nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 219 Date: 2017 07 17 Docket: FLD 269 of 2008 Judicial Centre: Saskatoon (Family Law Division) BETWEEN: MEGAN ASHLEY WOLFE and SHAWN SCOTT DIEDERICHS and COLLEEN WOLFE THIRD PARTY Appearances: (Megan A. Wolfe deceased) Shawn S. Diederichs appearing on his own behalf Davin R. Burlingham appearing for the third party JUDGMENT WILSON J. July 17, 2017 Introduction [1] The third party in this matter is the maternal grandmother of the two children, Gage Arthur Diederichs [Arty], born September 18, 2006 and Haydn Lee Dion Wolfe, born May 1, 2008. The respondent, Shawn Diederichs, is the biological father of the two children. Sadly, the petitioner, Megan Wolfe, died of cancer on January 19, 2015. She was the biological mother of the two children. [2] The grandmother argues she is person of sufficient interest with respect to the two boys. Her position is that she and the father should have joint custody of the boys but her home be the children’s primary residence. She also seeks an order providing her with sole decision-making authority regarding medical care, counselling and education. She is willing to provide the father with parenting time with the children. [3] The father takes the position that it would be in the best interests of the children to move from the primary care of the grandmother to his primary care. He seeks an order that he have custody of the children. He is not opposed to the grandmother having reasonable and liberal access with the children. [4] Finally, the grandmother requests an order obligating the father to pay child support for the children if she is successful in her request for primary care of the children. [5] The following issues must be determined: 1. Is the maternal grandmother person of sufficient interest with respect to the children; 2. If the grandmother is person of sufficient interest, what parenting arrangement would be in the best interests of the children; and 3. If conclude that the children should remain in the primary care of the maternal grandmother, what, if any, child support should be payable by the father to the grandmother. History of Proceedings [6] The mother and father lived together as common-law spouses from January 2005 until January 2008. After the parties separated the mother proceeded with Petition, issued August 26, 2008, claiming custody of the children. The father did not respond to the Petition and was noted for default on October 7, 2008. However, the father subsequently obtained the services of counsel, and motion was made to set aside the noting for default. With the consent of counsel for the mother, the noting was set aside January 26, 2009. The father then filed his Answer and Counter-Petition. [7] In the father’s Answer he did not dispute the mother’s claim for declaration of parentage, her claim for child support or her request that the children be designated as beneficiaries of any life insurance, pension plan or health care plan he owned. He opposed the mother’s claim for custody and her request that she be allowed to appoint person to have custody of the children and be guardian of the property of the children upon her death. [8] The father brought notice of motion in March of 2009 requesting an interim order for joint custody of the two children. He also asked for liberal access to the children and declaration by the Court that he was the father of the children. After reviewing the extensive affidavit material filed and hearing from counsel on behalf of both the mother and father, Mills J. granted an interim order on March 27, 2009. Pursuant to the terms of the interim order, the father was declared to be the father of the two children. The father was granted supervised access to the two children through the Supervised Access Program offered by Family Justice Services. His access was stated to be “no more than one hour per week for the first month from the date of this order” and “no more than two hours per week for the next four months following”. [9] In August 2009 Family Justice Services filed with the Court the Supervised Access Program Reports regarding the father’s supervised access visits for the time period from April 2009 to August 2009. The issue of the father’s access was then argued before Dufour J. on October 9, 2009. Dufour J. amended the father’s access from supervised to unsupervised. He granted the father access every second weekend from Friday evening to Sunday evening. He did, however, specify that all access would be exercised in Saskatoon. Further, due to continuing conflict between the parents, exchange of the children was to be supervised by the Family Justice Services Supervised Exchange Program. Finally, Dufour J. indicated that the matter should once again come before the Court on December 11, 2009 for an update on the father’s access. [10] At the December 11, 2009 court appearance, Maher J. continued the access as set out by Dufour J. However, he added conditions to the father’s access. Specifically he ordered that the father not have in his residence alcohol or non-prescription drugs and not be under the influence of alcohol or non-prescription drugs for minimum of 12 hours prior to him obtaining access to the children and throughout the time the children were with him. [11] It was not until after the mother’s death in January 2015 that matters regarding the children came back before the Court. In May 2015 the grandmother brought an application requesting she be joined as party to the proceedings and she be named person of sufficient interest regarding the children. Further, she requested an interim order granting her sole custody of the children and an order that the father have supervised access to the children. [12] On May 20, 2015 Gabrielson J. made an interim order designating the grandmother as person of sufficient interest to the children and added her as party to the action. With respect to the father’s access with the children, he ordered the father’s access to be supervised by his aunt, Arlene Viden. [13] To their credit, the grandmother and father were able to come to an agreement and an interim consent order was granted by Dufour J. on July 15, 2015. In accordance with the terms of that order, the father’s access went from supervised to unsupervised and was to continue to occur every second weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. The parties further agreed that the father would have telephone access to the children once per week. The matter was then adjourned over to the specific date of August 14, 2015. [14] On August 14, 2015 Tholl J. made an order that the grandmother and father have interim joint custody of the children. However, he granted the grandmother sole authority to make all decisions and provide all authorizations and consents regarding medical care, counselling and education for the two children. In his order he indicated that the father would have the right to be provided with all information regarding medical, counselling, educational issues directly from the care providers or the school or educational institution in the same manner as parent with sole custody would have. Finally, Tholl J. ordered the father would continue to