C.L.B. v. J.A.B., (2016) 484 Sask.R. 228 (CA)

• Judge: Ottenbreit, Herauf and Whitmore, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: February 16, 2016
• Jurisdiction: Saskatchewan
• Citations: (2016), 484 Sask.R. 228 (CA);2016 SKCA 101

C.L.B. v. J.A.B. (2016), 484 Sask.R. 228 (CA);

    674 W.A.C. 228

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. AU.027

Paul Anthony Burke (appellant) v. Her Majesty the Queen (respondent)

(CACV2805; 2016 SKCA 101)

Indexed As: C.L.B. v. J.A.B.

Saskatchewan Court of Appeal

Ottenbreit, Herauf and Whitmore, JJ.A.

August 10, 2016.

Summary:

The parties had two children of the marriage. The mother alleged that the father had sexually abused the children. The father denied the allegations. She obtained an ex parte order which suspended the father's access to the children until the matter could be heard in Chambers. A custody hearing ensued.

The Saskatchewan Court of Queen's Bench granted the parties joint custody of the children with primary residence to the mother. The father was granted specified access to be supervised by one or both of his parents for "at least the first three months". The court also ordered a focussed custody and access report (Sandomirsky, J.'s order). The registered psychologist who prepared the report concluded that it was unlikely that the father had sexually abused the children. The father applied for increased and unsupervised parenting time with the children.

The Saskatchewan Court of Queen's Bench ordered increased parenting time to the father and removed the restriction that parenting time be supervised (Tholl, J.'s order). The mother appealed Tholl, J.'s order. An automatic stay ensued (Court of Appeal Rules, rule 15). The father applied to lift the automatic stay.

The Saskatchewan Court of Appeal, per Ryan-Froslie, J.A., in a decision not reported in this series of reports, refused to lift the stay other than to permit the pre-trial conference to proceed at the Court of Queen's Bench. However, the court ordered supervised parenting time to the father pending the appeal. The court also provided directions for the completion and filing of the appeal book and facta. The father applied to enforce the parenting time provisions in Ryan- Froslie, J.A.'s order, and to obtain compensatory access for missed parenting times. The father also requested costs of the application.

The Saskatchewan Court of Appeal, per Ryan-Froslie, J.A., in a decision not reported in this series of reports, acknowledged the breach of the court's prior order by the mother. The court reinstated the supervised parenting times between the father and the children pending the appeal. The order included a requirement that one of the supervised access periods occur through the Family Justice Services Supervised Access Program with a report to be provided to the Court of Appeal and the Court of Queen's Bench with respect to the one supervised access period. The court also ordered compensatory parenting times for the father with the parties' son. The court declined to order police assistance to enforce the father's parenting time, but made it clear that the continued failure to disobey the order could result in an order for police intervention. The court awarded the father $3,500 for the costs of the application. The mother applied for a partial lifting of the stay so that she could apply to vary the order of Tholl, J., and terminate the parenting times between the father and the children. She also applied to vary the reinstatement of supervised parenting time.

The Saskatchewan Court of Appeal, per Ryan-Froslie, J.A., in a decision not reported in this series of reports, dismissed both applications with $1,000 in costs payable to the father. The mother applied to discharge or vary the three decisions of Ryan-Froslie, J.A.

The Saskatchewan Court of Appeal, in a decision reported at 476 Sask.R. 1 (CA); 666 W.A.C. 1, dismissed the application. The mother's appeal of Tholl, J.'s order proceeded.

The Saskatchewan Court of Appeal dismissed the appeal.

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.

Evidence - Topic 7014

Opinion evidence - Expert evidence - General - Textbooks, treatises and literature - The parties had two children of the marriage - The mother alleged that the father had sexually abused the children - The father denied the allegations - An interim order granted the father specified supervised access - A focussed custody and access report was also ordered - The psychologist who prepared the report concluded that sexual abuse was unlikely - The father obtained an order increasing his parenting time and removing the supervision requirement - The mother appealed, asserting that the Chambers judge erred by relying on the psychologist's report as probative evidence for evaluating the risk of future sexual abuse by the father - She asserted that the evidence of experts who supported her submissions was ignored by the judge - The Saskatchewan Court of Appeal stated that the mother's factum referred to excerpts of at least six putative scientific sources - None of those sources were placed before the Chambers judge as expert evidence or treatises in accordance with the jurisprudence on the admission and use of authoritative literature - The literature was therefore of no assistance on the appeal - A party could not place before the court supposed learned literature that the Chambers judge did not see and, on the basis of that literature, argue that the judge erred because he failed to consider it - Such an approach was not only ineffective, it did the judge a disservice - See paragraphs 42 and 43.

