Parenting (Custody and Access) - Law Society of...

PARENTING

Alma Wiebe, Q.C. Walker Plaxton & Co.

200, 402 – 21st Street East Saskatoon, SK S7K 0C3

May 2003 Not to be used or reproduced without permission - Saskatchewan Legal Education Society Inc.

Saskatchewan: Bar Admission Program Family Law - Parenting

ACKNOWLEDGMENTS

I wish to acknowledge the contributions of the authors of the previous Custody and Access Bar Course materials

being Laurie J. Meunier and Miguel Martinez. Updating the previous materials was greatly assisted by use of notes

prepared by Madam Justice J.A. Ryan-Froslie for the 2002 Custody and Access portion of the Bar Course.

Also, in preparing these materials

I relied heavily on the SKLESI materials compiled for the December, 2002 Seminar “On the Move: Issues of Custody, Access and Mobility in Family Law”.

Finally,

I gratefully acknowledge the contribution of my assistant, Brenda Enden, for her assistance in the research and production of this paper.


Saskatchewan: Bar Admission Program i Family Law - Parenting

TABLE OF CONTENTS

I. INTRODUCTION ...............................................................................................................1 II. PARENTING DISPUTE RESOLUTION MECHANISMS................................................1 III. OVERVIEW OF THE LEGISLATION ..............................................................................2 IV. COMPARISON OF LEGISLATION ..................................................................................4 V. TYPES OF PARENTING ARRANGEMENTS..................................................................6 VI. INITIAL INTERVIEW AND PRACTICE PROCEDURES...............................................9 VII. FACTORS CONSIDERED IN CUSTODY APPLICATIONS.........................................10 VIII CUSTODY AND ACCESS ASSESSMENTS ..................................................................12 IX. VARIATION PROCEEDINGS.........................................................................................13 X. TYPES OF ORDERS ........................................................................................................16 A. EX PARTE ORDERS...................................................................................................16 B. INTERIM ORDERS ....................................................................................................16 C. FINAL ORDER ...........................................................................................................16 D. VARIATION ORDERS...............................................................................................17 XI. ENFORCEMENT..............................................................................................................17 A. THE DIVORCE ACT ...................................................................................................17 B. THE CHILDREN’S LAW ACT.....................................................................................17 C. THE QUEEN’S BENCH RULES .................................................................................19 D. THE FAMILY ORDERS AND AGREEMENTS ENFORCEMENT ASSISTANCE ACT .......................................................................................................19 E. THE INTERNATIONAL CHILD ABDUCTION ACT ..................................................21 XII. CRIMINAL ASPECTS OF CUSTODY AND ACCESS ..................................................23 XIII. JURISDICTION ................................................................................................................24 A. THE CHILDREN’S LAW ACT.....................................................................................24 B. THE DIVORCE ACT ...................................................................................................25 XIV. CHILD PROTECTION PROCEEDINGS.........................................................................26 XV. DECLARATIONS OF PARENTAGE ..............................................................................27


ii Saskatchewan: Bar Admission Program Family Law - Parenting

APPENDIX A: Specified Parenting Plan........................................................................................................... A - 1 PRECEDENTS: Petition (Form 589)................................................................................................................... P – 1 Notice of Motion for Interim Custody and Child Support........................................................ P – 9 Order Granting Supervised Access......................................................................................... P – 11 Application for Variation........................................................................................................ P – 13 Variation Order ....................................................................................................................... P – 17 Example 1: Notice of Motion to Strike Portions of Petitioner’s Affidavit ............................ P – 19 Example 2: Notice of Motion to Strike Portions of Petitioner’s Affidavit ............................ P – 21 Order for Protection under the Child and Family Services Act .............................................. P – 23 Notice of Motion to Lift Stay of Execution............................................................................ P – 25 Draft Order to Lift Stay of Execution......................................................................................P - 27


Saskatchewan: Bar Admission Program 1 Family Law - Parenting

I. INTRODUCTION

In recent years a paradigm shift has occurred in both the language and the substance of parenting

arrangements for children of separated parents. To some extent this shift is evidenced by the

Federal Government’s recent (December, 2002) announcement of revisions to the Divorce Act.

The primary revision proposed is to eliminate the words “custody” and “access” from the

Divorce Act and replace them with “parenting orders”, a term that is viewed as less contentious.

In doing so, the Federal Minister of Justice rejected a proposal of a Joint House of Commons and

Senate Committee which recommended that the Government adopt the concept of “shared

parenting” in which equal access to children is presumed.

The words “custody” and “access” denote ownership of children. More and more parents in reaching

settlement and judges in ordering parenting arrangements are avoiding both the language and spirit of

ownership and replacing it with parenting arrangements that actually reflect the importance of the

involvement of both parents in their children’s lives and the day-to-day realities of parental

responsibility and decision-making. Courts are being encouraged to consider social science data with

respect to many aspects of childrearing including childhood attachments to both parents. Notions of

cooperative parenting, parallel parenting, and shared parenting promoting responsibility and

involvement of both parents have emerged in the past number of years.

II. PARENTING DISPUTE RESOLUTION MECHANISMS

As lawyers we have an obligation to our clients to advise them of the options they have available

to them to assist them in resolving their disputes, including disputes related to parenting of their

children. The options are:

(a) Negotiations between Parties Most of the time the fact that one of the parties is in your office indicates that this is not a possibility or that these negotiations have broken down. (b) Mediation This is a process whereby the parties meet with a trained mediator who facilitates discussion between the parties with a view to reaching agreement.


2 Saskatchewan: Bar Admission Program Family Law - Parenting

(c) The Collaborative Process This is an option now widely available in Saskatchewan. Approximately 100 lawyers, mostly practicing in the family law area, have been trained as collaborative lawyers in the past two years. In this process, the lawyers and clients sign a contract agreeing not to use the court system to resolve their matrimonial differences. The lawyers are trained to act as facilitators in this process and to work as a team. The process is entirely transparent (i.e., all discussions, including legal advice) are conducted in meeting with both clients and both lawyers present. (d) Negotiation between Solicitors Rather than being interest-based negotiation as is the case in mediation and collaboration, negotiation between solicitors generally is positional. (e) The Court Process For most parents this is the least favored dispute resolution mechanism when the issue in dispute is the parenting of their children because of the highly adversarial nature of the process. Most people have heard horror stories involving lengthy custody battles fought at tremendous expense, both financially and emotionally to all involved, and resulting in even more hardened and entrenched positions on the part of both parties. To some extent the paradigm shift referred to in the Introduction and the introduction of mandatory pre-trial conferences with respect to all family matters has addressed some of these concerns.

III. OVERVIEW OF THE LEGISLATION

Two statutes are relevant with respect to the issue of parenting arrangements in Saskatchewan.

They are:

(a) the Federal Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.); and

(b) the Provincial Children’s Law Act, S.S. 1997, c. C-8.2.

The Divorce Act applies to married people only who have brought an application before the

court for divorce or who are already divorced. An application for custody under the Divorce Act

can only be brought by a parent of the child or by another person with leave of the court.

[Sections 16(1) and (3)] The Divorce Act defines “custody” as including “care, upbringing and

any other incident of custody”. [Section 2(1)]



“Spouse” in the Divorce Act is defined as either a man or woman who are married to each other.

[Section 2(1)]

“Child of the marriage” is defined in the Divorce Act [Section 2(1)] as

“a child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge; or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”.

Section 2(2) of the Divorce Act goes on to state

“for the purposes of the definition ‘child of the marriage’ in subsection (1), a child of two spouses or former spouses includes (a) any child for whom they both stand in the place of parents; and (b) any child of whom one is the parent and for whom the other stands in the place of a parent.”

Section 16(4) of the Divorce Act gives the court the power to “make an order under this section

granting custody of, or access to, any or all children of the marriage to any one or more persons”.

This is viewed as opening the door to an increased number of joint custody or shared parenting

orders by specifically providing that the court may make an order granting custody “to any one

or more persons”. [Payne, J. Payne on Divorce, (4th ed.), TorontoCarswell, 1996 at p. 411]

Sections 16(8) and (10) of the Divorce Act provide that the court, in considering a custody

application, shall take into consideration only the best interests of the child of the marriage as

determined by reference to the condition, means, needs, and other circumstances of the child and

shall give effect to the principle that a child of the marriage should have as much contact with

each spouse as is consistent with the best interests of the child.

Under the Children’s Law Act [Section 6(1)], an application for custody of a child may be

brought by a parent or “other person having, in the opinion of the court, a sufficient interest”.

What constitutes “sufficient interest” is a question of fact. The courts seem to acknowledge that

there must be some sort of history with the child, either a lengthy history of care of the child or

some blood connection, that gives the person sufficient interest to bring the application. It is



important to note that the courts generally agree that it is in the best interests of a child to be

raised by parents unless there is some reason for this not to occur. For an excellent summary of

the law regarding grandparent access see Tucker v. Lester 2002 SKQB 225 M-E. Wright, J.

The Children’s Law Act, section 2(1), defines “child” as a person who:

(a) is under 18 years of age; and

(b) has never married.

“Custody” under the Children’s Law Act is defined as “personal guardianship of a child and includes

care, upbringing and any other incident of custody having regard to the child’s age and maturity”.

