C.M. v. B.P., (1995) 129 Sask.R. 278 (UFC)

• Judge: Baynton, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 22, 1995
• Jurisdiction: Saskatchewan
• Citations: (1995), 129 Sask.R. 278 (UFC);2009 FCA 422;1995 CanLII 10817 (SK QB);1995 CanLII 10817 (FCA);[1995] 4 WWR 505;129 Sask R 278

C.M. v. B.P. (1995), 129 Sask.R. 278 (UFC)

MLB headnote and full text

C.M. (applicant) v. B.P. (respondent)

(1993 U.F.C. No. 864)

Indexed As: C.M. v. B.P.

Saskatchewan Unified Family Court

Judicial Centre of Saskatoon

Baynton, J.

February 22, 1995.

Summary:

A mother sought an order under the Chil­dren's Law Act granting her custody of her three year old son with no access to his father. The child was conceived during a temporary dating relationship between his parents. The father did not oppose the cus­tody application but sought access to his son.

The Saskatchewan Court of Queen's Bench granted the mother sole custody and awarded restricted and supervised access to the father.

Family Law - Topic 1990

Custody and access - Access - General principles - A mother sought an order under the Children's Law Act granting her custody of her son with no access to the father - The father sought access - Coun­sel for the mother referred to the slight difference in wording in the provisions of the Children's Law Act and the Divorce Act concerning access and attempted to distinguish the numerous cases determined under the Divorce Act on that basis - The Saskatchewan Court of Queen's Bench rejected the argument - The statutes and cases were clear that the best interests of the child was the only consideration - This was so whether the application for access was brought under the Divorce Act or the Children's Law Act - See paragraphs 23 to 26.

Family Law - Topic 1991

Custody and access - Access - Consider­ations in awarding access - Welfare of child - [See Family Law - Topic 1990 ].

Family Law - Topic 2001.1

Custody and access - Access - Access to illegitimate children - A child was con­ceived during a temporary dating relation­ship - The father did not know he had a son until seven months after his birth - The father had contact with the son during the time he was between seven to 16 months old when the parents re-estab­lished a relationship - The relationship failed - The mother sought cus­tody under the Children's Law Act and strongly opposed the father's request for access - The Saskatchewan Court of Queen's Bench granted custody to the mother - The father was given access which was to be super­vised and restricted to two times per year for 1995 and three times per year from 1996 to 1999 - Each access period was not to exceed four hours in 1995, six hours in 1996 and 10 hours from 1997 through 1999.

Family Law - Topic 2010

Custody and access - Access - Access awards - Time and place limita­tions - [See Family Law - Topic 2001.1 ].

Family Law - Topic 2023

Custody and access - Access - Access awards - Supervised access - [See Family Law - Topic 2001.1 ].

Family Law - Topic 2149.1

Custody and access - Evidence - Pre­sumption that parental contact is in child's best interests - A child was conceived during a tempor­ary dating relationship - The mother sought custody with no access to the father - The mother argued that unless the father proved that his access would benefit the child, access should be denied - The Saskatchewan Court of Queen's Bench held that a parent seeking custody or access was not required to prove the value to the child of parental contact - This was presumed by the law until the contrary was established - Ac­cordingly, if "onus of proof" was a concept that applied to the determination of the best interests of the child, then it was the party who sub­mitted that access should be denied or restricted that had the onus of proof, at least to the extent of rebutting the pre­sumption of the benefit of parental contact - See paragraph 44.

Infants - Topic 2701

Illegitimate children - Access to - General - [See Family Law - Topic 1990 ].

Infants - Topic 2703

Illegitimate children - Access to - By natural father - [See Family Law - Topic 2001.1 ].

Cases Noticed:

King v. Mr. and Mrs. B., [1985] 1 S.C.R. 87; 57 N.R. 17; 58 A.R. 275; 44 R.F.L.(2d) 113; [1985] 3 W.W.R. 1; 16 D.L.R.(4th) 576, consd. [para. 24].

King v. Low - see King v. Mr. and Mrs. B.

K.K v. G.L. - see King v. Mr. and Mrs. B.

Burgmaier v. Burgmaier (1986), 46 Sask.R. 1 (C.A.), refd to. [para. 24].

Young v. Young, [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; 49 R.F.L.(3d) 117, consd. [para. 36].

D.P. v. C.S., [1993] 4 S.C.R. 141; 159 N.R. 241; 58 Q.A.C. 1; 49 R.F.L.(3d) 317, refd to. [para. 36].

Michel v. Hanley (1988), 64 Sask.R. 249; 12 R.F.L.(3d) 372 (Q.B.), refd to. [para. 45].

Sekhri v. Mahli, [1994] 1 W.W.R. 170; 112 Sask.R. 253 (Q.B.), consd. [para. 47].

E.A.S. v. K.M.B. (1989), 24 R.F.L.(3d) 220 (Ont. Dist. Ct.), consd. [para. 49].

Lachance v. Cloutier (1982), 36 A.R. 124; 18 Alta. L.R.(2d) 328 (Prov. Ct.), consd. [para. 51].

Mitchell v. Mitchell (1988), 16 R.F.L.(3d) 462 (U.F.C.), refd to. [para. 66].

Statutes Noticed:

Children's Law Act, S.S. 1990-91, c. C-8.1, sect. 2(1)(j), sect. 3(1), sect. 3(2), sect. 6(1) [para. 20]; sect. 6(5)(a) [para. 33]; sect. 6(6)(b) [para. 22]; sect. 8 [para. 20]; sect. 9 [para. 22].

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 16 [para. 23].

Authors and Works Noticed:

MacLeod, James G., Annotation to Young v. Young and Droit de la famille - 1150 (sub nom. D.P. v. C.S. (1993), 49 R.F.L.(3d) 129, p. 132 [para. 26]; gen­erally [para. 43].

Counsel:

E.F.A. Merchant, J.J. Vogel and K. Kilback, student-at-law, for the peti­tioner C.M.;

C.A. Cuelenaere, for the respondent B.P.

This case was heard before Baynton, J., of the Saskatchewan Unified Family Court, Judicial Centre of Saskatoon, who delivered the following judgment on February 22, 1995.