Family Law - Topic 1914

Custody and access - Appeals - Interim orders - A mother appealed an interim custody order - With respect to the standard of review, she asserted that one of the rationales for the Court of Appeal eschewing appeal of interim orders (because the issues were best resolved by a pre-trial conference or a trial held in short order) did not apply because the matter would not be resolved at a pre-trial conference and a trial was far away - She asserted that the children would be at risk in the interim given the allegations against the father of sexual abuse - The Saskatchewan Court of Appeal rejected the assertion - Appeals of interim orders in cases involving allegations of sexual abuse were no different than appeals where there were no such allegations - The rationale for the court's approach to such case was equally, and perhaps more, applicable - Where such allegations were disputed, it was preferable that the matter speedily go through the pre-trial and to trial so that the allegations could be dealt with on the merits - The applicable standard of review is whether the Chambers judge made a material error and serious misapprehension of the evidence or an error in law - See paragraphs 13 to 15.

Family Law - Topic 1916

Custody and access - Appeals - Standard of review - [See Family Law - Topic 1914 ].

Family Law - Topic 1920

Custody and access - Appeals - Admission of "new evidence" - The parties had two children of the marriage - The mother alleged that the father had sexually abused the children - The father denied the allegations - An interim order granted the father specified supervised access - A focussed custody and access report was also ordered - The psychologist who prepared the report concluded that sexual abuse was unlikely - The father obtained an order increasing his parenting time and removing the supervision requirement - The mother appealed and applied to tender fresh evidence which included six affidavits and a transcript of approximately 345 pages of conversations which she had with the children - The transcript was edited by her - The affidavits detailed her conversations with the children about sexual abuse as well as the circumstances around the exercise of access by the father - The father asserted that, inter alia, the transcript was in violation of an order which prohibited discussing the allegations or proceedings with the children - The Saskatchewan Court of Appeal stated whether the mother was in contempt of the order was not before the court - However, even if she had breached the order, that was not in itself conclusive of whether the fresh evidence should be admitted as the children's best interests took precedence - The court refused to admit the evidence for two reasons - First, the evidence was not substantially different from that which was before the Chambers judge - It was substantially a continuation of the same affidavit material placed before the judge - Therefore, it was not potentially decisive of the issue of risk - It did not compel a different conclusion on the risk to the children if unsupervised access was granted - Second, the evidence failed the credibility branch of the test for admission - See paragraphs 13 to 29.

Family Law - Topic 1941

Custody and access - Variation of custody and access rights - Circumstances when application can be made - The parties had two children of the marriage - The mother alleged that the father had sexually abused the children - The father denied the allegations - The mother obtained an ex parte order which suspended the father's access - A hearing resulted in an interim order which granted the father specified supervised access for "at least the first three months" - A focussed custody and access report was also ordered (Sandomirsky, J.'s order) - The psychologist (Greenough) who prepared the report concluded that sexual abuse was unlikely - The father obtained an order increasing his parenting time and removing the supervision requirement (Tholl, J.'s order) - The mother appealed, asserting that the order that supervised access should be at least three months did not mandate a variation after three months - She asserted that the three month period should be interpreted subject to the risk of the child test in Guenther v. Guenther (1999, Sask. Q.B.) and, properly interpreted, was meant to give her leave to return to the court if the children had a dramatic reaction to the father's parenting time - The Saskatchewan Court of Appeal held that the case's procedural history pointed to the provision providing a review opportunity to both parties - It was the mother who applied to restrict the father's access - Supervised access was an exceptional form of access - Although it might be necessary in some cases, it was not an optimal way of ensuring the children have access to a parent - Any interim orders which were made as a result of either the mother's ex parte application or the subsequent application before Justice Sandomirsky were made in the context of sexual abuse allegations and in an attempt to effectively deal with whether there should be a restriction - Sandomirsky, J.'s order was done in the context of an abundance of caution respecting the risk to the children and an attempt through the ordered report by Greenough to assess the nature and magnitude of the risk - The three month provision allowed time to shed more light on the abuse allegations and an avenue for the restrictive access order made against the father to be reviewed or changed by the father if warranted as a result of Greenough's report and the supervised access experience during those three months - Tholl, J., correctly took that into account - He correctly determined that Sandomirsky, J.'s order clearly contemplated that changes could be made after the expiry of three months, otherwise it would be practically meaningless. - See paragraphs 35 to 37.

