J. 2001 SKQB 185 D.I.V. A.D. 1998 No. 102 J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: BLAINE KENNETH COLLINS and GERMAINE MARIE COLLINS RESPONDENT Blaine Kenneth Collins appeared on his own behalf Jill McMahon for Germaine Marie Collins JUDGMENT SCHEIBEL J. April 17, 2001 [1] This matter came before me for trial on June 28, 29 and 30, 1999. written decision was filed on July 9, 1999. The decision was appealed by Mrs. Collins and on April 13, 2000 the Court of Appeal delivered the following judgment: The trial judge's reasons for judgment state that as long as the parties reside in the trailer court, the parties are to share joint custody. On the hearing of this appeal, the parties were agreed that Mrs. Collins is no longer residing in the trailer court. In light of this, the nature of the custody order and its adjuncts such as the order not to remove the children from the jurisdiction have become unclear. To clarify its nature, the matter must be remitted to the trial judge. It is so ordered. There will be no order of costs. [2] Several attempts were made to have the matter brought back before me in accordance with the direction of the Court of Appeal. Each time the matter was further adjourned for various reasons of the parties. [3] Approximately two years have elapsed since my decision of July 9, 1999. In the interval there have been numerous applications which the parties have brought before the Court. In addition, the parties have been involved in pre-trial. [4] From the material on file and from the oral position taken by the litigants it appears that there may have been numerous changes of circumstances which goes far beyond the single issue which the Court of Appeal directed be returned to me. [5] These changes of circumstances involve an application to vary and cannot be dealt with as result of the decision of the Court of Appeal referring the matter back to me on the issue set forth. [6] In addition, Mr. Collins advises that he intends to challenge the legislation dealing with custody and access. He was unaware that he is required to serve the notice under The Constitutional Questions Act, R.S.S. 1978, c. C-29 and as such was not in position to argue that issue before me. [7] In the end the parties agreed that they were not able to bring all of these issues before me and both sides have agreed that this application before me should be abandoned in favour of proceeding with an application to vary which would encompass all of the issues which have arisen since my decision of July 9, 1999. [8] am of like mind. Therefore the parties may proceed by way of an application to vary and the issue raised by the decision of the Court of Appeal will be subsumed in that application. [9] In view of this nothing further need be done by me and no costs are awarded to either party on this issue before me.
The Court of Appeal remitted the issue of custody to the trial judge on April 13, 2000 but the matter was adjourned for various reasons. The parties had brought numerous applications since the July 9, 1999 decision and they had been in a pre-trial. HELD: An application was to be brought which would encompass all of the new issues. There had been numerous changes in circumstances which went beyond the single issue referred back. The petitioner intends to challenge the legislation dealing with custody and access but was unaware he is required to serve notice under the Constitutional Questions Act.