M.D. ACTON QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 180 Date: 2013 05 10 Docket: F.L.D. 323 of 2009 Judicial Centre: Regina, Family Law Division BETWEEN: KELLY DAVID MURPHY and LISA EVELYN MURPHY Counsel: Bruce Campbell for the petitioner James Struthers, Q.C. for the respondent JUDGMENT SANDOMIRSKY, J. May 10, 2013 [1] Madison is four years old (d.o.b. September 2, 2008). Her parents, Kelly and Lisa, separated from one another on October 14, 2009. By agreement, her parents have shared parenting on two week cycle. In the first week, Lisa parents Madison in her Moose Jaw home from Sunday at 7:00 p.m. until the following Wednesday at 7:00 p.m. In the second week, Lisa parents Madison from Sunday at 7:00 p.m. until Thursday at 7:00 p.m. Kelly parents Madison at all other times while residing in his parent’s home at Regina. Each parent has an equal amount of parenting time. The shared parenting regime has worked well while Madison was pre-schooler. However, this coming September Madison will be five years old and will commence school on regular basis. The inevitable decision as to where Madison will attend school, that is in Moose Jaw or Regina, is imminent. The parents cannot resolve this decision and defer to the court to determine where Madison’s primary residence shall be and thus in which city she shall attend school. THE EVIDENCE The Petitioner’s Case [2] Kelly is 27 years old. He met Lisa in 2007 and they were married on April 4, 2008. Lisa was pregnant with Madison at that point in time and delivered Madison on September 2, 2008. Madison was and continues to be healthy child. She is described by all witnesses as intelligent, bright, precocious, an extravert and loving child. Only her uncle had any criticism of Madison. He stated that she is prone to having temper tantrums if things are not going her way. By all accounts, the child is normal and has been resilient in coping with her parent’s separation and conflict. [3] Kelly and Lisa were divorced on November 26, 2012. [4] During his youth, Kelly moved about Saskatchewan with his parents, brothers and sister. Mr. Murphy, Sr. is pastor and his postings necessitated those moves. The Murphys resided in Moose Jaw and then Regina. They have resided in Regina since 2009, the year that Kelly and Lisa separated. Each of Kelly and Madison have their own bedrooms in the large Murphy residence situated in east Regina. Kelly describes this house as three stories (including the basement level). There are four bedrooms upstairs with two bathrooms. The main level includes the living and dining rooms, kitchen, bathroom and entries. Two bedrooms and bathroom are situated at the lowest level. [5] Kelly holds business certificate which he obtained from SIAST in 2006. He described himself as self-taught in various computer skills including graphics and design. Kelly graduated from high school in 2002 and briefly studied at bible college for four months. He had managed renovations of an apartment building in Moose Jaw before his father asked him to work part-time for their church. He has done so in variety of capacities including accounting, public relations, editing, programming and graphics. [6] Kelly testified his sister is 26 years old, his oldest brother 21 and his youngest brother 19. His youngest brother still resides within in the Murphy family home but is planning to move out on his own. It is Kelly’s intention to continue his university studies at the University of Regina where he is majoring in English and hopes to obtain Bachelor of Arts degree. Kelly requires two more classes to complete his BA program. He testified that he hopes to transfer to business co-op program in the fall of 2013 and pursue Business Administration degree. To achieve the latter will require minimum of two and one-half more years of study. Kelly told the court that he is taking three classes each semester rather than full class load of five classes. He does this in order to parent Madison and work part-time at the church. He is funding his university studies through student loans. His parents provide home, utilities and sustenance to both Kelly and Madison. [7] Kelly filed T-4 slips for each of the years 2011 and 2012 in which he reported annual income of $11,500.00 and $12,000.00 in those respective years. [8] Though separated for the past three and one-half years, Kelly has remained single and not involved in serious or romantic relationship. His time is divided between his work, studies and parenting Madison. [9] Whilst Kelly relies on his mother to care for Madison when he has class conflict, he was adamant that it was he, and not his parents, who parent Madison when the child is with him. Lisa and her witnesses did not suggest otherwise. [10] Kelly hopes to find good job, perhaps in marketing or finance, at which point in time he stated he would obtain his own condominium. [11] The Murphy’s residence is approximately two blocks from the Jack MacKenzie Public School St. Gabriel Separate School Complex. Kelly presently prefers St. Gabriel as his choice of kindergarten for Madison. At St. Gabriel, there is an afternoon kindergarten program. This would work best for Kelly and his mother in providing care for Madison during the daytime and when she is not in school. [12] Kelly testified that in the past year, he and Lisa do not talk much. This, in part, is due to Kelly’s realization that there was no prospect of reconciling with Lisa. Lisa had two very brief relationships with men after the date of separation from Kelly. She conceived and bore second child on January 26, 2013 as consequence of one of those relationships. The father of that child has nothing to do with Lisa, nor does he pay child support. He has seen the baby perhaps six times in the past three months. While Lisa testified that Nick, the father of her second child, would be great father and would be resource to her in raising the baby, the father’s actions have been to the contrary. In listening to Lisa testify and discuss her expectations of Nick, the court finds Lisa to be naive and lacking realism. Despite these ongoing differences, Kelly testified that he and Lisa can communicate civilly with one another on parenting issues which affect Madison. [13] Kelly has seen counsellor since separating from Lisa. He continues to see his counsellor irregularly and on an as needed basis. Kelly described himself as having “come long way” since the collapse of his marriage. Kelly’s parents shared this opinion in their respective testimony. Indeed, under