to subsection (1), the court, where in its opinion it would be in the best interests of the child to do so, may by order, authorize the parent to appoint person: (a) to have custody of the child on the parent’s death; (b) to be the guardian of the property of the child on the parent’s death; or (c) to have both of the duties mentioned in clauses (a) and (b). (3) On an application and prior to making an order pursuant to subsection (1), the court may make or vary an interim order on any terms and conditions it considers appropriate. (4) On application, the court may vary or discharge any order made pursuant to this section where there has been material change in circumstances since the date of the order. (5) When making an order pursuant to subsection (1), the court shall: (a) give effect to the principle that child should have as much contact with each parent as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person seeking custody to facilitate that contact; and (b) include in the order condition requiring any person who has custody of child and who intends to change the place of residence of that child to notify, as set out in subsection (6), any person who is granted access to that child or any other person who has custody of that child of: (i) the change; (ii) the time at which the change will be made; and (iii) the new place of residence of the child. (6) Any notification required pursuant to clause (5)(b) is to be given: (a) at least 30 days before the change; or (b) within any other period before the change that the court may specify. (7) When making an order pursuant to this section, the court, in the manner and on the conditions that the court considers appropriate, may provide for: (a) the division and sharing of parental responsibilities; and (b) the granting of access. (8) Where an order is made for supervised access pursuant to this section, the court may specify in the order the amount of any cost for the supervision that each party is required to pay. ... In making, varying or rescinding an order for custody of child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; (b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child; and (c) make no presumption and draw no inference as between parents that one parent should be preferred over the other on the basis of the person’s status as father or mother. 9(1) In making, varying or rescinding an order for access to child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking access; (ii) the personality, character and emotional needs of the child; (iii) the capacity of the person who is seeking access to care for the child during the times that the child is in his or her care; and (iv) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; and (b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to care for the child during the times that the child is in his or her care. (2) Unless otherwise ordered by the court, parent who is granted access to child has the same right as the custodial parent to make inquiries and be given information concerning the health, education and welfare of the child. (3) The right of parent who is granted access described in subsection (2) is not, unless the court orders otherwise, right to be consulted about or to participate in the making of decisions by the custodial parent. [68] Where it is proposed to locate child’s residence (a mobility application) the Court must examine the effect of such relocation upon the child’s relations with the access parent and any person of sufficient interest who has access rights to the child. This examination occurs in the context of assessing how the relocation of the child’s residence factors into the best interests principle when viewed from the child’s perspective. The Supreme Court of Canada provided the family bar and courts with “the principles that should guide judges upon mobility cases” in the Court’s seminal decision, Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] At para. 49, the law on these principles is summarized as follows: 49 The law can be summarized as follows: 1. The parent applying for change in the custody or access order must meet the threshold requirement of demonstrating material change in the circumstances affecting the child. 2. If the threshold is met, the judge on the application must embark on fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4. The inquiry does not begin with legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; (f) disruption to the child of change in custody; (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [Emphasis in original] [69] third consideration of law that arises in this case is the importance of maintaining stability in the relationships which child has. This was stressed by the Saskatchewan Court of Appeal in the decision Haider v. Malach (1999), 1999 CanLII 12363 (SK CA), 177 Sask. R. 285 (C.A.). At para. 89, the court stated: ... In making decision as to custody, consideration must be given to the importance of maintaining stability in the relationships which the child has. This is particularly important when the court is faced with request to change the custody from the primary caregiver, who has had custody for some period of time, to the non‑custodial parent. The effect of change in custody on the child in such circumstances must be addressed by the evidence. Although this court has not and nor could it elevate this principle to an overriding or controlling one, it is an important factor in determining where the best interests