IV. COMPARISON OF LEGISLATION

The Children’s Law Act, 1997 The Divorce Act Definition of child - section 2: a “child” means a person who is under 18 years of age and has never married

Definition of child - section 2(1): a “child of the marriage” means a child of two spouses or former spouses who is under the age of majority and has not withdrawn from their charge

“Custody” means personal guardianship of the child and includes care, upbringing and any other incident of custody having regard to the child’s age and maturity

“Custody” is defined as care, upbringing and any other incident of custody

“Father”means the father of a child and includes: (a) a man declared to be the father; and (b) a man recognized as the father pursuant to sections 50, 51, 55 or 56 (these relate to declaration order, extra-provincial and out of Canada)

“Father” is not defined - section 2(2): refers to individual standing in the “place of a parent”

“Court” means Queen’s Bench “Court” means Queen’s Bench



The Children’s Law Act, 1997 The Divorce Act

“Joint Custody” - section 3: there is a presumption of joint custody, unless the parents have never cohabited after the birth of the child (then sole custody is to the parent with whom the child resides)

“Joint Custody” - the Act is silent with regard to a presumption of joint custody, though the legislation allows for orders in this regard

“Effect of a Parent’s Death” - section 4: if a parent is deceased the presumption is that the surviving parent is the legal custodian

“Effect of Parent’s Death” - the Divorce Act is silent

“Maximum Contact Rule” - section 6(5): the principle of as much contact as is consistent with the best interest of the child

“Maximum Contact Rule” - section 16(10): the principle of as much contact as is consistent with the best interest of the child

“Best interest of the child” - section 8: sets out the considerations to take into account in determining the best interests of the child for custody - section 9(1): sets out considerations in determining best interests of child re: access

“Best interest of the child” - section 16(8): as determined by reference to the child’s condition, means, needs, and other circumstances - no circumstances are listed

“Variation” - section 6(3): the court may vary an interim order on any terms and conditions it considers appropriate. Section 6(4): the court may vary or discharge any order made pursuant to section 6 where there has been a material change in circumstances since the date of the order

“Variation” - section 17: the court may vary an order prospectively or retroactively - section 17(5): the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child since the last order was made

“Past Conduct” - section 8(b): is not relevant unless it relates to the ability to parent

“Past Conduct” - section 16(9): is not relevant unless it relates to the ability to parent



The Children’s Law Act, 1997 The Divorce Act

- section 9(4): the access parent has the right to make inquiries and be given information concerning health, education, and welfare of child - section 9(3): access is not the right to be consulted about decisions

- section 16(5): the access spouse has a right to make inquiries and be given information as to health, education, and welfare of the child - no provision

“Who can bring application” - section 6: the parent or other person having, in the opinion of the court, a sufficient interest

“Who can bring application” - section 16: spouse or any other person Section 16(3): a person other than a spouse needs leave of the court

“Change of residence” - section 6(5)(b): notice is mandatory. - section 6(6): must be at least 30 days or as specified by the court

“Change of residence” - section 16(7): a court may include in the order a requirement to provide at least 30 days notice

Note that the Divorce Act takes precedence over the Children’s Law Act.

V. TYPES OF PARENTING ARRANGEMENTS

Although it appears that the Divorce Act will be amended to refer to “parenting responsibilities”

as opposed to “custody” and “access”, at present both the Divorce Act and the Children’s Law

Act use the traditional terminology.

Essentially, sole custody refers to an arrangement whereby one parent has the sole right to make

decisions with regard to the child and the other parent has access rights which permit contact and

the right to foster a relationship between the non-custodial parent and the child.



In the early 1970’s alternative custody arrangements, other than sole custody were discussed; however,

the relationships were rigid and theoretical, not focused on the quality of the relationship of parent to

child or the pragmatics of day-to-day living post-separation. Joint custody was seen as an arrangement

whereby the child lives most of the year with one parent, though both parents are in theory to share

jointly in decisions about the child’s education, religious training, and other aspects of upbringing.

Shared or divided custody was an arrangement whereby a child lived roughly half of the year with one

of his or her divorced parents and the other half with the other parent. In split custody arrangements

the children of the marriage are split up between the two parents with one or more child living with

one parent and the other child or children living with the other parent. Generally the courts have not

looked favourably upon split custody arrangements and still do not.

The Supreme Court of Canada in Young v. Young, 1993 Carswell B.C. 264 S.C.C. introduced social

science evidence to family law litigation and the result was that the notion of primary parent and the

rights of the custodial parent predicated all custody orders. In the Young case the court gave

recognition to the principle that “the custodial parent has a duty to ensure, protect and promote the best

interests of the child. That duty includes the sole and primary responsibility to oversee all aspects of

day-to-day and long term well-being, as well as major decisions with respect to education, religion,

health and well-being” (Paragraph 114). Madam Justice L’Hereaux Dube also found that it is the role

of the courts to ensure that there is little or no disruption in the child’s life after separation and that

they rely on the custodial parent to ensure that the day-to-day decisions are met. (Paragraph 121).

The court in Young did, however, state that it is assumed to be self-evident that the best interests

of a child are met by ensuring the non-custodial parent’s involvement in the life of the child and

maximizing the involvement of both parents in the child’s life.

The development of case law in Canadian jurisdictions on joint custody orders resulted in a

consistent theme that joint custody orders require the consent of both parents and are factored on

the parent’s ability to get along.



In Saskatchewan, until a relatively short time ago, the courts were reluctant to make joint

custody orders and shared parenting orders where there was sustained conflict between the

parties. The case of Gilewich v. Gilewich, 2001 CarswellSask. 784 marks a shift in the

presumption that, where there is conflict between parents, joint parenting or shared parenting is

not appropriate.

The concepts of parallel parenting, joint custody, and co-operative parenting are discussed in the

recent Saskatchewan case of Hladun v. Hladun, 2002 CarswellSask. 501. “Parallel parenting” is

an arrangement whereby both parents have equal status but exercise their rights and

responsibilities associated with custody entirely independently from the other. This involves

framing the issue of parenting as an allocation of parental responsibilities rather than a question

of parental rights. (See M(TJ) v. M(PG), 2002 CarswellOnt. 356.)

You will see that in Saskatchewan, particularly in the context of interim applications, the court

frequently designates one parent’s home as the children’s “primary residence”. Although

presumably done to avoid the entrenchment inherent in the words “custody” and “access” many

parties and their counsel view a “primary residence” order as the equivalent of a custody order.

It is important in all custody situations, except those where one parent is clearly designated as

the custodial parent and the other parent as the visitor, that the parent’s responsibilities (day-to-

day decision-making; school, medical and dental, sports or extracurricular activities, sharing of

holidays, change of name, babysitter of first resort, religion, culture, telephone access, contact

with extended family, exchange of information, and subsidies and child tax credits, etc.) be

specified. It is also important to determine how conflicts will be resolved and how to deal with

issues such as traveling with a child outside of Canada and issues of relocation of either parent.

With respect to access, in situations where the parties’ parenting arrangement sets out the specifics

of their parenting responsibilities, each parent’s obligations, responsibilities, and rights, (including

the time the respective parents spend with their children) will be specified. Where one parent is

designated as the custodial or primary parent, the courts and/or parties will frequently describe the

other parent’s time with the child as “reasonable access on reasonable notice” or



“generous and liberal access”. These terms are then left to the parties to define. Where the

parents are unable to do so, they will, either by agreement or subsequent court application,

request that the access of the non-custodial parent be specified (i.e., outlining specific dates,

times, location for pick-up and drop off, etc.).

On rare occasions the courts in Saskatchewan will order that one parent have only supervised

access to the child or children. These orders are generally granted only where there is a

demonstrable risk of harm to the children, either physically or psychologically, if permitted to be

in the company of a parent without the supervision of another adult. Supervised access, unless

the parties can agree on an appropriate supervisor, will generally be conducted through the

Family Justice Services Supervised Access Program.

VI. INITIAL INTERVIEW AND PRACTICE AND PROCEDURES

The Saskatchewan Practice Checklists published by The Law Society of Saskatchewan and

Saskatchewan Legal Education Society Inc. provide an excellent summary of the information

necessary to proceed with a custody and access application (page F-2-5, paragraph 2.5 and

page F-2-6 to F-2-7).

Likewise, the procedures, applicable rules, and forms for bringing an interim custody and access

proceeding, a custody and access proceeding by way of corollary relief, and a variation of custody and

access orders are set out in the Saskatchewan Practice Checklists (pages F-2-7 to F-2-13.)

Of particular note in drafting affidavits in support of or in response to a custody/access application

are Rules 602(8) and 603 of the Queen’s Bench Rules. Rule 602(8) provides that a reply affidavit

may only respond to new matters raised by the opposite party. Rules 602(10) and (11) state that an

affidavit filed in contravention of the Rule may be struck with costs awarded against the party filing

and new matters raised in the affidavit in reply may be disregarded with costs awarded against



the party filing the affidavit. Rule 603 sets out the requirements of an affidavit and, more

particularly, what material will not be permitted by the courts in affidavits. Rules 603(4) and (5)

set out the sanctions which may be imposed by the court where the Rules regarding affidavits are

breached. Some of the cases interpreting these rules are Johnson v. McAlaster 2001 SKQB 112;

Beutler v. Maki 2002 SKQB 513.

An application to strike all or a portion of an opposing party’s affidavit(s) should be brought by

Notice of Motion served three days in advance of the return date. Sample precedents of the

Notice of Motion are attached to this paper.

VII. FACTORS CONSIDERED IN CUSTODY APPLICATIONS

The primary consideration for the court, whether the application is brought pursuant to the

Divorce Act or the Children’s Law Act, is the best interests of the child (Young v. Young, supra).

In order to determine the best interests, Section 8 of the Children’s Law Act sets out some of the

factors to be taken into account by the court in making, varying or rescinding an order for

custody of a child. They are:

(a) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have a close connection with the child;

(b) the personality, character, and emotional needs of the child;

(c) the physical, psychological, social, and economic needs of the child;

(d) the capacity of the person who is seeking custody to act as legal custodian of the child;

(e) the home environment proposed to be provided for the child;

(f) the plans that the person who is seeking custody has for the future of the child; and

(g) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child.



Both the Divorce Act [Section 16(9)] and the Children’s Law Act [(Section 8(b)] state that the

court shall not take into consideration the past conduct of any person unless the conduct is

relevant to the ability of that person to act as a parent of a child.

Section 8(c) of the Children’s Law Act also provides that the court shall make no presumption

and draw no inference as between parents that one parent should be preferred over the other on

the basis of the persons status as a father or mother.

Section 16(10) of the Divorce Act sets out the maximum contact principle (i.e., that the court shall give

effect to the principle) that a child of the marriage should have as much contact with each spouse as is

consistent with the best interests of the child and, for that purpose, shall take into consideration the

willingness of the person for whom custody is sought to facilitate such contact.

