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CUSTODY AND ACCESS - Removal of children from jurisdiction

Monday, January 20, 2020 @ 8:34 AM  

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Appeal by the husband from an interim order allowing the wife to move with the parties’ children from Estevan, Saskatchewan, to the Moosomin area of Saskatchewan. The husband argued the Chambers judge erred in principle by treating the wife’s interim application as an application for a final order and that this interim mobility application should not have been determined in the face of conflicting affidavit evidence as to the best interests of the children. The parties separated in 2016. The children resided primarily with the wife after separation. In 2017 she applied unsuccessfully for leave to relocate. In her 2019 application, the wife indicated that the family home where she and the children lived was subject to an order nisi for judicial sale, and she was financially unable to redeem or reinstate the mortgage. The wife indicated that her two sisters and her father, all of whom who resided in the Moosomin area, were willing to provide her and the children with free accommodation and help her financially. The Chambers judge found the evidence overwhelmingly demonstrated that the wife’s financial situation had significantly deteriorated since 2017 and that the only reasonable solution available was to permit her to move to the Moosomin area where she would have free accommodation and some meaningful prospects for employment. As additional factors, the Chambers judge found the availability of a stable, known and affordable home, extended family support and a vehicle in the Moosomin area would give the wife better prospects of obtaining employment as compared to Estevan.

HELD: Appeal allowed. The Chambers judge erred when she found the evidence supported a finding of a material change in the wife’s financial situation between November 2017 and July 2019. While the Chambers judge did not err in finding that the wife faced a serious financial situation that affected her ability to meet the needs of the children, there was little evidence to support the Chambers judge’s conclusion that this fact constituted a material change in the condition, means, needs and other circumstances of the children or a material change in the wife’s ability to meet their needs in a fundamental way. She did not update her Financial Statement since 2017. She was unemployed in 2017 and continued to be unemployed. Since the family home was ordered to be sold in 2017, the wife knew she and the children would have to vacate the family home and secure new housing in Estevan. The Chambers judge must have misconceived the evidence in a way that affected her conclusion on the issue of whether a change in the wife’s financial situation had occurred that was either not foreseen or could not have been reasonably contemplated in 2017. Even if the threshold was met, the affidavit evidence fell far short of establishing compelling circumstances for allowing the wife to relocate with the children on an interim basis.

Thievin v. Thievin, [2019] S.J. No. 473, Saskatchewan Court of Appeal, R.G. Richards C.J.S., N.W. Caldwell and J.A. Tholl JJ.A., November 26, 2019. Digest No. TLD-January202020003