QUEEN’S BENCH FOR SASKATCHEWAN Date: 2010 04 15 Citation: 2010 SKQB 145 Docket: F.L.D. No. 19 of 2008 Judicial Centre: Melfort, Family Law Division BETWEEN: LAWRENCE KOTT and MELODIE TIEGEN Counsel: T. Parlee for the petitioner E. Connick for the respondent JUDGMENT M-E. WRIGHT J. April 15, 2010 1) After enduring what can best be described as tumultuous relationship spanning some five and one-half years, the parties permanently separated. They never married. Now, Lawrence is seeking access to Melodie’s daughter from an earlier relationship. That child is Trista, who is 11 years old. 2) Lawrence and Melodie met in October, 2000 at the bar where she was working. They started dating that night. At the time Melodie was still living with Trista’s father Greg. She left him in January, 2001, living temporarily with friends before moving to her own apartment. Several months later, in the spring of 2001, she rented house in Codette and moved there with Trista. Lawrence moved at the same time, bringing with him his two daughters, who were then 11 and 13 years of age. Trista was just over two years old. At the time their relationship began, Lawrence was running his own dry walling business and Melodie was working at several part time jobs that included evening and weekend shifts. When working days, Melodie says that Trista was at day care. At other times, Lawrence or his daughters would watch over her. 3) Lawrence describes having developed somewhat idyllic relationship with Trista. He met her within week of starting to date Melodie. Once they attempted to blend their two families, he says they did “everything” together. They were involved in outdoor activities and playtime, and when Melodie was working evenings, Lawrence would read to Trista and put her to bed. When Trista started school, Lawrence said he was the one who often stayed home with her when she was ill, and the person that the school looked to when she became sick. After the nature of his employment changed several years into the relationship, Lawrence would sometimes take Trista with him when he was making calls. 4) People who knew both Lawrence and Melodie while they were living together spoke positively about the bond that developed between Lawrence and Trista. They testified that the two of them seemed like “father and daughter”. Lawrence treated Trista as his own child and she, in turn, called him “dad”. On the other hand, however, Lawrence conceded that his own two daughters were not happy when Trista started to refer to him as her father, which he says started shortly after he and Melodie started dating. 5) Notwithstanding what Lawrence described as near perfect relationship with Trista, it was clear that the situation on the home front generally was anything but idyllic. Lawrence’s daughters, and particularly his eldest, never got along with Melodie. Arguments were not uncommon. Lawrence’s daughters swore at Melodie and Melodie swore back. The name calling on both sides included references to “slut” and “whore”. Melodie resorted, on at least one occasion to slapping one of the children on the face, and on another occasion to telling both girls that they had to move out. 6) According to Melodie, the disrespect that Lawrence’s daughters showed to her was also shown to Trista. She says they were verbally mean to Trista and at times handled her roughly. They called her names, threatened her and would give her “the finger”. When Melodie intervened, the girls would tell their father who, according to Melodie, did nothing to help the situation. Lawrence confirmed that he was always in the middle of Melodie and his daughters and ended up “just staying out of it”. Lawrence, however, denied that his daughters in any way treated Trista badly, although she was frequently present during the altercations between them and Melodie. 7) The harmony between Lawrence and Melodie was also less than perfect. Their relatively short-term relationship was peppered with separations, apparently too frequent for either to quantify with any measure of certainty. Suffice it to say that cohabitation was interrupted between four and seven times before the final separation. Lawrence admitted that he and Melodie did not have “very good” relationship. The bickering was constant and there always seemed to be problems. The RCMP were frequently called to the home. Again, much of this occurred in the presence of Trista. 8) Melodie described the relationship in even less flattering terms than Lawrence. She alleged that he was an abusive partner verbally, physically and sexually. Her allegations regarding verbal abuse were corroborated by many of the same witnesses who spoke so glowingly about Lawrence’s interactions with Trista. While none of them reported witnessing any physical altercations between the parties, all those who socialized with them could recall verbal altercations. It would seem that the verbal abuse was mutual, and it was apparently not uncommon for them, even in social situations, to raise their voices with one another and call each other names. At times, Trista was present. 9) While these witnesses saw no physical abuse, Lawrence’s criminal record acquired during the time he lived with Melodie speaks for itself. In 2003, he was convicted of assaulting her and threatening her with weapon. That weapon was knife. Lawrence says he has no recollection of the incident he “blacked out”. He does not know if Trista was present, and Melodie did not say. Lawrence was sentenced to 18 months imprisonment, to be served in the community. The conditions attached to the community based sentence did not prohibit him from having contact with Melodie since they resumed living together after he was released from remand. 