Fletcher v. Davis, 2015 SKQB 52

• Judge: Brown, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 20, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKQB 52;(2015), 469 Sask.R. 192 (FD)

Fletcher v. Davis (2015), 469 Sask.R. 192 (FD)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. MR.028

Aaron William Fletcher (petitioner) v. Ryley Autumn Davis (respondent)

(2014 F.L.D. No. 223; 2015 SKQB 52)

Indexed As: Fletcher v. Davis

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

Brown, J.

February 20, 2015.

Summary:

The parties, who were 19 and 20 years old, had one child who was born in May 2014. The parties never cohabited. Their relationship was relatively brief and ended before the child's birth. The father applied for an order for joint custody, and to have the child's name changed to include the surnames of both parents. The mother sought to have the minutes of a settlement conference introduced into evidence.

The Saskatchewan Court of Queen's Bench, Family Law Division, held that the minutes were inadmissible. The parties were granted joint custody on an interim basis. The court granted an order dispensing with the mother's consent to change the child's name unless she agreed to do so within 15 days.

Evidence - Topic 3626

Documentary evidence - Private documents - Letters or documents written without prejudice - Settlement negotiations - [See Family Law - Topic 3202 and Family Law - Topic 3351 ].

Family Law - Topic 1843

Custody and access - Custody agreements - Effect of - [See Family Law - Topic 3351 ].

Family Law - Topic 1870

Custody and access - Duties and rights of custodian - Child's name - [See Names - Topic 306 ].

Family Law - Topic 2051

Custody and access - Interim custody - Considerations - The parties, who were 19 and 20 years old, had one child (Kayson) who was born in May 2014 - The parties never cohabited - Their relationship lasted for 18 months and ended before Kayson's birth - The father applied for an order for joint custody - The Saskatchewan Court of Queen's Bench, Family Law Division, granted joint custody on an interim basis - As the parties did not cohabit, s. 3(2) of the Children's Law Act provided that the mother was the sole custodian - The norm was for the statutory sole custody status to remain on an interim basis - However, the father had shown a keen interest in parenting Kayson, beginning from the time of the pregnancy and continuing through to the present - He participated in Kayson's life as a father at every opportunity - This situation constituted an exception to the norm - It was in Kayson's best interests for the father to be a joint custodian - See paragraphs 30 to 35.

Family Law - Topic 2072

Custody and access - Joint custody - When available - [See Family Law - Topic 2051 ].

Family Law - Topic 2139

Custody and access - Evidence - General - [See Family Law - Topic 3202 and Family Law - Topic 3351 ].

Family Law - Topic 3202

Separation agreements, domestic contracts and marriage contracts - General - What constitutes - The parties were not married and had never cohabited - They had one child who was born in May 2014 - The father applied for an order for joint custody - The mother sought to have the minutes of a July 2014 settlement conference introduced into evidence - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the minutes were inadmissible - The minutes could not be accepted as establishing a completed settlement - For instance, there was no agreement regarding the child's surname - Even if this issue was severable from custody and access issues, the nature of the items agreed to indicated that the agreement related to short term matters and was at best temporary - The lack of finality was confirmed by the fact that the court appearance which prompted the meeting was to be adjourned rather than resolved by the submission of a consent order, and another meeting was scheduled for September 2014 - No overriding interest of justice position was advanced which would serve as sufficient justification to suspend exclusion of the settlement discussions as privileged - See paragraphs 22 to 27.

Family Law - Topic 3351

Separation agreements, domestic contracts and marriage contracts - Effect of agreement - In custody actions - A mother sought to have the minutes of a settlement conference introduced as evidence in the father's application for joint custody of the parties' child - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that there were two general situations which might permit the introduction of settlement discussions or a settlement agreement: "1) When there is a completed settlement in which all matters have been agreed to. In the case of a custody and access matter it would not be to seek strict enforcement of the agreement but rather the record of the discussions and agreement would presumably be forwarded for persuasive value and to determine if the terms of that agreement is an appropriate status quo to maintain. Any agreement found to exist would still be subject to ascertaining if that agreement is in the best interests of the child as those are always paramount; and 2) Where there is a compelling or overriding interest of justice reason to allow settlement discussions to be introduced apart from enforcement of a concluded settlement." - See paragraph 17.