Section 9(1)(a) of the Children’s Law Act sets forth the considerations for the court in making,

varying or rescinding an order for access to a child. They are the same as factors (a) to (d) and

(g) above. Section 9(2) of the Children’s Law Act provides that a parent who is granted access

has the same right as the custodial parent to make inquiries and be given information concerning

the health, education, and welfare of the child. However, Section 9(3) makes it clear that a

person granted access is not, unless otherwise ordered, given a right to be consulted about or to

participate in the making of decisions by the custodial parent.

When presenting a custody case counsel should be familiar with the social science data regarding

child development. This data is often seen as fundamental to the structuring of a parenting

arrangement. (See Cooper v. Cooper 2002 SKQB 151; Tamke v. Tamke 2002 SKQB McIntyre, J.)

A summary of the data can be found in the article Using Child Development Research to Make

Appropriate Custody and Access Decisions for Young Children, Family and Conciliation Courts

Review, Vol. 38 No. 3, July, 2000, 297 to 311 by Dr. Joan Kelly and Dr. Michael A. Lamb,

Psychologists. The social science data speaks to the issues of children’s attachment to their parents



and others at various ages, the implications of attachment research for custody and access

arrangements, and how much separation from primary attachment figures is appropriate. Kelly

and Lamb replace the psychoanalytic notion of “primary parent” considered to be the basis for

many sole custody decisions, with the concept of continuity of care between parent and child

which they argue more realistically reflects the role each parent played in the child’s life pre-

separation. They promote the theory that a child requires a relationship with both parents and

point out some of the outdated notions of parent-child relationships, including the notion that a

child’s attachment to its mother is more important than its attachment to the father.

VIII. CUSTODY AND ACCESS ASSESSMENTS

A Custody and Access Assessment is a report prepared by a specialist, normally a psychologist

or social worker, after a comprehensive investigation of a family for the assistance of the court in

determining an appropriate parenting arrangement. Custody and Access Assessments include

recommendations for the court. They are used as evidence in custody cases. The assessments

may be very broad, dealing with all aspects of the parenting of the children in question or may be

narrow (e.g., confined to the issue of access or the wishes of the child (Voices of the Children

Report)).

Rule 639 of the Queen’s Bench Rules sets out the procedures for obtaining an order for a

Custody and Access Assessment.

Some parties prefer to retain a private assessor rather than having a court ordered assessment

done. The advantages are that the parties have input into who conducts the assessment and that

private assessments are generally completed more quickly than those ordered by the court. The

parties are, of course, required to pay for the assessment if done privately.



The advantages of a Custody and Access Assessment are numerous and include:

(a) The assessment is done by an independent party who normally has better qualifications in dealing with parenting issues than lawyers do.

(b) The assessor will typically visit the home, interview children, and interview witnesses in a far more casual setting than is allowed in the court process.

(c) The report will assist the lawyer in focusing on necessary witnesses, what evidence he or she may wish to call at trial, and the strengths and weaknesses of his or her case.

The disadvantages of obtaining a Custody and Access Assessment are:

(a) There is considerable delay in having the assessments completed, particularly where the assessment is court ordered.

(b) Private assessments are costly.

(c) The assessments are generally given considerable weight by the court and therefore, if unfavourable to your client, create significant disadvantage.

Some Saskatchewan cases where Custody and Access Assessments were considered by the court

both in terms of procedure and substance are: Allan v. Allan, 1999 CarswellSask 64; Larre v.

Cross, FLD 55 of 1997; Muirhead v. Peters, FLD 211 of 1995 (Prince Albert); Hannant v.

Hannant 1999 SKQB 32; Weiss v. Dekievet, 1999 CarswellSask 330.

IX. VARIATION PROCEEDINGS

Variation proceedings are governed by sections 8 and 9 of the Children’s Law Act and section 5

(Re: Jurisdiction) and section 17 of the Divorce Act.

Section 17(1)(b) of the Divorce Act provides that a court of competent jurisdiction may make an

order varying, rescinding or suspending, prospectively or retroactively, a custody order or any

provision thereof on application by either or both spouses or by any other person.



Section 17(5) states that before making a variation order in respect of custody, the court must

satisfy itself that there has been a change in the condition, means, needs or other circumstances

of the child of the marriage occurring since the making of the custody order or the last variation

order and, in making a variation order, the court shall take into consideration only the best

interests of the child as determined by reference to that change.

Section 17(6) provide that conduct is not relevant and restate the maximum contact principle.

The leading case with respect to variation applications is Gordon v. Goertz (1996), 5 W.W.R.

458 (SCC) where the Supreme Court of Canada summarized the law and procedure as follows:

“1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating material change in the circumstances affecting the child. 2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.”

The Goertz case also outlined a non-exhaustive list of factors to be considered in determining the

best interests of children when the variation application is brought as a result of one parent’s

intention to relocate. These factors are:

(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

(Some of the facts that a court may want in assessing current arrangements and relationships between the child and both parents are the specifics of the current arrangement and the percentage of time each parent has custody or care of the children, the roles and responsibilities each parent has assumed with respect to the children's care and the developmental and psychological profile of the child.)

(c) the desirability of maximizing contact between the child and both parents;

(The Supreme Court of Canada in Gordon v. Goertz stated that the maximum contact principal is mandatory but not absolute. It is to be respected as long as it is consistent with the children's best interest.



Section 16(10) of the Divorce Act, in setting forth the maximum contact principal, specifically provides that the court shall take into consideration the willingness of parents seeking custody to facilitate such contact in determining a child's best interests.

In addition to the testimony of the parents as to the parenting arrangements they propose upon relocation, a court in assessing a relocation application will need to know the geographical distance between the parents in the event the children are relocated, the means of transportation and resources for transportation that the parents have, and the respective parents proposals for the sharing of such transportation or the costs of transportation.)

(d) the views of the child;

(e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;

(Where the reason for the move is to live with a new partner, the court will, of course, want to hear from the new step-parent to determine whether the new relationship will impair the relocating parent's ability to meet the needs of the child. Frequently the reason for the relocation is to enhance education, employment or economic opportunities which may very well be seen as being directly or indirectly beneficial to the child.

If it can be shown that a parent's sole or primary reason for moving is to interrupt or interfere with the relationship between the child and the non-relocating parent and where the non-relocating parent is an adequate parent with a healthy relationship with the child, the reason for moving would bear directly on the relocating parent's ability to meet the needs of the child.)

(f) disruption to the child of a change in custody; and

(This factor seems to have some prominence in the case law. It goes hand-in- hand with the emphasis on the views of the custodial parent and the respect to be given to those views.)

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

Important considerations with respect to this factor are the length of time the children have resided in their current community, whether the extended family or families are in the community and the relationships the children enjoy with the extended family, the children's experience with or connectedness to the proposed new community and the likelihood or certainty of a change in schools or activities even if the children remained in their present community.



There is a considerable body of cases dealing with variation applications where the change in

circumstances is the proposed relocation of one of the parents. See Bjornson v. Creighton

(2002), O.J. No. 4364 (Ont.C.A.); Molloy v. Quilty 1999 SKQB 47; Handspiker v. Rafuse

(2001), NSJ No. 1 (Nova Scotia C.A.); Grueter v. Grueter 2002 SKQB 429; Larose v. Larose

(2002), B.C.J. No. 1340 (B.C.C.A.); Dybvig v. Brunen (2001), S.J. No. 403 (Sask. Q.B.);

Clarkson v. Kosokowsky 2001 SKQB 401.

X. TYPES OF ORDERS

A. EX PARTE ORDERS

This is an order made without notice to the other party. Ex parte orders are granted only where

there is an emergency situation such as an abduction or where it appears that a child is in

imminent danger. The application will not be granted where the respondent is represented by

counsel. Rule 441A sets out the procedure for making an ex parte application.

B. INTERIM ORDERS

Section 6(3) of the Children’s Law Act and Section 16(2) of the Divorce Act provide that a court may

make an interim order respecting the custody of or access to a child. These are intended to be

temporary orders in effect until an agreement is reached or a final order made. Because an interim

order may establish a status quo, they should be prepared with great care and attention to the evidence.

C. FINAL ORDER

If the parties are unable to reach agreement, these orders are granted upon the conclusion of the

trial. With respect to the parenting of children, no order is ever final in the sense that upon

expiration of the appeal period it cannot be changed. The court always has jurisdiction with

respect to the parenting of children, however once a final order is made, changes to that order

can only be sought through a variation application based on a change in circumstances.



D. VARIATION ORDERS

These are discussed in Part IX above.

Sections 16(6) and (7) of the Divorce Act give the court jurisdiction to impose terms and

conditions on a custody order (i.e., the order may be defined in time; the order may require a

person with custody of a child to notify the other parent of a change in the place of residence of

the child).

Section 6(1)(b) of the Children’s Law Act provides that the court may by order determine any

aspect of the incidents of the right to custody or access.