Family Law - Topic 1949

Custody and access - Variation of custody and access rights -Status quo - The parties had two children of the marriage - The mother alleged that the father had sexually abused the children - The father denied the allegations - An interim order granted the father specified supervised access - A focussed custody and access report was also ordered - The psychologist who prepared the report concluded that sexual abuse was unlikely - The father obtained an order increasing his parenting time and removing the supervision requirement - The mother appealed, asserting that the Chambers judge erred by ignoring the status quo - The Saskatchewan Court of Appeal stated that the status quo was a question of fact, but for the purposes of an interim application was usually that which existed during the parents' relationship rather than one created as a result of the separation - The concept was flexible depending on the circumstances - Here, the status quo was not supervised access as argued by the mother - The Chambers judge did not definitively determine the status quo, nor did he need to - Whether the status quo was the parties' co-parenting prior to separation or primary residence with the mother after separation, a change in custody or residence was not at play in the application and the judge was right to say that any change to access as a result of the application would not disturb the status quo in a way prohibited by Guenther v. Guenther (1999, Sask. Q.B.) - See paragraph 34.

Family Law - Topic 1956

Custody and access - Variation of custody and access rights - Irrelevant considerations - The parties had two children of the marriage - The mother alleged that the father had sexually abused the children - The father denied the allegations - An interim order granted the father specified supervised access - A focussed custody and access report was also ordered - The psychologist who prepared the report concluded that sexual abuse was unlikely - The father obtained an order increasing his parenting time and removing the supervision requirement - The mother appealed, asserting that the Chambers judge erred in granting the variation application without a finding of a threat to the safety of the children or some other compelling reason - The mother relied on Guenther v. Guenther (1999, Sask. Q.B.) and Napper-Whiting v. Whiting (2014 Sask. C.A.) - The Saskatchewan Court of Appeal stated that "This is the same failed argument made in Gebert v Wilson, [2015, Sask. C.A.] [Gebert]. As observed in Gebert ... an argument that an interim order cannot be changed unless the evidence established some risk is a misrepresentation of Guenther and, I might add, of Nappier-Whiting. Gebert makes it clear that the dicta in Guenther suggesting that risk must be present before an interim order can be varied applies generally to changes in custody and primary residence as opposed to access ... subject, of course, to the best interests of the child ... On this basis, the principles in Guenther are not in play in this matter since the issue is one of access. That, in my view, is a complete answer to the argument that risk must be a precondition before an interim order can be varied." - See paragraph 33.

Family Law - Topic 2023

Custody and access - Access - Access awards - Supervised access - [See Family Law - Topic 1941 ].

Family Law - Topic 2023

Custody and access - Access - Access awards - Supervised access - The parties had two children of the marriage - The mother alleged that the father had sexually abused the children - The father denied the allegations - An interim order granted the father specified supervised access - A focussed custody and access report was also ordered - The psychologist who prepared the report concluded that sexual abuse was unlikely - The father obtained an order increasing his parenting time and removing the supervision requirement - The mother appealed, asserting that the Chambers judge misapprehended the evidence - The Saskatchewan Court of Appeal stated that the issue on an interim application regarding whether supervised access was required where there were allegations of abuse, and it impossible to determine whether abuse had occurred, was whether there was a real risk of abuse to the child in the future on the totality of the evidence if access was unsupervised - The level of such a risk had to be assessed and that factor weighed against all other factors bearing upon the child's best interests - Although the court had to exercise a degree of caution where allegations of abuse were involved, the cautious approach did not mandate an order which resolved the risk by ensuring there was absolutely no risk - If the evidence was such that a proper assessment of the risk going forward could be made, the judge hearing the matter should make the assessment - Here, the Chambers judge properly assessed the risk to the children - The court saw no error in his approach - See paragraphs 44 to 50.

Family Law - Topic 2028

Custody and access - Access - Access awards - Interim access - [See Family Law - Topic 1941 , Family Law - Topic 1949 , Family Law - Topic 1956 and second Family Law - Topic 2023 ].

Counsel:

Brian R Pfefferle, for the appellant;

Andrew Stuart Davis, for the respondent.

This appeal was heard on February 16, 2016, by Ottenbreit, Herauf and Whitmore, JJ.A., of the Saskatchewan Court of Appeal. Ottenbreit, J.A., delivered the following judgment for the court on August 10, 2016.