have access to the children as ordered by Dufour J. and the children would continue to reside primarily with their grandmother. Tholl J. then directed the matter to proceed to an expedited pre-trial. [15] On January 7, 2016 the matter proceeded to pre-trial settlement conference. After settlement discussions, the parties agreed to an interim parenting arrangement whereby the father would have access with the boys for three weekends in row with no access on the fourth weekend. The parties also agreed to split the spring break and Easter holidays on an equal basis. This agreement was considered an interim arrangement to be tried by the parties. On November 16, 2016 the pre-trial conference was reconvened. Unfortunately, no agreement could be reached regarding the ongoing parenting arrangement for the two children. The matter then proceeded to trial before me. [16] At the conclusion of the trial made an order respecting access for the summer of 2017. In essence, set out specific dates such that the grandmother and the father would share the summer holidays in an approximately equal arrangement. Person of Sufficient Interest [17] There is an interim order designating the grandmother as a person of sufficient interest. This designation was made pursuant to s. 6 of The Children’s Law Act, 1997, SS 1997, c C-8.2. The designation of the grandmother as person of sufficient interest on an interim basis does not bind me when considering whether or not to grant person of sufficient interest status to the grandmother after having heard all of the evidence at trial. It is only if grant the grandmother the appropriate status that she can apply for custody of the children. Section 6.1 of The Children’s Law Act reads as follows: 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. [Emphasis added] [18] The Saskatchewan Court of Appeal decision in S.(G.E.) C.(D.L.), 2006 SKCA 79 (CanLII), 285 Sask 19 [S.(G.E.)], provides guidance regarding the steps must take when applications are brought by individuals other than mother or father. At para. 47 of that decision, Richards J.A. (as he then was) stated as follows: 47 The proper focus of an inquiry in relation to the “sufficient interest” question, in my view, is the nature of the relationship between the applicant and the child. The question of the child's best interests does not enter the analysis at that point. In determining whether non-family applicant is person with sufficient interest, the court should consider variety of factors including, but not necessarily limited to: (a) the extent or degree of the applicant’s involvement in the child’s life, (b) the duration of that involvement, (c) the level of intimacy and the quality of the relationship between the applicant and the child, (d) how the relationship between the applicant and the child was represented to the world, and (e) whether the applicant provided financially for the child. Further, at least in relation to situations such as the one at issue in this appeal where there is no traditional family or blood relationship between the applicant and the child, it is necessary to consider whether the applicant can show settled commitment to the child and an intention to be continuing and meaningful presence in the life of the child. Overall, in the kinds of circumstances involved here, s. generally should be applied to screen out applicants who do not have both significant relationship with the child and demonstrated and settled ongoing commitment to the child. [19] The Court of Appeal in S.(G.E.) was dealing with request by third party “friend” of the children’s biological mother. He sought access visits with the mother’s twins. In the matter before me, the applicant is the maternal grandmother who is making an application for custody of the two boys. The two-stage analysis is equally applicable when family member pursues custody. [20] It is not disputed that the mother and father commenced cohabitating relationship in January 2005 when the mother was 18 and the father was 25 years old. The mother and father resided together until their separation in 2008. At the date of the separation the parties’ youngest child, Haydn, had not yet been born. The mother left with the oldest child, Arty, after police involvement. The father was charged with assault of the mother, but he denies having assaulted her. He did, however, acknowledge he signed peace bond to, as he put it, “get it over with”. The mother moved into the maternal grandmother’s home with Arty. The parties’ second child, Haydn, was born while the mother was continuing to reside with the maternal grandmother. As set out previously, the father’s initial access with the children was supervised and then proceeded to unsupervised access. [21] The mother and the two children lived with the maternal grandmother until the mother moved in with her boyfriend, Josh Melnyk, in approximately February 2011. The mother gave birth to twins from her relationship with Josh on November 26, 2011. The mother lived with Josh, the twins and Arty and Haydn until she went into the hospital in February of 2014. [22] The grandmother testified she looked after the children lot while the mother was living with her from 2008 to 2011. Further, even after the mother moved out to live with Josh, the maternal grandmother indicated that she stayed very involved. In February 2014 the children, Arty and Haydn, moved into the grandmother’s home as the mother needed to be hospitalized. The mother was in hospital for almost year before she passed away January 19, 2015. [23] The maternal grandmother was looking after the children full time, and she brought them to the hospital to see their mother every day. She ensured the children attended school and did everything she could to support the children as their mother was dying. [24] I have no difficulty determining that the maternal grandmother is a person of sufficient interest regarding Arty and Haydn. Not only does the grandmother have “blood tie” to the children, but the children have lived with the grandmother for significant portion of their lives. The grandmother has standing under The Children’s Law Act to bring her application for custody. CUSTODY AND ACCESS [25] The father was born July 7, 1979. He is now 38 years old. [26] The father currently resides at home in Saskatoon located at 3421 Harrington Street. There are four people living full time in the home. The father’s sister Tammy lives in the home and works days. The father’s nephew Gabriel lives in the home and attends school at Evan Hardy Collegiate. Finally, Arlene Viden, the father’s aunt, resides in the home on Harrington Street. She is currently not working as she is receiving disability as result of car accident. The father testified that the home is huge home located in friendly and safe neighbourhood. [27] The father filed photo album which includes number of photos of the home. There is delightful photo showing the front of the house with the children all dressed up for Halloween. There is photo of the bedroom where the two boys sleep when they stay at the father’s home. Each of the boys has single bed, and they appear to have decorated their room with movie posters. There is photo of the backyard