QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 207 Date: 2013 05 30 Docket: F.L.D. No. 98 of 2013 Judicial Centre: Prince Albert, Family Law Division BETWEEN: JEFFREY SHAWN McKERRACHER and BONNIE LYNN MORGAN Counsel: H. Cotton for the petitioner C. M. Ozirny for the respondent FIAT MAHER J. May 30, 2013 [1] Further to the hearing of this matter on May 7, 2013, the issue remaining to be determined is whether the children are to be, on an interim basis, relocated from La Ronge to live with the respondent at Melville, Saskatchewan. [2] The parties commenced common-law relationship in February, 2000. There are two children of the relationship, namely: Justin Morgan McKerracher born May 31, 2001 and Sean Lucas McKerracher born September 26, 2004. [3] The parties separated in April of 2010, while living in La Ronge, Saskatchewan. The initial parenting arrangement was that the children resided with the respondent and with the petitioner having access on the weekends. The petitioner’s uncontradicted evidence is that on January 1, 2011, the parents agreed to verbal co-parenting arrangement. The arrangement that was in place until March 31, 2012, was that the children would change their residence between the parents on each Monday after school. The children have primarily resided in La Ronge or the Air Ronge District of Saskatchewan. They have always attended the Pre-Cambrian Elementary School in La Ronge where Justin is in grade six and Sean in grade three. [4] The evidence discloses that the respondent had sold her home and business in La Ronge by March of 2013. The petitioner says that in March of 2013 he asked the respondent if she was planning to move out of the La Ronge District but received no direct answer. He was advised by the respondent on April 1, 2013, that he would not be receiving the children for their scheduled parenting week because she and the children had relocated to Melville, Saskatchewan. The respondent further advised that she was enrolling the children in school at Melville. RELEVANT CASE LAW [5] There have been numerous decisions of the courts on the issue of interim parenting of children. These principles were set out by Laing J. in Guenther v. Guenther, (1999) 1999 CanLII 12554 (SK QB), 181 Sask. R. 83, [1999] S.J. No. 120 (QL) (Q.B.) where he made the following comments on the maintenance of the status quo on interim custody: It appears from the foregoing case law, it constitutes an error in principle, and reversible error in law to vary interim custody arrangements pending trial in the absence of evidence of risk to the child. The foregoing case law indicates that once an interim custody arrangement has been in place for some time, whether de facto, by court order, or by agreement of the parties, the non-primary care parent should not apply on an interim basis to vary the arrangement (except where risk to the child exists), but proceed to final order. In this province, that means obtaining pre-trial date for pre-trial conference, and if the matter is not resolved at that stage, proceed to trial where the Court will determine what is in the best interests of the child. [6] The Saskatchewan Court of Appeal recently dealt with interim custody in the decision of Mantyka v. Dueck, 2012 SKCA 109 (CanLII), 399 Sask.R. 303 where Richards J.A. commented on the relocation of children on an interim basis when he said the following at para. 31 The case law also provides that significant caution is necessary when deciding whether custodial parent should be allowed to move with child on an interim basis, i.e. before trial of the relevant issues. This is so for two reasons. The first is because an interim change of location can all too easily create new "normal" and thereby effectively go some distance toward determining the final result of the proceedings. Ryan-Froslie J. explained the problem as follows in Benson v. Benson, 2011 SKQB 457 (CanLII), 388 Sask. R. 89 at para. 18: The difficulties Court faces in determining mobility issues on interim applications has been the subject of considerable judicial comment. The evidence presented on interim applications is in the form of affidavits. Often those affidavits are not extensive enough to enable court to thoroughly examine the best interests of child. That evidence is often contradictory and the Court has no ability to test its authenticity or determine issues of credibility. Allowing child to move on an interim application uproots the child from its community and makes return to that community unlikely on hearing of the final application because of the consequent disruption to the life of the child. In other words, allowing such move often amounts to final determination of the issue. It is for those reasons that Courts have long held that as general rule moves should not be allowed on interim applications (See: Guenther v. Guenther, [(1999), 1999 CanLII 12554 (SK QB), 181 Sask.R. 83 (Q.B.)] at para. 5). 32 The second reason for approaching interim relocations with caution is that the record before the court normally consists only of affidavit evidence which, by its nature, is often incomplete or somewhat limited in scope. Moreover, such evidence is often contradictory or inconsistent. It is thus both difficult and unwise to make important decisions on the basis of record with these sorts of frailties. See: Nieman v. Bull, 1999 SKQB 204 (CanLII) at para. 7; Shiplack v. Shiplack, 2008 SKQB 254 (CanLII), 317 Sask. R. 223 at para. 19. ... 