D.A.W.C. v. M.W.H., (2013) 428 Sask.R. 304 (FD)

• Judge: Sandomirsky, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 28, 2013
• Jurisdiction: Saskatchewan
• Citations: (2013), 428 Sask.R. 304 (FD);2013 SKQB 313

D.A.W.C. v. M.W.H. (2013), 428 Sask.R. 304 (FD)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. SE.048

D.A.W.C. (petitioner) v. M.W.H. (respondent)

(2013 F.L.D. No. 232)

In The Matter Of a Hearing under the Child and Family Services Act, S.S. 1989-90, c. C-7.2

In The Matter Of K.H., born xxx, 2000, D.C., born xxx, 2007 and S.C., born xxx, 2009

(2013 FSM No. 14; 2013 SKQB 313)

Indexed As: D.A.W.C. v. M.W.H.

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

Sandomirsky, J.

August 28, 2013.

Summary:

The parties had two children: D (age six) and S (age four). The mother had a third child from a previous relationship (K, age 13). The parties separated in 2010. They entered into a separation agreement which provided for joint custody with the mother having primary residence of the children. The father had access every other weekend and at other reasonable times as might be agreed upon. In March 2013, the mother allegedly slapped S. As a result, the Ministry of Social Services removed all three children to the father's home as a designated place of safety. The mother subsequently withdrew her agreement to that placement, and the children were moved to the temporary care of the Ministry. The mother had assault charges pending as a result of the slapping incident. The father applied for the following: (1) to be designated as a person of sufficient interest to K; (2) to be designated as the children's sole custodian on an interim basis, with specified supervised access for the mother; and (3) to have the mother pay child support.

The Saskatchewan Court of Queen's Bench, Family Law Division, declared the father to be a person of sufficient interest to K. The court dismissed the father's interim application for sole custody, finding that it was more appropriate to deal with the issues in the context of protections proceedings. The court ordered that the children be placed in the temporary care of the Ministry for three months, and encouraged the Ministry to consider the father's home as the appropriate residence of the children during that time. The mother was granted specific periods of supervised access and ordered to pay the father child support of $585/month.

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 1941

Custody and access - Variation of custody and access rights - Circumstances when application can be made - The parties separated in 2010 - They entered into a separation agreement which provided for joint custody of their three children, with the mother having primary residence - In March 2013, the mother allegedly slapped the youngest child - As a result, the children were placed in the temporary care of the Ministry of Social Services - The mother had assault charges pending as a result of the slapping incident - The father applied under the Children's Law Act to be designated as the children's sole custodian on an interim basis - The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the application - The application came about as a result of the slapping incident, rather than because of a material change in circumstances by which the terms of the separation agreement were no longer in the children's best interests - As a result, the proper statutory lens through which to view the matters was the Child and Family Services Act - The protection concerns that were caused by the mother's behaviour had to be addressed - All three children were in need of protection - The court ordered that the children be placed in the temporary care of the Ministry for three months - The court encouraged the Ministry to consider the father's home as the appropriate residence of the children for that time - See paragraphs 40 to 54.

Family Law - Topic 1945

Custody and access - Variation of custody and access rights - Bars to application - [See Family Law - Topic 1941 ].

Family Law - Topic 1947

Custody and access - Variation of custody and access rights - Changed circumstances - General - [See Family Law - Topic 1941 ].

Family Law - Topic 2001.3

Custody and access - Access - Access to children under guardianship order - The parties separated in 2010 - They entered into a separation agreement which provided for joint custody of their three children, with the mother having primary residence - In March 2013, the mother allegedly slapped the youngest child - As a result, the children were placed in the temporary care of the Ministry of Social Services - The mother had assault charges pending as a result of the slapping incident - Her release conditions specified that she could only be in contact with the children while under supervision - The father applied under the Children's Law Act to be designated as the children's sole custodian on an interim basis - The mother requested access from 7:30 a.m. to 5:30 p.m. on Mondays and Thursdays, 7:30 a.m. to 8:00 p.m. on Tuesdays and Wednesdays, and every second weekend from 7:30 a.m. Friday until 8:00 p.m. Sunday - The Saskatchewan Court of Queen's Bench, Family Law Division, found that it was more appropriate to deal with the issues in the context of protection proceedings under the Child and Family Services Act - The court ordered that the children be placed in the temporary care of the Ministry for three months - The mother's access request was tantamount to being a primary caregiver - That amount of responsibility would not be healthy for the mother or the children until the mother learned to deal with the issues that caused her stress - The court granted her supervised access every other Saturday and Sunday from 10:00 a.m. to 7:30 p.m., and from the end of the school day until 7:30 p.m. on Tuesdays and Wednesdays - See paragraphs 37, 38, 55 and 56.

Family Law - Topic 2051

Custody and access - Interim custody - Considerations - [See Family Law - Topic 1941 ].

Family Law - Topic 2343

Maintenance of spouses and children - Maintenance of children - When available - The parties separated in 2010 - They entered into a separation agreement which provided for joint custody of their three children, with the mother having primary residence - In March 2013, the children were removed from the mother's home and placed in the temporary care of the Ministry of Social Services - The father applied under the Children's Law Act to be designated as the children's sole custodian on an interim basis and to have the mother pay child support - The Saskatchewan Court of Queen's Bench, Family Law Division, found that it was more appropriate to deal with the issues in the context of protection proceedings under the Child and Family Services Act - The court ordered that the children be placed in the temporary care of the Ministry for three months, but encouraged the Ministry to consider the father's home as the appropriate residence of the children during that time - Even though the Ministry was the statutory guardian, the state should not be put to the expense of providing the necessities of life for the children when their own parents had the financial means and capability to do so - Accordingly, the mother was ordered to pay the father child support of $585/month, provided that the children resided in his home - See paragraph 57.

Guardian and Ward - Topic 813

Public trustee or guardian - Appointment - Child or adult in need of protection - General - [See Family Law - Topic 1941 ].

Guardian and Ward - Topic 818.2

Public trustee or guardian - Appointment - Child in need of protection - Custody application - [See Family Law - Topic 1941 ].

Guardian and Ward - Topic 824.2

Public trustee or guardian - Appointment - Cost of maintaining child or adult in care - [See Family Law - Topic 2343 ].

Guardian and Ward - Topic 825.3

Public trustee or guardian - Appointment - Access - [See Family Law - Topic 2001.3 ].

Cases Noticed:

L.P. et al. v. S.P. et al. (2006), 287 Sask.R. 228; 2006 SKQB 478 (Fam. Div.), refd to. [para. 32].

Counsel:

Angela Eagle, for the petitioner, D.A.W.C.;

Leslie Tallis, for the respondent, M.W.H.;

Lee Hnatiuk, for the Ministry of Social Services.

This matter was heard before Sandomirsky, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Saskatoon, who delivered the following fiat on August 28, 2013.