cross-examination, Kelly opined: have improved and she has improved. We are better parents and Madison is better off without us being together. [14] typical month of work at the church consumes 64 hours of Kelly’s time. This is spent in two day blocks of eight hours per day. Kelly requires his parents babysit Madison only “a few hours of the typical week”. His sister resides in Regina and Kelly says that she is backup resource for him as well. [15] Kelly described Madison’s excitement over her mother’s recent pregnancy and the birth of her half-brother. He says that Madison’s level of excitement has diminished over the past months, though Madison is involved with her little brother. [16] Kelly resisted the suggestion under cross-examination that his parents resent Lisa. Lisa is member of their church in Moose Jaw. Lisa, Kelly and the Murphys are devoted practicing Christians. [17] It is important to note that each of Kelly and Lisa see the other as competent and loving parents of Madison. Kelly testified that Lisa is: ...incredibly important in Madison’s life and Madison loves her mother. We each have different things to offer Madison. But Madison needs one place to go to school. Madison needs stability one school one place that is her own. Madison needs both of us in her life and she needs both sets of grandparents whole extended family. Lisa shares similar sentiments in her testimony. [18] Kelly’s mother described her role at present to include picking Madison up in Moose Jaw on alternate Wednesdays and Thursdays and caring for Madison for about two hours on Friday afternoon when Kelly is in class. Mrs. Murphy, Sr. refuted any suggestion that she is the actual hands on care giver as opposed to Kelly. She testified that discipline of Madison, dressing the child, comforting, entertaining and calling the shots are exclusively within Kelly’s domain not hers. [19] Mrs. Murphy, Sr. described Kelly as a: ...careful, thoughtful and analytical parent. He is strong, confident, gentle, but firm, with Madison. Madison feels secure with her father. [20] Mrs. Murphy, Sr. described Madison to the court as being “brilliant, like her dad; imaginative and creative; sensitive and energetic”. Mrs. Murphy, Sr. said the family home backs onto park and that the school is within two blocks of their home. [21] Mrs. Murphy, Sr. explained that she had read the custody access assessment prepared in this case by Alan Jensen, M.S.W., R.S.W. She states that Mr. Jensen misinterpreted her comments that she harbours negative view of Lisa. Mrs. Murphy, Sr. says that the correct fact is that any negativity she harbours is with certain of Lisa’s behaviour, but not towards Lisa herself. The court finds this dichotomy somewhat confusing, preferring that one’s behaviour and self are inseparable. Evidence was contained in the custody access assessment that Kelly and his parents (or mother) resorted to obtaining mental health warrant at the time of separation under which warrant Lisa was arrested and detained briefly at the psychiatry wing of Moose Jaw Union Hospital. In this manner, Kelly and his mother obtained de facto possession of Madison, despite Lisa’s parents offering to keep the child. For the next six weeks, Lisa had no access to Madison until court order was granted in late November 2009 compelling shared parenting. [22] The Provincial Court judge who granted the mental health warrant was quoted by Mrs. Murphy, Sr. as advising that the attending psychiatrist who would examine Lisa would likely release her. If this quote is accurate, the warrant should not have issued. The Provincial Court should only issue such warrants if there is sufficient evidence that an individual is refusing to voluntarily seek medical attention and that individual poses reasonable apprehension of risk of harm to oneself or others. find the action of the Murphys was high-handed and suggests some considerable negativity existed at the date of separation towards Lisa. [23] Finally, and under further cross-examination, Mrs. Murphy, Sr. testified that Kelly is “artistic, voracious reader, heady guy”. She opines her son was unhappy for long time after separating but is rebounding and “more at peace”. [24] Mr. Murphy Sr. echoed similar evidence to that of his wife. [25] Deborah Beaudry, child’s pastor at the church, also testified on Kelly’s behalf. She described Kelly as being intelligent, articulate, receptive, fun-loving and affectionate. The Respondent’s Case [26] Lisa is presently 25 years old. She describes herself as “stay-at-home mom” to her two children, Madison and baby Colin, who was born January 26, 2013. [27] Lisa moved to new residence at the beginning of this year. It is rental eight-plex, two storey unit with basement. On the upper level are three bedrooms, one for Lisa and each child. There is bathroom on that level as well. The main floor contains the kitchen, dining and living areas. [28] Lisa testified that she graduated from grade 12 and then took correspondence course in interior design. She has not utilized that certificate in the field of interior design. Her employment has been sporadic. Her employers have included Wal-Mart, Superstore, Mac’s convenience store, Safeway and Providence Place senior’s residence. She worked at the latter part-time as housekeeper for approximately two years. Moose Jaw has been Lisa’s place of residence for the last four or five years. [29] Lisa testified that she has her mother and step-dad as well as their two girls (her sisters) residing in Moose Jaw. Her sisters are ages 11 and 12. Her father and step-mother reside in Brandon, Manitoba and also have two girls (half-sisters). Lisa advised the court that her own parents separated when she was only four or five years old. She further testified that she sees her mother once or twice week and that her mother lives but four or five minute drive from Lisa’s home. Lisa stated that she and her own father “...aren’t really that close. My dad is busy and not really that interested”. [30] Lisa describes Madison as being happy and healthy baby who developed quickly. She testified that she attended to Madison completing her vaccination program. Madison has her own family physician in Moose Jaw. She described Madison to the court as child weighing 37 pounds, standing waist-high to her mother, being outgoing, compassionate and loving. [31] Lisa has enrolled Madison in pre-school program at St. Agnes School in Moose Jaw. The school is situated within block of her residence. Madison attends the afternoon