Gallant v. Gallant, (2009) 342 Sask.R. 53 (FD)

• Judge: Dufour, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: October 05, 2009
• Jurisdiction: Saskatchewan
• Citations: (2009), 342 Sask.R. 53 (FD);2009 SKQB 391

Gallant v. Gallant (2009), 342 Sask.R. 53 (FD)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. OC.027

Paul Gallant (petitioner) v. Charlene Gallant (respondent)

(2008 Div. No. 121; 2009 SKQB 391)

Indexed As: Gallant v. Gallant

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

Dufour, J.

October 5, 2009.

Summary:

A mother sought to have interim custody of the parties' 12 year old son transferred to her based on the recommendations of an assessor who authored a Children's Voices Report.

The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the application.

Family Law - Topic 1948

Custody and access - Variation of custody and access rights - Change of residence of child - A mother sought to have interim custody of the parties' 12 year old son Alex transferred to her based on the recommendations of an assessor who had authored a Children's Voices Report - The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the application - The law was clear that, for the sake of ensuring stability for the child, interim custody arrangements should not be changed unless the child was at risk or there was some other "compelling reason" - Even if the mother could provide a better home for Alex, and the court did not decide that point, that would not constitute compelling reason to vary Alex's primary residence - If it did, it would be open season on interim custody orders, something the court in Guenther (1999 QB) specifically sought to avoid - The recommendations in the Voices Report did not constitute a "material change" - This was an interim application and the assessor raised no concern related to Alex's health or safety - Further, the assessor's recommendations were no more than untested opinions upon which there had been no cross-examination - His recommendations were not based on what Alex said; he declined to choose between his parents - In any event, the druthers of a 12 year old child would seldom trump the ratio in Guenther - The assessor's recommendations were not sufficient to constitute a "compelling reason" that would warrant varying Alex's primary residence - See paragraphs 25 and 28 to 37.

Family Law - Topic 1948

Custody and access - Variation of custody and access rights - Change of residence of child - A mother sought to have interim custody of the parties' 12 year old son Alex transferred to her based on the recommendations of an assessor who had authored a Children's Voices Report - The Saskatchewan Court of Queen's Bench, Family Law Division, held, inter alia, that an alleged agreement made by the parties at the pretrial settlement conference to abide by the assessor's recommendation was not a reason to vary primary residence - The confidential and without prejudice nature of pretrial conferences was not absolute - Here, the court could not determine if there was an agreement to abide by the assessor's recommendations and, if there was, the terms thereof - Applications to rescind an agreement reached at pretrial were best put before the judge who presided over the pretrial, but here the very existence of the alleged agreement was at issue - The usual practice was to "ink" any agreements at pretrial that were meant to bind the parties - The court held that, even if there was an agreement, the terms of an agreement of this nature at pretrial had to be set out in writing - See paragraphs 38 to 41.

Family Law - Topic 2054

Custody and access - Interim custody - Variation of - [See both Family Law - Topic 1948 ].

Family Law - Topic 2096

Custody and access - The hearing - Adjournments - A mother ("the respondent") sought to have interim custody of the parties' 12 year old son Alex transferred to her - At issue, inter alia, was whether the issue of primary residence had been determined by a prior order or whether that issue was adjourned - The relevant parts of the order read "1. The parties shall have joint custody of their son, ALEXANDER ... with Alexander's primary residence to be with the Petitioner in Regina, Saskatchewan. ... 3. With reference to the parenting arrangement, this matter is adjourned sine die to be brought back by either party on 3 days notice. Notwithstanding, the Respondent, shall have liberal and general access and parenting time with Alexander." - The Saskatchewan Court of Queen's Bench, Family Law Division, found that the issue of primary residence was not adjourned; the chambers judge ordered that Alex's primary residence be with the father on an interim basis - See paragraphs 19 to 27.

Family Law - Topic 2146

Custody and access - Evidence - Report of amicus curiae (incl. family advocate and children's lawyer) - [See both Family Law - Topic 1948 ].

Family Law - Topic 4059

Divorce - Corollary relief - Custody of children - Interim custody - [See both Family Law - Topic 1948 ].

Family Law - Topic 4064

Divorce - Corollary relief - Custody of children - Variation of custody order - [See both Family Law - Topic 1948 ].

Practice - Topic 5249

Trials - General - Pretrial conference - Settlement - [See second Family Law - Topic 1948 ].

Practice - Topic 5249.1

Trials - General - Pretrial conference - Settlement - Evidence - [See second Family Law - Topic 1948 ].

Cases Noticed:

Harden v. Harden (1987), 54 Sask.R. 155 (C.A.), refd to. [para. 25].

Roebuck v. Roebuck, [1983] 5 W.W.R. 385; 45 A.R. 180 (C.A.), refd to. [para. 25].

R. v. R. - see Roebuck v. Roebuck.

McGillis v. McGillis (1996), 113 Man.R.(2d) 73; 131 W.A.C. 73; 24 R.F.L.(4th) 286 (C.A.), refd to. [para. 25].

S.R.M. v. J.K.M. - see McGillis v. McGillis.

Guenther v. Guenther (1999), 181 Sask.R. 83 (Q.B.), refd to. [para. 25].

Koeckeritz v. Secord (2008), 312 Sask.R. 276; 2008 SKQB 92 (Fam. Div.), refd to. [para. 34].

Ruskin v. Chutskoff Estate (2004), 254 Sask.R. 83; 336 W.A.C. 83; 2004 SKCA 107, dist. [para. 38].

Tether v. Tether (2008), 314 Sask.R. 121; 435 W.A.C. 121; 2008 SKCA 126, refd to. [para. 38].

Enns v. Caithcart (2006), 277 Sask.R. 1; 2006 SKQB 102 (Fam. Div.), refd to. [para. 39].

Cozart v. Cozart (2006), 280 Sask.R. 207; 2006 SKQB 210 (Fam. Div.), refd to. [para. 39].

Counsel:

T. Hackl, for the petitioner;

A. Cook, for the respondent.

This application was heard by Dufour, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Saskatoon, who delivered the following fiat on October 5, 2009.