XI. ENFORCEMENT

A. THE DIVORCE ACT

Section 20 of the Divorce Act provides that a custody order made under the Divorce Act has

legal effect throughout Canada. It may be registered in any court in a province and enforced in a

like manner as an order of that court. The registration of such an order in Saskatchewan may be

effected by filing a certified copy of the order at any judicial centre. (Rule 611)

B. THE CHILDREN’S LAW ACT

The Children’s Law Act provides statutory remedies for the enforcement of custody and access

rights, some of which were previously available only by the common law. The enforcement

provisions, found in sections 22 to 29, are restricted by the definitions. For the purposes of

enforcement, “access” only includes access to a child at specific times or specific dates. An

“Agreement” means only an agreement that is enforceable under the laws of the jurisdiction in

which it was made and which includes a provision for custody or access. The remedies provided

by the Children’s Law Act are:



(a) Section 23 permits the court to make an interim or final order restraining a person from molesting, annoying, harassing, communicating with or otherwise interfering with the applicant or child in the lawful care or custody of the applicant and may require the respondent to enter into any recognizance, with or without sureties, or post any bond that the court considers appropriate. (b) Section 24 of the Act empowers the court to direct a sheriff, peace officer or other appropriate person to locate, apprehend, and deliver a child to a person specified by the court to give effect to the rights of the applicant to custody or access. The court must be satisfied on reasonable and probable grounds that a person is unlawfully withholding a child from a person entitled to custody or access to that child pursuant to an order or agreement or intends to remove the child from Saskatchewan. (c) Section 25 gives the court wide powers to control the parties such as to order the transfer of specific property to a named trustee or requiring the delivery of a passport or other travel documents to the court. (d) Section 26 of the Act provides a remedy for a person who has been wrongfully denied access. If this is established, the court may order compensatory access, supervision of access, the posting of security, the appointment of a mediator or may vary an order and grant the access parent custody. Similarly, if a person fails to exercise access as required, the court has the power to enforce that order. (e) Section 27 allows the court to order the respondent to pay the costs of traveling, locating the child, legal fees, and any other expenses that are relevant to enforcing custody and access orders either through the Children’s Law Act or the International Child Abduction Act. (f) Section 28 allows the court to compel the production of information from any government body or any other person if it is needed to obtain or enforce custody or access orders or agreements. (g) Section 29 of the Children’s Law Act and the common law both allow the court to determine that a person is in contempt of an order of the court. The Act provides specified penalties and the common law allows the court to order whatever penalties are appropriate for the contempt and to assist in preventing further contemptuous conduct.



C. THE QUEEN’S BENCH RULES

Rule 372 of the Queen’s Bench Rules provides as follows:

“372. A judgment requiring any person to do any act other than the payment of money, or to abstain from doing anything, may be enforced by committal. It shall in no case be necessary to apply for a writ of attachment.”

Because the consequences of a finding of contempt are extraordinary and drastic, the procedural

requirements in bringing a contempt application are strictly adhered to. The burden of proof in

contempt applications is beyond a reasonable doubt and rests with the party alleging the

contempt. A finding of contempt in family law matters should only be made as a last resort.

(Brown v. Bazanson 2002 SKQB 148) Even in contempt proceedings the court cannot ignore

the best interests of the child and neither fine nor imprisonment should be ordered unless

consistent with those best interests. (Fystrom v. Fystrom 2002 SKQB 457)

D. THE FAMILY ORDERS AND AGREEMENTS ENFORCEMENT ASSISTANCE ACT

The Family Orders and Agreements Enforcement Assistance Act [R.S. 1985, c.4 (2nd Supp.)] is

similar to section 28 of the Children’s Law Act. It provides access to information held by the

government which may assist in enforcing custody and access orders by tracing missing persons.

Under section 7 of the Act an ex parte application may be made by any person, service, agency

or body entitled to have a family provision enforced requesting that the court to apply for release

of information.

Under section 8(1) of the Act, the application must be accompanied by:

(a) a certified copy of the order or a copy of the agreement containing the support provision, custody provision or access right to which the application relates; (b) an affidavit in accordance with section 9; and (c) subject to subsection (2), proof (as supplied by the province where the court seized of the application has jurisdiction) that the provincial information banks designated with respect to that province have been searched for information helpful in locating, as the case may be, the person who is in arrears under the support provision or the child or children who is or are the object of the custody provision or access right.



Under section 8(2), the requirements set out in (c) above can be dispensed with if the affidavit in

support of the application discloses that there are reasonable grounds to believe that the person

has left the province.

When the application is in relation to the enforcement of a family provision, the affidavit in

support of the application must allege that there has been a breach of a family order and set out

the details of the breach, name the person believed to have possession of the child, disclose that a

provincial information bank has been searched, and disclose what other reasonable steps have

been taken to locate the child.

When the application is made on the basis of an alleged abduction under the Criminal Code, the

affidavit must disclose the search of the provincial information bank and disclose what other

reasonable steps have been taken to locate the child.

Once the court has authorized the release of the information to either the court or to a peace

officer, as the case may be, an application may be made to the Minister of Justice for the release

of information. The contents of such an application must meet the requirements of section 14 of

the Act, including such information as may be prescribed in the regulations.

Pursuant to section 15 of the Act, the only federal information banks that may be searched at

present are those designated in the regulations from among the information banks controlled by

the Department of Human Resources Development, the Canada Employment Insurance

Commission and the Department of National Revenue. The information that may be released

under section 16 of the Act is only as follows:

(a) the address of the person who is believed to have possession of the child;

(b) the name and address of the employer of that person;

(c) the address of the child to whom the application related; and

(d) the name and address of the employer of any child to whom the application relates.



E. THE INTERNATIONAL CHILD ABDUCTION ACT

Provincial legislation, the International Child Abduction Act, adopts the Hague Convention with

respect to the civil aspects of international child abduction. As of November 1, 1986 the

provisions of the Hague Convention are law in Saskatchewan. The Hague Convention provides,

inter alia:

1. Article 1

The objects of the present Convention are:

(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b) to ensure that rights of custody and access under the law of one Contracting State are effectively respected in the other Contracting States.

2. Article 3

The removal or the retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned above may arise in particular by operation of law or by reason of a judicial or administrative decision or by reason of an agreement having legal effect under the law of that state.

3. Article 4

The Convention shall apply to any child who was habitually resident in a Contracting State

immediately before any breach of custody or access rights. The Convention shall cease to apply

when the child attains the age of 16 years.



4. Article 5

For the purposes of this Convention:

(a) “Rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.

(b) “Rights of access” shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.

5. Article 16

After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the

judicial or administrative authorities of the Contracting State to which the child has been removed or

in which it has been retained shall not decide on the merits of rights of custody until it has been

determined that the child is not to be returned under this Convention or unless an application under

this Convention is not lodged within a reasonable time following receipt of the notice.

Underlying both the Hague Convention and the provisions of the Children’s Law Act dealing

with the enforcement of extra-provincial custody orders is the notion that the jurisdiction in

which a child was habitually resident ought to determine custody issues.

Once it has been determined that a child has been wrongfully removed or retained, the Hague

Convention mandates the court to order the child’s return forthwith (Article 12) unless the case

fits into one of the exceptions set forth in Articles 12, 13 or 20. The onus is on the parent who

would resist the return order to establish the exceptions. The exceptions are summarized in

Thomson v. Thomson (1994), 3 S.C.R. 551 at pp. 594-5 as follows:

(a) more than a year has elapsed between the removal and the commencement of judicial proceedings and it can be demonstrated that the child is now settled in his new environment (Article 12);

(b) the person, institution or other body having the care of the person of the child, was not actually exercising the custody rights at the time of removal or retention [Article 13(a)];

(c) the person, institution or other body having the care of the person of the child had acquiesced in the removal or retention [Article 13(a)];



(d) there is a grave risk that his or her return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation [Article 13(b)];

(e) the child objects to being returned and has attached an age and degree of maturity at which it is appropriate to take into accounts its views (Article 13); and

(f) the return of the child would “not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms” (Article 20).

For an excellent summary of the law regarding the Hague Convention see K.G. v. C.L.G. 2002

SKQB 177, a judgment of McIntyre, J. dated April 29, 2002.

XII. CRIMINAL ASPECTS OF CUSTODY AND ACCESS

Sections 279 to 286 of the Criminal Code.

Section 279(b) – the taking of a young person, with intent to transport that person out of Canada.

Non-resistance by the victim is not a defence to the charge.

Section 280 criminalizes the taking, without lawful authority of an unmarried person under the

age of 16, from the possession of or against the will of the parent, guardian or other person who

has lawful charge of the person. The willingness of the victim is not a defence.

Section 281 deals with the abduction of the child under the age of 14 and also adds the element

of concealment or detention with the intent to deprive the parent or guardian of the possession of

the child.

Sections 282 and 283 require that the accused intended to deprive the parent or guardian of the

possession of the child. Section 282 governs the situation where the accused is in breach of a

custody order and section 283 deals with the situation where there is no custody order.



Sections 284 and 285 provide for defences to the offences under sections 282 and 283. Section

284 allows a defence where the parent or guardian or person in lawful custody consents to the

taking of the child. Section 285 provides for a defence if the court is satisfied that the taking was

to protect the young person from imminent harm.

XIII. JURISDICTION

A. THE CHILDREN’S LAW ACT

Section 15 of the Act provides that the court shall have jurisdiction to make a custody or access

order where the child is habitually resident in Saskatchewan at the commencement of the

application. A child is habitually resident in the place where he or she has resided:

(a) with both parents;

(b) where the parents are living separate and apart, with one parent pursuant to a custody agreement or order or with the consent, implied consent or acquiescence of other parent; or

(c) with a person other than a parent on a permanent basis for a significant period of time.

In those cases where the child is not habitually resident in Saskatchewan, the court may nonetheless

assume jurisdiction if it is satisfied that all of the following seven conditions have been met:

(a) the child is physically present in Saskatchewan;

(b) there is substantial evidence concerning the best interests of the child available in Saskatchewan;

(c) there is no application for custody or access in the place of the child’s habitual residence;

(d) there is no application for enforcement of a foreign order in Saskatchewan;

(e) there has been no foreign order recognized in Saskatchewan;

(f) there is a real and substantial connection with Saskatchewan; and

(g) on a balance of convenience, it is appropriate for the court to assert jurisdiction.



Section 15(1)(c) provides that the court also has jurisdiction where the parties have consented to

the court having jurisdiction.

Finally, the removal or withholding of a child without the consent of the person entitled to

custody will not alter the habitual residence of the child. There is, however, an onus upon a

parent to take steps to ensure that the child is returned to the home jurisdiction and, if there is

acquiescence or undue delay, jurisdiction may be lost and the new residence may become the

habitual residence.

With respect to the various provisions of section 15 of the Children’s Law Act see the following

cases: K.G. v. C.L.G., supra; DeRoussy v. Boekemeyer 2001 SKQB 368, Wright, J.; Leruyet v.

Loziak (1996), S.J. No. 577, Barclay, J.; Sack v. Sack (1997), S.J. No. 469, Wright, J.; Aksomitis

v. Aksomitis 1999 SKQB 215, Krause, J.

