Bitz v Preuss, 2024 ABCA 4

In the Court of Appeal of Alberta Citation: Bitz v Preuss, 2024 ABCA 4 Date: 20240103 Docket: 2301-0135AC Registry: Calgary Between: Merle Bitz Appellant - and - Karmel Preuss Respondent _______________________________________________________ The Court: The Honourable Chief Justice Ritu Khullar The Honourable Justice William T. de Wit The Honourable Justice April Grosse _______________________________________________________ Memorandum of Judgment Appeal from the Order by The Honourable Justice J.T. Eamon Dated the 7th day of June, 2023 Filed on the 23rd day of August, 2023

( Docket: FL01 38089) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: [ 1 ] This is an appeal of an interim without prejudice parenting order granted in morning family chambers. The appellant argues that the chambers justice made a number of errors in ordering a change to the parenting status quo on conflicting affidavits.

For the reasons set out below, the appeal is allowed in part. [ 2 ] From the time the parties separated in January 2022 through to April 2023, they shared parenting of their now eight-year-old daughter week-on / week-off. How that arrangement came to be is contested. There was no court order or written agreement. The appellant filed an application for a week-on / week-off parenting order shortly after separation. The respondent filed a response affidavit in September 2022, requesting day-to-day care of the child with regular parenting time for the appellant.

The parenting application was adjourned several times for a variety of reasons. [ 3 ] By the time the matter came before the chambers justice on June 7, 2023, the child had ceased having parenting time with the appellant. The respondent claimed that the child had become increasingly resistant to being in the appellant’s care, culminating in an incident in late April 2023, following which the respondent refused to return the child to the appellant. The respondent alleged, among other things, that the child was fearful of the appellant and did not want to see him.

The appellant denied these allegations and claimed that the respondent was alienating and wrongfully withholding the child. [ 4 ] The chambers justice described the affidavit evidence as “diametrically opposed” and stated that he could not make an accurate adjudication of what was in the child’s best interests. He accepted week-on / week-off parenting as the practical status quo and noted that major changes to parenting are generally not made in chambers.

However, he concluded that on the evidence, albeit disputed, the child was at risk of significant emotional or psychological harm if he ordered a return to the week-on / week-off regime at that time. He found that the circumstances engaged the court’s ability to act in chambers to protect the wellbeing of a child on an urgent or emergency interim basis. [ 5 ] The parties agreed in principle on counselling for the child and a voice of the child report.

The chambers justice directed that pending those interventions, the respondent would have day-to-day care of the child, with parenting time for the appellant as agreed or directed by the court. The order was expressly noted to be “interim without prejudice” and permitted the parties to bypass family docket court and proceed directly to chambers for further directions in respect of the counselling or voice of the child report. In his reasons, the chambers justice also referenced the parties returning to court for directions on parenting time for the appellant if they could not agree.

He told them they needed to take steps quickly. [ 6 ] There was no application to adduce fresh evidence in this court, but we are advised by counsel that the child started seeing a counsellor in August 2023. A voice of the child report is underway but will not be completed until after the new year. Since the chambers hearing, the appellant has had limited parenting time in the form of video calls and short attendances with the child following her extracurricular activities.

The parties disagree as to who is responsible for the appellant not having more time. [ 7 ] The appellant requests that this court set aside the chambers order and order week-on / week-off parenting. The respondent argues that the appeal should be dismissed and the parties should continue with the counselling and voice of the child processes ordered by the chambers justice. [ 8 ] The standard of review from interim parenting orders is one of deference.

This court may only intervene if the chambers justice erred in law or made a material error in the appreciation of the facts: Krause v Krause , 2018 ABCA 293 at para 8 . [ 9 ] The chambers justice correctly identified the relevant principles of law in respect of disputed parenting applications in morning chambers: see, HG v RG , 2017 ABCA 89 . However, it appears that in sifting through the more than 80 pages of evidence presented to him for this matter alone, he erred in his appreciation of one important fact. In summarizing the evidence, the chambers justice said: So the child is 8-years-old.

She tells the mother she doesn’t want to be with the father. He yells at her and spanks her, and she’s been living with mom since the 29 of April. The father says she -- the child appears to fear the father and has an aversion -- developed an

aversion towards him…. In fact, the appellant’s evidence was that he had a good relationship with the child and had not noticed the concerns raised by the respondent. In other words, the very existence of fear and aversion by the child towards the appellant was disputed. In the context of the issues and evidence, this misapprehension is material so as to warrant appellate intervention. Accordingly, paragraph 1 of the order dated June 7, 2023 (filed August 23, 2023), which sets “interim interim” parenting, is set aside.

The other provisions of the order remain in full force and effect. [ 10 ] In light of our conclusion on this particular ground of appeal, we need not address the others. [ 11 ] We are concerned about the limited contact between the appellant and the child since April 2023. However, we decline to exercise our jurisdiction to make a new interim parenting order. The evidence before us is now at least six months old. We have limited information as to what has occurred in counselling. In the circumstances of this case, we are not in a position to determine the child’s best interests, even on an interim basis.

This result reflects the reality that appeals of interim parenting orders, and particularly interim without prejudice orders, are rarely an effective means of advancing the interests of the child or the parties. [ 12 ] While we would prefer not to leave the parties without an interim parenting order, they are in no worse position than when they went to court on June 7, 2023, or than they would have been in if the chambers justice had declined to make an interim without prejudice order and adjourned the matter pending counselling or the voice of the child report.

In fact, the appellant argues that if the chambers justice was not going to order shared parenting, he ought to have adjourned instead of making the order he did. The parties are expected to follow the extant paragraphs of the June 7, 2023 order, and any orders granted since with respect to counselling for the child and the voice of the child report. They are also expected to use all reasonable efforts to work towards increasing the appellant’s parenting time in a manner consistent with the best interests of the child.

Either may request a fresh interim parenting application in the Court of King’s Bench through family docket court, or any other available scheduling process, based on updated evidence, including any available evidence from the counsellor or with respect to the counselling progress to date. [ 13 ] Given the mixed success, each party shall bear their own costs of the appeal. Appeal heard on November 30, 2023 Memorandum filed at Calgary, Alberta this 3rd day of January, 2024 Authorized to sign for: Khullar C.J.A. Authorized to sign for: de Wit J.A. Grosse J.A. Appearances: J. Asp for the Appellant C.L. Mercier

for the Respondent