of the home. There is large deck and large green space where the father said trampoline can be set up, and the kids can play catch. The large backyard is also used for activities like bonfires and tenting. photo taken in the summer of 2016 shows the father, the two boys and their cousin having fun in great tent in the back yard. [28] Across the street from the father’s home is very large park. The father testified that the children play in the park frequently. He also testified that there are three schools within walking distance of the home surrounding the park. If granted custody of the children, the father would move the children before September of 2017 from their current school into school closer to the home. [29] The father says he will remain in the Harrington Street home indefinitely. He acknowledged he was renting the home as opposed to purchasing the home but indicated that he had signed lease. Under cross-examination the father agreed he had moved many times in the past. The mother and father moved to Prince Albert when the mother was pregnant with the parties’ oldest son, Arty. The mother and father returned to Saskatoon and lived on Avenue North for few months and then separated while they were living at home on Avenue L. The father then lived at home on Wiggins Avenue, in trailer court on Rayner Avenue in Sutherland and has now moved into the College Park area with the home on Harrington Street. [30] The father is currently working in the construction industry doing renovations. He testified he is not employed for any one company and works on contract basis. He earns approximately $2,000 $3,000 per month. The father works from 9:00 a.m. until approximately 5:00 p.m. each day. [31] The father has had numerous employment positions in the past. When the parties were in Prince Albert, he worked for Husky Gas. He has subsequently worked for Night Owl Confectionery, Gas Plus, Saskatoon Wash World, Ramada Hotel in maintenance, the City of Saskatoon and Got Mold. [32] When asked why he had so many employment positions, the father said he had to quit or was fired as result of false allegations being made about him. He testified that the police were always showing up with accusations. This was during the time period after he had separated from the mother. He acknowledged, however, that not long after the mother left he was experiencing extreme stress and had to stop work as result of his health. [33] As set out previously, an interim order in this matter was granted in March 2009 specifying the father would have supervised access to the children. It is clear there were concerns regarding the father’s use of alcohol and drugs. Under cross-examination he conceded he smoked marijuana and “maybe” hashish. He acknowledged that when he was 20 he used crystal meth but said he never did meth on regular basis. [34] After the father’s supervised access returned to court for review, an order was made that he would have unsupervised access every second weekend from Friday to Sunday evening. The father’s access to the children was to be reviewed approximately two months later by the Court. The Maher J. order of December 11, 2009 continued the father’s every second weekend unsupervised access. However, there remained concerns about the father’s possible addictions to alcohol and drugs. Maher J. ordered the father not have any alcohol or non-prescription drugs in his residence. Further, Maher J. ordered the father not be under the influence of alcohol or non-prescription drugs for minimum of 12 hours prior to him obtaining access to the children and throughout the time the children were with him. [35] The father testified he stopped doing drugs approximately three years ago and only has one beer on occasion. He said “I do drink, but not lot”. He further clarified that the two children were not in his care when he would have drink. [36] In accordance with the order of Maher J. the father was to be having time with the children every second weekend. There is some conflict in the evidence as regards the father’s reliability in his access visits with the children. The grandmother testified that approximately year or so after his unsupervised visits started in December 2009, the father’s visits “fizzled out”. From the father’s evidence, which is not entirely clear, he was regularly having every second weekend with the children until August 2013. [37] It is not disputed that the mother entered into relationship with Josh Melnyk and commenced cohabitation with him in approximately February 2011. As set out previously, the mother and Josh had twins in November 2011. The mother and Josh originally lived in Saskatoon and subsequently lived in Young and Watrous, Saskatchewan. [38] The grandmother testified it was her understanding the father had not been involved with the children between 2011, when the mother moved in with Josh, until he expressed interest in seeing them month after the mother’s death. The father says he was seeing the children until August 2013 when the mother “abducted” the children. The father testified he could not contact the mother even though he sent messages to her numerous times. He said he went to the police, Social Services and the legal organization CLASSIC but was unable to get any help. However, the father admitted he was aware the mother had moved to Young, then to Watrous. He further acknowledged he knew where the grandmother resided at all times. Despite his knowledge, the father took no steps to bring this matter back to court requesting continuation of his access visits with the children. do not condone the mother’s actions of moving with the children without the consent of the father or an order of the Court. At minimum she should have given him notice of her intention to move. However, the father could have served her with an application for contempt by obtaining an order for substitutional service on the grandmother. am sure he would have been assisted by CLASSIC to represent himself. The father represented himself at trial. He was very prepared, and he more than adequately conducted his case before me. [39] If accept the father’s evidence, he was not seeing the children from August 2013 to May 2015, period of approximately two years. If accept the grandmother’s evidence, he was absent for approximately four years. It is likely that the father’s access visits were sporadic prior to the mother’s move. The father’s testimony on this point was weak. However, there are photos of the father with the children in the summer of 2011, the spring and summer of 2012, and the spring and summer of 2013. [40] In August 2014 the father found out the mother had been diagnosed with cancer. He connected with the mother via Facebook to express his sympathy and asked her to call him. This did not happen. Subsequently he saw the Facebook message saying that the mother had passed away on January 19, 2015. [41] The father first contacted the grandmother via Facebook January 21, 2015. After expressing his condolences, his message to the grandmother says that he is “hoping that we can talk about the boys. Would love to hear from them so much”. This was the day before the mother’s funeral. He did not hear back from the