B. THE DIVORCE ACT

Pursuant to section 3(1) of the Act a court has jurisdiction to hear and determine a divorce

proceeding, including an application for an order for custody or access only if either spouse has

been ordinarily resident in the province for at least one year immediately preceding the

commencement of the proceeding.

“Ordinarily resident” has been defined as meaning “residence in the course of the customary mode of

life of the person concerned, and it is contrasted with special or occasional or casual residence”.

Thomson v. Minister of National Revenue (1946), S.C.R. 209 (S.C.C.); Arnold v. Arnold (1998), S.J.

No. 63, McIntyre, J. While children may not have been habitually resident in Saskatchewan for the

purposes of the Children’s Law Act, the test is different under the Divorce Act. The fact that a person

may be resident in a particular locale for a defined duration or purpose does not mean that the person

cannot be said to be ordinarily resident in that locale during that period. The question remains one of

determining where the person may be said during that period of time to be regularly, normally or

customarily living. Arnold v. Arnold, supra.



Section 6(1) of the Divorce Act provides that, where an application for an order for custody is

made in a divorce proceeding to a court in a province and is opposed and the child of the

marriage in respect of whom the order is sought is most substantially connected with another

province, the court may, on application by a spouse or on its own motion, transfer the divorce

proceeding to a court in that other province. Sections 6(2) and 6(3) provide the same remedy

where the application is in a corollary relief proceeding or in a variation proceeding. See

Aksomitis v. Aksomitis, supra.

XIV. CHILD PROTECTION PROCEEDINGS

The Child and Family Services Act is provincial legislation which gives the Department of

Social Services power to apprehend children from the care of their parents or any other party

when they are in need of protection.

Where a child is apprehended and the Department does not return the child to the custodial

parent or other third party within 48 hours of the apprehension, there must be, within seven days,

an application to a court for a protection hearing. In a protection hearing, the court determines

whether the child is in need of protection (section 36). Where the court decides that a child is in

need of protection, the court can make an order that the child be returned to his or her parents, be

placed in the custody of a person having a sufficient interest in the child, remain in or be placed

in the custody of the Minister. The goals of the Act are set out in section 3 of the Act:

“The purpose of this Act is to promote the well being of children in need of protection by offering, wherever appropriate, services that are designed to maintain, support and preserve the family in the least disruptive manner.”

The Department may return the child to his or her home with appropriate supervision or place the

child in a foster home or a third party’s home (such as a grandmother’s) and provide for reasonable

access to the parents. In considering where to place the child, the court takes into account:



(a) the quality of the relationship that the child has with any person who may have a close connection with the child;

(b) the child’s physical, mental and emotional level of development;

(c) the child’s emotional, cultural, physical, psychological, and spiritual needs;

(d) the home environment proposed to be provided for the child;

(e) the plans for the care of the child or the person to whom it is proposed that the custody of the child be entrusted;

(f) where practicable, the child’s wishes having regard to the age and level of the child’s development;

(g) he importance of continuity in the child’s care and the possible disruption of that continuity; and

(h) effect of the child of a delay in making a decision (section 4 of the Act).

These orders can be time limited to a maximum of six months each for a total of 24 months.

When the order expires, the court holds a new hearing or the child is returned.

Section 12 of the Children’s Law Act provides that where a child is the subject of proceedings

under the Child and Family Services Act and an application for custody of or access to the child

is brought pursuant to the Children’s Law Act, the protection application is stayed pending the

decision of the court with respect to the Children’s Law Act application.

XV. DECLARATIONS OF PARENTAGE

Section 2(1) of the Children’s Law Act defines “father” as “the father of a child and includes:

a. a man declared to be the father pursuant to section 43 or 44; and b. a man recognized as the father pursuant to Section 50, 51, 55 or 56.”

Section 43(2) of the Children’s Law Act provides for an application for a declaratory order for a

person to be recognized as the father or mother of a child.



Section 45 of the Children’s Law Act sets out the circumstances in which a man is presumed to

be the father of a child. They are:

(a) at the time of the child’s birth or conception the man was cohabiting with the mother, whether or not they were married to each other;

(b) the man and the mother of the child have filed a statutory declaration acknowledging that the man is the father of the child with the Director of Vital Statistics or an equivalent official in another jurisdiction in Canada;

(c) the man signed the birth registration form pursuant to the Vital Statistics Act, 1995;

(d) the man married the mother after the child’s birth and acknowledges that he is the father;

(e) the man and the mother have acknowledged in writing that the man is the father of the child; and

(f) the man has been found or recognized by a court in Canada to be the father of the child.

Section 43(4) provides that where the court finds a presumption of paternity pursuant to section 45

and unless it is established, on a balance of probabilities, that the presumed father is not the father of

the child, the court may make a declaratory order confirming that the paternity is recognized in law.

Section 43(5) gives the court the power to make a declaratory order of paternity where either there is

no man recognized in law under section 45 to be the father of the child or circumstances exist that

give rise to conflicting presumptions of paternity pursuant to section 45.

Section 48 of the Children’s Law Act gives the court the power to order blood or other genetic

tests. No test is to be performed without consent, however the court may draw inferences where

a person named in the order refuses to submit to the test.


APPENDICES


Saskatchewan: Bar Admission Program A - 1 Family Law - Parenting Appendix A - Specified Parenting Plan

SPECIFIED PARENTING PLAN 1. Proposed Regular Schedule for parenting: a) As between the father and the mother, there shall be no declaration of primary residence of the child, * . Each parent will parent the child in an environment of their choosing but away from the environment of the other parent. b) The father will parent the child, on a two week rotation basis, as follows: The mother will parent the child at all other times. Note regarding the foregoing: It is the intention of the parties that the times spent with the child by each parent shall be roughly equal. Neither parent shall advance, in the future, the position that they are the primary caregiver of the child merely because they may enjoy in excess of 50 percent of the time with the child. c) The parties desire that, over time, each of them will be sufficiently flexible to change and swap parenting times with one another when special circumstances warrant a change in schedule. However, where the parties cannot agree to a change in the schedule, the schedule will apply. Should any request to change the regular parenting schedule be subject of dispute between the parents, then the request may be denied by the parent who is scheduled to parent without any explanation. d) On the nights that the mother or father does not parent, they will be welcome to telephone the child before bedtime. e) School Vacation Periods – The normal parenting schedule noted above would be suspended during school vacation times and the following would apply in those vacation periods:

i) Summer vacation -

ii) February School Break – to be divided equally between the parents.

iii) Easter Vacation – to be divided equally between the parents.

iv) Christmas – During the Christmas holiday period, it is the intention of the parties that this period of time be equally divided between the parents with each parent having Christmas Eve and Christmas Day in alternating years with the father enjoying Christmas Eve and Christmas Day with the child in the year 2002. The specifics of the division of the balance of the Christmas holidays are to be settled between the parties by October 15 each year.


A - 2 Saskatchewan: Bar Admission Program Family Law -Parenting Appendix A - Specified Parenting Plan

2. Commitments by each parent: a) to maintain the schedule once it is established with some flexibility as special circumstances warrant; b) to inform the other parent of any health problems of the child; c) to inform the other parent of their whereabouts when away without the child, for purposes of emergencies; if the child is out of the province or the country on vacation with the other parent, the child’s whereabouts at all times will be made known to the parent who is not with the child and there shall be regular telephone contact during this time away. d) each to be the babysitter of first choice where appropriate. It is an express expectation that neither parent will criticize the other parent for either (1) needing the services of the other to babysit; or (2) in being unable or unavailable to provide those services when requested by the other. e) each parent will designate the other as guardian of the child in their respective wills. f) each parent will encourage and facilitate, to the extent possible, ongoing and continued contact with extended families of the child – grandparents, aunts and uncles, cousins and great grandparents, if any. 3. Other days and statutory holidays he normal parenting schedule noted above will be suspended during other special days or

statutory holidays and the following will apply on those days. If the special day or statutory holiday falls on what would normally be a parenting day for the other parent, there will be no make-up or compensatory parenting time:

a) Mother’s Day – The child will spend with the mother – 9:00 a.m. to 7:30 p.m.

b) Father’s Day – The child will spend with the father – 9:00 a.m. to 7:30 p.m.

c) Mother’s birthday – The child will spend with the mother – 9:00 a.m. to 7:30 p.m.

d) Father’s birthday – The child will spend with the father – 9:00 a.m. to 7:30 p.m.

e) The child’s birthday – The parents will both have some contact with the child on their birthdays and the parent who has the normal parenting on that day will be responsible for arranging the birthday party, if so desired. The other parent may arrange whatever celebration he or she things appropriate on another day when he or she has the child.


Saskatchewan: Bar Admission Program A - 3 Family Law - Parenting Appendix A - Specified Parenting Plan

4. Decision-making The father and the mother shall consult with each other with a view to making shared

decisions on all major matters effecting the child. “Major matters” would include: a) Schooling; b) Religious upbringing; c) Health matters; d) Daycare arrangements; e) Extra-curricular activities – what activities and scheduling the same. All routine day-to-day decisions will be made by the parent in whose care the child is at

the time of the decision. Neither parent will schedule extra-curricular activities which impinge on the other parenting time without agreement of the other parent. Where the parties cannot agree, no explanation is required.

5. Review The parties need to recognize that the parenting schedule for the child will change and

evolve over time as the child matures and as her/her needs and interests change. Therefore, the parties shall review and revise their parenting plan for the child on an annual basis -- on or before the 15th of May in every year to ensure that the schedule continues to be effective, appropriate and workable for all concerned. Failing agreement, the parties shall involve a mediator to assist them before bringing the matter back to court.


