Harden v. Harden, (1987) 54 Sask.R. 155 (CA)

Judge:Hall, Gerwing and Sherstobitoff, JJ.A.
Court:Court of Appeal for Saskatchewan
Case Date:January 15, 1987
Jurisdiction:Saskatchewan
Citations:(1987), 54 Sask.R. 155 (CA);54 Sask R 155;6 RFL (3d) 147;1987 CanLII 4876 (SK CA)
 
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Harden v. Harden (1987), 54 Sask.R. 155 (CA)

MLB headnote and full text

Colleen Ann Harden (petitioner/respondent) v. Lonnie Wallace Harden (respondent/appellant)

Indexed As: Harden v. Harden

Saskatchewan Court of Appeal

Hall, Gerwing and Sherstobitoff, JJ.A.

January 15, 1987.

Summary:

A husband and wife separated after seven years of marriage. There were two children of the marriage aged six and three. Both parents applied for custody of the children.

The Saskatchewan Court of Queen's Bench in a decision unreported in this series of reports granted the mother custody of the children. The court stated that although both parties were fit and proper parents, the welfare of the children would best be served by granting the mother custody. The father appealed on the grounds that the trial judge erred in relying upon the "tender years doctrine" and that the court should not disturb the status quo whereby the children were in the interim custody of the father.

The Saskatchewan Court of Appeal dismissed the appeal.

Family Law - Topic 1884

Custody - Considerations - Tender years doctrine - A husband and wife separated after seven years of marriage - Two children of the marriage aged six and three were placed in the mother's custody - The father appealed on the ground that the trial judge erred in applying the tender years doctrine - The Saskatchewan Court of Appeal, in discussing the use of the tender years doctrine in custody cases, stated that "it is not part of our law that a court must find that a female, by virtue of her sex alone, is inherently superior as a parent in the case of a child of tender years, to her husband" - See paragraphs 5 to 7.

Family Law - Topic 1897

Custody - Considerations - Status quo - A husband and wife separated after seven years of marriage - The father was granted interim custody of the two children of the marriage aged six and three - The trial judge subsequently awarded the mother custody of the children - The father appealed on the ground that the status quo should not be disturbed - The Saskatchewan Court of Appeal dismissed the appeal - The court applied the rule established by the Alberta Court of Appeal in R. v. R. (1983), 34 R.F.L.(2d) 277, that "it is at the time of an interim disposition that one should not lightly disturb de facto arrangements" - See paragraph 9.

Cases Noticed:

R. v. R. (1983), 34 R.F.L.(2d) 277, appld. [paras. 6 and 9].

Fast v. Fast (1983), 23 Sask.R. 296, appld. [para. 8].

Chesko v. Chesko (1985), 37 Sask.R. 135, appld. [para. 8].

Burgmaier v. Burgmaier (1986), 46 Sask.R. 1, appld. [para. 8].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 15 [paras. 2, 7].

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

Counsel:

J. Lewans, for the respondent;

Dr. M.C. Shumiatcher, Q.C., and B. Hunter, for the appellant.

This appeal was heard before Hall, Gerwing and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal. The decision of the Court of Appeal was delivered orally by Sherstobitoff, J.A., on January 15, 1987:

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