Infants - Topic 822

Parents of - Birth registration - Rights of parents (incl. unmarried parents) - [See Names - Topic 306 ].

Infants - Topic 830

Parents of - Birth registration - Choice of surname - [See Names - Topic 306 ].

Names - Topic 9

Names of children of unmarried parents - [See Names - Topic 306 ].

Names - Topic 306

Change of name - Child of unmarried parents - The parties, who were 19 and 20 years old, had one child (Kayson) who was born in May 2014 - The parties never cohabited - Their relationship lasted for 18 months and ended before Kayson's birth - The father applied to have Kayson's name changed to include the surnames of both parents - If the mother did not consent to the name change, the father sought an order dispensing with her consent pursuant to s. 9 of the Change of Name Act - The Saskatchewan Court of Queen's Bench, Family Law Division, granted an order dispensing with the mother's consent if she did not agree to change Kayson's name within 15 days - The father's desire for Kayson to have a hyphenated surname could well have engaged s. 27(5)(b) of the Vital Statistics Act and resulted in a hyphenated surname by operation of statute if he had been involved in Kayson's birth and naming process as he desired - The mother's decision to exclude the father meant that he lost that opportunity, and it was not revived by later including his name on the birth certificate - The father had demonstrated his intention and desire to be an involved parent from the time of the pregnancy and continuing through to the present - In order to show Kayson's connection to both parents, it was in his best interests for his name to include both surnames - As Kayson's primary caregiver, the mother could choose the order of hyphenation - See paragraphs 36 to 73.

Names - Topic 326

Change of name - Application - Child - Dispensing with consent of parent - [See Names - Topic 306 ].

Names - Topic 328

Change of name - Application - Child - Considerations - [See Names - Topic 306 ].

Practice - Topic 9852

Settlements - What constitutes a settlement - [See Family Law - Topic 3202 ].

Cases Noticed:

Martin v. Martin (1994), 121 Sask.R. 1 (Q.B.), refd to. [para. 12].

Nelson v. Nelson (1998), 165 Sask.R. 224 (Q.B. Fam. Div.), affd. (1999), 180 Sask.R. 320; 205 W.A.C. 320 (C.A.), refd to. [para. 12].

Iverson v. Iverson (2009), 334 Sask.R. 299; 2009 SKQB 246, refd to. [para. 12].

Liang v. Liang (1978), 5 R.F.L.(2d) 103 (Ont. Sup. Ct.), refd to. [para. 12].

Plant v. Kempton, [2011] B.C.A.C. Uned. 65; 98 R.F.L.(6th) 14; 2011 BCCA 171, refd to. [para. 12].

R.E.G. v. T.W.J.G. (2011), 376 Sask.R. 1; 2011 SKQB 269 (Fam. Div.), refd to. [para. 12].

MacDonald v. Bryzgalska (2007), 296 Sask.R. 79; 2007 SKQB 127 (Fam. Div.), refd to. [para. 13].

K.L.M. v. G.R.G. (2008), 317 Sask.R. 177; 2008 SKQB 270, refd to. [para. 13].

Thompson v. Gordon (2009), 339 Sask.R. 220; 2009 SKQB 323 (Fam. Div.), refd to. [para. 13].

Cleasby v. Cleasby (2013), 415 Sask.R. 65; 2013 SKQB 67 (Fam. Div.), refd to. [para. 14].

Tucker-Lester v. Lester (2012), 410 Sask.R. 153; 2012 SKQB 443 (Fam. Div.), refd to. [para. 14].

