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CUSTODY AND ACCESS - Contest between parents and non-parents - Grandparents

Monday, September 14, 2020 @ 9:36 AM  


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Appeal by the paternal grandmother from a trial decision awarding sole custody to the mother. Pursuant to a 2016 consent order, the children were placed in the sole custody of the father. Despite the formal custody arrangements, the children resided primarily with the appellant, who was closely involved in their care since birth. The parents were very young and engaged in a lifestyle that involved partying, drugs and a lower commitment to parenting. The mother moved to another town, found employment and made significant changes to her lifestyle. She had regular access to the children. There had never been any question about the appellant’s ability to provide the children with a good and loving home. In 2018, the mother became aware that the father had been incarcerated for serious criminal offences. She brought an application seeking to vary the consent order and sought sole custody and primary residency of the children. The appellant wanted the children placed in her care. The trial judge considered the status quo, the fact the children were in the appellant’s care for years and the disruption to the children in moving cities. He found that due to the youth of these children and their involvement with the mother, they would be able to comfortably re-establish themselves in the mother’s community. He found the biological mother’s impact tipped the scales towards granting her custody and primary residence of the children and that the status quo of these children, at their young ages, was not something which tipped the scale in favour of the appellant. The appellant argued the trial judge erred in his analysis of the factors related to the children’s best interests.

HELD: Appeal dismissed. The trial judge comprehensively considered the evidence and then determined that, while the relationships were very different, particularly from a quantity standpoint, there was a rough equivalency in the quality of the relationships. He did not misapprehend the evidence or make a material error in doing so. The trial judge’s conclusion that the biological mother’s impact tipped the scales towards granting her custody and primary residence of the children followed an extensive and thoughtful analysis of all the factors and a determination that both situations were equally in the best interests of the children. It did not indicate the trial judge only required the mother to simply meet the bare minimum criteria to rank equally with the appellant on each factor related to the children’s best interests. He conducted a best-interests test, not a fitness test. The trial judge considered the mother’s shortcomings as a parent and her conduct. He properly considered the primary parent and status quo factors and gave them the emphasis they required. The trial judge did not fail to consider that the appellant was the primary parent or otherwise failed to address the status quo. The trial judge correctly determined the mother was not entitled to a presumption or preferential position by being the children’s biological mother but placed significant weight on the importance of her status as the biological mother, as he was entitled to do in these circumstances.

S.J.B. v. T.B.S., [2020] S.J. No. 295, Saskatchewan Court of Appeal, R.K. Ottenbreit, B. Barrington-Foote and J.A. Tholl JJ.A., August 5, 2020. Digest No. TLD-September142020002