THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2006 SKCA 76 Date: 20060620 Between: Docket: 1298 Shannon Tindall (Respondent) Appellant and Robert Murray Craig (Petitioner) Respondent Coram: Sherstobitoff, Jackson Richards JJ.A. Counsel: James A. Johnson for the Appellant W. Timothy Stodalka for the Respondent Appeal: From: FLD 455 of 2005, J.C. of Regina Heard: June 20, 2006 Disposition: Allowed (orally) Written Reasons: June 27, 2006 By: The Honourable Mr. Justice Sherstobitoff In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Richards SHERSTOBITOFF J.A. [1] This appeal was allowed from the bench with brief written reasons to follow. These are the reasons. [2] The appeal is from an order granting interim custody of a 10 year old girl to her father, notwithstanding that the child had been in the custody of the mother since the mother and father separated about 4 years ago. During the separation, the father paid some maintenance for the child pursuant to an agreement made by the parties themselves, and had extensive access to the child, she spending at least one weekend month with him, as well as the summer holiday. [3] In late December, 2005, while the child was with her father for the Christmas holiday, the father filed and served petition for custody of the child as well as motion for interim custody pending the hearing of the petition. In support, he filed an affidavit alleging that the child (as well as 16 year old sister born to the mother as result of previous relationship) in fact resided most of the time with her maternal grandparents, David and Vivianne Tindall. He further alleged that the mother was an alcoholic and as result did not properly care for the children. These allegations were based on what he says, in his affidavit, he was told by David and Vivianne Tindall, and by Karin McEwen of the Department of Community Resources and Employment, Family and Youth Services. [4] The mother filed an affidavit in reply, in effect denying all of the allegations, and in particular, that the child was not living with her, that she was an alcoholic, and that she was not giving proper care to the child. She included many allegations of improper conduct on the part of the father. She also filed affidavits from three friends and the 16 year old daughter to support her own evidence. [5] On January 13, 2006, Family Court Judge made an order compelling the father to return the child to the mother pending the hearing as to interim custody, as the father had not done so at the end of the holiday. The parties agreed that the motion should be adjourned to January 20. They also agreed to the introduction into evidence of an Investigation Record prepared by Karin McEwen, without requiring her to appear as witness. [6] The Investigation Record consisted of record of interviews or conversations Ms. McEwen had with Vivianne Tindall, and with the father. Ms. McEwen relied mainly on what she was told by Vivianne Tindall in arriving at conclusion that the child was at risk because of the mother’s drinking. She never took any action because, at the relevant times, the child was with her grandparents or her father, and most recently, the matter was in the hands of the Court. The rest of the record was series of complaints received respecting the conduct of the mother. None of the complainants were identified by name, and for various reasons, no action was taken on the complaints. [7] When the matter was in Court again on January 20, before another Family Court Judge, counsel for the father, in view of the directly conflicting evidence respecting the main issues to be decided, asked for and expected an order for trial of the issues, with viva voce evidence. The judge, however, declined to make such an order, but instead ordered the mother to undergo an independent drug and alcohol assessment to be conducted by Francis Stewart, psychologist. The order also gave either party the right, upon receipt of the assessment, to restore the matter to the chambers list on seven days' notice. [8] The psychologist’s report was filed. It consisted of summary of an interview with the mother, description of number of specific substance abuse tests administered to the mother, reading of the Investigation Record, and summary of “corroborative interviews” with Ms. McEwen and Vivianne Tindall. The report concluded as follows: The Investigation Report completed by Karin McEwen and the two corroborative interviews conducted by the writer are in stark contrast to the results obtained on the psychometric measures regarding Shannon’s use of alcohol and/or drugs. Shannon’s test results indicated that she exhibits patterns of alcohol use that is typical in the general population. This is highly unlikely when all information obtained in the assessment is considered. The evidence provided by these three additional sources strongly indicates that Shannon has an established pattern of alcohol use that is excessive, has interfered with her family relationships and quite possibly her occupational functioning, and has caused some disruption in her ability to provide consistent, responsible care to her children. It is this writer’s professional opinion that the information provided by these additional sources of information should not be ignored, despite the results obtained on the psychometric measures. In fact, it is the writer’s opinion that significantly more weight should be assigned to these sources than is given to the results of the psychometric measures. Due to the results of the testing, however, no diagnosis regarding Alcohol Dependence or Alcohol Abuse can be suggested. From all sources considered, including the psychometric testing, it appears that alcohol use (or misuse) is the greater problem of concern, with drug use possibly playing minor role. [9] The matter next came to court on April 26 before third Family Court Judge. She granted interim custody of the child to the father. Although she apparently gave oral reasons for her decision, the file has no record of them, and counsel advises that no copy is available, so that this Court has no reasons for decision available to it to assist in the review of the decision. [10] The mother has appealed to this Court on the ground that the judge erred in giving interim custody to the father by failing to follow the principle that in such matters the status quo should be preserved in the absence of compelling evidence to prove that the best interests of the child, during the short period that the interim order will be in effect, require otherwise, citing the decision of this Court in Harden v. Harden (1987), 1987 CanLII 4876 (SK CA), 54 Sask. R. 155; Roebuck v. Roebuck (1983), 1983 ABCA 156 (CanLII), 148 D.L.R. (3d) 131 (Alta. C.A.), and many subsequent judgments, most recently Dorval v. Dorval, 2004 SKQB 188 (CanLII), (2004), 248 Sask. R. 309. She says that the evidence did not establish either of the allegations of the father: that she was an alcoholic and that her alcoholism adversely affected the child. [11] We will not comment on the lack of reasons for decision since counsel did not raise it as ground of appeal. Since