10) Also during their relationship, Lawrence was accused of threatening Greg, Trista’s father, and convicted of another criminal offence. Little detail was provided but Lawrence did say that Melodie was drunk one night and while he was carrying her from the bar to the vehicle “guy” came out of the hotel. He says they ended up in “tussle”. 11) There was yet another factor adding to the disharmony of the situation. Melodie also has two older daughters who at the time she and Lawrence started cohabiting were in their pre-teenage years. Both girls live in British Columbia with their father, member of the Canadian Armed Forces. Their periodic visits to Saskatchewan to visit with their mother resulted in chaos according to Lawrence. All the older girls fought and argued. 12) Depending on who is to be believed, Lawrence and Melodie parted ways as couple in either October, 2006 or August, 2007. Lawrence acknowledges the separation in 2006, when Melodie moved to different accommodation, but says they reconciled in February of the following year. Melodie says that she let Lawrence stay at her home after the October separation, but not starting until April, only because he had to leave his rented premises and had nowhere else to go. According to her, it was not reconciliation. She told Lawrence that he needed to be gone by June since she was concerned that the father of her older daughters would not let them visit in the summer if Lawrence was present. Melodie says that Lawrence left during the third week of June, staying first with his brother and later at hotel. In the interim, however, Lawrence did remain involved with Trista and provided child care when Melodie was working night shifts. It was not explicitly stated, but it would appear that by then Lawrence’s daughters were no longer part of the family dynamic. 13) Lawrence’s recollection of the events leading up to August, 2007 is quite different. He says he left Melodie’s residence in the summer of 2007 only because the house was small and there was insufficient room for everyone once her daughters arrived from British Columbia. He did not consider that he was separating from Melodie. Nonetheless, that summer he reconnected with Brenda, the mother of his two daughters. He and Brenda separated in 1996 or 1997, but had never divorced. Apparently the two of them discussed his relationship with Melodie and then decided to “get back together’. This notwithstanding that Lawrence had been previously convicted and incarcerated for sexually assaulting Brenda. Lawrence says that he planned on telling Melodie that he was permanently leaving her for Brenda, however, as events unfolded, she beat him to the punch by text message. 14) Melodie agreed that she did text message Lawrence from Saskatoon where she had taken her older daughters to catch their flight back to British Columbia. Immediately prior to her departure, she says she had denied Lawrence’s request for keys to her home, telling him that he did not live there. However, while in Saskatoon, she received message from friend saying that Lawrence was at her house and was doing yard work. She sent him message telling him to get out, which he apparently did. 15) Since that day in August, 2007, contact between Melodie and Lawrence has been limited. Even more limited has been the contact between Lawrence and Trista. He says that he tried unsuccessfully to telephone her and has sent her cards and letters. Some of the correspondence has been returned to him. Others, he was told, were torn up. 16) On only two occasions has Lawrence actually seen Trista. Both sightings were by chance. Shortly after he and Melodie separated, he saw Trista on the street. She darted away from him and went into retail establishment. On the second occasion, Trista was on her bike. Again Trista ran from Lawrence, but he says not before waving at him. 17) Lawrence commenced this proceeding on April 2, 2008, some six months after he says he separated from Melodie and reunited with Brenda. Interim applications to have him designated as person of “sufficient interest” were dismissed. The parties were unable to resolve the issue at pre-trial settlement conference. The matter was accordingly set for trial. II. The present circumstance of the parties and Trista (a) Lawrence 18) Lawrence and Brenda did in fact reconcile in 2007. They now live together north of Choiceland in five-bedroom home. With them are Brenda’s two younger children, son and daughter, aged seven and nine years, respectively. These two children were born to Brenda while she was separated from Lawrence and living with another man. The father of these two children lives in North Battleford and visits his children from time to time. Brenda is retired, raises some cattle, and helps Lawrence with his plumbing business. (b) Melodie 19) It would appear that Melodie has as well quickly moved on with her life. She is now engaged to Josh. They have been living together since October, 2007, the month after they started dating. Josh is employed as welder, has never been married, and has no children. He has, however, according to both he and Melodie, become father to Trista. Josh met Trista as soon as he began dating Melodie, and says that she has become big part of his life. She calls him dad. 20) At the time of trial, Melodie was enrolled as full-time student at Cumberland College. She has aspirations of entering the area of either practical or psychiatric nursing. 