of child lie. As the above review of the case law indicates, the weight to be given to maintaining the stability of such relationship will depend on the particular facts of given case. [70] In more recent decision of the Saskatchewan Court of Appeal, [S. (H.) v. S. (C.)], 2006 SKCA 45 (CanLII); [2006] S.J. No. 247 (QL) (Sask. C.A.), the appellate court overturned my decision as trial judge and in doing so revisited this issue of maintaining stability between child and the primary parent or psychological parent. In Haider v. Malach, supra, the Court of Appeal said it “has not and nor could it elevate this principle to an overriding or controlling one” but “it is an important factor in determining where the best interests of child lie.” It is important to point out that [S. (H.) v. S. (C.)], supra, was classic application to vary based upon mobility—the desire to relocate the child’s residence, whereas, this case is an original determination of custody where the parents and grandparents happen to be relocating. That said, the Court of Appeal in [S. (H.) v. S. (C.)], supra, states at para. [24] In our opinion, the trial judge placed too much emphasis on the fact that the children had grown up in Midale and that the respondent’s extended family live there. He stated clearly that he was cognizant of the maximum contact principle and supporting psychology on which it is based but then only considered the impact on the proposed separation of the children from their father. He did not consider the particular role of the primary parent in the lives of the children: the bonding between the children and their mother; the importance of maintaining the relationship with the psychological parent; and the desirability of maintaining the link. He did not consider the importance of maintaining stability in the relationships between the primary parent and the children. See Dybvig v. Brunen (2001), 2001 SKQB 321 (CanLII), 209 Sask. R. 298 (Q.B.); Rask v. Rask (2005), 2005 SKQB 159 (CanLII), 261 Sask. R. 269 (Q.B.); Malloy v. Quilty (1999), 1999 SKQB 47 (CanLII), 186 Sask. R. 95 (Q.B.). [71] The fourth and final legal concept which must be addressed in this case is an examination of the current status of the law relating to grandparent-grandchild access. will state the principles which currently govern such relationships, in the context of the child’s best interests later in this decision. ANALYSIS OF FACT TO LAW [72] For the first two years of Hayley’s life she was co-parented by G. K. and C. H. In 2001 she was parented by her mother alone until C. H. found it impossible for her to provide the necessary quality of care. Consequently, in the month of April 2002, C. H. and J. O. entered into an agreement whereby J. O. assumed responsibility for Hayley for the ensuing two years. Even at that point in time, G. K. and C. H. were deemed joint custodians of Hayley pursuant to s. 3(1) of The Children’s Law Act, 1997: 3(1) Unless otherwise ordered by the court and subject to subsection (2) and an agreement pursuant to subsection (3), the parents of child are joint legal custodians of the child with equal rights, powers and duties. [73] On November 27, 2002, the Nova Scotia Court granted custody of Hayley to the Osbornes. Hayley was ordinarily resident in Nova Scotia and that court had jurisdiction to make the order that it did. [74] When J. O. brought Hayley to Saskatchewan in March 2004, this Court acquired jurisdiction and made the interim orders that it did. Care was taken to defer any decision to vary the legal status of J. O. and Ken Osborne as custodians until this trial. However, G. K. became the de facto custodian of Hayley by April 2004. He has maintained de facto custody of the child to this date as confirmed by this Court’s interim orders. [75] Hayley is now part of G. K.’s nuclear family. To child age seven, the last two years of her life are perceived to be substantial part of her life. She is settled into home with stepmother, stepbrother and, until January of this year, where her father was constant presence in her life. She has enjoyed both her paternal and maternal grandparents and extended families for the past two years. She has established her own independent relationships within her school. However, change for Hayley is inevitable with the pending relocation of all of the families. Yet, move to reside with C. H., would represent compound change of physical residence, the primary caregivers or psychological parents, and dislocation from the grandparents’ families. THE FOUR STEP PROCESS [76] The decision to be made here must first consider which of G. K. or C. H. is to be the parent who will create the primary residence for Hayley and assume the daily management of Hayley’s life as primary caregiver. Second, is it in Hayley’s best interests that G. K. and C. H. be constituted joint custodians as C. H. requests, or, would the interests and welfare of Hayley be best served if one or other of the parents was empowered as sole custodian as G. K. requests? Third, and in either scenario, parenting scheme must be fashioned whereby Hayley will receive the maximum input which each of her parents is able to provide so long as that is consistent with Hayley’s best interests and taking into consideration the willingness of the person seeking custody to facilitate that contact. Fourth, given J. O.’s status as custodian and her lengthy responsibility for raising Hayley, would it be harmful to Hayley’s best interests to leave matters of J. O.’s access to be determined