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CUSTODY AND ACCESS - Removal of children from jurisdiction

Monday, February 24, 2020 @ 10:58 AM  


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Appeal by the father from summary judgment permitting the mother to move with the children from Regina, Sask., to Manitoba. The father argued the judge erred in proceeding by way of summary judgment and in not adequately considering the best interests of the children. The parties separated in 2015. Pursuant to their parenting agreement, they had joint custody with the children residing primarily with the mother. The agreement included a parenting schedule whereby the father would have the children every second weekend. The mother was now engaged. Her new partner resided and worked in Manitoba. The mother’s affidavit evidence tended to portray the father as an uninvolved and somewhat disconnected father. The father’s affidavits claimed he had a good relationship with the children, that he was involved in their lives and that the mother deliberately made it difficult for him to spend more time with them. The chambers judge found that the mother was the primary caregiver and that the father was not particularly involved or engaged with the children at least for considerable periods of time. He also found the father was not particularly involved or engaged with the children at least for considerable periods of time after separation. The chambers judge concluded it was in the best interests of the children to allow them to remain with the mother and move to Manitoba. Acknowledging that the father had shown recent improvement in his parenting, the chambers judge indicated that this was not enough to overtake the factors weighing in favour of allowing the children to move. The chambers judge indicated that he was confident he had been able to find the necessary facts and apply the relevant legal principles to resolve the mobility dispute in a way that was a fair and proportionate determination of the issue.

HELD:  Appeal dismissed. The chambers judge did not err in concluding that he could determine the mobility issue by way of summary judgment. There was nothing in the chambers judge’s approach or conclusions about the use of the summary judgment procedure that rose to the level of palpable and overriding error and therefore warranted the intervention of this court. The chambers judge was alert to the maximum contact principle. Although he permitted the mother to move, the chambers judge gave the father as much opportunity to have contact with the children as was reasonably possible given the move. The chambers judge expressly framed his analysis around the best interests of the children and considered the factors bearing on those interests. There was nothing in his approach to, or treatment of, the law or the evidence that would warrant intervention by this court.

Merasty v. George, [2020] S.J. No. 16, Saskatchewan Court of Appeal, R.G. Richards C.J.S., N.W. Caldwell and B. Barrington-Foote JJ.A., January 23, 2020. Digest No. TLD-February242020002