21) According to Melodie, Trista was upset following the separation. She said that Trista was frightened that she would be ridiculed at school because “normal” families have moms and dads. Melodie did not clarify whether Trista was experiencing these problems starting in August, 2007, when Lawrence says the separation occurred, or earlier when Melodie says it occurred. Despite her initial problems, however, Trista has recovered and is doing well. Melodie describes her as beautiful, funny and smart child who is enjoying school and her extracurricular activities. 22) The principal of Trista’s school testified. Ms. Gabriel taught Trista in Grade and again in Grade V. As the administrator of the school, she is also the first contact for teachers or parents who may need additional supports for particular student. 23) Ms. Gabriel described Trista as bubbly girl with big smile. She is caring, compassionate, helpful and loves to tell stories. Trista is involved in many school activities, volunteering and drama she is student who wants to be part of everything. At the same time, Trista displays insecurity and self-esteem issues which translate into social and friendship issues as well. According to Ms. Gabriel, the school is working with Trista in these areas. 24) Academically, Trista is an average student who has struggled in school. In the past, academic supports have been put in place for her. Trista must work hard, which she does, and she has shown much progress in the year preceding trial. Ms. Gabriel did note that in the fall of 2007, Trista’s classroom teacher raised concern that Trista was unable to focus or concentrate in class. referral was made to the school counsellor who worked with Trista throughout the 2007/2008 academic year. Trista progressed well, and the counselling was considered no longer necessary in the next academic year. 25) Trista lives with her mother and Josh. Her father Greg has an order entitling him to access, although according to Melodie, he has had little involvement recently. Greg is now the father of two more young children. There was no evidence at trial as to whether or not Trista has had the opportunity of meeting her two half -siblings. III. The legislation 26) This proceeding is governed by The Children’s Law Act, 1997, S.S. 1997, c. C-8.2(the Act). The relevant provisions are: 2(1) In this Act: ... “father” means the father of child and includes: (a) man declared to be the father pursuant to section 43 or 44; and (b) man recognized as the father pursuant to section 50, 51, 55 or 56; “mother” means the mother of child and includes: (a) woman declared to be the mother pursuant to section 43 or 44; and (b) woman recognized as the mother pursuant to section 50, 51, 55 or 56; “parent” means: (a) the father or mother of child, whether born within or outside marriage; (b) the father or mother of child by adoption; 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 9(1) In making, varying or rescinding an order for access to child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking access; (ii) the personality, character and emotional needs of the child; (iii) the capacity of the person who is seeking access to care for the child during the times that the child is in his or her care; and (iv) the wishes of the child, to the extent that the court considers appropriate, having regard to the age and maturity of the child; and (b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to care for the child during the times that the child is in his or her care. IV. Analysis 27) This proceeding and the arguments raised by Lawrence and Melodie raise several issues. The first that must be considered is the position taken by Lawrence that because he is a “step-parent” to Trista, he does not need to establish that he falls within the category of persons having a “sufficient interest” to bring this application. In his pleadings, Lawrence asserts that he developed close “child-parent relationship” with Trista while he and her mother lived together and that he stood “in the place of parent” to her. In argument, the terminology used by Lawrence was that he stood “in loco parentis” and as such he had, and has, the same status as biological parent. Flowing from this, according to Lawrence, is the presumption that it is in Trista’s best interests that she have access to him. He says that if the presumption is to be rebutted, the onus lies with Melodie. 28) Melodie disputes Lawrence’s claim that he stood in the place of parent to Trista, and she claims no financial support from him. She further says that Lawrence’s relationship with Trista does not even place him within the class of persons who could be said to have “sufficient interest” to commence this proceeding. That alone, according to Melodie, is enough to cause this action to be dismissed. Melodie points to the nature of the relationship between Lawrence, herself and Trista, and the amount of time that Lawrence allowed to elapse before commencing his petition. Alternatively, if Lawrence is found to be person of sufficient interest, Melodie says that access is not in Trista’s best interests. She characterizes the relationship between her and Lawrence as abusive and is concerned that the hostility that continues to exist between her and Lawrence will have negative impact on Trista. 