program as she has for the past two years. Lisa opined that Madison gets along well with her teacher and schoolmates. There are also neighbourhood children who are potential playmates for Madison when the weather warms up. [32] Lisa testified that Madison does not engage in extracurricular activities. She stated that is primarily because of the split week parenting regime which conflicts with many of the scheduled activity programs. [33] Lisa opined that Madison is very close to her baby brother. This relationship has been of short duration and undoubtedly Madison is fascinated with her baby half-brother. In this case, bonding between siblings and co-dependency are not of significant consideration given the ages of the children and the limited experience between them to date. [34] Lisa, like Kelly, sought and accepted personal counselling following their separation. Lisa looks to her counsellor on an as needed basis. Lisa feels she has made changes and advised the court that she feels she has more confidence and has better self-image. Lisa attends women’s support group within her church and feels that that experience has assisted her with her parenting skills. [35] Lisa described her health as good, though she takes supplements and has had weight deficiency in the past. [36] When asked about Mr. Jensen’s statement in his custody access assessment to the effect that, if the parties resided closer to one another, shared parenting would be realistic option, Lisa stated that she agreed with that proposition. However, Lisa testified that her re-locating to Regina is not feasible for economic reasons and because her support group and network are in Moose Jaw. [37] Lisa offered the advice that if the court makes her the primary parent, she would agree that Kelly should have Madison for three weekends of each calendar month and half of all school holidays. [38] Under cross-examination, Lisa advised that she will look for employment as soon as Colin is weaned perhaps couple of months from the present. Then Lisa stated that she would take upgrading or some skill or job training. Lisa then shifted gears once again stating to the court that she wants steady employment that will remove her from social assistance and make her financially independent. Finally, Lisa wavered in her testimony stating that right now, she needs to be at home to care for Colin, her baby, and for Madison. She stated that she does not want daycare workers looking after her kids and that daycare is expensive. [39] From observing Lisa’s demeanour in the witness stand and literally observing Lisa think and speculate out loud, it became apparent to the court that Lisa is uncertain of her future. She had not considered how daycare and its related cost might factor into any potential employment decisions. She was not able to describe any contingency plan for occasions when child might be ill or in need of care while she would be at work. Her comment that Colin’s father would be resource defies his real conduct to date, in which he has, for all intents and purposes, abrogated all responsibility for his new son. As stated earlier, Lisa projects as naive and somewhat immature and flighty in her thought patterns and perception of the real world in which she presently finds herself. Having said that, the court finds that Lisa is nonetheless competent and loving mother. [40] Lisa lives on social assistance. She testified that her rent and utilities are paid for directly by the Ministry of Social Services. She is unaware of the actual costs. Over and above those direct payments, Lisa testified that social services pays her $375.00 each month. She stated that in addition, she receives $796.00 from the Government of Canada in the form of the Canada Tax Benefit and GST. Lisa was not able to describe budget or financial plan to the court in contemplation of her pursuit of employment. She merely explained her understandable desire to earn sufficient money to become self-sufficient and off of social assistance. Lisa did advise the court that she was not attempting to obtain child support for either Colin or Madison. [41] Lisa filed her income tax return for 2012. Her total income was reported to be $12,894.77, made up of $1,432.72 of employment income, $1,200.00 UCCB and $10,262.05 social assistance payments. [42] Lisa also filed statement of needs and deductions prepared by the Ministry of Social Services for March/13. Needs were listed as: Basic allowance $225.00 Utilities 45.00 Shelter $542.00 Total Needs $843.00 Income was listed as: Wages $117.61 Wage exemption $117.61 Adjusted Wages $0 Total Income: $0 [43] In the result, the Ministry paid on Lisa’s behalf, and to her directly, the sum of $843.00 each month. Lisa stated that she has the potential to earn between $16.30 per hour to $17.40 per hour as housekeeper at Providence Place if she should obtain re-employment there. [44] Lisa was hesitant to commit to driving Madison between Regina and Moose Jaw given the condition of her vehicle and her concern about the vehicle’s performance in unfavourable weather. [45] Lisa agreed that Kelly is very good father, just as Kelly acknowledged Lisa to be very good mother. [46] friend from Lisa’s church and support group gave the court brief explanation of how the support group functions and engages Lisa within the group. The Custody Access Assessment [47] The court ordered custody/access report at the request of the parties. Such report was prepared by Alan Jensen, M.S.W., R.S.W. The report was filed July 25, 2012. The report is extensive and canvassed input from Kelly, Lisa, Mr. and Mrs. Murphy, Sr., counsellors to both Kelly and Lisa and number of individuals selected by Kelly and Lisa as their respective personal references. The reported evidence parallels the testimony given at trial in most respects. [48] The parental attributes of each of Lisa and Kelly are described by Mr. Jensen as follows: Assets of Lisa as Parent When asked what she offers Madison as parent Lisa wrote: “I have love, encouragement, knowledge on parenting (from parenting classes), good home for her, family to bring her to visit, understanding, she knows will listen to her and she can talk to me.” Lisa acknowledges that Kelly offers “love” to Madison. Lisa presents as caring, loving and conscientious parent. She has encouraged the socialization of Madison by involving her in pre-school and daycare. Lisa has consistently reached out for appropriate community support services. Liabilities of Lisa as Parent: When asked what