PRECEDENTS


Saskatchewan: Bar Admission Program P - 1 Family Law - Parenting Precedents - Petition (Form 589)

Div. No. _______ of ______________ CANADA PROVINCE OF SASKATCHEWAN

IN THE COURT OF QUEEN’S BENCH FAMILY LAW DIVISION

JUDICIAL CENTRE OF SASKATOON BETWEEN:

NAME OF PETITIONER PETITIONER

AND: NAME OF RESPONDENT

RESPONDENT

PETITION (Form 589)

NOTICE TO RESPONDENT

A LEGAL PROCEEDING HAS BEEN STARTED AGAINST YOU IN THIS COURT. The details of the claim made against you are set out in the following pages. IF YOU WISH TO DISPUTE ANY OF THE CLAIMS, OR IF YOU WISH TO MAKE ANY CLAIM YOURSELF, either you or a lawyer must prepare an Answer in Form 597A or an Answer and Counter-Petition in Form 598, serve a copy on the Petitioner or the Petitioner’s lawyer at the address for service given in the Petition, and file it, with proof of service in this Court office WITHIN 30 DAYS after this Petition is served on you where you are served in Canada or in the United States. Where you are served elsewhere, the period for serving and filing your answer is WITHIN 60 DAYS after this Petition is served on you. Before serving and filing an answer, you may serve and file a Notice of Intent to Answer in Form 597B. This will entitle you to ten more days within which to serve and file your answer. If this Petition contains a claim for support YOU MUST SERVE AND FILE A FINANCIAL STATEMENT in Form 609A within the time set out above for serving and filing your answer, whether or not you wish to file an answer. If you have been served with a claim for child support and you do not comply with this notice or the Notice to File Income Information, also served on you, THE COURT MAY IMPUTE INCOME TO YOU AND MAY DETERMINE THE AMOUNT OF CHILD SUPPORT PAYABLE ON THE BASIS OF THAT IMPUTED INCOME. If you have been served with a claim for child support or if you intend to make a claim for child support in your answer, please consult the Federal Child Support Guidelines.


P - 2 Saskatchewan: Bar Admission Program Family Law -Parenting Precedents - Petition (Form 589)

If this Petition contains a property claim YOU MUST SERVE AND FILE A PROPERTY STATEMENT in Form 609B within the time set out above for serving and filing your answer, whether or not you wish to file an answer. If you have also been served with a Notice of Motion, YOU OR YOUR LAWYER SHOULD SERVE AND FILE YOUR AFFIDAVITS IN RESPONSE TO THE MOTION 7 DAYS BEFORE THE DATE SET FOR HEARING THE MOTION, and come to court for the motion on the date set. If you do not oppose or dispute the Petition, but wish to be informed of subsequent steps in the proceeding, you may serve and file a Demand for Notice in Form 599 and thereafter notice of all subsequent pleadings or proceedings shall be served on you. IF YOU FAIL TO SERVE AND FILE AN ANSWER, A JUDGMENT MAY BE GRANTED IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU ON ANY CLAIM IN THIS PETITION, INCLUDING DISSOLUTION OF YOUR MARRIAGE AND DIVISION OF YOUR PROPERTY. IF THE PETITION SEEKS A DIVORCE, NEITHER SPOUSE IS FREE TO REMARRY until a Judgment of Divorce takes effect. This Petition is to be served within 6 months from the date on which it is issued, unless otherwise ordered. This Petition is issued at Saskatoon, Saskatchewan, this _____ day of ___________, 2003.

____________________________________ Local Registrar



TO THIS HONOURABLE COURT:

C L A I M 1. I hereby ask this Honourable Court for the following relief: a) X DIVORCE ACT i) X Divorce

ii) X Joint Custody with primary residence with the Petitioner

iii) X Access to the Respondent

iv) X Support for the children in the amount agreed upon between the parties IN THE CIRCUMSTANCES set out below:

PARTICULARS OF MARRIAGE BREAKDOWN:

2. A certificate of the marriage or of registration of the marriage has been filed with the court. 3. There has been a breakdown of the marriage by reason of: Section 8(2)(a) of the Divorce Act, 1985.

4. The facts on which my Petition for divorce is based are: The Respondent and I have been living separate and apart since on or about the _____ day of _____________, 2003, and at the commencement of these proceedings continue to live separate and apart. 5. The following efforts to reconcile have been made:

No efforts to reconcile have been made.

6. It is no longer possible for me to reconcile or resume cohabitation with my spouse. COLLUSION, CONDONATION & CONNIVANCE:

7. (a) I have truthfully set out the facts establishing the breakdown of my marriage and I have not entered into any agreement, understanding or arrangement to makeup or hide evidence or to deceive the court.



MEDIATION:

8. The mediation facilities utilized to negotiate matters pertaining to support or custody are as follows:

The Respondent and I attended mediation with ______________.

PARTICULARS OF PROPERTY CLAIM:

9. At the date of issuance of this Petition, the Respondent and I owned or held an interest in real and personal property either separately or jointly. The Respondent and I have reached an agreement with respect to division of said property and a Waiver of Property Statements in Form 611A will be filed in these proceedings.

PARTICULARS OF RELATIONSHIP:

10. The Respondent and I were married on ________________ at Saskatoon, Saskatchewan. 11. I ceased to cohabit with the Respondent on or about _________________. PARTICULARS OF PARTIES:

12. My surname at birth: ___________. 13. My surname immediately before marriage: _____________. 14. My marital status at time of marriage: Never married. 15. I was born: _____________. 16. The Respondent’s surname at birth: ___________. 17. The Respondent’s surname immediately before marriage: _____________. 18. The marital status of Respondent at time of marriage: Divorced. 19. The Respondent was born: _______________.



RESIDENCE:

20. My address is: Saskatoon, Saskatchewan 21. The Respondent’s address is: Saskatoon, Saskatchewan 22. I have been ordinarily resident in Saskatchewan since birth. CHILDREN:

23. The names, dates of birth and place of residence of all children of the Respondent and I who are in the custody or care of either of us are:

_________ born _____________ _________ born _____________ (A) The children in respect of whom relief is claimed are: _________ born _____________ _________ born _____________ (B) The particulars of the current custody and access arrangements of the children are as

follows: The Respondent and I have joint custody of the children with the children having their primary residence with me in the family home. The Respondent has regular contact with the children, which is satisfactory for the following reasons: They reside in the home they are familiar with and have maximum contact with both parents. (C) I claim joint custody of the following children on the following terms: _________ born _____________ _________ born _____________ (D) I propose to permit access to the following children on the following terms: _________ born _____________ _________ born _____________ In accordance with our written Interspousal Contract.



(E) The proposed arrangement for custody and access is in the best interest of the children for the following reasons: See Paragraph (B) above.

(F) The following changes of circumstances of myself or the Respondent are expected to

affect the children, their custody and access, in the future: Not applicable. (G) The nature of my relationship to and interest in the children is as follows: I am their natural mother.

(H) The nature of the Respondent’s relationship to and interest in the children is as follows: The Respondent is the children’s natural father.

(I) Other than the Respondent and myself, the following persons may have an interest in the

custody of or access to, or may have an obligation to support the children: Not applicable.

(J) The existing financial arrangements for the support of the children are as follows: The Respondent pays $500 per month child support.

(K) I propose that the financial arrangements for the support of the children, having regard to

the relief claimed, should be as follows: In accordance with our Interspousal Contract, the Respondent shall continue to pay child support in the sum of $500 per month together with an equal share of the cost of all extracurricular activities with the exception of hockey and one-half of the cost of any health-related expenses including orthodontic expenses. A Child Support Information Sheet in Form 640A is filed in this proceeding.

(L) I am claiming child support in an amount different from the table amount determined

under the Federal Child Support Guidelines due to: X An Agreement between the parties.

The facts to substantiate the proposed terms of child support are as follows: The Respondent and I have entered in to an agreement whereby the Respondent shall pay child support in the amount of $500.00 per month.



PROCEEDINGS AND AGREEMENTS:

23. The particulars and status of all other legal proceedings instituted between myself and the Respondent with reference to the marriage, cohabitation, custody, support, maintenance or division of property are:

There are no other legal proceedings instituted between myself and the Respondent. 24. The dates of any written or oral separation or financial or custody agreements between

myself and the Respondent are: May 14, 2002. The agreement pertains to:

X custody of the children X access to the children X child support X spousal support X division of property 25. The particulars of any other orders or agreements relating to any child in the custody or

care of either the Respondent or I are: There are no other orders or agreements. FINANCIAL ARRANGEMENT:

27. (a) My occupation is: _______________. (b) My place of employment is: ________________. (c) My current annual income from all sources is estimated to be approximately $30,768.12. 28. (a) The Respondent’s occupation is: ________________. (b) The Respondent’s place of employment is: _______________________. (c) The Respondent’s current annual income from all sources is estimated to be approximately $30,000. DATED at the City of Saskatoon, in the Province of Saskatchewan this ___ day of ______, 2003.

______________________________ Signature of the Petitioner



STATEMENT OF LAWYER I, Name of Lawyer, the lawyer for Name of Petitioner, the Petitioner in this proceeding, certify

to this Court that I have complied with the requirements of subsection 9(1) of the Divorce Act

with respect to reconciliation and subsection 9(2) of the Divorce Act with respect to negotiation

and mediation.

DATED at Saskatoon, Saskatchewan, this ______ day of ___________, 2003.

__________________________________ Name of Lawyer

This document was delivered by: Name of Law Firm

Barristers and Solicitors Address

SASKATOON, Saskatchewan Postal Code

Address for Service: Same as above. Lawyer in Charge of File: Name of Lawyer Telephone: (306) 653-1500


Saskatchewan: Bar Admission Program P - 9 Family Law - Parenting Precedents – Notice of Motion for Interim Custody and Child Support

Div. No. ________ of 2003 CANADA PROVINCE OF SASKATCHEWAN


JUDICIAL CENTRE O SASKATOON BETWEEN:



RESPONDENT

NOTICE OF MOTION (Family Law Proceeding)

(Form 602) TAKE NOTICE that an application will be made to the Presiding Judge in Chambers at the Court House, 9th Floor, 224 Fourth Avenue South, in Saskatoon, Saskatchewan, at 10:00 o’clock in the forenoon on ___________, the ____ day of __________, 2003, , or so soon thereafter as the matter may be heard on behalf of the Petitioner for an Order that: a) The Petitioner, Name of Petitioner, be granted interim custody of the child of the marriage, namely _________________ born _____________________;

b) The Respondent, Name of Respondent, be required to pay interim child support to the Petitioner, Name of Petitioner, for the child of the marriage, namely ________________ born ______________ pursuant to the Federal Child Support Guidelines;

c) The Respondent be required to pay the costs of this application.