by either of her parents? If so, then the Court may provide an order of specified access to J. O. which has the effect of trumping parental discretion over the matter. Step 1: Hayley’s Primary Residence and Caregiver [77] In any analysis leading to custody order the Court must, among other considerations, consider only Hayley’s best interests and for that purpose take into account each of the factors recited in s. 8(a) of The Children’s Law Act, 1997. [78] In assessing the quality of Hayley’s relationship with G. K., it must be mentioned that the evidence of parenting capabilities and willingness for the first two year’s of Hayley’s life was minimal. Both G. K. and C. H. were very young to be parents but the evidence provided suggests that they managed. G. K. was not parental figure in Hayley’s life from late in 2001 until March of 2004. Since the latter date he has assumed parental responsibility for Hayley by increasing degrees. When Patricia and G. K. began to cohabit am satisfied that Patricia became the dominant parental figure in Hayley’s life over time. Since January 2006 the responsibility for managing Hayley’s daily life has fallen to Patricia. At best, G. K. is presence in Hayley’s life one week in four, and allowing for travel time, more likely days in 28. [79] was impressed with Patricia as witness. With the arrival of another baby in early July the Court must consider how taxing matters will be for Patricia to parent her newborn, Mathew and Hayley. There is no evidence of an actual move to Calgary for G. K.’s family as of this date. However, the intention to relocate into home somewhere within Calgary seems highly probable. Therefore, G. K. would again become daily presence in Hayley’s life, and likely secondary to Patricia’s role as the caregiver. [80] was not as impressed by G. K. as witness as was with Patricia. No evidence was adduced at trial to sustain finding that G. K. lacked any parental abilities, however, neither did G. K. impress me that he possessed any strong parental abilities. He is very young man who thus far has fathered four children for whom he must provide financially. That fact does not auger in in G. K.’s favour. [81] Jim Kuntz was never asked to comment upon the quality of his son’s relationship with Hayley, nor about G. K.’s capacity to act as Hayley’s legal custodian. In cross-examination Mr. Kuntz stated that C. H. was like daughter to him. He felt that she was an excellent mother when she resided in Moose Jaw circa 1999-2000. [82] Patricia Kuntz testified that G. K. taught Hayley to ride her bike and that the two play together. She stated that Hayley gets excited when she knows her dad is coming home. Patricia further testified that G. K. has lots of family and that they are help when needed. Patricia was never asked, nor did she volunteer any evidence which addressed G. K.’s parenting skills. She did state, under cross-examination that G. K. had looked after Hayley on evenings and weekends when the child was not at J. O.’s home. [83] Geraldine Kuntz was neither asked nor did she volunteer any evidence about G. K.’s relationship with Hayley nor her son’s capacity to parent and be custodian. G. K. stated that Patricia “doesn’t have wicked bone in her body, Tricia doesn’t like conflict and her role has been tough one.” Under cross-examination Geraldine Kuntz also commented that C. H. had been like daughter and she wished that G. K. and C. H. would work this out. [84] C. H. has not been in position to observe G. K.’s relationship with Hayley nor his parenting skills since 2001. J. O. was neither asked nor did she volunteer any evidence about G. K.’s relationship with Hayley nor his parenting skills and capacity to be custodian. She stated under cross-examination that, “I don’t discuss anything with Greg.” J. O. testified that C. H. was “an awesome mom always—that’s why she gave Hayley to us when she had to.” Since C. H.’s move to Edmonton, and with the responsibility of Sarah, J. O. saw C. H. grow and mature to the point she felt proud of C. H. and that her daughter is still an awesome mom. [85] C. H. has had very little parental responsibility over Hayley in the past four years. However, the evidence of Hayley’s reintegration into C. H.’s life through the access ordered by the Court speaks in favour of C. H. after her dark period and absence from her daughter’s life. The only evidence about Hayley’s relationship with C. H. and C. H.’s capacity to parent has been previously described. From her appearance in Court am satisfied that C. H. has told the Court the truth about her drug use ceasing after her arrest. am satisfied that C. H. has taken responsibility for her own life since the birth of Sarah. am further satisfied that C. H. has taken some responsibility for her father’s care and that she has withstood most serious test of her character and stability given the manner in which she parented Sarah and coped with her child’s death. [86] What troubles the Court is that C. H. provided little evidence as to how she proposes to create home and to care for Hayley. The Court was told that C. H. shares four-bedroom duplex situated at the Air Force Base at Cold Lake and this residence is about one mile from the school. C. H. is committed to caring for her father who may be posted once again to Cold Lake or move to the Moose Jaw Air Force Base at any moment. C. H. did not disclose how she would care for Hayley when she is at work, nor did she testify that she has any resources available to assist her. The Court