an order was made in favour of the father, we must assume that the judge found that he had established the grounds he advanced, namely the alcoholism of the mother and its adverse effect upon the child. [12] The appeal must succeed. Even assuming that the Investigation Record was admissible into evidence by reason of the agreement of the parties, and that the psychologist’s report was admissible into evidence under s. 97 of The Queen’s Bench Act, 1998, S.S. 1998, Q-1.01, both of which propositions are at least arguable, there is no evidence other than unsworn hearsay evidence upon which it could be found that the mother was alcoholic and that the child suffered from it, while there is sworn evidence from the mother denying that to be so, as well as sworn evidence from three other persons supporting the mother’s evidence to at least some degree. [13] The father’s affidavits are the only sworn evidence filed in support of his case. As noted above, he and the mother had not lived together for four years. His first affidavit makes the bare assertion that the mother is an alcoholic and that when they lived together her alcohol consumption was an ongoing problem. As to care of the child, he says that the child spent 95% of her time with the grandmother; that he was told by Karin McEwen that the Department had received complaints about the mother’s drinking and her care of the child; and that he was told by Vivianne Tindall and Karin McEwen that there was no fridge, food or telephone in the mother’s house and that it was always mess. The father’s rebuttal affidavit was simply refutation of allegations made against him by the mother in an affidavit filed by her. [14] From this, it is apparent that the father had no personal knowledge of the mother’s drinking habits during the past four years, nor any personal knowledge of how the mother cared for the children. He relied on what he was told by Karin McEwen and Vivianne Tindall. [15] The Investigation Record prepared by Karin McEwen shows that she, too, had no personal knowledge of either the mother’s drinking habits or her care of the child. Her only knowledge was what she was told by various unnamed persons in the community (at least one of whom she acknowledged to be maliciously motivated) and Vivianne Tindall. [16] The Drug and Alcohol Assessment Report prepared by Francis Stewart shows that none of the tests undergone in this respect by the mother showed her to have any problem with alcohol or drug use. However, based on what he read in Ms. McEwen’s Investigation Record, and his conversations with Ms. McEwen and Vivianne Tindall, he urged that the psychometric evidence be, in effect, ignored. [17] It is apparent that none of the authors of the documents supporting the father’s position that the mother is an alcoholic and not properly caring for the child have any personal knowledge that that is the case, and that the information conveyed is nothing more than the opinion of the authors based on hearsay, namely information obtained from third parties, the only one identified being Vivianne Tindall. In retrospect one is left to wonder why no one sought to obtain an affidavit from her. The information in the documents indicates that she would have been likely to co-operate. In fairness to the father’s counsel, he asked for, and presumably expected, an order directing trial of an issue with viva voce evidence, but the judges presiding decided to proceed otherwise. [18] While the Court may, under Queen’s Bench Rule 603(3), allow hearsay evidence in affidavits in applications for interim relief, it may do so only in “special circumstances” and none were shown to exist here. Accordingly, hearsay matters in the father’s affidavits should not have been considered. As to the reports prepared by Karin McEwen and Francis Stewart, neither were sworn or verified under oath. Thus Rule 603(3) does not apply to them, and to the extent that they were based on hearsay, they should not have been considered. [19] Without the hearsay evidence, there was no case for even direction of the trial of an issue, let alone an order in favour of the father. [20] But even if the hearsay were admissible, given the direct denial under oath by the mother of either alcoholism or lack of proper care for the child, there should have been an order directing trial of an issue rather than decision made on the written evidence filed: Zaba v. Bradley (1996), 1996 CanLII 4930 (SK CA), 137 Sask. R. 295 (C.A.). [21] Accordingly, the appeal is allowed and the order below is set aside. The father shall have leave to reapply on proper evidence if so advised.
The appeal is from an order granting interim custody of a 10 year old girl to her father, notwithstanding that the child had been in the custody of the mother since the mother and father separated about 4 years ago. During the separation the father paid some maintenance for the child pursuant to an agreement made by the parties themselves, and had extensive access to the child, she spending at least one weekend a month with him, as well as the summer holiday. HELD: Appeal allowed orally.  1) The oral reasons of the Family Court judge granting interim custody to the father were not available to the court, so it had no reasons for the decision available to assist it in the review of the decision. 2) The appeal must succeed. Even assuming the Investigation Record was admissible into evidence by reason of the agreement of the parties, and that the psychologist's report was admissible into evidence under s. 97 of The Queen's Bench Act, both of which propositions are at least arguable, there is no evidence other than unsworn hearsay evidence upon which it could be found that the mother was alcoholic and that the child suffered from it, while there is sworn evidence from the mother denying that to be so, as well as sworn evidence from three other persons supporting the mother's evidence to at least some degree. The father's affidavits are the only sworn evidence filed in support of his case. It is apparent that the father had no personal knowledge of the mother's drinking habits during the past four years, nor any personal knowledge of how the mother cared for the children. 3) It is apparent that none of the authors of the documents supporting the father's position that the mother is an alcoholic and is not properly caring for the child (the Investigation Record and The Drug and Alcohol Assessment Report) had any personal knowledge that that is the case. The information conveyed is nothing more than the opinion of the authors based on hearsay, namely information obtained by third parties, the only one identified is Ms. Tindall. One is left wondering why no one sought to obtain an affidavit from her. 4) Hearsay matters in the father's affidavits should not have been considered. The report were not sworn or verified under oath.  Thus Rule 603(3) does not apply to them, and to the extent that they were based on hearsay, they should not have been considered. Without the hearsay evidence, there was no case for even the direction of a trial of the issue, let alone an order in favour of the father.