ON THE FOLLOWING GROUNDS:

1. The child, _____, has been in the Petitioner’s care since the parties separated on _________. He is almost 12 years of age and wishes to remain in the Petitioner’s care.

2. The Petitioner has received no child support from the Respondent since the parties separated. AND FURTHER TAKE NOTICE that in support of this application will be read the Affidavit of ________________ and such further and other material as counsel may advise and this Honourable Court allow.


P - 10 Saskatchewan: Bar Admission Program Family Law - Parenting Precedents – Notice of Motion for Interim Custody and Child Support

AND FURTHER TAKE NOTICE if you wish to oppose the Motion, you or your lawyer must prepare an affidavit in response, serve a copy at the address for service given at the end of this document and file it in the Court Office, with proof of service, at least 7 days before the date set for hearing the Motion. You or your lawyer must also come to Court for the hearing of the Motion on the date set.

AND FURTHER TAKE NOTICE that whether or not you oppose this motion, you must serve and file a Financial Statement in Form 609A at least 7 days before the date set for hearing the Motion. If this Motion includes a claim for child support, and you do not comply with this notice or the Notice to File Income Information which has also been served on you, THE COURT MAY IMPUTE INCOME TO YOU AND MAY DETERMINE THE AMOUNT OF CHILD SUPPORT PAYABLE ON THE BASIS OF THAT IMPUTED INCOME. If you have been served with a Motion for child support, please consult the Federal Child Support Guidelines.

AND FURTHER TAKE NOTICE that if you do not appear at the hearing [or fail to provide the required financial information] an order may be made in your absence and enforced against you. YOU WILL NOT RECEIVE FURTHER NOTICE OF THIS MOTION. DATED at Saskatoon, Saskatchewan, this _______ day of ___________, 2003. NAME OF LAW FIRM Per: _____________________________ Solicitors for the Petitioner TO: Respondent This document was delivered by:

NAME OF LAW FIRM Barristers and Solicitors

Address SASKATOON, Saskatchewan

Postal Code Whose address for service is: same as above Lawyer in Charge of File: Name of Lawyer Telephone Number: (306) 653-1500


Saskatchewan: Bar Admission Program P - 11 Family Law - Parenting Precedents – Order Granting Supervised Access

Div. No. ________ of _______________ CANADA PROVINCE OF SASKATCHEWAN





RESPONDENT BEFORE THE HONOURABLE ) ON ___________, THE ___________ MR. JUSTICE R.D. LAING ) IN CHAMBERS ) DAY OF _____________, 2003

O R D E R UPON THE APPLICATION of counsel on behalf of the Petitioner, Name of Petitioner, and

counsel on behalf of the Respondent, Name of Respondent, upon hearing read the pleadings and

proceedings had and taken herein, and upon hearing Counsel for the Petitioner and Counsel for

the Respondent, IT IS HEREBY ORDERED AND ADJUDGED THAT:

1. The Respondent, Name of Respondent, shall be entitled to exercise two hours of supervised access to the children, ___________ born _____________, ______________ born _________ and ____________ born ____________, each Sunday through the Family Justice Services Program in Saskatoon to commence, if possible, ______________, if it can be set up in that time frame and otherwise the following Sunday. 2. An access report shall be prepared. The children are not to be interviewed for the purposes of the access report sooner than two months from the date of this Order. ISSUED at Saskatoon, Saskatchewan, this ______ day of ______________, 2003.

_____________________________ Local Registrar


P - 12 Saskatchewan: Bar Admission Program Family Law Parenting Precedents – Order Granting Supervised Access

This document was delivered by



Postal Code Whose address for service is: Same as above Lawyer in Charge of File: Name of Lawyer Telephone Number: (306) 653-1500


Saskatchewan: Bar Admission Program P - 13 Family Law - Parenting Precedents – Application for Variation

Div. No. _________ of ______________





RESPONDENT

APPLICATION FOR VARIATION TO: Name of Petitioner/Respondent 1. TAKE NOTICE that an application will be made to the Presiding Judge in Chambers at Court of Queen’s Bench, Family Law Division, 9th Floor, 224 Fourth Avenue South, Saskatoon, Saskatchewan, at 10:00 o’clock in the forenoon on ______, the __ day of ________, 2003, or so soon thereafter as the matter may be heard for an Order varying: a) Paragraphs 2(a) and 3(a) of the Divorce Judgment granted by Madam Justice M.Y. Carter of the Court of Queen’s Bench of Saskatchewan pronounced on the ____ day of ___________, ______. Particulars of the relief sought are as follows:

a) A variation of custody of the children of the marriage wherein the children’s primary residence shall be with the Respondent. b) An Order terminating child support payable by the Respondent to the Petitioner, Name of Petitioner, in respect to the children, __________ born ___________, ____________ born ______________ and _______________ born ________________. c) Costs of this application; and


P - 14 Saskatchewan: Bar Admission Program Family Law Parenting Precedents – Application for Variation

d) Such further and other relief as counsel may advise and this Honourable Court deem just. on the following grounds: a) The Petitioner is not able to provide the children with the emotional support they need. b) The child, ________, has been residing with the Respondent since approximately mid-October, 2000; the child, ________, has been residing with the Respondent since late October, 2000 and the child, _______, has just recently began residing with the Respondent. c) The Respondent can provide the children with a stable environment, together with appropriate emotional support and is best able to parent them.

2. IN SUPPORT of this application will be read the Affidavit of _____________________.

3. AND FURTHER TAKE NOTICE if you wish to oppose the application, you or your lawyer must prepare an affidavit in response, serve a copy at the address for service given at the end of this document and file it in the Court Office with proof of service, at seven (7) days before the date set for hearing the application. You or your lawyer must also come to court for the hearing of the application on the date set.

4. AND FURTHER TAKE NOTICE that whether or not you oppose this application, you must serve and file a Financial Statement in Form 609A at least seven days before the date set for hearing the application. If this application includes a claim for variation of child support and you do not comply with this notice or the Notice to File Income Information which has also been served on you, THE COURT MAY IMPUTE INCOME TO YOU AND MAY DETERMINE THE AMOUNT OF CHILD SUPPORT PAYABLE ON THE BASIS OF THAT IMPUTED INCOME. If you have been served with an application for variation of child support, please consult the Federal Child Support Guidelines.

5. AND FURTHER TAKE NOTICE that if you do not appear at the hearing [or fail to provide the required financial information] an order may be made in your absence and enforced against you. YOU WILL NOT RECEIVE FURTHER NOTICE OF THIS APPLICATION.


Saskatchewan: Bar Admission Program P - 15 Family Law - Parenting Precedents – Application for Variation

DATED at the City of Saskatoon, in the Province of Saskatchewan, this ___ day of _____, 2003.

NAME OF LAW FIRM Per _____________________________ Solicitors for the Petitioner TO: Respondent This document was delivered by





P - 16 Saskatchewan: Bar Admission Program Family Law Parenting Precedents – Application for Variation

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Saskatchewan: Bar Admission Program P - 17 Family Law - Parenting Precedents – Variation Order

Div. No. ___________ of _____________ CANADA PROVINCE OF SASKATCHEWAN





RESPONDENT BEFORE THE HONOURABLE ) ) ______________________________ IN CHAMBERS )

O R D E R UPON THE APPLICATION of counsel on behalf of the Petitioner, Name of Petitioner, and

upon hearing read the pleadings and proceedings had and taken herein, and upon having read the

consent of Counsel for the Petitioner the consent of the Respondent, IT IS HEREBY

ORDERED AND ADJUDGED THAT:

1. Paragraph 2 of the Order granted by the Honourable Madam Justice J.A. Ryan-Froslie of

the Court of Queen’s Bench of Saskatchewan pronounced on the ___ day of ________,

2001, be and is hereby varied as follows:

a) The interim primary residence of the children, ______ born __________; _________ born __________; ___________ born _____________ and ________ born ___________, shall be with the Respondent, Name of Respondent. The parties acknowledge that the interim primary residence of the child, ________ born _____________, has been with the Petitioner, Name of Petitioner, since ___________ and shall continue to be with the Petitioner, Name of Petitioner.


P - 18 Saskatchewan: Bar Admission Program Family Law - Parenting Precedents – Variation Order

2. Paragraph 2 of the Order granted by the Honourable Mr. Justice R.D. Maher of the Court

of Queen’s Bench of Saskatchewan pronounced on the ____ day of ___________,

_____________, be and is hereby varied as follows:

a) The Petitioner, Name of Petitioner, whose annual gross income is $58,577.00, shall pay interim child support for the four children in the custody of the Respondent, Name of Respondent, in the amount of $1,188.00 per month commencing September 1, 2002 and continuing on the 1st day of each and every month thereafter until the children are no longer children within the meaning of the Divorce Act or until further Order of this Court.

ISSUED at Saskatoon, Saskatchewan, this ______ day of ___________, _______.

_____________________________ Local Registrar This document was delivered by





Saskatchewan: Bar Admission Program P - 19 Family Law - Parenting Precedents – Example 1: Notice of Motion to Strike Portions of Petitioner’s Affidavit






RESPONDENT

NOTICE OF MOTION (Family Law Proceedings)

(Form 602) TAKE NOTICE that an application will be made to the Presiding Judge in Chambers at

the Court House, 9th Floor, 224 Fourth Avenue South, in Saskatoon, Saskatchewan, at 10:00

o’clock in the forenoon on _______________, the _____ day of ___________, 2003, or so soon

thereafter as the matter may be heard on behalf of the Respondent for an Order:

a) Pursuant to Rule 602(8) and Rule 603 of The Queen’s Bench Rules striking out portions of the Petitioner’s Affidavit sworn ________________________. b) Pursuant to Rule 534 of The Queen’s Bench Rules abridging the time for service of this motion. c) The Petitioner be required to pay the costs pursuant to Rule 603(4) of The Queen’s Bench Rules. ON THE FOLLOWING GROUNDS: 1. Paragraph 2, the first sentence in Paragraph 4, the last sentence in Paragraph 10, the last two sentences in Paragraph 13, Paragraphs 15, 16, 17, 18, 19, 20 are not replying to new matters raised by the Respondent’s Affidavit and therefore are in contravention of Rule 602(8) of The Queen’s Bench Rules.


