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CUSTODY AND ACCESS - Practice and procedure

Monday, December 02, 2019 @ 9:22 AM  

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Appeal by the husband from summary judgment granting the wife primary residence, the husband prescribed conditional access, $736 in monthly child support and $250 per month in s. 7 expenses. The parties separated in 2013. Their three children resided with the wife since separation. For much of the time post separation, the husband worked at various jobs located some distance from the town where the parties resided when together and where the wife continued to reside with the children. When the wife applied for summary judgment in 2018, the husband had not parented the children since December 2016 and had not had any contact with them since May 2017. He argued that the wife alienated the children from him. The wife argued that the husband’s own actions brought on his estrangement from the children. The husband argued that a trial was required to deal with issues of parental alienation and to determine issues of child support.

HELD: Appeal allowed. While the chambers judge correctly determined that the summary judgment procedure was available to the wife to seek the relief claimed in her notice of application, he erred in principle in his determination that no genuine issue for trial existed with respect to issues of parenting in the circumstances of this case. The affidavit evidence on the parenting issue, in both detail and in general terms, was highly contradictory. The chambers judge neither resolved this conflict in the evidence nor found that the conflict in the evidence was irrelevant to the determination of the parenting issue. Because the chambers judge neither resolved the conflict in the evidence nor determined that the existence of a conflict in the evidence was irrelevant to his determination, he erred in principle in his approach to the wife’s request for summary judgment in respect to issues of parenting. Because the parenting arrangements remained unresolved, it was inappropriate to make a final order of s. 3 support. Since the wife’s notice of application contained no request for arrears of s. 7 expenses, there was no foundation for ordering the husband to pay more than the amount requested by the wife to make up for past expenses not paid by the husband.

McCorriston v. Hunter, [2019] S.J. No. 412, Saskatchewan Court of Appeal, R.G. Richards C.J.S., P.A. Whitmore and R. Leurer JJ.A., October 17, 2019. Digest No. TLD-December22019003