her weaknesses are as parent Lisa responded: “Sometimes might be emotional if don’t get enough sleep. If too much is happening at once can feel frustrated.” If she is feeling this way Lisa will tell Madison to “please be quiet”. It appears that Lisa has encountered difficulties sustaining stable adult relationships and this may have consequences for Madison. Her relationship with Kelly was marked by domestic disharmony. Relatively soon after her short-term relationship with Matt, she commenced relationship with Nick, who is the father of her expectant child. It appears that this relationship may be “uncertain”, if not unstable. Assets of Kelly as Parent: When asked what he offers Madison as parent Kelly wrote: “A physically and emotionally safe and stable environment. Time, spent with myself, with other children and with family, on both my side and Lisa’s side of the family (I arrange visits with Lisa’s father’s family). plan my schedule around my time with Madison, to maximize the attention can give her. When cannot be around, arrange for her to spend time with my family.” Kelly presents as loving, devoted and conscientious parent. He recognizes that Madison is bright little girl and he has explored various educational options should she primarily reside with him. Kelly and Madison enjoy considerable support from extended family and their church community. Liabilities of Kelly as Parent: When asked what his weaknesses are as parent Kelly replied: “I focus on the moment and little on the future ... I’m not girl, therefore can’t multitask, therefore focus on Madison first and leave the rest.” It appears that Kelly’s current residential arrangement has advantages and disadvantages in relation to Madison’s best interest. On one hand she and her father enjoy considerable support and stability from Terry and Terri Murphy. On the other hand, the grandparent’s negative view towards Lisa might place the effective co-parenting of Madison at risk, if Kelly fails to assert himself. [49] At p. 13, Mr. Jensen expresses his views of Madison: It is this writer’s view that Madison, who is not yet four years old has endured great deal of conflict, instability and change already in her young life. What she does not need at this pivotal point in her development is to be exposed to more change and instability in adult relationships while in her mother’s care. That being said, Lisa deserves great deal of credit for addressing Madison’s educational and socialization needs and enlisting considerable support from her community. [50] Mr. Jensen discusses Madison’s exposure to conflict at p. 14 of his report and states: Exposure to Conflict: As previously stated, it appears that Madison’s life has stabilized considerably since the days when she was exposed to the domestic disharmony perpetrated by her parents. would concur that during those tumultuous days in late 2009 both parents displayed behaviors that would suggest they were “very immature”. At present the conflict that remains, appears to take the form of comments about the other parent that Madison hears and “feels”, as both parents and their supporters continue to push their agendas and voice their grievances. For many young children like Madison, their exposure to the tensions between their parents is particularly prevalent around the times of exchanges. Therefore it should come as no surprise when both parents report that Madison continues to encounter difficulties with transitions. Both sides need to make concerted effort not to portray the other parent to Madison in negative light. If this tendency goes unchecked into the future, this exposure to conflict will inevitably eat away at Madison’s sense of self-esteem and security. It should be remembered that Kelly and Lisa are Madison’s primary role models. [51] Mr. Jensen’s conclusion is reported commencing at p. 14 as follows: Conclusion: Through the course of this assessment this writer has come to view Kelly and Lisa as two young parents who overall, have grown in maturity since the time of the separation and have evolved into loving, caring and competent parents of Madison. Each parent has and will continue to provide something unique and beneficial, which will contribute to Madison’s ongoing care and upbringing. The court has asked the assessor: “with whom should the child primarily reside with when she attends school?” It is this writer’s conclusion that in terms of providing for the fundamental need of security and an appropriate plan for Madison’s future, that parent should be Kelly. It should be stressed that this decision was almost “too close to call”, given Lisa’s considerable strengths. In my opinion if Lisa and Kelly were to reside in the same community, shared parenting arrangement should be strongly considered. In the meantime with all things considered, Madison needs stable home to launch the next significant phase of her development, as her social and educational world expands into the life as new student. As long as Kelly and his parents commit to supporting Madison’s relationship with her mother, then this child stands to benefit from what both parents have to offer. [52] Mr. Jensen closes his assessment with eight recommendations. It is the court’s function to draw its own conclusions based upon the totality of evidence presented at the trial. The views of any assessor are independent conclusions of the assessor after gathering his or her evidence through the inquisitorial process of gathering evidence wherever the assessor deems appropriate. On the other hand, the court is given evidence under the accusatorial process of presenting evidence, that being the evidence which the parties to the dispute choose to present at trial. Unlike the inquisitorial process, judge may not embark upon seeking out evidence of his or her own accord or choosing. Hence, while appreciate the recommendations of Mr. Jensen, the court moves independently as trier of the fact, selecting the evidence the court considers factual and relevant to the issue or issues to be determined. Once having found those relevant facts, the court applies the same to the law. THE APPLICABLE LAW [53] This action comes before the court under the aegis of the Divorce Act, R.S.S. 1985, c. (2nd Supp.), being federal law, and, under The Children’s Law Act, 1997, S.S. 1997, c. C-8.2, which is provincial statute. Each statute recites the relevant tests and factors which trial judge must consider in custody dispute such as this. The Children’s Law Act, 1997 