M.D.J. v. C.W.S., (2015) 465 Sask.R. 246 (CA)

• Judge: Jackson, J.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: August 31, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 465 Sask.R. 246 (CA);2015 SKCA 94

M.D.J. v. C.W.S. (2015), 465 Sask.R. 246 (CA);

    649 W.A.C. 246

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. SE.027

C.W.S. (respondent/appellant/respondent) v M.D.J. (applicant/respondent/petitioner)

C.W.S. (applicant/appellant/respondent) v. M.D.J. (respondent/respondent/petitioner)

(CACV2723; 2015 SKCA 94)

Indexed As: M.D.J. v. C.W.S.

Saskatchewan Court of Appeal

Jackson, J.A.

August 31, 2015.

Summary:

The parties separated after a three year relationship. They had one child. The mother sought sole custody of the child and supervised parenting time for the father. The father sought joint custody, child support, and a division of property.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported at (2015), 462 Sask.R. 44, granted the mother sole custody with access for the father on alternating weekends. The father's property claim was dismissed. The father appealed, which resulted in a stay of proceedings of the custody and access order. The mother applied for an order lifting the stay. The father applied for an order that the costs of the mother's reply affidavit be paid by her.

The Saskatchewan Court of Appeal, per Jackson, J.A., allowed both applications.

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 1918

Custody and access - Appeals - Stay pending appeal (incl. when stay may be lifted) - The parties separated - Their child (Z.) was born in 2010 - The mother sought sole custody and supervised parenting time for the father - The father sought joint custody - The trial judge granted the mother sole custody and reduced the father's parenting time from five overnights to two overnights in any two week period - The mother had been the primary parent since birth - She demonstrated a more organized and committed approach to parenting - She arranged for medical and dental appointments, provided opportunities for Z.'s social development, and nurtured a strong and loving bond with Z. on a daily basis - By contrast, the father was in pain, frequently napped and generally did not do much - He had adversely affected Z.'s emotional health - Z. exhibited anxiety, and frequently repeated negative and disturbing things that the father had said about the mother - The father appealed, which resulted in a stay of proceedings - The Saskatchewan Court of Appeal, per Jackson, J.A., allowed the mother's application for an order lifting the stay - The trial judge's decision was grounded in his finding that Z. was not adjusting well to access visits and concerns respecting the father's approach to parenting - Although these findings were vigorously contested by the father, allowing the trial judge's order to take effect immediately was the preferable course of action - See paragraphs 1 to 13.

Family Law - Topic 2189

Custody and access - Practice - Costs - [See Practice - Topic 6983 ].

Practice - Topic 6983

Costs - Entitlement - Affidavits - A father appealed a custody and access order, which resulted in a stay of proceedings of the order - The mother successfully applied to have the stay lifted - The father applied for an order requiring the mother to pay for the costs of her reply affidavit on the basis that it contained hearsay or argumentative matter - The Saskatchewan Court of Appeal, per Jackson, J.A., allowed the father's application, stating "Having reviewed this affidavit, it would appear, in large part, to contain matters that should have been either omitted or left to counsel's brief. I can appreciate that the mother is exceptionally concerned, but I note that she was allowed the indulgence of a second Memorandum of Law by way of reply. ... Costs in relation to that affidavit are fixed at $200." - See paragraphs 15 to 17.

Practice - Topic 8953

Appeals - Stay of proceedings pending appeal - Circumstances when stay may be lifted - [See Family Law - Topic 1918 ].

Cases Noticed:

Hayden v. Dahl (2008), 307 Sask.R. 274; 417 W.A.C. 274; 2008 SKCA 30, refd to. [para. 10].

Counsel:

Sherry L. Fitzsimmons, for the applicant (stay)/respondent (costs);

Davin Burlingham, for the respondent (stay)/applicant (costs).

These applications were heard in chambers by Jackson, J.A., of the Saskatchewan Court of Appeal, who delivered the following judgment on August 31, 2015.