grandmother. [42] The father went to the children’s school on January 26, 2015 and showed the secretary copy of the court order providing him with every second weekend time with the children. He was told the principal would need to contact him. On February 5, 2015 he again went to the school. At that time he met with the grandmother and the school principal. He said he asked if his every second weekend time with the children could be reinstated. The grandmother said no. She told him the children were too emotional to see him at that time. [43] The grandmother applied for custody of the children. She was granted interim custody. By court order the father began seeing the children in late May 2015. His time with the children was supervised by his aunt, Arlene. His time with the children went from supervised to unsupervised by July 2015. In January 2016 the father and grandmother reached an agreement whereby the father would have access with the boys for three weekends in row with no access on the fourth weekend. In addition, the grandmother and the father were to split the spring break and Easter holidays on an equal basis. This agreement was considered an interim arrangement by the parties. This arrangement is currently the arrangement in place. However, at the conclusion of the trial, ordered specific access for each of the grandmother and the father during summer holidays of 2017. During this summer, the parties are having the children in their respective care in an approximately equal arrangement. [44] The father’s aunt, Ms. Viden, testified at the trial. She confirmed she currently resides with the father and two others in the home located on Harrington Street in Saskatoon. She has had the opportunity of watching the father parent the children during the times the children are in his care. She testified the father is very attentive, helping the children do homework, ride bikes and other activities. She believes the relationship between the father and the children to be “great”. She says the children are always saying “dad, dad, let’s do this”. She has seen the father attend to matters such as hygiene with teeth brushing and showers every night. [45] The father has been seeking custody of the children for some time. Originally he suggested that the children move to his full-time care as at July 1, 2016. His position at trial was that the children should be moved to his care during the summer of 2017 so that they could commence attending their new school, close to the father’s home, in September 2017. The father was clear he did not want to be weekend dad or what he referred to as “Disneyland dad”. [46] The father said he would have lot of help and support if the children were to come into his sole custody. He was of the view that the change in custody would go very smooth and that the children’s lives would “continue as normal” for the most part. The Grandmother [47] The grandmother is 48 years old and is the mother of four children. Her oldest child was the mother of Arty and Haydn. The grandmother resided in common-law relationship with Dion Palmer for 25 years. Dion was employed as long-haul truck driver. Sadly, Dion died in workplace accident in November 2013. The grandmother is not in relationship at this time. [48] The grandmother resides at 135 Avenue South in Saskatoon. She has lived in this home for 18 years. The grandmother owns the home in her sole name, and there is no mortgage on the home. There are five people currently residing in the home. In addition to the grandmother, Arty and Haydn, two of her other children live in the home. Macayla is 20 years old and works as nail technician. Kody is 24 years old and drives for moving company. [49] The grandmother had been working at pharmacy when the mother went into the hospital in February 2014. She left her employment to stay home to look after Arty and Haydn full time. The grandmother says it is not necessary for her to return to work as she receives monthly workplace insurance funds as result of the death of Dion. She will receive the approximate sum of $2,000 per month for the rest of her life. In accordance with the letter to the grandmother from the Workplace Safety and Insurance Board, the grandmother’s monthly payments will be adjusted every year to account for cost of living. In addition to the monthly pension funds, the grandmother received lump sum payment of $69,000. Finally, she receives approximately $1,000 for the children. [50] The grandmother has been one of or the primary care provider for the two boys for significant portion of their lives. The mother and the two boys moved into the grandmother’s home after the mother’s separation from the father and stayed from 2008 to 2011. The grandmother, once again, commenced providing daily care to Arty and Haydn when the mother went into the hospital in February 2014. After the death of the mother, the grandmother’s home has continued to be the primary residence for the children with the father commencing visits with the children in May 2015. In total, the children have resided with the maternal grandmother for period of seven years during their lives. The children are now 10 and 9 years old. It is apparent the youngest boy, Haydn, has known his grandmother’s home as the only home where he resides, as seven of his nine years have been spent living in the grandmother’s home. [51] During the year the mother was in the hospital prior to her death, the grandmother took the children to the hospital every day. The children were attending St. Marie Goretti school where they continue to attend. The oldest child, Arty, had been at that school before when the mother and two children were living with the grandmother after the mother’s separation from the father. [52] The grandmother provided numerous photos of the children. The first photos she submitted into evidence are heartbreaking. One of the photos shows the two boys with large teddy bear they brought to their mother in the hospital. The second photo shows their mother in her hospital bed with tiara on her head and the two boys standing around her bed. The next two photos show the urn containing the mother’s ashes. The grandmother said the urn sits on the fireplace hearth and the children decorate around the urn on Mother’s Day and other special occasions like Christmas. One photo shows two beautiful Mother’s Day cards beside the urn. [53] After their mother’s death, the grandmother wanted the children to attend counselling to deal with their grief. The father would not agree. The grandmother needed his consent before counselling became available to the children. According to the grandmother, the father said the children do not need counselling, “they just needed him”. The father, on the other hand, says he was unwilling to agree to counselling at Catholic Family Services as he wanted the children to move into his full-time care and do counselling at Sutherland school where he anticipated they would attend. At this time, the father was living in trailer court in Sutherland. [54] As result of the refusal of the father to allow for counselling, Tholl J. made an order on August 2015. Pursuant to that order, the grandmother was granted sole authority to make all