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. The Divorce Act: (6) The court may make an order under this section for definite or indefinite period or until the happening of specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. (7) Without limiting the generality of subsection (6), the court may include in an order under this section term requiring any person who has custody of child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child. (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. (10) In making an order under this section, the court shall give effect to the principle that child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [54] The overriding principle of law, embraced by each of the Divorce Act and The Children’s Law Act, 1997, as well as being the overarching principle of law governing child custody/access, is the best interests of the child. [55] Let me briefly mention some case law which expands upon the statutory guidance set out above. In the recent decision Seymour v. Seymour, 2012 SKQB 161 (CanLII), 396 Sask. R. 143, Justice Wilson makes the point as follows: 60 In addition to the statutory guidance as set out above, the principles of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27, 141 Sask.R. 241 apply. As set out by Wright J., in Norrish v. Norrish 2005 SKQB 396 (CanLII), 20 R.F.L. (6th) 366, the Gordon principles apply even though this is an initial application for parenting order as opposed to variation application. Justice Wright states, as para. 47, as follows: 47 The leading authority in this area remains Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27. Notwithstanding that Gordon involved an application to vary an existing custody order, many of the guiding principles set out in that decision are equally applicable in applications of first instance, as is the case here. Those principles were summarized by Austin J.A. in Bjornson v. Creighton (2002), 2002 CanLII 45125 (ON CA), 31 R.F.L. (5th) 242 (Ont. C.A.) at para. 18: The Gordon proceeding dealt with mobility within the context of an application to vary an order. In the instant case, the issue of mobility was dealt with at the original hearing following the two interlocutory orders made on consent. Despite these differences, the guiding principles set out in Gordon, which remain applicable in the case before us, are: 1. The judge must embark upon fresh inquiry into what is in the best interest 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. 2. 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 and the most serious consideration. 3. 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. 4. The focus is on the best interests of the child, not the interest and rights of the parents. 5. 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 reasons for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (f) the disruption to the child of change in custody; and (g) the disruption to the child consequent on removal from family, schools and the community he has come to know. [56] Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27, 141 Sask.R. 241, also stands for the proposition that custody application, such as is before the court today, involves child-centered analysis. It is the perspective of the child which the court must take. The child’s best interests are paramount to the needs and interests of the parents. In Gordon v. Goertz, Madam Justice McLachlin, as she then was, states at para. 28 the following: 28 The 1985 Divorce Act now instructs courts that the interests of the parents are no longer relevant in custody determinations. As noted previously, the child's best interests are not merely “paramount”, they are the only consideration. The revised Act also introduced statutory recognition of the principle that children generally benefit from contact with both parents.... [57] Addressing s. of The Children’s Law Act, 1997 and applying the best interests principle, the court must take into account the conditions expressed in s. 8(a)(i) through (vii). [58] The quality of Madison’s relationship with each of Kelly and Lisa and their respective extended families is the first consideration. There is little to choose between the quality of the relationship Madison has with each of her mother and father. While the parents have different personalities, it was common ground that Madison loves both her parents and they her. No evidence was presented to distinguish this parent child relationship between mother and father as one being more favourable than the other. Madison appears to have a close affinity to her paternal grandparents which the court attributes to largely one of opportunity. The maternal grandmother offered to care for Madison when Lisa was apprehended under the mental health warrant, but the paternal grandparents and Kelly refused and asserted their right of possession arbitrarily. However, in the past three and one-half years, the Murphy family have established a more constant presence in Madison’s life and it is within the Murphy residence where one might properly presume Madison feels more familiar and comfortable. Continuity and stability are relevant factors in this regard. [59] The personality, character and emotional needs of Madison have been described in this judgment. Madison is healthy child physically and emotionally. She has displayed resilience. Kelly and Lisa will have significant inputs in sharing the responsibility of parenting Madison pursuant to this judgment and, in doing so, should have every opportunity to address Madison’s emotional needs. [60] The physical and economic needs of Madison can best be met within the Murphy residence and under Kelly’s primary care. This is, in large measure, due to Kelly’s parents’ benevolence. The reality is that these factors do add to Madison’s best interests. court will not simply award custody on the basis of affordability and no one reading this judgment should consider the rationale herein so crassly. Wealth is not the deciding factor in this judgment. However, The Children’s Law Act, 1997, at s. 8(a)(iii) requires that the court shall take into account the physical and economic needs of Madison. They are best met in Kelly’s primary care. Lisa is struggling financially in her present circumstances. As to the psychological and social needs of Madison, it would be matter of speculation as no evidence expressly addressed those two factors at trial. The court is satisfied that both Kelly and Lisa are competent and capable of addressing these latter two needs. But once