G.E.S. v. D.L.C.,

• Jurisdiction: Saskatchewan
• Judge: Vancise, Sherstobitoff and Richards, JJ.A.
• Neutral Citation: 2006 SKCA 79
• Court: Court of Appeal (Saskatchewan)
• Date: 25 April 2006
• Citation: (2006), 285 Sask.R. 19 (CA),2006 SKCA 79,270 DLR (4th) 597,[2006] 11 WWR 101,29 RFL (6th) 74,285 Sask R 19,270 D.L.R. (4th) 597,285 SaskR 19,(2006), 285 SaskR 19 (CA),285 Sask.R. 19

G.E.S. v. D.L.C. (2006), 285 Sask.R. 19 (CA);

    378 W.A.C. 19

MLB headnote and full text

Temp. Cite: [2006] Sask.R. TBEd. JL.020

D.L.C. (appellant) v. G.E.S. (respondent)

(No. 1164; 2006 SKCA 79)

Indexed As: G.E.S. v. D.L.C.

Saskatchewan Court of Appeal

Vancise, Sherstobitoff and Richards, JJ.A.

June 29, 2006.

Summary:

The petitioner sought a declaration that he was a person of sufficient interest to be granted relief in these proceedings and an order for access to twin children, J. and A. He also sought an order requiring the respondent to notify him of any change in residence of the children and that she pay the costs of the interim application and trial.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported at 264 Sask.R. 173, held that the petitioner was a person of sufficient interest and ordered that he have access to the children. The court ordered that the petitioner contribute $3,000 to the respondent's costs. The respondent appealed.

The Saskatchewan Court of Appeal allowed the appeal.

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 1991

Custody and access - Access - Considerations in awarding access - Welfare of child - [See first Family Law - Topic 2000.1 ].

Family Law - Topic 2000.1

Custody and access - Access - Right to access - Rights of strangers - The parties had a close friendship - The petitioner encouraged the respondent in her plans to become pregnant and supported her emotionally and financially in her artificial insemination and in vitro fertilization - He did not donate his sperm - The petitioner supported the respondent throughout her pregnancy, including attending doctors' appointments and prenatal classes - He was present at the birth of the twins in 2000 - He was named their godfather - He provided daycare when the respondent returned to work - He assumed a "father figure" role - In 2002, the friendship deteriorated - She denied the petitioner access to the twins - The Saskatchewan Court of Appeal agreed that the petitioner was a person of sufficient interest to apply for access (Children's Law Act, s. 6(1)) - However, his affection for the twins was insufficient to tip the balance in favour of access - He failed to show that access was in the twins' best interest - There was some animosity between the parties - There was concern about the petitioner's ongoing preparedness to make the sacrifices necessary to sustain an enduring relationship - Finally, the respondent was an excellent parent and her opinion ought to be given substantial weight - See paragraphs 52 to 73.

Family Law - Topic 2000.1

Custody and access - Access - Right to access - Rights of strangers - The Saskatchewan Court of Appeal affirmed that there was nothing in s. 6(1) of the Children's Law Act or any related provision that restricted the category of persons who could be found by a court in appropriate circumstances, to participate in a determination of the issues of custody and access - The absence of any limiting language mandated an interpretation that there were no restrictions upon categories of individuals who could be "persons having, in the opinion of the court, a sufficient interest" - See paragraph 45.

Family Law - Topic 2000.1

Custody and access - Access - Right to access - Rights of strangers - The Saskatchewan Court of Appeal stated that "in determining whether a non-family applicant is a person with a sufficient interest, the court should consider a variety of factors including, but not necessarily limited to: (a) the extent or degree of the applicant's involvement in the child's life, (b) the duration of that involvement, (c) the level of intimacy and the quality of the relationship between the applicant and the child, (d) how the relationship between the applicant and the child was represented to the world, and (e) whether the applicant provided financially for the child. Further, ... it is necessary to consider whether the applicant can show a settled commitment to the child and an intention to be a continuing and meaningful presence in the life of the child. Overall, ... s. 6 [of the Children's Law Act] generally should be applied to screen out applicants who do not have both a significant relationship with the child and a demonstrated and settled ongoing commitment to the child" - See paragraph 47.

Family Law - Topic 2182

Custody and access - Pratice - Persons entitled to apply - [See first Family Law - Topic 2000.1 ].

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, refd to. [para. 42].

Fiacco v. Fiacco (1988), 67 Sask.R. 271 (C.A.), refd to. [para. 43].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 43].

G.L. v. L.D.P., [1999] Sask.R. Uned. 280; 1999 SKQB 165 (Fam. Div.), refd to. [para. 57].

Adams v. Martin, 1992 CarswellOnt 1679 (Prov. Div.), refd to. [para. 57].

Lapp v. Dupuis (1985), 31 Man.R.(2d) 261; 17 D.L.R.(4th) 347 (C.A.), refd to. [para. 57].

J.C. v. A.M. (1986), 41 Man.R.(2d) 108 (C.A.), refd to. [para. 57].

Elliott v. Mumford, [2004] N.S.R.(2d) Uned. 11; 1 R.F.L.(6th) 193 (C.A.), refd to. [para. 57].

R.W.R. v. C.D. (1996), 149 Sask.R. 241 (Q.B.), refd to. [para. 58].

B.C. v. M.G. (1998), 209 N.B.R.(2d) 357; 535 A.P.R. 357 (Q.B. Fam. Div.), refd to. [para. 58].

Symington v. Simor, [2000] B.C.J. No. 2688 (S.C.), refd to. [para. 58].

Stewart v. MacDonnell (1992), 113 N.S.R.(2d) 41; 309 A.P.R. 41; 39 R.F.L.(3d) 163 (Fam. Ct.), refd to. [para. 58].

Chapman v. Chapman (2001), 141 O.A.C. 389; 201 D.L.R.(4th) 443 (C.A.), refd to. [para. 61].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 61].

R.B. v. Children's Aid Society of Metropolitan Toronto - see Sheena B., Re.

Statutes Noticed:

Children's Law Act, S.S. 1997, c. C-8.2, sect. 6 [para. 36].

Authors and Works Noticed:

McLeod, James G., Child Custody Law and Practice (2006 Looseleaf), pp. 26-3 [para. 61]; 26-27 [para. 56].

Counsel:

R. Bradley Hunter, for the appellant;

James J. Vogel and Joanne C. Moser, for the respondent.

This appeal was heard on April 25, 2006, by Vancise, Sherstobitoff and Richards, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Richards, J.A., on June 29, 2006.