35 That said, family law culture of "move first and ask questions later" is self-evidently not something that can be either approved or encouraged. Neither parents nor their counsel should see relocations of children as means of obtaining tactical advantages in custody or access disputes. Among other things, that is why there is distinct reluctance to give any credit to custodial parent who moves unilaterally, knowing that the move will be controversial, and then attempts to resist an application to reverse the move by arguing that he or she has quit job, sold house or otherwise made decisions which will be difficult to roll back. Problems of this sort are generally seen as being self-imposed. See for example: Ofukany v. Ofukany, supra at paras. and 7; Brandt v. Dean, 2010 SKQB 401 (CanLII), 363 Sask.R. 293 at para. [7] am satisfied on the evidence that the parties had verbal co-parenting arrangement with the children rotating weekly between the parents. find that this arrangement was in place from January of 2011 until April 1, 2013, when the respondent unilaterally relocated the children from La Ronge, Saskatchewan to Melville, Saskatchewan. am satisfied that for some twenty-seven months the parenting arrangement with the children was weekly rotation co-parenting arrangement. I find that this co-parenting was a de facto co-parenting arrangement between the parties. I am also satisfied that there is no risk for the children in the care of either the petitioner or the respondent. CONCLUSION [8] I find on the evidence that the parties are to be joint custodial parents for the two boys. I find the preservation of the status quo is in the best interest of the two boys. Therefore, the two boys are to reside in La Ronge or Air Ronge, Saskatchewan and attend school there while residing with the petitioner. [9] I make the following interim order: 1. That the children shall have their primary residence with the petitioner in Air Ronge, Saskatchewan; 2. The respondent shall be entitled to interim access every second weekend, commencing Friday, May 31, 2013 to Sunday, June 2, 2013. The petitioner shall transport the children to an agreed upon location at Melfort, Saskatchewan by 7:00 p.m. on Friday and the respondent shall pick the children up at that location. The children are to be returned to Melfort by the respondent for pick up by the petitioner on Sunday at 6:00 p.m. at an agreed location; 3. Such access arrangement shall continue every second weekend until further order of the court; 4. In the event that access is on long weekend, the children are to be returned to the petitioner at Melfort, Saskatchewan by the respondent by 6:00 p.m. on the Monday; 5. The petitioner shall make appropriate arrangements for the supervision of the children so that they are supervised prior to their attendance at school and after school if he is unable to personally provide such supervision. The petitioner shall provide in writing details of the supervision arrangement he has in place to the respondent; 6. The respondent shall be entitled to generous telephone access to the children which shall include at least three phone calls per week; 7. In the event that the respondent was to relocate back to the La Ronge District to live, she may apply to vary the terms of this order regarding parenting; 8. order that Voices of the Children’s Report be prepared for the child, Justin, who will be 12 on May 31, 2013. [10] Summer access it is important that there be meaningful summer access for the children with both parents. This issue was not specifically addressed, however am satisfied that it is in the best interests of the children that they spend an equal amount of time with each of their parents in July and August. If the parties are unable to agree to summer access schedule, this matter may be brought back before me and will make determination of an appropriate summer access schedule. [11] The petitioner has been successful in this application. have considered the fact that the respondent unilaterally relocated the children resulting in the petitioner having to bring two applications for the return of the children to their home in La Ronge, Saskatchewan. assess costs against the respondent in the amount of $1500 payable within ten (10) days from the date of this judgment. J. R. D. MAHER
The issue to be determined was whether the parties' children should remain in La Ronge or be relocated to live with the respondent in Melville on an interim basis. The parties were in a common law relationship and had two children, aged 9 and 12. After separation, the children resided with their mother, the respondent, in La Ronge and they had access with the petitioner on the weekends. In January 2011, the parties agreed to a weekly co-parenting arrangement. In April 2013 the petitioner was advised by the respondent that she and the children had moved to Melville. Up until that point the child had always resided in the La Ronge area and attended only one school. HELD: The Court found the co-parenting arrangement to be the de facto parenting arrangement and that there was no risk to the children with either parent. The Court ordered that the parties were joint custodians of the children and that preservation of the status quo was in their best interests. The Court ordered that the children primarily reside in La Ronge with the petitioner and attend school there. The Court also ordered specified access for the respondent.