decisions and provide all authorizations and consents regarding medical care, counselling and education for Arty and Haydn. After receiving this court order, the two children were in counselling for approximately year. The grandmother filed receipts showing her payments to Catholic Family Services for the counselling. The father did not contribute to the costs of the counselling. [55] The grandmother testified the boys were devastated by the loss of Dion in November 2013 and even more so with the loss of their mother in early 2015. She said the boys talk about their mother lot, as well as Dion. She is of the view the children are doing much better at this time, which is reflected in their school marks and achievements. [56] The grandmother wants the children to remain in her primary care and attend the same school they have been attending. She would like to see the children proceed on to college, and she has put money away, from the accident settlement, in order to pay for college. As regards the relationship with their father, the grandmother said she wanted the children to have good relationship with their father and believed she and the father had been working well together on planning holidays, changing the schedule to provide extra nights for the father and arranging phone calls between the children and their father. It is the grandmother’s view that the two children have settled into the current parenting arrangement and enjoy the time they have with their father. [57] The two children enjoy many activities while in the home of the grandmother. Each summer the children swim in the large above-ground pool in the grandmother’s backyard. They like to bake, and there are lovely photos of the boys making biscuits for supper as well as gingerbread cake at Christmas. The boys like to play games with the grandmother as well as Macayla and Kody. There are number of photos of the boys playing “Speak Out”. The children also go to parks and Ruckers with the grandmother or their aunt Macayla or uncle Kody. [58] According to witnesses who testified on behalf of the grandmother, the grandmother has very close relationship with the children. Macayla testified the boys are “so good” with their grandmother. Dave McCrea has been friend of the grandmother for 20 years. Dion and Mr. McCrea had close friendship, and after Dion died, Mr. McCrea maintained relationship with the grandmother. He was there to help the family after Dion died. His observations of the grandmother are very positive. He observes the grandmother interacting with the children as if she was their mother. It was his view the children feel safe with her and rarely misbehave. He indicated that if the grandmother ever needed anything, he and his wife, Melanie, would be there for her, day or night. [59] heard evidence from Darlene Callaghan, who described the grandmother as one of her best friends. Ms. Callaghan has weekly contact with the grandmother either by text, phone or visits. She has observed the interaction between the grandmother and the children and says they are “very close”. She testified that in her view Haydn was “nanny’s” boy. Further, she has witnessed their excitement to see the grandmother when they return from visit from their father’s home. She describes the grandmother as being very loving, supportive and kind. The Children [60] As set out previously, Arty is now 10 years old and Haydn is now years old. heard wonderful things about the children from the individuals who testified at trial. [61] The grandmother testified that the two children are quite different. She said that Arty is quieter than Haydn and more of thinker. She said Haydn was the “goofy” one. According to the grandmother, Arty is particularly interested in science and math and has told the grandmother that he wants to go to college. He has said he may want to be policeman, or perhaps join the army. The grandmother said Arty loves books and movies like The Chronicles of Narnia. [62] As regards Haydn, the grandmother said he liked school but not as much as his brother Arty. According to the grandmother, Haydn is very interested in cooking and consistently helps her make supper. He also watches cooking shows. Some days Haydn tells her he will go on to college and on other days he says he will complete grade 12 and then work as chef. [63] The children’s aunt, Macayla, confirms the grandmother’s testimony about the personalities of the children. She said that Haydn was very outgoing and adventurous. Arty is more laid back and more emotional. [64] Mr. McCrea saw the children couple weeks prior to the trial. It was his impression that the children were doing well and appeared happy. He said the children were “good kids”. Ms. Callaghan remarked that the children were very polite, very well-behaved, kind and generous. [65] The father talked lot about the activities he and the children do when the children are in his care. He did not provide his view as to the children’s personalities. Likewise, his aunt, Ms. Viden, talked primarily about the home the children live in when they are in the father’s care and the activities the children do with the father. [66] reviewed the children’s school report cards for the years from 2013/2014, 2015/2016 and to March 2017. The report cards reflect the struggles of the children during the year after their mother died. Haydn had more difficulty than Arty in school after his mother’s death. However, school reports show great improvement by March 2017. As testified to by the grandmother, Haydn received lot of “Y’s” but also some “S’s”. The stands for “usually evident” with the standing for “sometimes evident”. [67] Arty’s report card of March 2017 shows how well Arty is doing in school. He received solid Y’s and was meeting expectations in almost all subject matters. In fact, in “participation” he was shown as surpassing expectations. [68] Both Arty and Haydn have been awarded certificates for various activities and doing well in school. Arty has received the following awards: 1. Award for personal success for being humble and respecting others (December 10, 2014); 2. certificate from Run Jump Throw Athletics Canada for successfully completing their program (June 2015); 3. personal success award for continuing to be friendly, energetic and helpful classmate (May 12, 2016); 4. certificate of achievement for having completed program called Kids Kitchen (May 3, 2016); 5. further certificate for having completed the Run Jump Throw program (June 9, 2016); and 6. personal success award for being an example of participation to others (November 28, 2016). [69] Haydn has also received certificates from school. The two certificates filed with the Court are: 1. An award for personal success for being courageous person (June 9, 2015); and 2. certificate where he is named BOKS Kid of the Day for being friendly, showing good effort, having good attitude and being team player (October 15, 2016). The grandmother described the BOKS program as standing for Building Our Kids’ Success. It requires Haydn to go in early to school and do physical activity like running. The grandmother said that Haydn was very excited when he got his certificate as he had worked very hard on running laps. [70] was very pleased to receive evidence that the two children are basically healthy and have come long way after their mother’s death towards being happy. Legal Principles [71] This action is governed by The Children’s Law Act. The relevant portions of The Children’s Law Act are as follows: 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. 