assumes that C. H.’s father might play some role in Hayley’s life but no evidence was led in that regard, nor did Mr. Hogan testify in these proceedings. [87] The Court must take into account the personality, character and emotional needs of the child. The custody/access report does not address these matters as Hayley was never seen nor interviewed. The evidence placed before the Court by the witnesses is minimal in this regard. What can best be gleaned from the evidence is that Hayley is fairly normal, healthy and loveable child who has been subjected to fair degree of upheaval in her short lifetime. It is clear to the Court that Hayley has received too much information about these proceedings and that she is very much aware of the conflict, tension and negative emotions which the parties harbour toward one another. J. O. may be of the opinion that Hayley needs to know what is going on, however the Court takes far more guarded view of that matter. Hayley has and continues to act out in manner that indicates to the Court that the child is anxious and troubled about where she may live and what will happen to her relationships with family members from whom she derives stability, security, care and love. Throwing up after changeovers, rambunctiousness, antisocial behaviour and lack of concentration at school are but few of the classic symptoms which the Court hears of when youngster is the focal point of family conflict and does not know what is about to happen to her little world. [88] Upon the evidence presented, sparse as it was, am still able to find that each of G. K. and C. H. would be able to meet the physical needs of Hayley. Similarly, both G. K. and C. H. appear to be earning sufficient incomes and have sufficient family resources to call upon to assist in meeting Hayley’s financial needs. G. K. is taxing his income with the potential of five dependants, whereas C. H., with more modest income, would have Hayley as her only dependant. As to the social needs of Hayley, the scales weigh in G. K.’s favour in either Calgary or Moose Jaw where the Kuntz extended family are social resource. Hayley is familiar with her present school and teachers but anticipate that she would make new social circle in Calgary. The existing family of four, soon to be five, which Hayley has come to know as her family, gives G. K. an advantage from the social needs perspective. [89] Finally, as to the psychological needs of Hayley, the Court has confidence that G. K., aided by Patricia and his parents, should be able to meet Hayley’s psychological needs. The Court has seen C. H. testify but knows nothing more of the environment in which she would raise Hayley in Cold Lake or Moose Jaw. C. H. appears to have the potential to meet Hayley’s psychological needs. [90] If J. O. is to have role to play in Hayley’s life, as grandparent with specific and independent access rights, then she must amend her ways and recognize that Hayley’s psychological needs will be best met if J. O. does not interfere in the parenting roles which G. K. and C. H. will assume. She must also realize that her conduct toward Hayley must be supportive of Hayley’s parents, regardless of her personal opinions. [91] When considering the home environment to be provided to Hayley, again note that both parents propose to relocate. The minimal amount of evidence which was provided to the Court is speculative and lacking. Perhaps the timing of this trial was premature. However, the home environment is not just about four walls, the neighbourhood, the school and amenities, it is also and most important about the people who create the home environment surrounding Hayley. The Court can visualize G. K.’s home environment and finds that Patricia will be significant factor to achieving Hayley’s best interests if Hayley is to reside with G. K. When the entire Kuntz family relocate as family unit to Calgary, they will be able to add the wholesomeness to Hayley’s environment that she presently experiences. [92] am troubled by the lack of evidence and planning presented by C. H., not only as respects the home environment proposed for Hayley, but also touching upon the next judicial consideration, that is the plans C. H. has for the future of Hayley. [93] Finally, s. 8(a)(vii) directs the Court to consider Hayley’s wishes. However, Hayley is too young to express any meaningful sentiments in this regard. [94] In weighing the conditions for a custody order as s. 8 of The Children’s Law Act, 1997 requires, and in reflecting upon the Court of Appeal’s guidance as quoted from Haider v. Malach, supra, as well as [S. (H.) v. S. (C.)], supra, and further upon reflecting on the summary of law quoted at para. 49 of Gordon v. Goertz, supra, as some of those portions pertain to an original application for custody, I find that G. K. and his wife Patricia have been the primary caregivers and psychological parents of Hayley for in excess of two years. The preservation of that important relationship when added to all other factors in this case tips the scales or weight of evidence in G. K.’s favour. [95] Based upon the present circumstances and immediate prospects for each of G. K. and C. H., it is the Court’s conclusion that the family which has been Hayley’s experience for the past two years, even if relocated to Calgary, is where the continuity, consistency and stability necessary to attain Hayley’s best interests will be found. The Court is confident that G. K. and Patricia, taken as team, with the extended family support which the