P - 20 Saskatchewan: Bar Admission Program Family Law - Parenting Precedents – Example 1: Notice of Motion to Strike Portions of Petitioner’s Affidavit

2. The third and fourth sentences in Paragraph 3 are argumentative as are the last two sentences in Paragraph 20 contrary to Rule 603(2) of The Queen’s Bench Rules. 3. The first two and the last sentence in Paragraph 4 are hearsay contrary to Rule 603(1) and (3) of The Queen’s Bench Rules. 4. The second sentence in Paragraph 4 offers opinion evidence and argument. AND FURTHER TAKE NOTICE that in support of this application will be read the

pleadings and proceedings had and taken herein and such further and other material as counsel

may advise and this Honourable Court allow.

DATED at Saskatoon, Saskatchewan, this ____ day of _______________, 2003.

NAME OF LAW FIRM Per: _____________________________ Solicitors for the Petitioner TO: Respondent This document was delivered by





Saskatchewan: Bar Admission Program P - 21 Family Law - Parenting Precedents – Example 2: Notice of Motion to Strike Portions of Petitioner’s Affidavit






RESPONDENT

NOTICE OF MOTION (Family Law Proceedings)

(Form 602) TAKE NOTICE that an application will be made to the Presiding Judge in Chambers

at the Court House, 9th Floor, 224 Fourth Avenue South, in Saskatoon, Saskatchewan, at 10:00

o’clock in the forenoon on _______________, the _____ day of ___________, 2003, or so soon

thereafter as the matter may be heard on behalf of the Respondent for an Order pursuant to Rule

603(4) and 603(5):

a) Striking portions of the Affidavits filed on behalf of the Petitioner. b) Awarding costs to the Respondent. ON THE FOLLOWING GROUNDS:

1. With respect to the Affidavit of the Petitioner sworn ____________________: (a) Paragraph 9 second sentence – offers opinion and is argumentative; (b) Paragraphs 18 and 19 – irrelevant; (c) Paragraph 20 last sentence – offers opinion and is argumentative; (d) Paragraphs 25 and 26 – irrelevant in that interim child and spousal support was dealt with by the court order dated November 27, 2001. 2. The Affidavit of ________________ sworn _________________: (a) Paragraph 7 – offers expert opinion without foundation or qualifications; (b) Paragraph 8 – offers hearsay, opinion and is argumentative.


P - 22 Saskatchewan: Bar Admission Program Family Law - Parenting Precedents – Example 2: Notice of Motion to Strike Portions of Petitioner’s Affidavit

3. The Affidavit of ______________ sworn _____________: (a) Paragraph 2 – first three sentences – offer opinion, argument and are irrelevant. (b) Paragraph 3 – irrelevant. 4. The Affidavit of ______________ sworn ______________: (a) Paragraph 5 second, third, fourth and last two sentences – offer conclusions, opinion, argument and are irrelevant. AND FURTHER TAKE NOTICE that in support of this application will be read the

pleadings and proceedings had and taken herein such further and other material as counsel may

advise and this Honourable Court allow.

DATED at Saskatoon, Saskatchewan, this ____ day of _______________, 2003. NAME OF LAW FIRM Per: ___________________________ Solicitors for the Petitioner TO: Respondent This document was delivered by





Saskatchewan: Bar Admission Program P - 23 Family Law - Parenting Precedents – Order for Protection under the Child and Family Services Act

F.S.M. No. ___________ of _____________ CANADA PROVINCE OF SASKATCHEWAN

IN THE COURT OF QUEEN’S BENCH (FAMILY LAW DIVISION)

JUDICIAL CENTRE OF SASKATOON

IN THE MATTER OF AN APPLICATION UNDER THE CHILD AND FAMILY SERVICES ACT

IN RESPECT OF:

________________________________, born _______________ ________________________________, born _______________

BEFORE THE HONOURABLE ) MADAM JUSTICE G. A. SMITH ) ________________________________ IN CHAMBERS )

ORDER HAVING HEARD THE EVIDENCE ADDUCED, I find the children to be in need of protection within the meaning of Section 11(b) of the Child and Family Services Act as there is no adult person who is able and willing to provide for the children’s needs and physical or emotional harm to the children has occurred or is likely to occur; AND I ORDER THAT:

1. The children, ___________________, be committed to the Minister of Social Services for a temporary period of three (3) months, pursuant to Section 37(1)(c) of the Child and Family Services Act, 2. The children are to be placed in the home of ________________, on condition that the mother, _____________, not attend at the home without the express authorization of the Department of Social Services.


P - 24 Saskatchewan: Bar Admission Program Family Law - Parenting Precedents – Order for Protection under the Child and Family Services Act

3. The mother will have access to be arranged through the Department of Social Services, to occur at the Department of Social Services offices or such other location as the Department may authorize from time to time. 4. The Department of Social Services will continue to monitor the placement to determine whether the caregivers require support, and the Department may provide such supports as it determines to be necessary. DATED at the City of Saskatoon, in the Province of Saskatchewan, this ___ day of ______, ___. _____________________________ Local Registrar This Document was delivered by:

Name of Law Firm Barristers and Solicitors


Postal Code Address for service: Same as above Lawyer in Charge of File: Name of lawyer Telephone Number: (306) 653-1500


Saskatchewan: Bar Admission Program P - 25 Family Law - Parenting Precedents – Notice of Motion to Lift Stay of Execution

COURT OF APPEAL RULES FORM 5a (Rule 15)

IN THE COURT OF APPEAL FOR SASKATCHEWAN

Between ____________________________________ Appellant (status in court appealed from)

– and - ____________________________________ Respondent (status in court appealed from)

NOTICE OF MOTION TO

LIFT STAY OF EXECUTION

TAKE NOTICE: 1. THAT the Respondent intends to apply to the presiding judge in Chambers at the Court House, 2425 Victoria Avenue, Regina, Saskatchewan on _____ the ___ day of _______, ______ (month) (year) at 10:00 a.m. for the following relief

(a) An order pursuant to Rule 15 of The Court of Appeal Rules, lifting the stay of execution of the judgment (or order) of the Honourable Mr./ Madam Justice _________ issued the ___ day of ___________________ , _______ . (month) (year)

(b) Alternatively, an order requiring, as a condition of the continuation of the stay, that the following steps be taken:

(Here set forth the terms the Respondent wishes to see imposed if the stay is to be continued in whole or in part, as for example:

(i) That the Appellant pay into this Honourable Court the sum of $_______ on or before the ____ day of ___________ , _______ . (month) (year)

(ii) That this sum to be deposited by the Registrar into an interest bearing account to be held there pending the determination of this appeal.)

2. THAT the following material will be filed in support of this application: (a) This notice of motion with proof of service. (b) The affidavit of__________________ . (c) The formal judgment (or order) from which the Appellant desires to appeal. (d) The decision of the Honourable Mr./Madam Justice __________ upon which the judgment (or order) is based. (e) A draft order of the relief sought. (f) A memorandum specifying the basis for seeking a lift of the stay.

DATED at ______________ , Saskatchewan, this ___ day of _____________, _______ . month) (year)

_________________________________________________ Name and Signature of the Lawyer for the Respondent

TO: ______________________ The Appellant(s) Rel. No. 3 – June 1997

Reproduced from the Court of Appeal Rules May 2003 - Saskatchewan Legal Education Society Inc.

P - 26 BAC: Family Law Parenting Precedents – Notice of Motion to Lift Stay of Execution

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May 2003 - Saskatchewan Legal Education Society Inc.

Saskatchewan: Bar Admission Program P - 27 Family Law - Parenting Precedents – Draft Order to Lift Stay of Execution

COURT OF APPEAL RULES FORM 5b (Rule 15)

IN THE COURT OF APPEAL FOR SASKATCHEWAN

Between

_________________________________________________________ Appellant – and –

_________________________________________________________ Respondent

BEFORE THE HONOURABLE ) Wednesday, the _______ Mr./MADAM JUSTICE ) day of ______________, ________ IN CHAMBERS: ) (month) (year)

DRAFT ORDER

UPON THE APPLICATION of the Respondent, and having read the notice of motion with proof of service, the affidavit of _________________ , the formal judgment (or order) and the decision of the Honourable Mr./Madam Justice ____________ , together with such other material as was filed in support of the application, and having regard for the submissions of counsel:

IT IS HEREBY ORDERED: THAT the stay of execution imposed pursuant to Rule 15 of The Court of Appeal Rules is lifted.

OR

THAT the stay of execution imposed pursuant to Rule 15 of The Court of Appeal Rules is continued on condition: (Here set forth the proposed conditions upon which the stay may be continued, for example, in the case of an order for the payment of funds into court: 1. The Appellant shall deposit with the Registrar, not later than the _______ day of _________ , ___________ , a sum equal to the judgment appealed from, or a surety bond (month) (year) irrevocable letter of credit in the amount of the judgment and satisfactory to the Registrar. 2. All monies deposited with the Registrar shall be invested by the Registrar in an interest bearing account, and any surety bond or letter of credit filed with the Registrar shall be retained by the Registrar until further order or final determination of the appeal. 3. Anything realized by means of a writ of execution or garnishee shall be retained by the Sheriff or Local Registrar until further order or the final determination of the appeal. 4. (Further terms as required.) 5. The costs of this application shall be costs in the cause. ISSUED at __________ , Saskatchewan, this ___ day of ____________, _______ . (month) (year) _______________________________________ Registrar, Court of Appeal Rel. No. 3 – June 1997

Reproduced from the Court of Appeal Rules May 2003 - Saskatchewan Legal Education Society Inc.

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