4(1) Subject to subsection (3), if parent is deceased, the surviving parent of child: (a) is the legal custodian of that child. 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. (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 (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. nan 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. [72] The father argued that he was entitled to custody of the children pursuant to s. 4(1) above. He said he is the surviving parent of the children and is, therefore, automatically the legal custodian of the children. However, the father failed to consider s. 6(1) which provides the Court with jurisdiction to order custody to parent or other person. Section 6(1) commences with the words “Notwithstanding sections to 5” allowing the Court to order custody to someone other than the surviving parent. [73] The father also argued that he has constitutional right to have custody of his children. He did not point to any provision of the Canadian Charter of Rights and Freedoms where such right is granted. In fact, there is no constitutional right. This case is not about the rights of the father. It is about the best interests of the children. [74] The father’s status as the biological father of the children is, however, factor that must be considered when determining the best interests of the children. As set out by Ryan-Froslie J. (as she then was) in S.A.L. K.H., 2011 SKQB 397 (CanLII), 384 Sask 263 [S.A.L.], the relationship between child and his biological parents is special one. In her decision she refers to the approach adopted by the Supreme Court of Canada in King Low, 1985 CanLII 59 (SCC), [1985] SCR 87. She states at paras. 106 and 107 of her decision as follows: 106 In King v. Low, supra, an unwed mother gave her son up for adoption few days after his birth to couple she had chosen. Less than three months later, she requested the child be returned to her care. The adoptive parents refused and an application for custody was initiated. In unanimous decision by the Supreme Court of Canada, McIntyre J. set out the law at para. 27 as follows: [27] This conclusion is consistent with modern authority in this Court and others: see Racine, Beson, and Re Moores and Feldstein. [Racine v. Woods, 1983 CanLII 27 (SCC), [1983] S.C.R. 173; Beson v. Director of Child Welfare (Nfld.), 1982 CanLII 32 (SCC), [1982] S.C.R. 716; and Re: Moores and Feldstein, 1973 CanLII 535 (ON CA), [1973] O.J. No. 2113, (1973), 12 R.F.L. 273(Ont. C.A.)] would therefore hold that in the case at bar the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. This is not to say that the question of custody will be determined by weighing the economic circumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other. The welfare of the child must be decided on consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the Court, when resolving disputes between rival claimants for the custody of child, to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as mature adult. Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside. [Emphasis added] 107 It is obvious that parental ties are an important factor in determining custody. They must, however, give way to the welfare of the child. [75] In S.A.L. Ryan-Froslie J. refers to two decisions of our Court: Hendricks Swan, 2007 SKQB 36 (CanLII), 292 Sask 206 [Hendricks], decision of Smith J. and Edin Edin, 2008 SKQB 490 (CanLII), 328 Sask 54 [Edin], decision of Maher J. In Hendricks the dispute was between biological father and third-party respondents who had the care and custody of the child from the child’s birth. At para. 92 of his decision, Smith J. states as follows: 92 The direction from judicial authorities is crystal clear, namely, that consideration of any single factor, including kinship, must always remain and be subject to the primary consideration, namely, the best interests of the child. [76] After stating that the primary consideration for court in contests between birth parents and others is the best interests of child, Smith J. provides summary of the law as follows: 93 In summary, the instruction draw from the case law is that the critical elements the Court must consider in debate such as this are: (i) The paramount consideration is the best interests of the child; (ii) Blood ties are factor to be considered in determining the best interests of the child but they are to be considered from the point of view of the significance to the child, rather than the significance to the biological parent; (iii) The question must be asked which environment can best provide for the health, emotional well being, education, training, intellectual, economic and psychological needs of the child; (iv) The Court must consider uncertainties associated with transferring custody of child from known situation of security and stability to situation with many unknowns. In the case of an infant, the Court must consider the potential harm to child in disrupting attachments that have developed or are in the advanced stages of formation. [77] After consideration of these legal principles as applied to the circumstances before him, Smith J. dismissed the biological father’s claim for custody. [78] In Edin, the maternal grandmother petitioned for sole custody of her granddaughter. Maher J. refers to the summary of law as set out by Smith J. in Hendricks and concludes that there is strong psychological bond between the grandmother and granddaughter. He says neither of the biological parents have the same bond as they only recently became part of their child’s life. He makes comments about the child being able to stay at the same school, maintain relationships with her teachers, her friends and both of the biological parents if the child stayed in the care of the grandmother. [79] Of course, determination of the best interests of child is to be made on case-by-case basis with reflection on the circumstances of the family before the Court. There are Saskatchewan cases where biological fathers are granted custody as opposed to grandparent (see for example Haygarth Martel, 2012 SKQB 439 (CanLII), 410 Sask 96). [80] In making an order for custody must take into account only the best interests of these two children and, further, take into account the factors as set out in s. of The Children’s Law Act. [81] review of the factors as they relate to the family before me is as follows: (i) The quality of Arty and Haydn’s relationship to the grandmother and the father. [82] The grandmother has provided stability for the two children throughout their lives. She was there for them on daily basis to provide support when the relationship between the mother and father terminated. She was their primary caregiver during their mother’s one-year hospital stay before her death. She was there for them as they grieved their mother’s death, and she arranged