Kuntz’s presently offer, best attains the factors set forth at s. of The Children’s Law Act, 1997. When Hayley’s world stabilizes with the benefit of this judgment, the parties should accept their respective new roles in Hayley’s life and behave in bona fide manner. Only in this way will Hayley come to understand that C. H. and J. O. will be constant and reliable players in her life but that her home and nuclear family will be as it has for the past two years. CUSTODY: JOINT VERSUS SOLE CUSTODY [96] The legal terminology of custodian or custodial parent carries an unfortunate connotation. The allocation of parental responsibilities or shared parenting is more accurate and respectful. However, those labels and the allocation of parental responsibilities should not become vague and confusing for the sake of political correctness. There are times when the parents of child demonstrate the ability to co‑parent despite their own personal differences. Where this collaboration is possible the courts must show deference to the parents and permit them to raise their child or children as they determine, provided always that they are advancing the child’s best interests overall. Where this collaborative parenting is workable there is no legal reason to disenfranchise one parent and empower the other by designating the latter as the custodial parent or empowered decision-maker. [97] Regrettably, there are also situations where the parents are not capable of, or willing to communicate with each other in functional manner. This may be factor of the differences in each parent’s personality, character, intellectual ability, maturity level, physical health, or where distance becomes significant factor. In Hayley’s past, the evidence shows that G. K. and C. H. have not been able to maintain functional parental relationship. Evidence and opinions were offered at trial to the effect that if left alone, G. K. and C. H. may now have arrived at point in their personal development where the necessary collaboration required for healthy co-parenting may be possible. That has not yet been demonstrated upon the evidence. It should, however, be an objective for each of G. K. and C. H. to strive to achieve. [98] The Court also has concern that neither parent, G. K. nor C. H., has demonstrated the requisite independence to make decisions in Hayley’s best interests when faced with countervailing views of J. O. or Mr. and Mrs. Kuntz senior. [99] Finally, whether C. H. establishes new residence in Moose Jaw or remains in Cold Lake, Alberta, the distance of either centre relative to Calgary is significant. [100] For the above and present reasons, G. K. must be the sole custodian of Hayley. However, he must consult C. H. when contemplating any major significant decision in Hayley’s life—whether the issue is education, health related, spiritual, or where a decision will have a major impact upon Hayley’s growth or development. Routine day-to-day decisions are G. K.’s alone to make. When G. K. and C. H. have discussed such major issues, G. K. shall carefully consider and, when possible, accommodate C. H.’s opinions in each major decision. However, when G. K. and C. H. are hopelessly deadlocked, Hayley’s best interests require G. K. to make such decisions in timely and responsible way. ACCESS/SHARED PARENTING [101] C. H. has indicated she will reside wherever her own father is posted. The distance is day’s drive. It is in Hayley’s best interests to have the maximum contact with C. H. that the unique circumstances of the case will reasonably permit. [102] When there is long weekend, falling in period not hereafter dealt with, and while Hayley is in elementary school, C. H. will have the option to have Hayley for period of four days by having Hayley absent from school for one of the school days contiguous with three-day long weekend. C. H. must give G. K. 10 days advance notice of when she will exercise this option. [103] C. H. will parent Hayley for one-half of the official Christmas school break, commencing with the first half in even numbered years, and the last half of the said break in odd numbered years. C. H. shall parent Hayley for the entire of Hayley’s Easter school break or recess in each year. [104] C. H. will parent Hayley for two consecutive weeks in each of the months of July and August. Those weeks are not to be continuous. Given the expected delivery date of Patricia, being July 3, 2006, Hayley will spend the first two weeks of July 2006 with C. H. and the first two weeks of August with C. H. This will permit G. K. and Patricia to concentrate on the arrival of their baby and caring for Mathew while C. H. provides the assistance of parenting Hayley. Hayley will be in G. K.’s care for the two weeks preceding the commencement of school. [105] In future years, C. H. and G. K. shall consult with one another as to how the summer school break is to be equally divided. This consultation is to occur on or before June of each and every year. In the event of deadlock, C. H.’s choice for the summer split shall prevail. [106] G. K. and C. H. shall cooperate in creating other modes by which Hayley may maintain regular and consistent contact with her mother. This shall include reasonable and regular telephone access, the use of e-mails if the households are so equipped, exchange of tapes or disk recordings of appropriate material between Hayley and her mother, mail, and visual materials for Hayley to enjoy in her bedroom so as to benefit from her mother’s indirect presence in her