Rodriguez v. Guignard, [2012] O.T.C. Uned. 2444; 2012 ONSC 2444, refd to. [para. 15].

Inter-Leasing Inc. v. Ontario (Minister of Finance) et al. (2009), 256 O.A.C. 83; 2009 CanLII 63595 (Div. Ct.), refd to. [para. 15].

Liebrecht v. Skikewich, [2014] Sask.R. Uned. 25; 2014 SKQB 88 (Fam. Div.), refd to. [para. 31].

Lee v. Cathcart, [2009] Sask.R. Uned. 80; 2009 SKQB 156, refd to. [para. 37].

McDonald v. Deagnon, [2009] Sask.R. Uned. 82; 2009 SKQB 154 (Fam. Div.), refd to. [para. 37].

W.J.Q.M. et al. v. A.M.A. et al. (2011), 382 Sask.R. 119; 2011 SKQB 317 (Fam. Div.), refd to. [para. 38].

I.C. v. N.H. (2001), 206 Nfld. & P.E.I.R. 253; 618 A.P.R. 253 (Nfld. U.F.C.), refd to. [para. 39].

Gallant v. Lewis, [2008] O.T.C. Uned. F13; 295 D.L.R.(4th) 686 (Sup. Ct.), refd to. [para. 39].

T.L.V. v. M.A.B. (2003), 242 Sask.R. 264; 2003 SKQB 503 (Fam. Div.), refd to. [para. 47].

Tarry v. Rincker (2013), 423 Sask.R. 137; 588 W.A.C. 137; 35 R.F.L.(7th) 263; 2013 SKCA 98, refd to. [para. 48].

Bachinsky v. Bachinsky (1985), 34 Man.R.(2d) 222; 47 R.F.L.(2d) 222 (Q.B.), refd to. [para. 48].

Ermel v. Munroe (2014), 447 Sask.R. 271; 2014 SKQB 168, refd to. [para. 51].

Smalley v. Hoppe (1999), 257 A.R. 204; 1999 ABQB 931, refd to. [para. 52].

Zho v. Chen, [2000] O.T.C. 879; 11 R.F.L.(5th) 231 (Sup. Ct.), refd to. [para. 52].

Felix v. Fratpietro (2001), 13 R.F.L.(5th) 54 (Ont. Sup. Ct.), refd to. [para 52].

R.J.H. v. C.C.H. (2007), 219 Man.R.(2d) 297; 44 R.F.L.(6th) 173; 2007 MBQB 261 (Fam. Div.), refd to. [para. 52].

T.T. v. J.H. (2010), 295 Nfld. & P.E.I.R. 1; 911 A.P.R. 1; 83 R.F.L.(6th) 412; 2010 NLUFC 4, refd to. [para. 52].

A.N.H. v. M.K.C. (2010), 359 N.B.R.(2d) 1; 929 A.P.R. 1; 2010 NBQB 120 (Fam. Div.), refd to. [para. 52].

L.M.D. v. J.R.S. (2010), 365 N.B.R.(2d) 104; 939 A.P.R. 104; 2010 NBQB 188 (Fam. Div.), refd to. [para. 52].

Bromley v. Furlong (2011), 314 Nfld. & P.E.I.R. 352; 977 A.P.R. 352; 21 R.F.L.(7th) 346; 2012 NLCA 56, refd to. [para. 52].

D.W.T. v. British Columbia (Attorney General) et al., [2003] 1 S.C.R. 835; 304 N.R. 201; 183 B.C.A.C. 1; 301 W.A.C. 1; 2003 SCC 34, refd to. [para. 53].

Statutes Noticed:

Vital Statistics Act, S.S. 2009, c. V-7.21, sect. 27(1)(5) [para. 59].

Counsel:

David A. Couture, for the petitioner;

Lindsay A. Wacholtz, for the respondent.

This application was heard before Brown, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Regina, who delivered the following judgment on February 20, 2015.