29) It must initially be noted that the Act does not refer to any of the terms “step-parent”, “person standing in the place of parent”, or “in loco parentis”. There are only two categories of persons recognized by the legislation who may seek an order for custody or access. They are “parent” or another person “having sufficient interest”. Those who fall into the latter category of persons are in the discretion of the Court, but “parent” is restrictively defined in s. 2(1) to include only the mother or father of the child, whether by birth or adoption. This is unlike the provisions of The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2 which provides for more expansive definition of “parent”. There, in s. 2(1), “parent” includes not only the child’s mother or father, but also “a person who has demonstrated settled intention to treat child as child of his or her family...”. Accordingly, since Lawrence is not a parent as defined in the Act, he must demonstrate that he is of a person of sufficient interest to have standing to bring this application. 30) The foregoing conclusion is of little consequence to Lawrence in so far as it relates to his standing to bring this application. The threshold for determining that person has “sufficient interest” under the Act is lower than that for determining that person has “demonstrated settled intention to treat child as his or her own”, or that the person stands “in loco parentis” to the child. While person of sufficient interest may be entitled to seek custody or access to child under the Act, where that person also stands “in loco parentis”, financial responsibilities and obligations may also attach as consequence of the nature of that relationship under the provisions of other legislation. 31) The second question that must then be answered is whether or not, in the circumstances of this case, Lawrence is person of “sufficient interest”. This involves an assessment of the nature of the relationship between Lawrence and Trista. In S.(G.E) v. C.(D.L.), 2006 SKCA 79 (CanLII), 285 Sask. R. 19, non-exhaustive list of factors to be considered was discussed at para. 47: [47] ... In determining whether a non-family applicant is a person with a sufficient interest, the court should consider a 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.... 32) The Saskatchewan Court of Appeal further said at para. 47 that where there is no family or blood relationship, as was the case there, applicants “... who do not have both significant relationship with the child and demonstrated and settled ongoing commitment to the child” should generally be screened out through the application of s. of the Act. Because of the familial relationship among Lawrence, Melodie and Trista, the expectations of Lawrence are not so onerous. 33) In this case, I am satisfied that Lawrence has demonstrated that he is a person of sufficient interest with respect to Trista. While the date of their separation is in dispute, it was conceded by Melodie that she and Lawrence cohabited for a period of at least five years, albeit with periodic interruptions. The relationship, in one form or another, spanned the years 2000 to 2007, commencing when Trista was barely a toddler. Over those years Lawrence provided care for Trista, participated in activities with her and was involved, from time to time, with her school. The incomes of both Lawrence and Melodie were used to support the family. Trista referred to Lawrence as “dad”, and the community generally viewed them as “father and daughter” and part of a larger family. Apart from paying child support, the involvement of Trista’s biological father was limited and sporadic. 34) Having determined that Lawrence has standing to bring this application, turn to the next stage of the inquiry that being whether or not access should be granted to Lawrence, and if so, to what extent. Here, the overriding consideration is the best interests of Trista, consideration which is to be determined having regard to the factors enumerated in s. of the Act. It is also at this stage of the inquiry that my earlier decision regarding Lawrence’s status in this proceeding is of more consequence to the legal position that he has argued. Even though in other circumstances, and for different purposes such as under The Family Maintenance Act, 1997, supra, Lawrence may be considered to be person who has demonstrated settled intention to treat Trista as his own child, that determination would not elevate him to status greater than that of person of sufficient interest under the Act. It certainly would not place him on the same footing as biological parent or an adoptive parent, vis-à-via access, as he has suggested. As such, there is no presumption that access between he and Trista is in her best interests. That presumption, found in s. 6(5)(a), applies only to parents. In these circumstances, the onus lies with Lawrence to establish that access will be Trista’s best interests. It is not up to Melodie to show otherwise. 