day-to-day life. [107] Hayley must be permitted some form of access to her father on Father’s Day and to her mother on Mother’s Day. Hayley must have some contact or form of access on her birthday with each of her parents and to each of her parents on the parent’s birthday. RIGHTS OF GRANDPARENTS TO HAVE ACCESS WITH THEIR GRANDCHILDREN [108] J. O. is Hayley’s maternal grandmother. As noted earlier, she had the responsibility for raising Hayley for two years before moving to Saskatchewan. From that point on it was J. O.’s decision to integrate Hayley back into her father’s home and family. J. O. continued to parent Hayley for two days week thereafter until the date of this trial. It is in this manner that J. O. has distinguished her relationship with Hayley from the traditional role of grandparent. Section 6(1) and s. of The Children’s Law Act, 1997 govern the Court’s review of grandparent’s application to have access independent of the grandchild’s parents’ positions on the matter. Each of those sections has been quoted earlier in this judgment. [109] I have no hesitation in finding that J. O. is a person of sufficient interest in Hayley’s life given her previous role in raising the child. The Court must have regard only for the best interests of Hayley and for that purpose take into account each of the four parameters described in s. 9(1)(a)(i) to (iv). This examination is not restricted to parents who are competing with claims for access, but includes any other person of sufficient interest in the child’s life. [110] The debate around grandparent-grandchildren access is considerable. begin by referring to Family, Children and Youth Section, Department of Justice Canada, Background Paper, Grandparent-Grandchild Access: Legal Analysis by Dan L. Goldberg, 2003-FCY-15E. The executive summary is found at the outset of this 55-page paper. At p. it reads: In June 2000, the United States Supreme Court decided the case of Troxel v. Granville. The Court said that as long as parent adequately cares for his or her children, the state should not interfere with that parent’s constitutionally protected right to make decisions about his or her children’s contact with grandparents. In March 2001, the Ontario Court of Appeal decided the grandparent access case of Chapman v. Chapman. The Court held that in the absence of evidence that demonstrates parent’s inability to act in the best interests of his or her children, parent’s right to make decisions on his or her children’s behalf should be respected. These decisions include those about whom the children see, how often, and under what circumstances. Troxel and Chapman reflect the evolution in jurisprudence in the United States and Canada. With the paucity of social science research about litigious grandparent access applications, as well as the vagueness of the best interests of the child test, courts have often relied on nostalgic, sentimental notions of the role of grandparents, and have frequently granted access to grandchildren contrary to the wishes of the children’s parents. Four provinces, Quebec, British Columbia, Alberta and New Brunswick, as well as Yukon, have legislation specifically providing for grandparent access. Other provincial legislation as well as the federal Divorce Act allow for access applications by people other than parents without explicitly mentioning grandparents. It is becoming increasingly likely that the Divorce Act and provincial legislation such as Ontario’s Children’s Law Reform Act, may be subject to the scrutiny of the Charter of Rights and Freedoms. As such, it would be unacceptable for there to be unrestrained judicial interference with the rights of parents to decide what is in the best interests of their children. It is argued that the best interests of the child test, which is included in all provincial and federal family law legislation, is more appropriately suited to claims between parents than between parent and non‑parent. Accordingly, it is recommended that legislation regarding grandparent access provide for two‑stage, child‑focussed hearing. The initial stage would determine whether the grandchild would suffer actual or potential harm if access to their grandparent were terminated. If no such harm could be shown, then the hearing would conclude and no access would be ordered. If actual or potential harm could be proven by the grandparents, then the second stage would proceed and access would be determined using the best interests of the child test. It is recommended that provincial and territorial governments establish programs similar to Ontario’s Office of the Children’s Lawyer, which provides court‑ordered counsel for children in custody and access disputes, including those involving grandparents. Children’s counsel focus their efforts on gathering relevant evidence about the effect of grandparent access on their child clients. It is particularly helpful to the court to have, placed in context, the input of children who are able to express their views and preferences regarding their grandparents’ access. Children’s counsel are uniquely positioned to use dispute resolution techniques with the parties and their lawyers to, when appropriate, settle cases. [Troxel v. Granville, 120 U.S. 2054 (2000); Chapman v. Chapman, Ontario 1131/98, Ont. S.C.J., March 28, 2000 (unreported); and 2001 CanLII 24015 (ON CA), [2001] O.J. No. 705 (QL) (Ont. C.A.)] [111] At present s. 9(1)(a) of The Children’s Law Act, 1997, dictates that the Court shall have regard only to the best interests