again, on balancing the weight of evidence, the preference weighs in Kelly’s favour. [61] As to the capacity of Kelly and Lisa to act as Madison’s legal custodian, the evidence is balanced. [62] The home environment proposed by Kelly outweighs that of Lisa. Again, this is not criticism of Lisa in any way. The reality of each home environment must be compared. The environment is combination of both the physical house, neighbourhood and school. Most important are the people in those settings who impact upon Madison’s life. In totality, while Kelly and Lisa are even on this count, the other family and social network again auger in Kelly’s favour. [63] When considering Kelly and Lisa’s respective future plans for Madison, one must, of necessity, consider the evidence of the future plans of the individual parent. Parent and child’s futures are inextricably entwined. Kelly presents with distinct plan for his future including parenting of Madison. Lisa is vacillating over her desire to stay at home and parent, particularly having expressed her dislike of daycare tending to her children. On the other hand, she wavered and recognized her need to work and her desire to gain financial independence. Kelly is the benefactor of his family’s generosity. Lisa has been left to go it alone that is reality. Her plans are uncertain, though her intentions are good. At this juncture in Kelly, Lisa and Madison’s lives, Madison will experience greater stability and continuity in Kelly’s primary care. [64] Madison is too young to express her wishes. [65] The Divorce Act does not mandate the court to examine the same factors which are set out at s. of The Children’s Law Act, 1997. Section 16(8) of the Divorce Act mandates that the court consider only the best interests of Madison as determined by reference to the condition, means, needs and other circumstances of Madison. The court has addressed each of those four parameters. [66] At s. 16(7) of the Divorce Act, it is prescribed that the court may include in any order under s. 16 requirement that the custodial parent who intends to change place of residence of the child notify the other parent at least 30 days before the change or within such other period before the change as the court may specify. Such notice must contain the time at which the change will occur and where the new residence of the child will be located. In my opinion, 30 days is not sufficient for Lisa or Kelly to assess the impact of change of residence, to confer with one another and, failing consensus, for the aggrieved parent to take legal action. Given the shared parenting regime, the court orders herein each of Kelly and Lisa shall notify the other of any impending change of residence no less than 45 days in advance of such change with full particulars as set out earlier. ANALYSIS AND CONCLUSION [67] Madison has arrived at new phase in her young life. She must begin school and be given the opportunity to engage in social, athletic and artistic facets of life which appeal to the child and nurture her wholesome development. It is in this next phase of child’s life that the child begins his or her progression to independence. It is in the youthful stage of life that child proceeds to define and grow his or her identity. Generally speaking, this progression is the right of the child. The parents bear the obligation and responsibility to accommodate and facilitate the child’s rights. This is not always an easy concept for the parents to understand and embrace. Sometimes parent falls into psychological trap of attempting to actualize the parent’s goals or aspirations through one’s child. We see this too often in minor sports. The reality is that in order for child’s best interests to be achieved, parents must allow the child to develop at the child’s own pace and in accordance with the child’s emerging skills, desires and aptitude. These principles apply to Madison. She requires the stability of primary residence, neighbourhood, school and social network. Her environment must be free of parental conflict and paternal or maternal families pushing their respective agendas onto Madison. Whichever parent is delegated by the court as the primary parent, in this instance being the parent to provide the primary residence and choice of school, both parents must accept and embrace the decision of the court, for they deferred this important decision to the court, being unable to agree between themselves. By accepting and embracing this decision, the parents must demonstrate their unconditional love for Madison and put an end to open conflict, denigration and lack of cooperation. Madison must see her parents as appropriate role models which includes consistent demonstration of civility, respect and occasional deference to the other parent. [68] The court finds that Madison’s best interests will best be served at this juncture by her residing with Kelly. Kelly’s life and living circumstances, while by no means firmly established, are more stable, certain and predictable than Lisa’s living circumstances. This became clearly evident to the court as each parent described their immediate goals, strategy for achieving those goals and the present status of their respective paths to achieving those goals. [69] Kelly has the good fortune of his parents providing stable home for Madison and by their agreeing to provide the necessary essentials Madison requires. On the other hand, Lisa displayed uncertainty as to how she will achieve her independence. found Lisa somewhat more immature and naive about the realties and options available to her at this stage in her life. She does not have the same support network as Kelly not fault of her making, simply reality. Neither of her mother or father testified on Lisa’s behalf. Nor could Lisa convince the court that her extended family will provide the safety net and support which Kelly’s family have offered. The court does not intend the Murphy family to take this judgment as an overwhelming endorsement. have expressed the court’s disappointment at the high-handedness in misusing the facility of mental health warrant. Mr. Jensen also came to the same independent concern where, at p. 14 of the report, he stated: ... At present the conflict that remains, appears to take the form of comments about the other parent that Madison hears and “feels”, as both parents and their supporters continue to push their agendas and voice their grievances. [70] However, with the benefit of hindsight and an open mind, it is facet of the human