Faber v. Retzlaff, (1986) 56 Sask.R. 298 (CA)

• Judge: Vancise, Wakeling and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: December 11, 1986
• Jurisdiction: Saskatchewan
• Citations: (1986), 56 Sask.R. 298 (CA)

Faber v. Retzlaff (1986), 56 Sask.R. 298 (CA)

MLB headnote and full text

Donald Retzlaff (appellant/respondent) v. Albert John Faber (respondent/applicant)

(No. 9239)

Indexed As: Faber v. Retzlaff

Saskatchewan Court of Appeal

Vancise, Wakeling and Sherstobitoff, JJ.A.

December 11, 1986.

Summary:

A husband and wife were divorced; the wife obtained custody of the three children of the marriage. The wife remarried. Three and one-half years later, the wife was killed in an automobile accident. The natural father of the children applied for custody.

Pending the hearing of the application, the Saskatchewan Court of Queen's Bench, in a decision unreported in this series of reports, ordered that the children remain in the custody of their stepfather, with generous access given to the natural father.

Following the custody hearing, the natural father was granted custody of all three children. Their stepfather was denied access. The natural father took immediate custody of all three children.

The stepfather filed a notice of appeal. The stepfather also requested a return of the children on the ground that a stay of proceedings came into effect because of the filing of the appeal and that the status quo should be maintained pending disposition of the appeal. The natural father applied under Court of Appeal Rule 15(1) to lift the stay.

The Saskatchewan Court of Appeal, in a decision reported in 50 Sask.R. 243, dismissed the natural father's application to lift the stay. In the result, the court ordered that the children remain with their stepfather pending disposition of the appeal.

On the merits of the stepfather's appeal, the Saskatchewan Court of Appeal, in the following decision, allowed the appeal in part. The Court of Appeal affirmed that custody of the children should be awarded to the natural father, but granted the stepfather access.

Family Law - Topic 1827

Custody and access to children - Right to custody - Rights of natural father - A divorced mother with custody of three children remarried - Three and one-half years later the mother was killed - The Saskatchewan Court of Appeal affirmed that the children's natural father was entitled to custody over their stepfather - See paragraphs 1 to 4.

Family Law - Topic 2001.2

Custody and access to children - Access - To stepchildren - A divorced mother with custody of three children remarried - Three and one-half years later the mother was killed - The Saskatchewan Court of Appeal affirmed that the children's natural father was entitled to custody - The court, however, awarded the stepfather access to the children on the last weekend of each month except for July and August, plus for two weeks during July and August - See paragraph 5.

Cases Noticed:

McKee v. McKee, [1951] A.C. 352; 2 W.W.R.(N.S.) 181; [1951] 1 All E.R. 942; [1951] 2 D.L.R. 657, refd to. [para. 2].

Talsky v. Talsky, [1976] 2 S.C.R. 292; 62 D.L.R.(3d) 267; 7 N.R. 246, refd to. [para. 2].

Fast v. Fast (1983), 23 Sask.R. 96; 33 R.F.L.(2d) 337, refd to. [para. 3].

Thatcher v. Thatcher (1980), 2 Sask.R. 290, refd to. [para. 3].

Burgmaier v. Burgmaier (1986), 46 Sask.R. 1; 50 R.F.L.(2d) 1, refd to. [para. 3].

Statutes Noticed:

Infants Act, R.S.S. 1978, c. I-9, sect. 3 [para. 4].

Counsel:

G. Nickless, for the appellant;

P. Johnston and A. Sholter, for the respondent.

This appeal was heard before Vancise, Wakeling and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal. The decision of the Court of Appeal was delivered orally for the court by Vancise, J.A., on December 11, 1986.