of the child. The background paper in the fifth paragraph of the quoted Executive Summary suggests that legislation regarding grandparents’ access provide for two-stage, child-focussed hearing which involves preliminary harm test, which, if met, would be followed by using the best interests of the child test. [112] In Saskatchewan, if grandparent is accepted as being person of sufficient interest, then s. 9(1)(a)(i) requires that the “quality of the relationship” between the child and grandparent must be examined. The quality of that relationship is but one of the four statutory parameters to be reviewed. Section 9(1)(a) is not intended to be an exhaustive list to the exclusion of other parameters or relevant considerations. Is s. of The Children’s Law Act, 1997 compatible with the two-stage child-focussed hearing contemplated by the background paper? That two-staged analysis is very much like mechanical rule of evidence in that it mandates that where no harm will result by terminating the child’s relationship with the grandparent that the matter is finished or at an end. No consideration of the best interests principle arises. If, however, harm will result to the grandchild, step two requires further analysis of the best interests of the child. [113] It might be argued that the harm test is encompassed within the definition of person of sufficient interest. If child would suffer no harm as consequence of severance of the grandchild-grandparent relationship, then that grandparent would not qualify as person of sufficient interest. If this is the proper and sustainable view of The Children’s Law Act, 1997, then we have in Saskatchewan the two-stage analysis. Step one: the grandparent must be person of sufficient interest, not by virtue of blood relations alone, but based upon the historical role which the grandparent has played in the grandchild’s life, which if terminated, would be harmful to the grandchild. If not person of sufficient interest, the matter is at an end. However if the grandparent is person of sufficient interest, then step two proceeds with the application of s. 9(1) and consideration of the best interest principle. [114] read The Children’s Law Act, 1997 in this way. grandparent may be person of sufficient interest if the grandparent-grandchild relationship leads to the conclusion that such relationship is beneficial to the child and consequently harmful if terminated. That is the first step. The second step arises only where the grandparent is found to be person of sufficient interest. It proceeds with review based upon the best interest principle as enunciated by s. 9(1) of the Act. [115] In Tucker v. Lester 2002 SKQB 225 (CanLII); [2002] W.W.R. 585; (2002), 220 Sask. R. 309, M-E. Wright J. reviews the law as it dealt with grandchildren and grandparent access. Justice Wright states at paras. 14 through 16, the following: 14 In Chapman v. Chapman (2001), 2001 CanLII 24015 (ON CA), 15 R.F.L. (5th) 46 (Ont. C.A.), Abella J.A. (as she then was) reaffirmed that the purpose of access is to preserve child’s positive relationships and had this to say of grandparent access at para. 19: relationship with grandparent can—and ideally should—enhance the emotional well‑being of child. Loving and nurturing relationships with members of the extended family can be important for children. When those positive relationships are imperiled arbitrarily, as can happen, for example, in the reorganization of family following the separation of the parents, the court may intervene to protect the continuation of the benefit of the relationship.... The test however, as she pointed out at para. 17 “... is not what, in theory, is best for children in general, but what is in the best interests of the particular children before the court.” 15 That is the same test that is imposed by The Children's Law Act, 1997 supra, (the Act). Regard must be had only for the best interests of MacKenzie and Morgan taking into account those factors enumerated in s. 9(1) (a) of the Act. The conduct of any person that is not relevant to the ability of that person to care for the children while in his or her care must be disregarded. In situations such as this where the person who is applying for access is not parent, there are other considerations which are not specifically identified in the Act. First, there is no automatic presumption that access is in the best interests of the children as there is in the case of an applicant who is parent. Second, the onus is on the person applying to demonstrate that access is in the best interests of the children—it is not for the custodial parent or parents to establish otherwise. Third, the court should be reluctant to interfere with custodial parent’s decision unless it is in the best interests of the children to do so. This evidentiary burden was summarized in Chapman v. Chapman, 1993 CanLII 2598 (BC SC), [1993] B.C.J. No. 316 (B.C. S.C.) at para. 24 and was subsequently adopted and followed by the British Columbia Court of Appeal in F.(N.) v. S. (H.L.) (1999), 1999 BCCA 398 (CanLII), 49 R.F.L. (4th) 250 (B.C. C.A.). 