for counselling to assist the children with the grieving process. The grandmother is keeping the children’s memories of their mother alive by marking special occasions like Mother’s Day. There is lovely photo of the two boys sending balloons into the air with messages to their mother inside on Mother’s Day. [83] The children refer to the grandmother as “nanna” and Ms. Callahagn described Haydn as “nanny’s” boy. On all of the evidence before me, the grandmother is the “psychological” parent for the boys. [84] The Saskatchewan Court of Appeal decision in Haider Malach (1999), 1999 CanLII 12363 (SK CA), 177 Sask 285, provides insight into the matter of psychological parents. Paragraph 82 of that decision states: 82 In Goertz v. Gordon, 1996 CanLII 191 (SCC), [1996] S.C.R. 27 at 92-93, L’Heureux-Dubé J. comments on the significance of the primary caregiver and psychological parent: The assessment of the child’s best interests also involves consideration of the particular role and emotional bonding the child enjoys with his or her primary caregiver. The importance of preserving the child’s relationship with his or her psychological parent has long been recognized by this Court on number of occasions (Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), 1994 CanLII 83 (SCC), [1994] S.C.R. 165, at p. 202; Racine v. Woods, supra, at p. 188; King v. Low, 1985 CanLII 59 (SCC), [1985] S.C.R. 87, at p. 101). There is growing body of evidence that this relationship may well be the most determinative factor on the child’s long-term welfare. As mentioned in Young, supra, at p. 66 [1993 CanLII 34 (SCC), [1993] SCR 3], the vital link between continuity in the emotional bonding of the child with his or her psychological parent and the best interest of the child finds ample support in the literature: Goldstein, Freud and Solnit’s Beyond the Best Interests of the Child, supra, while perhaps lacking in empirical data, remains an influential analysis of the psychological needs of children following divorce. The authors emphasize, among other factors, the importance of continuity in the child’s relationships and conclude that the major focus of custody decisions should be to preserve and protect the relationship between the child and his or her psychological parent. [L’Heureux-Dubé J.’s emphasis] [85] The children are clearly emotionally bonded to their grandmother, and must recognize the importance of continuity in the children’s relationship with her. [86] The children have bond with their father as well. Since May 2015 the children have had time with their father on regular basis. His time with the children was set by adopting “staged” re-entrance into the children’s lives. [87] When the children are in the care of the father, it is obvious they enjoy being with him and doing all the activities he arranges for them. There is no evidence the children fear their father and do not want to have visits with him. Further, there is no evidence that the father is currently utilizing drugs or drinking in excess. commend the father for having been on the road to recovery for three years. (ii) The personality, character and emotional needs of the children [88] The evidence establishes that the two children have different personalities but are both considered polite, well-behaved, kind and generous children. It was pleasure to hear about the numerous activities the children enjoy when they are in the care of the grandmother and when they are in the care of the father. In my view, the two children have emotional needs that are unusual for children of their age. They have suffered two significant losses in their young lives. The death of Dion, their step-grandparent, was not easy to deal with for the children. Then, their mother passed away. The children’s mother had been the children’s primary caregiver from the time the mother and father separated in 2008. To lose their mother at such young age must, no doubt, have had and continue to have, huge effect on the children and what they require emotionally. (i) The physical, psychological, social and economic needs of the children [89] am satisfied both the grandmother and the father can provide for the physical, social and economic needs of the children. Both the grandmother and the father gave evidence that they would like to see the boys active and involved in activities other than “screen” games. The father had concerns regarding Haydn’s weight. It appears the grandmother, in conjunction with the school, is working on more physical activity. Thankfully neither child has any major medical issues and both parties would, in my view, be capable of handling any medical issues. [90] As regards the economic needs of the children, both the grandmother and the father can provide financially for the children. My only concern here is with regards to the father’s lack of stability in his employment. [91] The psychological needs of the children take on more significance in this matter given the losses of the children. The grandmother has, through her actions, satisfied me that she will always keep the children’s mother alive in their hearts. question whether the father will also do so. He provided no evidence that he ever discussed the mother in positive way with the children. Further, although the children have lovely bedroom in the father’s home, could not see picture of their mother. The only picture is of the father and the boys. [92] After finding out the mother had cancer, the father did not attempt to provide support to the children. This is troubling. He was aware of the mother’s cancer diagnosis and was aware of the grandmother’s place of residence. Short visits with the father may have assisted the children in coping with the fact they were losing their mother. His excuse for not doing so was that he did not think it was right to just show up and ring the grandmother’s doorbell. wonder why he did not prepare note to the grandmother and place it in her mailbox. His note could have expressed his willingness to do whatever was necessary and appropriate to support the children. [93] am also concerned the father believes nothing would really change if the children were transferred from the care of the grandmother to his home. He testified it would “continue as normal for them”. The father’s comments show an entire lack of understanding about the psychological issues for children when they are removed from their primary caregiver and are forced to change schools and neighbourhoods. have great doubt that he would, if determined he have custody, utilize counsellors to assist the children with the significant change in their lives. His opposition to counselling in the past is telling. accept the grandmother’s evidence that the father’s view is that the children only need him and all will be fine. (iv) The capacity of the person who is seeking custody to act as legal custodian of the children [94] On the evidence have determined that both the grandmother and the father have the capacity to act as legal custodians of the children. As set out previously, there is no evidence before me the father is struggling with the addictions he had in the past. Further, there is no evidence before me that he disciplines the