B.A.B. et al. v. D.B. et al., (2010) 364 Sask.R. 309 (FD)

• Judge: Dufour, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: December 22, 2010
• Jurisdiction: Saskatchewan
• Citations: (2010), 364 Sask.R. 309 (FD);2010 SKQB 472

B.A.B. v. D.B. (2010), 364 Sask.R. 309 (FD)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. JA.018

B.A.B. and C.L.B. (petitioners) v. D.B. and R.B. (respondents)

(2010 F.L.D. No. 344; 2010 SKQB 472)

Indexed As: B.A.B. et al. v. D.B. et al.

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

Dufour, J.

December 22, 2010.

Summary:

D. had a daughter, S., when she was 17 years old. D. signed over custody to her grandmother, R. R. worked full time, so she hired C. for $25 per day to look after S. while R. was at work. Four years later, R. terminated the relationship with C. and B. (C.'s husband). C. and B. applied for legal custody of, or access to, S.

The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the application.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 1813

Custody and access - General - Official guardian - Role of - D. had a daughter, S., when she was 17 years old - D. signed over custody to her grandmother, R., in a Consent and Acknowledgement - R. worked full time, so she hired C. for $25 per day to look after S. while R. was at work - Four years later, R. terminated the relationship with C. and B. (C.'s husband) - R. and the petitioners (C. and B.) applied to be declared persons of sufficient interest under s. 6 of the Children's Law Act and sought custody of S. - The Saskatchewan Court of Queen's Bench, Family Law Division, held that R. had been S.'s legal custodian since D. executed the Consent and remained such until a court determined otherwise - This meant that R. had the legal authority to make all decisions as to S.'s care and upbringing for the time in which the petitioners were involved in S.'s life - See paragraphs 12 to 22.

Family Law - Topic 1836

Custody and access - Right to custody - Rights of strangers - [See Family Law - Topic 1894 ].

Family Law - Topic 1843

Custody and access - Custody agreements - Effect of - [See Family Law - Topic 1813 ].

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare or best interests of child paramount - [See Family Law - Topic 1894 ].

Family Law - Topic 1894

Custody and access - Considerations in awarding custody - Contest between nonparents - D. had a daughter, S., when she was 17 years old - D. signed over custody to her grandmother, R. - R. worked full time, so she hired C. for $25 per day to look after S. while R. was at work - Four years later, R. terminated the relationship with C. and B. (C.'s husband) - C. and B. applied to be declared persons of sufficient interest under s. 6 of the Children's Law Act and sought custody of, or access to, S. - The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the application - C. and B. were not persons of sufficient interest - C. was contracted to take care of S. while R. was at work and that was what she did - She and B. were paid babysitters - Further, anything that the C. and B. did for S. that might arguably be reason to elevate them above the level of mere babysitters was not because R. delegated any of her authority as legal custodian to them - It was because they took it - They gradually usurped R.'s authority, something R. found difficult to stop because she needed reliable babysitters so that she could go to work and earn a living - Had it found that C. and B. were persons of sufficient interest, the court would have dismissed their application for custody and/or access - Given their behaviour, continued contact with them would not be in S.'s best interest - Finally, there was nothing in the evidence that R. was not providing adequate care for S. for the custody application was a non-starter - See paragraphs 23 to 46.

Family Law - Topic 2182

Custody and access - Practice - Persons entitled to apply - [See Family Law - Topic 1894 ].

Family Law - Topic 2189

Custody and access - Practice - Costs (incl. suit money or interim costs) - D. had a daughter, S., when she was 17 years old - D. signed over custody to her grandmother, R., in a Consent and Acknowledgement - R. worked full time, so she hired C. for $25 per day to look after S. while R. was at work - Four years later, R. terminated the relationship with C. and B. (C.'s husband) - R. and the petitioners (C. and B.) applied to be declared persons of sufficient interest under s. 6 of the Children's Law Act and sought custody of S. - The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the application - C. and B. were not persons of sufficient interest - Had it found that C. and B. were persons of sufficient interest, the court would have dismissed their application for custody and/or access - With respect to costs, the court found C. and B.'s "behaviour deserving of rebuke and their application to be frivolous and so bereft of persuasive evidence in support of the applicable legal principles that I should depart from the usual practice of awarding party and party costs" and awarded costs to D. and R. that it set at $3,500 - See paragraphs 47 to 50.

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to - Improper, irresponsible or unconscionable conduct - [See Family Law - Topic 2189 ].

Cases Noticed:

G.E.S. v. D.L.C. (2006), 285 Sask.R. 19; 378 W.A.C. 19; 2006 SKCA 79, refd to. [para. 9].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1; 9 R.F.L.(4th) 157, refd to. [para. 15].

N.F. v. H.L.S. (1999), 127 B.C.A.C. 66; 207 W.A.C. 66; 49 R.F.L.(4th) 250; 1999 BCCA 398, refd to. [para. 16].

W.E. v. D.C. (2007), 305 Sask.R. 243; 2007 SKQB 440 (Fam. Div.), refd to. [para. 16].

G.N. et al. v. D.N. et al., [2009] Yukon Cases Uned. 75; 2009 YKSC 75, refd to. [para. 16].

G.D. v. G.M. (1999), 47 R.F.L.(4th) 16 (N.W.T.S.C.), refd to. [para. 16].

L.K. v. M.T. (2010), 354 Sask.R. 242; 2010 SKQB 145 (Fam. Div.), refd to. [para. 20].

D.W.S. et al. v. R.S. et al. (2008), 323 Sask.R. 305; 2008 SKQB 399 (Fam. Div.), refd to. [para. 38].

M.E.S. v. D.A.S. (2001), 304 A.R. 112; 21 R.F.L.(5th) 400; 2001 ABQB 1015, refd to. [para. 46].

Tucker v. Lester et al. (2002), 220 Sask.R. 309; 2002 SKQB 225 (Fam. Div.), refd to. [para. 46].

AgraCity Ltd. et al. v. Skinner et al. (2010), 355 Sask.R. 73; 2010 SKQB 123, refd to. [para. 50].

Counsel:

R. Wiebe, for the petitioners;

V. Watson, for the respondents.

This application was heard by Dufour, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Saskatoon, who delivered the following fiat on December 22, 2010.