16 It was also held in Chapman, supra, (B.C.S.C.) at para. 24 that it is not in the best interests of child to be placed into situation of real conflict between custodial parent and non‑parent and that “... [w]hile the court must be vigilant to prevent custodial parents from alleging imagined or hypothetical conflicts as basis for denying access to non‑parents, in cases of real conflict and hostility, the child’s best interests will rarely, if ever, be well served by granting access.” [116] remind the reader that this case focusses upon grandparents’ access and not upon grandparents’ custody. The latter involves its own jurisprudence. [117] I am satisfied that J. O. is a person of sufficient interest in Hayley’s life and that if her relationship as grandmother to Hayley was thwarted by the actions of Hayley’s parents, the result to Hayley would be harmful. There are situations, and this is one of them, where the Court should curtail the tradition of access to a grandchild flowing from the parents who have the right to control the upbringing of their child and to determine what relationships the child shall be a party to. When the Court considers the quality of the relationship that has and continues to exist between Hayley and J. O., I am satisfied that an independent right of access is needed to attain Hayley’s best interests. Though there is a scarcity of evidence about Hayley’s personality, character and emotional needs, the history and intensity of Hayley’s relationship with J. O. weighs in favour of specifying access for J. O. [118] Again, J. O. is not to undermine G. K. and C. H.’s parental authority. It is not within J. O.’s right of access to interfere with G. K.’s parenting and C. H.’s access as defined and determined in this judgment. J. O. must refrain from any criticism of either G. K., Patricia Kuntz, or C. H. in Hayley’s presence. J. O. must not attempt to alienate Hayley from either of her parents, stepparent or extended family. By observing these rules J. O.’s capacity to grandparent and have access will also assist to attain Hayley’s best interests. [119] Finally, the Court has no evidence as to Hayley’s wishes. The custody/access report did not address the matter. There is evidence that Hayley loves her grandmother and it accords with common sense that Hayley would have such an affection for J. O. given the history and uniqueness of their relationship. [120] Now the difficulty is that J. O. is soon to establish her own residence in the City of Edmonton. This difficulty is compounded by the rights of C. H. to co-parent to the maximum reasonable in the circumstances. Presumably, J. O. will be able to see Hayley when she is in C. H.’s care. But that presumption is based upon the relationship between J. O. and C. H. being healthy and accommodating. J. O.’s independent right of access to Hayley should not be so extensive that, when coupled with C. H.’s access schedule, Hayley’s family life with her father, stepmother and half siblings is unduly interrupted. To therefore balance these competing claims, J. O. shall have Hayley the last weekend of each calendar month commencing 5:00 p.m. Friday and ending 8:00 p.m. the following Sunday where such weekends do not conflict with C. H.’s access. J. O. shall also have reasonable telephone access, once each Sunday, when Hayley is not in J. O.’s care, commencing at 8:00 p.m. J. O. shall place the phone call at her expense. Finally, C. H. is to accommodate J. O. by sharing access with Hayley during one of the weeks in which Hayley is in her mother’s care. [121] This is case where each of the parties have achieved measure of success. In such circumstances consider that each party should bear his or her own costs. J. N. S. Sandomirsky
Hayley is 7 years old. In this application each of her father, mother and maternal grandmother compete for some form of custody over her. The father seeks sole custody. The mother and grandmother seek joint custody with the father. The mother seeks to be designated as her daughter's primary caregiver. HELD: 1) The father and his wife Patricia have been the primary caregivers and psychological parents of Hayley for in excess of 2 years. The preservation of that important relationship when added to all other factors in this case tips the scales in favour of the father. 2) The family which has been Hayley's experience for the past 2 years, even if relocated to Calgary, is where the continuity, consistency and stability necessary to attain Hayley's best interests will be found. 3) The father must be the sole custodian of Hayley. He must consult with her mother. The evidence shows that the parties have not been able to maintain a functional parental relationship. Whether the mother establishes a new residence in Moose Jaw or Cold Lake, the distance relative to Calgary is significant. 4) A grandparent may be a person of sufficient interest if the relationship leads to the conclusion that such a relationship is beneficial to the child and consequently harmful if terminated. That is the first step. The second step arises only where the grandparent is found to be a person of sufficient interest. It proceeds with a review based on the best interest principle as enunciated by s. 9(1) of the Act. 5) The court was satisfied that the grandmother is a person of sufficient interest in Hayley's life and that if her relationship as grandmother to Hayley was thwarted by the actions of Hayley's parents, the result to Hayley would be harmful. There are situations, and this is one of them, where the court should curtail the tradition of access to a grandchild flowing from the parents who have the right to control the upbringing of their child and to determine what relationships the child shall be a party to. An independent right of access is needed to attain Hayley's best interests. The history and intensity of Hayley's relationship with her maternal grandmother weighs in favour of specifying access.