35) In this case, I cannot conclude that requiring Trista to visit with Lawrence will be of any benefit to her. Similarly, cannot conclude that Trista will in any way be disadvantaged or suffer if she does not have access to Lawrence. accept as true Lawrence’s testimony that he loves Trista dearly and misses her very much. He wants to spend time with her as much as possible. That, however, is not enough to warrant an order for access in cases such as this. 36) While there was considerable contradictory evidence during the course of this trial, one fact emerged as indisputable. The adults in Trista’s life have put their interests first and have subjected her to inexcusable disharmony and instability. She has been introduced to series of “daddies” while her mother searches for the perfect mate. When living with her mother and Lawrence, Trista experienced home life that was characterized by bickering, fighting, verbal and domestic abuse. The person that she then knew as “dad” was convicted of assaulting and threatening her mother with knife. Separations and disruptions in the family were the norm. The attempt to blend Lawrence’s daughters, Trista’s “step-sisters”, into the family were unsuccessful. There too, Trista was witness to the battles that ensued between them and her mother, and her mother’s mistreatment of them. The arrival for access of Melodie’s older daughters, Trista’s half-sisters, only added to the chaos and mayhem in the home. 37) This being the environment in which Trista lived for several of her formative years, it is somewhat surprising that she is now doing as well in school as was described by Ms. Gabriel. This speaks to Trista’s resilience. It is not surprising, however, that Ms. Gabriel described Trista as displaying issues of insecurity and low self-esteem. Nor is it surprising that in the fall of 2007, Trista’s teacher found it necessary to seek out counselling for her because of her inability to focus or concentrate in the classroom. This coincided with the final departure of Lawrence from Trista’s family dynamic and the introduction by Melodie of Trista’s third “dad”. 38) To date, Trista’s extended family has consisted of her two elder half-siblings whom she sees periodically. While Lawrence was part of the family, she lived with two more “step-sisters”, who it would appear are no longer part of her life. Her biological father, who has had at most sporadic relationship with Trista, has provided her with two more half-siblings, whom she may or may not have met. Trista now lives in household with the third man that her mother has had her refer to as her father. Within this context, Lawrence proposes that Trista have access with him. This would involve an introduction to yet another person his wife, to whom he remained married while living with Trista’s mother, as well as to her two young children, who were conceived while she was separated from Lawrence. The father of these two children is intermittently involved in their lives. Lawrence has previously shown himself to be ineffectual in attempting to harmonize the relationship between the children of two families. None of the evidence suggests that Lawrence will be more successful in harmonizing the complex relationships that will exist among his and Brenda’s two daughters, Brenda’s two children, and Trista. 39) Trista has already had to contend with multiple “fathers” and multiple “siblings”, many of whom have been only temporary or fleeting personalities in her life. The confusion that this has no doubt caused her should not be further compounded by requiring her to make even more adjustments in her understanding of what “family” means. No good can come of that, and cannot conclude that it would be in her best interests to expect it of her. Access to Lawrence is not in the best interests of Trista. V. Conclusion 40) Lawrence’s application for access is dismissed. However, in the circumstances of this cases, there will be no order for costs. J. M-E. Wright
The parties were in a relationship for over 5 years though they never married. The petitioner now seeks access to the respondent's daughter from an earlier relationship. The parties' relationship was tumultuous and included some incidents of domestic violence, which the child may have been exposed to. There are concerns regarding the interactions between the respondent's daughter and the petitioner's own children. The petitioner must establish, firstly, that he has 'sufficient interest' to bring this application, per s. 6(1) of The Children's Law Act, 1997. HELD: The application for access is dismissed. In determining whether a non-family applicant is a person with a sufficient interest, the Court must consider a variety of factors including: the extent or degree of the applicant's involvement in the child's life, the duration of that involvement, the level of intimacy and the quality of the relationship between the applicant and the child, how the relationship between the applicant and the child was represented to the world, and whether the applicant provided financially for the child. The petitioner has demonstrated that he is a person of sufficient interest; the relationship between the parties was not short and, during its lifespan, the petitioner formed a close bond with the child and was involved with her life. The community viewed them generally as father and daughter. However, the Court cannot conclude that requiring the child to visit the petitioner would be of any benefit to her. This child has already had to contend with multiple 'fathers' and multiple 'siblings', many of whom have been only temporary or fleeting personalities in her life. The confusion that this has no doubt caused her should not be further compounded by requiring her to make even more adjustments in her understanding of what 'family' means. Access to the petitioner is not in the best interests of this child.