Campbell v. Hine, (2014) 446 Sask.R. 256 (CA)

• Judge: Jackson, Klebuc and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 24, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 446 Sask.R. 256 (CA);2014 SKCA 132

Campbell v. Hine (2014), 446 Sask.R. 256 (CA);

    621 W.A.C. 256

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. DE.076

Brittinea Campbell (respondent/appellant) v. Jade Skylar Hine and Kathleen Gail Hine (petitioner/respondent)

(CACV2567; 2014 SKCA 132)

Indexed As: Campbell v. Hine

Saskatchewan Court of Appeal

Jackson, Klebuc and Ryan-Froslie, JJ.A.

November 24, 2014.

Summary:

The parties shared joint custody of one child under a 2012 agreement that was incorporated into a consent judgment. The agreement provided, inter alia, that if the child was absent from school without "authorization", her primary residence would change automatically from the mother's home to the father's home. In April 2014, the father, asserting that there had been unauthorized school absences, applied to enforce the consent judgment. A chambers judge, relying in part on a 2011 custody and access report, changed the child's primary residence from the mother's home to the father's home. The mother appealed.

The Saskatchewan Court of Appeal allowed the mother's appeal. The chambers judge's order was set aside except for a provision requiring an updated custody and access report.

Family Law - Topic 1843

Custody and access - Custody agreements - Effect of - The parties shared joint custody of one child under a 2012 agreement that was incorporated into a consent judgment - The agreement provided, inter alia, that if the child was absent from school without "authorization", her primary residence would change automatically from the mother's home to the father's home - In April 2014, the father, asserting that there had been unauthorized school absences, applied to enforce the consent judgment - A chambers judge, relying in part on a 2011 custody and access report, changed the child's primary residence from the mother's home to the father's home - The Saskatchewan Court of Appeal allowed the mother's appeal - The chambers judge relied too heavily on the enforcement provisions of the consent judgment to trigger a fundamental alteration of the child's parenting regime - An "automatic" change of custody was not appropriate and should not have been endorsed by the court because it did not take the child's best interests into account - Nor did it contemplate a reasonable excuse for the breach of the agreement - Further, the chambers judge ordered these fundamental changes without appropriate evidence of the child's best interests - Sufficient evidence relating to the considerations set out in s. 8 of the Children's Law Act was not before the judge - Finally, the judge relied on a dated custody and access report that was not properly admitted as evidence.

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare or best interests of child paramount - [See Family Law - Topic 1843 ].

Family Law - Topic 1912

Custody and access - Appeals - Grounds - [See Family Law - Topic 1843 ].

Family Law - Topic 2147

Custody and access - Evidence - Report of family investigator, counsellor, etc. (incl. home study) - [See Family Law - Topic 1843 ].

Family Law - Topic 3351

Separation agreements, domestic contracts and marriage contracts - Effect of agreement - In custody actions - [See Family Law - Topic 1843 ].

Practice - Topic 5503

Judgments and orders - Consent judgments - Effect of - [See Family Law - Topic 1843 ].

Cases Noticed:

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 16].

Van de Perre v. Edwards - see K.V.P. v. T.E.

Counsel:

Gregory M. Kuse, for the appellant;

Mary Lou Senko, for the respondent.

This appeal was heard and determined orally on November 24, 2014, by Jackson, Klebuc and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. On December 16, 2014, Ryan-Froslie, J.A., delivered the following written reasons for the court.