condition that we can grow and learn from our past experiences and mistakes. The court finds both extended families have good intentions and will likely do their respective parts to enable Madison’s best interests to be achieved. [71] Lisa should not take this decision as form of condemnation. The reality is that she is young woman with yet another infant to raise on her own. She has not received the benevolence of others to assist her in raising Madison nor her newborn. This saddens the court and appreciate the enormity of her struggles. To dedicate Lisa as the primary care giver of Madison would add to her already considerable burden, which would neither be fair to Lisa nor the children. In time, it is hoped that Lisa’s initial disappointment with the judgment will be replaced by understanding and agreeing with the court’s rationale. THE MAXIMUM CONTACT PRINCIPLE [72] Earlier in this judgment is recitation of factors found in the Divorce Act and The Children’s Law Act, 1997. One of those factors proscribes the principle that child should have as much contact with each of his or her separated parents as the facts and circumstances might reasonably permit. Paired with this principle is the corollary that the parent given primary care of child should facilitate the access or shared parenting of the child by the other parent. The latter corollary is euphemistically called “the friendly parent rule”. Once again, these legal principles of maximum contact and facilitation can be challenging to the parents, but must, for the child’s best interests and well-being, be adhered to and sedulously fostered. Kelly and Lisa, together with their supporters, cannot quibble over transporting Madison to and from Regina and Moose Jaw. It is minor inconvenience in the scheme of things in this case. Kelly and his parents are in much better position to facilitate Madison’s transportation than is Lisa. Kelly shall therefore bear the responsibility for transporting Madison. [73] From a legal position, both Kelly and Lisa shall continue in their capacity as joint custodians of Madison. Kelly shall be the primary care giver and provide the primary residence for Madison. Maximum contact, as have mentioned, is presumptively in the best interests of Madison. In recent decision, Schick v. Woodrow, 2012 SKCA (CanLII), 385 Sask. R. 153, the Court states at para. 25 as follows: 25 ... In my view, even where one parent has been designated the parent of primary residence, it is presumptively in the best interests of child to have as much contact with each parent as is reasonably possible having regard to the given circumstances and for each parent to play as active role in the life of the child as is practical. There is significant risk that parent who is prevented from playing such role and becomes passive bystander in the child's life will eventually drift away from on‑going involvement in the child's life. These considerations favour an order for joint custody in the absence of some reason relevant to the best interest of the child to the contrary. ... THE SHARED PARENTING REGIMEN [74] While mid-week visit (Wednesday evening) was once practice when Madison was younger, it is unrealistic to consider that now. First, it is impractical to drive that distance in order to accommodate the visit of an hour or two duration. It is especially so given mid-week visit would occur on school night and might limit extracurricular activity options available to Madison. Fortunately, we now live in an age of communication technology which is both sophisticated and affordable. The court asked Lisa about her having computer. She has none. However, during summation and argument, Kelly said it was within his means to procure computer for Lisa’s home. In this manner, Kelly and Lisa can complement their own communications by email. More important, webcams and skype are modes of communication by which Madison and Lisa can communicate regularly during the course of a week. In this manner, they see each other’s images and hear one another’s voices. It is the court’s opinion that Kelly accommodate Lisa with such means to see and speak to Madison, and vice versa, during the school week. It may be most appropriate to enable such contact prior to Madison’s bedtime. In this manner, each parent experiences putting Madison to bed, albeit not with equal intimacy. The importance and facility of the computer will ameliorate the mid-week need of travel. [75] The court orders that Lisa shall parent Madison three consecutive weekends and Kelly on the fourth weekend. Lisa’s first and third such weekends will commence on Friday evening at 5:00 p.m. (prior to Madison’s supper) and conclude on the following Sunday evening at 6:30 p.m. (after Madison’s supper). The second of such weekends will commence on Thursday at 5:00 p.m. and conclude the following Sunday at 6:30 p.m. Should either of these three consecutive weekends be contiguous with a statutory holiday, Lisa’s weekend shall be expanded accordingly. Or, if a school holiday occurs contiguous with Lisa’s weekend, Madison shall be with her for those additional days. The start and stop times will remain constant. This results in Madison missing one day of school in every four weeks to permit the longer weekend with her mother. Madison has been described as bright and intelligent child and therefore at kindergarten or grade one, missing day of school once in every four weeks should not compromise Madison’s academic standing. By the time Madison begins grade two, missing that additional day once in every four weeks might affect her schooling. The court therefore leaves Kelly and Lisa to determine the wisdom of Madison skipping school at that future point in time. [76] At Christmas and Easter, elementary school children in the City of Regina customarily have 14 and 10 days of school recess respectively. Kelly and Lisa shall each parent Madison for one-half of the school recesses. The court leaves the division of such Christmas and Easter breaks to be discussed and agreed upon by Lisa and Kelly. However, if the parents fail to agree on how these breaks, or any one of them, should be divided, then Lisa shall have Madison with her for the first half of the Christmas and Easter school recess and Kelly shall have the latter half of the said Christmas and Easter school recess in all odd numbered years. In all even numbered years, Kelly shall have the first half of the said school recesses and Lisa the latter half. Exchange times shall be 5:30 p.m. for commencing and 