children inappropriately, has an anger management issue or any other problem that would lead to the conclusion he could not parent the children. [95] The grandmother has raised her own children and has been raising Arty and Haydn for some time. The father provided no evidence of any concerns with the grandmother’s care of the children. The grandmother is physically capable of assuming custody of the children. Her age is not factor as she is very young grandmother, being 48 years old. (v) The home environment proposed to be provided for the children [96] Both parties have homes that can adequately provide for the children’s needs. Both the grandmother and the father have others living in their homes that provide support to the children. The boys share room in each home, and there is large backyard where the boys can play in each home. (vi) The plans that the person who is seeking custody has for the future of the children [97] Both the grandmother and the father would encourage the children to pursue post-secondary education. At present, the children are assisted with their homework by either the grandmother or the father or someone else in their respective homes. It is my belief that both the grandmother and the father want the children to be happy, healthy and independent at some point in their future. (vii) The wishes of the children, to the extent the Court considers appropriate, having regard to the age and maturity of the children [98] The children are only and 10 years old. It is not until they are older that any weight would be put on their wishes. With respect to their wishes, neither the grandmother nor the father testified that the children have expressed desire to either move to the father’s home or stay with the grandmother. The children did, according to the father, wish to spend the entire Easter week with their father as opposed to have the week shared between the grandmother and the father. This is quite normal. The children obviously wanted few more days with their father when it was holiday period. On the other hand, heard evidence that the children are very happy to see their grandmother when they return from an access visit with the father. Conclusion [99] After taking into account the factors as set out in s. 8 of The Children’s Law Act, and considering only the best interests of the children, I have determined that it is in the children’s best interests to remain in the custody of the grandmother. Although the children have accepted their father back into their lives and clearly enjoy spending time with him, the grandmother is their psychological parent, and stability is found by leaving the children in the grandmother’s care. The children can continue to go to the same school they have attended and where they know their teachers. They can continue to celebrate the life of their mother while in the home of the grandmother. The bond they have with their grandmother is strong, and believe the grandmother will best provide for the children’s psychological needs. [100] This is not to say that the father is inadequate and should have minimal time with his children. accept his evidence that he is very passionate about his children and loves them very much. also have no doubt that the children love their father. The father should play significant role in the children’s lives and become more of parent than the “Disneyland dad” he described. strongly believe that the grandmother and the father will be able to work together as they both recognize it is in the best interests of the children to do so. The children have already been through enough. Conflict between the grandmother and the father would damage the children. [101] am ordering the following: 1. The grandmother and the father shall have joint custody of Arty and Haydn. 2. The parties shall discuss and decide jointly all major decisions with respect to health, education and religion of the children. In the event the parties cannot agree on significant issue, the grandmother shall make the determination. 3. The grandmother shall have the sole authority to make all day-to-day decisions regarding health, dental care and counselling. She shall choose the children’s doctor and dentist but provide the names to the father. 4. The father shall be entitled to obtain all information direct from the school that the grandmother receives. He shall be entitled to attend parent/teacher interviews, either with the grandmother or on his own. 5. The residence of the grandmother shall be the primary residence for the children, and she shall have the primary care of the children. 6. The father will have the following parenting time with the children: a) Every second week from Wednesday after school to Sunday at 8:00 p.m. b) Every alternating week on Wednesday evenings from after school until 8:00 p.m. c) The parties shall each parent the children for one-half of all school holidays unless otherwise agreed. For example, the parties could agree that one party have the entire Easter break while one party have the entire February break. d) The grandmother shall be allowed to register the children for soccer. The father shall be allowed to register the children for Cubs/Scouts. CHILD SUPPORT [102] Although the grandmother suggested that the father should pay child support to her for the children, no argument was put forward for child support at the conclusion of the trial. Further, I do not, at this time, have adequate evidence to consider the child support issue. will order, however, that the grandmother pay for activities she arranges for the children and the father pay for activities he arranges for the children. In addition, the parties should share any medical or dental expenses, over and above any amount paid by insurance, on an equal basis. The grandmother can pursue child support through an application to the court should she desire. [103] This was very difficult matter, and both the grandmother and the father have been partially successful. Although determined that the grandmother would be the primary caregiver for the children, substantially increased the father’s time with the children and provided parenting time for him with the children during school weeks. In such way, the father will be more involved in their schooling and will do all things parenting entails like making school lunches, checking school bags and ensuring homework is done. There has been mixed success in this matter. For these reasons am not awarding costs be paid by either party. J. D.L. WILSON
HELD: The court found the following with respect to each issue: 1) the grandmother was a person of sufficient interest regarding the children pursuant to s. 6 of The Children’s Law Act, 1997 and had standing to bring her application for custody; 2) it would be in the best interests of the children, now aged ten and nine years of age, to have their primary residence with their grandmother as she was their psychological parent. They had resided with their grandmother for most of their lives and it was important to maintain their relationships with their school and friends. The respondent would have regular weekly parenting time with the children; and 3) the evidence was inadequate to consider child support.