6:30 p.m. for concluding, unless Lisa and Kelly agree otherwise. [77] Kelly and Lisa shall make allowances for father’s day and mother’s day in each year such that Madison spends the respective day with her father or mother. [78] The summer school recess should be approached with Madison spending equal amounts of time with her mother and father. At age four, the longer duration away from either parent is generally more difficult than when the child is older. One week alternating intervals is suggested with each parent. However, life is never that simple. While the foregoing summer allocation is minimal and mandatory, this may not be practical or affordable if Lisa is employed and has limited annual holidays. Perhaps the same is true for Kelly. Here, the court defers to Kelly and Lisa to meet and discuss if an alternative sharing of parenting during the summer school recess better meets their collective and mutual needs. Parents are always at liberty to depart from court ordered regimen by mutual agreement. court order is fallback only when the parents cannot agree. However, should Kelly and Lisa not be able to agree on the specific division of the summer school recess, the court orders that Madison shall spend alternating weeks with each parent. [79] The court calculates the division of parenting time in year under the foregoing regime has the effect of placing Madison with Lisa for 30% of the year and 70% of the time with Kelly: days in 28 10 months 70 days with Lisa 31 days in 62 (July and August)= 31 days with Lisa days in 24 (Christmas and Easter)= 12 days with Lisa TOTAL: 113 of 365 days/year [80] The court has not been asked to address child support for Madison. Lisa has no financial resources to pay child support in any event given her present unemployment and lack of family support. [81] Finally, should Madison have a spring break from school of greater than three clear days, Kelly and Lisa shall provide each has at least one-half of those days to parent Madison. EXTRACURRICULAR ACTIVITIES [82] The choice of extracurricular lessons or activities for Madison must accord with the child’s best interests. It requires the collaboration of Kelly and Lisa in meeting with Madison, eliciting the child’s feelings and desires on the matter, and then having frank and unbiased discussion between Kelly and Lisa. The court strongly urges (short of an order) that Kelly and Lisa meet with Madison before the fall and winter semesters, as well as prior to summer registration deadlines. In this manner, they should choose an extracurricular activity or activities which best suit Madison’s needs and interests while also being reasonably affordable and causing the least, or no, disruption to the parenting regime mandated by this judgment. [83] The very nature of this trial is neither litigant is more successful than the other. The parents deferred to the court to make the difficult decision for them as to where Madison shall attend school and have her primary residence. As consequence, each party shall bear their own costs. NOTE TO TRIAL COUNSEL [84] The court expresses its thanks to Mr. Struthers, Q.C. and Mr. Campbell for the professional and collegial manner in which the trial was presented to the court. J. N. S. SANDOMIRSKY
The parties had a shared parenting arrangement since separation where each party parented their four-year-old child for equal times in a two-week cycle, the petitioner parenting in her home in Moose Jaw and the respondent parenting in his parent's home in Regina. The issue before the Court was to determine where the child should primarily reside and attend school. Each party saw the other as a competent and loving parent. The petitioner had another child, a half-brother to the parties' child, who was an infant at the time of the application. The petitioner was a stay-at-home mom on social assistance and the respondent was a student who worked part-time and lived with his parents. The respondent's parents were willing to assist the respondent financially and in the care of the child. The Court ordered custody/access report concluded that the child should primarily reside with the respondent, though the author noted that the decision was almost too close to make. HELD: The Court held that the best interests of the child would be best served by her primarily residing with the respondent and the parties having joint custody of the child. The Court first considered the quality of the child's relationship with each party and their families and concluded there was little difference between the parties but the child had a closer relationship with the respondent's extended family because she resided with them when she was with the respondent. The Court also determined that the child's economic needs could best be met residing with the respondent and his parents. The home environment of the respondent was found to outweigh that of the petitioner's. Further, the Court held that the child would have greater stability and continuity with the respondent, who has a concrete future plan. The petitioner's future plans were wavering and uncertain. The respondent was ordered to bear the responsibility for transporting the child to and from Moose Jaw and Regina. The respondent was also required to accommodate the petitioner and child by supporting Internet communications between them during the week, especially at bedtime. The petitioner was granted parenting time three consecutive weekends and the respondent on the fourth weekend. The second of the petitioner's weekends was extended to include another day as were any weekends with school or statutory holidays. The decision requires the child to miss one day of school every four weeks and the Court therefore left it to the parties to determine whether this can continue once the child begins grade two. The parties were ordered to each parent the child for half of Easter and Christmas breaks and they were to accommodate each other for Mother's and Father's Day each year. Further, the Court ordered that the child spend half of each summer holiday with each parent, suggesting that alternating weeks may be the best for the child, unless otherwise agreed to by the parties. Lastly, if the child has a school break longer than three clear days, the petitioner is to parent at least one-half of those days. The Court also urged the parties to collaborate and discuss the extra-curricular activities best suited for the child taking into account their affordability and disruption to the parenting arrangement.